This is a guest article written by Dr. Carmen Falcone. You can read more about her and the motivations for this report in the accompanying interview.

**News updated on July 27th. Things may change fast, so please always contact your immigration attorney or the international office at your institution to get the most updated news.

STUDENT BAN: A STORY OF FIGHTS AND VICTORIES

On July 6th, U.S. Immigration and Customs Enforcement (ICE) posted a series of preliminary information announcing that they would soon issue  a new regulation affecting F-1 and M-1 international students enrolled in online courses at US universities. This rule was rescinded even before it became finalized, thanks to coordinated efforts from universities, legal firms, and unions of students and academic workers country-wide. Although this has been a big victory for international students, ICE’s presence and policies continue to affect incoming international students (as of July 26th, 2020).

How would international students have been affected if this ban was not rescinded? Why would this ICE announcement have been so devastating if it became a final rule? What actions were taken to protect international students?

Let’s take a step back and understand what happened in the past month.

What was the “student ban” announced on July  6th?

An announcement from ICE was released on July 6th  forcing international students out of the country if their university chose to offer classes exclusively online.

Before Covid-19, the normal regulation on F-1/M-1 students stated that students had to be enrolled in school full-time and were allowed to take not more than one online course (3 credits)/quarter. In March, ICE had issued an emergency order stating that ICE would not enforce this regulation because of the pandemic. Thus, international students were allowed to take more than one course online during the spring quarter.

With the July 6th announcement, ICE stated they would change the March order, and they would issue a new final regulation soon (the timing was not clear). 

This ICE announcement (aka the “student ban”) was not a final rule. They released preliminary information, but a formal final rule was not yet published in the federal register at the moment of the announcement. 

When an agency wants to modify an existing rule, they have to deposit a proposal first. In this case, they were trying to issue a temporary final rule (immediately effective).

How would students be affected by this ICE announcement?

Based on the little information from ICE, if the courses were only online, then the F-1 and M-1 students would not be allowed to stay in the US (they would have to leave the US – aka “be deported”– and attend the classes from their home country).

In the case of a “hybrid” situation (mixed online and in person classes), the students would be allowed to stay in the US if “most of the classes” were in person. However, it was not clear what kind of hybrid modality would allow the legal presence of the students in the country (e.g. how many classes could be taken online).

The government gave very tight deadlines to schools and universities to provide a plan for this fall: only in person classes; only online classes (July 15th); hybrid (August  1st). Finally, in the case of hybrid courses, universities would be forced to re-issue new I-20 documents for every single international student by August 4th providing explanations about their updated status at the university.

Learn more  about the July 6th student ban in this recorded live session with Stacey Gartland, an attorney specializing in immigration and nationality law.

Why is it difficult for international students to attend online courses from their own countries?

When we think about international students attending online courses from their home countries, we might fall into the mistaken thought of: “If the courses are online, why can’t students attend the programs from their own countries?”.

We may need to step into a different perspective to understand why it would be so difficult for international students to participate in online courses from their own countries.

First (and perhaps among the most obvious reason), many students would be forced to go back to war zones – it is not one of the easiest things to finish a degree under the bombs. Then, while it is very hard for first-world countries to imagine a life without the internet, there are countries with very poor internet connection. In that case, it would not be possible to attend any classes. Third, time differences would force students to attend live classes at prohibitive times of the day (or night). 

Also, students already present in the US would need to interrupt their rent abruptly (and likely lose money) and purchase expensive flight tickets to travel to remote areas (all amidst an ongoing pandemic). 

Finally, we should always remember that students are human beings, with a life, friends and family. Forcing them out of the US would mean forcing them to leave their entire life behind. Moving with a family? Even more expensive. 

Good news: how the student ban was retracted

Luckily, the rule was not final yet. In fact, it was challenged in court. An endless list of US public and private universities started federal lawsuits (read the updated list here). 

Harvard and MIT, immediately followed by the University of California, were among the first universities to start legal actions against ICE. In one week, several actions were taken jointly by University administrations, unions of students and other academic workers, members of Congress, and other allies across the country. Grassroots direct actions (including petitions like this), collective actions, and public education all contributed to create pressure against the government administration (read more here). On the day of the court hearing for Harvard and MIT universities, the US administration rescinded the July 6th ICE announcement, before it even became a final rule. 

This is not only good news for international students, but also a huge victory for universities and unions across the US fighting against hate and anti-immigration policies and principles.

Why is this only a partial victory? Latest regulations issued by ICE

On July 24th, ICE released the latest clarification about the March 9th Spring Guidance. Although the July 6th student ban has been rescinded (and thus enrolled international students can stay in the US even if their university is only offering online classes), incoming international students cannot get a visa to come to the US if their program is fully online.

This means the fight is not over and we must continue to take action.