In a July 6, 2020 directive that would seem to be completely untethered to public health, higher education, and economic considerations, the United States Immigration and Customs Enforcement [“ICE”] announced that it was rescinding its March 13, 2020 COVID-19 exemption for international students.  The March 13 guidance exemption had permitted students holding nonimmigrant student, or “F-1,” visas to attend virtual classes while retaining their visa status.  It was issued in conjunction with the March 13 state of emergency that President Trump declared in response to the Coronavirus pandemic.  Although ICE’s March 13 guidance noted that it was a “temporary provision,” it also provided that it would remain “in effect for the duration of the emergency.” 

The March 13 national emergency declaration has never been rescinded.  Nonetheless, in an abrupt and unanticipated about-face, ICE’s July 6 directive provides:  “Nonimmigrant F-1 . . . students attending schools operating entirely online may not take a full online course load and remain in the United States” (emphasis in original).  Similarly, ICE advised that the government “will not issue visas to students enrolled in schools and/or programs that are fully online for the fall semester nor will U.S. Customs and Border Protection permit these students to enter the United States.”  Consequently, for those colleges and universities that had intended to conduct all of its instruction virtually during the Fall 2020 semester, the July 6 directive places them in what is essentially an untenable position.  More specifically, they must either discard their plans to proceed entirely with remote learning, or they must suffer both a mass exodus of preexisting international students and the abrupt proscription of incoming international students, the parameters of which possibility are discussed in greater detail by my colleague, Adam Mocciolo, in his client alert.

In what might be the first of many such lawsuits, on July 8, 2020, Harvard University and the Massachusetts Institute of Technology jointly filed a lawsuit in the United States District Court for the District of Massachusetts, seeking a temporary restraining order as well as preliminary and permanent injunctive relief, preventing the federal government from enforcing ICE’s July 6 policy directive.  The suit further seeks a declaration that the July 6 policy directive is unlawful and requests a court order “vacating and setting aside the policy announced in the July 6 Directive and reinstating the March 13 Guidance.”  In support of these remedies, Harvard and MIT argue quite persuasively that ICE’s July 6 directive is arbitrary and capricious, and as such it violates the federal Administrative Procedures Act [“APA”].

Citing the recent explosion of COVID-19 infections, the lawsuit notes that the ICE directive “reveals no consideration of its action’s impact on the health of students, faculty, staff, or the surrounding community.”  Discussing these potential health consequences, the suit states that the “median age of the faculty members of Harvard’s Faculty of Arts and Sciences is over 60 years old,” and thus at the “highest risk for severe illness from COVID-19.”  Furthermore, the schools allege that increasing “the number of in-person sessions” would increase the risk to the schools’ staff, most of whom “reside outside of the immediate vicinity of their workplaces and are at risk of spreading the virus across the greater Boston area.” 

The most significant effect would be on international students, whose courses of study would be abruptly interrupted or who would be precluded from even beginning their enrollment as well as the spouses and children of those students who have accompanied them to the United States.  In their joint lawsuit, Harvard and MIT cite both the financial and personal “consequences of this sudden displacement,” writing:

Unless this Court intervenes, these students will be required to make precipitous arrangements to return to their home countries amid a worldwide pandemic that has caused nations to close their borders and has considerably limited international travel options.  They must abandon housing arrangements they have made, breach leases, pay exorbitant air fares, and risk COVID-19 infection on transoceanic flights.  And if their departure is not timely, they risk detention by immigration authorities and formal removal from the country that may bar their return to the United States for ten years [pursuant to] 8 U.S.C. §1182(a)(9).

The suit also notes that a number of students come from countries that lack the necessary internet infrastructure to learn remotely or whose governments discourage open internet access.  These impediments, in addition to time-zone variations, could render it extremely difficult, if not impossible, for students to participate in remote learning or, in the case of graduate students, to carry out instructional duties.  Harvard and MIT’s complaint also rejects ICE’s assertion that international students could suddenly, in the middle of July, transfer to another college or university “that offers in-person curriculum and therefore allows them to pursue their education . . . within the United States on [an] F-1 visa status.” 

The federal APA provides that courts must “set aside any agency action that is ‘arbitrary, capricious, an abuse of discretion . . . or otherwise not in accordance with law.’”  As Harvard and MIT note in their joint lawsuit, the United States Supreme Court has held:  “Agency action that is not the product of reasoned decisionmaking is arbitrary and capricious,” and little, if anything, about the July 6 directive seems reasoned.  The schools also reference the “‘serious reliance interests’ that ICE’s repeated prior guidance on this issue engendered,” citing the Supreme Court’s holding that it is “arbitrary and capricious [for government agencies] to ignore such matters.”  Additionally, Harvard and MIT argue that ICE’s directive seems completely divorced from the rapidly expanding reach of COVID-19, failing, in the lawsuit’s words, to:

consider the significant effects that it will have on universities that have invested considerable time and effort in developing plans for the 2020-2021 academic year – plans that carefully balance the health and safety of faculty, students, and staff with their core mission of educating students.  The July 6 Directive likewise fails to consider the devastating effects that it will have on international students who will be forced to leave the United States or will be unable to enter to take classes, or those who will not be able to return to their home – or any – country.

Finally, Harvard and MIT reference the APA’s requirement “that agencies publish notice of any proposed substantive rule in advance in the Federal Register, and that the public is given an opportunity to comment on proposed rules before they take effect.”  They argue that the July 6 directive constitutes a rule within the APA’s meaning as it is “designed to implement, interpret, or prescribe law or policy,” and substantively “alters students’ and universities’ rights and obligations under the law.”

Harvard and MIT’s joint lawsuit makes a compelling argument about the arbitrary and capricious nature of ICE’s July 6 directive.  The government will, of course, have the opportunity to respond, and it will be interesting to see how it will seek to justify what on its face appears to be a calculated and callous attempt to use international students as leverage in order to coerce colleges and universities to provide in-person instruction in Fall 2020.  Given the eleventh-hour reversal of its prior, March 13 COVID-19 exemption, the apparent lack of any adverse consequences of permitting international students to complete their 2019-2020 academic year coursework virtually, and the fact that the July 6 directive flies in the face of the government’s own public health guidelines, it would seem that ICE will have a difficult time making its case.

[View source.]