Executive Order Rescinded but Questions Remain

Gerald LeMelle

By Gerald LeMelle

LeMelle is a partner at Dunlap Bennett & Ludwig’s Tysons Corner Office.

Click here to read DBL’s original coverage and key points from the Executive Order.

[July 17, 2020, Tysons Corner] Immigration and Customs Enforcement (ICE) has backed off plans to bar international students from living in the U.S. if their universities move courses online during the pandemic. However, its travel restrictions and consular closures still pose uncertainty for students stuck overseas. ICE’s retreat, which followed a lawsuit in federal court by Harvard University, Massachusetts Institute of Technology, and several other entities, including 17 states, marked a rare reversal for an administration who is not known to back down its restrictive immigration measures.

However, the failure to follow the Administrative Procedure Act of 1946, which, among other things, requires publishing notices of proposed and final rulemaking in the Federal Register, and provides opportunities for the public to comment on notices of proposed rulemaking may have played a role in the reversal. The Executive Order would have forced many of the approximately 1,095,000 F-1 students in the United States to make a very difficult and potentially life-threatening decision, and it would also have severely hurt U.S. educational institutions. If the average tuition in U.S. colleges and universities is $48,000, the Student and Exchange Visitor Program (SEVP) pumps upwards of $50,000,000 into our education system, funding scholarship opportunities for U.S. citizens among other things. A significant chunk of this money would have been lost had the Executive Order stay in effect.

ICE has now published a new FAQ, mainly reverting to measures implemented in March to offer flexibility to international students whose universities moved online. The new FAQ says that if new students “have not arrived in the United States, they should remain in their home country.” That is the same guidance provided by ICE when the COVID-19 pandemic was first announced on March 13th. However, several questions remain unanswered.

The U.S. Department of State said on July 14th that there would be a resumption of routine visa services will occur on a post-by-post basis. As post-specific conditions improve, our missions will begin providing additional services, culminating in a complete resumption of routine visa services. No specific dates were provided for when each mission will resume specific visa services, or when each mission will return to the processing at pre-COVID workload levels.
The F-1 visa was not targeted in the July 6th work visa ban, so can we assume students will be able to come to the U.S. and begin classes when visa services resume in their country?

One of the ICE requirements for the F-1 visa is that students must enter the U.S. within 30 days of their program’s start date. Interview slots will likely fill up fast, given the number of students in the SEVP, which could pose significant challenges in meeting the 30-day rule. For those students who can interview in a timely manner, many will still face travel restrictions barring foreigners who have been in the United Kingdom, the Schengen region of Europe, China, Ireland, and Iran in the past 14 days from entering the U.S.

Several U.S. embassies in Europe, including in Luxembourg, have announced that students from Schengen countries may be exempt from those travel restrictions under the “national interest” exception. It is unclear, however, what the criteria for the exemption will be and whether students from non-Schengen who are routed through a Schengen country would be eligible for the “national interest’ exception. For students with an approved F-1 who cannot come to the U.S. because the embassy has not opened yet, other questions remain. For example, there is no guidance for what incoming students should do if their universities hold in-person classes.

Clarification is also needed for the Optional Practical Training (OPT). Under the SEVP, you may apply to participate in OPT after you have been lawfully enrolled on a full-time basis for one full academic year at a college, university, conservatory, or seminary that has been certified by the U.S. Immigration and Customs Enforcement (ICE) Student and Exchange Visitor Program (SEVP). The FAQ does not indicate whether international students maintain or lose eligibility if they are forced to remain in their home country for a semester.

The questions posed are, but a few of the many of our business clients are asking as they try to navigate the pipelines of essential skillsets. The lack of details in the FAQ point to the vital need for informed discussion around the Student and Exchange Visitor Program.

If you believe you are impacted or have questions about the impact of the Executive Order, please call us at 703-777-7319 or email clientservices@dbllawyers.com to schedule a consultation.

To learn more about immigration, visit our Immigration page.

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