On July 14, the Trump
administration abruptly rescinded its July 6 directive that said international
students could not legally stay in the United States if they were taking all
their classes online, as many would be this fall as the pandemic continues. The
reversal came with unprecedented swiftness, just eight days after the directive
was issued by Immigration and Customs Enforcement (ICE).
The administration’s move came
in response to a lawsuit from Harvard University and the Massachusetts
Institute of Technology, the first of dozens that were filed challenging the
directive. Hundreds of colleges as well as ACE and 70 higher education associations filed amicus
briefs in support of Harvard and MIT, as did the U.S. Chamber of Commerce and
companies including Google and Microsoft. A group of international graduate
students in California also sued amid reports that some were already being
turned away at the border.
The action “demonstrates the
importance of international students to the United States and shows that
together with one voice, all of higher education, the business community, and
many others across our nation are making it clear that these students continue
to be welcome here,” said ACE President Ted Mitchell in a statement
last week. “We are enormously gratified that Harvard University and MIT, as
well as many states and other colleges and universities, took immediate legal
action to force the Trump administration to rescind its wrongheaded directive
that would have prevented students attending U.S. institutions operating online
during this global pandemic from remaining in or coming to our country. We
believe this will facilitate the reopening of colleges and universities this
fall.”
What Happened
The
government agreed to rescind the directive in negotiations before a hearing July
14 in the district court in Boston. It will now revert back to guidance
issued in March by the Student and Exchange Visitor Program, which
allows international students to remain in the United States while taking a
fully online course load “for the duration of the [COVID-19] emergency."
The March guidance was issued in the middle of the year, so it is unclear at
this point if it covers new international students.
Harvard and MIT—both of which
plan to conduct most of their fall coursework online—argued in their lawsuit
that the July 6 directive reflected an effort by the government to force
universities to reopen despite the continuing dangers posed by the coronavirus
pandemic, or endanger and disrupt the education of their international
students. They also said that the Department of Homeland Security’s (DHS) prior
guidance was in violation of the Administrative Procedure Act, a law that
requires federal agencies to provide opportunity for public notice and comment
and reasoned explanations for their decision making.
New International Students
ICE
released an updated FAQ on international students the day after the
July 6 directive was rescinded. While this is technical guidance for campus
staff and administrators who manage the data on international students, it also
included a confusing reference to new international students that could be a
major policy shift, saying if these students “have not arrived in the United
States, they should remain in their home country."
ACE is still studying the FAQ,
but of course anything that even signals to international students that they
are not welcome and that it is very hard to gain admission to the country is
bad policy. The world’s best students have numerous options where to attend
school, and what this administration has been doing is short-sighted and
self-defeating.
House Bills on the Issue
The
House of Representatives has made several moves aimed at barring the
administration from enacting a similar policy in the future. Several amendments
have been submitted to the House Rules Committee for consideration as part of
the FY 2021 National Defense Authorization Act, one of which prohibits Department of Defense funding to DHS
if the secretary denies entry to or revokes visas from international students
during the COVID-19 crisis. The hope is to harness Republican support for this
issue and keep the amendments bipartisan. A second amendment would directly prohibit the DHS secretary
from taking such actions.
Another effort, spearheaded by
Rep. Lucille Roybal-Allard (D-CA), and supported by California institutions
including the University of California System, the University of Southern
California, and the California State University System, amended the FY 2021 DHS appropriations bill to similarly
protect international students. That bill passed in committee on July 14.
Next Steps
The White
House could possibly issue new regulations, or take a harder stand against new
students than against those already in the country. However, unlike previous
controversies—such as the 2017 travel ban cases—the administration did
not even try to defend this policy, backing down in just eight days. They are
likely to be far more careful in any subsequent steps.