Despite ICE Retreat, Threat To Foreign Students Remains

By Suzanne Monyak
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Law360 (July 15, 2020, 8:32 PM EDT) -- The Trump administration has backed off plans to bar international students from living in the U.S. if their universities move courses online during the pandemic, but its travel restrictions and consular closures still pose uncertainty for students stuck overseas.

U.S. Immigration and Customs Enforcement's now-rescinded July 6 guidance, which required foreign students to take at least one in-person course to enter or stay in the U.S., had wreaked havoc among universities just weeks before the start of the fall semester, causing panic among students and drawing an onslaught of litigation across the U.S.

But while the immediate threat that foreign students will be kicked out of the U.S. if all of their classes are online has now subsided, the administration's other restrictions — including the president's various travel bans and shutdown of visa services abroad — continue to present barriers for foreign students still outside the U.S. who hope to attend school in America this fall.

Miriam Feldblum, executive director of the Presidents' Alliance on Higher Education and Immigration, which supported a legal challenge to the July policy, said her organization will continue to advocate for international students.

"Yes, we're very glad that these nine days of chaos are over," she said. "But the fight for international students — and to really make clear that they're welcomed, valued and belong in the U.S., that they're important contributors to campuses and to communities — I think we're in the middle of it."

ICE's retreat, which followed a lawsuit in federal court by Harvard University and the Massachusetts Institute of Technology, marked a rare reversal for an administration not known to back down on its restrictive immigration measures.

Universities and students quickly celebrated Tuesday's victory. MIT President L. Rafael Reif wrote in a message to students that ICE's decision to rescind the guidance "comes as an enormous relief."

But attorneys and stakeholders say key questions remain regarding the fate of foreign students abroad.

A day after the federal judge overseeing the universities' legal challenge announced that the agency had agreed to drop the policy, ICE published a new FAQ, largely reverting to measures implemented in March to offer flexibility to international students whose universities moved online.

Typically, student visa holders may not take more than one course online. But the new FAQ hasn't "really addressed what new students can do in a way that matches reality," said Feldblum.

For instance, the new FAQ says that if new students "have not arrived in the United States, they should remain in their home country," parroting the March guidance meant to address student needs when schools closed mid-semester in the spring, without addressing what new incoming students should do if their universities are holding in-person classes.

It's also unclear if foreign students could lose eligibility for Optional Practical Training, a work program for recent graduates of U.S. universities, if they can't enter the U.S. and are forced to spend a semester abroad.

"I wouldn't say that we're done yet," said Theresa Cardinal Brown of the Bipartisan Policy Center, who previously worked for U.S. Customs and Border Protection and the U.S. Department of Homeland Security.

ICE could attempt to issue new guidance further restricting foreign students, which could send attorneys in the Harvard case back to court if universities challenge it again. The case remains open at the court, and Reif promised in his message Tuesday "to protect our students from any further arbitrary policies."

President Donald Trump hinted at a future action on merit-based immigration during a Rose Garden briefing on Tuesday, though details remain murky and it's unclear if foreign students would be targeted.

An ICE spokesperson didn't respond to a request for comment Wednesday on whether the agency would attempt to issue new guidance that could further restrict foreign students.

Brown said she "wouldn't put it past" Trump to hand down another proclamation targeting international students, following his previous two orders barring certain green card holders and foreign workers from entering the U.S.

"President Trump loves his executive orders," she said.

But others were skeptical that the agency would risk drawing more public blowback and losing in court.

"Anything is possible, but I would hope that ICE and the administration have learned from this experience that it's not so simple," said Mark D. Koestler, co-chair of Kramer Levin Naftalis & Frankel LLP's immigration group, describing ripple effects on students, universities and businesses. "I would really hope that the administration would think twice before acting in this realm again."

But the hurdles for foreign students outside the U.S. don't start and stop with ICE's restrictions. U.S. consulates across the globe have been largely closed since March, suspending visa processing for all foreigners, including students.

"Practically speaking, I think folks outside the U.S. who don't have their visas were facing an uphill battle anyways," said Susan Wehrer, a partner at Berry Appleman & Leiden LLP.

The U.S. Department of State said on Twitter earlier this month that U.S. consulates and embassies "may begin the phased resumption of routine visa services depending on local conditions" starting July 15. A State Department official told Law360 on Wednesday that the resumption of full visa services "will occur on a country-by-country basis."

"As post-specific conditions improve, our missions will begin providing additional services, culminating eventually in a complete resumption of routine visa services," the official said.

The phased reopenings could be good news for students, but interview slots will likely fill up fast, which could pose further challenges to students who must enter the U.S. within 30 days of their program's start date.

And even for those students who can snag an interview slot in time for school to start, many face the Trump administration's pandemic-related travel restrictions barring foreigners who have been in the United Kingdom, the Schengen region of Europe, China, Ireland and Iran in the past 14 days from entering the U.S.

Several U.S. embassies in Europe, including in Luxembourg, have announced that students from Schengen countries may be exempted from those travel restrictions under the "national interest" exception.

"Many students will welcome this change as students have been considering quarantine in a third country in order to be able to enter the United States in time for the upcoming semester," said Courtney Noce, a shareholder at Greenberg Traurig LLP.

The State Department official confirmed that "certain business travelers, investors, treaty traders, academics, and students" from the Schengen region, United Kingdom and Ireland may qualify for the national interest exception to the restrictions.

"Granting national interest exceptions for this travel to the United States from the Schengen area, U.K. and Ireland will assist with the economic recovery from the COVID-19 pandemic and bolster key components of our transatlantic relationship," the official said.

The plight of students outside the U.S. may not capture the public's attention like the prospect of deporting current students did, but the impact on universities if those students can't come to campus, and then transfer to schools in other countries, could be brutal.

U.S. universities rely on international students' tuition to fund scholarships for American citizens and other programs.

"The schools are going to care about those who aren't here because it affects their bottom line. So they're going to care about it and they're going to be back in court," said Charles H. Kuck, an Atlanta-based immigration lawyer and former national president of the American Immigration Lawyers Association.

Attorneys also warned that cutting off the flow of new students to the U.S. this year could negatively impact the pipeline of foreign talent that will graduate years from now.

The July restrictions, agency flip-flopping and constant threat of new restrictions could further undermine America's reputation as a destination for foreign talent in the long term.

International enrollment in U.S. universities has already decreased under the Trump administration, and the unpredictability and chaos sparked by "overnight" policy changes are likely to continue to deter international students from choosing the U.S. for school, said Diane Hernandez, an immigration attorney at Hall Estill.

"I think the bigger picture that it shows is that policies can change without notice," she said, "Not having that sense of security, and not having that ability to trust that the U.S. will continue to honor the agreement that they've made with these students up until the time that they actually get to the school, it could have a chilling effect on the number of students who apply to these universities."

--Editing by Kelly Duncan and Jill Coffey.

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