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Just a day before the US Department of Homeland Security's (DHS) new rule restricting the duration of visas for foreign students, researchers, professors, instructors and journalists was set to take effect, a federal judge has postponed its implementation, finding that DHS failed to comply with requirements under the Administrative Procedure Act.
US District Judge F. Dennis Saylor IV, in a memorandum and order dated September 14, granted a motion brought by organisations representing colleges, universities, educators and communications workers, postponing the effective date of the Final Rule pending a final resolution of the case on its merits. The ruling challenged a July 17 DHS rule that sought to replace the existing "duration of status" framework for F, J and I nonimmigrant visa holders with fixed-term admissions. Under the rule, F-1 students and J-1 exchange visitors would generally have been admitted for the length of their specific programme, subject to a maximum of four years, while foreign media representatives holding I visas would have been admitted for the period necessary to complete their assignment, capped at 240 days. Chinese media representatives would have faced a 90-day limit. Judge Saylor said the new system would "substantially restrict the overall number of foreign students, researchers, professors, and journalists in the United States." "In other words, a DHS officialbased on limited and vague criteria, and with no possibility of appealwill have the power to cut short the academic, research, or teaching activities of any non-U.S. citizen for no reason or any reason," the judge said in its ruling. He further warned that "The damage to the higher education system and to the economy of the United States is likely to be catastrophic." The court said DHS was required to comply with the US Administrative Procedure Act (APA), despite the department's invocation of national security and border protection. "The use of such labels does not, however, give DHS license to ignore its statutory obligations," Saylor said, finding that the rule had failed to comply with the APA in multiple respects. The judge concluded that the plaintiffs were likely to succeed on the merits of their claims, that immediate irreparable harm would occur without an injunction, and that the balance of equities and public interest favoured postponing the rule. "Accordingly, the Final Rule will be postponed pending final resolution of this matter on the merits," the order stated. The July rule had sought to end the "duration of status" system under which foreign students, exchange visitors and media representatives could remain in the United States as long as they maintained their authorised status. DHS had said the change would "officially eliminate the 'duration of status' loophole that allowed foreign students, exchange visitors, and media representatives to remain in the United States indefinitely without routine government oversight". Under the proposed fixed-term framework, students requiring additional time beyond their authorised stay would have been required to file a formal Extension of Stay application with US Citizenship and Immigration Services (USCIS). The rule also included additional restrictions for international students. F-1 students enrolled in English language training programmes would have been limited to an aggregate 24 months of stay, while the standard post-study grace period would have been reduced from 60 days to 30 days. Undergraduate students would generally have been barred from changing majors or transferring to another institution during their first academic year, while graduate students would have faced restrictions on changing their educational objectives. Students who had completed one degree would also have been prohibited from beginning a new programme at the same or a lower educational level. The DHS rule was scheduled to take effect 60 days after publication in the Federal Register. Under its provisions, people already in the US under the "duration of status" framework would generally have been allowed to remain until the end of their current programme, provided the stay did not exceed four years from the rule's effective date. However, those travelling outside the US and seeking re-entry after the rule took effect would have been subject to the new fixed-date admission system. (ANI)
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