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The unexpected reversal earlier this week by the Trump administration of a policy that would have prohibited international students from taking an exclusively online course load was good news for current students, but it leaves unresolved questions about new international students seeking to attend colleges operating in online or hybrid formats.
The decision by U.S. Immigration and Customs Enforcement to rescind the July 6 directive -- which came in response to a lawsuit filed by Harvard University and the Massachusetts Institute of Technology -- reverts the guidance back to an original policy issued in March that suspended requirements prohibiting international students from taking no more than one online class at a time. The suspension gave institutions significant flexibility to adjust the mode of instruction in response to the changing course of the pandemic without putting their current international students at risk of violating their immigration status.
But the March guidance was written at a time when colleges had shifted all their operations online, so the policy doesn't address hybrid models in which institutions offer a mix of in-person and online classes. It also was written in response to an abrupt midsemester change and wasn't intended to address a potential influx of new international students. The guidance explicitly says it applies to current students and “is not intended for new or initial students who are outside the United States.”
And on Wednesday -- one day after it agreed to rescind the controversial directive -- the Student and Exchange Visitor Program within ICE reissued an FAQ with discouraging language about new students. The FAQ reiterates previously issued guidance stating that new international students who have not yet arrived in the U.S. “should remain in their home country.”
The Presidents' Alliance on Immigration and Higher Education, a group focused on higher education and immigration policy, said on Twitter that the “FAQ doesn't address a key issue,” in that it fails to provide flexibility “to allow new students to come study.”
“This is a complicated issue made more complicated by the government’s inability to respond clearly and extend guidance in a responsive manner,” said Miriam Feldblum, the executive director of the Presidents' Alliance. “Instead, over the past week they just created chaos. We’re very grateful that they listened and they reversed the very misguided directive that they were going to pursue, but now we’re back where we were in spring where we’re saying we need continued flexibility.”
Brad Farnsworth, vice president for global engagement at the American Council on Education, said the higher ed sector now must turn its attention to new questions. "If the July 6 memo is rescinded, what are we going to do about new international students?"
Farnsworth said his understanding is that without further guidance from SEVP, new international students would have to comply with the normal regulation limiting them to one online class at a time. He thinks the best-case scenario is for the government to allow new international students to travel to the U.S. to take a hybrid course load that could involve more than one online class.
"Reasonable people may disagree, but I think if a school is totally online, has zero face-to-face activity, I think it’s going to be very tough for that student to get a visa to come here," Farnsworth said. "What I think our best option is to look at getting the most expansive and broadest definition of hybrid status that we can get."
It is not clear when or if SEVP plans to issue further guidance on new international students. A SEVP spokeswoman did not respond to requests for an interview.
In the short term, the guidance for new students currently outside the U.S. may have limited practical impact: many colleges have accepted that many or most new international students from abroad will not be able to join them in time for in-person classes this fall in light of suspensions in visa processing and restrictions on entry into the U.S. for travelers from Brazil, China, much of Europe and Iran.
Still, there has been some recent movement. The U.S. Department of State announced it was starting to resume routine visa processing earlier this week, and it has suggested it will prioritize travelers with urgent needs, including students. Some embassies in Europe have posted notices on their websites saying they are accepting appointments for visa interviews from students who might qualify for a national interest exemption from a Trump administration proclamation that otherwise limits travel to the U.S. from the continent. (A State Department official confirmed that certain academics and students may qualify for national interest exceptions under the respective presidential proclamations restricting travel from the Schengen Area, in Europe, and from the United Kingdom and Ireland.)
Against this backdrop, colleges are looking for more clarity from ICE on the rules regarding new students entering the U.S. during a pandemic -- and they are looking for it quickly.
"It's not at all clear what the rules are," said Audrey Anderson, a lawyer who chairs the higher education practice at the Tennessee-based law firm Bass, Berry & Sims. "They shouldn’t hide the ball. ICE should do its job and put out clear public guidance."
Shoba Sivaprasad Wadhia, a professor of law and director of the Center for Immigrants' Rights Clinic at Pennsylvania State University, said ICE should be flexible in light of the outcome of the Harvard/MIT lawsuit.
"The spirit of the outcome in the Harvard/MIT case in my view really requires ICE to revisit this FAQ to maximize flexibility for universities and students so that they can obtain the adjustments they need," she said.
