Harvard Signs Amicus Brief Opposing More Stringent Student Visa Policies

Harvard signed onto an amicus brief Friday objecting to federal visa policy changes made in August that tightened visa overstay rules for international students.

The brief opposes the United States Citizenship and Immigration Services policy memorandum’s revision of rules for how unlawful stay time is calculated for visa-holding students. In particular, the signatories are concerned that the new policy “introduces significant and destructive uncertainty” to international students’ and scholars’ study in the United States, according to the brief.

Harvard joined 64 other U.S. institutions of higher education in signing the brief, most of which are members of the Presidents’ Alliance on Higher Education and Immigration, a coalition of schools that advocates for policies supportive of undocumented, immigrant, and international students.

The amicus brief supports Guilford College, et. al. in its lawsuit against U.S. Secretary of Homeland Security Kirstjen M. Nielsen, et. al. The plaintiffs are calling for a temporary hold on new immigration policies that place restrictions on overstaying a visa. Under longstanding immigration policies, when an individual is no longer authorized to remain in the U.S. — such as when a visa expires — a period of “unlawful presence” begins. After six months of unlawful presence, an individual can be forced to return to their country of origin and subject to a three year bar from the U.S.

Prior to the August policy change, individuals only began to accrue unlawful presence the day after the government issued an official determination that the visa holder was “out of status,” according to the amicus brief. Since the enactment of the new rules, the Department of Homeland Security can set retroactive start dates for unlawful presence that begin the day after an individual’s degree program is complete or the day after a person's visa expires.

The amicus brief argues that the new rule puts visa-holding students in a position to make “tough choices.”

“Under the prior policy, when international students did become aware of a potential issue, they were able to make corrections and request reviews and adjustments, without fearing the accrual of unlawful presence,” the brief states. “International students can stay in the country while they seek review and run the risk of accruing additional unlawful presence time, or they can interrupt their studies and leave the country while the issue is being resolved.”

The Presidents’ Alliance argues that the new rules will harm current international students and deter others from coming to the United States in the first place.

“The DHS’s new backdating rule will likely result in fewer international students, scholars, and instructors contributing to our communities,” the brief reads.

The filing includes a 2017 survey of international students applying to U.S. educational institutions in which roughly one-sixth of those surveyed specified “visa restrictions for international students” as a deterrent to studying at U.S. schools.

University spokesperson Jonathan L. Swain wrote in an emailed statement Friday that Harvard believes the current “unlawful presence” policy is “a step in the wrong direction.”

“This policy will undermine the ability of American colleges and universities to attract and retain the top foreign talent that is critical to our global understanding and leadership in discovery, innovation and economic competitiveness,” Swain wrote.

The brief itself quotes an email former University President Drew G. Faust sent to University affiliates in January 2017. Faust argues in the email that international students are important to the school’s mission.

“‘Our robust commitment to internationalism is not an incidental or dispensable accessory,’” the brief quotes from Faust’s email. “‘It is integral to all that we do, in the laboratory, in the classroom, in the conference hall, in the world.’”

Harvard’s participation in the brief follows months of on-campus activism in the wake of efforts by President Donald Trump's administration to terminate Deferred Action for Childhood Arrivals and remove some people's Temporary Protected Status. The former is an Obama-era program that allows undocumented youth to live and work in the United States, and the latter is a designation for certain foreign nationals who are unable to return to their country of citizenship due to unsafe circumstances like an armed conflict or natural disaster.

— Staff writer Annie C. Doris can be reached at annie.doris@thecrimson.com.