The outcome for students under SEVP's March 2020 "Back to the Future" Guidance depends to some degree on the following factors:

  • Location: Is the student outside or inside the United States?
  • Program Type: Is the student's program of study All Online, Hybrid, or In-Person?
  • SEVIS Status: Initial, Active, or In-Between (Transfer/Change of Education Level)?

NAFSA and the Student Subcommittee of NAFSA's Committee on International Student and Scholar Regulatory Practice (ISS RP) have developed an Excel spreadsheet grid that seeks to present what's clear and unclear about how SEVP's March 2020 guidance and "clarifying" FAQs operate in the context of the scenarios created by the above factors.

Download the Resource Grid

Essential References to Make Use of This Resource

Make sure to consult the F-1 student regulations at 8 CFR 214.2(f) and 8 CFR 214.3, and the full range of SEVP's COVID-19 policy guidance when using the Resource Grid. You will need to do this to draw your own conclusions for your circumstances. Start by visiting and revisiting the key SEVP guidance documents:

  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.

  2. March 13, 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."

  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 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."

  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.

ICE's master page of COVID-19 guidance contains links to each of the above. Consult that page regularly for any updates. NAFSA also keeps track of updates on its SEVP COVID-19 Guidance Sources page.

Essential Background to the Current Policy Landscape

There are still gaps between the "status quo" policy and the Fall 2020 reality. Also consider the following background information as you use the Resource Grid.

To prepare for Fall 2020, schools engaged (and still engage) in detailed planning that covers all aspects of school operations including instructional delivery, campus health and safety, facilities management, human resources, enrollment management, and student services. Schools did this in the context of the progression of COVID-19 locally, nationally, and internationally. They also developed their Fall 2020 responses for the entire school community, of which international students are a part.

In early July, SEVP issued Fall 2020 COVID-19 guidance in a July 6, 2020 broadcast message and a July 7 FAQ.  By this time, schools were already well underway in their institutional planning for Fall 2020. The July 6 and 7 SEVP policy documents required schools to self-identify their COVID-19 "operational stance" for the Fall 2020 term, from one of 3 models.

  • Entirely online program of study
  • Hybrid model, defined as "a mixture of online and in person classes"
  • Entirely in-person program of study

Schools would also have been required to report whether they would be using delayed or shortened sessions. (Remember that the July 7 broadcast message and July 7 FAQ were rescinded on July 14, 2020. Schools should refer only to the March 2020 guidance and SEVP's August and late July communications about that guidance).

These models captured to a large extent the general plans that schools were already developing for all students (both domestic and international). Referencing a "hybrid" model recognized that many schools had been planning a complex mix of on-line, in-person, and hybrid or blended classes, balanced by real-world factors like institutional capacity, state and local COVID-19 progression, and school governance and oversight decisions.

Although the flexibility for "hybrid" programs was welcome, the July 6 and 7 guidance had serious flaws, among them:

  • Flaw 1. It did not allow continuing students already in the United States to maintain their status at a school or student decided to remain "all online" for Fall 2020. Instead, it told these schools that students had to either transfer to a hybrid or in-person school, leave the United States, or face deportation.
  • Flaw 2. It did not allow schools to maintain SEVIS records in Active status for continuing students who had departed or would depart the United States and would be pursuing the Fall 2020 semester online, unless the school self-identified as an "all online" school.
  • Flaw 3. It said that language program participants could not count any online classes towards a full course of study.
  • Flaw 4. It said that if a school started as hybrid or in-person, but later needed to change its plan to fully online, its F-1 students would have to either transfer to a hybrid or in-person school, leave the United States, or face deportation.
  • Flaw 5. A student at a hybrid school whose personal schedule needed to be fully online for whatever reason would likewise have to transfer to a school that offered hybrid or in-person classes, leave the United States, or face deportation

Given these flaws, litigation immediately ensued. On July 14, 2020, just after a week after the first case was filed (by Harvard/M.I.T.)  DHS agreed that it would rescind its July 6 and 7 policy and return to the prior "status quo" set by policies stemming out of the March 9 and March 13 guidance it had developed to address the critical needs of the Spring 2020 semester (see NAFSA's Fall 2020 Guidance Litigation page for more background). Subsequent SEVP guidance refers to this as the "March 2020 guidance," which is now comprised of the documents listed in the section above.

But SEVP's March 2020 guidance was principally designed to address the needs of students who were in valid F-1 status in the United States before the COVID-19 epidemic caused schools to close in-person operations in Spring, 2020, with most schools moving to 100% on-line instruction. Returning to that guidance as the basis for Fall 2020 policy means there are significant gaps between policy and Fall 2020 realities.

The "March 2020 guidance," even with SEVP's July 24, 2020 broadcast message and August 7, 2020 FAQs, continues to raise important issues when trying to apply that guidance to the realities of the complex plans that schools are implementing for the Fall 2020 semester.

Issues

Here are some key issues to consider when using the Resource Grid. You will likely identify more.

Issue. The primacy of the school operational plan

COVID-19 flexibilities are available only to a school that has submitted an operational change plan to SEVP. Schools must follow the March 2020 guidance and submit their operational plans to SEVP "within 10 business days of the date of the decision to initiate the operational change." Schools can choose to use SEVP's March 13, 2020 Optional Coronavirus School Reporting Template to report their COVID-19 procedural changes to SEVP. Remember that the July 7 broadcast message and July 7 FAQ have been rescinded. Schools should refer only to the March 2020 guidance and SEVP's August and late July communications about that guidance.

The focus should be on how the school plans to deliver education for Fall 2020, rather than what individual students are doing. Include all arrangements and instructional modalities your school will be using and which an international student might need to follow. Refer to SEVP's August 7, 2020 FAQs under the heading "SEVP-Certified Schools: Reporting School Changes" and to the March 12, 2020 optional reporting template for more information. Remember that the March 13, 2020 optional reporting template told schools that they "are encouraged to provide additional details regarding their emergency operations plans beyond the questions detailed in this template."

Regarding what happens after a school submits its plan, August 7, 2020 "Reporting school changes" FAQ 5 says:

5. Will schools receive confirmation or acknowledgment when SEVP receives their procedural adaptation documents? Is there any possibility that SEVP would deny or disapprove of a reported change by a school? If so, what happens in that instance?

"SEVP will send an email acknowledging receipt to each school that submits procedural change documents and add the submitted information to the school's file. However, given the significant number of changes being requested, SEVP is not going to respond to every submission in detail. If SEVP has concerns that the changes exceed permissible accommodations for COVID-19, it will contact the school for clarification or revision."

August 7, 2020 "Reporting school changes" FAQ 3 also reminds schools to keep their plans updated with any future substantive changes:

"…If schools subsequently have material changes to previously submitted documents, they should resubmit those documents..."

To submit a new or updated school operational plan, follow the instructions in SEVP's August 7, 2020 broadcast message 2008-01, New Process: Reporting School Procedural Adaptations to SEVP.

Issue. The March 9 enrollment condition

SEVP's July 24, 2020 broadcast message and the clarifying questions in SEVP's August 7, 2020 FAQ frequently refer to enrollment on March 9, 2020 as a baseline to determine which students are eligible for certain flexibilities and constraints of the "March 2020 guidance."

One question is whether the flexibilities created for COVID are limited to students who were actively enrolled at a U.S. school on March 9, 2020, and if so, whether those flexibilities don't apply at all to students who were not enrolled on that date. Outside of the March 2020 guidance, only standard regulations exist, including the standard non-COVID rule that limits online course work to 1 class/3 credits per term.

Here is where that date pops up:

March 9, 2020 Broadcast Message 2003-01: COVID-19 and Potential Procedural Adaptations for F and M Students

  • This broadcast message is the source of the March 9, 2020 date, since it was issued on that date. The March 9, 2020 broadcast message is the first SEVP COVID-19 policy document that now forms part of the "March 2020 guidance." That message stated, "This guidance applies to students who are currently enrolled in a program of study and is not intended for new or initial students who are outside the United States."

July 24, 2020 Broadcast Message

  • … 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… (General Information)
  • … 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 this fall. 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 Continuing Students)
  • … F and M students in new or initial status after March 9, 2020, will not be able to enter the United States to enroll in a U.S. school as a nonimmigrant student for the fall term to pursue a full course of study that is 100 percent online… ( Summary of March 2020 Guidance for Initial Students)

Clarifying questions in SEVP's August 7, 2020 FAQ

  • …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… (Question 1, 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 fall 2020 session? )
  • …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 likely remains eligible for a visa since the March 2020 guidance permitted a full online course of study from inside the United States or from abroad… (Question 1, 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 fall 2020 session? )
  • …Nonimmigrant students in New or Initial status after March 9 will not be able to enter the United States to enroll in a U.S. school as a nonimmigrant student for the fall term to pursue a full course of study that is 100 percent online… (Question 2, 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)? )
  • …Per the March 2020 guidance, yes, nonimmigrant students may remain in the United States to engage in full course of study online if they have not otherwise violated the terms of their nonimmigrant status since March 9, 2020. 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… (Question 3, Can students continue to remain in the United States if they are engaged in a fully online program of study? )
  • …Nonimmigrant students in New or Initial status after March 9 will not be able to enter the United States to enroll in a U.S. school as a nonimmigrant student for the fall term to pursue a full course of study that is 100 percent online… (Question 4, Can students remain in the United States if their school switches from traditional in-person or hybrid instruction to fully online instruction? )

Issue. What does hybrid mean?

As part of their COVID-19 response strategy for Fall 2020, many schools have instituted a plan to include a mix of on-line, in-person, and hybrid or blended classes. This is often called a hybrid course of study.

A hybrid class (or blended) class, on the other hand, mixes online activity with in-person classroom or lab contact within the context of a single course.

Hybrid course of study

The now-rescinded July 6 and 7 guidance would have required schools to indicate whether their "institutional stance" was hybrid, but the July 7 broadcast message and July 7 FAQ were rescinded on July 14, 2020, and schools should no longer refer to that.

The March 9 and March 13 guidance documents do not use the word "hybrid." However, they do contain language into which hybrid plans could fit.

  • SEVP's March 13, 2020 follow-up to its March 9, 2020 broadcast message speaks of schools that offer "online instruction or other alternative learning procedures," which could easily encompass hybrid plans.
  • The instructions in the Appendix to the March 9, 2020 broadcast message say that "If a school determines that it will exercise temporary closure or make other significant operational or curricular changes , the school must advise SEVP of accommodations it is making for its F and M nonimmigrant population." Hybrid plans certainly constitute significant operational or curricular changes.
  • The March 2020 reporting templates (the Appendix to the March 9, 2020 broadcast message and the March 13 optional reporting template) ask schools to indicate if and how they would utilize online instruction, and hybrid plans, and classes do include online elements.
  • The March 13, 2020 optional reporting template says that " Schools are encouraged to provide additional details regarding their emergency operations plans beyond the questions detailed in this template ."

The August 7, 2020 FAQs reference " procedural changes made in response to COVID19," which is certainly broad enough to encompass hybrid plans. The August 7, 2020 FAQs also say that "If SEVP has concerns that the changes exceed permissible accommodations for COVID-19, it will contact the school for clarification or revision."

Three questions in the August 7, 2020 FAQ "clarifying questions" section specifically reference hybrid. All three refer to hybrid at the school or program level, not at the course level.

2. 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)?

Whether 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, per the March 2020 guidance, nonimmigrant students seeking to enroll in a program of study that includes in-person and online components beyond the limitations at 8 CFR 214.2(f)(6)(i)(G), are able to maintain F-1 or M-1 nonimmigrant status if pursuing such programs during the fall 2020 school term. Nonimmigrant students in New or Initial status after March 9 will not be able to enter the United States to enroll in a U.S. school as a nonimmigrant student for the fall term to pursue a full course of study that is 100 percent online.

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

Nonimmigrant students pursuing studies in the United States for the fall 2020 school term 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.

5. 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)?

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.

From these FAQs, we might derive the following definition: A hybrid program of study consists of both in-person and online components beyond the limitations at 8 CFR 214.2(f)(6)(i)(G).

The ability to enroll in a course of study "beyond the limitations at 8 CFR 214.2(f)(6)(i)(G)" is the key flexibility created by the Fall 2020 guidance.

The principal limitation of 8 CFR 214.2(f)(6)(i)(G) under the standard rule is that students can count "no more than the equivalent of one class or three credits per session" of online or distance education courses towards their full course of study requirement. The principal benefit of the March 2020 guidance is that this limitation is waived for students who are covered by that guidance and who are properly enrolled under the operational change plan their school filed with SEVP.

Hybrid class

Although DHS regulations or COVID-19 policy do not define the term "hybrid" at the course level, we can look to 8 CFR 214.2(f)(6)(i)(G), the provision that limits the amount of online coursework a student can normally count towards a "full course of study," as a point of reference for a derived definition of hybrid class.

8 CFR 214.2(f)(6)(i)(G)

"(G) For F-1 students enrolled in classes for credit or classroom hours, no more than the equivalent of one class or three credits per session, term, semester, trimester, or quarter may be counted toward the full course of study requirement if the class is taken on-line or through distance education and does not require the student's physical attendance for classes, examination or other purposes integral to completion of the class. An on-line or distance education course is a course that is offered principally through the use of television, audio, or computer transmission including open broadcast, closed circuit, cable, microwave, or satellite, audio conferencing, or computer conferencing. If the F-1 student's course of study is in a language study program, no on-line or distance education classes may be considered to count toward a student's full course of study requirement."

From this we might infer that for immigration purposes:

  1. A class that uses online modalities, but not to the extent that the class is "offered principally" through those modalities:
    • Would not count against the one class/three credit limitation of 8 CFR 214.2(f)(6)(i)(G) even under standard rules, because by definition it is not an online class and should count towards a full course of study just like a (increasingly rare) fully in-person class that uses no online modalities
    • Because such a course can be counted toward a full course of study even under standard rules, the March 2020 guidance flexibility that allows enrolling in a course of study "beyond the limitations at 8 CFR 214.2(f)(6)(i)(G)" would not be necessary to count more than one such course towards a full course of study.
  2. A class that is "offered principally" through online modalities, but that does "require the student's physical attendance for classes, examinations or other purposes integral to completion of the class":
    • Should not count against the one class/three credit limitation of 8 CFR 214.2(f)(6)(i)(G) even under standard rules. Instead, it should count towards a full course of study just like a fully in-person class.
    • This mix should most likely be equated with a "hybrid class" in the context of COVID-19 guidance.
    • A key interpretive issue here, though, is establishing that a course's required in-person element is "integral to completion of the class."
    • Because such a course can be counted toward a full course of study even under standard rules, the March 2020 guidance flexibility that allows enrolling in a course of study "beyond the limitations at 8 CFR 214.2(f)(6)(i)(G)" would not be necessary to count more than one such course towards a full course of study.
  3. A class that is "offered principally" through online modalities and does not "require the student's physical attendance for classes, examinations or other purposes integral to completion of the class":
    • Would normally count against the one class/three credit limitation of 8 CFR 214.2(f)(6)(i)(G) under standard rules, even if that class is identified as "hybrid" by the school.
    • This mix should most likely be equated with an "online class" in the context of COVID-19 guidance.
    • Because more than one such course cannot be counted toward a full course of study under standard rules, the March 2020 guidance flexibility that allows enrolling in a course of study "beyond the limitations at 8 CFR 214.2(f)(6)(i)(G)" is necessary to count more than one such course towards a full course of study.

Issue. Can a new initial student enter the United States to begin a hybrid program of study?

SEVP's July 24, 2020 summary of its March 2020 guidance says that a student who was not enrolled on March 9, 2020 and is in "new or initial status after March 9, 2020" cannot enter the United States to begin a course of study that is 100 percent online. The July 24, 2020 broadcast message says:

Summary of March 2020 Guidance for Initial Students

In accordance with March 2020 guidance, F and M students in new or initial status after March 9, 2020, will not be able to enter the United States to enroll in a U.S. school as a nonimmigrant student for the fall term to pursue a full course of study that is 100 percent online. Also consistent with the SEVP Broadcast Message dated March 9, 2020, 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 100 percent online.

After a quick initial read, many people focused on the wording "100 percent online," drawing from that a hopeful inference that all new students may enter the United States as long as the new program of study was less than 100 percent online, which would be the case for any hybrid plan. This then led to discussions of "how much less" than 100 percent could the online-in-person mix be. For example, a hybrid program consisting of one minimally hybrid course and the rest completely online courses is a riskier mix than a program consisting of one completely online course and the rest hybrid courses that have in-person elements that are clearly integral to completion of the class. The latter would likely suffice even under standard rules.

But the reality is less clear. The biggest hurdle relates to the March 9 enrollment issue discussed above. That issue must be properly framed to respond to the question of whether a new student who was not enrolled on March 9 can enter the United States to begin a hybrid program of study. For example, a CBP officer who frames the issue as an all or nothing proposition might reason:

  • If the student wasn't enrolled on March 9, no March 2020 flexibilities are available, and the standard rules apply.
  • The standard rule does not allow enrollment "beyond the limitations at 8 CFR 214.2(f)(6)(i)(G)."
  • Therefore, a student is not eligible for entry to begin a hybrid program whose blend exceeds that limitation.

Another CBP officer, however, might frame the issue differently, reasoning for example that:

  • Although there is a general rule that requires enrollment on March 9, the language in SEVP's July 24 broadcast message implies a possible specific rule or exception to that general rule.
  • The July 24 broadcast message is carefully worded, but ambiguous. It states that students cannot enter to pursue a full course of study "that is 100 percent online," but does not address students coming to pursue a full course of study that is less than 100 percent online, such as a hybrid course of study.
  • Had SEVP wished to clearly exclude new hybrid students from entry, they could have done so directly.
  • August 7, 2020 Clarifying Question 2 states that a student is "able to maintain F-1 or M-1 nonimmigrant status of pursuing such [hybrid] programs," and then repeats the same ambiguity as the July 24 broadcast message by specifically excluding from entry to the United States only initial students who will "pursue a full course of study that is 100 percent online."
  • Although the March 9, 2020 broadcast message said it was "not intended for new or initial students who are outside the United States," that guidance was done at a time when schools started moving their entire course of instruction online to complete the semester, and that message also said that "SEVP intends to be flexible with temporary adaptations."
  • This CBP officer may decide to admit the student to begin a hybrid course of study in F-1 status as a matter of discretion.

The latter approach is certainly more complicated, and "complicated" generally increases risk along the risk continuum.

Issue. Transfer and Change of Level Students

Transfer and Change of Education Level students are unique in that there are two instances of the SEVIS record under the same SEVIS ID. In both processes, the instance of the SEVIS record associated with the transfer-out school or the prior program of study moves from Active to Inactive status, and the instances associated with the transfer-in school or the new program of study move from Draft to Initial status until the new instance is Registered within 30 days of the program start date at the new school or in the new program.

For the Fall 2020 semester, most transfer and change of educational level students will have been enrolled and in Active SEVIS status at their prior school or program on March 9, 2020, so they will have met the March 9, 2020 enrollment condition. But they will also have a SEVIS record in Initial status.

Three of the August 9, 2020 FAQs address transfer students, all of which relate to transfer students in initial status outside the United States:

1. How will the five-month rule apply to student transfers?

A. The five-month rule related to student transfers will not apply to students affected by COVID-19. For transfer students that exceed the five-month period, DSOs should contact the SEVP Response Center (SRC) for a data fix. SRC contact information is available at the end of this FAQ.

2. How should DSOs handle the SEVIS records of transfer students? Can DSOs complete a transfer in SEVIS for students who are outside the United States in Initial transfer status and could enroll and begin study at the transfer-in school remotely?

A. For students outside the United States who are currently in Initial status in SEVIS with an "I-20 Issue Reason" of transfer, schools should keep their SEVIS records in Initial status and request a data fix when these students are ready to re-enter the United States to begin study.

SEVP's temporary guidance does not permit students in Initial status in SEVIS to begin a new program remotely. SEVP continues to monitor the situation and may update its guidance if the school closures and alternative learning procedures remain necessary this fall.

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.

3. DSOs are unable to defer the start date for a transfer record in SEVIS. Should DSOs be requesting a data fix for each individual case?

A. Yes, DSOs should request a data fix through SRC for each case when a student is ready to re-enter the United States to continue their course of study, including engaging in practical training. SRC contact information is available at the end of the FAQ.

Although change of level did not have dedicated FAQs, because the processes are so similar some DSOs apply similar treatment to change of level students. Another FAQ mentioned both transfer and change of level students in their senior year who went home for the spring but wanted to return to the United States for graduation. That FAQ included this helpful bullet:

  • "Students who intend to continue their study in the United States can return with a pending change of educational level or transfer Form I-20."

This FAQ supported the idea that although a DSO should not register the student's SEVIS record to complete the transfer or change of level process while the student is outside the United States, the student could reenter the United States in transfer or change of level Initial status, and once the student reentered and reported to the school, the DSO could at that time register the SEVIS record and complete the transfer or change of level process.

However, SEVP archived and rescinded that FAQ in its August 7, 2020 revision. It is unclear whether it was archived simply because it mentioned spring semester, or whether the concepts in the FAQ were also rescinded.

Issue. Change of Status Students

Applicants for change of nonimmigrant status to F-1 from another nonimmigrant status face similar conceptual challenges to those faced by students abroad who wish to enter the United States to begin a new program of study that is online or a hybrid program of study with online components beyond the limitations at 8 CFR 214.2(f)(6)(i)(G).

First, they will have to overcome the "March 9 enrollment condition" discussed above, unless they were lawfully enrolled in a course of study on March 9 while in a nonimmigrant status that allowed that, such as H-4.

Change of status students also have to abide by the pre-COVID-19 "bridge application" rules, because the SEVIS record cannot be registered and made active until USCIS approves the change of status application, which means the applicant will have to monitor the program start date and the progress of the COS application and file any necessary bridge applications. Now more than ever, an applicant for change of status to F-1 should consult an experienced immigration lawyer for advice on the change of status application and to manage any bridge applications.

Issue. Legal Considerations for Distance Education delivered abroad

Since online instruction figures into some of the COVID-19 flexibilities, several non-immigration issues might also arise. A school's office of general counsel or other office charged with compliance should assess whether delivering online courses to students located abroad triggers additional legal or financial obligations. For example:

  • Treasury Embargo Restrictions on Distance Education in Embargoed Country. If a school's COVID-19 plan includes offering courses of study online, the school's office of export control compliance should assess whether export control laws might limit the delivery of online courses to individuals located in or regularly residing in an embargoed country such as Cuba, North Korea, Sudan, Syria, or Iran. These are not immigration rules, but rather Treasury Department rules that pre-existed the COVID-19 pandemic, and are something for the school to take up with their general counsel and export control office.

  • Foreign Country Taxes and Permits. Delivery of online educational services to international students may trigger tax and permitting obligations under the laws or policies of that country.

  • GDPR. The European Union (EU) General Data Protection Regulation (GDPR) may apply to U.S. entities that collect and process personally identifiable data of individuals present in the EU, from the entity's location in the United States. Online programs targeted to EU residents may bring those programs within the purview of the GDPR.


Disclaimer

The gaps between SEVP guidance and Fall 2020 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.