Despite ICE Order, History Proves that International Students Unlikely to be Deported

Guest Post by Joe Guzzardi

The Student and Exchange Visitor Program, a Department of Homeland Security unit that oversees non-immigrant students, recently announced that higher education students taking mostly online classes may not be allowed to remain in the United States.

In its bulletin that affects F-1 and M-1 visa holders, Immigration and Customs Enforcement made clear that students attending schools operating fully online or in hybrid instruction mode may not remain in the U.S. Prospective students whose chosen universities offer online-only education will not be allowed to enter. Students currently enrolled in such programs must either transfer to schools that offer in-person learning, leave the country voluntarily or risk deportation.

ICE created understandable anxiety across U.S. universities. But its announcement isn’t a new immigration twist; rather the order represents compliance with existing immigration law which strictly limits the number of online classes an international student may take.

For years, F-1 foreign students – more than 1 million are enrolled today – have arrived in the U.S., earned their degrees and returned home. The F-1 visa’s original intent is exactly that – students study here, go home and use their U.S-acquired education to improve their native countries. But as with most immigration regulations, over time there has been a slow drift away from the noble intentions into something less admirable.

Not all of the laxity that prevails in the F-1 visa should be attributed to the students. Since F-1 visa enforcement is breathtakingly weak, the federal government makes abuse easy. The Student and Exchange Visitor Program, DHS and ICE have had little interest in post-graduation enforcement. A DHS report found that in FY2018, 68,593 students remained in the country after their visas had expired, the highest overstay rate of any eligible visa group.

F-1 visa holders who study science, technology, engineering and math (STEM) can now extend their stays several years after graduation if they become part of Optional Practical Training. Federal immigration data shows that today almost 1.5 million STEM workers have white-collar jobs that they couldn’t have held had they not enrolled in U.S. universities on F-1 visas. Eventually, OPT participants can ask their employers – or any employer – to file an H-1B petition on their behalf which ultimately will put them on a citizenship path. By then, the F-1 visa’s original intent is ancient history.

Universities pushed back against the Trump administration’s order. Harvard and MIT, among others, requested temporary restraining orders. Other schools are shuffling class options to make certain that foreign students can satisfy the in-person requirement. Public universities have a major financial interest in keeping the international student flow going. Students from abroad pay out-of-state tuition fees, often two or three-times higher than in-state tuition.

As the heat intensifies over the possibility of students returning home, two things are worth remembering. First, students who fulfill their institutions’ graduation requirements from abroad will still earn a degree that’s unlikely to include the qualifier “Earned Online.” Their full-fledged U.S. diploma will allow them to go forward with their lives, and seek employment consistent with their college educations. Even though most deferred action for childhood arrivals (DACAs) arrived in their late teens, they claim the U.S. is the only country they’ve ever known, a claim international college students cannot make.

Second, deportation fears rarely materialize. During his 2016 campaign, President Trump promised to end DACA “on Day 1,” and supposedly to remove illegally present participants. Nearly four years later, only a small handful from among 800,000 DACA recipients have been deported. In fact, the reverse happened. About 40,000 DACAs applied for and received advanced parole which allowed them to leave the U.S. for humanitarian reasons, and then re-enter legally which qualified them for lawful permanent resident Green Cards. Even DACAs with criminal convictions proved difficult to remove.

In 2014, John Sandweg, then-ICE Acting Director, told the Los Angeles Times that the odds of illegally present immigrants, a category that would include out-of-status F-1 visa students, being deported are “close to zero.” With only four months remaining until the presidential election, and with international college F-1 visa students generating substantial broad-based sympathy, zero sounds about right.

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