- The Washington Times - Wednesday, July 8, 2020

Harvard University and the Massachusetts Institute of Technology sued the Trump administration Wednesday to try to preserve their pipeline of international students, saying they won’t let the government bully them into holding classes during the COVID-19 pandemic.

The two schools objected to rules issued by the Department of Homeland Security this week that say foreign students who don’t attend at least some classes in person have no reason to be in the U.S. and can be sent home or blocked from entering.

Those strict rules stem, in part, from the 2001 terrorist attacks. One of the hijackers came to the U.S. on a student visa but never attended any classes.

Harvard and MIT said it’s cruel to make students during the coronavirus crisis stay out of the country if they aren’t in classes. The schools said the administration was trying “to create as much chaos for universities and international students as possible.”

“We will pursue this case vigorously so that our international students — and international students at institutions across the country — can continue their studies without the threat of deportation,” Harvard President Lawrence S. Bacow said in a letter to the school.

Some analysts said Harvard has it backward and the point of having a student visa is for a foreign national to attend classes. If classes aren’t held, they said, there is no reason to be in the U.S.

“This isn’t some benefit we give to people because they’re students,” said Andrew R. Arthur, a former immigration judge who is now senior fellow at the Center for Immigration Studies. “It’s a non-immigrant visa we give to people because they have to be at a specific place at a specific time.”

The student rule is the latest crackdown on foreigners attempting to enter the U.S. amid a worsening pandemic.

President Trump has triggered a public health law allowing him to expel illegal immigrants who jump the border, and he has halted hundreds of thousands of temporary worker visas and some permanent immigrant visas through the end of the year.

Under the Student and Exchange Visitor Program (SEVP), run by U.S. Immigration and Customs Enforcement, students are assumed to be in class. Schools are required to monitor attendance and report no-shows.

As the pandemic took hold this spring, the program announced an exemption for those whose schools shifted to online learning.

Now, as the fall semester looms, SEVP has narrowed that exemption.

While some online classes are allowed, students cannot attend schools that are exclusively online. Students can, however, maintain their visas if they transfer to schools that are holding in-person classes.

“Students attending schools operating entirely online may not take a full online course load and remain in the United States,” ICE said in a message to schools.

Criticism has poured forth.

The Council on American-Islamic Relations called the policy “dangerous and xenophobic.” Sen. Angus S. King Jr., Maine independent, said schools should be given flexibility to make their own decisions because they know what’s best for their students.

White House press secretary Kayleigh McEnany defended the policy as common sense.

“You don’t get a visa for taking online classes from, let’s say, University of Phoenix, so why would you if you were just taking online classes generally?” she said.

A graduate of Harvard Law School, she also chided her alma mater, saying perhaps students forced to pay full tuition to take classes online should sue.

Late Wednesday, Northeastern University — which like the others is based in Massachusetts — announced it would join the lawsuit.

That school’s president said he doubted their students would even be affected because they have a hybrid online/in-person schedule. But he said he felt a need to be counted opposing the “divisive” policy.

The foreign student program is unique among American immigration programs because schools select who comes, giving them passes to stay for years at a time.

Last year, the State Department issued about 400,000 F or M visas to foreigners looking to study in the U.S.

The students bring a lucrative source of income for colleges and universities. Nearly a quarter of Harvard’s students are international, as are about a third of MIT’s students.

But the program is also believed to be a significant source of visa and immigration fraud — particularly for students who remain after completing their schooling. A Chinese woman was sentenced last month for concocting false job openings to allow Chinese students to remain in the U.S.

The program was overhauled after the 2001 terrorist attacks.

One of the attackers, Hani Hanjour, gained entry to the U.S. on a student visa, though he never put the name of the school on his application. He never attended school, which should have invalidated his visa.

Hanjour would go on to pilot the plane that flew into the Pentagon on Sept. 11, killing all 64 people on board and 125 people in the building.

Before the attack, checks on students were sporadic. Afterward, the government began to run student visa applicants against criminal and terrorist databases, and schools were required to report when a student dropped out, changed a major or didn’t show up.

“The system is very reliant upon the schools,” Mr. Arthur said. “It’s only appropriate that we cabin that authority in order to ensure that the system is not abused, and most importantly that the national security is not affected.”

In their legal challenge, Harvard and MIT didn’t argue that the policy itself was illegal — indeed, it’s not as strict as the policy in place before the coronavirus hit — but instead accused the administration of cutting too many corners.

The schools said this sort of change under the Administrative Procedure Act should have been presented to the public for notice and comment, and they argued that ICE needed better justification.

The Administrative Procedure Act has snared a number of other Trump immigration policies, including one last month, when the Supreme Court ruled that the administration didn’t provide enough justification for phasing out the Obama-era DACA deportation amnesty.

At the University of California, Berkeley, foreign students were planning another tactic. Fox News reported that they were trying to create a do-nothing in-person class specifically to circumvent the new rule.

In a social media post, a student said he had found a faculty member willing to sponsor the idea.

“This course in ONLY for students who are international and need a physical component to remain in the United States,” the student wrote, according to an archived version of the post.

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