The outcome for students under SEVP's March 2020 Guidance, which continues to apply for the upcoming 2021-22 academic year, 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)?

Update for the 2021-2022 academic year. On April 26, 2021, SEVP updated its Frequently Asked Questions for SEVP Stakeholders about COVID-19, updated its COVID-19 guidance to:

  • Add an updated section, "Clarifying Questions for the 2021-22 Academic Year Based on March 2020 Guidance" to reflect the 2021-22 academic year.
  • "Edited existing questions and answers to reflect 2021-22 academic yar. No substantive changes were made to these questions."

The first FAQ in the "Clarifying Questions" section reads:

"1. Did ICE make any changes to its March 2020 guidance for the 2021-22 academic year?

A. No. SEVP will continue to abide by guidance origianlly issued in March 2020 for the 2021-22 academic year and did not make any changes to the March 2020 guidance. Stakeholders should continue to refer to existing resources at ICE.gov/Coronavirus for inforamtion about the original March 2020 guidance."

In SEVP's Broadcast Message 2104-05: ICE Continues March 2020 Guidance for the 2021-22 Academic Year, SEVP states:

"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."

On March 18, 2021, NAFSA had joined the American Council on Education (ACE) and 40 other organizations in a letter to Secretaries Mayorkas (DHS) and Blinken (DOS) urging the agencies to take steps to prepare for the Fall 2021 semester, including asking that SEVP issue guidance for the coming fall as soon as possible, and allow students to enter the U.S. for study even if school will be entirely online. The revised guidance does not include that requested policy adjustment. However, the guidance does more clearly support a new or initial student coming to the United States to begin a hybrid course of study.


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

  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." 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 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.

  7. April 26, 2021 broadcast message. Broadcast Message 2104-05: ICE Continues March 2020 Guidance for the 2021-22 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."

The above must be read in the context of SEVP's updated April 26, 2021 Frequently Asked Questions for SEVP Stakeholders about COVID-19. Consult  ICE's master page of COVID-19 guidance 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 2021-22 reality. To prepare for the 2021-22 academic year, 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 COVID responses for the entire school community, of which international students are a part.

In July, 2020, SEVP issued Fall 2020 COVID-19 guidance in a July 6, 2020 broadcast message and a July 7, 2020 FAQ.  By that time, schools were already well underway in their institutional planning for Fall 2020. The July 6 and 7, 2020 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, 2020 broadcast message and July 7, 2020 FAQ were rescinded on July 14, 2020. Schools should now refer only to the March 2020 guidance and SEVP's subsequent 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 since-rescinded July 6 and 7, 2020 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. SEVP's use of the March, 2020 guidance as the basis for the 2021-22 academic year means there will continue to be gaps between policy and the 2021-22 academic year reality.

Issues

Here are some key issues to consider. 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, 2020 Optional Coronavirus School Reporting Template to report their COVID-19 procedural changes to SEVP.

The focus should be on how the school plans to deliver education for the 2021-2022 academic year, 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 April 26, 2021 FAQs under the heading "SEVP-Certified Schools: Reporting School Changes" and to the March, 2020 optional reporting template for more information. Remember that the March, 2020 optional reporting template tells 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, the April 26, 2021 "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."

The April 26, 2021 "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 April 26, 2021 broadcast message and the clarifying questions in SEVP's April 26, 2021 FAQs 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 applicable SEVP 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 (for the 2020-2021 academic year)

  • … 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)

April 26, 2021 Broadcast Message (for the 2021-2022 academic year)

  • … 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 for the 2021-22 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 Continuing Students)
  • However, the April 26, 2021 broadcast message now states clearly that "A new student should be allowed to enter the United States if they are engaged in a hybrid program, with some requirement for in-person learning."

    "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 2021-22 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, with some requirement for in-person learning. Consistent with this restriction, 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." (Summary of March 2020 Guidance for Initial Students)

Clarifying questions in SEVP's April 26, 2021 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 2, 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 2021-22 academic year? )
  • "…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…" (Question 2, 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 2021-22 academic year? )
  • "…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.…" (Question 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)?)

Issue. What does hybrid mean?

As part of their COVID-19 response strategy for the 2021-22 academic year, many schools may be instituting plans that 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, 2020 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 April 26, 2021 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 April 26, 2021 "clarifying questions" section specifically reference hybrid. All three refer to hybrid at the school or program level, not at the course level.

2. 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 2021-22 academic year?

...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...

3. 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, consistent with the March 2020 guidance and for the 2021-22 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.

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)?

Yes. Consistent with the March 2020 guidance, for the 2021-22 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.

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, since 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.

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?

The April 26, 2021 broadcast message and the April 26, 2021 FAQs both allow a new initial student to enter the United States for a hybrid program of study.

The April 26, 2021 broadcast message states:

"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 2021-22 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, with some requirement for in-person learning. Consistent with this restriction, 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." (Summary of March 2020 Guidance for Initial Students)

The April 26, 2021 FAQs state:

2. 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 2021-22 academic year?

...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...

3. 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, consistent with the March 2020 guidance and for the 2021-22 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.

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.

Three of the April 26, 2021 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.

Change of level does not have dedicated FAQs, but 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 the spring 2020 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, 2020 enrollment condition" discussed above, unless they were lawfully enrolled in a course of study on March 9, 2020 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's March 20, 2020 guidance and 2021-22 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.