NEWARK, N.J. – U.S. Senators Bob Menendez and Cory Booker (both D-N.J.) joined a group of colleagues in calling on the U.S. Immigration and Customs Enforcement (ICE) and U.S. Department of Homeland Security (DHS) to withdraw new guidance issued by ICE that imperils the status of international students who would be studying online at U.S. institutions this coming academic year. As colleges and universities are considering or have decided to move courses entirely online to limit the spread of COVID-19 on their campuses, ICE’s guidance would threaten those international students not enrolled in in-person classes with deportation.

"ICE's announcement of their plans to force out or deport international students who remain at U.S. colleges and universities and who are taking a full online course load is cruel and unconscionable," the lawmakers wrote to DHS Acting Secretary Chad Wolf and ICE Deputy Director Matthew Albence. "These students are already in the United States, are established members of educational communities, and have been determined through the visa screening process to pose no danger to the United States."

In New Jersey, international students make up nearly 23% of the combined undergraduate and graduate student body at Princeton University and nearly 13% across Rutgers University’s three campuses. Both schools have already announced plans to move most classes online for either part or all of the upcoming school year due to COVID-19.

In their letter, the lawmakers expressed deep concerns that ICE's guidance is motivated not by public health considerations, but rather by animus toward non-citizens and immigrants and is a flagrant attempt to hold international students hostage in order to force schools to reopen even as COVID-19 cases are rising. The 2018-2019 academic year saw more than one million international students in the United States.

"We call out this policy for what it is: a cruel, senseless, and xenophobic attempt to use noncitizens as political pawns in order to financially coerce colleges and universities to reopen campuses this fall, despite what is best for public health," the lawmakers continued. "This policy is dangerous to the health and well-being of numerous communities."

Some colleges and universities have transitioned to online learning due to the pandemic, consistent with guidelines from the U.S. Centers for Disease Control and Prevention (CDC), which recognizes the diversity of various institutions of higher education and advises them to "adjust to meet the unique needs and circumstances" they face when trying to keep their communities safe.

On Monday, ICE issued guidance that altered the Student and Exchange Visitor Program's requirements for international students, imposing a one-size-fits-all standard on all colleges and universities. According to that guidance, international students on F-1 visas (for full-time study at an academic institution) and M-1 visas (for vocational or other nonacademic training) will not be allowed to take a full online course load while in the United States. This affects incoming students, who will not be permitted to receive their visas or enter the country, as well as international students already in the United States. Under the new guidance, current international students in the United States will have to transfer to another school with in-person classes or leave the country-or else face deportation.

Due to the Trump Administration's catastrophic mishandling of the pandemic, COVID-19 continues to rage throughout the United States, causing many institutions of higher education to move most or all of their courses online to protect their students, faculty, and staff. Some colleges developed these plans in consultation with local public health officials, and these plans are consistent with the CDC's guidance for colleges and universities, which advises them to "offer virtual learning and telework options, if feasible."

Although the Trump Administration is attempting to blame this new guidance on existing regulations, it is failing to preserve or pursue options to provide flexibility to international students and to institutions of higher education. At the same time, recent statements by Administration officials suggest that DHS and ICE released this guidance as a pretext to force institutions of higher education to reopen against the advice of public health experts and local officials.

In addition to urging ICE and DHS to rescind this policy immediately, the lawmakers requested a staff briefing to discuss the Administration's rationale for this reckless policy by July 16, 2020.

The letter was also signed by Sens. Charles E. Schumer (D-N.Y.), Elizabeth Warren (D-Mass.), Edward J. Markey (D-Mass.), Jeff Merkley (D-Ore.), Richard Blumenthal (D-Conn.), Patty Murray (D-Wash.), Mazie K. Hirono (D-Hawai'i.), Jack Reed (D-R.I.), Tim Kaine (D-Va.), Patrick Leahy (D-Vt.), Amy Klobuchar (D-Minn.), Sheldon Whitehouse (D-R.I.), Bernie Sanders (I-Vt.), Tammy Baldwin (D-Wisc.), Sherrod Brown (D-Ohio.), Catherine Cortez Masto (D-Nev.), Kirsten Gillibrand (D-N.Y.), Martin Heinrich (D-N.M.), Chris Coons (D-Del.), Tom Carper (D-Del.), Chris Van Hollen (D-Md.), Ron Wyden (D-Ore.), Tammy Duckworth (D-Ill.), Dick Durbin (D-Ill.), Tina Smith (D-Minn.), Jacky Rosen (D-Nev.), Kamala D. Harris (D-Calif.), Bob Casey (D-Penn.), Michael Bennet (D-Colo.), and Tom Udall (D-N.M.).

The letter was also signed by Representatives Ayanna Pressley (D-Mass.), Jerrold Nadler (D-N.Y.), Zoe Lofgren (D-Calif.), Pramila Jayapal (D-Wash.), Joe Neguse (D-Colo.), Katherine Clark (D-Mass.), Seth Moulton (D-Mass.) Jesús G. "Chuy" García (D-Ill.), Nydia M. Velázquez (D-N.Y.), Gerald E. Connolly (D-Va.), Alexandria Ocasio-Cortez (D-N.Y.), Bonnie Watson Coleman (D-N.J.) Ilhan Omar (D-Minn.), Eleanor Holmes Norton (D-D.C.), Danny K. Davis (D-Ill.), Jamie Raskin (D-Md.), Peter Welch (D-Vt.), Lori Trahan (D-Mass.), Jan Schakowsky (D-Ill.), Yvette D. Clarke (D-N.Y.), Betty McCollum (D-Minn.), Jim Cooper (D-Tenn.), Hakeem Jeffries (D-N.Y.), Mark Pocan (D-Wis.), Dina Titus (D-Nev.), Jackie Speier (D-Calif.), Henry C. "Hank" Johnson, Jr. (D-GA.), James P. McGovern (D-Mass.), Rosa L. DeLauro (D-Conn.), David Price (D-N.C.), Judy Chu (D-Calif.), Grace F. Napolitano (D-Calif.), Juan Vargas (D-Calif.), David N. Cicilline (D-R.I.), Adam Smith (D-Wash.), Deb Haaland (D-N.M.), Alan Lowenthal (D-Calif.), Diana DeGette (D-Colo.), Ted Deutch (D-Fla.), Carolyn B. Maloney (D-N.Y.), Lois Frankel (D-Fla.), Sylvia R. Garcia (D-Texas.), Debbie Wasserman Schultz (D-Fla.), Gregory W. Meeks (D-N.Y.), Val B. Demings (D-Fla.), Emanuel Cleaver, II (D-Mo.), Suzanne Bonamici (D-Ore.), Ted W. Lieu (D-Calif.), William R. Keating (D-Mass.), Albio Sires (D-N.J.), Lisa Blunt Rochester (D-Del.), John Yarmuth (D-Ky.), Joseph P. Kennedy, III (D-Mass.), Filemon Vela (D-Texas), Rashida Tlaib (D-Mich.), Tony Cárdenas (D-Calif.), Debbie Dingell (D-Mich.), André Carson (D-Ind.), Nita M. Lowey (D-N.Y.), Mike Doyle (D-Penn.), Jahana Hayes (D-Conn.), Raúl M. Grijalva (D-Ariz.), Paul D. Tonko (D-N.Y.), Jimmy Panetta (D-Calif.), Eric Swalwell (D-Calif.), and Earl Blumenauer (D-Ore.).

The American Immigration Lawyers Association also supports the letter.

A full copy of the letter can be found here and below.

Dear Deputy Director Albence and Acting Secretary Wolf:

We write to express our deep concern regarding U.S. Immigration and Customs Enforcement’s (ICE) recent guidance modifying the Student and Exchange Visitor Program’s requirements for international students. This new policy effectively punishes international students at colleges, universities, and other institutions that have decided to move their courses online in order to protect their communities from COVID-19. This new guidance throws into uncertainty the lives of hundreds of thousands of students and the operations of hundreds of universities just weeks before the start of the fall term, and hurts the United States and its institutions of higher education. We are concerned that ICE’s guidance is motivated not by public health considerations, but rather by ongoing animus toward immigrants and noncitizens, by an attempt to force schools to reopen even as COVID-19 cases are rising, and by a desire to create an illusion of normalcy during a public health emergency. ICE’s policy demonstrates a callous disregard for the harm this policy inflicts on international students, and is contrary to public health guidance from authorities within the Administration. We urge you to withdraw this policy immediately.

Due to the Trump Administration’s catastrophic mishandling of the pandemic, COVID-19 continues to rage throughout the United States, which has caused many institutions of higher education to move most or all of their courses online to protect their students, faculty, and staff. These plans are consistent with the U.S. Centers for Disease Control and Prevention’s (CDC) guidance for institutions of higher education, which says that “virtual-only learning options, activities, and events” are the “lowest risk” setting. The CDC also advises that institutions of higher education “[o]ffer virtual learning and telework options, if feasible,” “[p]ursue virtual group events, gatherings, or meetings, if possible,” and “[e]ncourage telework for as many faculty and staff as possible.” The CDC guidance is clear: more social distancing is safer, and online solutions are safest for colleges and universities.

The CDC is also clear on its position that institutions of higher education should make decisions best suited to their individual circumstances. The CDC recognizes that institutions “vary considerably in geographic location, size, and structure,” and as a result, administrators will have to “adjust[] to meet the unique needs and circumstances of” their institutions and communities. In the CDC’s words, “[i]mplementation should be guided by what is feasible, practical, acceptable, and tailored to the needs of each community.”

Instead of providing regulatory flexibility to allow institutions to implement public health recommendations, the Trump Administration is implementing rigid rules that endanger students, faculty, and staff. ICE’s guidance is a transparent attempt to twist the arm of colleges and universities, threatening their students with deportation in order to force the institutions to scale back their online learning options. This amounts to the imposition of a one-size-fits-all policy on every institution in the country, regardless of its individual capabilities and circumstances, or the threat COVID-19 poses to the institution’s community.

ICE’s announcement of their plans to force out or deport international students who remain at U.S. colleges and universities with a full or majority online course load is cruel and unconscionable. These students are already in the United States, are already members of education communities, and have already been determined to pose no danger to the United States. Some of these students are working in laboratories and supporting critical scientific research at exactly the time when we need more of it, not less.

To avoid the threat of deportation, these students have few options. According to the ICE guidance, the alternatives are for students to disrupt their education by “transferring to a school with in-person instruction,” scale back their course load, or “depart the country.” It is cruel and senseless to force international students to make this choice. Moreover, it is unwise to force students in the United States to travel at a time when the CDC recommends that individuals “avoid all nonessential international travel.” And, in many cases, students cannot return to their home countries even if they want to, in part because of travel restrictions imposed by other countries on the United States due to its status as a COVID-19 hot spot, and because there are few or no flights. The Administration’s previous immigration restrictions also make it unclear whether students who leave the country will be allowed to reenter when their schools return to in-person classes, further exacerbating fears about traveling. Moreover, many international students will be functionally unable to continue their studies from abroad, because they will be returning to locations without stable internet connectivity or where the time difference makes active course participation unrealistic, among other limitations.

In addition to international students already in the United States, ICE is threatening to bar international students who were planning to begin their studies at U.S. institutions that have moved online. Colleges and universities that recognize the value of having international students in their communities will need to make dramatic adjustments to their operations in order to accommodate ICE’s arbitrary new policy, potentially in contradiction to public health guidelines. Even institutions that were already planning to adopt hybrid learning models that comply with ICE’s guidance might have to issue thousands of new Form I-20s to their international students with little notice before the start of the fall term—a sign of how poorly-conceived and designed this new ICE policy is. And if a college or university implements an in-person or hybrid model, and then later shifts to online-only classes because of a COVID-19 outbreak, then international students will fall out of status and become subject to removal —an operational nightmare.

International students contribute immensely to the United States, in ways quantifiable and otherwise. They add value to their learning communities, with their diverse viewpoints and experiences benefiting all other members of their communities. They also contribute to the economy; by one estimate, international students contributed $41 billion to the American economy and supported 458,290 jobs during the 2018-2019 academic year. The sudden removal of international students would weaken the country economically precisely when our fragile economy cannot afford another self-inflicted blow, and would undermine higher education as one of our most significant and valuable exports. This decision also will severely impact the budgets of many colleges and universities during some of the most challenging financial times in modern memory and could result in increased college costs and student debt for domestic students.

ICE is conveniently trying to blame existing regulations, which prohibit online-only coursework, for this new move. This is an obvious pretext. ICE and DHS could have modified regulations and policies to account for the unprecedented nature and scale of this pandemic and to make it easier, not tougher, for international students to assume online course loads at U.S. universities during the COVID-19 pandemic. Instead, ICE and the U.S. Department of Homeland Security decided to roll out this new, calloused and defective policy.

The timing of ICE’s guidance is also deeply concerning. The directive was issued the same day that Donald Trump declared: “SCHOOLS MUST OPEN IN THE FALL!!!” and indicated that he views the opening of schools as a political issue. Ken Cuccinelli, Senior Official Performing the Duties of the Deputy Secretary for DHS, openly admitted in a television interview that he believes the policy will “encourage schools to reopen.” It is also concerning that Stephen Miller, President Trump’s top immigration advisor and a well-known xenophobe and white nationalist, has reportedly advocated for policies that would “hurt elite universities whose staff and students have been highly critical of President Trump.” We call out this policy for what it is: a cruel, senseless, and xenophobic attempt both to harm noncitizens and to financially coerce colleges and universities to reopen campuses this fall, despite what is best for public health. This policy is dangerous to the health and well-being of numerous communities. As one public figure noted five years ago, “When foreigners attend our great colleges & want to stay in the U.S., they should not be thrown out of our country.”

ICE’s new policy is irrational from a logistical perspective, unsafe from a public health perspective, and xenophobic and flat-out wrong as a matter of principle. We urge you to rescind this policy immediately and to collaborate productively with institutions of higher education to enable a smooth start to the academic year for all students. We also request a staff briefing to discuss the Administration’s rationale for this reckless policy by July 16, 2020.

Sincerely,

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