"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 2022-2023 COVID-19 Guidance for F-1 Schools and Students

SEVP's guidance for the 2022-2023 academic year refers to its March 2020 COVID-19 guidance, which was based on the following documents under the agreement between the parties in the Harvard/M.I.T. case, which returned Fall 2020 guidance to the March 2020 policy "status quo" that existed prior to SEVP's rescinded July 6, 2020 guidance. ICE's master page of COVID-19 guidance contains links to the below SEVP COVID-19 guidance under "Nonimmigrant Students and SEVP-Certified Schools." In its April 18, 2022 Frequently Asked Questions for SEVP Stakeholders about COVID-19, SEVP states that it is continuing the March 2020 guidance for the 2022-2023 academic year.

  1. 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. This is the key document setting forth the "March 2020" guidance that now continues in effect for the 2021-2022 academic year.

  2. 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." NAFSA note: The link to this template now contains a (Mar. 2021) updated date. However, SEVP has not yet updated the template to read "Fall 2021."

  3. 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.

  4. 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.

  5. 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 merged 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."

  6. 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.

  7. Broadcast Message: ICE Continues March 2020 Guidance to 2021-2022 Academic Year (Apr. 2021)

  8. April 18, 2022 broadcast message. Broadcast Message 2204-04: ICE Continues March 2020 Guidance for the 2022-23 Academic Year. "The Student and Exchange Visitor Program (SEVP) will extend the guidance originally issued in March 2020 for the 2021-22 academic year. This guidance enables schools and students to engage in distance learning in excess of regulatory limits due to the continuing public health concerns created by COVID-19. The March 2020 guidance applies to nonimmigrant students who were actively enrolled at a U.S. school on March 9, 2020, and are otherwise complying with the terms of their nonimmigrant status, whether from inside the United States or abroad. A summary of the March 2020 guidance is available below. Significantly, there are no changes to the original guidance, which will remain in effect during the 2021-22 academic year."

  9. Broadcast Message 2205-03: ICE Clarifies Continuation of March 2020 Guidance for the 2022-23 Academic Year (May 31, 2022).

The above must be read in the context of SEVP's May 31, 2022 Frequently Asked Questions for SEVP Stakeholders about COVID-19, which for convenience are transcribed below. Gaps continue to exist between the March 2020 policy and the 2020-2021 academic year reality. See the following NAFSA resources that discuss this.

SEVP's COVID-19 Broadcast Messages and FAQs for the 2022-2023 Academic Year

Extract of SEVP's Broadcast Message

Refer to SEVP's Broadcast Message 2205-03: ICE Clarifies Continuation of March 2020 Guidance for the 2022-23 Academic Year (May 31, 2022) for the complete text when citing to that document. For convenience, here is an extract of the salient portions:

"Clarification of Continuation of March 2020 Guidance for the 2022-23 Academic Year

The Student and Exchange Visitor Program (SEVP) is reissuing its guidance for the 2022-23 academic year to clarify that the guidance only applies to nonimmigrant students who were actively enrolled at a U.S. school on March 9, 2020, and have continuously complied with the terms of their nonimmigrant status. Students who enrolled after March 9, 2020, must adhere to SEVP’s existing regulations regarding online learning, found at 8 C.F.R. § 214.2(f)(6).

Original Message Issued April 18, 2022

SEVP will extend the guidance originally issued in March 2020 for the 2022-23 academic year. This guidance enables schools and students to engage in distance learning in excess of regulatory limits due to the continuing public health concerns created by COVID-19. The March 2020 guidance applies to nonimmigrant students who were actively enrolled at a U.S. school on March 9, 2020, and are otherwise complying with the terms of their nonimmigrant status, whether from inside the United States or abroad. A summary of the March 2020 guidance is available below. Significantly, there are no changes to the original guidance, which will remain in effect during the 2022-23 academic year.

Summary of March 2020 Guidance for Continuing Students

As stated in the March 2020 guidance, Active F and M students will be permitted to temporarily count online classes toward a full course of study in excess of the regulatory limits stated in 8 C.F.R. § 214.2(f)(6)(i)(G) and 8 C.F.R. § 214.2(m)(9)(v) for the 2021-22 academic year. The March 2020 guidance applies to continuing F and M nonimmigrant students who were in valid F-1 or M-1 nonimmigrant status on March 9, 2020, including those previously enrolled in entirely online classes who are outside of the United States and seeking to re-enter the country for the 2022-23 academic year. Students actively enrolled at a U.S. school on March 9, 2020, who subsequently took courses online while outside of the country can re-enter the United States, even if their school is engaged solely in distance learning.

Summary of March 2020 Guidance for Initial Students

In accordance with the March 2020 guidance, new or Initial F and M students who were not previously enrolled in a program of study on March 9, 2020, will not be able to enter the United States as a nonimmigrant student for the 2022-23 academic year if their course of study is 100 percent online. A new student should be allowed to enter the United States if they are engaged in a hybrid program of study, with some requirement for in-person learning. Consistent with this restriction, Designated School Officials should not issue a Form I-20, “Certificate of Eligibility for Nonimmigrant Student Status,” for a student in new or Initial status who is outside of the United States and plans to take classes at an SEVP-certified educational institution that is operating fully online.

Procedural Change Plans for SEVP-certified Schools

If an SEVP-certified school has previously submitted a procedural change plan detailing its alternative procedures, it does not need to resubmit the plan for the 2022-23 academic year, unless the school is making substantive changes. Consistent with the provisions of the March 2020 guidance, substantive changes should be submitted to SEVP within 10 business days of the decision to implement the change. For more information on submitting a procedural change plan, please refer to Broadcast Message 2003-01, linked below."

Extract of the SEVP FAQs

This NAFSA extract of SEVP's COVID-19 Guidance for the 2022-2023 academic year is provided for reference only. Refer to the SEVP PDF document on the SEVP website when citing or otherwise relying on the wording of the SEVP guidance.


Clarifying Questions for the 2021-22 Academic Year Based on March 2020 Guidance

...

2. Does the March 2020 guidance apply to students who enrolled after March 9, 2020?

A. No. The March guidance only applies to nonimmigrant students who were actively enrolled at a U.S. school on March 9, 2020, and have continuously complied with the terms of their nonimmigrant status. Students who enrolled after March 9, 2020, must adhere to SEVP’s existing regulations regarding online learning, found at 8 C.F.R. § 214.2(f)(6).

[NAFSA note: SEVP added this FAQ in response to SEVP's Broadcast Message 2205-03: ICE Clarifies Continuation of March 2020 Guidance for the 2022-23 Academic Year (May 31, 2022).

3. Can F or M students outside the United States obtain a visa to study in the United States if their program of study will be fully online for the 2022-23 academic year?

A. Whether an individual is eligible to receive an F or M visa is a decision that must be made by the U.S. Department of State and is not made by SEVP. Consistent with the SEVP Broadcast Message dated March 9, 2020, DSOs should not issue a Form I-20, "Certificate of Eligibility for Nonimmigrant Student Status," for a student in new or Initial status who is outside of the United States and plans to take classes at an SEVP-certified educational institution that is operating fully online. A new student may be issued a visa to study inside the United States if their program of study is a hybrid program with some in-person learning requirement.

As a result, new or Initial nonimmigrant students who were not previously enrolled in a program of study on March 9, 2020 and intend to pursue a full course of study that will be conducted completely online should not be granted an F-1 or M-1 visa. If a nonimmigrant student was enrolled in a course of study in the United States on March 9, 2020, but subsequently left the country, that student remains eligible for a visa since the March 2020 guidance permitted a full online course of study from inside or outside the United States.

The March 2020 guidance applies to nonimmigrant students who were actively enrolled at a U.S. school on March 9, 2020, and otherwise complying with the terms of their nonimmigrant status.

4. Can students apply for a visa to enter the United States for a hybrid program of study with online components beyond the limitations at 8 CFR 214.2(f)(6)(i)(G)?

A. Whether an individual is eligible to apply for an F or M vWhether an individual is eligible to apply for an F or M visa is a decision that must be made by the U.S. Department of State and is not made by SEVP. However, consistent with the March 2020 guidance and for the 2022-23 academic year, DSOs may issue Forms I-20 to nonimmigrant students seeking to enroll in a program of study inside the United States that includes in-person and online components beyond the limitations at 8 CFR 214.2(f)(6)(i)(G). This includes new or Initial students.

5. Can students continue to remain in the United States if they are engaged in a fully online program of study?

A. Yes. Consistent with the March 2020 guidance, for the 2022-23 academic year nonimmigrant students may remain in the United States to engage in a fully online program of study if they have not otherwise violated the terms of their nonimmigrant status. Students will be able to maintain their nonimmigrant status and not be subject to initiation of removal proceedings based on their online studies. If a student violates other U.S. laws or regulations that impact their immigration status, they could be subject to removal.

6. Can students remain in the United States if their school switches from traditional in-person or hybrid instruction to fully online instruction?

A. Nonimmigrant students pursuing studies in the United States for the 2022-23 academic year may remain in the United States even if their educational institution switches to a hybrid program or to fully online instruction. The students will maintain their nonimmigrant status in this scenario and would not be subject to initiation of removal proceedings based on their online studies. If a student violates U.S. laws or regulations, they could potentially be subject to removal.

7. Can students remain in the United States in a hybrid program of study with online components beyond the limitations at 8 CFR 214.2(f)(6)(i)(G)?

A. For the 2022-23 academic year, nonimmigrant students may remain in the United States in a hybrid program of study, which consists of both in-person and online components beyond the limitations at 8 CFR 214.2(f)(6)(i)(G). Students will not face enforcement action or loss of their nonimmigrant status based on engaging in hybrid programs. If a student violates U.S. laws or regulations, they could potentially be subject to removal.

8. Our school will be enrolling F or M students in the 2022-23 academic year. What should our school report to SEVP about our plans for the 2022-23 academic year?

A. If an SEVP-certified school has previously submitted a procedural change plan detailing its alternative procedures, it does not need to resubmit the plan for the 2022-23 academic year, unless the school is making substantive changes. Consistent with the provisions of the March 2020 guidance, substantive changes should be submitted within 10 business days of the decision to implement the change.

SEVP-certified schools that have not yet filed procedural change plans and have active nonimmigrant students enrolled in programs of study for fall 2022 should submit a procedural change plan, detailing any changes to existing procedures necessitated by COVID-19.

9. What should a certified school report on F or M students' Forms I-20 for the 2022-23 academic year?

A. Schools should review SEVP's COVID-19 FAQs for information how to issue Forms I-20. As noted in the FAQs, students who will be continuing their studies outside the United States should have the following comment in the remarks field: "Outside the United States due to COVID-19."

Schools issuing Initial Forms I-20 should abide by all regular requirements regarding Form I-20 issuance. Consistent with the SEVP Broadcast Message dated March 9, 2020, DSOs should not issue a Form I-20, "Certificate of Eligibility for Nonimmigrant Student Status," for a student in new or Initial status who is outside of the United States and plans to take fully online classes at an SEVP-certified educational institution.

...

Things that are clear from SEVP guidance

If a school has submitted a proper procedural change plan to SEVP:

  • New students 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. "Transfer students inside the United States must report to a DSO at their transfer-in school in person or using electronic means within 15 days of their program start date (8 CFR 214.2(f)(8)(ii)(C)). The DSO must complete the transfer process and register the student as Active in SEVIS. Students should follow the guidelines the school provides to all its F and M students related to COVID-19."

Things that are unclear from SEVP guidance

"Clarifying Questions" 3 and 4 in the SEVP COVID-19 FAQs, as well as the language under "Summary of March 2020 Guidance for Initial Students" in SEVP's Broadcast Message 2205-03: ICE Clarifies Continuation of March 2020 Guidance for the 2022-23 Academic Year (May 31, 2022), have been read by some to imply that new students outside the United States in initial SEVIS status with an I-20 issued for Initial Attendance could enter the United States to begin a "hybrid program with some in-person learning requirement." However, SEVP's additional statement in, i.e., "Students who enrolled after March 9, 2020, must adhere to SEVP's existing regulations regarding online learning, found at 8 C.F.R. § 214.2(f)(6)," which was also added to the "clarifying questions" section of the May 31, 2022 revision to the SEVP COVID-19 FAQs, would prohibit schools from offering hybrid programs of study to new and initial students who were not enrolled on March 9, 2020, if those hybrid programs exceed the standard limit on distance education of 1 class/3credits per term of 8 CFR 214.2(f)(6). The only logical read in this much narrower context would be that only "new and Initial students" who had been enrolled and in F-1 status on March 9, 2020 would be eligible to enter the United States to begin study in a hybrid program. That situation would usually arise, however, only in limited situation, such as when a student was enrolled on March 9, 2020, left the United States, did not thereafter qualify to have their SEVIS record maintained in Active status while abroad, and then later seeks to reenter the United States in F-1 status. This would likely also apply to continuing students who were not enrolled as of March 9, 2020. For further discussion on this, read the following on NAFSA's page NAFSA Resource on SEVP's 2022-23 COVID-19 Guidance for F-1 Schools:

J-1 students

Department of State Exchange Visitor Program FAQs at https://j1visa.state.gov/covid-19/ provide generally that a J-1 college and university student who is currently in Active SEVIS status may continue to take take online/hybrid classes and that exchange visitors who were in Active status as of March 11, 2020 can continue to participate 100% in on-line/virtual programs whether from inside the United States or abroad. See:

3.17.2020 Communication to Academic Sponsors: Online Programs Guidance, which states:

  • "The Department appreciates your efforts in addressing the care and concern of your exchange visitors during this challenging time. We know that you are actively seeking 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. Please know that OPA recognizes flexibility is needed given the uncertainty created by the widespread COVID-19 outbreak, and we will work closely with you to support you however we can."
  • "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."
  • NAFSA Note: The Incident Report Form is available on the Academic Program Sponsors page on the j1visa.state.gov website.

Key FAQs include:

Current Program FAQs:

ON-LINE V. IN-PERSON LEARNING: Can currently active exchange visitors participating in the Teacher, Professor, Secondary School Student, or College/University Student categories of BridgeUSA teach/take online/hybrid classes or must all courses be in person?

With respect to exchange visitors who are currently in “active” status in SEVIS, the Department 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 the context of the pandemic. In keeping with its March 11, 2020 message (https://j1visa.state.gov/wp-content/uploads/2020/03/3.11.2020_Exchange-Visitor-Program-Sponsor-Guidance.pdf), the Bureau of Educational and Cultural affairs (ECA) continues to ask sponsors and exchange visitors to consult with host academic institutions 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-LINE V. IN-PERSON EXCHANGES: Can exchange visitors who were in “Active” status on March 11, 2020, and are otherwise complying with the terms of their nonimmigrant status, whether from inside the United States or abroad, continue to participate 100% in on-line/virtual programs?

With respect to exchange visitors who were in “Active” status when the severity of the COVID-19 pandemic became apparent last spring, ECA understands that program sponsors 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 pursue 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.

NAFSA note: The above FAQ was updated on 04/26/21 by adding an "Active status when the severity of the COVID-19 pandemic became apparent last spring" condition to the question and answer. Given the broader wording of the FAQ above it, this condition seems to also apply to exchange visitor categories beyond Teacher, Professor, Secondary School Student, or College/University Student.

Future Program FAQs:

ON-LINE V. IN-PERSON EXCHANGES: Can exchange visitors starting new programs participate in 100% on-line/virtual programs?

The purpose of the EVP is to facilitate in-person exchanges. For example, college and 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)); secondary school students “are afforded the opportunity to study in the United States at accredited public or private secondary schools” (22 CFR 62.25(b)); 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)). Similarly, intern and trainee programs require exchange visitor interaction with Americans to meet program objectives: “Such training and internship programs are also intended to increase participants' understanding of American culture and society and to enhance Americans' knowledge of foreign cultures and skills through an open interchange of ideas between participants and their American associates. (22 CFR 62.22(b)). While the COVID pandemic necessitated shifting some programs temporarily to online or virtual programming to provide for the health, safety, and welfare of participants, the Office reminds sponsors that the EVP generally requires programs to foster the exchange of ideas between exchange visitors and their American counterparts in person. Thus, new exchange visitors can participate in programs only if the host organizations (e.g., schools or businesses) have reinstated partial to full in-person activities as of the date sponsors accept exchange visitors into their programs.

ON-LINE V. IN-PERSON TRAINING: Can applicants wishing to participate in the Intern or Trainee categories of BridgeUSA participate in online/hybrid training programs or must all training be in person?

The purpose of BridgeUSA is to facilitate in-person exchanges. Regulations governing the Intern and Trainee categories anticipate in-person interaction between exchange visitors and their American counterparts:  “Such training and internship programs are also intended to increase participants' understanding of American culture and society and to enhance Americans' knowledge of foreign cultures and skills through an open interchange of ideas between participants and their American associates.” (22 CFR §62.22(b)(1)(i))  While these regulations do allow the Department to provide some flexibility in permitting a limited amount of virtual training, the Bureau of Educational and Cultural Affairs reminds sponsors that BridgeUSA generally requires programs to foster the exchange of ideas between exchange visitors and their American counterparts. Thus, host organizations should have reinstated partial to full-time in-person training or be able to meet other formal in-person requirements on the date they agree to host exchange visitors.

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.

 


Disclaimer

The gaps between SEVP's March 20, 2020 guidance and 2022-2023 academic year realities are real. Schools must often make a good faith effort to interpret and apply regulations and guidance in the context of these gaps. Remember that this resource was prepared for general informational purposes only. It does not, and is not intended to, constitute legal advice. Schools and individuals seeking legal advice should consult an experienced immigration attorney. No reader, user, or browser of this resource should act or refrain from acting on the basis of information in this resource without first seeking legal advice from counsel. Only your individual attorney can provide assurances that the information contained herein -and your interpretation of it - is applicable or appropriate to your particular situation. NAFSA and the contributors to this resource expressly disclaim all liability with respect to actions taken or not taken based on the contents of this resource. The content of this resource is provided "as is;" no representations are made that the content is error-free.