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ICE Rescinds Policy Stripping Visas from Foreign Students Studying Online

Posted by Matthew Green | Aug 12, 2020 | 0 Comments

On July 6, Immigration and Customs Enforcement (ICE) announced that foreign students would no longer be permitted to enter or stay in the United States if their courses were to be offered exclusively online.  The policy was met with significant backlash and a number of lawsuits filed by colleges, universities, municipalities and even tech companies.  As of July 14, however, it has since been rescinded and the Trump Administration will no longer require foreign students to attend in-person classes in order to remain in the country.   

As our previous post explains, the July 6 directive was one of many to have come about in response to the coronavirus pandemic: in this instance, academic institutions have had to restructure teaching models in order to protect faculty and students from contracting COVID-19.  By contrast, the notably anti-immigrant Trump Administration has used the pandemic to further its political agenda and implement policies that have greatly restricted immigration into the U.S. (see, for example, our account of the Trump Administration's extension of border closures and our explanation of Trump's executive order barring immigration).

The July 14 announcement was made by District Court Judge Allison Burroughs of Massachusetts minutes before she was meant to hear arguments challenging the policy. The challengers, Harvard University and the Massachusetts Institute of Technology, had filed the federal lawsuit on July 8 on the basis that ICE had acted in an “arbitrary and capricious” manner and had thereby violated the Administrative Procedure Act.  According to the Harvard Crimson, Judge Burroughs said the parties “had agreed to a resolution less than five minutes into a hearing for the case Harvard and MIT filed last week asking the courts to bar DHS and ICE from enforcing the policy.”  

What does this mean? What happens instead?

The July 6 move by ICE applied to foreign students holding M-1 and F-1 visas and barred them from the U.S. in the event that their school went fully online in the fall semester. The new directive, which is rescinded on a nationwide basis, states that schools must instead follow an earlier directive, which, according to ICE guidance, “allows flexibility regarding student visa eligibility.”  The earlier directive, made at the beginning of the pandemic in March, permits foreign students who are enrolled in online courses to reside in the U.S. 

Leading up to July 14

As noted above, the previous decision to bar foreign students spurred a great deal of negative response.  The New York Times reports that, in addition to Harvard and M.I.T., “the attorneys general of 20 states, including Massachusetts and California, also sued” and that “scores of universities threw their support behind the litigation, along with organizations representing international students.” Over a dozen technology companies, including Google, Facebook, and Twitter, also joined in support of the lawsuit.  Alongside all of this, 15 Republican members of Congress called for the reinstitution of the March policy in a letter to the Trump administration.

The government's response to the backlash is epitomized by a CNN interview with acting deputy secretary of the Department of Homeland Security, Kenneth T. Cuccinelli II, who stated that “If they're not going to be a student or they're going to be 100 percent online, then they don't have a basis to be here.” He went on to say that “They should go home, and then they can return when the school opens.” 

In line with Cuccinelli's perspective is the argument made by ICE in the lawsuit filed by Harvard and M.I.T., a factor discussed by professor Evan Gerstmann in his Forbes article.  He writes: “ICE pushed back, filing a brief with the court arguing that Harvard and MIT's “request [for an injunction] subverts the deference afforded administrative agencies in complex and interrelated fields like immigration enforcement, which requires coordination between multiple federal agencies including the U.S. Department of State and several components within the U.S. Department of Homeland Security, including U.S. Customs and Border Protection (CBP), U.S. Citizenship and Immigration Services (USCIS), and ICE.”  ICE also argued that the requirement that students take at least one in-person class was “actually more lenient than the rule that had been in effect for close to 20 years which required foreign students to take most of their classes in person.” Of course, the July 14 agreement made by both the ICE and Harvard/M.I.T. parties suggests that these defensive arguments have been laid to rest—at least momentarily. 

Response to the Rescinded Policy 

Despite the fact that the July 6 barring of foreign students would have disrupted the lives of students and presented economic loss to universities and the greater economy, the decision to rescind the policy has not been universally welcomed.  Dan Stein, president of the Federation for American Immigration Reform, denounced the move as “caving to the pressure of the business lobby and open borders advocates.”

Given the fact that the Trump Administration is far from an “open border advocate,” the possibility remains that the government could issue a new directive of the same restrictive nature.  As a result, universities have been cautiously optimistic. NPR provides one such example: Vice President Pablo Ortiz of Florida International University said that “administrators will continue planning for multiple scenarios so as not to be caught off guard again.” In the event that the government does change course once again, it is indeed fortunate that colleges and universities will have already considered how to proceed.  Many institutions had taken measures—such as announcing hybrid models of in-person and online teaching—prior to the mid-July policy reversal to retain their international students.

Should further restrictions be put into place, Harvard University President Lawrence S. Bacow provides the hopeful reminder that the “legal arguments remain strong and the Court has retained jurisdiction, which would allow us [Harvard and M.I.T., the plaintiffs in the lawsuit] to seek judicial relief immediately to protect our international students should the government again act unlawfully.” For now, however, foreign students can remain in the country and join their peers in the fall semester, be it in-person or online. 

About the Author

Matthew Green

Managing Attorney. Green | Evans-Schroeder (formerly Law Offices of Matthew H. Green) focuses on the aggressive defense of immigrants. A native of Arizona, Mr. Green understands the difficulties that immigrants and families of immigrants face when a loved one is charged with a crime. He knows how frightening it can be for some...

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Green Evans-Schroeder is focused on the aggressive defense of immigrants.

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