The Department of Homeland Security and ICE say the new policy is backed by existing law forbidding foreign students from taking all of their classes online. ICE suspended the rule in March in response to the pandemic, but the agency told universities it was subject to change, according to a Monday court filing from the Trump administration.
The agencies say their updated guidance still provides leniency by allowing foreign students to maintain their visas even if they study online from abroad this fall.
"Rather than completely rescinding the March guidance and reverting to business as usual with respect to schools and foreign students, ICE announced a measured transition to begin a move toward reopening schools and allowing students to return to classrooms," the brief said.
A brief filed Monday by 59 universities, however, says the rule throws their plans into disarray with less than a month before some schools start the fall term. They challenged the policy's legal grounds and say it forces schools across the nation to "choose between opening their campuses regardless of the public health risks, or forcing their international students to leave the country."
The group includes all of Harvard's companions in the Ivy League and other prestigious schools including Stanford and Duke universities. They collectively enrol more than 213,000 international students.
"These students are core members of our institutions," the schools wrote. "They make valuable contributions to our classrooms, campuses and communities — contributions that have helped make American higher education the envy of the world."
The colleges are asking the court to block the rule as quickly as possible, saying it's already being used to turn students away. Last Wednesday, a DePaul University student was prevented from entering the country after arriving in San Francisco, according to the filing. Harvard previously said one of its students from Belarus was turned away from a flight at an airport in Minsk last week.
If the policy is upheld, schools could forced to reconsider their fall plans. Princeton last week said first-year students and juniors could live on campus this fall, while sophomores and seniors would replace them during the spring semester. But that plan was based on the understanding that foreign students could continue remote learning from the US, the filing said.
"Princeton now may be forced to reassess its plan, with just weeks to go before the fall semester, lest sophomore and senior international students be forced to leave the country — and potentially be unable to return for the spring," according to the brief.
A separate coalition of 180 colleges filed a brief saying colleges were "blindsided" by the policy. The group, known as the Presidents' Alliance on Higher Education and Immigration, said it was a reversal of a March 13 directive from ICE that waived limitations around online education for foreign students "for the duration of the emergency." They point to data suggesting the number of new coronavirus cases in the US is higher now than it was in March.
"All seem to agree the emergency remains ongoing, but ICE's policy has inexplicably changed," the group wrote.
The directive also stands to hurt colleges financially, the group wrote. International students typically pay the highest tuition rates and rarely are eligible for scholarships. The alliance said many colleges risk losing millions of dollars over the policy, including Northern Virginia Community College, which estimates it could lose nearly $10 million in tuition from foreign students.
A separate brief filed by the Princeton Theological Seminary says the policy would bring "crippling consequences" from a funding perspective. The seminary said its international ties include many foreign donors who would find the guidance "such a shocking affront that PTS' relationships with those donors may never recover".
The suit is also being backed by 26 cities and counties that say the policy would damage their economies. Those range from New York City, which says international students contribute $3 billion per year to its economy, to Iowa City, Iowa, which says its 2,500 resident international students contribute millions of dollars a year.
Briefs of support have also been filed by scientific associations, student governments, education unions and 71 higher education associations.
Under the new rule, international students will be forced to leave the US or transfer to another college if their schools operate entirely online this fall. New visas will not be issued to students at those schools, ICE said, and others at schools offering a mix of online and in-person courses will be barred from taking all of their classes online.
It would apply even if an outbreak forces schools to shift classes entirely online mid-term, according to the guidance.
The policy was issued the same day Harvard announced that its first-years would be invited to campus but that all undergraduate classes will be held online.
The suit from Harvard and MIT argues that ICE issued the policy without offering any justification and without allowing the public to respond. It also says the agency is breaking from its March 13 promise to provide flexibility during the pandemic.
