Harvard and MIT have swiftly filed a lawsuit against the U.S. Department of Homeland Security and Immigration and Customs Enforcement, following ICE’s surprise Monday announcement that the agency may deport international students if they don’t attend class in person. It’s a spectacularly on-brand counter-offensive via disaster opportunism with a mixture of racism and anti-intellectualism, with a little added pressure for schools to re-open in time for the campaign.
The complaint points out that in March, ICE suspended a rule, for the duration of the national emergency declared by Donald Trump, that students on F-1 and/or M-1 visas must attend in-person classes. Four months in, the emergency is just getting started, and Trump seems unlikely to rescind that official status and its contingent powers.
Like many schools, Harvard and MIT say they’ve spent months carefully assessing the deadly risks to their communities in concert with public health officials and epidemiologists, decided to proceed with a mix of online and in-person learning through the fall, and have reduced on-campus living. MIT currently has nearly 4,000 students holding F-1 visas, and Harvard has enrolled roughly 5,000 students with nonimmigrant visas. According to the Washington Post, nearly 400,000 student visas were given to foreigners in the 12-month period starting on September 30th, 2018.
ICE characteristically sprung a pile of last-minute paperwork on schools: those planning to operate entirely remotely have to file a report, or “operational change plan,” within a week. Universities to offer a mix of online and in-person learning must submit proof that every single student on an F-1 visa (“in some cases, numbering in the thousands per university”) will be taking some in-person classes by August 4th. ICE’s proposed solution is that students attending online-only classes should just transfer schools. In mid-July.
Harvard and MIT suspect this is part of “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 complaint reads. As Harvard points out, the median age of faculty in Arts and Sciences is over 60; thousands of teachers across the country, in a much higher risk group than their students, have said that there’s no way in hell they’re setting foot on campus until this is over. They don’t mention the age of janitorial and other staff members, but do note that most non-faculty staff live farther from campus and “are at risk of spreading the virus across the greater Boston area.”
The complaint goes on to describe the scope of the mayhem ICE is wilfully ignoring: closed borders, signed leases for on-campus housing, steep airfare expenses for hazardous flights, time zone differences, government firewalls, and internet black-outs (for example, in China and Ethiopia, respectively), and humanitarian crises in home countries like Syria. And if students with F-1 visas don’t leave by ICE’s rush deadline, they risk detention and deportation which would prevent them from returning to the U.S. for a decade.
Likely toward ICE’s long-term goal, rescinding a student visa will set students back from starting careers in the United States. Many students apply for OPT (optional practical training), which allows people who’ve held F-1 visas for a preceding year to work for up to 12 months, before or after graduation. This ideally leads to a work permit like a highly coveted H1-B visa, which allows workers in specialised fields to work for up to six years.
Harvard and MIT argue that the new rule violates the Administrative Procedure Act in that its lack of “reasoned decisionmaking” is “arbitrary and capricious,” citing a similar Supreme Court decision regarding the Department of Homeland Security’s revocation of DACA status. They ask for a temporary restraining order and permanent injunctive relief against enforcement. Even if the court does issue a restraining order, ICE has successfully done its job, making the U.S. a lousier place for a lot of people, some of whom might otherwise be occupied with student stuff like trying to save lives.
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