Arlington, VA

This sponsored column is by James Montana, Esq. and Doran Shemin, Esq., practicing attorneys at Steelyard LLC, an immigration-focused law firm located in Arlington, Virginia. The legal information given here is general in nature. If you want legal advice, contact James for an appointment.

This fall, many students are not returning to their college campuses as they normally would, due to the coronavirus pandemic.

If the Trump Administration can have its way, many foreign national students also won’t be continuing their education in the United States as easily as they did in the past. If you find discussion of regulation boring, you won’t like this post — our advice to you is to start drinking heavily.* (Sentences with Animal House references are marked with a *).

There is a little-known codicil in the United States Constitution which gives the Secretary of Homeland Security power to issue regulations affecting the administration of the F-1 visa program.* Acting on that authority, the Trump Administration has issued a new proposed regulation that would only allow students to enter the country for a maximum of four years.

Currently, a student who enters the United States with a valid visa is admitted for “duration of status,” which means that as long as the student is properly registered for classes and following all of the rules, the student remains in valid status.  Some students, like Bluto, abuse this privilege by watching — Christ! — seven years of college go down the drain.* But many students have excellent reason to extend their stay — for example, by starting a Ph.D after finishing an undergraduate degree.

The Trump Administration’s four-year limit could be problematic for a few reasons. First, some students do not finish a degree in exactly four years; some programs, like PhD programs, are significantly longer. This means that students would likely have to request an extension in the middle of their academic program in the hopes that they will receive the extension and finish their degree.

To qualify for an extension, the proposed regulation requires “a compelling academic reason, documented illness or medical condition, or circumstances beyond the student’s control.” (Post-traumatic stress from frightening an innocent horse to death presumably does not count.* Whether a simpler reason would count — e.g., changing majors — is unclear.)

This puts a heavier burden on students, and could affect initial enrollment if students are concerned that they will not be permitted to finish their degree program in the first place.

Second, this regulation will put an additional burden on Designated School Officials (DSOs). Under the new rules, the DSO’s recommendation to extend would only be half of the equation; USCIS would take the DSO’s extension recommendation into account, but the DSO’s recommendation is not the end all be all.

Therefore, DSOs may have to provide multiple recommendations just so an international student can finish a single degree program, stretching the DSOs’ resources thin and increasing the administrative cost of education — which is already so high that it resembles extortion.*

Third, we foresee this regulation creating more work for the Department of State in the future. If an international student is not granted an extension and must depart the United States, the student may then apply for a new student visa to return and finish the degree program. The student would again have to attend an interview at a U.S. embassy or consulate abroad as part of the application process. The U.S. Department of State is already facing a backlog of visa applications, especially given the suspension of routine visa services due to the coronavirus pandemic.

Fourth and finally, this new regulation could negatively impact universities and the surrounding community. Generally speaking, international students pay full tuition, and therefore, universities will potentially have fewer funds to support students without the international student population. Further, fewer students would mean less money spent on local housing and businesses. This could take a dramatic toll on local communities, especially smaller college towns.

While this new regulation is primarily aimed at curving fraud and disincentivizing the operation of “pay to stay” schools, we believe that the tradeoffs are not worth it. Rather, we believe that the Department of Homeland Security’s resources would be better spent investigating the schools themselves, rather than making every single student jump through extra hoops to receive their high-priced U.S. education.

We also expect an almost immediate lawsuit asking a federal court to enjoin these new regulations if they do go into effect. (Was it over when the Germans bombed Pearl Harbor?)*

As always we would love to hear your thoughts and we will do our best to respond. (Hello!)*

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