In May, Guilford College and four other higher ed plaintiffs convinced a federal judge in Greensboro to temporarily block a change in how the federal government calculated something called unlawful presence for people who hold visas to attend U.S. colleges and universities.
Guilford and friends declared victory last week: U.S. District Judge Loretta Biggs on Thursday struck down the rule.
Here's Guilford College President Jane Fernandes via the Presidents' Alliance on Higher Education and Immigration, the group of college and university leaders that supports immigration policies that welcome international, immigrant and undocumented students to their campuses:
“International students and the campuses that depend on them are breathing a sigh of relief today in response to Judge Biggs’ decision. Even though the policy was halted in May, campuses were already feeling the negative effects, with rising anxiety among international students and concerns that future students would be discouraged from coming to study on our campuses. We urge the administration to not appeal this decision and instead recommit to restoring our nation’s competitiveness in regards to international students.”
Biggs ruled in essence that the U.S. Citizenship and Immigration Services changed its student visa rules incorrectly. I'll note that this is a gross oversimplification of the decision, which is a 26-page deep-dive into federal rule-making. It's not for the faint of heart or people without a law license.
The bigger issue — the heart of the lawsuit — was about how unlawful presence should be counted. Students, scholars and researchers and their dependents who hold F, J or M visas are considered to be unlawfully present in the United States if they stay here after committing a violation that would cause them to lose their visa. If they remain for more than 180 days after that, they can be banned from re-entering the U.S. for three years. If they stay unlawfully for more than a year, it's a 10-year ban.
Under the current rule that the Trump administration wanted to change, the unlawful presence clock doesn't start ticking until there's a formal decision from an immigration judge or the U.S. Department of Homeland Security. Under the proposed change struck down last week, the clock started ticking when the violation was committed whether the visa-holders knew it or not.
The feds said its proposal would reduce the number of people who overstay their visas. International students are indeed more likely to stay beyond the dates of their visa, according to this Department of Homeland Security report. The percentages, though, are relatively small — 3.7 percent of all student and exchange visa holders versus 1.2 percent of all people issued visas. Only about 3 percent of all visas set to expire in the 2017-18 federal fiscal year were held by international students.
Guilford and the other colleges argued that it would be pretty easy and thus unfair for student visa holders to rack up unlawful presence time without realizing the proverbial clock had started ticking.
So what events can lead to unlawful presence? It's a long list that includes withdrawing from school, enrolling part-time instead of full-time, working too many hours at a campus job, getting an unauthorized off-campus job and failing to update an address after moving. Life is complicated, the colleges argued, and simple mistakes could have life-altering consequences. Having such an opaque rule in place, they further argued, could scare off international students who make up about 5.5 percent of all U.S. college enrollment.
P.S. The Education Dive story above notes that this saga probably isn't over: "The federal agency plans to propose regulations that describe when and how visa-holders begin accruing unlawful presence later this year."