ICE Policy Versus Foreign Students Freezes in its Tracks

by Cristina A. Godinez, Esq.

Many things done in the name of politics these days hardly make sense.

Take the case of the ICE two-step: a week-long dance with immigration policy declaring that (step 1) international students must attend only in-person classes this fall term, or leave the U.S. Then yesterday (step 2) – ICE takes it back. The policy is rescinded, just like that.

What a difference a week makes. Here’s a recap:

True to form, Immigration and Customs Enforcement (ICE) issued a so-called modification of its policy on international students on July 6, requiring them to take in-person classes. It warned that, “students attending schools operating entirely online may not take a full online course load and remain in the United States.” According to ICE, these students will face serious immigration consequences, including deportation – if they do not leave or transfer to other schools that offer in-person classes.

This policy, of course, while meant to hit foreign students, would actually end up hurting U.S. colleges and universities. A good number of them, including Harvard, Princeton, Rutgers, University of California –Los Angeles and the California State University system, are responding to the Covid-19 pandemic by preparing to hold classes fully online this fall semester.

“The hurt is economic, and that usually makes for bad politics. Foreign students at Harvard and MIT, in particular, make up a significant fraction of the entire student population.”

The hurt is economic, and that usually makes for bad politics. Foreign students at Harvard and MIT, in particular, make up a significant fraction of the entire student population. No wonder then, that Harvard and MIT promptly stepped up to the plate and sued ICE to stop this new rule in its tracks. Reports say more than 200 universities backed this lawsuit on the ground that the ICE policy jeopardizes their students’ health and forces them to reconsider their plans for fall.

In what was described as a “surprise announcement,” ICE canceled its in-person-class-or-leave policy even before oral arguments began in the Harvard-MIT case. The ICE rescission, while welcome, was generally unexpected and oddly, unexplained. To date, ICE has yet to officially announce the rescission of the policy to the public.

The economic consequence of barring thousands of foreign students from attending U.S. universities is not limited to the coffers of these august institutions of higher learning.

“… the U.S. Department of Commerce itself recognizes that international students contribute over $40 billion to the U.S. economy, with over 60 percent of them relying on funds that come from outside the U.S., such as personal/ family funds and scholarships from the government or universities in their home countries.”

-NAFSA: Association of International Educators

In a report released by NAFSA: Association of International Educators, the U.S. Department of Commerce itself recognizes that international students contribute over $40 billion to the U.S. economy, with over 60 percent of them relying on funds that come from outside the U.S., such as personal/ family funds and scholarships from the government or universities in their home countries. “For every seven international students, three U.S. jobs are created or supported by spending in the following sectors: higher education, accommodation, dining, retail, transportation, telecommunications and health insurance,” according to the report.

Despite the obvious benefits that international students bring to the country, recent immigration policies affecting foreign students have been inexplicably hostile. For instance, delays in visa processing and “onerous” screening procedures have led to a more than 40-percent decline in student visa issuances.

“If ICE was so quick to rescind the in-person-class-or-leave policy against international students – without a fight in court, what then was the point of this entire exercise?”

In August 2018, the Trump administration issued a policy stating that international students and exchange scholars on F, J and M visas who accrue more than 180 days of unlawful presence in a single stay can face three- or 10-year prohibitions on re-entering the country. This “unlawful presence” policy was challenged in court and was permanently blocked nationwide by the U.S. District Court for the Middle District of North Carolina last February.

If ICE was so quick to rescind the in-person-class-or-leave policy against international students – without a fight in court, what then was the point of this entire exercise?

It was probably just a test of how far an anti-immigration agenda can take Trump, especially as we approach election season.

An anti-immigration agenda cannot go far, it seems. With a healthy dose of public vigilance and swift action in both the courts of law and the courts of public opinion, the U.S. can still hold its ground as a nation of immigrants.


Cristina Godinez is an attorney who has provided immigration solutions to families, businesses and at-risk migrants in the United States for over 15 years. She worked with the immigration law practice group of a top-tier global law firm and later, with the world’s largest immigration law firm. She is also the attorney at the faith-based Migrant Center of New York where she oversees the delivery of immigration legal services to low-income clients. Cristina is a member of the American Immigration Lawyers Association.

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