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Trump’s Reopening Agenda Is Upending International Students’ Futures

“Is there going to be an injunction? Do we have months to years, or are we packing up right now?”

Maddie Meyer/Getty Images

In what has become an increasingly familiar pattern, the Trump administration set off a wave of confusion, anguish, and uncertainty on Monday as Immigration and Customs Enforcement announced changes to international student programs that would force those whose institutions adopt an online-only model to either transfer schools or leave the country.

In the days since, Bhumika Chauhan, a sociology doctoral student at New York University and F-1 visa holder from India who is involved in organizing with her school’s graduate student union, said she had been scrambling to understand the implications of the new rule. “We don’t know what’s going to happen to people who are here, because so far we’ve been fighting for everything to be online. That makes the most sense in terms of our health,” she said. “Now that doesn’t seem to be a possibility.”

Though ICE is better known as the agency that arrests and deports immigrants, it also manages the Student and Exchange Visitor Program, which certifies and maintains records on both international students and the institutions they attend. Such students generally must attend in-person classes at a U.S. university to maintain status, but ICE in March had waived some of those requirements as schools around the country moved their classes online in response to the coronavirus pandemic. In an announcement published Monday afternoon, the agency updated those rules, shocking students by stating that those using F-1 and M-1 visas for academic and vocational studies, respectively, and whose schools were moving programs entirely online for the fall semester, would not be able to continue their studies in the country.

The language was vague, leaving students with open and concerning questions. For one thing, the statement specified that students attending schools with “hybrid” models—where some classes are held in person and some online—would be able to remain in status, but also that their college or university would have to certify that their individual course load would not be all online. Yet schools largely have yet to finalize their specific course schedules, leaving it up in the air whether any particular classes will be held in person or not and opening up the possibility that some students would end up with all-online courses even if their school hadn’t made the leap to fully remote education.

Most schools also have not made any final announcements about whether they will be having any in-person classes at all and whether students will be freely allowed back on campus when classes resume. Nonetheless, in a memo distributed to school officials, ICE demanded that schools submit an operation plan by July 15, just over a week after the announcement was made, if they decided to have only online classes or would not reopen; if they decided to hold in-person classes, they would have to submit new paperwork for each and every one of their international students by August 4.

The move—announced with no forewarning and reversing a prior decision that schools had already come to rely on as ICE’s standard approach while the pandemic continues—seemed designed to throw a wrench into students’ and schools’ planning for next semester in a way that will force them to adhere to the administration’s broader reopening agenda. Several students said they would feel uncomfortable returning to in-person classes as the threat of Covid-19 continues but also did not want to risk their academic futures.

Stanislaw Zdziech, a rising senior from Poland who is working toward a bachelor’s in Economics at Tufts University in Massachusetts, said students “have yet to receive any straightforward plans or information to international students if we are even able to return to campus.”

There was also little clarity on what an in-person versus online course load meant in practice, particularly for students involved in academic work that isn’t strictly going to class. Aayush Khadka, a doctoral student in population health sciences at Harvard University—which had earlier the same day announced that it was planning on moving its programs entirely online, even for students who will return to campus—said that he was working on his dissertation and wasn’t expecting to enroll in coursework at all, only research credits.

As things stood, he had no idea whether this counted as an online-only course load for the purposes of the regulation. If it did, he wasn’t sure how he was supposed to deal with the logistical implications. “If the regulation were to apply to me, that would mean that I would need to go to Nepal, but Nepal has currently sealed all its borders because of the pandemic,” he said.

Asked whether any particular accommodations would be made for students who would be unable to return to their countries of origin for logistical reasons, ICE spokesperson Carissa Cutrell wrote that “students can transfer to another school or check with their school’s designated official about options to maintain their nonimmigrant status.”

Charles Kuck, managing partner of the Kuck Baxter immigration law firm in Atlanta, said that, in theory, students could change their status to nonimmigrant visitor and then switch back to a student visa once in-person classes resumed. “From an implementation perspective, it’s one of the most poorly thought out policies I’ve seen in the last few years,” he said. He pointed to regulations that limit the ability of international students to take online classes, calling them outdated. “They hyphenate the word ‘online,’ it’s so old. That’s how old it is. It’s not written for the age we’re living in.”

Lewis, an Australian who is studying for a physics Ph.D. at Harvard, and who preferred to be identified only by his first name for privacy reasons, said that the first couple years of his program are typically “more lecture-based classes; after that, most of the rest of the time is dedicated to research, in a laboratory.” This means he expected to be spending his time next semester in a lab instead of a classroom. “It’s kind of unclear; the research definitely requires me to be in the lab, in person. Where there’s ambiguity is how the academic credits I’m enrolled with will be classified.”

In an effort to navigate the uncertainty, students and staff at various universities have proposed creative solutions on social media, such as holding a single, mandatory course out in an open space that international students could attend to fulfill the in-person requirement. Several professors volunteered to teach such classes. Sally Rubenstone, a college admissions expert and a co-author of The International Student’s Guide to Going to College in America, told The New Republic in an email that she would encourage universities that have switched to an online model to “collaborate with other nearby colleges or with peer institutions that WILL be holding on-campus classes to allow international students to take at least one class in person.” For example, she said, Harvard students might take a single class at nearby Boston University.

The degree to which students and schools will have to individually work to blunt the impact remains unclear, as the lack of concrete substance accompanying major immigration policy announcements like Monday’s is a hallmark of the Trump administration. It has consistently created chaos with sloppy rollouts: for example, the ill-fated pandemic-related travel bans that led thousands of Americans to flock to airports even though they were ultimately unaffected, spreading the coronavirus.

At fault is an intersection of nefariousness and incompetence, where the incompetence itself furthers the objective of sowing chaos. “I don’t know that those minor details have been contemplated,” said Fiona McEntee, managing partner of the Chicago-based McEntee Law Group. “What I do know is that it’s creating, as per usual, panic in the immigration community.”

Even if students were able to return to countries of origin, that wouldn’t guarantee that they could continue with their academic programs effectively. Classes in the early afternoon on an East Coast campus would be taking place in the middle of the night in Asia. Not all students would necessarily return to safe conditions, because of the continuing threat of the pandemic or other natural and social dangers. They would also, obviously, have to consistently and reliably use an internet connection to attend school, which not everyone would have, and would lose access to on-campus resources like libraries. Unsurprisingly, the rule change doesn’t account for any of this.

Cutrell wrote that the agency doesn’t have any particular date at which it’s expecting to publish a temporary final rule in the Federal Register, which would formalize the policy. In response to a question about what exactly counted as a hybrid program, she wrote, “Schools are being provided flexibility to develop their own operational plans that include an in-person component.” On the issue of how students engaged in research or other noncoursework academic activities would be affected, Cutrell said there “shouldn’t be an impact on that. If there is, the school should notate that the student is participating in a hybrid model and submit an operational plan to SEVP.”

Spokespeople for Harvard and NYU both pointed to the statements made by their university presidents but did not address specific questions about whether they were modifying their plans for the fall semester, or what guidance they were offering international students. Tufts did not respond to a request for comment. Harvard students told The New Republic that the matter had disappointingly not been addressed at a town hall held by the Graduate School of Arts and Sciences on Tuesday morning.

As of Wednesday morning, Harvard and the Massachusetts Institute of Technology became the first two universities to take legal action, attempting to have a federal district judge stop the policy from going into effect via an injunction. Their legal argument centered on the Administrative Procedure Act, which time and again has formed the basis for the administration’s losses in court after it tried to enact hugely consequential rules without much consideration or public notice. The injunction request heavily cited the Supreme Court’s ruling just last month striking down the attempt to end the Deferred Action for Childhood Arrivals program partly on the grounds that the administration had violated the APA by failing to consider how the rule change would impact hundreds of thousands of immigrants who had planned their lives around the program.

There is also the cudgel of public pressure, which so far seems firmly in favor of the students. “I’m sure the universities are weighing all the options, but I think that in addition to actual litigation, the court of public opinion is pretty powerful,” said McEntee, adding that she had been receiving dozens of messages from Americans expressing outrage about the policy.

ICE had already changed the rules for the spring semester without much incident, so why change them again now, only two months before the fall semester is set to begin? A predominant theory is that the policy is being used as a pressure point by the administration to force universities to reopen. Acting Deputy Secretary of Homeland Security Ken Cuccinelli explicitly said on CNN that the policy was intended to “encourage schools to reopen.” The president himself also tweeted that “SCHOOLS MUST REOPEN IN THE FALL” on the same day the policy came down, and he seems to believe that the best way to deal with the pandemic is to pretend it doesn’t exist. On Tuesday, he held an event at the White House to call for schools to reopen, at which he said institutions like Harvard were “taking the easy way out” by moving online.

This stance is obviously at odds with harm-mitigation and public health principles. Dr. Chris Beyrer, a professor and epidemiology expert at the Johns Hopkins Bloomberg School of Public Health, wrote in an email to The New Republic, “Attempting to force this issue is unwise, unfair, and discriminatory, particularly for those members of university communities who may have underlying health conditions that mandate their use of virtual only educational options.”

Ominously, the ICE statement threatened noncompliant students with “immigration consequences including, but not limited to, the initiation of removal proceedings,” though the lawyers I spoke with say it is highly unlikely that the administration will actually attempt to put potentially hundreds of thousands of students in a deportation process. But even if students aren’t forced into our already overburdened system for removal, there are plenty of enforcement actions that can disrupt their lives. This administration may simply try to limit their options by canceling paperwork and blocking them from being able to effectively work and study in an attempt to force them to leave on their own.

Chauhan, the NYU doctoral student, said the policy was essentially a threat. “Unless we are all willing to do what Trump is asking us to do, to open all schools, unless we are all willing to just comply with that demand, it seems like somebody or the other will get left behind.”

“It very much feels like international students have been used as a bargaining chip of some sort,” said Lewis, the Harvard physics Ph.D. student. The existence of a legal challenge also muddies the waters. “A lot of the discussions I’ve been having with people are like, ‘What are the actual timelines? Is there going to be an injunction, is this going to go the same way as the Muslim ban? Do we have months to years, or are we packing up right now?’”