The COVID-19 pandemic resulted in most schools using on-line or distance education modalities as part of their strategy to mitigate interruptions to coursework. This has both academic implications, which apply to domestic and international students alike, and immigration questions, because of the general rule limiting the amount of distance education that can be counted towards a "full course of study."
The F-1, M-1, and J-1 Distance Education Limits
SEVP Fall 2020 Coronavirus Guidance for F-1 schools and students
For now, the agreement between the parties in the Harvard/M.I.T. case returns SEVP policy to the March 2020 status quo as established by the following:
March 9, 2020 policy directive, Broadcast Message 2003-01: COVID-19 and Potential Procedural Adaptations for F and M Students. Provides guidance on potential procedural adaptations for F and M nonimmigrant students, including adaptations to online coursework policies.
March 12, 2020 Optional Coronavirus School Reporting Template. Optional template for reporting school COVID-19 procedural changes to SEVP. The template states, “Schools are encouraged to provide additional details regarding their emergency operations plans beyond the questions detailed in this template.”
March 13, 2020 scenarios. COVID-19: Guidance for SEVP Stakeholders. SEVP follow-up to its March 9, 2020 guidance, identifying three common scenarios related to emergency procedures implemented by SEVP-certified schools: 1) A school completely closes and does not have online courses or other alternate learning procedures; 2) A school temporarily stops in-person classes but implements online or other alternate learning procedures and the nonimmigrant student remains in the United States; and 3) A school temporarily stops in-person classes but implements online or other alternate learning procedures and the nonimmigrant student departs the United States.
July 24, 2020 broadcast message. Broadcast Message 2007-02: Follow-up: ICE continues March guidance for fall school term. On July 24, 2020, SEVP posted a broadcast message to clarify certain aspects of applying the March 2020 "status quo" guidance in the context of the Fall 2020 term.
August 7, 2020 FAQs. SEVP posted a revised set of COVID-19 FAQs dated August 7, 2020 at www.ice.gov/doclib/coronavirus/covid19faq.pdf, which merges its July 24 "Clarifying Questions" and its July 15 FAQs into a single document, revising some of the FAQs "to reflect the fall 2020 semester," and to archive and rescind certain FAQs that were "specific to the spring or summer semester."
August 7, 2020 broadcast message. Broadcast Message 2008-01: New Process: Reporting School Procedural Adaptations to SEVP. SEVP changed the email address for submitting school COVID-19 operational plans and updates, as well as several other particulars regarding the process.
There are still gaps between the "status quo" policy and the Fall 2020 reality. A July 16, 2020 NAFSA Town Hall: SEVP Fall 2020 Guidance discusses some of these gaps.
Things that are fairly clear from the reinstituted March 2020 guidance
- New students now outside the United States in initial SEVIS status with an I-20 issued for Initial Attendance cannot enter the United States to begin a course of study that is 100% online.
- Continuing students who were in Active SEVIS status on March 9, 2020 and remain in Active status now with an I-20 with Issue Reason "Continued Attendance" can pursue up to and including a 100% online course of study with their SEVIS records kept in in Active status, whether they are in the United States, remain outside the U.S., or wish to return to the U.S. to pursue that course of study here.
- Students now inside the United States who were in Active SEVIS status on March 9, 2020 but are now in initial SEVIS status with an I-20 that indicates Transfer Pending or Change of Level can have their records Registered in SEVIS to change their SEVIS status to Active to begin the new level of study or study at the transfer-in school. "This includes students who have remained in the U.S. in active status and are starting a new program of study that is 100 percent online."
- SEVP Broadcast Message 2003-01 applied generally to all "SEVP-certified Schools and F and M Students," so schools are able to adapt their programs for English language students and programs as well.
In a March 11, 2020 email to J-1 exchange visitor program sponsors the Department of State Exchange Visitor Program advised: "We anticipate a range of changes to program circumstances that will affect exchange visitors. ECA asks sponsors and exchange visitors to consult with host organizations to seek alternative ways to maintain program objectives and/or employment, such as telework, online classes, or other arrangements, while preventing unnecessary exposure to the disease and its spread. A temporary modification along these lines for exigent circumstances beyond a sponsor's or host entity's control does not undermine a program's consistency with the regulations."
"In accordance with monitoring requirements, we ask that if your institution is moving towards an online environment, please report it to [email protected] using the Incident Report Form if you have not already done so. OPA is aware that as some sponsors move their operations to an online environment,their institutions are concurrently working on measures to decrease the density of their campuses (including moving exchange visitors out of university housing). If your institution is taking measures to relocate exchange visitors from campus housing, please detail this in your Incident Report and explain the options and/or resources you are providing to exchange visitors in terms of alternative housing. Please use this opportunity to remind your exchange visitors of the requirement for them to report to you within ten calendar days any changes in their telephone numbers, email addresses, actual and current U.S. addresses, and site of activity [22 CFR 62.10(d)(3)]. Please update SEVIS when necessary to reflect accurate program information including current U.S. address and site(s) of activity.
The Incident Report Form is available on the Academic Program Sponsors page on the j1visa.state.gov website.
On June 25, 2020, ECA published this FAQ, advising on the limits of distance education and teaching flexibilities for the Fall 2020 semester:
ONLINE VS. IN-PERSON CLASSES: Can exchange visitors participating in the Teacher, Professor, and College/University Student categories of the Exchange Visitor Program teach/take online/hybrid classes in the academic session starting this fall or must all courses be in person?
The purpose of the Exchange Visitor Program is to facilitate in-person exchanges. Any potential new exchange visitors (i.e., individuals currently in "initial" status in the Student and Exchange Visitor Information System (SEVIS)) may start their exchanges only if their programs and host academic institutions will be able to comply with regulatory requirements. For example, college/university student programs must generally take place "at a degree-granting post-secondary accredited academic institution" (2 CFR 62.23(a)); Teachers must teach "in an accredited primary or secondary school" (22 CFR 62.24(d)(5)); and Professors "must conduct their exchange activity at the site(s) of activity" although occasional lectures or consultations are allowable at other locations (22 CFR 62.20(f)). While these regulations do allow ECA to provide some flexibility in permitting a limited amount of distance learning, ECA reminds sponsors that the Exchange Visitor Program generally requires programs to foster the exchange of ideas between foreign teachers and students and American counterparts. Thus, host academic institutions should have reinstated partial to full-time classroom participation or be able to meet other formal in-person requirements before hosting new participants.
With respect to exchange visitors who are currently in "active" status in SEVIS and are continuing programs that were underway in a manner compliant with regulations when the pandemic reached the United States, ECA understands that program sponsors have adjusted program activities to meet their obligations to provide for the health, safety, and welfare of their exchange participants. In keeping with ECA's message on March 11, 2020 (https://j1visa.state.gov/wp-content/uploads/2020/03/3.11.2020_Exchange-Visitor-Program-Sponsor-Guidance.pdf), ECA continues to ask sponsors and exchange visitors to consult with host organizations to find alternative ways to maintain program objectives, including online classes or other arrangements, while preventing unnecessary exposure to COVID-19. A temporary modification along these lines of a current exchange participant's program due to exigent circumstances beyond a sponsor's or host entity's control does not undermine the program's original consistency with the regulations.
On July 29, 2020, the Office of Private Sector Exchange sent an email informing university program sponsors that:
- ECA "will continue to accept online coursework for college and university J-1 nonimmigrant exchange visitors that remain in active SEVIS status."
- "ECA continues to recommend that sponsors and exchange visitors consult with host organizations to find alternative ways to maintain program objectives, including online classes or other arrangements as appropriate, while preventing unnecessary exposure to COVID-19."
- "Sponsors may keep an exchange visitor's SEVIS record "active" until the exchange visitor is able to return to the United States to continue with his or her original program objectives. Exchange visitors should be mindful of the validity dates of their J-1 visas; they may need to renew their visas before they return to the United States."
- "host academic institutions should have reinstated partial to full-time classroom participation or be able to meet other formal in-person requirements before hosting new participants."
- "As hosting academic institutions adjust fall term structures and dates, we ask that sponsors continue to keep us apprised as requested in our March 17, 2020, guidance. Please report to the Office of Private Sector Exchange Program Administration via email ([email protected]) these individual institutions' decisions and altered modalities, as they may vary according to local and state conditions."
Academic Considerations Applicable to Both Domestic and International Students
Changing the delivery modality of coursework, especially mid-term, must be handled appropriately, taking into account not only immigration questions for international students, but also issues related to accreditation, contractual obligations, technical and human resources, and financial considerations.