This is the fiftieth edition of BORDER/LINES, a weekly newsletter by Felipe De La Hoz and Gaby Del Valle designed to get you up to speed on the big developments in immigration policy. Reach out with feedback, suggestions, tips, and ideas at BorderLines.News@protonmail.ch.

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This week’s edition:

In The Big Picture , we dig into the administration’s proposed regulation regarding student, exchange, and journalist visas.

In Under the Radar , we discuss the latest coronavirus death in ICE detention and place it within the context of allegations of medical neglect in ICE facilities.

In Next Destination, we look at a proposed rule that would further gut asylum.

The Big Picture

The news: The Trump administration has again taken aim at student and exchange visa programs, as well as international journalists, with a proposed regulation that would tighten rules around maintaining status.

What’s happening?

A proposed rule officially published today in the Federal Register lays out a variety of changes to the F, J, and I nonimmigrant visas, which are used by academic students, “exchange visitors” (a relatively broad category that can also encompass students, as well as au pairs, doctors, and others), and journalists, respectively. These visas carry the particular distinction of allowing people to be present for duration of status, or “D/S,” as opposed to a specific date range like what might be found in, for example, a B-type short-term pleasure or business visa. (There are other visas, like G-type diplomatic and government visas, that allow D/S, but F and J are far and away the largest by volume.)

All this really means is that the validity of the nonimmigrant’s (a technical term denoting anyone who is not authorized to permanently settle in the country) status is not set until a particular date, but rather tied to the continuous fulfillment of the conditions required for that type of visa. All of the nonimmigrant types are laid out in 8 U.S.C. § 1101(a)(15) with specific definitions; for example, (F)(i), also written as F-1, describes a qualified beneficiary as “an alien having a residence in a foreign country which he has no intention of abandoning, who is a bona fide student qualified to pursue a full course of study and who seeks to enter the United States temporarily and solely for the purpose of pursuing such a course of study.” There are a couple of other stipulations, but all in all this is a pretty general definition, so more specific policies and requirements are established by regulations and Department of Homeland Security policy.

For instance, F-1 and J-1 students must also have valid forms I-20 or DS-2019, respectively, which lay out the specifics of their programs of study and themselves have periods of validity, and which have to be reissued when, say, a program of study changes, or a student wishes to apply for work authorization. This in theory ensures that students are satisfying their visa requirements without having to go through burdensome re-application or visa extension processes. There are also more specific rules on what constitutes a full course of study, when and how a student is allowed to work, and other matters. Holders of I visas must remain employed by a foreign news outlet and be conducting news-gathering functions in the United States.

The proposal’s principal impact would be to end D/S designation for these visas, and instead have standard validity periods, which would generally be for four years for J-1 and F-1 visa holders and 240 days for I visa holders. Continued presence past this allotted time would require submission of a request for extension of stay (EOS), even if their slated program end date was already beyond this authorized period of stay. Such an extension would require that the student or journalist demonstrate compelling reasons; for students, this could entail, for example, clearly laying out that they’re continuing to make expected progress towards their academic programs and simply require additional courses, that there has been a significant change in their academic focus, or that unexpected medical circumstances have arisen.

The rules around valid academic activities would also be tightened to prevent students from, for example, repeatedly enrolling in programs at the same academic level, or going ‘down’ an academic level, such as someone who enrolled in various consecutive Bachelor’s programs or enrolled in an Associate program after completing a Master’s degree. Such moves would not be prohibited, but placed under greater scrutiny, and capped at two additional programs. The regulation would also reduce the ‘grace period’ for students to leave the country after the conclusion of their status from 60 to 30 days.

For a certain subset of applicants, visa durations would be capped at only two years. This would apply to those who people born in or citizens of the official State Sponsored Terrorism List (currently North Korea, Iran, Sudan, and Syria), citizens of countries with student and exchange visitor overstay rates above 10 percent in the latest available data, students of unaccredited institutions, and students of schools that are not part of the (totally unrelated) E-Verify employment verification program. The use of rates rather than raw numbers means citizens of countries that had numerically very small numbers of overstays could still be limited to two-year visa validities.

For students already present with D/S designations, their new date for legal presence would be whatever was listed in their latest program documents, such as the I-20. For those with pending employment applications through OPT or STEM OPT, they would be able to remain in status while that application was pending. For those who departed the country and then returned after the rule’s effective, their return would put them under the rule’s standard framework.

The entire text is loaded with the now-common Trump administration refrain that every visa and immigration system is rife with systemic fraud and abuse. At one point it reads that “DHS believes that this process would help to mitigate risks posed by foreign adversaries who seek to exploit these programs” and then continues along, without explaining what such risks are or what evidence exists for them. The rule also tepidly acknowledges that “some F and J nonimmigrants may have program end dates longer than 4 years” without ever engaging with the fact that this describes essentially every possible PhD program. There are a number of other provisions generally restricting the ability of these three types of visa holders to maintain status in the 250-page proposal.

How we got here

This is the administration’s second attempt to create additional regulations for international students this year. Over the summer, the administration proposed a rule that would force international students to leave the country or transfer schools if they were taking an online-only program, a move intended to strong-arm universities into reopening despite the coronavirus pandemic. A number of universities sued the government in response, and the administration ultimately walked back the regulation, allowing international students to take a full online course load without having to leave the country. However, it won’t issue new visas for F-1 students who would be attending online-only programs. We covered that proposed rule and its aftermath in depth in previous editions.

International students are monitored through the Student and Exchange Visitor Program, which was created in the wake of 9/11 with the goal of having a centralized way of keeping track of all foreign students. (One of the people involved in the September 11 attacks had entered the U.S. on a student visa, as did one of the people involved in the 1993 truck bomb at the World Trade Center.) Before the creation of SEVP and the Student and Exchange Visitor Information System—and of DHS and ICE in general—student visas were under the purview of the Immigration and Naturalization Service, which was dismantled and reconstituted within DHS. The legislation authorizing SEVIS dates back to the 1996 Illegal Immigration Reform and Immigrant Responsibility Act, but the program wasn’t created until years later.

As the proposed rule notes, international students on F-1 visas were first allowed to be admitted into the U.S. for the duration of their status as students in 1979, though there have been intermittent changes to the system since then. In 1981, INS eliminated duration of status, only to reinstate it in 1983. J visas were created as part of the Mutual Educational and Cultural Exchange Act of 1961, also known as the Fulbright-Hays Act, and apply to more than just students. As noted above, J visas are also used for au pairs, visiting scholars, summer work travel, and others. I visas, meanwhile, are for journalists who are “representatives of foreign media,” and are subject to their own application process.

The proposed rule reveals the administration’s anxiety that student visas in general and the F-1 visa in particular are “subject to fraud, exploitation, and abuse”—and really, its broader anxiety that any and all foreigners, whether they be asylum seekers or student visitors, are coming to the United States to defraud the government or hurt Americans. This anxiety predates the Trump administration. Last year, SEVP made headlines after ICE arrested dozens of international students enrolled at a fake college ICE had set up in 2015 as part of a sting operation. Charging documents claim students knowingly enrolled in the college, the University of Farmington, as part of a “‘pay to play’ scheme” and knew it wasn’t a real college. Some of the students caught up in the sting said they were tricked, and many others transferred out after realizing it wasn’t a real university but faced arrest and immigration consequences anyway.

A separate fake university set up in 2015, called the University of Northern New Jersey, similarly led to immigration consequences for several students, some of whom lost their status not because they knowingly committed fraud, but because they had attended a fake university for more than 45 days. The rule cites several cases of student visa fraud without ever mentioning the government’s own history of setting up such schemes.

What’s next?

The rule is undergoing a tight notice-and-comment period, with materials needing to be submitted on or before October 26. As with other such regulatory proposals, the government is required to consider and address any concerns raised by commenters.

Legally, the administration has far stronger legs to stand on with this regulation than with most of its other immigration-related rule changes. This isn’t a radical reorganization of the system or an unprecedented measure. The government could convincingly argue that it is simply a return to more or less how the system was run before the United States’ education system became so globally popular, and fundamentally it’s not a ban or widespread exclusion, it merely makes students’ and university officials’ lives more difficult and unpredictable.

It is clearly part of the ongoing war of attrition against the very notion of immigration, but there are no obvious statutory deficiencies. Someone could try to make a process argument, but it is technically going through the full notice-and-comment system and has a far less clear nexus to discriminatory intent than, say, the first travel ban.

There’s no doubt that the country’s institutions of higher learning will deploy their lobbying resources against it, but it’s unlikely that the administration will back down. In all likelihood, there may be some changes to the rule as written in draft form, but a version of it will be going into effect if the same administration is in place by the time it’s ready to be finalized.

Under the Radar

61-year-old Mexican immigrant is 7th person to die of COVID-19 in ICE custody

Cipriano Chavez Alvarez, a 61-year-old Mexican man, died of coronavirus while in ICE detention this week, BuzzFeed News reports. Just over two months before his death, a federal judge ordered Chavez released from prison—where he was serving a life sentence for conspiracy to possess with the intent to distribute cocaine—because he had underlying medical conditions that made him particularly susceptible to the coronavirus. Per BuzzFeed, Chavez had lymphoma, diabetes, kidney disease, and hypertension. Before Chavez was released from federal prison, however, ICE transferred him to an ICE detention facility in rural Georgia before being transferred to a different detention center where two other immigrants had previously died of COVID-19.

Throughout the pandemic, ICE has continued transferring people from criminal custody to its detention centers, even as street arrests briefly dropped. These transfers risk spreading the virus from prisons and jails, which have been the sites of numerous outbreaks, to detention facilities that have repeatedly been found to provide substandard medical care to the people in their custody. There have been more than 6,000 COVID-19 cases among ICE detainees since March, according to ICE data.

Next Destination

New proposed rule would further limit asylum

The Trump administration proposed a new rule that would further eviscerate the asylum system. Among other things, the regulation would require some migrants to apply for protections within 15 days of their first hearing. (Generally, immigrants in removal proceedings have an initial hearing, called a master calendar hearing, during which a judge informs them of their rights and sets future hearing dates.) Asylum seekers can currently apply for protections within one year of their arrival in the United States. The rule would also require applicants to provide all supporting evidence for their claim from the outset, and would automatically deny asylum to any “incomplete” application.

The purpose, of course, is to end asylum altogether. It’s likely that there will be some pushback to the proposed rule, which is subject to a 30-day comment period, and the administration may alter some specifics in response to public comment.