Science1 publisher2 min readPublished
A federal judge froze DHS's four-year visa cap the day before it was to take effect
Judge F. Dennis Saylor IV found that the Department of Homeland Security promulgated the rule in violation of the Administrative Procedure Act, so universities keep the current duration-of-status regime while the case is heard. The cap is still on the books.
The Scientist · Science desk
What happened
- Judge F. Dennis Saylor IV of the U.S. District Court for the District of Massachusetts issued a preliminary injunction Monday blocking DHS from ending the policy that lets foreign students and scholars stay for the duration of their training.
- Saylor wrote that the promulgation of the rule clearly failed to comply with the Administrative Procedure Act, and that the academic groups challenging it have a substantial likelihood of success.
- NAFSA: Association of International Educators and the Presidents' Alliance on Higher Education and Immigration are among the groups that sued in mid-August, naming DHS, Secretary Markwayne Mullin and ICE as defendants.
- Justice Department lawyer Michael Celone argued students affected could apply for extensions or easily apply elsewhere, comparing students choosing schools to taking a book out of the library.
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Why it matters
- decision Graduate admissions committees and principal investigators can price the coming cycle on the current rules, and any offer that runs into the 2030s now has to survive an appeal that could restore the cap partway through a fellowship.
- constraint The defect Saylor identified is in how the agency made the rule, which leaves a second, better-documented rulemaking as the cheaper route back for DHS and makes the injunction a delay.
- cost Should the cap return, the extension step becomes a standing administrative cost for every long PhD and postdoc appointment. Researchers and university international offices pay it in filing work and waiting time.
Saylor declined to issue a summary judgment definitively striking down the DHS rule, so the four-year cap remains in place as a regulation while the court hears full arguments in the lawsuit [4][17].
At a Sept. 3 hearing, the judge pressed the government on the rationale it had given. "I am struggling to see any real, rational connection between national security issues identified, which is not even half of a dozen incidents over 50 years, and this change," Saylor said to Michael Celone, the Department of Justice lawyer [13]. Fewer than six incidents across 50 years is under one every eight years [1]. In the ruling he was blunter about motive. The administration's security argument, he wrote, "raises legitimate questions as to whether its real purpose is not to safeguard national security and protect our borders, but to achieve other, undisclosed, goals," and he offered as an example "asserting greater government control over academic institutions" [5].
The length of the public comment window came up too. "Can I say it's illegal? Probably not. But it is part of the mix here to what extent the government was taking its duty seriously in weighing costs and benefits," Saylor said [14]. Paul Hughes of McDermott, Will & Schulte, arguing for the coalition of academic groups, said the government had not sufficiently analyzed the fallout, and that absent a delay or vacatur the schools would suffer "irreparable harm" [11].
The exemption in the rule is where the practical exposure sits. DHS said in mid-July that foreign students and postdocs may not stay more than four years on nonimmigrant visas without applying for and receiving an extension, and that people already in the country would not need extensions if their training ends before September 2030 [7]. Read the other way, the cohort the cap actually reaches is anyone whose degree or fellowship runs past September 2030, plus everyone not yet enrolled [2]. Those are the offers being written now.
STAT, reporting the ruling, said the outcome of the case could have a dramatic impact on the nation's biomedical preeminence because international researchers make up a large share of the U.S. life science workforce; the article does not give that share [16]. Duration of status itself dates to 1979, when the federal government adopted it to streamline international students' admission [6]. The administration's case for changing it is that the policy created "forever students" who enroll perpetually to avoid leaving the country [15].
What to watch
- Whether DHS appeals the preliminary injunction or restarts the rulemaking with a longer comment period and a documented cost-benefit record.
- Whether Saylor's ruling on the merits converts the preliminary finding into a final judgment against the four-year cap.
- Any government filing estimating how many extension applications the agencies expect and how quickly they would be decided.