Legal Challenges Mount Against F-1 Student Visa Restrictions

The issue

Numerous universities and U.S. states have filed federal lawsuits challenging a new Immigration and Customs Enforcement (ICE) policy that would require F-1 foreign students to depart the United States if their U.S. schools will conduct classes online only during the Fall 2020 semester.

The Massachusetts-led coalition of state attorneys general today filed a lawsuit in federal district court.  Joining Massachusetts as co-plaintiffs are Colorado, Connecticut, Delaware, the District of Columbia, Illinois, Maryland, Michigan, Minnesota, Nevada, New Jersey, New Mexico, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia and Wisconsin. Late last week, the University of California filed a similar lawsuit against the policy, following an earlier challenge filed by Harvard University and the Massachusetts Institute of Technology.

All three lawsuits seek to invalidate the ICE policy on the grounds that it is arbitrary, capricious and violates federal administrative procedural rules.  The plaintiffs in each case also seek a temporary injunction to prevent ICE from implementing the policy while litigation goes forward.

The new F-1 student policy

In March of this year, ICE relaxed its rules on online learning and permitted F-1 students to attend classes remotely. This accommodation was to remain in place for the duration of the COVID-19 emergency.

However, on July 6, ICE abruptly announced that it would largely rescind that policy for the Fall 2020 semester. According to an agency declaration, F-1 students whose university classes are set to be fully online must leave the United States or transfer to a school that offers in-person learning. Alternatively, they may study remotely from abroad while maintaining their record in the Student and Exchange Visitor Information System (SEVIS), but only if their U.S. school will offer only online instruction this fall. F-1 students whose schools are offering a hybrid online/in-person curriculum may remain in the United States or obtain an F-1 visa to begin or resume their program, but must be recertified and receive a new Form I-20 certificate of eligibility by August 4.

What’s next for the ICE policy

A federal judge is set to rule on July 15 on Harvard and MIT’s request for a temporary injunction against the ICE policy. Preliminary rulings in the University of California and the 17-state coalition cases could be issued imminently. Further lawsuits against the ICE policy are expected.

Fragomen is closely following the ICE policy and litigation. We will issue further client alerts as developments occur. 

This alert is for informational purposes only. If you have any questions, please contact the immigration professional with whom you work at Fragomen.