BREAKING NEWS. 3:09 pm July 14, 2020. In the Harvard/M.I.T. case, Judge Burroughs said: "I'm going to recite my understanding of the agreement on the record, and the parties can correct me if I'm wrong. The government has agreed to rescind the July 6 2020 policy directive and the frequently asked questions, the FAQs, that were released the next day on July 7. They also agreed to rescind any implementation of the directive. They will return to the status quo as established by the March 9, 2020 policy directive and the addendum issued on March 13, 2020. ...By my understanding that moots the TRO/preliminary injunction motion and will preclude the enforcement of the July 2020 policy directive and frequently asked questions on a nationwide basis." Mr. Farquar (govt) agreed. Mr. Lee (plaintiffs) asked the judge to clarify that it meant that the July 6 directive and the July 7, FAQ were rescinded on a nationwide basis, and the judge said right, her reference to the "July 2020" directive and FAQs meant to encompass both, and "that both the policy directive and the FAQ would not be enforced anyplace..." Mr. Lee agreed. The judge continued, "the motion is mooted, the hearing will be adjourned, and the case will remain open on my docket pending further motion practice from the parties."

For now, the agreement between the parties in the Harvard/M.I.T. case returns SEVP policy to the status quo as established by the March 9, 2020 policy directive and the addendum issued on March 13, 2020. On July 15, 2020, SEVP also republished its prior set of FAQs, so it appears that these FAQs are also part of the March policy “status quo” that now govern things for the time being. Because the March 9, 2020 directive, March 13, 2020 addendum, and the July 15 FAQs have not been revised to account for the Fall 2020 semester, there are important gaps between that policy and the Fall 2020 reality. It is hoped that SEVP will address these gaps soon through additional guidance. The July 16, 2020 NAFSA Town Hall: SEVP Fall 2020 Guidance discusses some of these gaps. Refer to NAFSA's SEVP COVID-19 Guidance Sources page for additional information.

  • NAFSA Town Hall: SEVP Fall 2020 Guidance. On Thursday, July 16, 2020, NAFSA hosted a virtual Town Hall that featured a discussion of the status of SEVP guidance for Fall 2020 following the July 14, 2020 decision to rescind SEVP's July 6 directive and July 7 FAQs. It reviewed litigation, advocacy efforts, and some key aspects of the guidance to consider as you plan for Fall 2020. Two Directors of ISSS offices also shared their ideas and issues as they plan for the upcoming semester.
  • NAFSA Statement on DHS Rescinding July 6 and 7 Fall 2020 SEVP Policy Guidance.

Rescinded Fall 2020 Guidance. On July 6, 2020 SEVP published Broadcast Message 2007-01 - COVID-19 and Fall 2020, which was later rescinded on as a result of an agreement arising out of the lawsuit filed by Harvard and M.I.T. (July 14, 2020). Under the rescinded guidance, some flexibility would have continued for schools that adopt an in-person or hybrid model for Fall 2020, but would not have continued for students in the United States studying at schools operating entirely online for Fall 2020. In addition, by August 4, 2020 schools would have had to reissue all Forms I-20 after updating SEVIS with a statement in the Form I-20 Remarks field that "the school is not operating entirely online, that the student is not taking an entirely online course load for the fall 2020 semester, and that the student is taking the minimum number of online classes required to make normal progress in their degree program." Lastly, all schools would have had to update their operational plans by July 15, 2020 for schools that will be entirely online or will not reopen for Fall 2020 and by August 1, 2020 for schools that will offer an in-person or hybrid program for Fall 2020. On July 7, 2020, SEVP published a Fall 2020 FAQ document, which was also rescinded. Prior to this, on July 10, 2020, Dr. Esther Brimmer, NAFSA Executive Director and CEO, sent a letter to the Student and Exchange Visitor Program (SEVP) asking the agency to takes steps to revise the guidance immediately to once again allow continuing students within the United States to enroll in a full online course of study and to allow schools to maintain SEVIS records in Active status for all continuing students enrolled in online studies outside the United States, among other suggestions.

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 that 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 starts as hybrid or in-person, but later needs 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. Subsequent SEVP guidance refers to this as the "March 2020 guidance." The “March 2020 guidance,” though, still fails to adequately address the realities of the complex plans that schools are implementing for the Fall 2020 semester.

NAFSA Statements

  • NAFSA Letter to SEVP on Fall 2020 Guidance. On July 10, 2020, Dr. Esther Brimmer, NAFSA Executive Director and CEO, sent a letter to the Student and Exchange Visitor Program (SEVP) asking the agency to takes steps to revise the guidance immediately to once again allow continuing students within the United States to enroll in a full online course of study and to allow schools to maintain SEVIS records in Active status for all continuing students enrolled in online studies outside the United States, among other suggestions.
  • Read NAFSA's Original Statement by NAFSA and Executive Director and CEO, Dr. Esther Brimmer (July 6, 2020)

Litigation

  • Lawsuits filed against DHS over Fall guidance. On July 8, 2020, Harvard and M.I.T. filed suit against DHS and ICE over SEVP's Fall 2020 COVID-19 guidance. Other Universities and States have filed additional lawsuits, and a number of amicus briefs have been filed in support of the litigation. NAFSA's page keeps track of the litigation.