U. S. District Judge F. Dennis Saylor IV in Boston issued a preliminary injunction on Monday, September 14, finding that the Department of Homeland Security had relied on “exceptionally weak” rationales and had failed to meet requirements of the Administrative Procedure Act when adopting the policy.
The rule, published by DHS in July and scheduled to take effect on September 15, would have replaced the long-standing “duration of status” system for people admitted on F, J and I visas. International students and exchange visitors would generally have been admitted for fixed periods of no more than four years, while representatives of foreign media would have faced stays of up to 240 days before needing extensions.
Saylor said DHS had cited national security, immigration enforcement and visa fraud as reasons for the change but had not shown a rational connection between those concerns and the restrictions it selected. He also faulted the department for failing to address significant objections raised during the rulemaking process or adequately consider less burdensome alternatives.
“The government’s contention that the rule is necessary to safeguard national security borders on the absurd,” Saylor wrote, according to the court order. He said the department had relied largely on a small number of examples and had not explained how a four-year cap would prevent visa fraud.
The judge was particularly critical of the provisions affecting foreign journalists, saying DHS had offered no meaningful national-security or fraud evidence to justify limiting their admission periods. He said the weakness of the stated reasons raised questions about whether the rule was aimed at other objectives, including greater government control over academic institutions and the press.
Under the existing duration-of-status framework, many foreign students and exchange visitors may remain in the country while they continue to comply with the terms of their academic or exchange programmes, without repeatedly applying to U. S. Citizenship and Immigration Services for extensions. Their status is monitored through federal immigration systems and tied to their continuing participation in approved programmes.
DHS argued that fixed admission periods would strengthen oversight and curb abuse. Department General Counsel James Percival criticised the injunction, saying it would require U. S. Immigration and Customs Enforcement to permit what he described as abuse of the immigration system. He said people could enter on student visas, take minimal coursework and remain for extended periods.
Saylor rejected the department’s broader justification at this stage of the case, finding that the plaintiffs had shown a substantial likelihood of succeeding on their claim that the rule was unlawfully adopted. He also found that allowing it to take effect could cause severe disruption to universities, students, researchers and employers.
The judge noted that about 1.6 million people hold F visas and roughly 500,000 hold J visas. Major universities, including the Massachusetts Institute of Technology and Harvard University, enrol large numbers of international students, particularly in graduate programmes, and depend heavily on overseas researchers in science, medicine and technology.
Saylor said universities could face hundreds of millions of dollars in costs and declining enrolment if the new system were implemented. He described the potential damage to higher education and the U. S. economy as likely to be “catastrophic”.
The challenge was brought by eight organisations representing higher education, academic workers and journalists. They include NAFSA: Association of International Educators, the Presidents’ Alliance on Higher Education and Immigration, the Association of Independent Colleges and Universities in Massachusetts, the American Federation of Teachers, two union locals, the United Auto Workers and The NewsGuild-CWA.
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