Legal & opinion editorial – Why the district court should grant the Harvard and MIT’s injunctive reliefs to stop ICE from enforcing the July 6 SEVP announcement and reinstate the previous March exemption guidance that allows F1 and M1 students to maintain status despite full online course load.


Disclaimer: All views expressed in this article are my own and do not represent the opinions of any organization that I am, was or will be affiliated.

On July 6, 2020, the Student and Exchange Visitor Program (SEVP) made a surprise announcement that rescinded the March 2020 guidance. The March guidance allowed F and M students who were taking only online courses during the COVID-19 emergency to nevertheless maintain their nonimmigrant status. The new July rule requires foreign students to leave the US if they attend online only classes. In response, Harvard and MIT quickly filed a lawsuit challenging the new rule. In this article, I will briefly summarize the events that led to the current position, the contents of the Harvard/MIT lawsuit, and why the court should grant the injunctive reliefs, block ICE from enforcing the new July directive, and reinstate the previous March directive.

Issued during the initial shockwave of the COVID-19 pandemic, the March 2020 guidance provided the necessary exemption from the regulation for foreign students who had to suddenly shift to a remote online only classes. Under the existing regulation, F-1 students could not take more than one online class or three credits per semester/session to maintain their F-1 visa status. However, the March exemption rule allowed these foreign students to still meet the full course of study requirement and maintain their status because the extraordinary circumstances of the COVID-19 pandemic necessitated the schools to shift to an online instruction. Without the exemption, these students had to choose between violating their visa status or leaving the US in the middle of their study and in the midst of global travel restrictions at the initial height of the COVID-19 emergency. Clearly, as the March guidance itself indicated, this exemption was necessary given “the extraordinary nature of the COVID-19 emergency,” and the guidance stated that it will be “in effect for the duration of the emergency.”

On July 8, 2020, Harvard and MIT swiftly filed an APA (Administrative Procedures Act) lawsuit in the federal court seeking temporary restraining order and preliminary and permanent injunction . Quick action from these prestigious academic institutions, merely two days after the SEVP announcement, speaks volume about the unexpected shock and the grave concerns that these and other universities felt about the negative impact of the new SEVP announcement on the ability of the universities to operate during the challenges of the COVID-19 during the upcoming academic year.

The lawsuit alleges violations of the APA. More specifically, it alleges that the July directive is arbitrary and capricious and thus in violation of the APA because the directive entirely fails to consider important aspect of the problem and fails to offer any reasoned basis that could justify the policy change. Also, it alleges violation of the notice-and-comment rulemaking.

A court may grant a temporary restraining order and an injunction if the plaintiff shows the presence of several factors, including likelihood of success on the merits, irreparable injury without the relief, balance of equities, and public interest.

I believe that the Harvard/MIT lawsuit clearly satisfies the above requirement for granting the above injunctive reliefs.

First, setting aside the likelihood of success as the last topic, the harm to both Harvard and MIT as well as many other universities is clearly irreparable if the new July directive is enforced. Over the past several months, universities have invested considerable time and effort evaluating its options and developing its plan for the 2020-21 academic year, carefully balancing the health and safety of its faculty, students and staff with their mission of academic research and education. Enforcing the July directive, with only weeks left before the new school year, will require the universities to suddenly scramble to implement an in-person classroom for its foreign students or risk losing all foreign students in mere weeks before the start of the semester.

For example, prior to the new SEVP announcement, Harvard undertook months of planning and assessment and announced that many of its educational programs will be taught online in the fall. Considering that roughly 20% of its student body are on F-1 visa, the new directive will significantly impact Harvard, its faculty and staff, and its surrounding communities. Its foreign students will be left with no choice but to leave the US due to the sudden loss of visa status or unavailability of student visa. For international students, the new directive presents undue burden from the impracticality of attending online courses from across the globe, not to mention the sudden and significant impact on the affected students’ career plans. These students will have to deal with issues such as time zone differences and availability of stable internet in some countries. In many instances, it is not difficult to imagine that these students could be forced to take a leave of absence or withdraw from Harvard. For students already in the US, they will have to deal with the financial loss associated with broken leases, exorbitant costs associated with last minute international travel plans, and health risks from exposure to COVID-19 during long international flights. Also, many foreign graduate students teach undergraduate courses and need to stay in the US to continue their research. These are significant factors that the July directive entirely failed to consider in its announcement.

Many schools such as MIT have adopted a hybrid model that includes a combination of online and in-person courses for the upcoming school year. For these schools, the July directive requires the schools to certify that the student is not taking an entirely online course load and issue a new Form I-20 for each student by August 4, 2020. At MIT alone, there are thousands of F-1 students who will need the new certified I-20. Mandating such last minute burden and giving only 21 business days to comply in the middle of COVID-19 pandemic is unduly burdensome and unreasonable. The burden is even worse given the fact that many students are not required to register for classes until closer to the start of the semester and many add/drop courses in the beginning of the semester.

Second, balance of equities require injunctive reliefs. Schools have reasonably relied on the March directive and diligently developed plans during the past months for the upcoming academic year. Their reliance are wholly reasonable given that the SEVP’s March directive stated that the exemption will be “in effect for the duration of the emergency.” In fact, the COVID-19 emergency has gotten worse compared to March, not better. Since the emergency is still ongoing, if not worse than March, the continuation of the March directive is entirely reasonable. In fact, I cannot think of any good reason for the SEVP’s sudden change. The new directive only adds chaos and confusion to the country’s university system and students. The government provided no reasonable basis for the sudden change in the new rule, and it will not suffer any harm if the March directive, instead of the July directive, is enforced. Thus, the balance of equities significantly favor of the universities, its faculty and staff, surrounding communities and foreign students, who will suffer irreparable harm as a result of the new directive.

Third, public interest also dictates the granting of injunctive reliefs. In the midst of the current COVID-19 emergency, it is common knowledge that social distancing and avoiding close human-to-human contact, especially in indoors, is vital to successfully slowing down the spread of COVID-19. The new rule could force universities to adopt in-person classroom model and unnecessarily risk universities to become a super spreader of COVID-19. Such event could severely stress our nation’s public health system and economically harm our universities, its employees, and surrounding communities, which are already suffering from a significant economic hardship.

Finally, in terms of the merit, agency decisions may be set aside if it is arbitrary, capricious, and abuse of discretion, or otherwise not in accordance with law. As discussed above, it is entirely foreseeable that the new directive will create significant hardship and undue burden to the universities and its communities. Yet, the new directive neither discusses these relevant and foreseeable facts nor articulate the basis of its new rule in any reasonable manner. There is no examination of relevant facts for the change in its decision. The directive fails to consider multitude of important factors: whether and when schools have decided to provide online classes only or adopt a hybrid model; impact of its decision on the health of students, faculty, staff, or the surrounding communities; reasonable reliance of students and universities on the March directive that the exemption would be for the duration of the emergency; and whether there are other options available. In fact, all facts support that the extraordinary COVID-19 emergency is still in ongoing, if not worsening, and that the same reason that necessitated the March directive remains valid.

Given the recent news about the White House’s obsessive focus on reopening schools in the fall, I cannot help but to see this announcement as a rash attempt to force the schools to reopen without carefully evaluating public health considerations, consequent economic impact on the US higher learning institutions and surrounding communities, and as a part of its continued attempts to dramatically limit legal immigration using the global pandemic as a thinly veiled pretext.

I hope and expect the court to reach the correct decision in this lawsuit by immediately blocking the ICE from enforcing the July directive and thus relieve the universities and its communities, who already have more than enough concerns on their plates due to the current COVID-19 emergency, from additional undue burden. We should not unnecessarily add to the universities’ concerns by unreasonably inventing new burden in the time of extreme uncertainties and difficulties.

Reprinted with permission.

About The Author

Deok (“Doug”) Song is an attorney at Sone Menf LLP.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.