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 Coronavirus Guidance for F-1 schools and students

On July 6, 2020 SEVP published Broadcast Message 2007-01 - COVID-19 and Fall 2020. The content of the Fall 2020 guidance is reproduced below. Briefly, some flexibility will continue for schools that adopt an in-person or hybrid model for Fall 2020, but will not continue for students in the United States studying at schools operating entirely online for Fall 2020. In addition, by August 4, 2020 schools must reissue all Forms I-20 after updating SEVIS with a statement in the Form I-20 Remarks field that "the school is not operating entirely online, that the student is not taking an entirely online course load for the fall 2020 semester, and that the student is taking the minimum number of online classes required to make normal progress in their degree program." Lastly, all schools must update their operational plans with SEVP: Schools that will be entirely online or will not reopen for Fall 2020 must notify SEVP no later than Wednesday, July 15, 2020. Schools that will offer an in-person or hybrid program for Fall 2020 must notify SEVP of their plans by August 1, 2020.

On March 9, 2020, SEVP sent Broadcast Message 2003-01 to SEVIS users, providing guidance on potential procedural adaptations for F and M nonimmigrant students for the Spring 2020 semester, including adaptations to online coursework policies. Schools that adapted their policies (for example, by temporarily moving to online instruction for all students) had to provide SEVP notice by submitting certain information identified in Broadcast Message 2003-01 Appendix 1, "within 10 business days of the date of the decision to initiate the operational change." SEVP later extended their Spring 2020 guidance to Summer 2020, but SEVP's July 6, 2020 COVID-19 guidance will control Fall 2020 enrollments.

A basic review of the standard limits on F-1 distance education

The regulatory limits to online or distance education courses as part of a full course of study remain exactly the same as they have been since introduced by the final INS SEVIS rule effective January 1, 2003. The current state of the rule is fully discussed in the Adviser's Manual at section 3.F.1.7.

Under 8 CFR 214.2(f)(6)(i)(G), no more than the equivalent of one on-line/distance education class or 3 credits per session may count towards the "full course of study" requirement, if an online or distance education course "does not require the student's physical attendance for classes, examination or other purposes integral to completion of the class."

If an online class does require "the student's physical attendance for classes, examination or other purposes integral to completion of the class," then it is not subject to the 1-course/3-credit limitation. The scope of this exemption, however, naturally gives DSOs pause. For example, what if a school decides to offer coursework completely online but require students to take the final exam in person? Absent SEVP guidance, the general rule is that more physical attendance requirements are better than fewer in-person requirements, along an interpretive continuum of risk.

The regulations are silent on the question of whether a distance education course can satisfy the full course of study requirement if it is the only course taken in the final semester of study. However, Module 3 of SEVP's Online Training For School Officials states that, "If students only need one course to complete their program of study, the course cannot be completed through online or distance education." In the same way, the SEVP Study in the States piece Reminders About Online and Distance Learning Courses says that "students must enroll in at least one course that requires physical attendance in their final academic term."

Schools can temporarily adapt their programs in response to COVID-19, however, by following the procedures outlined in SEVP's Broadcast Message 2003-01.

F-1 English language students and M-1 students

The regulations disallow F-1 English language students and M-1 students from using any online or distance education classes towards satisfying the requirement to enroll in a full course of study. However, SEVP Broadcast Message 2003-01 applied generally to all "SEVP-certified Schools and F and M Students," so schools were able to adapt their programs for these students and programs as well, but only for Spring and Summer 2020 sessions. SEVP's Fall 2020 guidance discontinued that flexibility, stating: "The above exemptions do not apply to F-1 students in English language training programs or M-1 students, who are not permitted to enroll in any online courses (see 8 CFR 214.2(f)(6)(i)(G) and 8 CFR 214.2(m)(9)(v)))."

J-1 students

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."

The Exchange Visitor Program's March 17, 2020 message stated:

"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.

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. Schools should become familiar with the March 5, 2020 Guidance for interruptions of study related to Coronavirus (COVID-19) from the U.S. Department of Education's Office of Postsecondary Education, which addresses "five potential student and campus scenarios" about how to comply with Federal financial aid requirements if the Coronavirus impacts a student or a campus.