Major Changes to Student Visa Rules Proposed

The Trump administration is set to publish a new proposed rule today that would set fixed terms of up to four years for student visas and establish procedures for international students to apply to extend their stay and continue studying in the United States. Applications for extensions of stay could be approved “if the additional time needed is due to a compelling academic reason, documented medical illness or medical condition, or circumstance that was beyond the student’s control,” the new rule states.

Currently, student visas are good for “duration of status,” meaning students can stay in the U.S. indefinitely if they remain enrolled in school and otherwise abide by the rules relevant to their immigration status.

The fixed four-year term is notably shorter than the length of a typical Ph.D. program -- and shorter than the time many students take to finish a baccalaureate program -- meaning that if the proposed rule were to take effect as written, many students would need to apply for an extension of stay midprogram.

The Trump administration says the proposed rule is necessary to increase oversight of international students and combat fraud and visa overstays. Advocates for international students say the proposed rule creates unnecessary new burdens for international students and makes the U.S. a less welcoming destination at a time when international student enrollment has already been declining.

The more than one million international students in the U.S. are estimated to have a $41 billion economic impact and account for 5.5 percent of all students enrolled in higher education in this country.

"This proposed rule is set to replace a proven, flexible policy that has served international students and exchange visitors for decades, with one that is both complicated and burdensome," Esther D. Brimmer, the executive director and CEO of NAFSA: Association of International Educators, said in a statement. "In a system that is already extremely complex, this rule would undoubtably create a high degree of uncertainty for international students and exchange visitors. If finalized, this rule would also make it more difficult for international students and scholars to maintain their legal status in the United States and make it far more difficult for international educators to administer. Sadly, this proposal sends another message to immigrants, and in particular international students and exchange visitors, that their exceptional talent, work ethic, diverse perspectives, and economic contributions are not welcome in the United States."

The proposed rule is open for public comment for 30 days. While it sets a maximum visa term of four years, with the possibility of applying for extensions, the rule also limits the initial visa term for certain categories of students to just two years based on their country of origin. Specifically, students born in countries designated as state sponsors of terrorism -- a list that encompasses Iran, North Korea, Sudan and Syria -- or citizens of countries with student and exchange visitor visa overstay rates exceeding 10 percent would only be eligible for two-year visas with the possibility for renewal.

The latter restriction based on countrywide visa overstay rates would disproportionately impact students from Africa and, to a lesser degree, parts of Asia. A list of countries that would be affected based on the latest data from the Department of Homeland Security on overstay rates is below at right. The National Foundation for American Policy, an immigration-focused think tank, argues in a draft analysis that DHS's mechanism for calculating visa overstay rates is flawed in that it is "not an actual overstay rate but only an upperbound estimate of individuals who DHS could not positively identify as leaving the United States" and therefore should not be used as a basis for rule making for international students.

Among other changes, the proposed rule would limit the time students could spend in English language training to no more than two years over a lifetime and impose limits on the number of times students can change programs at the same degree level or move to a program at a lower degree level. The rule change would also reduce the time international students can stay in the U.S. after completing their course of study or authorized work program from 60 to 30 days.

The proposed rule would also give DHS officials discretion over academic decisions typically left to institutions. It states that "a pattern of behavior demonstrating a student is repeatedly unable or unwilling to complete his or her course of study, such as failing grades, in addition to academic probation or suspension, is an unacceptable reason for program extensions."

Ken Cuccinelli, the senior official at the Department of Homeland Security performing the duties of the DHS deputy secretary, said in a statement that the proposed rule “would create a fixed time period of admission for certain aliens, consistent with most other temporary visa classifications, while still allowing these aliens an opportunity to legally extend their stay or re-apply for admission where appropriate. Amending the relevant regulations is critical in improving program oversight mechanisms; preventing foreign adversaries from exploiting the country’s education environment; and properly enforcing and strengthening U.S. immigration law.”

The text of the proposed rule argues that "admission for D/S [duration of status], in general, does not afford immigration officers enough predetermined opportunities to directly verify that aliens granted such nonimmigrant statuses are engaging only in those activities their respective classifications authorize while they are in the United States. In turn, this has undermined DHS’s ability to effectively enforce compliance with the statutory inadmissibility grounds related to unlawful presence and has created incentives for fraud and abuse."

The text also says the current visa rules have enabled the activities of "pay-to-stay" school operators who have been accused of running fraudulent colleges as a way for foreign nationals to maintain their immigration statuses on student visas. It also suggests that some unspecified number of students have abused the flexibility of the student visa program.

The proposed rule states that DHS has identified some individuals who have stayed in the U.S. since the 1990s or early 2000s on student visas.

"To extend their stay, these aliens enrolled in consecutive educational programs, transferred to new schools, or repeatedly requested DSOs [designated school officials] to extend their program end dates," the proposed rule states. "This practice is not limited to any one particular type of school; students at community or junior colleges, universities, and language training schools have maintained [student visa] status for lengthy periods. While these instances of extended stay may not always result in technical violations of the law, DHS is concerned that such stays violate the spirit of the law, given that student status is meant to be temporary and for the primary purpose of studying, not as a way to remain in the United States indefinitely."

Some experts argued that the proposed rule, if enacted, would set up roadblocks for hundreds of thousands of legitimate students and threaten the United States’ historical position as the top attractor of international talent.

“It’s a totally unnecessary and a massive self-inflicted wound on the United States if it actually goes into effect, which one can reasonably hope it never does,” said Doug Rand, a senior fellow at the Federation of American Scientists who worked on immigration policy in the Obama White House.

“As a general matter, this is not a good-faith attempt to better monitor students who present a national security risk or any other legitimate purpose,” Rand said. “DHS acknowledges in this proposed rule that plenty of people need more than four years to complete an undergraduate degree, let alone a Ph.D., and they just brush that concern aside. The fact is that if this rule were to go into effect, people would get four years, or two years in some cases, and then they’d have to file for an extension, and the grounds for an extension are extraordinarily narrow. If you set up a system where no one can be guaranteed more than four years in this country, who’s going to take that risk?”

"The last thing we want to do is make people think twice before coming here and make them think a) they’re not welcome and b) they might get booted out of the country before they finish their course of study," Rand added. "If we’re going to do something like this, we better have a very good reasons, and presenting a handful of anecdotes about people who stayed too long is not a good enough reason."

Stephen Yale-Loehr, a professor of immigration law practice at Cornell University, said the proposed rule may not be finalized before Jan. 20 and could be withdrawn if there is a change in presidential administration.

"On the one hand, students and people advising international students and scholars in higher education should not panic -- these are not immediate changes," Yale-Loehr said. "On the other hand, if this rule does get finalized without any changes, it will be the biggest change in international student regulations in 20 years. Over all, the proposed rule sends a chilling message to prospective international students and makes the United States seem more unwelcoming -- and this is in line with other things that the administration has done in other areas of immigration."