Pins and needles edition

Why the Supreme Court’s decision on DACA could hold important clues about the future of OPT

Arbitrary and capricious.

That’s how Chief Justice John Roberts characterized the Trump administration’s approach in trying to dismantle DACA, the federal program that protects undocumented immigrants brought to the U.S. as children. Roberts, along with four other justices, blocked that effort, preserving, for now, the ability of some 650,000 “dreamers” to live, study, and work in this country.

I’ve heard many emotional stories about the decision’s impact in recent days: The recent nursing school graduate, working nonstop throughout the pandemic, anxiety about deportation always in the back of his mind. The young mother worried about being separated from her American-born children and sent to a country she hasn’t seen since she was her kids’ age. The college student who runs miles in dark, kept from sleep by fear that her nightmares could become reality. “I feel like I can finally breathe,” she told me after Thursday’s ruling.

But I want to talk about rulemaking. Because that’s what was at the heart of Supreme Court decision — and it’s something to consider as we await an executive order that could place limits on optional practical training, the work program for international graduates.

The Court’s decision wasn’t about the merits of DACA. It wasn’t even about whether the Trump administration had the right to end the program, which the justices agreed it did. Rather, the majority ruled that officials went about doing so wrongly and sloppily. The Department of Homeland Security did not provide a “reasoned explanation” for its action, as is procedurally required, the justices said. Nor did it properly consider the impact of its decision on DACA recipients, their families, their communities, the country.

This isn’t the first time the Trump administration was tripped up by rulemaking. Its “unlawful presence” policy, which could’ve barred international students from the U.S. for relatively small visa infractions, was also blocked by a judge because of failure to follow regulatory processes. Early versions of the travel ban, too, were struck down, in part because the administration had not sufficiently demonstrated the risks of admitting certain travelers, as is required. On a very different matter, the Supreme Court last year prevented the administration from adding a question about citizenship to the Census, again because officials failed to provide an adequate explanation for doing so.

For students, colleges, and other advocates of OPT, that track record should serve as something of a relief. If the executive order limits OPT — and the battle over whether to include the program has been fierce — it would almost certainly not do so outright but rather set in motion a rulemaking process. With the election looming, that regulatory action will have to be expedited. The administration had years to get the DACA repeal right but will have just a few months to roll back OPT. No doubt proponents of the program will be watching for any missteps.

Still, when its rulemaking has been stymied, the Trump administration has shown a willingness to go back and try again. A third version of the travel ban was eventually given an OK by the Supreme Court. On Friday, the president signaled on Twitter that he would renew his effort to end DACA, despite the program’s enormous popularity among Americans. In pointing out the administration’s stumbles in its ruling, the Court arguably gave it a roadmap for a redo.

And what of OPT, and of the work and exchange visas that could also be affected by the coming executive order? I had thought of sharing here the various pieces of intel, sometimes contradictory, I have been told about its fate in the last few days. But as I write this late Sunday — oops, early Monday — I realized, by the time many of you open this newsletter, it’s likely we will have a clearer picture. As a source recently messaged me, “I feel like we’ve all been waiting on pins and needles.”

For the latest updates on OPT — and for news around international ed — follow me on social media. You can find me on Twitter and LinkedIn.

The State Department said it won’t publicly release a list of universities and other entities that trigger the prohibition against granting visas to Chinese graduate students and researchers from universities with ties to the country’s military. The lack of transparency about the implementation of last month’s presidential proclamation could leave both students and colleges guessing about how and when the order might be applied.

Still, a recent teleconference did provide some guidance: First, State Department officials said that to be flagged, visa applicants would have to be connected to a university that supports China’s so-called military-fusion strategy AND be studying or doing research in a sensitive field. (No word, of course, about which areas are considered sensitive.) This should allay concerns that students, regardless of major or discipline, could be swept in by the order just because of their institutional affiliation. And the officials said that applicants subject to the ban should be notified at the time of their visa interview, rather than have their application linger in often-lengthy administrative processing.

Meanwhile, Georgetown’s Center for Security and Emerging Technology analyzed Chinese coverage of the presidential order. They found criticism and confusion — but a surprisingly muted official government response.

NAFSA is asking the State Department to waive in-person visa interview requirements and allow them to be conducted by video conferencing. It’s one of several requests the association is making to try to ensure international students and scholars make it to campus this fall.

U.S. Citizenship and Immigration Services, the agency that processes OPT work authorizations, could furlough 13,400 employees without additional funding.

A federal judge sided with California’s community colleges, ruling that the Trump administration illegally restricted stimulus funds, preventing undocumented and international students from receiving emergency coronavirus aid.

Fifty-four scientists have resigned or been fired as the result of an NIH investigation into failure to disclose foreign financial ties. Almost all who lost their jobs had links to China.

The chairman of the Defense Department’s Defense Innovation Advisory Board — and the longtime CEO of Google — is warning that efforts to restrict Chinese students from studying in the U.S. could be ”against our own self-interest.”

The U.S. has been losing Indian students in computer science and engineering to Canada, a new analysis of enrollment data shows.

Australia’s Murdoch University dropped its legal case against a professor who said on a nationwide tv show it had lowered admissions standards for international students.

British universities need a bold international education strategy to combat the “existential threat” Brexit and the coronavirus pose, said the country’s former universities minister (and brother of Prime Minister Boris Johnson).

China wants to accelerate foreign partnerships and open up its universities to more international students.

Academics and students in Romania say that a new law banning gender-identity studies is “going back to the Middle Ages.”

Another Pakistani academic has been detained under the country’s blasphemy law.

Two decades ago, Katy Muldoon, a reporter at the Portland Oregonian, took an assignment to cover the Aleaziz family. Farzad, the father, had come to the U.S. as a student, but his visa had expired. He feared that if the family had to return to Iran, his son, Allreza, severely disabled by cerebral palsy, wouldn’t be able to get the care he needed. Muldoon’s story brought their plight to the attention of public officials; the Aleazizes were allowed to stay and eventually became U.S. citizens. And Muldoon’s work inspired Allreza’s younger brother, Hamed, to become a journalist. He writes about immigration, about families like his, for Buzzfeed. (You can listen to him reunite with Muldoon in this NPR segment.)