ICE and Student Visas: What's the Law? (An Untutored View)

Essentially untutored in immigration law, I’ve been trying to figure out the law associated with ICE’s “guidance” statement about student visas and enrollment in all on-line instruction, without much help from journalistic accounts. (So far the best, and it isn’t great, is from the Chronicle of Higher Education.) So here’s a stab, with a warning at the outset that I’m pretty sure I’ve overlooked some important things.

 

First, the regulatory background. There’s a long-standing regulation in place that says that people with student visas have to maintain a full course of study. I assume that the regulation is designed to reduce or eliminate two kinds of fraud: by “students” who nominally enroll in educational programs but actually don’t take “real” courses or enough courses but rather use their visas as a way to get into the United States and live some other sort of life; and by “educational institutions” that cater to such students. That regulation had been interpreted to mean that students could take only one course on-line.

 

When the pandemic hit and many schools shifted to all on-line education, many international students were more or less automatically put out of compliance with the existing regulation and were nominally subject to immediate removal. To avoid that sudden disruption, ICE issued a guidance statement saying that the “only one course on-line” interpretation of the full-course-of-study rule would be suspended “for the duration of the emergency.” That meant that foreign students who were out of compliance with the full-course-of-study rule were not faced with the possibility of immediate removal.

 

The recent ICE action withdraws that guidance statement, and replaces it with another. The core is that people with student visas can take one course on-line, and can take additional courses on-line as long as they take some courses in-person; the new statement leaves it unclear how many on-line courses a visa-holding student can take, but it is clear that the student must take at least one course in person. And, apparently, each school must certify that each individual student who is taking more than one course on-line is taking “enough” courses in person to remain in compliance with the “full course of study” rule.

 

Now, what are the legal issues? First, is the new guidance reviewable at all? In other contexts that question has taken on a partisan tinge, with Republicans insisting that Obama-era guidance statements amounted to reviewable rules, Democrats contending otherwise; and exactly the reverse for Trump-era guidance. To the extent that some law on reviewability has emerged, it appears to be, roughly, that if the guidance affects a fairly large number of people and has a rule-like structure, with a relatively short list of criteria that might be converted into something like a checklist, guidance is reviewable (even if there’s a general reservation of power to depart from the guidance in individual cases) – and might even have to go through notice-and-comment rule-making (though that process can be delayed if the agency issues the guidance as an emergency rule “for good cause”). My instinct is that the new guidance probably is reviewable under that approach, though I should note that my instinct is shaped by my view that reviewability should be quite broad in general.

 

Second, is the new guidance arbitrary and capricious? Here the Harvard-MIT complaints were obviously drafted with the recent DACA decision in mind. The complaint says that the new guidance is arbitrary and capricious because it alters the prior guidance suspending the “one on-line course only” interpretation without adequate consideration of, among other things, important reliance interests. Here, I think, the first question is, What did the prior guidance mean in referring to “the duration of the emergency”? The complaint assumes that “the emergency” refers to the presidential declaration of a national emergency in connection with the pandemic as a whole. It seems to me, though, that a plausible, and maybe even reasonably strong, case can be made the “the emergency” referred to the precise circumstances of a mid-semester change in programming that threw visa-holders out of compliance with the “full course of study” rule as interpreted. But, if “the emergency” refers to the pandemic as a whole, my instinct is that the DACA-decision argument is a pretty good one.

 

This morning Larry Tribe suggested via Tweet that the new guidance violated the First Amendment. Maybe so, if one could establish that it was adopted for the purpose of inducing colleges to change their educational programs. But, with the “full course of study” rule in the background, I think that would be a serious uphill climb. Start with that rule itself. It gives incentives to schools that think it important to enroll foreign students to develop a particular (though quite loose) educational model, to prevent the kinds of fraud I’ve described. Is that unconstitutional? Maybe not: The rule is subject to evaluation under the First Amendment, but is constitutionally permissible because (a) the contours of permissible models are quite broad, meaning that the incentive effects of the rule are weak, and (b) the antifraud purpose is good enough [compelling or whatever].

 

What, then, absent bad motivation, would make it unconstitutional for the government to revert to the pre-existing “full course of study” rule? Maybe the argument is that the continuing circumstances of the pandemic make the incentive effects of the “full course of study” rule much stronger (meaning that they have a constitutionally significant larger effect on colleges’ choice of educational models). That might be right, though I think it implies that the mid-semester guidance issued last semester wasn’t merely discretionary with ICE but was actually constitutionally required.

 

So, that’s my untutored view of the law – and it might be wrong both in detail and with respect to some particulars.

As a predictive matter, though, I’m reasonably sure that the new guidance will be enjoined for the next academic year (or at least for the next semester), at least with respect to a large subclass of those currently holding student visas. Given that the new guidance allows students to retain their visas if they attend schools with a hybrid model mixing on-line and in-person instruction, my guess would be that the injunction would cover students already enrolled in programs that have declared that they will be all on-line and students enrolled in programs that they would be allowed to complete with no more than one in-person class (the latter to deal with the ambiguity of the “some but not all” component of the new guidance). (I have in mind here the way in which the Supreme Court temporarily upheld injunctions against the “Muslim-ban” rule while defining narrowly the class of those protected by the injunctions.)

 

I’ll open this to comments, which, I hope, will be directed primarily at clarifying the relevant legal arguments and, specifically, at correcting any mistakes I've made.