Photo by Tingey Injury Law Firm on Unsplash

Why do so many international-student policies end up in courts?

Sign up to get Latitude(s)


Back in 2014, a group of technology workers filed a lawsuit seeking to kill the Optional Practical Training program, which they said was a backdoor attempt to take jobs from Americans.

Last week, a federal judge ruled in favor of the legality of the work program for international graduates, a significant victory. Yet, it might not be the final chapter in this years-long legal fight. A lawyer for the tech workers told Law360 that he plans to appeal the decision.

As it happens, the OPT decision was just one of a trio of important court rulings last week that affect international students, undocumented students, and universities themselves. On Tuesday, another federal judge struck down Trump-administration policies that tightened eligibility and raised required salaries for foreign workers on H-1B visas, saying that the government did not justify its choice to skip procedural steps. A coalition of business and higher-ed groups had fought the regulatory changes, arguing that they could hurt the U.S.’s ability to attract talent.

At the end of the week, a final decision, this one ordering the government to immediately reinstate DACA, the program that protects young undocumented immigrants from deportation, and to accept new applicants. This ruling, too, may not mark the end of the court fight — a group of Republican state attorneys general are challenging DACA.

All three cases were decided in higher education’s favor. Each centers around similar questions of presidential authority: Did the president — be it Trump or Obama — have the power to take the policy action that he did, and did he follow proper processes in doing so?

That issues dealing with visas and immigration seem to follow the same path, from regulation or executive action to the courts, underscores just how little headway is made in this area in Congress. Comprehensive immigration reform has been stalled for years, and even more limited measures, like legislating DACA, have gone nowhere. Case in point, last week the Senate approved legislation to lift country caps on work visas, but prospects for getting agreement on the bill with the House are dim.

President-elect Joe Biden has laid out policy priorities, from making DACA permanent to stapling a green card to every diploma earned by an international Ph.D. graduate in STEM fields. If past is prologue, Biden will have to do much of that through rulemaking and presidential orders. And when he does, legal challenges will likely follow.

One final observation: The legal process is frequently slow-moving. Litigation around the Trump administration’s cancellation of DACA has been going on for more than three years. The travel ban spent two years wending its way to the U.S. Supreme Court. The OPT challenges are going into their seventh year.

While I don’t think people are necessarily advocating for swifter justice, this dynamic leaves international and undocumented students coping with uncertainty. As Lynden Melmed, a former chief counsel for USCIS, said of the OPT case, students have long “lived under a cloud.”

The China Burden

Growing tensions with China are increasing the compliance burden for universities’ top research administrators and raising concerns about global talent flows, according to a series of interviews conducted by Ithaka S+R. The nonprofit consultancy group called dealing with potential foreign influence on campus the “most pressing new compliance issue” among senior research officers:

“Nearly every interviewee is devoting growing bandwidth and increasing staffing to address research security, foreign influence, and export controls.”

Intelligence agencies and elected officials have repeatedly said that colleges have left themselves vulnerable to foreign influence and research theft, particularly from China. Campus visits from the FBI are now a regular occurrence, some administrators told Ithaka S+R.

Many said they were worried that increased scrutiny could affect the collaborative nature of science, basic principles of scientific openness, and the free exchange of ideas. They also expressed concern that perceptions of the U.S. as unwelcoming, or even hostile, could scare off graduate students and researchers from China.

One administrator said the pressures of increased risk management were weighing heavily. Because of the responsibility of investigating professors over national-security concerns, they planned to leave the job “sooner than they otherwise would have anticipated doing.”

Relatedly… U.S. security officials say that more than 1,000 Chinese researchers have left the country amid a crackdown on intellectual property theft. The researchers were under scrutiny and were believed to have come to the U.S. at the “behest” of the Chinese government, said William Evanina, chief of counterintelligence in the office of the Director of Naval Intelligence. They are separate from a group of researchers and students who earlier this year had their visas revoked.

Did someone forward you this email? Sign up to get latitude(s) in your inbox every Monday.

Trust in Higher Ed: A Conversation

Join me on Tuesday at 2 p.m. ET for a Chronicle of Higher Education virtual forum on Trust and Value in Higher Education: A Global Comparison. I’ll moderate a panel of global experts to examine the impact of Covid and its financial fallout on trust and value in higher ed.

Among the questions we’ll discuss:

  • What can colleges do to increase trust in spite of mounting obstacles?
  • How are other countries like Australia, Britain, and Spain dealing with this issue?
  • What can campus leaders learn from the international discussion about trust and value in higher ed?

We’ll also talk about a recent international survey of college staff members and students conducted by Ipsos and commissioned by Salesforce.org, the event’s underwriter. Register here.

Double Your Impact

My friends at Open Campus — latitude(s) is part of the nonprofit higher ed news site’s collection of newsletters — are conducting a year-end fundraising drive. Until December 31, all donations will be doubled, thanks to NewsMatch. You can read more about Open Campus’ efforts to increase and improve higher-education journalism across the country. If that resonates, here’s where you can give.

Around the Globe

Universities play an “essential” role in combatting climate change, the United Nations secretary general said, while calling on higher ed to reduce its carbon footprint.

Top British universities have taken more than £60 million from the fossil-fuel industry over the last five years.

Iran has reportedly given a reprieve to a scientist facing execution.

International academies in Australia, Britain, Canada, and the U.S. are calling for more foreign-language education.

As more exams have gone online during the pandemic, cheating in Indian universities is “rampant.”

English universities have been told by the government to stagger the return of students after the winter holiday to avoid a new wave of Covid outbreaks.

Some professors say that a University of Cambridge free-speech policy could restrict their teaching, be “weaponized” in scholarly disputes, and threaten their careers.

A prominent Dutch university is investigating accusations of anti-Semitism among its law faculty.

France’s education minister accused universities of creating an intellectual breeding ground for Islamic terrorism.

A prisoner convicted in terror attacks on a university in Kenya was found dead in his cell after apparently committing suicide.

Egyptian authorities said they were “suspending” an investigation into the death of a Cambridge graduate student who may have been targeted by the country’s security forces.

Australia’s University of New South Wales has developed a global university ranking system that combines existing international rankings. Stanford tops the Aggregate Rankings of Top Universities.

NAFSA’s 2021 annual conference will be virtual.

And finally…

One of the founders of the drug company Moderna, which has created a promising vaccine for Covid-19, came to the U.S. as an international student. So, too, did Moderna’s chief executive. Read more about how integral former international students have been to the fight against the coronavirus.

Have feedback about this issue? Ideas of what I should cover in future newsletter? Send me a note at latitudesnews@gmail.com. You can also reach me via Twitter and LinkedIn.

’Til next week — Karin

You May Also Like