US administration withdraws controversial immigration rule for online studies

Earlier today, the US government rescinded a much-criticised directive regarding international students and online studies.

The Immigration and Customs Enforcement (ICE) guidance, issued 6 July, had stated that, as of fall 2020, international students studying in the US would have to leave if their programme were to become online-only, and it meant that students coming to the US would have been denied entry to the country if their programme transitioned to online delivery. It was far-reaching enough that even if an international student began an in-person programme in the fall that later had to be moved online because of the pandemic, they would still have to leave the country.

The new rule was rescinded during a federal court hearing on 14 July. The court was considering a lawsuit filed by Harvard University and MIT that asked for a temporary injunction against the implementation of the 6 July directive. Harvard and MIT had the support of at least 200 other universities and organisations who had filed amicus briefs to amplify the weight of the Harvard/MIT lawsuit.

Mere minutes into the hearing, US District Judge Allison Burroughs announced:

“I have been informed by the parties that they have come to a resolution. The government has agreed to rescind the July 6, 2020 policy directive.”

What it means

The decision today returns the US government’s stance on visas for international students to its previous guidance as set out on 9 March. That earlier directive sets out exemptions that allow international students to maintain their visa status and enter or remain in the US while studying online.

However, as the Boston Globe noted,

“It is unclear what this means, however, to students whose visas are expiring and to new students who are applying for visas and whose classes may be entirely online.”

It is also not immediately clear whether the US administration will now rest on its March 2020 guidance as above, or if it may yet introduce new restrictions around online study, especially for new students.

The outstanding question: Will the administration try to come back with a more limited international students policy, perhaps one restricted just to new students, as suggested in White House leaks earlier this afternoon?

— Karin Fischer (@karinfischer) July 14, 2020

Widespread condemnation

While Harvard and MIT were the first to file a lawsuit asking federal courts to block the government’s 6 July immigration directive, many other higher education stakeholders quickly followed their lead.

• Johns Hopkins University, whose Coronavirus Research Center is perhaps the most important database in the world tracking cases and deaths from Covid-19, filed its legal challenge with the US District Court for the District of Columbia, saying that the policy threatened “arbitrary and capricious consequences on foreign students.”
• Accompanied by separate legal actions by the states of New York and Washington, California filed suit in the US District Court for Northern California in an effort to stay the implementation of a policy that it characterised as a “callous plan, issued in the midst of an escalating health crisis”
• Seven international graduate students in California filed their lawsuit in the US District Court for the Central District of California protesting “the president’s politically motivated decision” that is “the latest of a series of irrational actions that is deepening the pandemic crisis in our nation.”
• Led by Massachusetts, a bloc of 17 states, along with the District of Columbia, filed an additional legal action on 13 July. “The Trump Administration didn’t even attempt to explain the basis for this senseless rule, which forces schools to choose between keeping their international students enrolled and protecting the health and safety of their campuses,” said Massachusetts Attorney General Maura Healey. “We are taking this action today to make sure [international students] can continue to live and learn in this country.”

The damage done

The significant legal and political opposition to the 6 July guidance was able to prevent the new rule from taking effect. But the market signal conveyed by the directive simply can’t be pulled back. Prospective international students are understandably worried about whether they will be able to enter the US, and current international students will have legitimate concerns about their future status as well.

Speaking on a 13 July media call before the guidance was rescinded, Scott Stevens, the director of the University of Delaware English Language Institute, said, “[The 6 July directive] represents a tremendous existential threat to the entire profession. Unfortunately, the damage has already been done. Students see all of these decisions around H-1B, and the threat to OPT. Students do not like instability and so they are thinking ‘I don’t know if I want to come to the US and worry about what is coming out of the White House next’.”

“We have lost the trust of the students,” added Jason Litzenberg, the director of the intensive English programme at Pennsylvania State University. “It’s going to take a very long time for the industry to recover from this.”

EnglishUSA Executive Director Cheryl Delk-Le Good added an important optimistic note in commenting on the government’s withdrawal of the 6 July guidance. “It has been a very long time that so many individuals, associations, programs, institutions, and elected officials have come together on an issue of such magnitude,” she said. “It is a statement of the impact we can all have on advocacy efforts. What has also been highlighted here is the importance and contributions that international students studying in English, undergraduate, and graduate programmes bring to the United States.”

For additional background, please see:

• “US issues horrifying rule change that requires foreign student to leave the country if their study programme transitions to online only”
• “Updated survey data tracks student intent through June”