Foreign Students Face New Set Of Hurdles Under Visa Rule
Law360 (October 30, 2020, 9:48 PM EDT) — The Trump administration’s proposal to impose fixed time limits on student visas would subject international students to new scrutiny and increase the risk of paperwork errors that could disrupt their education, while piling work onto an already overburdened immigration agency.
The U.S. Department of Homeland Security‘s September proposal, which generated more than 32,000 comments from the public during the monthlong feedback period, would require students to apply to extend their F student visa and J trainee visa statuses after two- or four-year periods if necessary, rather than allowing their visas to remain valid until they finish their studies.
Removing this flexibility would open students up to new scrutiny, and possible denials, midway through their degree programs, creating an air of uncertainty over students who are already sinking tens of thousands of dollars into tuition fees.
Students from certain countries that DHS has found to have high rates of suspected visa overstays, mostly countries in Asia and Africa, would only be granted a two-year visa regardless of their program’s length, requiring them to apply for an extension halfway through undergraduate degree programs.
Students granted four-year visas would also need to request an extension if they take longer to graduate — such as by changing majors — or transition to graduate school. Doctorate programs also frequently last more than four years, requiring most students in those programs to also apply to extend.
Miriam Feldblum, co-founder and executive director of the Presidents’ Alliance on Higher Education and Immigration, a group made up of college and university leaders, compared the proposal to handing a traveler a plane ticket with a connection, without guaranteeing a spot on the second leg of the trip.
“How can a student have confidence that they’ll be able to complete an undergraduate degree, or a doctoral program, if they only can know with a great amount of certainty that their admission period is two years or less? It’s just not possible,” Feldblum said.
The proposed rule was open for comments until Oct. 26 and is now back in DHS’ hands for finalizing. It drew fierce backlash from universities — from elite private schools like Princeton University, Columbia University and Duke University to larger state schools like the University of California and University of Mississippi — which said that the time limits were out of step with the reality of higher education.
“The four-year or two-year visa limit creates an unfair and uncertain environment for international students as it does not recognize the current reality of the time needed for degree completion in many academic programs,” wrote Blair McElroy, an international officer at the University of Mississippi, in a public comment.
According to her letter, roughly three-quarters of international students in doctoral programs over the past five years took more than four years to graduate.
Some universities also warned that the proposal gives DHS too much discretion to deny student visa extensions and force students to cut short their education. Under the proposed rule, a student would need to have a “compelling academic or medical reason” to merit an extension, a phrase the department does not specifically define, other than to say that failing grades or academic probation would not be one.
“The proposed rule would encroach upon academic decision-making,” Ira Katznelson, interim provost at Columbia University, wrote in a public comment. “Granting federal agents this authority would be an unprecedented overreach with serious implications for the principle of academic freedom, which is fundamental to the governance and operation of the American university.”
Aaron Blumberg, a partner at Fragomen, Del Rey, Bernsen & Loewy LLP who represents universities, also raised concerns that immigration officers would question an international student’s decision to get a higher degree, for instance, particularly if the student hailed from a country with a higher rate of visa overstays.
“Maybe the officer says, ‘Why do you need to get a master’s degree?'” he said. “I could see officers have that mentality, and of course call into question where they’re from, what their long-term intent is.”
But the more prevalent concern, Blumberg said, would be the consequences to students who make ministerial errors on paperwork while filing an extension request, especially if they attempt to fill out the extension form without an attorney.
He said that in the last week, he has helped two students who received denials on their requests for post-grad work permits, which foreign students who graduate from U.S. universities are generally entitled to, because of paperwork errors. One of the students had accidentally submitted an outdated version of the form and then didn’t know to request updated filings from the school when later resubmitting with the correct form.
“I see things like this all the time, and if this rule goes into effect, this is going to just multiply,” he said.
In its proposal, DHS said the restrictions are necessary to monitor students and ensure they remain in compliance with their student visa requirements. The department also raised concerns about the “potential for increased risk to national security” if student visas don’t have fixed end dates.
“This change would provide the Department with additional protections and mechanisms to exercise the oversight necessary to vigorously enforce our nation’s immigration laws, protect the integrity of these nonimmigrant programs, and promptly detect national security concerns,” the filing says.
Immigration lawyers, however, say the proposal to require students to apply for extensions from U.S. Citizenship and Immigration Services, a DHS component agency, would represent duplicative efforts to crack down on student visa programs. Those programs are already overseen by U.S. Immigration and Customs Enforcement, another unit of DHS.
Students and universities can update their statuses in a portal, known as the Student and Exchange Visitor Information System, which DHS can access.
“Part of the reasoning from the government’s point of view in doing this is to crack down on overstays, and they feel that by instituting this specific expiration date, it’ll help them to prevent, monitor and track students who overstay. But in reality, F and J visas are really the most tracked visas in the U.S.,” Blumberg said.
The extra paperwork for thousands of international students requesting extensions would in turn add more work for USCIS, which is already overwhelmed and running out of money, causing longer processing times for visa applications already.
“This is a recipe for disaster,” said Susan Cohen, who chairs the immigration practice at Mintz Levin Cohn Ferris Glovsky and Popeo PC and works with students and universities on immigration matters. “Having to rely on USCIS to timely make decisions on these applications is going to be a disaster in my opinion.”
Combined with the Trump administration’s other policies targeting foreign students and recent graduates — including its recent proposal to prioritize higher-paid employees when handing out limited work visas — the proposal could ultimately deter foreign citizens from choosing to study in the U.S. and push them instead to universities in countries with more welcoming immigration systems.
International student enrollment in the U.S. has already declined by more than 10% since President Donald Trump took office, according to a March report by NAFSA: Association of International Educators.
“I think this will deter a lot of the best and the brightest who don’t want to be made to feel like they’re threats, and who have many options at universities in Canada and Europe and around the world that are more than willing to open their arms to those students,” said Aaron Reichlin-Melnick, policy counsel at the American Immigration Council.
This deterrence effect could also further drive the higher education community to drag the federal government to court over these types of policies. Universities have already successfully fought attempts by the administration to force foreign students to leave the U.S. if their universities move courses online due to the coronavirus pandemic, and to implement a policy that would have exposed students to harsh immigration penalties if they unknowingly violated their visa statuses.
And universities have filed litigation challenging new work visa restrictions that would disproportionately target younger applicants.
“This is an administration that has often taken an aim at higher education in a variety of ways,” Reichlin-Melnick said. “Universities have realized that they need to throw their weight behind challenges to these policies because it greatly affects not only their own students, but universities’ own budgets.”
–Editing by Aaron Pelc and Emily Kokoll.
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