FYI: Science Policy News

Lawsuits Challenge ICE Demand That Students Attend Class In Person or Leave US

JUL 10, 2020
Universities are suing to block a new policy by U.S. Immigration and Customs Enforcement that would force international students to leave the country if they can only take online classes in the fall. Together with scientific societies, they have warned the policy could have catastrophic effects on the U.S. higher education system and the lives of countless students.
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Director of FYI

ICE officer

An ICE officer patrols a removal flight.

(Image credit – U.S. Immigration and Customs Enforcement)

Universities and scientific societies have responded swiftly and aggressively to a surprise announcement on Monday by U.S. Immigration and Customs Enforcement (ICE) that it will force international students to leave the country if they can only take online classes in the fall. The policy has instantly upended universities’ plans for the fall semester and cast a cloud of uncertainty over hundreds of thousands of visiting and incoming students.

MIT and Harvard University sued ICE on Wednesday in a bid to block the policy, arguing it is a capricious move designed to force schools to open. The University of California System plans to follow suit, and the State of California filed its own lawsuit on Thursday. Dozens of universities have announced plans to file briefs in support of the cases.

A group of 66 U.S.-based scientific societies, including several AIP Member Societies, have also condemned the policy, arguing that together with other Trump administration moves to restrict visas, it could severely impair the ability of the U.S. to compete for international talent.

(Update: ICE has since rescinded the policy and issued updated guidance that allows international students to remain in the U.S. even if their classes are 100% online. However, it will still prevent new international students from entering the country if they can only take online classes in the fall.)

Lawsuit charges the policy has created ‘chaos’

The ICE policy replaces earlier emergency guidance issued in March that enabled students on F-1 and M-1 visas to remain in the U.S. if their schools switched to remote instruction due to the COVID-19 pandemic. The new policy, which ICE plans to implement through a “temporary final rule,” states that such students cannot take a full online course load in the fall and must instead either transfer to a school that is offering in-person instruction or leave the U.S. and take classes online from abroad.

“This approach balances students’ ability to continue their studies while minimizing the risk of spread of COVID-19 in our communities by ensuring that individuals who do not need to be present in the United States are not physically here,” ICE stated in an FAQ document on the policy. Universities that plan to offer entirely online classes or programs must notify ICE of their decision by July 15.

The lawsuit filed by MIT and Harvard states the policy came as a complete surprise to universities, many of which were just finalizing their plans for the fall.

“Immediately after the Fourth of July weekend, ICE threw Harvard and MIT — indeed, virtually all of higher education in the United States — into chaos,” the lawsuit states, arguing the move blindsided universities in part because the March guidance from ICE stated it would apply for “the duration of the emergency.”

While the new ICE policy describes the emergency guidance as an action taken “during the height of the COVID-19 crisis,” the lawsuit notes the current rate of new infections exceeds the level in March. In describing the risks of reopening too soon, it notes the median age of faculty in Harvard’s Faculty of Arts and Sciences is over 60, and that they therefore face a higher risk of severe complications or death from COVID-19.

The lawsuit adds that for many students, “returning to their home countries to participate in online instruction is impossible, impracticable, prohibitively expensive, and/or dangerous.” It notes the extreme difficulty of transferring schools just weeks before classes are to begin, the financial burdens of broken leases and “exorbitant” air fees, and the impracticality of taking online courses in vastly different time zones and regions with unreliable internet.

Students who stay in contravention of the policy could face detention and formal removal that would bar them from the country for a decade. According to ICE, there were more than 1 million students on on F-1 or M-1 visas in calendar year 2018. The lawsuit states about 5,000 of Harvard’s more than 23,000 undergraduate and graduate students are on F-1 visas, as are close to 4,000 of the 11,500 students at MIT.

In an interview Tuesday with CNN, Acting Deputy Secretary of Homeland Security Ken Cuccinelli defended the policy as “expanding the flexibility massively” over the rules that apply in normal times, which he said only allow international students to take up to one course online. “Anything short of 100% online is the direction we’re headed,” he continued, adding that the new policy will “encourage schools to reopen.”

Pointing to this last remark, the lawsuit states,

By all appearances, ICE’s decision reflects an effort by the federal government to force universities to reopen in-person classes, which would require housing students in densely packed residential halls, notwithstanding the universities’ judgment that it is neither safe nor educationally advisable to do so, and to force such a reopening when neither the students nor the universities have sufficient time to react to or address the additional risks to the health and safety of their communities. The effect — and perhaps even the goal — is to create as much chaos for universities and international students as possible.

Today, U.S. District Judge Allison Burroughs announced she will hold a hearing July 14 on whether to block implementation of the policy.

Motives further questioned by Congress and scientific societies

Yesterday, more than 200 Democrats in Congress called on ICE to rescind the policy in multiple letters. One signed by nearly 100 members states they are concerned the policy is “motivated not by public health considerations, but rather by animus toward immigrants, by a goal of forcing schools to reopen even as COVID-19 cases are rising, and by a desire to create an illusion of normalcy during this unprecedented public health emergency.” As evidence, they point to Cuccinelli’s remarks and a tweet on Monday by President Trump himself stating, “SCHOOLS MUST OPEN IN THE FALL!!!”

Trump has also threatened to withhold federal funding for schools that do not reopen. Today he tweeted ,

Now that we have witnessed it on a large scale basis, and firsthand, Virtual Learning has proven to be TERRIBLE compared to In School, or On Campus, Learning. Not even close! Schools must be open in the Fall. If not open, why would the Federal Government give Funding? It won’t!!!

Congressional Republicans have so far been largely silent on the ICE announcement. One exception is Sen. Susan Collins (R-ME), who called for immediately rescinding the policy in a letter on Wednesday. “While I can understand the imposition of reasonable restrictions on travel from foreign countries in the midst of a pandemic, the guidance makes no sense with respect to students who are already in the U.S.,” she wrote.

Scientific societies are uniformly denouncing the policy. The letter signed by 66 societies states they are “gravely concerned that this latest proposed ICE action will not only cost the U.S. the current cohort of future innovators now enrolled in U.S. schools, but could permanently destroy one of America’s main competitive advantages: our ability to attract the world’s best and brightest to study here, work here, and ultimately create America’s industries and jobs of the future.”

The American Chemical Society, one of the letter’s signatories, wrote separately that the policy compounds its concerns about Trump’s recent proclamations restricting visas for Chinese graduate students and suspending the H-1B visa program . Noting the importance of international students to the STEM enterprise, ACS stated that in 2018 32% of master’s degrees and 36% of doctoral degrees in chemistry were awarded to students on non-immigrant visas.

Several AIP Member Societies that signed the letter also issued individual statements this week.

The American Physical Society wrote to its members on Wednesday expressing “outrage” at the ICE policy, stating, “This is only the latest in a series of executive orders, proclamations, and rules, that isolates the United States research community from the rest of the world based on the false belief that our nation can only be secure if we keep the rest of the world away from us.”

APS added that the J-1 visa and Optional Practical Training programs, which were not affected by the recent proclamations, are “still under threat” and that it will soon launch an advocacy campaign centered on protecting them.

American Astronomical Society President Paula Szkody also addressed her society’s members on Wednesday, calling the administration’s recent actions “devastating to many early-career scientists.” She wrote, “The Trump administration is determined to dismantle our immigration system, regardless of the humanitarian or economic impacts. I admit that realistically the AAS likely won’t be able to succeed where many other more powerful organizations have failed, but we must do what we can to demonstrate our opposition.”

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