Update: The Trump administration has cancelled the proposed directive that would have required foreign students to leave the U.S.
U.S. Immigration and Customs Enforcement (ICE) published a press release on Monday, July 6, citing plans for a Temporary Final Rule in the Federal Register modifying temporary exemptions for foreign students taking online classes for the fall 2020 semester. The mere announcement of a proposal was enough to trigger a lawsuit by Harvard University and the Massachusetts Institute of Technology, seeking to block a potential rule that has not been fully deliberated. This controversy is obscuring an important discussion over foreign students and the legitimate security concerns relating to this population.
It's interesting that these schools would take legal action, rather than their usual public relations route in response to this press release. If a proposed regulation has not been published in the Federal Register, then there is no justiciable controversy. In other words, there is no standing. ICE is merely floating an idea, so legal action seems more like an attempt to grab headlines – which has worked. But how liberal-progressive jurists will view the matter these days is anyone's guess.
The most important point to make regarding the controversy is that foreign students do not need to be issued a student visa in order to take online classes. If a foreign national wanted to watch a virtual tour of the National Gallery of Art, would the U.S. government issue a tourist visa so they could be located in Washington, D.C., while they watch the tour online?
In fact to issue a F visa for online learning violates an existing regulation which allows eligible F students to take a maximum of one class or three credit hours online. The limit on online education is not new. ICE made an exception and relaxed the existing regulation for the spring 2020 semester, when colleges nationwide, after most classes had already started, were forced to turn to online learning due to the coronavirus.
ICE's press release states that foreign nationals "attending schools operating entirely online may not take a full online course load and remain in the United States." But the release also speaks to hybrid alternatives which combine online classes with in-person learning. This is a softening of the longtime rule allowing a maximum of one online course.
Absent almost entirely from the media coverage on this issue is the reason the original online class maximum rule was created. The rule was created after September 11, 2001, when it became apparent that the lack of oversight of foreign students played a key role in providing the terrorists access to the U.S.
Hani Hanjour was issued a student visa, but never showed up for class and enforcement agencies were unaware of his visa violation. Two 9/11 pilots, Mohamed Atta and Marwan Al-Shehhi, entered with visitor visas and then applied to adjust their status to student visas, so they could go to flight school. At the time of the regulatory change, policymakers had also come to recognize that eight years earlier Eyad Ismoil, the driver of the van full of explosives in the first World Trade Center attack, had entered the U.S. as a foreign student.
The USA Patriot Act (P.L. 107-56) and The Enhanced Border Security and Visa Reform Act of 2002 (P.L. 107-173) were passed to expand, strengthen and fund a foreign student tracking system. The legislation mandated the use of an electronic system to collect information on F (academic students), M (vocational students), and J (exchange visitors) nonimmigrants. The system is referred to as SEVIS, and schools are required to update student's records in the system to show their major and location, and to confirm that they have registered for classes, and to record any changes in the student's status.
If SEVIS had existed in 2001, the authorities would have known that Hani Hanjour had used a student visa to attain entry to the country, but was pursuing other activities. In other words, through the SEVIS system, ICE should be able to identify students who violate the terms of their visas.
But American educational institutions are unable to fulfill their obligations to track foreign students, if they are studying online. ICE appears to be willing to relax the rules, allowing them to take additional online classes. But to allow them to stay in the U.S. when it is not necessary to their education violates the intent of the post-9/11 rules.
It is the job of DHS to safeguard the American people, and it is the job of universities and colleges to educate. But the harsh reality is that these academic institutions are businesses – businesses that have become reliant on the money of foreign students. Even so, it's worth remembering that no foreigner has any intrinsic right to enter the U.S., whether as a student or in any other way. It's also worth remembering that institutions of learning are only allowed to accept foreign students with the permission of the federal government.
What's more, foreign students as a group have one of the highest rates of visa violators who overstay their authorized periods of admission. This alone should give policymakers pause to consider the wisdom of loosening existing rules, coronavirus or not.
Still, given the economics at play, the legal action should be no surprise. MIT, with international students representing 10 percent of the undergraduate population and 41 percent of the graduate school, and Harvard, with F visa holders representing 24 percent of the undergraduate and graduate population, have a vested interest in keeping and growing their foreign student population. It should also be no surprise that Northeastern University – with 16,075 foreign students – quickly pledged its support for the lawsuit.
Jessica Vaughan, the Center's director of policy studies, highlights another important issue ignored by the media. "Allowing foreign students to reside in the U.S. to work on an online education creates the opportunity for thousands of student visa holders to enroll in dubious online programs or drop out of programs so they can bypass immigration laws and live here indefinitely under cover of a student visa."
Americans should not have to compromise their security and the integrity of our immigration systems so Harvard and MIT can cushion their budgets with tuition from abroad."
Why should the U.S. issue a visa to a foreign national to come to the U.S. to study online when being in the U.S. is entirely unnecessary? Don't be surprised if the number of signatures climbs on the online petition in favor of re-writing immigration rules and allowing foreign students to stay in the U.S. to take online classes. Remember there are over one million foreign students in the U.S., and this lawsuit is really just a public relations maneuver.