Universities have a case against Trump’s student visa decision — but they won’t like the outcome

On July 6, the Student and Exchange Visitor Information System (SEVIS) issued a directive that effectively said if American colleges and universities continue teaching entirely online this fall, their nonimmigrant foreign students will have to leave the United States.

Specifically, the July 6 guidelines say: 

1. Nonimmigrant students attending schools operating entirely online may not remain in the United States. Students at a school that adopts such a program must leave the United States or make other arrangements, such as transferring to a school with in-person classes.

1. Nonimmigrant students attending schools operating under normal in-person classes are bound by existing federal regulations. They may only count a single three credit online course per semester towards meeting the “full course of study” requirement.

1. Nonimmigrant students attending schools with a mixture of online and in person classes will be permitted to take more than one three credit course online, but their schools will have to certify that they are taking the minimum number of online courses needed to make normal progress in their degree programs.

Two days later — on July 8, 2020 — Harvard and MIT filed a complaint in federal district court seeking an injunction to stop ICE from implementing the July 6 directive. In 2018, 23.8 percent of the students at Harvard and 29.8 percent of the students at MIT were from other countries.

Although I expect Harvard and MIT to prevail with their suit, I don’t think they are going to like the result.

Some background

In the wake of the 9/11 terrorist attacks, the Department of Homeland Security established SEVIS to collect, maintain, and manage information about foreign students and exchange visitors during their stay in the United States. One of the terrorists entered the United States on an F-1 nonimmigrant student visa. SEVIS is administered by the Student and Exchange Visitor Program (SEVP), which is in ICE’s National Security Investigations Division.

Universities moving to online instruction is of particular importance to foreign students because federal regulation 8 CFR 214.2(f)(6)(i)(G) provides that nonimmigrant students can’t count more than one three credit online course a semester towards fulfilling the statutorily required “full course of study” that allows them to be in this country for schooling.

This spring — as colleges and universities began transitioning to online courses because of coronavirus — ICE was faced with an urgent need to address the mid-semester shift that could put nonimmigrant foreign students in violation of the federal statute.

SEVIS issued a Broadcast Message on March 9 to inform schools with foreign students that they would have to notify SEVP within ten business days of changes made in their programs to address health concerns associated with the COVID-19 crisis. 

Four days later, SEVP issued follow up guidelines announcing that because of the extraordinary nature of the COVID-19 emergency, it would permit nonimmigrant students to keep their nonimmigrant student status for the duration of the crisis in the following situations:

1. If their schools closed temporarily, they would be permitted to keep their status so long as they intend to resume their course of study when classes resume.

2. If their schools closed temporarily but offered online instruction or other alternative learning procedures, they would be permitted temporarily to count more online classes towards meeting the “full course of study” requirement than the student visa regulations allow.

3. If their schools closed temporarily but offered online instruction, they could maintain their status by taking the online courses — even if they have left the United States and would be taking the online courses from another country.

The guidance ended with the following caveat: “Due to the fluid nature of this difficult situation, this guidance may be subject to change. SEVP will continue to monitor the COVID-19 situation and will adjust its guidance as needed.”

In fact, SEVP did decide later that changes were needed.

The July 6 guidelines walk back the generous online course provisions in the March 13 guidelines.

The lawsuit may not end well

The complaint that Harvard and MIT filed claims that SEVP’s July 6 directive is arbitrary and capricious because SEVP failed to consider the effects that it could have on the plans the universities developed for the 2020-21 academic year. Both universities intend to focus on providing learning experiences through the online medium, which will balance the health and safety of faculty, students, and staff, with their core mission of educating students.

SEVP also failed, they argue, to take into account the effects the guidelines could have on the nonimmigrant students who will be forced to leave the United States, or the serious reliance interests that SEVP’s March 13 directive engendered.

Frankly, I see no merit in these arguments, but I am persuaded by the next argument they make, which is that the way the July 6 directive was issued violated the Administrative Procedure Act (APA).

The APA was recently brought to prominence publicly when the Supreme Court made it the centerpiece of its opinion remanding President Trump’s attempted revocation of DACA back to DHS. 

The APA requires federal agencies to publish a notice of any proposed substantive change in their rules in advance in the Federal Register and to give the public an opportunity to comment on the proposed change before it takes effect.

According to the complaint, the July 6 directive is a “rule” within the meaning of the APA because it was “designed to implement, interpret, or prescribe law or policy.” And SEVP did not comply with the APA’s rulemaking procedures when it issued that directive.

The APA argument looks good, but it applies to the March 13 directive too, for the same reasons.

It appears therefore that the court is likely to vacate both directives, which would result in restoring the applicability of the regulation that limits foreign students to one three credit online course a semester.

If this were to happen, the foreign students at Harvard and MIT would still be able to take the online courses the universities are offering, if they do it from their own countries — but they would lose their nonimmigrant student visa status. This means that they would have to reapply for student visa status to return to the United States when those universities resume their in-person classes, and that could take a substantial amount of time.

Nolan Rappaport was detailed to the House Judiciary Committee as an executive branch immigration law expert for three years. He subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years. Follow him on Twitter @NolanR1 or at https://nolanrappaport.blogspot.com.