Ivy League, Tech Giants Back Challenge To Student Visa Rules

By Brian Dowling
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Law360 (July 13, 2020, 5:27 PM EDT) -- Tech giants Facebook, Google and others joined the Ivy League and dozens of other schools to oppose the Trump administration's decision to revoke visas for international students enrolled in U.S. colleges studying online during the COVID-19 pandemic.

Twelve groups — representing schools, corporate giants, unions, student government organizations and research societies — filed amicus briefs with the federal court in Boston backing efforts led by Harvard University and the Massachusetts Institute of Technology to block the Department of Homeland Security's July 6 updated guidance on student visas.

The groups urged the court to grant Harvard and MIT's requested injunction to bar the government from deporting or taking other action against international students whose coursework is exclusively online.

The Ivy League schools and dozens of other colleges and universities said the government's new guidance threw their preparations for the fall semester "into disarray."

The government "failed to consider the practical consequences of their last-minute about-face," the schools wrote, urging the judge to find the new guidance "arbitrary and capricious" under the Administrative Procedure Act and block it from taking effect. 

"The serious economic costs for the nation appear to have been given no consideration, nor the likely disruption of progress on federally funded research grants with work being performed by international students," the schools said.  

The schools' brief tells of a student in Cameroon, who attempted to do his Yale University coursework remotely but found the country's infrastructure lacking for distance learning, an Amherst student from Syria who would have to end his education if he were forced to return home, and a Cornell student whose Ph.D. application could be harmed by having to choose in-person courses that are different from his current online classes.

"This pointless burden could have long-term consequences," the schools wrote, calling the directive "an archetype of arbitrary and capricious agency action" that "directly threatens human health and safety."

The loss of international students that this policy would lead to would result in a "sudden loss of critical mass" for institutions of higher education, according to a brief signed onto by the U.S. Chamber of Commerce as well as corporate giants like Facebook, Twitter, Google, Dropbox, LinkedIn, Microsoft, Paypal, Salesforce, Spotify and others. 

"The departure of these students threatens the ability of U.S. educational institutions to sustain critical mass — which they need in order to maintain their standards of excellence, to train the American students who will make up the talent pool available to amici and other U.S. companies in the future, and to perform the research that keeps U.S. businesses on the cutting edge of innovation," the group said in its amicus brief filed before the court's noon Monday deadline.

The businesses said the Department of Homeland Security failed to consider how its decision would trickle down to U.S. businesses and the economy.

"Closing off more than half of all international students from participating in the recruiting pipeline for American businesses will thus harm companies and the entire economy, and will disrupt reliance expectations based on prior policies permitting international students to remain in the United States," the businesses said. 

Other groups filing amicus briefs included a group of 26 cities, towns and counties, a coalition of national labor unions, the Foundation for Individual Rights in Education, the American Council on Education and other higher education groups, the American Physical Society and other research societies, and United Chinese Americans Inc.

On Friday, 180 universities and colleges lodged their amicus brief in the case, arguing the directive was "abrupt," "arbitrary," and "devastating" for schools and students.

Representatives for the U.S. attorney's office declined to comment on the briefs, but the office on Monday pushed back against the schools' efforts saying the new enforcement policy is backed by black-letter law.

Separately, 17 states and the District of Columbia also filed suit against the Trump administration to block the policy from taking effect. 

Harvard and MIT are represented by Ari Holtzblatt, Paul R.Q. Wolfson, Seth P. Waxman, Felicia H. Ellsworth, Mark C. Fleming and William F. Lee of Wilmer Cutler Pickering Hale and Dorr LLP.

The government is represented by Rayford A. Farquhar of the U.S. Attorney's Office for the District of Massachusetts.

The Ivy League schools and other universities are represented by Matthew E. Price, Ishan K. Bhabha, Lindsay C. Harrison and Lauren J. Hartz of Jenner & Block LLP.

 The Chamber of Commerce and businesses are represented by Steven P. Lehotsky of the U.S. Chamber Litigation Center as well as Allison Aviki, Lauren Goldman, Andrew J. Pincus, and Joshua Silverstein of Mayer Brown LLP

The case is President and Fellows of Harvard College et al. v. U.S. Department of Homeland Security et al., case number 1:20-cv-11283, in the U.S. District Court for the District of Massachusetts.

--Additional reporting by Chris Villani, Hailey Konnath and Suzanne Monyak. Editing by Amy Rowe.

For a reprint of this article, please contact reprints@law360.com.

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