Can the lawsuit filed by Harvard and MIT block new U.S. visa rule?
By Yu Jing, Hu Yiwei
A federal hearing asking for a temporary halt of new U.S. visa rules on international students in a lawsuit filed by Harvard and the Massachusetts Institute of Technology (MIT) is set to take place on Tuesday afternoon EST time.
The lawsuit challenges the new rule issued by the U.S. Immigration and Customs Enforcement (ICE) agency that bars international students attending online-only classes from residing in the U.S. After the lawsuit was filed last Wednesday, more than 200 universities have signed court briefs in support of Harvard's and MIT's legal challenge.
The lawsuit argues that the ICE rule is "arbitrary and capricious." Given that universities and students have made decisions based on ICE's previous statement that international students can remain in the country even if their studies have moved entirely online, the new rule would throw virtually all higher education in the U.S. into chaos, according to the filing by Harvard and MIT.
"They are hoping that the judge who gets the case agrees that the rule doesn't make any sense; that is what it means to say something is 'arbitrary and capricious," said Bill Ong Hing, professor and director of the immigration and deportation defense clinic at the University of San Francisco.
They are arguing that foreign students are good for the U.S. for many reasons, not just because of tuition fees, but because they also contribute their knowledge, Hing added.
According to a report issued by the State Department and Institute of International Education, about 1.1. million foreign students attended U.S. higher education institutions in the 2018-19 school year. They often pay more than their in-state counterparts, and are a major source of revenue for American universities.
New York, California, Massachusetts are among the states where financial contributions from international students are the highest.
"This sets a horrible precedent for international students looking to come to the U.S. and a lower amount of international students in the future means drastic tuition hikes for local students as well," wrote students at the University of Washington Seattle who created a class-swap google doc to facilitate international students registering in-person classes.
In a defense filing of the new rule, the U.S. Department of Homeland Security that oversees ICE wrote that a solely online program of study provides a non-immigrant student with enormous flexibility to be present anywhere in the U.S. and engage in activities other than full-time studying.
But it does not specify why the presence of non-immigrant students would pose a security risk to the U.S., or take away jobs from American citizens.
The new rule puts schools to an impossible choice, according to the filing by Harvard and MIT, of losing international students who bring immense benefits to the school or offering online classes that contradict the schools' judgment on public health.
The lawsuit filed by Harvard and MIT seeks a temporary restraining order and preliminary and permanent injunctions that will prevent the rule from taking effect. It asked the court to issue a decision by Wednesday when schools are required to certify that students will take in-person classes as the new rule stipulates.
If there is a favorable ruling on behalf of the university, it will stop the new rule from being enforced, according to Hing. "I think we are going to see this stopped very quickly within the next 10 days," he noted.
But it is important to remember that if the judge agrees to stop it, the Trump administration can still ask for an appeal and if the Court of Appeals agrees to stop it, then they may ask the Supreme Court in an emergency to let the rule go forward, he added.
The lawsuit filed by Harvard and MIT also alleges that the new rule violated the Administrative Procedure Act, a law that stipulates the ways in which federal agencies may make and enforce regulations.
"Usually when you have a rule like this, you have to give people an opportunity for 30 days to comment on the proposed rule and they did not do that," said Hing.
After Harvard and MIT first issued the legal challenge against the new rule, California filed a suit against the order, followed by Johns Hopkins University in Baltimore. In the latest, 17 states and the District of Columbia filed a lawsuit on Monday against the Trump administration.
If other schools ask Harvard and the University of California to join the lawsuit, that may be helpful because there will be more plaintiffs. But if they file their own lawsuit, then that is even better, because there will be a higher chance of success in stopping the new rule, according to Hing.
As the lawsuit is pending, schools across the country have managed to come up with ways to meet the new federal regulations. Among the ten schools that host the most international students, all have vowed to offer a range of options, including face-to-face, online and hybrid classes.
Some students have taken matters to their own hands, by organizing Google docs to help domestic students swap in-person classes with international students. Petitions to stop the new rule have been launched in at least 28 universities, with many calling for universities to create free or one-credit in-person class to help international students comply with the new rule.
Right now, it is important that international students should put pressure on their universities to offer more classes in person in a safe manner, Hing said when it comes to his suggestion for international students.
"Foreign students contribute their own ideas, their own experiences. And that is what the U.S. is proud of."