Haverford College joins suit against Feds over visa policy
Haverford College has joined three other institutions of higher learning in a complaint against the U.S. Department of Homeland Security and U.S. Citizenship and Immigration Services over a new educational visa policy that it claims will “fundamentally disrupt” the lives of those impacted.
The complaint filed in the U.S. District Court for the Middle District of North Carolina stems from an Aug. 9 policy change regarding F, J and M visas that the plaintiffs say could place three- or
10-year bars on re-entry for tens of thousands of visa holders without an opportunity to cure their “unlawfully present” status.
“The imposition of a re-entry bar on an international student or exchange visitor has a drastic effect on her life,” the complaint says. “It will preclude her from completing her degree program, deprive her of employment opportunities, and exclude her from friends and family living in the United States. For those students and visitors who have chosen to teach or work in the United States, imposition of a three- or
10-year re-entry bar will fundamentally and irreparably injure their lives. It also imposes a financial harm on institutions in terms of lost tuition dollars and local communities in terms of foregone discretionary expenditures by (visa) holders.”
The plaintiffs allege four causes of action including violations of due process under the Fifth Amendment, failure to observe the Administrative Procedure Act and conflicts with the governing statute. The complaint also claims the new policy is arbitrary and capricious.
Haverford College spokesman Chris Miller said the college would allow the filing to speak for itself. The USCIS does not comment on pending litigation, but did point to prior comments by Director L. Francis Cissna, also a named defendant.
“F, J, and M non-immigrants are admitted to the United States for a specific purpose, and when that purpose has ended, we expect them to depart, or to obtain another, lawful immigration status,” said Cissna in a release announcing the changes. “The message is clear: These non-immigrants cannot overstay their periods of admission or violate the terms of admission and stay illegally in the U.S. anymore.”
More than a million individuals travel to the United States each year to study and teach, according to the complaint. An “F” visa provides for a person to enter the country in pursuit of an educational program, while an “M” visa applies to those looking to study at a vocational or technical school. A “J” visa is for individuals participating in an “Exchange Visitor Program,” such as students, professors, physicians and scholars.
Each of the visa types are issued on a non-immigrant basis, according to the complaint, and do not come with a “date certain” of expiration. Rather, they are admitted for the “duration
of status,” meaning until their studies or other work is completed.
Haverford indicates in the complaint that it has 148 students on F-1 visas and one student on a J visa. Another 17 alumni hold F visas during a period of optional practical training, according to the complaint.
As a result of the 2018 policy shift, the college said it had to ask two international students to leave the campus based on potential status violations that previously would not have disrupted their studies.
The complaint notes that international students contributed nearly $37 billion to the U.S. economy in 2016 and 2017 alone, creating or supporting 450,000 jobs, according to NAFSA: Association of International Educators.
Congress created the concept of “unlawful presence” in 1996 and established a three-year bar to reentry for those in the country unlawfully for more 180 days but less than a year. At one year or longer, the bar goes to 10 years.
A policy on implementing the statute was adopted in 1997 and determined that “unlawful presence” would begin the day after a government official or immigration judge found the individual was “out-of-status” with the visa, according to the complaint.
This allowed well-intentioned visa holders who might have been unwittingly out of compliance due to technical or typographical errors 180 days to either vacate the country or cure their circumstances before bars to reentry came down, the complaint says.
But the new policy implemented in August backdates the unlawful presence clock to the point that the visa holder first fell out of status, according to the complaint, rendering tens of thousands of visa holders unable to cure their circumstances before being subjected to reentry bars. The new policy is mandatory and permits no discretion on behalf of those enforcing it.
The complaint says the August policy memorandum referenced information gleaned from the Student and Exchange Visitor Information System on overstay rates for visa holders, but that system is fraught with inaccurate information and USCIS has admitted that it is unable to know with certainty when F, J and M visa holders depart the United States.
The SEVIS database has also been in operation since 2003 and the defendants were unable to offer any explanation as to why the creation of that system justifies a policy change now, 16 years later, according to the complaint.
The plaintiffs note that there are also a multitude of innocuous ways a visa holder might become “outof-status,” including forgetting to submit a change of address, working one hour more than authorized in a week, and any employment by a spouse or child – even babysitting.
Even typographical or other errors entered into the SEVIS database, such as erroneously identifying a student as having completed a course of work, could be enough to render the visa holder “out-of-status” with no recourse to correct the error, the complaint says.
The plaintiffs are asking the court to declare the August policy memorandum unlawful and vacate the new policy. They are also seeking an order barring the defendants from enforcing or applying any aspect of the policy change.