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Unions Back Universities’ Lawsuit Against ICE Visa Rule (1)

July 13, 2020, 7:15 PMUpdated: July 13, 2020, 10:39 PM

Unions representing 600,000 student workers at universities throughout the U.S. filed a federal court brief in support of a lawsuit challenging a Trump administration policy intended to bar international students from continuing their studies in the U.S. if schools only offer online instruction during the pandemic.

Immigration and Customs Enforcement failed to articulate a satisfactory explanation for its policy choices as required by federal law, and didn’t fully consider the facts and evidence available to it, the American Federation of Teachers, Communications Workers of America, Service Employees International Union, and International Union of United Automobile, Aerospace, and Agricultural Implement Workers of America said in their amicusbrief, filed Monday.

ICE, which runs the Student Exchange Visitor Program, announced July 6 that it would rescind temporary accommodations for nonimmigrant students taking online classes due to the pandemic for the fall 2020 semester.

Students on F-1 and M-1 visas may not remain in the U.S. if the schools they are attending choose to switch to online-only instruction, the agency said in announcing the policy. Active students currently in the country under the program must either leave or take other measures, such as transferring to a school with in-person instruction, to remain in lawful status, the agency added.

The unions’ brief seeks to bolster arguments that administrators at Harvard College and the Massachusetts Institute of Technology made in a July 8 lawsuit seeking to block the directive. Harvard has “thousands” of student workers who also are union members, the labor organizations said.

The agency “failed to consider circumstances requiring students to remain in the country for online coursework and erroneously assumed that students never need to be present in the United States if their classes are online,” the unions argued. ICE proceeded as though students intended to pursue an online education, as opposed to being forced to continue preexisting studies online because of the pandemic, the labor organizations said.

A spokesperson for the agency declined to comment on the unions’ brief, citing the pending litigation.

In a response to the universities’ complaint, however, attorneys for the U.S. Department of Justice said the policy announcement was the latest in a series of decisions related to the Covid-19 crisis. The agency’s goal, administration attorneys said, was to provide advance notice to Student Exchange Visitor Program stakeholders that a temporary rule change would be forthcoming that would impact schools and students beginning in the Fall 2020 semester—a change that the agency said mirrors standing rules in the program.

“The July 6 policy announcement is nothing more than a reminder that students must depart should they violate the terms of their nonimmigrant student visa,” the DOJ attorneys said. They added that the Student Exchange Visa Program’s “guidance has repeatedly advised stakeholders that the agency’s position during the pandemic is fluid” and “warns all schools and students [that] the guidance may be altered or superseded at any time.”

Complications for Students

The unions cited a range of examples of negative ramifications for student workers on visas, saying ICE would have learned about these complications if “the Agency had cared to look.”

One Tufts University student who is a member of SEIU Local 509 has been allowed to work off-campus using a powerful computer system necessary to his complex research, but he would not be permitted to take that technology back to his country of citizenship, “and it would be prohibitively expensive” to re-create the system there, the brief said.

A student worker named Yan Wu, a member of Graduate Employee Organization UAW 2322 at the University of Massachusetts Amherst, “would need to attend and teach her courses from China—contending not only with a 12-hour time difference, but also figuring out how to communicate across the country’s internet-censorship regime,” the unions said.

Many others have unreliable internet connections or need access to on-campus libraries and archives to complete their programs in a timely fashion, according to the brief.

The unions also argued that the agency told program participants in March that it would recognize online coursework “for the course of” the public health emergency, leading many to plan accordingly.

Students working while pursuing a master’s degree or a doctorate receive a lot of compensation in the form of stipends or salaries from their schools, said attorney Reaz Jafri, head of the immigration practice at international law firm Withersworldwide in New York, who is not involved in the litigation.

Enrolled graduate students, for example, are often paid by a university while working with a professor as a mentor who has received a grant, Jafri said.

“In those circumstances, if the mentor and student are in different time zones, they face difficulties collaborating,” Jafri said. “Those parties have a different financial harm that they will sustain as opposed to the harm that a typical university student would sustain.”

Student workers in the U.S. under F-1 visas also are more likely to be older and have families and stronger ties to a university community than younger students, Jafri said. “I do think they have a greater loss there,” if they’re made to leave, he added.

(Updated with additional reporting throughout.)

To contact the reporters on this story: Genevieve Douglas in Washington at gdouglas@bloomberglaw.com; Hassan A. Kanu in Washington at hkanu@bloomberglaw.com

To contact the editors responsible for this story: Karl Hardy at khardy@bloomberglaw.com; John Lauinger at jlauinger@bloomberglaw.com; Andrew Harris at aharris@bloomberglaw.com

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