Lawsuit against DHS - ICE by MIT and Harvard Case info

Update : DHS cancels July 6th Guidance for F1, M Students. No need to leave US

In F1 Visa by KumarUpdated : 2 Comments

Recently The Student and Exchange Visitor Program (SEVP), which is part of Immigration and Customs Enforcement (ICE) gave guidance to schools that says In-person classes are must for F1, M students and they cannot be fully enrolled  in online only classes. If the schools do not offer in-person or mixed mode classes, then such students have to leave US. Also, no Visas would be given for such schools by US State Department or CBP would allow such students to enter US.  Challenging this ruling MIT and Harvard have sued Trump administration’s DHS and ICE on July 8th. In this article we will cover all those details.

Official : Court informs – DHS rescinds the July 6th Directive

Jul 14th, 2020 : Today, judge announced that DHS is not planning on pursuing the case and parties have come to an agreement. DHS plans to cancel/rescind the July 6th guidance given by ICE/SEVP. So, technically Harvard/MIT have won in the lawsuit as DHS/ICE have gone back. They said that the March 2020 guidance given by DHS/ICE will be in effect. Below is the official Court Notes.

Below is what it means for F1 and M1 Students

  • F1 and M1 Students need not leave US, if they are taking fully online classes
  • They will be able to do whatever they were doing since March 2020.
  • No need to get new I20s. DSO will not issue new I20.
  • You can attend universities that offer fully online classes like MIT and Harvard.
  • This is the SEVP Guidance from March 9th that will be in effect. You can also check below YouTube Video for summary.

DHS Response Opposing the Lawsuit by Harvard/MIT

Jul 13th, 2020 : DHS filed a 23 page document opposing the lawsuit filed by Harvard/ MIT today. In addition to the DHS document, there are tens of Amicus Briefs ( These are documents by parties not in case, but submitting their opinion and info to assist court in making decisions) that are filed by many schools, organizations.

Below are some of the key argument points by DHS and the weakness in their argument.

  • Asking to rewrite Official Rules : In the introduction, DHS starts by saying that Harvard/MIT are asking to rewrite well established official rules by taking advantage of the flexibility given by ICE during pandemic of COVID-19. ICE discretion asking to enforce general F1 rules is not in violation of law, so their request for injunction( put current ICE guidance on hold) should be denied.
    • Our Take : If you look, they are just going by the book and saying we are going by the rules and we have discretion. But, Harvard argues that ICE discretion is not correct as it did not consider the reality of the entire situation with COVID, F1 students challenges, etc. This is the main argument in the case.
  • Background of Case : DHS provides the background of the case stating the F1, M1 rules for studying online and requirements. They also talk about SEVIS system, tracking students compliance, security and need to monitor non-immigrant students for national security reasons…They provide a brief snippet of COVID-19 and telling how they have adapted for ensuring notice of the case.
  • SEVP Policy Announcements : DHS talks about SEVP policy announcements from January and March, where they said they gave flexibility to Schools to allow students within US to take more than one online class. They say they received about 6000 documents from schools across the nation informing schools’s changes. Also, they say that it applies only to students in US and they told that ” things are fluid and the guidance may be subject to change”.
    • Our take : This is one of the key argument points that DHS uses more in the case telling that it is their discretion as they communicated clearly in March telling that they can change the guidance anytime. They do not offer reasons for their discretion other than the statement it is the official regulation and should be enforced. They give no explanation other than that like COVID-19 situation, national emergency, etc.
  • Legal Argument Points : DHS talks about the legal standards on when injunction can be given and shares that Harvard/ MIT should demonstrate the likelihood of success in case, harm caused to them, and it is in public interest.
  • DHS gave lot of info, National Security : DHS says that they gave enough info to all parties and they considered all changes in situation. They talk about their duty to enforce general rules related to F1, M1 students. They say that Online education gives flexibility for students to be anywhere and it national security concern. Also, they say students can do anything other than studying full time..
    • Our take : These arguments are really flawed as they do not really talk about why they took the decision other than enforce rules. Also, they say that students staying anywhere is a National Security concern…seriously, this does not sound logical ? Also, they say students can do anything ? like what can they do during COVID-19 other than watch more TV…?
  • Policymaking – Comments and Notice period : They argue that the guidance they gave in July is exempt from the rule-making as it is their discretion as it was not a rule and just a guidance. They say, they just indicated the temporary final rule for schools to give comments, but did not do anything yet.
  • Not enough harm to Students : DHS says, Harvard/ MIT did not really prove that there is irreparable harm done.
    • Our take : This is not true, the lawsuit clearly explain all the struggles of students, including issues studying remotely in countries with poor infrastructure. DHS is just arguing for the sake of it..fully flawed.
  • DHS Following Rules, their discretion : They also talk about similar points that all go back to their only argument point saying they are enforcing the rules and it is their discretion.
    • Our take : They do not talk about any of the public health risks with COVID or any other struggles of students. The arguments are really weak and flawed.

Our Take on DHS Arguments

Overall the case arguments are weak by DHS. Some of the arguments about national security to monitor students are illogical….Also, they do not give any reason for their discretion other than telling that they are enforcing rules. There are tens of supporting documents submitted by many other schools, organisations in support of the Harvard / MIT. DHS does not talk about any of the public health risks, students issues with getting proper internet in countries like Ethiopia, or talk about issues to get CPT to do internships, etc. It is very likely that we could get national injunction on this. Stay tuned for update.

Below is the official court document filed by DHS for your review

Why the Lawsuit is filed by Harvard, MIT and others ?

Most of the schools were following the guidance given by SEVP on March 9th,2020 that gives flexibility to schools to offer the classes either online or in-person and only inform SEVP on the mode of classes they are offering and how they plan to make sure F1 and M1 students would maintain status. There was no restriction for the schools and it was flexible. But, on July 6th, 2020, SEVP changed their stance and gave little time for schools to react. They are technically forcing to re-open schools and stating that they will deport F1 and M1 students, if they are taking only online classes and not compliant with having in-person classes.

Many schools have already made plans for Fall as they are just few weeks away and now this last minute change is going to create many issues. Now, they have re-issue thousands of I-20s, they need to make sure Students are safe, they need to also consider new students, etc. It is literally a big mess for schools to react and plan. Also, schools like Harvard and MIT that have 5000 and 4000 international students plan to offer most of the classes online for student safety, including many other schools that plan to do the same.

What is the Lawsuit against DHS/ ICE asking for from Court ?

MIT, Harvard and other schools that joined the lawsuit are asking for temporary halt on the new guidance ( restraining order or injunction) given by SEVP.  They are requesting to cancel the guidance given by the ICE on July 6th and asking them not to implement the guidance as final rule in federal registry.  They claim that the policy guidance is unlawful. Also refund the fee of lawsuit. Below is screenshot from official court document on what they are asking for.

Decision asked by Harvard and MIT in the Court case with DHS on F1 Visas

Harvard, MIT Lawsuit against DHS/ ICE on SEVP guidance for Fall 2020

The actual court document is about 26 pages and for the most of the document, they explain he current situation with pandemic and how it is impacting the community, students and Universities.  They explain the background of the current situation with COVID-19 and set the stage.

Below are some key points that the lawsuit talks about for setting the stage before they raise the legal arguments that ICE violated.  The below points are articulated as MIT and Harvard as they are the ones filing the compliant. If you see word “they” used anywhere, it means MIT and Harvard.

  • National Emergency, Initial Guidance :  MIT and Harvard set the stage saying that on March 13th, 2020 President’s announced national emergency due to pandemic of COVID-19  and SEVP/ ICE gave guidance indicating that flexibility would be given for international students and they can attend online classes considering health and emergency situation with pandemic. They said that will be in effect for the duration of emergency, now they are changing the stance as still National emergency is not lifted.  See below
Court Case ICE vs Harvard Key point 1
  • Fall 2020 Plans, Health Risks : Considering the health risks with COVID-19 due to close contact in classrooms, Harvard, MIT and many other schools plan to offer most of the Fall 2020 classes online. Also, they reduced the on-campus dorms capacity to 40% for fall 2020 to prevent COVID-19 spread. Now, this last minute directive forcing to open schools is a big health risk for students.
  • No options for Students to study in US: The ICE announcement leaves hundreds of thousands of students with no options to study in US as we are weeks away from Fall 2020 start and they cannot transfer or even find a schools that fits their requirement of in-person classes.
  • Safety of Students : The decision to provide in person classes across our campuses and other campuses undermines the education, safety and future prospects of international students and their campus community.
  • No time to plan : Universities have been planning for 2020-2021 academic year for months assuming that they can do the online. Now, this change coming weeks before fall start is not rational and we do not have enough time to plan ahead in short time.
  • COVID-19 Health Committees recommendations : Harvard and MIT had many Health related committees in place for COVID-19 pandemic since March. They were  studying the situation, consulted many medical experts, industry experts and others. The decision from all of them is to to offer classes online in interest of public health safety. Now this guidance by SEVP is not helping that months of research and study and posing a risk.
  • Faculty Average Age over 60 years old : Median age of Harvard faculty of arts is over 60 years of age. People in that age group are at higher risk as per CDC.  It will risk our faculty and staff health and well-being.
  • ICE Guidance does not consider Health Situation : The July 6th directive by SEVP/ICE does not consider the reality of pandemic and health emergency and risk to the students, faculty and staff and asking to re-open schools for in-person classes. They do not consider the reported infections and current situation in US for their decision.
  • International Students are forced to Leave US : It is impossible for international students to find a school and transfer and continue education in US. This directive by ICE will force them to leave country and it will impact them financially and personally. They will incur substantial expenses with breaking leases, air travel, and many other including families separated.
  • Student lose Practical Training option in future  : If students cannot enter US due to visas not given by Consulates, then they will not be able to arrive in US and it will impact their future of internships and practical training (CPT) in future as they will not meet the requirement of F1 status for full academic year before getting practical training.
  • Student Studying Remotely Time zone, Internet issues: While the directive tells to study online from outside country, it does not consider issues like time zones, unavailability of proper internet are many of the limitations for online learning from their home country. Also, many of the students from civil war hit countries like Syria will face extreme challenges.  Some countries plan to shutdown internet as well at timed. So, these are limiting factors.
  • Administration Stance to Open Schools, Limit F1 students: The current Trump administration has acknowledged that they want schools to re-open and the current administration general effort has been to reduce the presence of F1 international students in US and this directive is supporting their intentions.

Those are some of the key points they set the stage. After they set the background, they raise the legal points below arguing the case.

Argument Points in Lawsuit by MIT, Harvard to Defend Case against ICE

  • Reason 1 : DHS/ICE Failed to Consider important aspects of the Problem:  The current guidance given by SEVP/ICE violates Administrative Procedure Act (APA). It does not consider important aspects of the problem and does not have reasoning for the directive. It fails to consider the devastating impact it can have to international students in terms of health, financially and personally as they will be forced to leave the country, and some may never be able to return. Also, ICE has deviated from their guidance from march telling that this will be in effect until the end of national emergency.
  • Reason 2 : DHS/ICE Fail to offer reasonable basis to justify their policy:  As per APA, the current guidance given by ICE does not have any proper reason or logic why they have given this guidance or directive to re-open schools despite pandemic. They do not explain proper reason and the need to re-open the schools, when national emergency is still in effect.
  • Reason 3 :  Violates Notice and Comment Rulemaking:  As per rules, DHS/ICE are supposed to publish the rule for public comments, take the feedback and then only publish the rule. There is no good reason given by ICE for not doing it the proper rulemaking process. They need to follow 9 Steps for federal rulemaking, in this case, they plan to skip many steps without giving proper reason.  

Overall, the argument given by Harvard and MIT is very logical and sound. The court will hear the case today in sometime. We will keep you posted. the

Latest News Update from the Court on Lawsuit

July 10th, 6 PM EST : Today, dates were finalised by the court for actual hearing and submission of the briefs. Below are the dates

  • ICE / DHS to submit their briefs by Jul-13, Monday noon
  • MIT and Harvard to respond to briefs by Jul-14 Tuesday noon
  • Court Hearing on Jul 14, Tuesday at 3 PM EST time. See below on update from court on dates. Court Update MIT Harvard Lawsuit July 11th-20
  • The judge said, they will go as late as they can to make a decision on the case by the same day.
  • Another lawsuit was filed against ICE/SEVP by California State as there are many schools in California that plan to offer online courses this fall. They are represented by leaders from California State University and California Community Colleges Systems. Check more at LATimes News

July 9th, 10:17 AM EST : We were part of the court hearing today. No real update, other than they are planning for schedule for hearing.

  • Govt asked time until tomorrow morning 10 AM EST to coordinate the response.
  • Harvard & MIT team said one of their students were denied boarding recently due to the order and they want the issue to be resolved soon before July 15th as there is a lot of impact for the students and universities.
  • They are asking for an injunction order or at least a 15 days Temporary Restrain Order that will pause the current guidance and dates given by SEVP.
  • We will know the schedule and update tomorrow.

Official court Lawsuit document from MIT and Harvard

   

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Comments ( 2 )

  1. Rd

    Hey Guys lets solidify this with support: Sign this

    https://petitions.whitehouse.gov/petition/allow-f-1-students-stay-us-through-fall-semester-if-instruction-online-due-pandemic

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