Trump Administration Withdraws Directive Banning International Students
July 20, 2020

On July 14, the Trump administration abruptly rescinded its July 6 directive that said international students could not legally stay in the United States if they were taking all their classes online, as many would be this fall as the pandemic continues. The reversal came with unprecedented swiftness, just eight days after the directive was issued by Immigration and Customs Enforcement (ICE).

The administration’s move came in response to a lawsuit from Harvard University and the Massachusetts Institute of Technology, the first of dozens that were filed challenging the directive. Hundreds of colleges as well as ACE and 70 higher education associations filed amicus briefs in support of Harvard and MIT, as did the U.S. Chamber of Commerce and companies including Google and Microsoft. A group of international graduate students in California also sued amid reports that some were already being turned away at the border.

The action “demonstrates the importance of international students to the United States and shows that together with one voice, all of higher education, the business community, and many others across our nation are making it clear that these students continue to be welcome here,” said ACE President Ted Mitchell in a statement last week. “We are enormously gratified that Harvard University and MIT, as well as many states and other colleges and universities, took immediate legal action to force the Trump administration to rescind its wrongheaded directive that would have prevented students attending U.S. institutions operating online during this global pandemic from remaining in or coming to our country. We believe this will facilitate the reopening of colleges and universities this fall.”

What Happened

The government agreed to rescind the directive in negotiations before a hearing July 14 in the district court in Boston. It will now revert back to guidance issued in March by the Student and Exchange Visitor Program, which allows international students to remain in the United States while taking a fully online course load “for the duration of the [COVID-19] emergency." The March guidance was issued in the middle of the year, so it is unclear at this point if it covers new international students.

Harvard and MIT—both of which plan to conduct most of their fall coursework online—argued in their lawsuit that the July 6 directive reflected an effort by the government to force universities to reopen despite the continuing dangers posed by the coronavirus pandemic, or endanger and disrupt the education of their international students. They also said that the Department of Homeland Security’s (DHS) prior guidance was in violation of the Administrative Procedure Act, a law that requires federal agencies to provide opportunity for public notice and comment and reasoned explanations for their decision making.

New International Students

ICE released an updated FAQ on international students the day after the July 6 directive was rescinded. While this is technical guidance for campus staff and administrators who manage the data on international students, it also included a confusing reference to new international students that could be a major policy shift, saying if these students “have not arrived in the United States, they should remain in their home country."

ACE is still studying the FAQ, but of course anything that even signals to international students that they are not welcome and that it is very hard to gain admission to the country is bad policy. The world’s best students have numerous options where to attend school, and what this administration has been doing is short-sighted and self-defeating.

House Bills on the Issue

The House of Representatives has made several moves aimed at barring the administration from enacting a similar policy in the future. Several amendments have been submitted to the House Rules Committee for consideration as part of the FY 2021 National Defense Authorization Act, one of which prohibits Department of Defense funding to DHS if the secretary denies entry to or revokes visas from international students during the COVID-19 crisis. The hope is to harness Republican support for this issue and keep the amendments bipartisan. A second amendment would directly prohibit the DHS secretary from taking such actions.

Another effort, spearheaded by Rep. Lucille Roybal-Allard (D-CA), and supported by California institutions including the University of California System, the University of Southern California, and the California State University System, amended the FY 2021 DHS appropriations bill to similarly protect international students. That bill passed in committee on July 14.

Next Steps

The White House could possibly issue new regulations, or take a harder stand against new students than against those already in the country. However, unlike previous controversies—such as the 2017  travel ban cases—the administration did not even try to defend this policy, backing down in just eight days. They are likely to be far more careful in any subsequent steps.