Immigration and Higher Education—Never a Dull Moment!

Leigh Cole and Tejas Shah

Immigration has been a hot topic in higher education for many years, ever since colleges and universities were enlisted to help the federal government police international students after 9/11. In the past two years, immigration has become even more of a concern for college and university administrators, their students, and their larger campus communities. Highlighted here are a few of the issues that are particularly controversial on campus.

The Basics

The term “international students” generally includes students for whom the college or university offers visa sponsorship. The student visa categories are F-1 international students, M-1 vocational/technology students, and J-1 exchange visitors. There can be other international students on campus, such as the many spouses and children of international families living in the United States for a parent’s work and long-term US residents who are undocumented immigrants. These students are vital members of a vibrant campus community.

Unlike domestic students, international students don’t qualify for federal tuition grants or federally guaranteed student loans. International students pay full tuition, unless the college or university chooses to offer them institutional scholarships. At this point, international students are a revenue center for many colleges and universities, or at least an important element of total tuition revenue. That means maintaining international enrollment is critical to meeting budgets for many colleges and universities. This can be particularly important for institutions that rely largely on tuition revenue because they don’t have rich endowments to smooth over tuition shortfalls.

Post-911 Changes to Monitoring

Globalization and 9/11 both pushed US colleges and universities to focus on their international student programs. Students have demanded a more international experience on campus, through enrollment of international students, hiring international faculty, and international program opportunities. Meanwhile after 9/11, the newly formed US Department of Homeland Security (DHS) began to require US colleges and universities to monitor the activities of international students on their campuses through a new DHS database referred to as SEVIS. Operated by Immigration and Customs Enforcement (ICE), the SEVIS database is a real-time record of each international student’s active participation in a course of study on campus and their authorized work activities off campus. Personnel at each school input data into SEVIS to create their students’ official US immigration records. If the school allows a student’s SEVIS record to fall out of date, the student’s lawful status in the United States can end abruptly. This enforcement scheme focused colleges and universities on their international student population like never before.

The Travel Ban and DACA Litigation

Two of the first immigration controversies under the new administration struck at the heart of campus communities. The executive orders restricting issuance of visas and admission of international travelers, and imposing extreme vetting of applicants at US consular posts, abruptly stopped international students and faculty from returning to campus from abroad. They also were afraid to leave the United States to visit family or study abroad, rightly fearing they may have trouble returning to the United States to resume their studies. These executive orders disrupted campus life for many students, scholars, and faculty, and struck at the heart of the global academic community in the United States.

Then, the new administration moved to cancel Deferred Action for Childhood Arrivals (DACA), which allows qualified undocumented US residents to study and work without fear of deportation. Hundreds of thousands of DACA beneficiaries (initially 800,000, now about 600,000) have had leadership positions on campus and are valued employees and serve honorably in the US armed forces. College and universities felt directly responsible for their DACA students, graduates, and employees who no longer would be able to freely live, study, and work without fear, their lives disrupted again by stress and fear for themselves and their friends and family who could be at risk of deportation.

With the proposed cancellation, schools focused on their DACA communities for the first time, and many DACA beneficiaries identified themselves on campus for the first time (while many declined to identify themselves, out of fear). Some schools offered support not only for DACA beneficiaries on campus but also for their family and friends, to try to relieve the widespread anxiety caused by the announced cancellation of DACA. In December 2017, in response to the proposed cancellation, college and university presidents formed a consortium to work together to address the impact of immigration policy on higher education. In less than a year, the Presidents’ Alliance on Higher Education and Immigration has grown to 427 members and has taken pro-immigrant positions on DACA and other immigration changes affecting higher education.

At this point federal courts are requiring the DACA program to continue while litigation challenging the cancellation of DACA winds its way through the federal judicial system, which could take a few years.

The Invisible Wall

Meanwhile, the new administration is also imposing an “invisible wall” to use administrative processing to limit legal immigration. For example, recent international graduates of US institutions who studied in F-1 visa status are allowed to work in the United States for one year (or three years for graduates in certain STEM fields) after they complete a degree program, to gain experience in their field. Employers can sponsor these graduates for H-1B visa status to continue their employment if the first year is going well. But, this year, the processing policy changed (and slowed) so many international graduates have a gap in their employment authorization starting on October 1 (the first day of the federal fiscal year, when H-1B visas become available each year) until whenever DHS gets around to approving their employer’s H-1B petition. And DHS is taking a very long time processing H-1Bs!

DHS also is making it much harder for colleges and universities to administer their F-1/M-1/J-1 sponsorship programs for students and scholars. Another recent DHS policy change now means an international student or scholar could violate their status by mistake, or perhaps their school could make an administrative error in their SEVIS record, and by the time the school or the student realize the issue it could be too late to correct the student’s status, and the student could be subject to deportation.

For example, international students can work for up to 20 hours a week on campus during academic terms, and if they work 21 hours by mistake due to poor record keeping—even at the urgent request of their employer on campus who needs the help—they violate their F-1 status. Under prior DHS policy, the risk of an inadvertent violation like this was minimized by a “discovery rule”—once the school or student realized the problem, it could be addressed before the student incurred “unlawful presence” and became subject to deportation. However, the new policy removes that rule and unlawful presence is incurred as of the date of violation, inadvertent or not. This new policy significantly increases the risk for colleges and universities in managing their international student programs. We expect more litigation to challenge this policy as arbitrary and capricious and a violation of due process for the international students.

Go Hire American Workers!

Higher education institutions are also being significantly impacted by other changes that have made legal immigration to the United States that much more difficult. In April 2017, the president issued an executive order entitled “Buy American Hire American” with the ostensible purpose to promote the hiring of American workers and the purchase of American-made goods. The executive order directed the various federal agencies involved with enforcing trade and immigration law, including but not limited to the Department of Homeland Security, the Department of State, the Department of Labor, the Department of Commerce, and the US Trade Representative, to immediately develop and propose new policies that would advance these objectives. The implementation of this directive by these federal agencies has significantly impacted legal immigration to the United States.

Analysis of US Citizenship and Immigration Services (USCIS) data by the National Foundation for American Policy shows that nearly one quarter of all H-1B visa petitions, which is the visa category most commonly utilized by US employers to legally employ foreign graduates from US higher education institutions, were being denied by the end of the fourth quarter of 2017. In 2018, the USCIS has also adopted a range of new policies making legal immigration more difficult. The agency has issued new policies limiting the opportunity for employers to cure initial defects in petitions sponsoring foreign workers for immigration benefits; making it more likely that an individual whose application is denied by USCIS (the agency charged with granting immigration benefits) will be placed in deportation proceedings; and limiting the ability of US employers to offer visa sponsorship to foreign workers who work at third-party locations. Some of these changes have also targeted participants in STEM (Science, Technology, Engineering, and Math) higher education programs by retroactively limiting their ability to work at a third-party location.

These policy changes appear to have impacted international student enrollment. Given the considerable expense of US higher education, a key driver of international student enrollment in the United States is the ability to find employment and put down roots in the United States after graduation. After a decade of significant growth in international student enrollment, the enrollment of students fell for the first time in years between 2016 and 2017, according to another study by the National Foundation for American Policy. While data for 2018 does not yet appear to be available, it should be closely monitored.

Does this environment mean doom and gloom for universities championing international student enrollment? Not necessarily. Colleges and universities have taken positions to embrace diversity, resulting in universities leading some of the most significant lawsuits challenging changes to the administration’s immigration policies. Visas continue to be issued to talented foreign nationals, but lawyering for American employers and prospective international workers in the United States has become more complex and unpredictable. Higher education institutions are anxiously monitoring the situation, as these changes impact not only their institutional goals and student life but also their pocketbooks. At times like these we wonder if immigration in higher education will ever be dull again!

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Leigh Cole

Leigh Cole is an attorney and director with the Dinse law firm in Burlington, Vermont, where she chairs the firm’s immigration group and is a member of the firm’s education practice group. She also serves as immigration counsel to Hirschfeld Kraemer LLP, an employment boutique law firm. 

Tejas Shah

Tejas Shah is a partner and chair of the immigration practice group at Franczek Radelet P.C. in Chicago, Illinois. He is also a member of the firm’s higher education practice and labor and employment practice groups.