SHRM Supports Colleges' Efforts to Keep International Students in the US

Allen Smith, J.D. By Allen Smith, J.D. July 15, 2020
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SHRM Supports Colleges Efforts to Keep International Students in the US

​Business groups, including the Society for Human Resource Management (SHRM), helped persuade the Trump administration to allow international students who are taking online courses to stay in the U.S. during the pandemic. A day after SHRM and 18 other business groups and companies filed a brief in favor of letting the students remain in the country, the Trump administration reversed its decision.

The brief—which also was filed by the U.S. Chamber of Commerce, Google and Microsoft, among others—supported a restraining order sought by Harvard University and the Massachusetts Institute of Technology (MIT) against U.S. Immigration and Customs Enforcement (ICE).

In its complaint, Harvard and MIT noted that ICE on March 13 recognized an exemption to a pre-existing rule that students in the country on certain nonimmigrant student visas (F-1 visas) must attend most classes in person. ICE announced that students could participate in remote learning implemented as a result of the pandemic—either in the U.S. or abroad—while retaining their visa status.

The March 13 guidance indicated that it was a "temporary provision" that would remain in effect for the duration of the national emergency. ICE noted that the situation was "fluid" and "difficult" and that the agency "will continue to monitor the COVID-19 situation and will adjust its guidance as needed."

July 6 Directive

On July 6, ICE announced that "nonimmigrant F-1 students attending schools operating entirely online may not take a full online course load and remain in the United States. The U.S. Department of State will not issue visas to students enrolled in schools and/or programs that are fully online for the fall semester, nor will U.S. Customs and Border Protection permit these students to enter the United States."

In addition, the July 6 directive said, "active students currently in the United States enrolled in such programs must depart the country or take other measures, such as transferring to a school with in-person instruction, to remain in lawful status. If not, they may face immigration consequences including, but not limited to, the initiation of removal proceedings."

Lawsuit by Harvard and MIT

Harvard and MIT sued, alleging violations of the Administrative Procedure Act. Both schools are offering most of their fall 2020 semester curricula online. Harvard has limited undergraduate on-campus residency to 40 percent of capacity for the upcoming term. MIT has limited undergraduate on-campus residency for the fall to members of the rising senior class and a limited number of additional students.

ICE's action gave hundreds of thousands of international students no educational options in the U.S., the institutions noted. ICE left institutions with the choice of proceeding with their curricula largely online—which, under ICE's July 6 directive, would undermine the prospects of international students—or providing "in-person education despite the grave risk to public health and safety that such a change would entail," the schools said in their complaint.

They asserted, "By all appearances, ICE's decision reflects an effort by the federal government to force universities to reopen in-person classes" without giving the universities notice and the ability to comment about this change before it took effect.

Several friend-of-the-court briefs supporting Harvard and MIT followed, including ones from other institutions of higher education, towns and counties, and unions.

Before restoring the exemption, the government argued that Harvard, MIT and their students have always known that ICE could change course and announce a new policy, and they should not have been surprised that it did. The government also asserted that ICE considered some factors before issuing its policy.

Harvard and MIT argued that the government did not articulate its reliance on the factors that it was required to consider by the Supreme Court's cases and the Administrative Procedure Act.

[Need help with legal questions? Check out the new SHRM LegalNetwork.]

SHRM Brief

SHRM's brief said that the July 6 directive failed to do the following:

  • Consider the harm to businesses and the economy that would result from the loss of the tens of billions of dollars that international students contribute to U.S. gross domestic product each year.
  • Address the crucial role played by international students in maintaining the world-leading status of U.S. educational institutions. This role ensures those schools' U.S. students will learn the skills that businesses need and that the research conducted at those schools will enable American businesses to continue leading the world in innovation.
  • Account for the substantial benefits to U.S. businesses from international students' employment in the U.S. during and after their course of study, or businesses' reliance on international students to provide a crucial element of their workforce.
  • Take into account the significant long-term benefits to businesses and the entire economy from international students who remain in the U.S. and from those who find permanent employment outside the U.S.

One study found that more than half of the million international students studying in the United States—over 575,000 people—could have had their education interrupted by the July 6 directive.

"Identifying, training and retaining a talented workforce is critical to the success of every business—particularly for large American companies that compete in today's global economy," the brief stated.

Reactions

While numerous groups called for the rescission of the July 6 directive, Dan Stein, president of the Federation for American Immigration Reform, criticized the walk-back. "The initial rule already provided flexibility for students enrolled in schools utilizing hybrid or traditional approaches to reopening schools in the fall, while protecting the F-1 and M-1 program from more fraud than already exists," he said.

Diane Hernandez, an attorney with Hall Estill in Denver, said the administration's rescission of the July 6 directive "should offer students and school administrators peace of mind as they begin the fall semester online. However, questions remain about how the administration will handle those students who require new visas or whose visas are expiring and need renewal before classes start."

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