Yale joins legal challenge to new federal visa policy

Yale has joined 58 other colleges and universities in a legal brief supporting a lawsuit that challenges a new federal rule denying international students visas if they take all their fall courses online.

The amicus, or “friend of the court” brief, aims to bolster a July 8 federal suit filed against the U.S. Department of Homeland Security (DHS) by Harvard and the Massachusetts Institute of Technology. The two universities seek a preliminary injunction to halt enforcement of the DHS rule until the litigation is finished.

The broader group of universities asserts in its brief that the federal government’s policy change is causing “significant harm and turmoil” as schools prepare for the fall term amid the COVID-19 pandemic. The brief asks the court to halt the directive and affirms the vital role of international students in strengthening and enriching the nation’s college campuses.

“These students are core members of our institutions,” states the brief, filed July 12 in U.S. District Court in Boston. “They make valuable contributions to our classrooms, campuses, and communities — contributions that have helped make American higher education the envy of the world.”

The new DHS rule, announced July 6, would subject international students to deportation if their schools provide online-only instruction. It contradicts federal guidance issued March 13 that allowed international students to remain in the United States if their courses moved online due to the public health crisis, the brief asserts. The policy change was announced as universities were finalizing plans for the fall term.

The amicus brief asks the court to grant the preliminary injunction on a nationwide basis. It argues that the new federal directive is “arbitrary and capricious,” citing four reasons: First, it fails to address the reliance that schools placed on the previous federal guidelines, which allowed them greater flexibility amid the COVID-19 crisis. Second, it does not consider the substantial dilemmas the rule raises for institutions and students, and it does not justify the imposition of those dilemmas. Third, it does not consider the burdens that complying with the policy will impose on schools. Finally, the brief argues, the federal government offered no reasoned explanation for the policy.  

The brief further argues that the lack of an explanation is not surprising because the policy directive is not intended to ensure that students pursue a full course of study or protect the integrity of the student visa program. Rather, the brief asserts, the new policy leverages the vulnerability of international students “to force a broad reopening for reasons wholly disconnected from the underlying statute and regulation, and without regard to students’ ability ‘to continue to make normal progress in a full course of study.’”

Other institutions joining Yale in the amicus brief include six other Ivy League schools, Stanford University, Duke University, Johns Hopkins University, the California Institute of Technology, and dozens of other public and private universities across the United States.  The schools collectively enroll more than 213,000 international students annually. As of fall 2019, 3,014 international students from 120 different countries were enrolled at Yale, representing 22% of the university’s total enrollment. 

“We are taking this action for a simple reason: to do what we can to make sure the DHS policy receives judicial scrutiny,” Yale President Peter Salovey said of the court filing in a July 10 message to the Yale community. “This ill-considered decision by the federal government must not go unchallenged: there is too much at stake for our international students, for the universities like Yale that welcome them, and for the country, which benefits so much from their contributions to scientific breakthroughs, medical care, economic growth — and our very understanding of the world.”

Yale plans to offer all students a hybrid learning model in the fall, one that combines remote learning with some in-person instruction. This should allow the university’s international students to meet the new federal visa requirements regardless of the litigation’s outcome, Pericles Lewis, vice president for global strategy, wrote in a recent email to international students.

In addition to joining the amicus brief, Yale submitted a declaration in support of a separate federal lawsuit that 17 states, including Connecticut, and the District of Columbia filed July 13 contesting the new DHS policy.

Yale also is working with the American Council on Education, the Association of American Universities, and other groups to challenge the rule. Salovey has written to relevant federal officials objecting to the policy, and the university is working with Connecticut’s congressional delegation to oppose the directive and protect international students.

The Office of International Students and Scholars (OISS) maintains a website to provide international students news and information on the visa policy. OISS staff is available to assist students with questions and concerns about the policy.