Hiiraan Online

By Stuart Anderson
Monday September 28, 2020

A view of New York University (NYU). Like many universities, NYU would be affected by a proposed ... [+] SOPA IMAGES/LIGHTROCKET VIA GETTY IMAGES

The Trump administration has proposed a new regulation that would significantly change how international students are treated in the United States. Critics believe the rule will discourage international students from coming to America and rests on questionable assumptions and shaky data. (See here.)

To better understand the proposed rule, and its impact on students and universities, I interviewed Dan Berger, a partner at the immigration law firm of Curran, Berger & Kludt, who specializes in issues affecting international education.

Stuart Anderson: Will the proposed regulation affect currently enrolled international students?

Dan Berger: Yes. Overall, the proposed rule moves from “duration of status” – a flexible concept that allows students to remain in the United States while making “normal progress” in an academic program – to a new policy that imposes an artificial fixed end date. The proposed regulation has a complicated transition setup that students and their universities need to understand.

The proposed rule flips the assumption about how students are treated. The current rule allows opportunities to change majors, career plans, etc. and stay in school while genuinely studying. The proposed rule is enforcement-oriented. The only basis to request time are “compelling academic reasons,” a medical condition, or a natural disaster or other major event. “Compelling academic reasons” are not clearly defined, which means students cannot count on getting an extension. Students may apply and find out months later that they cannot stay even if the school supports the extension.

DHS asserts it is trying to weed out students who are progressing slowly in their programs. For longer programs, a four-year maximum stay may not be long enough. For example, Ph.D. students will have four years from when the rule is published, and at the end of those four years will need to apply for an extension to continue since most Ph.D.’s take five or more years.

Anderson: How would the proposed rule affect a student applying for Optional Practical Training (OPT) or STEM (science, technology, engineering and math) OPT?

Berger: Currently, Optional Practical Training involves one application and one fee. For most students, the proposed rule would require two application forms, each with a separate fee, an extension of status and a request for a work card. This increases the cost and the chance of delay. As an example, another immigration category, the H-4, requires two forms and is quite slow (from 6 to 12 months or even longer).

The proposed rule allows students to apply for OPT 120 days before graduation (it is 90 days now), which may help a bit with the delays. But the rule narrows the window to apply for OPT after graduation from 60 to 30 days. That gives students less flexibility to plan the start of OPT based on how their job search is going.

Also, it is unclear whether employers hoping to hire international students will choose to wait for the OPT process to be complete. U.S. employers will lose a valuable, talented pool of international students if it becomes even more difficult to hire them.

On a positive note, there are two small changes in the proposed rule. First, students will no longer have to file for Optional Practical Training within 30 days of when the international student office recommends/submits OPT. That will avoid some OPT denials for filing late. Second, OPT would be extended until April 1 of the following year if an H-1B petition is pending. The current “cap-gap” extends OPT up to October 1, but with a new H-1B lottery system, some H-1B petitions are not approved by October 1. The new “cap-gap” will help avoid work stoppage between October 1 and the H-1B approval.

Overall, despite these two small pluses, the proposed rule will make it harder for students to work after graduation, and significantly more uncertain for the employers who want to hire them.

Anderson: Under the proposed rule what would be the process for a student to stay beyond the two- or four-year period allowed?

Berger: The student will have to file for an extension of status on Form I-539. USCIS started requiring biometrics collection (digital photo and fingerprinting) last year, which has driven up processing times. Posted processing times at the California Service Center are 7.5 to 10 months for F students to extend/change status.

As an example of how slow I-539s can be, this past summer, some doctors graduating from U.S. medical schools who filed I-539s to start their residency training did not get an approval in time and started late (even with expedited requests based on the need for physicians during the pandemic). The proposed rule will likely cause delays and uncertainty for students.

As for cost, DHS estimates a student could pay over $1,000 for each extension, depending on whether or not an attorney is hired. Many schools consider an I-539 a personal application and will not let their international student advisers help since that might be considered unlawful practice of law.

Anderson: What should universities be most aware of in the regulation?

Berger: To me, the most important takeaway is that it is unnecessary. International students are among the most tightly regulated visa categories. The SEVIS database, set up after 9/11, covers every single international student, and is run by ICE (Immigration and Customs Enforcement). Schools have specific requirements for adding updates. There is not sufficient evidence to support the idea that international students need more regulation.

DHS asserts that a significant number of international students stay after their studies, and become undocumented. But that is based on the number of international students who have not left the United States. It does not take into account the fact that students may stay legally, such as by getting a green card through family or work, and DHS may be missing many people due to inadequate systems or for other reasons.

Various organizations are planning to submit comments, which are due by October 26. The proposed rule affects J-1 exchange visas also and will have a significant effect on training of international physicians. I encourage others, especially affected colleges, universities and employers, to add their comments.

If the rule is finalized in 2020, colleges and universities may be forced into action to support their international students. Schools will have to take steps that will be hard to undo if the regulation is blocked later in court, such as enrolling fully in E-Verify (a government program for screening all new hires), recruiting and training additional international student advisers, paying for lawyers to help students file the I-539 applications, and, sadly, accepting that it will be difficult for U.S. universities to attract students from certain countries.

Penn State Law School notes, “Specifically, individuals who were born in or are citizens of countries designated as state sponsor of terrorism – Iran, North Korea, Sudan and Syria – or citizen of countries with a student and exchange visitor visa overstay rate exceeding 10% would only be eligible for 2-year visas subject to renewal. According to DHS, these countries currently include Afghanistan, Benin, Bhutan, Burkina Faso, Burma, Burundi, Cameroon, Cape Verde, Central African Republic, Chad, Congo-Brazzaville, Congo-Kinshasa, Côte d'Ivoire, Djibouti, Equatorial Guinea, Eritrea, Ethiopia, Gabon, the Gambia, Ghana, Guinea, Guinea-Bissau, Guyana, Haiti, Iraq, Kenya, Kosovo, Kyrgyzstan, Liberia, Libya, Malawi, Mali, Mauritania, Moldova, Mongolia, Nepal, Niger, Nigeria, Papua New Guinea, the Philippines, Rwanda, Samoa, Senegal, Sierra Leone, Somalia, South Sudan, Sudan, Syria, Tajikistan, Tanzania, Togo, Tonga, Turkmenistan, Tuvalu, Uganda, Uzbekistan, Vietnam, Yemen and Zambia.”

The proposed rule hurts students who may struggle academically. Some international students take time to polish their English, and adapt to a new culture and educational system. The proposed rule says that passing a class is “within the student’s control,” and failing classes is a reason to deny an extension. If a school believes that a student has the potential to succeed, DHS should not second guess.

Anderson: What are the chances the proposed rule will go into effect?

Berger: It is hard to make predictions these days. I suspect DHS will say no to extending the comment period, and then issue the final regulation relatively quickly after receiving the comments. That may mean the regulation will take effect this year.

There will likely be an immediate court challenge, and the regulation may well be stopped by a judge. It’s also possible that a different administration might pull back the regulation next year.

Anderson: Do you think the rule will discourage international students from coming to study in the United States?

Berger: One after another, DHS has announced policies that make it harder to study here. Even though some of those policies have been stopped in court (such as the unlawful presence memo last year or SEVIS guidance on in-person learning this year), they feed uncertainty and concern.

DHS’ own analysis of the proposed rule says that it could reduce the number of international students who want to come to the United States. There is an incredible range of educational opportunities in this country coupled with employers hoping to train foreign-born but U.S.-educated workers. I fear international students will increasingly look elsewhere.