A federal rule governing international visas for students, visiting scholars, and journalists, which had been scheduled to take effect on September 15, was stayed this week when a federal judge in the Massachusetts district court issued a preliminary injunction postponing its implementation. The new U.S. Department of Homeland Security (DHS) rule would have capped the length of a standard student visa at four years, and limited students’ ability to leave and reenter the country without reauthorization. Most doctoral degrees require five or more years of study.
In a strongly worded order, U.S. District Judge F. Dennis Saylor IV, J.D. ’81, wrote that “the weakness of the connection between the rule and its purported rationales raises legitimate questions as to whether its real purpose is not to safeguard national security and protect our borders,” as the government contends, “but to achieve other, undisclosed, goals—such as, for example, asserting greater government control over academic institutions and the press.” That possibility, far from hypothetical, corresponds with two earlier Trump administration actions that Saylor cited in his order: an attempt to revoke Harvard’s authorization to enroll international students, followed by a presidential proclamation that would have prevented foreign students intending to attend Harvard from entering the United States.
The plaintiffs in the case include three organizations that represent a variety of colleges, universities, and educators—including Harvard—and four labor organizations.
The government argued that the rule is needed to safeguard national security, a claim, Saylor wrote, that “borders on the absurd. It is based almost entirely on a small collection of anecdotes,” he continued, “each of which involved incidents that the new rule would do nothing to prevent or even mitigate.”
Saylor nevertheless declined to nullify the challenged regulation, stating, “The role of the judiciary is not to ensure that the executive branch does not make unwise decisions. In this context, at least, the only authority that the Court possesses is to ensure that when the government promulgates a new regulation, it adheres to the law.”
In that regard, Saylor found that the DHS had violated the applicable law—the Administrative Procedure Act—in “multiple respects,” and had failed to consider alternatives or respond to any of the 22,000 public comments on the rule, several of which suggested reasonable alternative solutions.
Furthermore, Saylor ruled, the plaintiffs in the case established that the rule changing the existing “duration of status policy,” which allows student to remain in the United States during their full course of study, would significantly curtail international enrollment at institutions across the U.S., due to the uncertainty it would create among students as to whether they could finish their studies and obtain a degree.
Such declines are occurring already, Saylor noted, citing data on international student withdrawals from the University of Wisconsin-Madison and the University of Maryland, Baltimore, and a 42 percent decline in international student applications to the University of Wisconsin-Milwaukee.
Saylor’s preliminary injunction postpones the implementation of the rule for now. A hearing before the judge, in which the government is expected to respond, is scheduled for early October.
