On July 6, 2020, the Department of Homeland Security (DHS) announced modifications to the Student and Exchange Visitor Program (SEVP) exemptions for F-1 and M-1 nonimmigrant students who will be taking online classes for the Fall 2020 semester due to the COVID-19 outbreak.  These modifications could impact a company’s ability to employ F-1 students pursuant to Curricular Practical Training (CPT) employment authorization.  The modifications could also impact the immediate family members of foreign employees working in the U.S. in nonimmigrant classifications such as H-1B, L-1, etc., as their family members often obtain F-1 or M-1 status while accompanying the foreign employee in the U.S.

The modifications include the following:

1. F-1 and M-1 students attending schools that will operate entirely online during the Fall 2020 semester may not take a full online course load and remain in the U.S. in F-1 or M-1 status.  Additionally, the U.S. Department of State will not issue visas to students enrolled in schools and/or programs that are entirely online for the Fall 2020 semester, and Customs and Border Protection (CBP) will not admit these students to the U.S. in F-1 or M-1 nonimmigrant status. F-1 and M-1 students currently in the U.S. and enrolled in schools and/or programs that will be entirely online for the Fall 2020 semester must transfer to a school offering in-person instruction in order to maintain their F-1 or M-1 nonimmigrant status.
2. Nonimmigrant F-1 students who are enrolled in schools operating under normal, in-person classes are bound by existing immigration regulations, and can take a maximum of one class or three credit hours online.  All other courses must be in-person.
3. Nonimmigrant F-1 students attending schools that have a mixture of online and in-person classes will be allowed to take more than one class or three credit hours online.  However, these schools must certify to SEVP, through the Form I-20 Certificate of Eligibility for Nonimmigrant Student Status that the program is not entirely online; the F-1 student is not taking an entirely online course load for the Fall 2020 semester; and the student is taking the minimum number of online classes required to make normal progress in their degree program.  Note that these exemptions do not apply to F-1 students in English language training programs, or M-1 students pursuing vocational degrees, as these students are not permitted to enroll in any online courses.

Companies who currently employee F-1 students pursuant to CPT work authorization may be impacted by these modifications if the student’s school/program changes to a full online course load, or if the school/program changes to a hybrid model but is unable to meet the new I-20 attestation requirements.  In such a situation the F-1 student may lose their eligibility for F-1 nonimmigrant status and CPT work authorization.  Accordingly, companies that employ F-1 students with CPT work authorization should speak with their immigration counsel to confirm each F-1 student’s continued eligibility for work authorization.

Finally, these modifications to the Student and Exchange Visitor Program (SEVP) exemptions for F-1 and M-1 nonimmigrant students could adversely impact the immediate family members of foreign employees working in the U.S. pursuant to employment-based nonimmigrant classifications, such as H-1B and L-1.  Spouses and/or dependent children of these employees often obtain F-1 or M-1 status in order to attend school in the U.S.  If an F-1 or M-1 family member attends a school/program that changes to a full online course load, or if the school/program changes to a hybrid model but is unable to meet the new I-20 attestation requirements, they may be required to transfer to a school offering in-person classes in order to maintain F-1 or M-1 nonimmigrant status.  If transferring to another school is not feasible, the immediate family members may need to change status to another nonimmigrant classification in order to remain in the U.S. until the school/program returns to offering in-person classes.

This post was written by James Marr.