Student and Exchange Visitor Program (SEVP) Lawsuit

For many of our international students, studying in the United States and studying at Harvard is the

fulfillment of a lifelong dream. These students enrich the learning environment for everyone. Harvard, like

many other institutions, has sought to balance addressing concerns for public health during this global

pandemic with preserving our academic mission of teaching and scholarship, and we have undertaken

careful planning to address the unique circumstances of our community and to enable students to make

educational progress safely. We have done so recognizing that the unprecedented and unpredictable

nature of the pandemic poses risks to the health of millions and threatens to overwhelm our capacity to

manage it.

On March 13, 2020, the same day that President Trump declared a national emergency, the Student and

Exchange Visitor Program, a division of U.S. Immigration and Customs Enforcement (ICE), issued

guidance relaxing a cap on online coursework so that international students could continue their

academic pursuits at a time when courses were moving remote as a result of the COVID-19 pandemic.

On July 6, 2020, even though the government has not ended its declaration of a national state of

emergency, ICE rescinded the March 13 guidance, stating that students attending entirely online

programs may not remain in or be allowed to enter the country. On July 8, 2020, Harvard and MIT filed

pleadings (see President Bacow's message in the U.S. District Court in Boston seeking a temporary

restraining order prohibiting enforcement of the July 6 directive.

Highlights from the lawsuit filed by Harvard and MIT: 

The rule change regarding SEVP did not consider the extraordinary circumstances

COVID-19 has created for international students.

Without considering the extraordinary circumstances requiring online learning or providing the required

notice-and-comment period for rulemaking, on July 6, SEVP rescinded its March 13 guidance relaxing

the cap on online coursework so that international students could participate in remote learning

implemented as a result of the pandemic—either in the US or abroad—while maintaining their visa status,

despite the fact that the government has not ended its declaration of a national state of emergency. 

The impact of the July 6 guidance is immediate and severe.

 

Under the new July 6 guidance, students attending schools operating entirely online may not take a full

online course load and remain in the country. Additionally, F-1 and M-1 students who were outside of the

US would not be allowed to enter the country. These students are being told to transfer to other

institutions offering in-person instruction or leave the country, even though this late in the summer, it is

highly unlikely students can apply for let alone successfully obtain such transfers. Many of these students

do not have the means to safely travel outside of the country and face substantial barriers to online

learning as a result of unavailable or unreliable internet connections, time zone variations, and other

obstacles. If students cannot maintain their full-time student status, they will lose their ability to access

work allowances in the summer and fall 2021 because they are required to maintain their F-1 status for

the full academic year preceding their access to practical training.  

The July 6 guidance reflects an effort by the federal government to force

universities to reopen in-person classes.

By all appearances, ICE’s decision reflects an effort by the federal government to force universities to

reopen in-person classes, which would require housing students in densely packed residential halls,

notwithstanding the universities’ judgment that it is neither safe nor educationally advisable to do so, and

to force such a reopening when neither the students nor the universities have sufficient time to react to or

address the additional risks to the health and safety of their communities. The effect—and perhaps even

the goal—is to create as much chaos for universities and international students as possible.

The July 6 guidance violates the Administrative Procedures Act.

The Harvard/MIT suit seeks a temporary restraining order and preliminary and permanent injunctive relief

preventing the government from enforcing the policy announced in ICE’s July 6 Directive because it

violates the Administrative Procedures Act in three ways: (1) The July 6 guidance failed to consider

important aspects of the problem before the agency acted; (2) The July 6 guidance fails to offer any

reasonable basis that could justify the policy; and (3) the July 6 guidance failed to provide the public with

notice and the opportunity to comment on this rulemaking.