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International Students and the Chilling Effect of Immigration Policy Change

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January 29, 2020

Gráinne McEvoy is an independent scholar based in South Bend, Indiana, and is currently writing a book on American Catholic social thought and immigration policy in the 20th century.

In August, 2019, the detention and deportation of a 17-year-old Palestinian by Customs and Border Patrol at Logan Airport in Boston caught the attention of the American academic community. Ismail Ajjawi, who had already obtained a student visa to begin as a freshman at Harvard University, was singled out by CBP officers, questioned for several hours, and eventually returned to Lebanon. Ajjawi was admitted to the U.S. 10 days later, but not before his experience at the border received national and international coverage, with the higher education media reporting that it had “put a new dent in American Higher Ed’s image abroad.”

Ajjawi’s experience is one of a number of high-profile, but relatively isolated cases in recent years involving students or researchers, already in possession of a visa, being denied entry to the U.S. These include two separate incidents in September, 2019 involving students from Iran and China who were denied entry or had their visas abruptly revoked with little to no explanation. While such on-the-spot visa revocations are rare, experiences of hostility and seemingly arbitrary scrutiny at ports of entry, particularly for students and researchers from certain countries, have become commonplace. This reality of heightened scrutiny at the border has contributed to what higher education leaders are describing as a “chilling effect” on international study in the U.S.

Behind these high-profile cases there is also an emerging array of seemingly mundane, bureaucratic changes, both proposed and already enforced by the current administration, that is subtly reshaping student visa policy, typically outside of Congressional oversight. Those who advise, educate, and employ international students and scholars are alarmed by various policy memoranda and reinterpretations of existing rules that are making it increasingly difficult to obtain student visas while abroad, and threatening avenues for pursuing opportunities and maintaining legal status while in the U.S. As a result, according to college leaders and administrators, there is a creeping sense within the 1.1 million-strong community of international individuals studying, researching, and teaching in America’s colleges that they are less welcome, their academic objectives are more suspicious, and their career paths are more precarious. It is vital that American citizens and voters remain vigilant to this subtle but significant reform of an aspect of immigration law that threatens the stability of this culturally and economically valuable swathe of our foreign-born population.     

A Cold House for Foreign Students

In addition to increased fees and longer delays in the processing of visas, threatened changes are casting a shadow over the long-term plans of international students. One is a proposed policy change that will make it easier for student visa holders to fall out of legal immigration status, even inadvertently. In a policy memorandum that went into effect in August, 2018, the Department of Homeland Security proposed the enforcement of a new “unlawful presence” policy that could deport and bar international students from the U.S. for minor visa infractions, some for as long as ten years. The proposed change would backdate a student’s unlawful presence to when their visa infraction occurred, rather than the existing marker of when federal authorities officially identify the violation. Critics say the new approach would prove unfair and inflexible. Aside from the notorious slowness of an immigration system that may force a student to wait several months for an official decision, the definition of “infraction” is capacious and often encompasses mistakes that may not be the student’s fault. It includes failing to report a change of address on time, an off-campus employer incorrectly completing paperwork, or a college administrator making a clerical error when submitting information on a students’ dates of enrolment. This “unlawful presence” policy proposal would make the student visa system even more opaque and arbitrary, intensifying students’ anxieties. The proposed change is currently suspended by a federal court injunction, following a lawsuit filed in December, 2018 by several universities.

It is important to note that the change to “unlawful presence” adjudication and a separate threat to a popular post graduate program that provides visa extensions for students to gain valuable practical experience are still only proposals. Nevertheless, international students and their supporters see these threats as more blasts of cold air in an encroaching climate of hostility.   (Read more about how colleges are reacting to the slowdown in processing applications for the Optional Practical Training (OPT) program.)

The Threat to Enrollments

According to a survey of international exchange activities conducted by the Institute of International Education and the State Department (published as the “Open Doors Report” in November, 2019), the total enrollment of international students in the U.S. has stagnated. In the fall of 2018, enrollment had only grown 0.05%, the smallest increase in 70 years of tracking this data. Perhaps more alarming for advocates of international study is that the enrollment of new students had fallen for the third year in a row, and was down more than 10% from 2015. In 2016, 36% of institutions had reported that the visa-application process was a deterrent for prospective students, but two years later, this figure jumped to 85%. In explaining this data, the report cautioned against the idea that the “Trump Effect” was the central cause for dwindling student enrollment. It argued that other factors were more influential: campus shootings and fears about safety; the rising cost of American higher education; and more competition from institutions in home countries or elsewhere internationally.

University leaders and administrators, however, are expressing their view that the cumulative effect of hostility, suspicion, and long-term uncertainty is chilling international students’ enthusiasm for study in the U.S., to an extent that will have a more noticeable impact on future enrollments. In a July, 2019 open letter to Secretary of State Mike Pompeo and Acting Secretary of Homeland Security Kevin McAleenan, Harvard President Lawrence Bacow acknowledged that the Departments of State and Homeland Security have a right and a responsibility to protect national security and prosperity by ensuring that those who enter the U.S. do so legally and honestly. But he warned that “the increasing uncertainty around the systems in place to accomplish this task are driving anxiety and fear on our campuses and undermining the impact of our work.” Students, faculty and researchers from across the globe, Bacow argued, possess “diverse talents, experiences, and insights [that] drive discovery and fuel our work.” Other advocates for international higher education and research are concerned about the long-term uncertainty for students and scholars who need just the opposite in order to be attracted to and thrive in the American academic community. According to Jill Welch, Deputy Executive Director for public policy for NAFSA: Association of International Educators, “Studying in the United States is a significant investment for them, and they need predictability and certainty that the rules of the game won’t be changed while they are applying.” Or, indeed, while they are already deep into a program of study or research.

What Is at Stake?

As the numbers and observations above suggest, the chilling effect on international study or research in the U.S. places into jeopardy the contribution of a large swathe of the nation’s academic community, one that is highly valuable to the nation’s economy, cultural strength, and international competitiveness. International students typically pay higher tuition rates and so provide a lucrative enrollment pool for American colleges. Those who remain after their studies often become highly successful graduates, and, according to a 2016 report by New American Economy, are more than twice as likely as U.S.-born citizens to establish new businesses. The belief that a robust, diverse community of international students and scholars is one of the nation’s strongest cultural and foreign policy assets is something that many presidents and administrations, since at least the end of World War II, have recognized and worked to support.  

In this context, it is curious that the current administration has repeatedly emphasized its desire to reorient general immigration policy towards immigrants who have high levels of education, skill, and economic value. Even if we were to accept the questionable premise that such immigrants are more deserving and desirable than those who don’t possess such attributes, the posture toward foreign students and scholars, as described above, does not appear to coalesce with the White House’s definition of what is in the national interest.

As with all aspects of immigration policy reform, we must also remember the humanity of those being treated with such hostility and suspicion. We must consider the fairness and morality of subjecting to distrust and precarity young people who wish to learn from and contribute to the intellectual, economic, and cultural life of the United States. Students may arrive and reside in the U.S. on temporary visas, but many live in the U.S. for at least several years, rooting themselves in communities in the same way as permanent residents. Many will establish careers, research teams, and community networks, pay taxes, lay the foundations for new businesses, and commit to partnerships and marriages, begin families, and buy homes. For those young people considering study in the U.S., the current hostile climate may dissuade them from bringing their skills, talents, and commitment to this country. For those already here, delays, obfuscation, and arbitrary scrutiny impose a level of anxiety that is surely, in the vast majority of cases, wholly undeserved.

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