UC poised to sue federal government over new visa policy for international students

The University of California today (July 8) announced new plans to file suit against the federal government for violating the rights of the University and its students when the U.S. Department of Homeland Security (DHS) directed Immigration and Customs Enforcement (ICE) to bar international students from staying in the country if they attend U.S. universities that offer only online courses during the COVID-19 health crisis.

The lawsuit will seek a temporary restraining order and preliminary and permanent injunctive relief to bar ICE from enforcing an order that UC President Janet Napolitano called “mean-spirited, arbitrary and damaging to America.”  

“The University of California's legacy and leadership would not be the same without the international students and faculty who have come to this institution,” said UC Board of Regents Chair John A. Pérez. “As part of our effort to respond to COVID-19 and to protect the health of all our students, UC has increased online instruction and decreased in-person classes. Even last-ditch efforts can cause real harm, so it is imperative for UC to file this lawsuit in order to protect our students. To UC's international students, I say: ‘We support you and regret the additional chaos ICE's action has caused.’ To the courts, I say, ‘We are the University of California. UC knows science, UC knows law, and we approach both in good faith. Our opponents have shown you time and again that they do not.’”

The ICE guidelines mandate international students with F-1 and M-1 visas transfer to an institution offering in-person instruction or risk “immigration consequences including, but not limited to, the initiation of removal proceedings.” An F-1 visa is issued to students who are attending an academic program or English language program. M-1 visas are issued to students taking non-academic or vocational courses.

According to 2019 fall enrollment data, 27,205 of UC’s 226,125 undergraduate students are non-resident international while 13,995 of the University’s 58,941 graduate students are non-resident international.

“At a time when college students across America are struggling to deal with the challenges and uncertainty of the COVID-19 pandemic while focusing on their studies, this capricious and illegal order from the federal government plunges them into deeper anxiety and uncertainty,” said Napolitano. “It is illegal, unnecessary and callous.”

Making it more difficult for international students to study here undermines decades of collaboration between the U.S. and our international partners, particularly in fields that contribute to America’s economic vitality.

UC’s suit will argue, among other things, that ICE failed to follow the Administrative Procedure Act and failed to consider both the University’s and students’ reliance interests when it barred international students from attending universities that only offer online courses during the ongoing health crisis. Like most universities in America, UC is offering a mix of online and in-person courses this fall as it grapples with COVID-19 and how to safely provide top-quality education to its students. 

On July 6, ICE announced it was changing temporary exemptions for non-immigrant students taking online classes due to the pandemic. The new policy means that non-resident, international students will be forced to leave the U.S. or transfer to another college if their schools operate entirely online this fall. New visas will not be issued to students at those schools. International students will not be exempt even if an outbreak forces their schools online during the fall term or even if state or local regulations or orders prohibit offering in-person classes.

The directive comes at a time when the federal government is putting pressure on universities and K-12 schools to open in the fall despite a sharp rise in new coronavirus infections. The U.S. has seen more than 300,000 new cases since July 1.

“The safety of our students and the campus community is our paramount concern and guides what we do,” said Napolitano. “The idea that the federal government would add to the burden of students and universities working to navigate this global health crisis beggars belief. UC will fight this blatant disregard for the law and public health with all the legal means at our disposal.”

The suit will mark the second UC has filed against DHS for its disregard for the rules governing agency actions. The first suit filed against the federal government was in 2017 over the rescission of the Deferred Action for Childhood Arrivals (DACA) program, a program Napolitano created in 2012 when she served as DHS secretary for President Obama. In that case, UC argued the federal government violated the Administrative Procedures Act because DHS officials arbitrarily ended the program. Last month, the U.S. Supreme Court ruled the government did not provide adequate explanation for its reversal of policy and therefore cannot immediately end the DACA program.