Seventeen More States Sue the Trump Administration Over Student Visa Rules Change

Following in the footsteps of California and Harvard/MIT

|The Volokh Conspiracy |

After lawsuits by Harvard/MIT and then California about the recent changes to the student visa rules, seventeen more states have filed their own lawsuit (in district court in Massachusetts, where the Harvard/MIT suit was already filed). Like the preceding lawsuits, the plaintiffs allege that the federal government violated the Administrative Procedure Act by engaging in arbitrary and capricious decision-making and failing to provide for notice and comment. Because the claims largely track those of the previous lawsuits, I will note here only a few excerpts that captured my attention.

This lawsuit nicely captured the absurdity of the requirements imposed on universities through the sudden and belated change:

Now, with insufficient notice, zero explanation, and severely depleted resources, colleges and universities are forced to readjust all of those plans to account for whether every single international student, in every single program, will have sufficient in-person learning opportunities to maintain their visa status in the United States–a determination they must make before many students have registered for a single class, while many faculty and staff are absent from campus due to the pandemic or on leave for the summer, and while the pandemic's course this summer and autumn remains worrisome and unclear.

The plaintiffs also go after the motives of the federal government, stating that "the Administration has expressly acknowledged these coercive effects of the July 6 Directive and even indicated that the directive was actually intended to pressure into reopening, overriding the deliberative planning by Plaintiff States to ensure the health and safety of students, faculty, staff, and the broader community." As evidence, the complaint among other things reprints a screenshot of President Trump's tweet from the same day, July 6, in which he exclaimed: "SCHOOLS MUST OPEN IN THE FALL!!!".

This complaint convincingly shows why universities lacking flexibility and having to choose between following state mandates and retaining their international student population make no sense in a pandemic. I have seen multiple casual (and some less casual) observers ask why international students taking online classes "need" to be in the country. While that's potentially a fair question during normal times, the real question at this time is not why online-only students should generally be able to be in the United States (which they are not). Rather, the question is why students should be sent back who 1) sought an in-person experience that became partly or completely impossible due to a pandemic, 2) were told back in March that they could stick with online classes for the duration of an emergency which has by no means abided, and 3) have now made financial and other investments according to that information. Let's not get lost in red herrings.

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  1. It’s really sad that enforcing the law is a “change” that needs brave lawyers to maintain the status quo of the culture of scofflaws.

    1. The law provides discretion – both the waiver and nonwaiver are enforcing the law.

      1. Discretion != ignoring a law. The President doesn’t get a retroactive veto.

        In this particular case, it isn’t obvious whether continued waivers (!= discretion either) would even be legal.

        1. The waivers are discretion, and I find it hard to see how they wouldn’t be legal.

          1. If making the waivers legal, without going through the APA notice and comment process, was legal, then ending the wavers should be legal too.

            1. It’s the same old ratchet: Making changes liberals approve of is always OK, regardless of how you do them, but changes in a direction they disapprove of must dot every i and cross every t, and then pass the mind reading test to see if they’re properly motivated.

            2. The Supreme Court says differently. And I agree, because reliance interests are not symmetrical.

              Likely on accounta the ratchet conspiracy Brett is talking about.

  2. Anyone wish to check those 17 states against the educational attainment or quality of education rankings?

    1. Of the 17 states listed, only Virginia was a former traitor state (and in the last decade we’ve flipped it to the right side of history [well at least the northern – most populated – part]).

      Additionally, what foreign student would want to apply to the University of Tennessippi anyway?

    2. When (not if) Trump is re-elected, the education industry won’t be forgotten.

      1. Nega Ed: When (not if) Biden is elected, the oil & gas industry won’t be forgotten.

        An eye for an eye leaves everyone blind.

  3. The rules requiring these students to take a full load of in-person courses has existed since at least 2012, so it seems odd to say that the rules suddenly or unexpectedly changed.

    I also do not understand the supposed burden of checking the course load for students. Were these schools not checking that these students were actually their students before this fall?

    1. COVID was the change, and the initial waiver acknowledged it’s reality.

      A withdrawn waiver is indeed a pretty drastic change.

      It’s not the checking, it’s the need to provide in-person options suddenly.

      You can find it hard to believe, but there’s a lot of heartburn going on from this change.

      1. This argument is plausible if you provide people who oppose you with a rock solid drop dead date.

        Otherwise you are just always asking for “one more month” of special rules, and eventually those months add up to years of “emergency”. Its actually very similar to the wars in Iraq and Afghanistan in this way.

        1. A drop-dead date or a set of concrete conditions.

          You know, like most guidelines regarding COVID do.

          1. A set of concrete conditions is useless because it faces the Iraq/Afghanistan victory condition problem. Indeed, we already have had mission creep in the fight against Covid from flatten the curve to now most mainstream outlets appear to be hinting at “wait for a vaccine” which is a goal with an unknowable date which might be 4 years in the future. Or longer.

            1. Flatten the curve was never the mission. Why do right wingers keep lying about this? Nobody ever said, “As long as bodies are not piling up in hospital parking lots, we don’t care about thousands of people dying each week.”

      2. A waiver by its nature isn’t a permanent rule change. Anyone who expected the waiver to be extended indefinitely was asleep at the wheel.

        There is always a lot of alleged heartburn from the left, and it almost always ends up being just hot air.

        1. The waiver was triggered by the COVID lockdown. Assuming it would continue as long as the lockdown did is a pretty rational way of thinking.

      3. They promised to provide in-person classes.

        1. There was something of an exigency; you may have heard.

          If students are unhappy, shouldn’t market forces be sufficient to see students head towards schools that had a risk-mix they prefer?

      4. Why do these students have to BE HERE if there’s no IN PERSON option?

        1. Do you know how visas work, The Publius? Assuming the lockdown lifts, students that were here will have have trouble returning.

          Unneeded trouble.

  4. Serious money is at stake here. Foreign students pay a lot more and if some are just using the visa to disappear into the hinterland, as long as fees are collected, the universities are OK with it.
    The law has been on the books since 2012, but now that some universities aren’t even pretending to hold actual classes the condition that the visa holder actually attend in person can not be ignored.

    1. The rule mentions neither visa fraud nor foreign payola.

      I’m not sure these are the problems you posit that they are.

      And even if they are a problem, there are much less burdensome ways to address that issue.

        1. Find better sources, AL. Anecdotes masquerading as statistics are propaganda.

          1. “Anecdotes masquerading as statistics are propaganda.”

            And what comes around, goes around. We expect to never see an anecdote from you again.

            1. I pledge not to use anecdotes as statistical proofs.

              I will continue to use them as counterexamples.

              1. Ah, good ol’ Sarcastr0. When I do what you do, it’s not a fallacy.

                “All your evidence is anecdote, now I don’t have to engage because the plural of anecdote is not data”. Except that anecdote doesn’t automatically disprove the evidence, and in fact, the plural of anecdote IS evidence. How else do the soft sciences function without anecdotes?

                “Anecdote as counterexample” is as likely to prove the rule as dispute it. Too bad Sarcastr0 is too blinded by partisanship to engage arguments anymore.

                1. *Ahem* the plural of anecdote IS ~data~…

                  Maybe someday Reason will have enough money to buy a squirrel that knows how to add an edit function.

          2. “I’m not sure it is a problem”

            -Here’s an example of the problem

            -“Those are just anecdotes”…

            Move those goalposts…

            1. AL, ‘not sure it’s a problem’ is not saying ‘I’m sure this never happens.’

              Try again.

              1. The goalposts just keep moving. At this point, you seem to commit more fallacies than you point out. Time to take a break to recoup. Might I suggest that you detox from the koolaid for a while, and then return to us Sarcastr0 pre-WaPo, that would be great. Thanks.

  5. Unversities: The COVID crisis is so bad, we cannot possibly have in person classes.

    ICE: OK, if it’s that bad, we should have the international students go home, rather than being in crowded dorms and off campus housing, and in crowded college towns and bars. It’ll be healthier for everyone, especially before the beginning of the term when they all start to arrive

    Universities: Sue! We MUST have the international students stay here in their crowded dorms, off campus housing, and bars, infecting each other and other college students. If they don’t get their visas, they might transfer elsewhere and we’d lose money. But we still can’t have any in-person classes.

    ICE: Bwah?

    1. No matter what the students will not be staying in crowded dorms. Only the students invited back will be on campus in housing and classrooms that are not crowded.

      It is indeed difficult to see the hardship of the student who is not invited back to campus and must take the courses online from some other country. Moreover it is quite unclear when those students will be invited back on campus.

      However, IF they are presently in the US, there is little reason to send them home for the next school year, after which the visa could expire or be terminated with plenty of time for proper notice. But if they are presently NOT in the country there is not compelling reason to grant them a visa to be on campus when the university will not allow them on campus.

      1. And if they aren’t still in the US? Many aren’t, they went home for the summer.

      2. Moreover, if they aren’t staying in crowded dorms, they’ll be staying in even more crowded off-campus apartments and houses. There’s only so much space in Boston.

        And if you remove all the doubles, triples, and quads from being able to house students, where will they all stay?

        1. They will have to stay AT HOME!

  6. Here’s what the March guidance said about allowing students to take classes solely online:
    “This temporary provision is only in effect for the duration of the emergency and in accordance with the procedural change documents filed in a timely manner to SEVP.
    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.”

    It may be unfair or unjust for ICE to modify the guidance now, but the notion that this created a reliance interest that requires ICE to go through notice and comment is farfetched. It certainly doesn’t promise that the guidance will continue so long as Covid is affecting higher education.

    1. Indeed. Moreover, if the courts somehow uphold this, it creates a very dangerous precedence.

      When an emergency guidance or order is returned to the business-as-usual type situation, that guidance or order is subject to reliance interest balancing and potentially notice and comment periods.

      What does that mean exactly?

      Well, for example, if one reopened the stores, Amazon, for example, could sue. They’re a reliance interest, and have an interest in keeping the stores closed. An order which re-opens businesses would be subject to commenting and reliance interest balancing. Alternatively, there could be reliance interests who could sue to keep travel from China occurring. Or a dozen other things.

      If such a lawsuit was to succeed, it would severely hamper any actions the government could take in an emergency in the future, because they would need to factor in the reliance interests for when they’d be able to stop the emergency order.

    2. OK David,

      But what is the harm in letting these students stay? No one has yet explained that.

      And there is a good deal of harm in making them leave, to them, to the universities, and to the places where they live. These people spend a lot of money. They pay rent, buy food, etc, not to mention the tuition and fees.

      So far the only arguments I’ve heard for this policy amount to,

      “We’re doing this because we can.” Sounds like nothing but xenophobia and Trumpism to me.

      Is there any actual reason for this policy?

      1. They could inadvertantly contract KungFlu and spread it to Americans, and kill them = But what is the harm in letting these students stay?

        1. You can do better than that.

          1. I did, actually (see response to Sarcastr0)./ Still, this is a legit concern. I am thinking more along the lines of accidental transmission, not something by malign intent.

      2. “But what is the harm in letting these students stay? No one has yet explained that.”

        Whether or not the law was actually needed, or beneficial, is a legislative, not judicial, question. The only question the judiciary gets to weigh in on is whether the law is constitutional. So, barring a claim the law in question is unconstitutional, that the law needs to be enforced is a given so far as legal proceedings are concerned.

        So, “It’s the law” is really all the justification they need for enforcing it. It’s right there in the Constitution: The President shall take care that the law be faithfully executed.

        It’s the waiver that’s legally dubious, not the enforcement. And yet, here we are: People trying to mandate the failure to enforce the law!

        1. IOW, you can’t identify any harm.

          As to the legality of the waiver, I’ll leave that to the lawyers and courts, not Bellmore Law.

          Has anyone challenged it?

    3. It may be unfair or unjust for ICE to modify the guidance now

      Unfair, unjust, stupid, and malicious. so why do you defend it?

      1. Do fairness and justice get reciprocated in America?

        1. Fairness will be reciprocated by enlargement of the Supreme Court,

          Justice will be reciprocated by elimination of the filibuster.

          Was it worth it?

          1. More of your mindless BS, ALK

      2. Bernard,
        There are two classes of students to consider– those presently in the country and those who went back home in the spring. There are no compelling reasons ti let those students back UNLESS they have been told by the university that they will be on campus with some in-person component to their education.

        1. Don,

          OK, but that doesn’t automatically mean we shouldn’t let those who went home for the summer come back.

          Despite a lot of waving-away of problems, there are serious difficulties in taking online classes from abroad, and the benefits – not least the economic benefits – of having the students here are substantial.

          So again I ask, what do we gain here?

  7. As set out in the comments above, the rule has been in place since 2012. 2012 is a previous administration. It doesn’t appear logical that a rule that has been in place since 2012 can violate the APA when the schools make the change in their operation to become subject to the 2012 regulation. The movement/change was taken by the schools receiving tuition and housing payments, not the administrative agency.

    1. The problem was that the rule was reinstated with very little warning, after fall plans were already made (which relied on the waiver as written), and the emergency has not been declared over. It is critical to functionally society that the government can not change the rules (to the detriment of people) at will after people have made plans and incurred costs.

      1. Very little warning? The entire point of the initial rule change was to not interrupt a semester in session. There is zero reason the students cannot attend from outside the country, and 45-60 days is more than long enough to facilitate such a move.

        1. Universities already planned if the classes would be live on online, and the students already signed housing contracts. If it was supposed to be for one semester only then it should have said that clearly and given a firm end date.

          1. Perhaps some had, but many did not make those decisions until the past couple of week and even then many did not announce who would be invited back on campus until extremely recently

            1. Right, the fault lies entirely on the universities.

              1. Generally policy changes like this are socialized before being put into effect.

                Moreover, blaming universities for going too hard in closing for COVID is quite a choice.

                1. It is, however, a choice the universities made. Now they need to actually live with the consequences of their choices.

                  Your ire is misplaced. You should be irritated with universities who can make the problem go away in a heartbeat, without Federal anything. These students are the customers of the university. They need to focus on their customer’s needs instead of whining about the government. It really does come down to that: provide in-person instruction and all the students can stay.

                  With the exception of chinese and iranian students (who should be summarily deported), I have no problem with them staying here in the US and taking in-person classes.

                  1. This is not a consequence naturally flowing from their decision; there is an intervening cause – the Trump administration reversing course.

                    Universities have made their risk-based decisions. I’m irritated that the government is, well after those decisions were made and announced, coming in and throwing everything into confusion.

                    Schools are being forced to choose between the safety of their faculty and keeping their foreign students. And that’s not a choice they need to make; it’s one imposed on them on purpose by the Trump administration.

                    1. S-0,

                      The major school are not making their fall decisions based on UG Got policy but rather on their prudential judgement based on public health consideration.

                      I have read many strawman scenarios in this thread all aimed at supporting the writer’s politics Let’s discuss what is actually happening. Many students, domestic and international went home in March -April. The universities removed them from campuses. Right now there is now reason for those NOT in the US to return. As for those still here, let them stay through the fall.

                    2. Sarcastr0…The universities can make all of this go away. It is entirely in their hands. That is an objective fact. Offer in-person classes and there is no visa issue. The onus is on the university to service their customers students.

                    3. Don – everything you say is probably correct (though I cannot confirm that the students got sent to their home countries).
                      The issue is that yanking a visa is not an easily reversed thing. That’s where the reliance interests come in.

                      Commenter – I could as easily argue that the government could make all this go away. It is entirely in their hands. That’s an objective fact.

                      Government action entails writing a new memo.
                      Schools acting entails telling their professors that they’re going to put them at risk even after saying the weren’t.

                      This distribution of burden tells me who the bad actor is, and it’s not the schools.

                    4. >Commenter – I could as easily argue that the government could make all this go away. It is entirely in their hands. That’s an objective fact.

                      Government action entails writing a new memo.
                      Schools acting entails telling their professors that they’re going to put them at risk even after saying the weren’t.<

                      This greatly ignores the massive damage to the rule of law that maintaining "emergency measures" over Covid has already wrought and will continue to under your proposal. Congress has passed other Covid related legislation. There is no reason the should not have addressed this as well, if it was desirable.

                    5. the massive damage to the rule of law

                      Haha, you’re silly.

          2. I SERIOUSLY doubt those housing contracts don’t allow the university to cancel them without penalty 30 days in advance.

  8. It’s not an emergency. Emergency requires immediate, urgent action. Covid has been around for months. It no longer fits the definition of an emergency.

  9. The quote is a major run on sentence with severe abuse of commas. If that is what you learned in law school then congratulations.

    But then apparently half of Oklahoma is actually owned by the non existent Creek tribe. So say we all.

    1. Treaties have consequences.

      1. And if you mean for treaties to expire, don’t use fancy words like “perpetual”.

  10. So in the future, all emergency waivers will be published with explicit, near term expiration dates, and reissued as needed.

    1. All that does is burden the issuing agency. If re-issuance is generally expected, a reliance interest still attaches.

      In my agency they do this for internal policies. And so we’re generally operating under about half expired internal policies.

      1. So, you’re suggesting what? That the only way an agency can avoid being enjoined from resuming enforcing a constitutional law, is to never issue waivers? An emergency comes up, and their only response should be, “Sucks to be you!”, because if they allow any exceptions from enforcement, the judiciary won’t allow them to resume enforcement?

        That’s basically what’s going on here: The left is trying to leverage this virus to abolish everything they’ve wanted rid of, impose everything they’ve wanted all along. Immigration laws, ballot security, you name it: If the left wanted it, the virus magically requires it.

        1. I’m saying if you wish to *reverse course* after people have come to rely, you need some process.

          There are not a lot of reliance interests on the government not tailoring it’s regs in an emergency.

          1. If there is no reason for student not on campus to stay past the fall. The government could give notice of that now specifying rubrics for decision once this year’s strong flu season hits.

            Our campus leaders have not let the govt drive its decisions, but there is a lot of “orange man bad” in the virulent reactions by otherwise very prudent decision makers.

            1. You think this lawsuit is made in bad faith? I’m seeing what at least appears to be a lot of legit concern on campuses.

              I mean, one could argue that there’s a bunch of hostility to IHE within the Trump admin. But without more, I’m not willing to say this decision was made with hurting them in mind.

              1. (But see captcrisis below)

              2. Of course there is angst on campus due Covid amplified by intense guilt feelings from systemic racism. The faculties and adminstrations want to be and appear to be highly supportive of their students. That is not really bad faith.

                But it is misplaced angst given that 1) most graduate students will be on campus and registered for credit that entails meeting with advisers/ thesis supervisors. And a preponderance undergrads were sent home last April and are not being invited back to campus.

                For those international students who stayed in the US despite the pandemic, I agree that there should be no rush to send them back home immediately. But it is highly unlikely that campuses will return to full in-person instruction in the winter term (and likely second wave plus a predicted bad flu season).

                Could the Admin been more understanding and less heavy handed? Yes. Certainly. But is is cruel or unjustified? I don’t see that. It is just being realistic that this situation is not going to improve over the next several months.

                1. But it is misplaced angst given that 1) most graduate students will be on campus and registered for credit that entails meeting with advisers/ thesis supervisors.

                  I’m at something of a remove, but that’s not what I’m hearing from professors. Not administrators, mind you, professors. They really are concerned about losing their students. I don’t know what if anything they’re hearing about their leadership but I’ve not seen this amount of consternation before; I think it’s sincere. And I work in STEM policy – systematic racism concerns don’t manifest much at the lab level for better or worse.

                  I don’t see how the situation not changing over the next couple of months justifies changing the policy that’s been in place for the past couple of months.

                  1. S-0,

                    Of course I can only speak with direct knowledge of my own university.
                    Both the Admin and faculty have genuine concern for their student, no question of that. With the exception of the time pressure of this order (which we have discussed previously), students working for graduate credit toward a PhD or MS thesis, will have in-person mentoring and therefore satisfy the visa requirement. I’d also note that in our university departments and labs, the issue of systemic racism is a big concern and does occupy much faculty, admin and student time and attention. Though they are not logically linked, both sources of concern and angst are psychologically and emotionally linked.

                    The biggest issue with the visas is with undergraduates who are NOT being invited back to their campuses or who voluntarily elect not to return to campus. If they are out of the country there is no reason to take the risks and expense of air travel to return only to stay somewhere in the US (but not have access to campus).

                    The matter of the situation not changing for the better during the flu season is that a student not invited to campus in the fall is unlikely to to be invited for the spring term. An entire year of being barred from campus hardly sounds like a good reason to grant a visa the rules for which were waived to alleviate a mid-term crisis.

                    Frankly the situation for workers on H1B visas who have been furloughed and not face extended time away from work is a lot more serious. Yet there is much less said in sympathy with thoe people

                  2. “I don’t see how the situation not changing over the next couple of months justifies changing the policy that’s been in place for the past couple of months.”

                    Because that is just procrastination. People need something more than “just another month” constantly repeating. What we are doing is no different than a couple binging a netflix show on a Sunday night and drinking. We’ve “just one more episoded” ourselves to daylight and now its time for a drunk shower before work.

  11. Once again, the only explanations for Trump’s action are bigotry and cruelty.

    1. Can you people even not act like caricatures?

    2. Thanks for the rhetorical flourish

  12. I am missing something. The requirement that F1 visa students take in person classes predates Covid. The department granted an exception to the requirement when covid first emerged. I don’t understand why enforcement of an existing rule would require the agency to go through notice and comment. There has been no change in the regulation. The only change is that they are no longer granting an exception. There is no assurance that the exception would continue.

    If congress wants to grant an exception to the regulation during covid, it could. But seven months later, its arguably not an emergency any more.

    1. You need to stop making sense with logical argumentation. 🙂

  13. “I don’t understand why …”

    Because “Orange man bad!”

  14. “Now, with insufficient notice, zero explanation, and severely depleted resources,”

    Returning to the status quo ante of February, 2020 is not “insufficient notice” or “zero explanation”: it is what had been a few months ago and temporary waivers end eventually is usually enough explanation.

  15. The latest pre-COVID data shows that 31% of foreign students studying in the US are from China, the largest single cohort. Whatever the legality of rescinding/modifying the waiver that was in place for the spring semester, I suspect the administration sees this as a good way to rid US universities of Chinese students, some of whom work secretly for the Chinese military, since the universities are too dependant on the full-tuition foreign students and have no incentive to police their admissions to prevent abuse.

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