Week 40: ICE unveils new rules for international students
Immigration news, in context.
This is the fortieth edition of BORDER/LINES, a weekly newsletter by Felipe De La Hoz and Gaby Del Valle designed to get you up to speed on the big developments in immigration policy. Reach out with feedback, suggestions, tips, and ideas at BorderLines.News@protonmail.ch.
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This week’s edition:
In The Big Picture,we look at the administration’s new rules concerning whether international students can take online classes and remain in the country.
In Under the Radar, we examine recent border apprehension numbers and their significance.
In Next Destination, we discuss proposed regulations that would further block even the small amount of migrants still able to tender asylum at the southern border.
The Big Picture
The news: ICE blindsided international students with F and M visas, and the schools they’re attending, by announcing a change to exemptions it had previously issued to rules governing the ability of these students to take online course loads. When published, the new rules would force students to leave the country or transfer schools if they were participating in an online-only program.
What’s happening?
While U.S. Citizenship and Immigration Services (USCIS) handles the majority of immigration documentary processing, and the State Department issues student visas abroad, it is actually ICE that has the statutory and regulatory responsibility of collecting information on and overseeing the compliance of international students in the United States. There are several programs that fall under the general umbrella of international studies, all defined along with the rest of the nonimmigrant statuses in 8 USC § 1101(a)(15).
Historically, the largest volume by far have been F-type visas for academic studies at an accredited school, though the number of such visas issued per fiscal year has dropped precipitously in the last five years. The vast majority of F holders are in college and postgraduate university programs, though a small number are also issued to students in K-12 schools. In fiscal year 2019, Fs were surpassed by J-type visas, which are technically for “exchange visitors” who can be engaged in everything from university studies to working as an au pair. Both hovered around 390,000 visas that fiscal year. There is a much smaller program, the M-type visa, for vocational studies, which saw about 9,500 grants in the 2019 fiscal year. ICE’s recent announcement focused on F-1 and M-1 students.
Under 8 USC § 1327, ICE (the statute references the attorney general, but the functions were ported over with the creation of the Department of Homeland Security) must collect information from students and educational institutions that includes their field of study and certification that the student is enrolled and “maintaining status as a full-time student.” It does this through a division called the Student Exchange Visitor Program (SEVP), which along with the Department of State runs the Student and Exchange Visitor Information System (SEVIS) system to intake and manage the data.
The specifics of compliance aren’t defined in law, so they’re defined in regulation. In this case, what’s relevant are 8 CFR §§ 214.2(f)(6)(i)(G) and (m)(9)(v), which are part of sections that lay out what is meant by “full course of study” for F and M visas, respectively. F-1 students must take “no more than the equivalent of one class or three credits per session, term, semester, trimester, or quarter” if the class is “on-line or through distance education and does not require the student's physical attendance for classes, examination or other purposes integral to completion of the class” (emphasis ours). This is significant because it makes clear that classes do not have to be fully in person to be acceptable as in-person classes. As long as some “integral” component is in-person, it can fulfill the requirement. (There is an exception for students in a language study program, who cannot have any online courses count towards their course requirement). M-1 students cannot count any all-online courses towards their requirements.
In March, ICE had decided to waive these regulatory requirements as the coronavirus spread and many schools took their programs online. For the spring and summer semesters, the agency informed schools that it would permit online courses to be counted towards the study requirements without limit, and would maintain that position for the “duration of the emergency.” As such, many schools were already planning for the fall semester with the understanding that their international students would be shielded from the in-person requirements. Instead, ICE published the announcement, which comes in advance of a yet-to-be-published formal temporary final rule in the Federal Register.
The rule will contain more specifics, but the release generally notes that F-1 and M-1 students cannot remain in the country if they attend institutions that are moving their programs entirely online; as per the regulations mentioned above, online classes with in-person components could avoid being counted as fully online. For F-1 students in schools taking a “hybrid” approach, i.e. one with a mix of in-person and online classes, the limit on online classes is again lifted, meaning they can take more than the one class/three credit allotment provided that the school certifies the student is not taking an online-only course load and that they are taking the minimum number of online classes possible to fulfill their degree requirements. This applies on a rolling basis, meaning any student whose course load changes in such a way that they find themselves in all-online classes would have to transfer schools or leave the country. There are no additional allowances for M-1 students. In schools that are opening fully, offering a full slate of in-person classes, the standard pre-pandemic regulations apply.
There has been a good amount of confusion about what this means for students postgraduate programs such as PhDs, which often involve work that is not strictly coursework, for example lab research and dissertations. The requirements for a full postgraduate course of study are more flexible than for undergraduates, who must complete “at least twelve semester or quarter hours of instruction per academic term.” For postgraduates, school officials have more latitude to certify that students are taking a full course, and research credits for regulatory purposes are treated in basically the same way as any other academic credits. The rule will clarify this, but in theory the in-person component can be fulfilled by being in a lab, meeting with dissertation advisors periodically, or otherwise doing some crucial part of the program in person. Like other F-1 holders, however, postgraduates will not be able to engage in their academic activities entirely online.
How we got here
The Student and Exchange Visitor Program, like so many other obscure aspects of immigration policy, launched in the wake of the 9/11 attacks and the implementation of the Patriot Act. The goal was to have a centralized way of keeping tabs on international students, as one of the people involved in the September 11 attacks had entered the U.S. on an F-1 visa. (One of the people involved in the 1993 truck bomb at the World Trade Center had also entered the U.S. on a student visa, which had since expired.) Legislation authorizing it dates back to the 1996 Illegal Immigration Reform and Immigrant Responsibility Act, but the program wasn’t created until years later.
The numbers of international students attending U.S. schools exploded in the latter half of the 20th century. According to the Migration Policy Institute, there were only 26,000 international students enrolled at U.S. schools in the 1949-50 school year. By the 2016-17 year, that number had risen to 1.1 million. As the numbers increased, so did the controls and regulations on how they could live and study in the U.S. Student statuses are “nonimmigrant,” meaning there’s no way to convert them into permanent residency, but lawfully admitted students can adjust their status to resident via the standard methods—primarily work and family visas—without leaving the country.
SEVIS, the program managed by SEVP, certifies universities and other schools and dictates whether they can enroll international students. SEVP made headlines last year after ICE arrested dozens of international students enrolled at the University of Farmington, a fake college that ICE had set up in 2015 as part of a sting organization. Prosecutors claimed the students were using the university “as a ‘pay to play’ scheme” and knew it wasn’t a real college. According to charging documents, international students paid to enroll in the fake university so they could stay in the U.S. and maintain their student status. But some of the students embroiled in the scheme say they were duped, and others who transferred out of the university after realizing it didn’t offer any in-person classes were arrested anyway.
The Farmington sting, though extreme, shows the hoops international students have to jump through to maintain their status in the U.S. Many students transferred to Farmington after their own universities had lost accreditation, since being enrolled at a non-accredited institution would jeopardize their status in the country. Farmington was listed as a SEVP-approved university on the DHS website, which could have led students to enroll assuming it was a legitimate institution. But prosecutors maintain that students should have known better — not necessarily before enrolling, but certainly after realizing the university didn’t offer what it claimed to.
According to Vox, 80 percent of the students ICE arrested as part of the Farmington scheme were allowed to leave the country without going through deportation proceedings. Others, however, faced both deportation and criminal charges for their alleged involvement.
DHS set up another fake university in 2015, called the University of Northern New Jersey. Students who were caught up in that earlier sting similarly said they thought it was a legitimate institution because it had been listed on both DHS’s website, the New Jersey Education Department’s website, and the Accrediting Commission of Career Schools and Colleges. Some students who transferred out of that university after realizing it was fake also lost their status, including several whose status was jeopardized not because they knowingly committed fraud, but because they had attended a fake university for more than 45 days.
The administration’s new rule appears to be part of a broader attempt to strong-arm universities into re-opening, something Ken Cuccinelli, the acting deputy secretary of DHS, admitted as much in an interview.
That said, the right has recently begun expressing animus towards international students, particularly those from China. In May, Arkansas senator Tom Cotton and Tennessee senator Marsha Blackburn introduced the SECURE CAMPUS Act, a bill that would limit the fields Chinese students could study in the United States. Specifically, the bill would prohibit Chinese students from enrolling in graduate or post-graduate STEM programs. The bill was part of broader racist backlash amid the coronavirus pandemic, with Cotton and Blackburn claiming that Chinese students come to the United States to “steal science, technology, engineering and manufacturing secrets from U.S. academic and research institutions.”
What’s next?
In guidance distributed to schools, ICE asked them to submit an operational plan by July 15 if they planned to move to an online-only model or close completely for the fall semester. Many schools around the country had yet to make any final determinations on the structure of their semester, so barring any kind of injunction, they might be forced to make that decision within five days. The agency also demanded that schools that were going hybrid or going back to their regular functioning submit new paperwork for all of their international students—certifying that they would not be taking an online-only course load—by August 4, which by default means they’re expected to finalize their course schedules, and students are supposed to enroll in those courses prior to that deadline.
The announcement is sparse on enforcement, except for the menacing line that students in online-only programs who don’t transfer or leave the country “may face immigration consequences including, but not limited to, the initiation of removal proceedings.” It is very unlikely that ICE will actually attempt to put what could be hundreds of thousands of international students into the overburdened immigration court system. Instead, it may simply move to block their ability to keep studying or working in the country. There have been some misconceptions about what would happen to students’ visas if they did leave the country to study at a school that moved online; there is no indication that visas would be cancelled, and in fact they could probably be used to return to the United States if and when the school reinstated in-person programs. The caveat here is that, according to the statement, the Department of State will not issue visas for students enrolling in an online-only program, so an expired visa probably could not be renewed unless programs went back to in-person instruction.
Just two days after the policy was announced, Harvard and MIT filed a request for an injunction with the district court in Massachusetts, seeking to have the rule struck down on the grounds that it violates the Administrative Procedure Act. Such claims have formed the basis for numerous administration losses in court, including the Supreme Court’s ruling preventing it from dissolving the DACA program, a ruling this legal filing cites heavily. An arbitrary and capricious claim may face an uphill battle given that the regulations are essentially a return to the regulatory status quo after ICE suspended it in March, though the argument that ICE failed totally to take into account the planning that schools and students had already undertaken has some strength. As of now, it’s up in the air whether it will be stopped by the courts. ICE, for its part, is unlikely to reconsider, especially since the president has made it a pet issue to push for schools to reopen fully in the fall.
Under the Radar
Border apprehensions increase, but expulsions are still the norm
Arrests of migrants along the U.S.-Mexico border increased by 40 percent over the last month, the Washington Post reports. Though that may sound like a huge increase, that figure alone doesn’t tell the whole story. There were 32,512 apprehensions at the border in June compared to 23,142 the previous month — but nearly 90 percent of those migrants were quickly “expelled” back to Mexico.
As a reminder, the Trump administration effectively closed the border to all virtually unauthorized migrants in April under the auspices of an order issued by the Centers for Disease Control and Prevention. The new policy requires border officers to “expel” Mexican nationals — as well as nationals of Honduras, Guatemala, and El Salvador — back to Mexico rather than processing them at all, unless they affirmatively say they fear being tortured in their home country. Even then, being let into the U.S. is particularly tricky.
Chad Wolf, the acting secretary of the Department of Homeland Security, bragged about the high expulsion numbers on Twitter, adding that most migrants are expelled “within 120 minutes.” Last week, Border Patrol agents in the El Paso sector ran over a Mexican migrant, injuring his leg and torso, according to El Paso Matters. The man was eventually expelled back into Mexico.
Next Destination
Proposed rule could deny asylum to migrants from countries with active disease outbreaks
The Trump administration proposed a new rule that would disqualify migrants from obtaining asylum or other forms of protection if they come from a country with a disease outbreak. The proposal, first reported by the Washington Post last week, would apply to any migrant who comes from a country where an outbreak is “prevalent or epidemic,” the rule reads. Migrants would be ineligible for asylum or withholding of removal but could still apply for protections under the Convention Against Torture.
If it goes into effect as written, the new rule would affect a small percentage of asylum seekers at the moment — not because most would be exempt, but because almost all migrants encountered at the border are currently being expelled due to the Centers for Disease Control and Prevention order that shut down the border. It would, however, affect the roughly 10 percent of migrants who aren’t expelled under the CDC order.
Of course, the U.S. is experiencing a much worse coronavirus outbreak than any country asylum seekers hail from. In fact, the U.S. is experiencing the worst coronavirus outbreak in the world. In the unlikely scenario that U.S. infection rates drop precipitously and the administration lifts the CDC order, the proposed rule would have much broader effects. The rule, like so many other Trump administration immigration policies, isn’t meant to be a stand-alone deterrent: it’s part of an interlocking series of obstacles meant to make asylum all but impossible.
There’s a 30-day comment period for the proposed rule. After that, it will likely be published as a final rule in the federal register — and will likely face legal challenges.