Federal law largely limits the number of courses a foreign student can take online, or “remotely”, because the U.S. Department of Homeland Security (DHS) is tasked with keeping track of the whereabouts of foreign students while they are in the United States. Should there be a national security or public safety issue with a foreign student, federal agents may need to act quickly and make an arrest. A quick response is only possible if the student can be located easily, and generally that location will be on or near a campus. Through a database created in the wake of 9/11 called the Student and Exchange Visitor Information System (SEVIS), DHS officials and school officials keep track of any instance where foreign students fail to show up to class or otherwise violate the terms of their admission. DHS regulations recognize that accurate reporting and tracking is difficult, if not impossible, in the context of online courses which allow students to avoid going to campus, or perhaps live in a different community altogether.
Nevertheless, due to the pandemic, DHS’s Student and Exchange Visitor Program (SEVP) waived the requirement that limits online courses for foreign students in a March 2020 announcement. This remains a controversial act, not just because of the national security issues it raises, but also due to the fact that regulations cannot be simply waived or ignored by a federal agency. Furthermore, when announcements on this policy were made, the understanding was that it would be temporary (e.g., March 2020: “SEVP intends to be flexible with temporary adaptations;” July 2020: “Active F and M students will be permitted to temporarily count online classes toward a full course of study in excess of the regulatory limits;” and “SEVP instituted a temporary exemption regarding online courses for the spring and summer semesters.”).
This week, in April 2022, SEVP announced that it is again extending its controversial waiver of its own federal regulation until Summer 2023 — more than three years since the original announcement was made. This announcement comes as the Biden administration is preparing to end the use of Title 42 along the U.S. borders and is inconsistent with the Biden administration’s anticipated messaging on Title 42 — specifically, that the pandemic can no longer be used to justify changes to immigration policy. Undoubtedly, SEVP’s announcement will complicate any future litigation on the matter.
As explained by SEVP in the new announcement, the 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.” It continues, “Significantly, there are no changes to the original guidance, which will remain in effect during the 2022-23 academic year.”
Under regulation, foreign students are permitted to take a limited number of online courses. For foreign students at an academic institution on an F visa, the following language applies:
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.
For foreign students attending vocational schools (e.g., flight schools) on an M visa, the following language applies:
On-line courses/distance education programs. No on-line or distance education classes may be considered to count toward an M-1 student's full course of study requirement if such classes do 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.
The decision to continue this policy in violation of regulatory law — while making no effort to amend the regulation — is extremely controversial and unlikely to fare well if met with litigation.
Ultimately, this move by DHS makes it very difficult for the Biden administration to drop its use of Title 42 along the U.S. border. Either the pandemic continues to be a reason to adjust the nation’s immigration policy, or it does not. From a legal perspective, the Biden administration appears to be poised to take contradictory positions. But from a policy perspective, one could argue the administration is taking a position that is consistent in its harmfulness by allowing thousands of foreign nationals — whether foreign students or illegal aliens — to enter the United States with limited oversight and an increased risk of disappearing.