Foreign students still in danger of losing visas, despite settlement

The lawsuit over whether foreign students will lose their F-1 nonimmigrant student visa status and have to go home if their schools switch to online courses has been settled. The Trump administration has agreed to reinstate a directive it issued in March that increased the number of online courses they can count towards fulfilling the “full course of study” requirement for maintaining their student visas status.

But the students are still in danger of losing their status and having to go home — for the same reason Harvard and MIT were likely to win their suit. 

Background

The federal regulation, 8 CFR 214.2(f)(6)(i)(G), restricts the number of online credit hours that foreign students can count towards fulfilling the “full course of study” requirement to one class or three credits per semester.

As the pandemic spread this spring and colleges and universities moved to online classes, the Trump administration tried to avoid this problem by issuing a directive on March 13, 2020, which permitted foreign students to maintain their nonimmigrant visa status in the following situations:

1. If their schools close temporarily, they will be permitted to keep their status so long as they intend to resume their course of study when classes resume.
2. If their schools close temporarily but offer online instruction or other alternative learning procedures, they will be permitted temporarily to count more online classes towards meeting the “full course of study” requirement than the student visa regulations allow.
3. If their schools close temporarily but offer online instruction, they can maintain their status by taking the online courses even if they have left the United States and are taking the online courses from another country. 

The administration walked back these generous online course provisions in a second directive issued on July 6, 2020. The second directive is more restrictive than the first, but far less restrictive than the federal regulation, which limits the online courses foreign students can count towards meeting the “full course study” requirement to one class or three credits per semester.

It includes a hybrid provision which permits a foreign student to take more online courses than the regulation allows if his school certifies that his program is not entirely online and that he is taking the minimum number of online classes required to make normal progress in his degree program.

The news media characterizes this as an attempt to strip visas from international students taking online courses.

On July 8, 2020, Harvard and MIT filed a complaint in federal district court seeking an injunction to stop the administration from implementing the second directive.

The suit ended abruptly six days later when the district court judge announced that the parties had come to a resolution. The administration had agreed to rescind the July 6 directive and reinstate the more generous March 13 directive.

It’s not over yet

Harvard and MIT pointed out in their complaint that the way the restrictive July 6 directive was issued violated the Administrative Procedure Act (APA), letting the genie out of the bottle.

The complaint explains that the APA requires federal agencies to publish a notice of any proposed substantive change in their “rules” — in advance — in the Federal Register and to give the public an opportunity to comment on the proposed change before it takes effect.

According to the complaint, the July 6 directive is a “rule” within the meaning of the APA because it was “designed to implement, interpret, or prescribe law or policy…” and the administration did not comply with the APA’s rulemaking procedures when it issued this directive. Therefore, the court would have been required to vacate the July 6 directive.

And I believe that is right.

The problem is that this argument applies also to the more generous March 13 directive that the administration has agreed to reinstate, and for the same reasons.

Consequently, it is likely to be vacated if someone challenges it in court, which would result in the reinstatement of the regulation that limits the online courses foreign students can count towards meeting the “full course study” requirement to one class or three credits per semester.

The solution

The administration needs to follow the rulemaking requirements of the APA and promulgate the March 13 guidelines as a federal regulation, which is what it should have done in the first place.

And this should be done asap.

Nolan Rappaport was detailed to the House Judiciary Committee as an executive branch immigration law expert for three years. He subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years. Follow him on Twitter @NolanR1 or at https://nolanrappaport.blogspot.com.