By Natalie Schwartz, originally published on Education Dive.

Dive Brief: 

  • A federal judge struck down a Trump administration policy Thursday that made it easier to impose three- and 10-year reentry bans on international students studying in the U.S. 
  • U.S. District Court Judge Loretta Biggs ruled that the policy didn’t go through the requisite process to issue new regulations and that its language conflicted with the law. 
  • The order marks a victory for dozens of colleges that argued the policy made it harder to recruit international students and put them at risk of being barred from the country before they completed their studies. 

Dive Insight: 

In 2018, the U.S. Citizenship and Immigration Services (USCIS) said that it was changing how it calculated “unlawful presence” for international students who were staying in the U.S. through the country’s visa program. 

Under the initial policy, when international students are notified that they have incurred a status violation — such as failing to update their address or enrolling below their minimum course load — they begin accumulating “unlawful presence days.” Once they accrue 180 days, they can be barred from the country for three years. 

But the Trump administration attempted to backdate unlawful presence to the moment of a status violation, meaning a student could be moving closer to a reentry ban every day without realizing it. 

Biggs wrote in her order that under the Trump administration’s policy, “unlawful presence accrues sooner and more frequently.” She added that it was “a significant change from past practice” and ran “afoul of the (Immigration and Nationality Act’s) plain text.”

Guilford College, in North Carolina, and several other colleges sued the Trump administration over the policy in 2018. Biggs placed a nationwide preliminary injunction on the policy in 2019. 

Leaders of the colleges said the latest decision brought relief to their campuses.

“Even though the policy was halted in May, campuses were already feeling the negative effects, with rising anxiety among international students and concerns that future students would be discouraged from coming to study on our campuses,” Jane Fernandes, president of Guilford College, said in a statement.

Other colleges rallied on the plaintiffs’ behalf while the lawsuit played out. 

More than 60 institutions — including Harvard, Arizona State and George Washington universities — told the court in 2019 that they were fearful their students would find out they had incurred status violations without having enough time to remedy the issues before facing severe penalties. Moreover, status violations can occur due to “clerical and technical errors” that are out of international students’ hands, they wrote. 

Paul Hughes, one of the lawyers representing the colleges, told Forbes that the USCIS is now obligated to use the old policy, what he called a rule of “common sense.” 

However, more legal battles may be on the horizon. The federal agency plans to propose regulations that describe when and how visa-holders begin accruing unlawful presence later this year. 

Posted in: Immigration

posted on: February 9, 2020

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