A Loophole In ICE’s New Online Course Rule For Foreign Students

A Loophole In ICE’s New Online Course Rule For Foreign Students; A Workaround to Protect Vulnerable Faculty As Well As Visa Holders

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WASHINGTON, D.C. (July 7, 2020) -  As more and more professors are refusing to interact in person with students this fall because they are at very high risk from the coronavirus, and many universities have already promised that they would not be forced to, ICE has just announced that:

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Nonimmigrant Students May Not Take Full Online Course

"Nonimmigrant F-1 and M-1 students attending schools operating entirely online may not take a full online course load and remain in the United States. . . .  Active students currently in the United States enrolled in such programs must depart the country or take other measures, such as transferring to a school with in-person instruction to remain in lawful status. If not, they may face immigration consequences including, but not limited to, the initiation of removal proceedings."

Even the "hybrid models" -  which ICE defines as a mixture of online and in person classes - which many colleges are planning to use would not solve the problem since such students are still limited in terms of the number of courses they can take online.

More specifically, ICE required that the college certify "that the program is not entirely online, that the student is not taking an entirely online course load this semester, and that the student is taking the minimum number of online classes required to make normal progress in their degree program."

But public interest law professor John Banzhaf has developed a simple way to protect faculty, who - because of their age and/or various medical problems - refuse to be in a room with students even with masks and social distancing protocols, while still not running afoul of the new ICE requirement limiting classes which are taken online.

Maintaining Social-Distancing Standards In The Classroom

A college or university could have most of its students - who are generally young, not in great danger from the virus, and probably willing to accept the small risk - seated in a classroom, presumably separated from each other according to social-distancing standards imposed by governmental requirements or by the school itself.

In a small "broadcast studio" room nearby (which can thoroughly disinfected, easily and inexpensively, before each use) is the professor, who stands at a podium in front of a blackboard.  His voice and image are captured by a television camera and displayed in the larger classroom, where the students are assembled and hopefully eager to hear his words.

The transfer of the information from one room to another nearby could be done by a simple cable, so there is no Internet or other "online" involvement to trigger the ICE requirements.

Indeed, notes Banzhaf, it is the same arrangement often used where the classroom in which the professor is teaching is too small to accommodate all of the students, so that the video and audio are simply "piped into" another auxiliary classroom for additional students.

Alternatively, a separate video camera and lapel microphone, or even a computer-mounted cam, could be installed in a professor's office to permit him to teach his class remotely to students assembled in a nearby classroom.

In this case the transfer from one room to another nearby could likewise be done by a simple cable - or, if necessary, by an internal intranet.

Overcoming The Problem Of Online Courses Instruction

In either case there is no Internet or other teaching occurring "online" since there is a clear and well recognized distinction between online or Internet use, and the use of an intranet where the signal is confined to a single building, and the students are all in each other's presence and interacting as they would in any conventional classroom.

This two-room arrangement overcomes a major problem of online instruction because the students are able to see, hear, and otherwise interact with each other, and are in each other's presence as they typically do in any classroom, but not with online instruction.

The professor can see the students over a monitor located in the "broadcast studio" room or his office, call upon them as required, and respond to any concerns or questions they might have.

The students in turn can hear and see the professor on a large screen TV, and perhaps also on additional monitors installed around the classroom.

Indeed, notes Banzhaf, they may see him better than they might if social distancing requires the use of much larger classrooms with many students seated far away from the professor, and hear him better than if the professor were wearing a mask, and perhaps even speaking behind a huge plexiglass screen as some universities are now installing.

An Alternative For Taking Online Classes

The sound and image would also be much better than if the students were at home taking the class online, since many professors lack the equipment and/or the skill and experience to produce quality broadcasts from their own homes with their own equipment, especially if their homes have limited bandwidth.

Clearly such an arrangement could not be classified as "online," and therefore subject to ICE restrictions for foreign students, since the Internet is not involved in any way for the students receiving instruction in the classroom.  Indeed, it is no different than the well established practice of having an overflow classroom.

Naturally, with such an arrangement, the university could also feed the video and audio signal to students in their homes or day-work offices by using the Internet, but such online instruction would apply only to those students who requested it, and presumably not to those whose visas prohibit them from taking too many classes online, and who would thus be physically present in the classroom.

Banzhaf suggests that this workaround would be especially useful for universities which have a large percentage of foreign students, since they tend to pay higher tuition than U.S. students who increasingly obtain discounts (often labeled "scholarships") from this listed ("sticker") tuition amount.