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Harvard and MIT sue Homeland Security and ICE over Student Visas

By Daniel Farber Huang

July 8, 2020

Memorial Hall at Harvard University (Photo by Sasha Prasastika from Pexels)

CAMBRIDGE, Mass., July 8, 2020 — Harvard University and the Massachusetts Institute of Technology (MIT) filed a lawsuit against Homeland Security and ICE. The universities are seeking a temporary restraining order against the government’s July 6 directive requiring international students studying under nonimmigrant student visas to attend classes in person, not online.

Harvard President Lawrence S. Bachow announced the lawsuit in a July 8 statement to the Harvard community.

Bachow said, “The order came down without notice—its cruelty surpassed only by its recklessness. It appears that it was designed purposefully to place pressure on colleges and universities to open their on-campus classrooms for in-person instruction this fall, without regard to concerns for the health and safety of students, instructors, and others.”

President Trump declared a national emergency on March 13 in response to COVID-19. According to the filing, the federal government recognized that public safety considerations would require universities to educate students remotely.

The same day the national emergency was declared, U.S. Immigration and Customs Enforcement (ICE), a division of the Department of Homeland Security, issued an “exemption” to a preexisting rule that required international students in the U.S. on certain nonimmigrant student visas (“F-1” and “M-1” visas) to attend most classes in person.

A nonimmigrant is defined as any foreign national who temporarily visits the United States to fulfill a specific purpose, such as tourism, business or studying.

Under the new March 13 exemption, ICE stated that students holding nonimmigrant visas could attend remote classes while retaining their visa status. At the time, the government made clear that this arrangement was “in effect for the duration of the emergency.”

According to ICE, slightly more than 1.2 million international students with F-1 (academic) or M-1 (vocational) status were studying in the U.S. as of March 2020.

Harvard and MIT claim their schools, similar to other schools across the nation, have been working intensively over the past few months to develop plans that will keep students and faculty safe during the fall semester in light of COVID-19.

On July 6, Trump tweeted, “SCHOOLS MUST REOPEN IN THE FALL!!!”

Although the declared national emergency remains in effect, that same day ICE rescinded the March 13 guidance, stating that students attending entirely online programs may not remain in the U.S. or be allowed to enter the U.S. Additionally, F-1 and M-1 students who were outside of the U.S. would not be allowed to enter the country if they were enrolled in online-only courses.

Students in online-only programs wishing to remain in the U.S. would have to transfer to another school that provides in-person or hybrid (both in-person and online) instruction. Those students who fail to comply with ICE’s rule change may face deportation.

Harvard and MIT submitted their lawsuit in U.S. District Court in Boston two days later.

The lawsuit states, “By all appearances, ICE’s decision reflects an effort by the federal government to force universities to reopen in-person classes … The effect—and perhaps even the goal—is to create as much chaos for universities and international students as possible.”

The filing states that Harvard has nearly 5,000 students studying on a F-1 visa, and MIT has nearly 4,000. The suit claims it is impossible, impracticable, prohibitively expensive, and/or dangerous for many students if they have to return to their home countries to participate in online instruction.

For example, the filing states, some Harvard and MIT students are from Syria, where civil war and an ongoing humanitarian crisis make Internet access and study all but impossible. Others come from Ethiopia, where the government has a practice of suspending all Internet access for extended periods, including presently as of June 30, 2020.

Also, Harvard and MIT state that transferring to another school is not an option for most students. Applying to and being accepted by another school would be extremely difficult given that the fall semester is only weeks away.

MIT President L. Rafael Reif said in a July 8 online statement to the MIT community, “I know firsthand the anxiety of arriving in this country as a student, excited to advance my education, but separated from my family by thousands of miles. I also know that welcoming the world’s brightest, most talented and motivated students is an essential American strength.”

Harvard Vice Provost Mark C. Elliot filed a declaration with the court in connection with the lawsuit in which he said the university has heard from students from all parts of the world who will face challenges if forced to return to their home countries. Potential risks to students include the possibility of being drafted into their home country’s armed forces, threats and abuse based on their sexual orientation, lack of adequate mental health treatment from qualified professionals, and excessive costs such as “exorbitant” airline tickets that were a minimum of $4,000 or forfeiting leases at the student’s own expense.

Cynthia Barnhart, Chancellor of MIT, also filed a declaration stating “Some families will be forced to split apart in order to comply with the July 6 Directive.”

The Harvard/MIT suit claims ICE’s attendance requirement violates the Administrative Procedures Act, which governs the process by which federal agencies develop and issue regulations. The schools are seeking a temporary restraining order and permanent injunction preventing Homeland Security and ICE from enforcing the new policy.

Harvard President Bachow said, “We believe that the ICE order is bad public policy, and we believe that it is illegal … we will not stand by to see our international students’ dreams extinguished by a deeply misguided order.”


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