In a startling reversal, the Trump administration agreed to rescind a visa policy that would have forced international students to enroll in in-person classes or leave the country.
The repeal of the policy, which had been broadly seen as an attempt by the White House to pressure institutions to reopen with face-to-face instruction this fall, is an enormous victory for colleges and more than a million international students. Many students, especially those with health conditions, faced a near-impossible choice: return to their home countries in the middle of a global pandemic or risk their health returning to campus.
But the battle over the guidance, which was unexpectedly announced just over a week ago, may have further damaged American higher education’s global reputation, sending the message that the United States is an unwelcoming place for students from overseas.
Immigration policies need to be fair in order to help win back the confidence of international students.
And with normal visa processing still suspended at many consulates worldwide, and U.S. entry restrictions on foreign travelers — most notably from China, the largest source of overseas students in the United States — remaining in place, international-student enrollments are expected to fall sharply this fall.
Still, the government’s agreement to drop the guidance, announced during a hearing Tuesday afternoon on a legal challenge to the policy, was celebrated on campuses. “For today, I think we got the best possible outcome could have hoped for,” said Terry Hartle, senior vice president for government and public affairs at the American Council on Education.
Colleges had feared that the policy, which required international students to take at least one class in person, could have been incredibly damaging. With just weeks to go before the start of the fall semester, administrators at institutions that plan to offer a mix of online and in-person courses scrambled to ensure they had enough face-to-face classes to keep students from violating the policy. As Covid-19 cases spike across the country, anxious students worried that if their colleges shifted to remote instruction, they could abruptly have to leave the U.S.
In fact, under longstanding student-visa regulations, international students are permitted to take just one online course a semester. But when campuses suddenly shuttered this spring amid the coronavirus outbreak, the U.S. Department of Homeland Security lifted that prohibition.
Although the guideline applied only to the spring and summer terms, many college officials had expected — and certainly hoped — that the flexibility on remote learning would be extended to the fall, given the current public-health crisis.
The colleges that brought the lawsuit, Harvard University and the Massachusetts Institute of Technology, had planned to be largely online this fall and said they had relied on the government assurance that the flexibility would be in place “for the duration of the emergency.”
In unexpectedly announcing the policy change, the government had not followed proper regulatory processes and had failed to take into account the interests of colleges and of students, MIT and Harvard argued.
In their lawsuit, they argued that students — many of whom had remained in the United States since the start of the pandemic — would face significant hurdles trying to keep up with classes from overseas. Some would have to cope with unreliable Internet and exhausting time differences; others would struggle to continue their studies amid civil war or government censorship. To get their home countries, they would have to navigate closed national borders and limited international flights — or risk deportation.
The pushback to the policy from higher education was immediate and fierce. Within 48 hours, Harvard and MIT had sued to stop the policy, and more than 250 other colleges signed onto amicus briefs in support. Still other institutions, including the Johns Hopkins University and all of California’s public colleges, filed lawsuits in their local courts.
The opposition did not come from higher education alone. Twenty-one states sued. Cities and counties spoke out against the policy, saying the loss of international students would be an enormous hit to their local economies. So, too, did the U.S. Chamber of Commerce, organized labor, and some of the country’s largest tech companies, including Google and Facebook.
To many, the policy change was seen as part of a Trump-administration effort to force colleges and business to reopen, using international students as pawns. In its court filing in the MIT-Harvard case, the government contested that idea, but during a television interview, Ken Cuccinelli, the acting deputy secretary of homeland security, acknowledged that a goal of the policy was to “encourage schools to reopen.”
Colleges will still face tough choices about their plans for the fall. But Hartle, of ACE, said they will no longer have “to juggle arrangement for international students or develop special workarounds. What it does do is provide more security and certainty going forward.”
For international students, there is the opportunity to breathe easier, at least for the moment. During Tuesday afternoon’s hearing in Boston, Allison D. Burroughs, the federal judge presiding over the case, announced that the two sides had reached a resolution and would return to the spring guidance.
But just hours before the hearing, The Wall Street Journal reported that the administration was considering a slimmed-down version of the policy, which would apply only to new international students. It still could enact such a change. A Department of Homeland Security official told Reuters that details of any future policy remain under discussion.
In a sense, however, such restrictions on incoming students could be moot. Normal visa processing has not resumed worldwide, and in some countries, the first available visa appointments aren’t until later this fall. With the clock ticking to the semester’s start, few new international students are expected to make it to campus. Their loss could be a significant blow to colleges, which have increasingly come to rely on international tuition as a revenue source.
If the administration were to go for a redo of the policy, it would be part of a try, try again strategy when it comes to restrictions on international students and other visa holders. When court challenges stymied an executive order barring travelers from a half-dozen Muslim countries in the first days of the administration, government officials drafted successive versions of the travel ban until it passed legal muster.
Even as they cheered the rescission of the latest policy, many in higher education worried that it would add to the perception that the United States is an unfriendly, even hostile, place to study. Under the “America First” politics of the Trump administration, new restrictions have been placed on Chinese students, and customs officials have revoked the visas of international students returning to college. Even though the policy wasn’t supposed to take effect until fall, there have been reports of several students stopped at the border in recent days.
Esther D. Brimmer, executive director of NAFSA: Association of International Educators, said, “While this is a positive outcome, we cannot ignore the damage inflicted by the perception of the July 6 guidance — the administration was willing, until this guidance was rescinded, to force international students to choose between maintaining legal immigration status and what is best for their health and safety. Immigration policies need to be fair in order to help win back the confidence of international students.”
The number of new international students coming to the United States has fallen for the past three years, while countries viewed as more open and hospitable, like Canada and Australia, have experienced enrollment booms.
Still, Tuesday’s victory reinvigorated some educators. “Make no mistake, this result is about the transformational power of our collective action and the swift, visible outrage of many,” said Miriam Feldblum, executive director of the Presidents’ Alliance on Higher Education and Immigration, a nonpartisan group of college leaders. “We need to continue fighting for international students, and their ability to come to the U.S., to learn and study, and have the opportunity to work, innovate and contribute to our nation.”
