Harvard and MIT Seek to Enjoin Change to Student Visa Rules

A complaint filed in MA district court alleges violations of the APA

|The Volokh Conspiracy |

I blogged yesterday about the federal government's declaration on July 6 that international students enrolled at universities that have moved to online instruction for this fall are at risk of losing their visa status. Harvard and MIT have now filed a complaint in district court to enjoin the so-called July 6 Directive, arguing that it fails to conform to the Administrative Procedure Act (APA).

As I and others suspected yesterday, one of the key issues is the one of reliance. The complaint highlights that the so-called March 13 Guidance, which relaxed the pre-existing restrictions on international students taking online classes, specified that the March rule change would remain "in effect for the duration of the emergency". The complaint goes on to state that "[t]he President's national emergency declaration has not been rescinded or terminated" and that coronavirus continues to constitute an emergency, with the number of cases not having greatly decreased and in fact spiking in some places.

After describing the significant steps that Harvard and MIT have taken to move most of their instruction online, the complaint emphasizes the many costs that students have incurred in reliance on the March 13 Guidance, such as by taking out loans or signing leases. At this point, if they have to return to their home countries, these students would have to "abandon housing arrangements they have made, breach leases, pay exorbitant air fares, and risk COVID-19 infection on transoceanic flights. And if their departure is not timely, they risk detention by immigration authorities and formal removal from the country that may bar their return to the United States for ten years." Once home, the students in some countries would be unable to pursue their education properly or at all due to time zone variations as well as "unavailable, unreliable, or state-managed Internet connections, and other barriers to online learning."

Any school that attempts to keep its (sometimes thousands of) international students in the United States under the rules for hybrid models–which combine in-person and online instructional components–would have to get all these students' I-20 forms reissued within 21 business days of the new directive. According to the complaint, "Doing so is not only unduly burdensome, but, in many cases, impossible because students are generally not required to register for particular classes until closer to the start of the semester."

The complaint alleges three violations of the APA. The first allegation is that the July 6 Directive is arbitrary and capricious because it fails to consider important aspects of the problem and fails to address the serious reliance interests involved. The second is that the directive is arbitrary and capricious because it fails to offer a reasoned basis to justify the change. The third is that the directive violates the APA because it "is a substantive rule that alters students' and universities' rights and obligations under the law" and ICE did not provide the requisite "good cause" for failing to follow the usual notice-and-comment procedure. Among other relief, the complaint requests a temporary restraining order, preliminary and permanent injunctive relief, and an order vacating the July 6 Directive and reinstating the March 13 Guidance.

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  1. What are the substantive damages incurred by MIT and Harvard? President Reif’s letter today did not identify damages to MIT itself but on potential damages to foreign students.

    As for what is different now than in March, any look at the incipient second wave of covid infections in the US makes that obvious. That does not say that this reason is dispositive but it is a big change in the public health environment.

    1. For most colleges, full international student tuition is fairly lucrative, much more so than in state tuition.

      1. MIT and Harvard are private, not state schools. There is no such thing as “in state” tuition at either institution.

        Zarniwoop, MIT’93

        1. My bad – I overlooked the private school issue, though out state students and international student tuition at the state schools remain lucrative in comparison the in state students

        2. MIT is a land grant college.

          1. Which is irrelevant.

            1. Not necessarily. It’s bound by a lot of things (must have Army ROTC), it’s required to do public service to the Commonwealth, and there is a lot more that hasn’t been litigated.

        3. Doesn’t matter. The international students generally pay full freight unlike many of the US students

          1. I attended Harvard College as an international student a few years ago and received the same need-based financial aid that Americans received.

      2. MIT apparently is saying it will let almost all of its international undergrads back on campus while prohibiting nearly ¾ of its other undergrads.

        • Among undergraduates, only seniors will be invited to campus in the fall.
        • There will be a process for [other undergraduate] students … to request special consideration for housing if they face challenges related to safety, living conditions, visa status, or other hardship.
        • Only undergraduate students who have been invited or approved to come to campus and live on campus will be able to access MIT facilities.
        • … Only undergraduate students who live on campus may participate in in-person instruction.

        “Fall 2020 FAQ,” MIT Covid-19 Response, updated July 7, 2020, https://covid19.mit.edu/fall-2020-faq

          1. Of course it is.

  2. Time to repeal the APA in its entirety. The executive should not have to “notice and comment” every regulation change, especially when it will never be used to rein in leftists.

    1. Did the March guidance use “notice and comment”?

      1. Nope, and no one has standing to challenge that guidance as violating the notice and comment period.

      2. None of this did.

        1. Then why should a change need “notice and comment”?

          1. No, this is a decent question.

            Generally, guidance regarding existing regulations does not need notice and comment, as it’s technically nonbinding. However, some guidance is a sufficient departure from previous policy, and binds enforcement discretion sufficiently, that in effect is a new rule.

            One of the ways to determine that is to look at how the reliance interests have been changed.

            That seems to be one of the three arguments put forth here.

    2. You really want to repeal APA when there’s a (much) greater chance the Dems will control the entire Congress and the Presidency next January, than vice versa?

      Sure go ahead!

      1. The APA never seems to apply to Democrats

        1. Courts have improved with recent appointments though.

        2. As a person who practices in this space, I can tell you that you are wrong about this. For example, check out the Obama EPA’s w/l record in APA cases before the 5th Circuit.

        3. I suspect there are other examples, but the one that immediately springs to my mind is Judge Hanen enjoining implementation of DAPA and the DACA expansion based on procedural requirements of the APA.

  3. “many costs that students have incurred in reliance”

    Harvard has a 40 billion dollar endowment , MIT a mere 17.5 billion.

    Pay the costs. Problem solved. No litigation needed.

    1. You want costs to take into account wealth? How Scandinavian of you!

      1. Okay, that was legit funny.

        (he’s still right though)

      2. “You want costs to take into account wealth? ”

        Not the students wealth, the college’s. Though most foreign students going to Harvard or MIT undergrad are wealthy.

        If Harvard and MIT were actually concerned about the poor student’s costs, they would just open their wallets. No uncertainty of litigation.

        1. Why should a private entity have to bear the costs of an arbitrary and burdensome gov’t regulation?

          Do only rich entities need to do that?

          Would it be OK to arbitrarily regulate Exxon because Exxon is rich?

          1. I don’t think MIT and Harvard are in danger of losing visas.

            1. How can they avoid it? Do you think they’ll be forced to reopen?

              1. Harvard and MIT are not humans, they don’t have visas.

                Plus they are USA non-humans, not foreign non-humans.

                1. Your semantic games kinda suck.

                  They are the sponsors of quite a few visas; common parlance is that they hold the visas. Those are their visas.

                  And those visas are in danger of being rescinded.

                  1. It was a joke son.

                    1. I have found that dad jokes don’t translate well in written media.

          2. It’s only arbitrary and capricious if you outright ignore the fact the guidance was initially issued mid-semester and as such would directly interfere with attainment of credits and this is being issued more than 45 days before the semester begins, which means there is no interference with ongoing education and at worst they could be invited back when the declaration of emergency is rescinded. Course, that would require you to concentrate on the actual issue for more than two seconds and not Orange Man Bad.

      3. Highly unlikely that students have any reasonable (let alone legal) claim on future costs. They were sent away in March with the advice that anyting in the fall was unknown.

  4. Another rousing meeting of Libertarians For Authoritarian, Bigoted, Cruel Immigration Policies has been convened.

    How do you like Conspiracy fans so far, Prof. Manta?

  5. Good. This will remind Trump he needs to be naming federal judges up until the last minute of his Presidency.

    1. Build some wall. Establish some regulations, dismantle others. Install some judges. Maybe even enact some legislation once a year or so.

      Better Americans will address all of it, soon enough and for the long term. Losing a culture war has consequences. Losing the electorate has consequences.

      1. You really are going to wonder why when the time comes aren’t you?

        1. When all you have are vague intimations about some wished-for future, well, that’s a pretty sad place to be.

          1. Why don’t you ever make these same type of comments to that faker Rev when he makes his “open wider” explicit threats and racist comments…not just at those who recite the well worn trope that is thrown back at him about “a revolution eating their own”?

            1. Perhaps because explicit threats are the exact opposite of vague intimations.

            2. because he cheers on every word the rev says.

        2. Stomping conservatives in the culture war, then observing their all-talk bluster and seething impotence, never gets old.

  6. What’s funny, is that in the thread on this topic yesterday, someone mentioned that a lawsuit in Hawaii was already filed. The fellow just got the wrong coast. heh.

    1. That was me. Week is not over yet.

      Usual tactic is to file multiple suits in multiple circuits.

      1. That’s not the usual tactic; it just is if you assume the left is a hivemind that coordinates all that they do.

        I’d guess this was the AAU’s push. Doesn’t mean there’s not other orgs working this separately.

        1. Hivemind? Naw. But when lots of folk think alike (let’s sue! like the left has been doing a lot of lately, not that the Right didn’t catch that fever during the Obama years) it can sure seem like it.

        2. “That’s not the usual tactic”

          Sure it is.

          Hawaii, Virginia and New Jersey, if memory serves, in the travel ban case. File multiple suits so as to get at least one biased judge.

          All these activist group coordinate. Its easy with twitter and e-mail and texts. Staff float from job to job too so everybody knows each other..

          1. All these activist group coordinate.

            Hahahah. You…don’t know a thing about the left, do you?

            1. That college kid who was arrested for knocking down statues – he’s been coordinating the whole thing.

  7. I’m not sure how enforcing the regulation on the books is violating the notice & comment period.

    1. The argument is that this change in guidance amounts to a regulatory change due to the reliance interests.

  8. MIT & Harvard vs Executive branch hardly seems like a fair match. Then again, the former *are* more constrained by intellectual integrity and common decency.

  9. How about a compromise immigration bill now?

    1. Trump was going to let them keep the so-called “Dreamers” for a bunch of other concessions, notably a merit based system over the lottery system. If he wins re-election, maybe they will come to table again, but I doubt it.

      1. So he screws over the Dreamers, then offers to “help” them in return for concessions that Rs long wanted? That is his typical MO style and no surprise the Ds rejected it.

        1. Hearing and addressing the concerns of your fellow Americans is not needed. Understood.

          Why should anyone sympathize with Dreamers’ concerns when that sympathy is not reciprocated? Why treat anyone better that you treat us?

          Where do you think this ends? And meanwhile, Dreamers are going to spend how long in legal limbo waiting for you to finally get total power to enact your ultimate “fuck you” bill to screw over your fellow Americans?

        2. IMO it was Obama that screwed over the “dreamers” by illegally giving them a temporary hiatus that at one time he himself admitted he had no authority to do. Alas, he was sure Hillary would win though.

          Anyway, plenty of blame to go around on a failure to compromise. The parties didn’t want to upset their bases, but the Dems more so.

  10. Maybe the countries of the world “aren’t sending their best people.”
    Only the best are able to fake their SAT scores.

  11. It’s pretty simple. If the classes are in person, you need to be here. If they aren’t in person, then you don’t. If the University wants to go to an all-online format, then their international students are able to study in their home countries. If the students are unhappy with this decision, then the students should sue the UNIVERSITIES for changing their policy to online-only. They should sue the Universities for their lost leases, etc…

    This shouldn’t become a new “temporary protected status”-type immigration farce.

      1. I’ve read the complaint.

        The law is the law however. If the student needs to be here, in person, they get a visa. If they don’t, because all their classes are online, they don’t need to be here. There are colleges and universities which are currently offering in person classes, and most have planned in person classes in the fall.

        A temporary exception for the end of a term does not mean the entire policy changes. If MIT and Harvard want to go online-only, that’s their choice. Other universities have chosen to have their students for in person classes. The law is clear, visas are for students who need to be here. Not for online classes.

        If Harvard and MIT are worried about “reliance interests” it’s because they changed their policy. And the students should blame them.

        1. The “temporary exemption” had a specific timeframe: the duration of the current emergency. I.e., something quite different than your insertion of “end of term”.

          MIT and Harvard have alleged they relied on that.

          That students might conceivably have a cause of action against universities does not mean those universities do not *also* have one against the Fed gov’t. Handwaving about other, different potential reliance interests doesn’t make MIT/Harvard’s go away.

          1. Harvard and MIT are getting the tuition either way. They are suffering no harm.

          2. The guidance ALSO had a note.

            “NOTE: 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. ”

            This is the adjusted guidance.

            Because currently at least 65% of US universities plan in-person classes in the fall, the guidance changed.

            Realistically, it’s a never-ending parade of delays from a good-willed provision. If they end the emergency in September, and end the visa-delay, it’ll be “Oh you didn’t give us enough time before changing the guidance, we need more time, classes are just starting up”. If they delay til October, it’ll be “Oh, you can’t stop our visas now, it’ll interrupt our classes online”

            It’ll be the Temporary Protected Status scheme all over again. Remember? “There’s an earthquake in El Salvador, let’s let some refugees into the country temporarily, until things get better there.” That was in 2001….And yet, it kept getting extended. Until…2021 now

            If you want to change the law, change it. But don’t do these delay-schemes again.

            And so on and so on.

        2. The law is the law however.

          The law doesn’t say anything about this. It’s just a regulation.

  12. Harvard and MIT seek to continue reaping massive profits by charging huge tuition sums for back-door visas.

    Our interventionist government policy of mass immigration (i.e. labor importation), which is unprecedented in human history, is a 500 billion dollar annual wealth transfer straight from working Americans to the wealthy few, according to prominent immigration economist George Borjas.

    1. Borjas is all you nativists have. No one else agrees with him.

      Harvard and MIT don’t like their students being deported; this does not require some money making scheme to be true.

      Unprecedented in human history? You’re freaking nuts.

      1. Not only that, but Borjas is talking about low skilled immigrants, not about MIT graduates.

  13. What exactly do Harvard and MIT lose here? Why do they have standing to sue?

  14. A majority of the Supreme Court has now unequically held that as a “bedrock” principal of American constitutional law, extraterritorial aliens possess no rights whatsoever under the US constitution.

    As Toe v. wde notes, some states allow fetuses to enter into contracts, with a parent acting as gardian. One could imagine a hypothetical where a mother (or maybe the father) enters into a contract on behalf of the fetus to do something – maybe a very early deposit to a preschool, maybe an agreement with some pro-life organization providing services – and then later she decides to abort.

    Could the preschool or organization sue, asserting the interests of its student as its basis for suit? Could it have standing? Could it win on the merits? What relief could it get? Could it delay the abortion while the matter is being decided? Could it stall?

    How can schools asserts claims on behalf of beings – persons is obviously an incorrect word – that lack constitutional rights of their own?

    1. Even if any of these musings were higher caliber than Brett Bellmore style legal arguments, many of the people affected are not “extraterritorial aliens.” They are here now.

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