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Win for International Students as ICE Reverts Guidance, Battle over Regulations Continues

In a victory for students and institutions of higher education across the country, the Administration has rescinded a recent decision to prohibit Nonimmigrant Students with F-1 and M-1 visas from living in the United States while taking an online course load this fall.

On July 6th, ICE issued a statement detailing that nonimmigrant F-1 and M-1 students attending schools, whose classes had been converted to a fully-online format due to the COVID-19 pandemic, could not remain in the United States. The U.S. Customs and Border Protection informed international students that they must either transfer to schools with in-person instruction or leave the country. Students who were not in compliance with these regulations were subject to the initiation of removal proceedings.

In the days leading up to the July 14th guidance rollback, the nation witnessed an outpouring of disapproval and frustration in response to the update. Lawsuits spearheaded by Harvard and MIT were supported by tens of other universities and the attorneys general of 20 states, who took legal action against the Administration on the grounds that its decision was “reckless, cruel and senseless.” Middlebury College filed a friend-of-the-court brief in support for the lawsuit, “With Middlebury’s commitment to global education, we have an obligation to protect our international students, especially when policies place an undue burden on their ability to pursue an education. We must enable our students and programs to cross boundaries in as many ways as possible.”

Institutions of higher education weren't alone in their advocacy efforts; non-profit associations, Members of Congress, and language advocates across the Nation used their voices to speak out against the new guidance and demand change. Dr. Esther D. Brimmer, Executive Director and CEO of the National Association of NAFSA: Association of International Educators, wrote, “Unfortunately, this administration continues to enact policies which only increase the barriers to studying here, and that’s a serious concern. At a time when new international student enrollment is in decline, our nation risks losing global talent with new policies that hurt us academically and economically.” Representative Rodney Davis (R-IL-13) led a group of 14 lawmakers in opposing the guidance in a letter to the Acting Director of ICE, reminding ICE and the Administration that, “These [international] students are law-abiding members of our community and are seeking to better themselves with a college education, and our communities are better for it. They followed the rules, and the rules are being changed on them in the middle of the game. That’s unfair.” Representative David Price (D-NC-4), Co-Chair of the America’s Languages Caucus, also criticized the ICE guidance in a House Budget Committee Hearing, asserting that, “Once again, the Trump administration is putting a ‘immigrants not welcome’ sign on full display for the world.”

With the July 14th decision, the Administration has indicated that it will re-incorporate aspects of its original policy announced on March 13th regarding COVID-19, stating that the Student Exchange Visitor Program (SEVP) would temporarily allow for students to remain in the U.S. while taking more online credits than allowed under normal circumstances.

This rollback comes as a relief for international students, but there may be trouble ahead as the Administration continues to issue restrictions on immigration during the COVID-19 pandemic. Both the March 13th and July 6th guidance changes violate the Administrative Procedures Act (APA), which requires federal agencies to publish an advanced notice of any proposed substantive change in their rules to the Federal Register, and to give the public an opportunity to comment on the proposed change before it takes effect. If the Administration does not promulgate the March 13th directive as a federal regulation, the temporary guidelines in place to support international students during the COVID-19 pandemic are in potential danger of being vacated. This would result in the reinstatement of original SEVP regulations that limit online course study in the United States to three credits per semester.

JNCL-NCLIS stands alongside language advocates, ready to take action on behalf of international students should there be any additional attempts to bar students from receiving their education in the United States.

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