Dive Brief:
- A federal judge on Monday temporarily blocked the U.S. Department of Homeland Security’s rule limiting international student visas to four years, a regulatory change that would have taken effect Tuesday.
- In his 48-page ruling, U.S. District Judge F. Dennis Saylor said a lawsuit against DHS is “likely to succeed” on several grounds and that colleges would suffer “immediate irreparable harm” if the rule took effect during the case.
- Among the issues Saylor flagged were concerns that the rule could be used inappropriately by the Trump administration. “It is not difficult to imagine how that system might be abused to punish those whose viewpoints or research are disfavored by the officials making the decision — or, indeed, punish disfavored institutions,” Saylor said.
Dive Insight:
The DHS rule, published in July, would remake the longstanding student visa program, which has historically allowed foreign students to stay for the length of their academic programs.
The announcement spurred backlash from the higher education sector and student advocates. In August, a coalition of higher education groups and unions — including the American Federation of Teachers, NAFSA: Association of International Educators, and the Presidents’ Alliance on Higher Education and Immigration — sued the Trump administration.
DHS did not immediately respond to a request for comment Tuesday.
The plaintiffs argued DHS violated statutory and regulatory procedures when rolling out the rule and asked the court to block it from taking effect as planned. On Monday, Saylor agreed.
In granting the preliminary injunction, Saylor detailed numerous violations of the Administrative Procedure Act by DHS.
The APA requires federal agencies to follow certain steps when creating new rules and regulations. One of those steps is providing a reasonable justification for the desired change.
Neither of the Trump administration’s justifications for the visa cap — upholding national security and preventing visa fraud and abuse — held up to meaningful scrutiny, according to Saylor. Rather than demonstrating a widespread threat, DHS relied on anecdotal incidents that would have been unaffected by the student visa cap, he said.
That disconnect “raises legitimate questions as to whether its real purpose is not to safeguard national security and protect our borders, but to achieve other, undisclosed, goals — such as, for example, asserting greater government control over academic institutions,” Saylor said.
Federal agencies are also required to hold a public comment period on substantial proposals and engage with the comments received.
Despite holding what Saylor described as “an exceptionally short, and barely legal, 32-day period,” DHS received some 22,000 comments on the proposal, “an overwhelming majority” of which opposed the change, he said. But the final rule had few differences from the initial proposal, and Saylor said the agency didn’t meaningfully address the concerns raised.
DHS also failed to explain why it didn’t enact “less burdensome alternatives” and didn’t “conduct any reasoned” cost-benefit analysis of the student visa cap, according to the judge.
Furthermore, DHS attempted to largely “sidestep meaningful APA review” by invoking national security, Saylor wrote. He added that “the government’s contention that the rule is necessary to safeguard national security borders on the absurd.”
Under the 4-year visa cap, international students and academics who hold an F or J visa would be required to apply to DHS for an extension if they need more time to complete their studies.
Saylor raised concerns about the lack of detail the agency provided for that process, saying it appeared vague and at the discretion of individual officials.
“In other words, a DHS official — based on limited and vague criteria, and with no possibility of appeal — will have the power to cut short the academic, research, or teaching activities of any non-U.S. citizen for no reason or any reason,” he wrote.
The plaintiffs lauded the pause Monday on the student visa cap.
“This preliminary injunction is proof positive that the Trump administration’s proposed limits on how long international scholars have to complete their studies is arbitrary and hostile,” Randi Weingarten, president of AFT, said in a statement.
NASFA CEO Fanta Aw agreed, calling the court order “an important step toward preserving a fair and predictable system for international students and scholars and the institutions that welcome them.”
The next hearing in the case is set for Oct. 2.
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