Coronavirus cases are climbing across the country. Multiple states have sued. Universities, from the big names to the small, have voiced their opposition, and in some cases gone to court.
Now the government of Donald Trump is backing down from a rule change that would have required international students in the United States to take some in-person classes or risk having their visas revoked. The rule also would have barred foreign students from entry to the country if they planned to attend programs that will be entirely online this fall.
One day after 17 states and the District of Columbia filed a lawsuit in U.S. district court in Boston, Massachusetts, seeking to block the rule change — and less than a week after Harvard University and MIT led the way with a suit in the same court — the Department of Homeland Security and Immigration and Customs Enforcement agency have rescinded a policy that one business school dean said “just does not make economic sense” and another called “a transparent attack on foreign participation in higher education in the U.S.”
AN ABRUPT REVERSAL
The proposed rule change was actually a reversion to an original rule governing F-1 and M-1 students in the federal Student and Exchange Visitor Program. The rule had been changed when the coronavirus pandemic severely hampered international student travel; but schools did not expect the government to change the rule back until the pandemic had been brought under control, something which has not happened — and increasingly looks unlikely to happen by the time classes begin next month. DHS defines F-1 students as those pursuing academic coursework in the U.S. and M-1 students as those pursuing vocational coursework.
Schools were caught by surprise, but they reacted in remarkable unison, and got results. At a hearing on Tuesday (July 14) for the Harvard and MIT lawsuit, federal judge Allison D. Burroughs announced that the government had backed down — and in record time. According to a report in the Harvard Crimson, Burroughs said the parties agreed to a resolution after a mere five minutes of discussion, despite the hearing being scheduled for 90 minutes. “ICE,” the Crimson reports, “will revert back to the guidance it issued in March that allows students taking online courses to reside in the United States on F-1 visas.”
According to the Law360 blog, the government’s abrupt reversal “moots not only the suit brought by Harvard and MIT, but also similar suits filed by the state of New York, a group of universities in the Western U.S., Johns Hopkins University and a coalition of 17 state attorneys general led by Massachusetts Attorney General Maura Healey.”
Harvard and MIT’s lawsuit sums up the widespread — indeed, in the academic world, unanimous — rejection of the government’s rule modification.
“By all appearances,” the lawsuit contends, “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.”
‘A CONTINUATION OF PRIOR MOVES’
Already before 2020, international numbers at the top U.S. business schools were in a three-year slump. The Graduate Management Admission Council reported a 13.7% decline in foreign apps to U.S. schools from 2018 to 2019. Having dodged a bullet when President Trump declined to suspend the Optional Practical Training program in June, news of the SEVP rule change prompted some B-school deans to air their exasperation.
“It was unwelcome, a transparent attack on foreign participation in higher education in the U.S. and a political move against universities, which I think is a continuation of prior moves,” said Peter Rodriguez, dean of Rice University Jones Graduate School of Business, noting that his school, like many, plans a hybrid virtual-and-in-person approach this fall that would probably have immunized the school’s international students from federal interference. “We think that our hybrid approach will work with minimal impact as a result of this ruling, but it’s already impacted students. They feel less welcome. More are requesting deferrals. I think some were weeks away from getting started and they now think, ‘I can’t risk this. Let me defer for a year if possible.’ That’s a rational concern that they have.”
On July 7, days after DHS and ICE’s move, Dean Jeff Brown at the University of Illinois at Urbana-Champaign’s Gies College told Yahoo Finance that it would clearly be harmful to the U.S. economy in the long run.
“We know that high-skilled folks from around the world have historically wanted to study in the United States because we have the best university system in the world,” Brown said. “And many of those students, they come, they learn here, and they stay here. And when they stay here, they are not taking away jobs from Americans — they are building the economy, they are innovating, they are creating growth. Look at the tech sector and what fraction of employees at these tech firms — and in many cases the founders of these tech firms — were not born in the United States. We know that bringing high-skill immigrants to the United States — especially ones that we have invested in their education here — is good for the long-term growth of the economy.
“Putting the brakes on that in every conceivable way that they seem to be looking to do, I think we are actually hurting our global competitiveness. What CEO in the world thinks it’s a good idea to train some of the best workers in the world and then send them to the competition? That’s what we’re doing. We train these folks, give them Ph.D.s and master’s degrees and they’re some of the smartest people from all over the world, and instead of welcoming them here to start their businesses and to lead organizations here, we’re saying, ‘We don’t want you here, we want you to go back and compete with us and start your company in some other country in the world.’ It really just does not make economic sense.”
SOME PEACE OF MIND FOR INTERNATIONAL STUDENTS
Diane Hernandez, an attorney in the employment and immigration practice at national law firm Hall Estill, says that despite the administration’s claims of discretionary powers to end student visas for those attending online courses this fall, “it has rescinded those guidelines with as much advanced notice as when it announced it.”
“The administration,” Hernandez continues, “was likely motivated to rescind the policy, either by the huge number of new lawsuits it faced from several universities and state institutions, or due to the idea that implementing such a measure in an already tumultuous election year could be detrimental to the president’s reelection efforts.
“Either way, the rescission of this policy should offer students and school administrators peace of mind as they begin the fall semester online. However, questions remain about how the administration will handle those students who require new visas, or for whose visas are expiring and need renewal before classes start.”