July 11, 2020

DAVID BERNSTEIN: ICE’s Policy of Excluding Online Students isn’t “New:” Universities should have been prepared for the possibility that ICE would not continue to decline to enforce an existing rule.

I’ve seen countless stories about ICE’s “new” requirement barring student visas for students who would be taking only online classes (e.g., NPR). The idea that this is “new” is false.

Foreign students have long been required to take a “full course of study” to fulfill visa requirements. The longstanding rule is that a study may take only one online class per semester as part of the full course of study. ICE *may* allow a student to take more than one online course, but any additional course must be taken in the physical presence of a university employee. Here is the DHS webpage from 2012, in the Obama years. . . .

ICE waived the rule for the Spring and Summer 2020 semesters due to the Covid emergency. Given that Congress has now had four months to address the issue but has not, it’s not clear that ICE would be legally justified in asserting a continuing “emergency” that would allow it to ignore a binding regulation.

In any event, given that the regulation is clear that foreign students may not stay in the U.S. on student visas if they are taking online only classes, and given that universities knew they may have to go all online this Fall, why are so many university “leaders” acting like the government actually enforcing the rule once the immediate emergency has passed is a complete surprise? Surely it was *possible* that ICE would agree to continue to not enforce a rule, but surely any decent university lawyer would have understood that it was not a certainty, and would have been advising the provost to make contingency plans for foreign students.

The important thing is assimilating this development, like all developments, to the #OrangeManBad narrative.

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