No Visas for New International Students in Fully Online Program

ICE simply cannot let it go

|The Volokh Conspiracy |

I blogged previously about ICE's attempt to rescind its COVID-19 related exemptions at the eleventh hour and the ensuing legal battles here, here, here, here, and here. Just when it appeared that matters had calmed down and that international students would be able to be present in the United States whatever their universities end up deciding regarding online instruction, headlines hit today that new international students would in fact not be eligible for visas if their school decided to be fully online from the start of the academic year.

In what purports to be a clarification of the exemptions proclaimed in March, ICE issued the following document mere weeks before most universities are scheduled to resume their sessions. It states that visas would only be issued to students not yet in the United States if they will take at least one class in person or if their hybrid classes have a significant in-person component. While universities like Harvard fought for international students recently, there is a sense that some of these institutions may be throwing in the towel to at least an extent when it comes to the question of new students.

This is too bad considering the fact that the arguments that gave rise to the Harvard/MIT lawsuit still apply here: many of the students involved have made financial and other investments (taking out loans, signing leases, etc.) in reliance on the March exemptions. These guidelines spoke of schools rather than students and created the appearance that all international students could attend even online-only programs within the United States as long as COVID-19 is raging. Furthermore, the issue of bad incentives remains the same I have discussed previously: universities that heavily depend on the tuition income of international students (perhaps more so than wealthy institutions like Harvard) may try to scramble to create at least one in-person course option for new international students even if public health factors would militate otherwise.

This is another move by the federal government that yields few benefits and many downsides both to physical safety and to the national economy. Whether any institution of higher learning will pick up the litigation baton that Harvard seems to have dropped remains to be seen.

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  1. Ok, look, as someone who was heavily opposed to the visa restrictions the first time around … come on.

    First of all, universities losing money and reliance interests are terrible arguments. Every legal case has reliance interests. Doesn’t mean you win. And cry me a river for all the universities losing money. As far as I can tell they are still charging full tuition for online videos.

    There are better arguments, you didn’t make them. But I’ll address a few: in some cases it is unsafe to return to a students home country given the travel restrictions. If you return you might not come back soon, even if the US is ok with it, your home country might not be.

    Second of all it is morally repugnant to just kick people out of the country who were promised a stay and are currently living here through no fault of their own. Except here you aren’t kicking people out.

    But … like student visas aren’t some magical passport towards all the amenities of America. If the purpose was to allow students to immigrate, well, it would be an extremely unfair program to kids in foreign countries whose parents aren’t wealthy enough to afford the extremely high international tuition. The people who enter these programs are wealthy. And they may not even by high skilled. It’s a horrible immigration program if that’s the point.

    But that’s not the point. The point is to allow students who study in America to actually do so, to be on campus. And if their school is online, well, they don’t need to be here. You want to force people to come here in the middle of a pandemic… and stay were. An apartment? Probably no where near campus? A visa for online education is patently ridiculous, and the arguments that would apply for international students here no longer do.

    1. Thanks for that. I’m an open borders type, but that is not the current political reality, and it is patently ridiculous to whine that students need a visa to be here to attend online courses.

      Schools have gotten fat and bloated on foreign tuition paying for pointless bureaucracies and are scared to death that foreigners will not pay as much without the hook of being here. How many Title IX and other administrators can they justify when all students are online? How many expensive professors are needed when one recorded lecture obviates fresh recordings of the same material? How many US-centric courses are needed for students not in the US?

      1. I’m not sure that “fat and bloated” is an accurate description of colleges and universities, but there is no question that foreign student tuition is an important source of revenue. My university has a variety of work-arounds for this situation, including a required “Directed Study” course for 1 credit that is listed officially as in-person. According to our office of International Student Services, the determination of whether a course is in-person, remote, or hybrid, is made through its official designation by our registrar, and the practical fact is that what an instructor and a student agree to do later is not a factor.

        That said, no one seems to be getting visa anyway, with all of the embassies and consulates closed for business, so it may be largely moot.

        Finally, it should be noted again that the Administration’s rationale for this policy — to encourage colleges and universities to open in the Fall — is backfiring, at best, and is transparently silly. Every college and university is struggling to open, and foreign student tuition is a good way to support that.

        1. By “fat and bloated”, I mean the admin staff growing faster than faculty or students. Bureaucracies inherently grow and seldom shrink, and it’s all the worse when governments add more and more requirements. Memory says admin staffs grew three times as fast as students, and that faculty did not keep up with student expansion. I have no links.

        2. there is no question that foreign student tuition is an important source of revenue.

          There’s a bit of a circularity there. The only reason that can possibly be true is if U.S. citizens are in general paying lower tuition rates — which indeed they are. But there are very basic market-based reasons why they pay less. And universities have by and large refused to control costs to live within the revenue stream afforded by market-priced tuition, which leads to the desperate scramble you see here.

          Put differently, premium tuition rates from foreign students is only “important” because they’ve allowed it to become so.

  2. >I blogged previously about ICE’s attempt to rescind its COVID-19 related exemptions at the eleventh hour

    This isn’t the eleventh hour. Harvard’s academic year, like many, begins in early September. August 15 or so would be the eleventh hour. Did you want them to decide this last year or something so the new students could choose a different university to apply to? We’re learning more about this disease all the time; waiting for more information was reasonable. You may disagree with the decision, but I don’t think the courts should substitute their judgement for that of the agency whose job it is to make these sorts of rules.

    Also, do we really want to tell government agencies that if they make any temporary exceptions in response to an emergency, they’re stuck with them? Because if that’s the way we start doing things, maybe next time they don’t issue the exception in the first place.

    From the original March document:

    >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.

    I don’t think that you can, in good faith, claim reliance for the fall semester based on something issued during the spring semester with that sort of disclaimer on it.

  3. I think this is a fair compromise.

  4. The colleges and universities have the power to make this go away in a heartbeat: allow in-person instruction. That is the crux of the issue, no?

    This is not about protecting the children. This is about protecting mainly elderly professors with comorbidities like obesity, hypertension, diabetes, etc. The choice these universities are making are for the benefit of the professors, not the students (the customers). This is exactly backwards. Newsflash to academia: In the real world, which you do not apparently inhabit, the customer comes first.

    Maybe the answer here is for professors who cannot (or refuse to) do the required elements of the job (e.g. in-person instruction) to step aside and leave. Guess what? That happens in the real world every single day. Oh…the horror. I am quite sure there is a talented, younger and cheaper pool of professors to take their places. It won’t be the end of the world.

    Let’s not confuse the issue. The visa requirements have not changed; the law passed says in-person instruction is required. The colleges did not say ‘boo’ at that time because they got billions in extra revenue from full-freight paying foreign students who also stayed in college housing (for yet more revenue). Now they don’t like the requirement. Tough luck, fellas. You’ll just have to dig into those endowments and do some buyouts of recalcitrate professors. One weeps; I am sure they’ll learn to code.

    1. Wow, Commenter. You’re weighing a choice about a year of education versus potential lethal consequences for the profs. Lives come first, not customer service. That’s not backwards, that’s the *only* moral choice.

      Asking professors to leave if they aren’t willing to put their lives on the line is shockingly callous.

      And of course, it’s an unneeded choice forced by the government.

      1. This is all about job requirements Sarcastr0. No more, and no less than that. Nevermind the ‘lives are at stake’ horseshit. This disease has a greater than 95% survival rate for 65-69 year olds. If you cannot perform the requirements of the job, then you should leave. Buh bye. I know since you’re in government, that is not your reality. You expect the world to accommodate you and your problems. I get it, because they do that in government. That is not however, the reality of today’s business world. Newsflash: Get over it.

        Social distance + masks + frequent handwashing + good ventilation for air exchange = you can do safe classroom instruction. It is not rocket science.

        The Congress passed the law. The law says in-person instruction. A waiver was granted for a temporary period until we figured this out. Time is up. Now…If you don’t like that, take it up with Congress. But seriously, the bellyaching and ‘lives are at stake’ mantra wears thin.

        The problem is not the lifting of the waiver. The problem is the universities who do nothing to prepare and then whine about it. Just how smart are these people if they cannot figure out how to do safe classroom instruction after 4 months of thinking about it? One wonders.

        1. Job requirements do not suddenly become mortal. That’s just not how we work.
          To be cynical, this is especially not true for white-color jobs with a voice in our society.

          And then you make your own risk analysis in order to justify that this is okay. But your thesis shouldn’t – cannot – require that as an argument. If it’s a work requirement, no threshold of risk should matter. And if there is some threshold of risk above which this is unreasonable, it’s not for you to determine. You quite rightly pointed out that this is not your or the Court’s decision to make.

          The law does not say in-person instruction. And the ‘time being up’ is not some inevitability; there was no clock. This is an arbitrary choice this government made. It is a legal choice, but not a moral one.

          Harvard is telling it’s foreign students to stay overseas. They’re not faking it. A nativist America is not going to do well for long in this world.

      2. If “lives come first” was the only moral choice, nothing would ever get done. You may respond with some hand waving about not an absolute limit or some other waffling, and illustrate your hyperbole.

        Many many occupations are far more dangerous than a professor at the front of a room, lecturing students at least 10-20 feet away, all wearing masks.

        1. Asking profs to sacrifice their lives or their jobs is not a moral choice; I stand by that.

          1. You also stand by not answering the question.

          2. That’s because your a moron who doesn’t understand that all of life is about risk and consequences for choices. By your absolutist viewpoint I and everybody else on the planet could simply stop going to work tomorrow and require they continue to pay me because crossing the street could be asking me to “sacrifice my life” to get to work.

            Colleges could setup on-campus classes with professors doing lectures remotely. It might cost some money but wouldn’t put professors at increased risk, but of course that’s not an option because they’ve only had what 6-7 months to deal with it by the time school starts in the fall? Of course the only option is to provide visas to people who aren’t traveling to the country because that makes sense.

            1. The entire world decided COVID is a risk well above the usual day-to-day risks, so don’t pretend I’m advocating for infinite risk aversion.

            2. Calling someone a moron while using the incorrect form of you’re. Gotta love it.

          3. Asking profs to sacrifice their lives or their jobs is not a moral choice

            Apparently it is for grocery store, food processing, utility, and delivery/logistics folks. Or are you just sitting in the dark fasting until It’s Over?

            1. The hypocrisy is stunning. It is Ok to tell grocery and retail workers, tough luck, get your ass back to work. But professors? Sorry fellas, how about you get your asses back to the classroom. You and your administrators have had months to figure this out. Quit whining.

              1. You’re not wrong about the double standard. It sucks that working class people have to work at a time like this. Their death rates speak to the burden, and as other countries show we could be doing a lot better for them.

                That doesn’t mean we should screw professors to be fair.

                1. Actually, it kind of does. You refuse to work? No Problem. You can be replaced. Enjoy the Freedom everyone else enjoys! And, it’s about freakin’ time you experience reality. I am an essential worker and, if you claim you’re not… the question answers itself.

    2. the law passed says in-person instruction is required.

      No. It. Doesn’t.

      1. Really. Persuasive. Dude.

        1. Read the statute.

          Nothing in the INA says anything at all about in person instruction. All it says is that the person must be a “bona fide student qualified to pursue a full course of study and who seeks to enter the United States temporarily and solely for the purpose of pursuing such a course of study … at an established college, university, seminary, conservatory, academic high school, elementary school, or other academic institution or in an accredited language training program…”

          1. And entry, and hence the visa, is not solely for educational purposes if the education is available without the entry. How complicated is that?

            I think you’re not grappling with just how easy this requirement would be for the University to comply with. Even remote learning with a proctor would be enough. All that is required is that the international students take at least one class requiring their physical presence, and no remote classes that are available for in person classes.

            The universities are refusing to make any accommodation AT ALL.

            1. I think you’re not grappling with just how pointless this rule is. Claiming, “It’s easy to get around it” is not an argument for it, but an argument against it.

              1. Desperate Profs trying to keep their gig, it’s not a good look.

  5. We are seeing the beginning of a huge wave of Covid coming, not just here but also abroad. I don’t think we need to import a bunch of cases and more people who don’t need to actually be here to take their classes on line.

    Maybe Harvard should stop complaining and just tap its gigantic endowment to make up the shortfall of revenue.

  6. If the student’s presence isn’t necessary, why would a VISA be necessary? Simple question; simple answer.

  7. “… mere weeks before most universities are scheduled to resume their sessions…”

    Well, yes. Not months. But 5-6 weeks. Will we expecting months notice for COVID19 responses? If an international Columbia University student has to Zoom into a class from OUS vs somewhere in the Midwest, what’s lost other than a few time zones? Face2Face vs Virtual – once Virtual why in the US?

  8. Many responses are f’ the Students, F’ the taxpayers… I want a cushy no risk job without any way to measure my effectiveness. I’m Educated! I’m Elite! I’m recognized in my Field! You all pretend to deplore the working class having to supply your necessities while, doing nothing to reduce your comfort one iota.

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