Conservatives react after nearly half of attorneys general denounce new DHS student visa rules

In late October, 23 U.S. states’ Attorneys General submitted a letter to the Department of Homeland Security expressing opposition to a proposed rule change that would place new limits on the time an international student can spend in the U.S.

The new rule would limit the validity of an international student visa to generally four years, the same amount of time it typically takes for a student to complete an undergraduate program. The current stipulation, characterized as “Duration of Stay,” allows a student to stay in the United States as long as they are pursuing a full course of studying or training.

A two-year maximum stay would be applied to students who meet certain categories, including coming from one of four state sponsors of terror, attending an institution that does not use the E-verify program, and coming from a country with more than a 10 percent rate of “overstay”- where a student allows their visa to expire and remains in the United States.

[Related: Illegal immigrants can now pay cheaper tuition than some American citizens in Virginia]

“This is another illegal attempt by the Trump Administration to exclude international students from our colleges and universities,” Massachusetts Attorney General Maura Healey said in a statement. “Massachusetts is home to tens of thousands of students from other countries who enrich our institutions and strengthen our communities. We’re calling on the Administration to withdraw this proposal immediately as it would have far-reaching impacts on our states, our economies, our students and our educational institutions.”

“When President Trump says America first, what he really means is America alone,” California Attorney General Xavier Becerra echoed. “Instead of strengthening cultural and economic ties with our partners, he coddles dictators and punishes students because of where they come from. In California, we’re proud to welcome journalists and students from around the world. We all win when we work together. Nobody benefits when the President sticks his head in the sand and tries to ignore our neighbors. That’s why we’re calling on the federal government to withdraw this latest flawed proposal.”

Healey and Becerra signed the letter along with state attorneys general from the District of Columbia, Colorado, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Michigan, Minnesota, Nevada, New Mexico, New York, Oregon, Rhode Island, Vermont, Virginia, Washington, and Wisconsin.

According to the complaint, the proposed limitations are “baseless,” “procedurally deficient, arbitrary and capricious, and contrary to law.” 

The letter alleges, among other things, that: 

• The DHS failed to give the public enough time to comment on proposal, and the effective start date is too soon.
• The rule change uses faulty data and unfairly targets students.
• The DHS did not properly consider the financial damage to universities and state economies.
• The proposed rule would add too much red tape.
• The rule directly conflicts with existing statutes and regulations.
• And Acting Secretary Wolf lacks the legal authority to implement the rule.

[Related: Declining international enrollment for US colleges likely to fuel further financial woes]

“The concerns raised by the AGs are not valid,” Andrew Arthur, the Resident Fellow in Law and Policy at the Center for Immigration Studies told Campus Reform. “ The changes proposed in this rule are critically important to the government’s ability to ensure compliance with student and exchange visitor visa programs and to reduce fraud and abuse of these visas. 

“This abuse includes misuse of the student/exchange visa status to prolong residency in the United States, as well as overstaying the visa to live illegally in the United States,” Arthur added. “No non-immigrant visas ever should be granted for an undetermined period of stay. These visas are by definition meant to be temporary, and the government should establish an end date by which the alien must apply for an extension or return home.”

“These changes are overdue,” Arthur continued, “as student/exchange visitors are admitted for a long period of time and with relatively little supervision.  And, these visa programs allow people who would not otherwise qualify for a visa to gain admission to the United States. These are people who are relatively young and perhaps not in stable employment, and therefore represent a high risk for overstaying.”

Arthur also said the studies’ own data makes the case against them:

“The AGs assert that DHS’s ‘Data Reflects a Decrease in Student and Exchange Visitor Overstays’,” Arthur explained, “specifically that overstays in these categories fell between in FY 2016 (79,818) fell and FY 2019 (60,311).  Though lower, it is still a significant number of aliens, and Congress has not appropriate sufficient funding for ICE to apprehend even a portion of them.  For example, in FY 2019, the Enforcement and Removal Operations (ERO) branch of ICE arrested approximately 143,000 aliens and removed 267,258. While seemingly a large number, it is important to note that only 32 percent of those aliens removed (85,958, or roughly 7,163 per month) were originally arrested by ICE in the interior of the United States (the rest were border arrests)—a category that would include overstay nonimmigrant students.  Of those removals, 91 percent had criminal convictions or pending charges.  The 60,311 overstays referenced, therefore, are equivalent to 70 percent of all ICE interior arrests in FY 2019.”

“So,” Arthur explained, “ICE could either focus its attention on apprehending and removing those nonimmigrant student overstays (which would mean thousands of criminals would remain in this country), or it could simply allow those overstays to remain—illegally—in the United States (which is by and large ICE’s current policy).  The regulatory change, which would make it less likely that nonimmigrant students overstay, ameliorate this situation, and relieve ICE of having to make that Hobson’s choice.”

Lora Ries, a senior research fellow for homeland security at the Heritage Foundation, also disagreed with the letter’s conclusions.

[RELATED: Harvard first-year international students must study ‘fully remote’]

“The universities don’t like it because it creates a burden for students,” Ries told Campus Reform. “The universities want more foreign students because foreign students pay full tuition and fees, so it’s about money for them.”

“If you come here as a student or exchange visitor,” Ries continued, “then that student or exchange visa should be tied to that purpose. What the government’s attempting to do here is get back to the original intent for this particular program, and cut out any fraud or abuse.”

“I imagine the universities supplied much of this language,” Ries noted, “even though it is signed by the attorneys general.”

[RELATED: ICE reverses policy after telling foreign students attending US schools online to go home (UPDATED)]

“The universities,” Ries concluded, “are really going overboard with this language. To say it would “permanently injure American educational institutions and the state economy by discouraging or outright preventing students and exchange visitors from pursuing educational opportunities in the United States”- that’s really a Chicken Little approach. Of course, students can still come here and study. The fact that after two years or four years- which is the duration of their program- that they would then have to go to UNCIS and prove why they need an extension- that’s completely reasonable.”

“This is about money. The universities want foreign students because they bring money... The universities supplied most of, if not all, the language.”

“The fact is, foreign students have had it quite easy in terms of enforcement and lack of compliance. They apply for one visa then just stay here years and years. And now they are complaining that they will be inconvenienced to have to seek an extension when their program is over and to justify that, which seems a very unreasonable complaint.”

Follow the author of this article on Twitter: @Arik_Schneider