A federal judge granted universities and international students nationwide preliminary relief against an immigration rule restricting international students on F-1 visas to four years to complete their degree. The Department of Homeland Security final rule was scheduled to take effect on Sept. 15. Before the rule, international students were admitted for duration of status, meaning that if they were pursuing a course of study, they could generally remain in the United States without relying on new government approvals. The rule also limited J-1 visa holders to fixed four-year periods and foreign journalists to 240 days. DHS stated individuals “may apply for an extension,” but did not provide regulatory language ensuring a high probability of receiving one.

“For the foregoing reasons, plaintiffs’ motion for APA § 705 relief, a preliminary injunction, or, in the alternative, summary judgment, is GRANTED to the extent that it seeks to postpone the effective date of the Final Rule pursuant to the Administrative Procedure Act,” according to a memorandum and order on a motion for preliminary injunction by U.S. District Judge F. Dennis Saylor IV. “To the extent that plaintiffs seek vacatur of the Final Rule, summary judgment, or other relief, the motion is DENIED without prejudice to its renewal.”

University groups and attorneys were pleased with the decision in Presidents’ Alliance on Higher Education, et al., v. DHS . “The judge has blocked the rule from taking effect,” said Dan Berger of Green & Spiegel in an interview. “Not just for members of the plaintiff organizations, but for everyone. This means the judge believes that the government is likely to lose eventually in court, and so the rule should not be allowed to apply while the court case is pending.”

Berger said the ruling is a “great step for students and scholars,” arguing “it keeps decisions about programs with the academic advisers where they belong.” He pointed to aspects of the DHS rule that gained less attention but were of significant concern to educators. The rule prevented international students from obtaining a second degree at the same or lower level. In their complaint, plaintiffs also raised the restrictions the rule placed on changing majors or moving to another school.

“It is possible the government will appeal, but in my opinion the judge did an excellent job issuing a detailed, well-written opinion, so it will be as strong as possible on appeal,” said Berger.

Under the scope of relief, the judge noted that plaintiffs asked that the rule be vacated (nullified legally). “Under the circumstances, while vacatur (under § 706) may ultimately prove to be appropriate, the Court will take the more cautious approach of postponing the effective date of the Final Rule,” wrote Judge Saylor.

He noted that the plaintiffs represented almost 600 educational institutions, but he hesitated to grant relief only to those schools, given that there are more than 5,000 U.S. colleges and universities. He thought it could lead to “maintaining parallel regulatory regimes,” complicated by issues such as students transferring or pursuing joint degrees. “In this case, nationwide relief . . . prevents chaos and confusion that a party-specific order would inevitably generate. The Court will therefore grant the motion for a preliminary injunction to the extent it seeks to postpone the effective date of the Final Rule.”

The decision represents a significant victory for university organizations and international students. The plaintiffs in the case are the Presidents’ Alliance on Higher Education and Immigration; NAFSA: Association of International Educators; Association of Independent Colleges and Universities in Massachusetts; American Federation of Teachers; Graduate Labor Organization, AFT Local 6516; The NewsGuild-CWA; International Union, United Automobile, Aerospace and Agricultural Implement Workers of America; and United Auto Workers Local 2322. Dana McSherry and Paul Hughes of McDermott Will & Emery are counsel for the plaintiffs. The case was filed in the U.S. District Court for the District of Massachusetts.

“The court’s nationwide preliminary relief is an important step toward preserving a fair and predictable system for international students and scholars and the institutions that welcome them,” said Fanta Aw, executive director and CEO of NAFSA: Association of International Educators, in a statement. “At a time when countries around the world are competing for talent, the United States should be strengthening our ability to attract the best and brightest, not creating new barriers to it.”

“Today’s decision recognizes the serious and irreparable harm this rule would cause to international students and scholars, higher education institutions, and communities across the country, as well as to the U.S. economy, research and innovation,” said Miriam Feldblum, president and CEO of the Presidents’ Alliance on Higher Education and Immigration, in a statement. “We greatly appreciate the court’s clear and careful consideration. While the case continues, this relief preserves the longstanding system that enables our colleges and universities—and our country—to attract, educate, and retain global talent.”

The rule is part of the Trump administration’s efforts to restrict all categories of legal immigration and certain temporary visa categories. Economists and educators said the administration’s final rule would reduce international student enrollment, weaken American universities’ finances and deprive companies of talent. At U.S. universities, international students account for 80% of full-time graduate students in computer and information sciences, 75% in electrical and computer engineering, 62% in mathematics and statistics and a majority in industrial engineering, civil engineering and mechanical engineering. An upcoming administration rule may impose a prohibitive tax or fee on the ability of international students to work after graduation on Optional Practical Training.

A Judge Issues A Decision Against The DHS Immigration Rule

Judge Saylor began his 48-page memorandum and order by outlining the significant role international students play at universities and in the U.S. economy. "’More than half of all international students major in STEM fields (science, technology, engineering, or mathematics). According to a source cited in the complaint, '[i]nternational student alumni have . . . founded one quarter (143 of 582, or 25%) of all the billion-dollar start-ups in the U.S.’ Immigrants to the United States who attended American universities have been named as inventors on a disproportionate number of patents and have been awarded a disproportionate number of Nobel Prizes.” (I authored the National Foundation for American Policy billion-dollar startups study.)

The judge detailed the rule’s provisions and public comments addressing the rule. “Despite the massive anticipated impact of the rule, DHS provided an exceptionally short, and barely legal, 32-day period for public comments.” Still, approximately 22,000 commenters responded, mostly in “strong opposition.” He wrote, “Among other things, commenters pointed out serious flaws in DHS’s reasoning and offered multiple alternatives that would achieve the stated objectives with far less harmful effects on students, universities, journalists and the American economy.”

According to Judge Saylor, “DHS summarily rejected those views, dismissing their concerns as merely ‘speculative,’ based on mere ‘predictions,’ or ‘unquantifiable.’ In fact, because it asserted that the impact on enrollment was unquantifiable, it effectively concluded that the cost of that impact was zero. And in support of its own position, it offered almost entirely conclusory statements, non sequiturs , and statements of ‘belief’ without supporting reasoning.” The judge added, “To the extent DHS engaged at all on the substantive issues, its responses were largely disconnected from academic or practical realities.”

“The government’s contention that the rule is necessary to safeguard national security borders on the absurd,” wrote Judge Saylor. “It is based almost entirely on a small handful of anecdotes, each of which involved incidents that the new rule would do nothing to prevent or even mitigate.”

The plaintiffs’ complaint argued, “Commenters also pointed out that DHS’s anecdotal examples were illogical. For instance, with respect to national security, the National Foundation for American Policy contended that ‘DHS’s argument is not credible’ as ‘[i]f individuals represent national security concerns, hoping that they apply for an extension after four years so that an immigration officer can review their application is a woeful or even absurd security measure.”

Judge Saylor wrote, “For example, in its brief, the government points to five such instances involving eleven individuals (out of tens of millions of individuals admitted under a program in effect for more than four decades). Three of those (involving nine individuals) involved Chinese students attempting to photograph military installations or exercises. The other two involved an individual who overstayed his visa and a Russian intelligence operative who entered the U.S. with an F-1 visa obtained with a fraudulent Brazilian identity.

“But the government makes no real effort to explain how the four-year cap would eliminate, or even reduce, those types of such activities. Presumably, a foreign student who wishes to photograph military bases could do so during a four-year period—or, indeed, could do so on a six-month B-1 tourist visa. The Russian agent who obtained a visa by fraud, for example, had been present in the U.S. for only two years. And the government failed to consider less drastic and more obvious ways to address security vulnerabilities, or even attempt to explain why the arbitrary four-year cap was preferable to the alternatives.”

The judge said DHS invoked national security in an attempt to “insulate its actions from judicial review to the greatest extent possible.”

The Judge Finds At Least Four Ways The Immigration Rule Is Arbitrary And Capricious

Judge Saylor wrote that he does not have the power to block a federal rule because it might be misguided, only if it violates a law. “In this context, at least, the only authority that the Court possesses is to ensure that when the government promulgates a new regulation, it adheres to the law. In this case, the relevant law is the Administrative Procedure Act. That statute permits courts to set aside agency actions that are arbitrary, capricious, or contrary to law.”

The judge found the DHS final rule is “arbitrary and capricious” in at least four ways. First, “DHS failed to conduct any reasoned calculation of the costs and benefits of the Final Rule. In particular, DHS effectively ignored the immense costs of restricting international student enrollment, research and teaching by international individuals, and press nonimmigrant travel.”

The judge noted that although DHS included one bullet acknowledging the “potential reduction in the enrollment of nonimmigrant students and exchange visitors . . . DHS made no real effort to quantify those costs.” He wrote, “To justify its decision not to quantify decreased enrollment costs, DHS relied on conclusory statements and unsupported expressions of belief.”

He explained that many commenters cited a study on the rule’s negative impact on enrollment by economist Michael Clemens, Amy Nice and Jeremy Neufeld, published by the Institute for Progress, which the complaint noted estimated the economic costs of eliminating duration of status would reach $72 to $145 billion annually after 10 years, far higher than the costs DHS quantified in the rule. “Yet in response, DHS stated only that it disagreed with Clemens’s 10% assumption because the study relied on survey results which ‘often reflect hypothetical preferences rather than actual behavior,’ and that it ‘remain[ed] uncertain as to how many students will choose not to enroll due to this rule.’ And the agency provided no counter-estimate, let alone any methodology, of what it deemed to be the cost of declining enrollment.”

According to Judge Saylor, the second way the rule is arbitrary and capricious, “DHS failed entirely to perform a meaningful consideration of reasonable alternatives,” the judge wrote, pointing out precedents that require a federal agency to consider significant alternatives. DHS ignored alternatives that included improvements to existing tools such as the SEVIS system that tracks international students. DHS also did not explain why commenters’ suggestions to improve vetting and monitoring to address national security concerns did not represent viable alternatives. The judge noted that DHS also did not address why it believed commenters were wrong to ask that if fixed terms were necessary, they could not align with academic reality. For example, the median years to complete a Ph.D. is 5.7 years, not four years.

Third, “DHS failed to provide meaningful responses to significant comments,” according to Judge Saylor. He wrote that DHS did not respond to comments about the rule reducing international student enrollment and how it would disadvantage U.S. universities competitively. The judge also noted that DHS failed to respond to suggestions of less burdensome alternatives, comments that the rule is incompatible with Ph.D. programs, the reliance interests of students and journalists and the undermining of press freedoms. “DHS failed to consider the concerns of commenters that regular extension of status applications would swamp USCIS with hundreds of thousands of additional applications annually.”

Finally, “DHS failed to show that there is a rational connection between the Final Rule and its purported objectives of preventing fraud and furthering national security,” according to Judge Saylor. He stated that DHS cited only a series of anecdotes and did not respond to commenters who suggested: “a hostile actor could plan and execute his illegal activities within a four-year window.”

He noted DHS asserted the rule would curtail visa overstays. “But again, there is no rational basis for that assertion.” He referenced comments to the rule citing a National Foundation for American Policy study that found, “DHS’s overstay data may be ‘inflated’ and contain ‘significant flaws’ due to syncing errors, capturing data from students who are properly maintaining status, or counting students whose departure may have occurred but has not been verified.” The judge added, “In any case, those who overstay unlawfully under the duration-of-status rule could also overstay unlawfully under the fixed-period approach. Indeed, eliminating duration of status may well increase the risk of unintentional overstays because it shortens the departure period from 60 to 30 days.”

In the end, the judge ruled that the immigration rule likely violated the law. “For all of those reasons, plaintiffs have demonstrated a substantial likelihood of success on their claims that the agency action (the adoption of the Final Rule) was arbitrary and capricious in violation of the Administrative Procedure Act.”