The Federalist, June 9, 2022
School officials across the country are undoubtedly paying close attention to a lawsuit against Columbia University filed by a former employee who claims she was fired for refusing to act in an unlawful manner and lie to the U.S. Department of Homeland Security (DHS) about the status of foreign students.
The implications of this lawsuit are significant for Columbia University because if it turns out the allegations are true, it is likely Columbia will lose the ability to enroll new foreign students for at least a year. It also raises the question of whether DHS is conducting an appropriate level of oversight on more than 15,000 campuses it has certified to enroll foreign students.
According to the lawsuit, a Columbia University employee working as a Designated School Official (or DSO, a school’s liaison with DHS) was directed by Columbia’s leadership to “process immigration documents on behalf of a group of potential students from South Africa without the necessary documentation, including evidence of funding and full-time engagement in a prescribed program, as required by federal regulations.”
DSO Yocasta Brens claims that Columbia’s “Provost, Dean and Vice President for Academic Affairs, Dr. Stephanie J. Rowley, accused Brens of being too ‘inflexible’ in the application of federal regulations.” Brens claims that she and her staff “were frequently asked to ‘bend’ the rules in order to keep the enrollment of international students at a high level” and were directed to “certify that certain international students were enrolled full-time when they were, in fact, not full-time students” and “extend students’ immigration documents when they did not qualify based on federal requirements” and “ignore the lack of English language proficiency.”
Created to Address Terrorist Threat
The national security-related aspect of what is alleged to have taken place cannot be overstated. A division within U.S. Immigration and Customs Enforcement called the Student and Exchange and Visitor Program (SEVP) has the responsibility of certifying schools to enroll foreign students and ensuring that they comply with important national-security-focused regulations. Schools failing to abide by these regulations may have their certification withdrawn.
DHS relies heavily on DSOs to ensure that information on foreign students is properly reported. This information includes academic records, addresses, and whether the student is maintaining a full course of study, for example. These are critical roles created by regulation and the central purpose is to ensure that DHS is able to keep tabs on foreign students.
This information is maintained in a DHS national security database created in the wake of the terrorist attacks of September 11, 2001. The database exists precisely because DHS needs to know if and when a foreign national fails to maintain full-time enrollment at a school.
If a person entered the United States under the pretense of being a student but is instead intending to work illegally or engage in a terrorist attack, federal law enforcement needs to figure it out quickly. Schools that fail to take their role seriously create significant security threats to our nation.
Certification Can Be Withdrawn for Bad Record-Keeping Under the regulation, “SEVP certification of a school or school system … will be withdrawn … if the school or school system is determined to no longer be entitled to certification for any valid and substantive reason” (emphasis added). The phrase “any valid and substantive reason” is broad enough to cover what is alleged to have taken place at Columbia, but the regulation includes a list of examples that constitute a reason for withdrawal, and the first one on the list is failure to keep records where the “student is not pursuing a full course of study.”
Another reason includes issuance of a “Certificate of Eligibility for Nonimmigrant Student Status” — the central document for all foreign students — “to aliens who will not be enrolled in or carry full courses of study.” There’s also a catch-all reason SEVP will withdraw certification of a school: “Conduct on the part of a DSO that does not comply with the regulations.” SEVP cannot ignore what is alleged to have occurred without undermining national security and the legitimacy of the foreign student program as a whole.
SEVP has little choice but to serve Columbia with a Notice of Intent to Withdraw if it uncovers any “information” that Columbia “may no longer be entitled” to certification, as regulations require. There is an opportunity for Columbia to respond, and it would effectively launch a deeper fact-finding effort.
Doubts DHS Is Doing Its Job
The claims against Columbia University strike at the core of SEVP’s mission and raise very serious questions about whether DHS has the capacity to manage all of the schools it has certified to enroll foreign students. If these allegations are true, they will have only come to light because of an honest DSO with a strong ethical core and a willingness to sue, rather than as a result of an audit by SEVP. If this is happening at an Ivy League campus, it’s hard not to imagine it happening at other schools.
SEVP has the ability to raise fees to hire as many Homeland Security Investigations agents as needed to provide proper oversight. In fact, a regulation that would have resulted in the hiring of such agents was initiated under the Trump administration, but the regulation was stopped within weeks of the Biden administration taking over.
As of this writing, SEVP has certified more than 15,000 campuses to host foreign students (the full list is here) and is tasked with overseeing 1,236,748 foreign students. There were also 240,479 exchange visitors in the United States in 2021. Columbia University ranks third in the nation for the most foreign students with 19,099, slightly behind only New York University (19,389) and Northeastern University (19,485).
SEVP must immediately launch an investigation of Columbia’s foreign student program. Congress would be wise to follow this closely in light of the significant national security implications. More analysis of the case is available here.