Federal judge blocks four-year cap on international student

A federal judge has temporarily blocked a U.S. Department of Homeland Security rule that would have capped visas for international students at four years. The rule was set to take effect on Tuesday but was halted by U.S. District Judge F. Dennis Saylor on Monday.

In a 48-page ruling, Judge Saylor said a lawsuit against DHS by higher education groups is likely to succeed. He stated that colleges would suffer immediate irreparable harm if the rule took effect during the ongoing case. The judge detailed numerous violations of the Administrative Procedure Act by DHS in crafting the regulation.

Judge criticizes rule's justification and process

Judge Saylor rejected the Trump administration's stated justifications for the visa cap, which were upholding national security and preventing visa fraud. He said DHS relied on anecdotal incidents that would have been unaffected by the student visa cap rather than demonstrating a widespread threat. This disconnect raises legitimate questions as to whether its real purpose is not to safeguard national security and protect our borders, but to achieve other, undisclosed, goals, Saylor wrote. He added that the government's contention that the rule is necessary to safeguard national security borders on the absurd.

Federal agencies are required to hold a public comment period on substantial proposals. DHS held a 32-day period, which Saylor described as exceptionally short, and barely legal. The agency received some 22,000 comments, with an overwhelming majority opposing the change. The final rule had few differences from the initial proposal, and Saylor said the agency didn't meaningfully address the concerns raised.

Concerns over institutional control and abuse

Among the issues Saylor flagged were concerns that the rule could be used inappropriately. It is not difficult to imagine how that system might be abused to punish those whose viewpoints or research are disfavored by the officials making the decision, or, indeed, punish disfavored institutions, he said in the ruling.

Under the proposed four-year visa cap, international students and academics holding F or J visas would need to apply to DHS for an extension to complete their studies. Saylor raised concerns about the lack of detail for that process, calling it vague and at the discretion of individual officials. In other words, a DHS official, based on limited and vague criteria, and with no possibility of appeal, will have the power to cut short the academic, research, or teaching activities of any non-U.S. Citizen for no reason or any reason, he wrote.

Higher education groups applaud the injunction

The plaintiffs, a coalition including the American Federation of Teachers, NAFSA: Association of International Educators, and the Presidents’ Alliance on Higher Education and Immigration, sued in August. They lauded the court's decision to pause the rule. Randi Weingarten, president of AFT, said the preliminary injunction is proof positive that the Trump administration's proposed limits on how long international scholars have to complete their studies is arbitrary and hostile.

NASFA CEO Fanta Aw agreed, calling the court order an important step toward preserving a fair and predictable system for international students and scholars and the institutions that welcome them. DHS did not immediately respond to a request for comment on Tuesday. The next hearing in the case is scheduled for October 2.