Last month, a consortium of prominent education organisations and unions launched a legal challenge to the Department of Homeland Security’s (DHS) final rule ending the Duration of Status (D/S) framework for international students. The group filed a complaint challenging the legality of the rule along with a motion for a preliminary injunction.

The final rule replacing the Duration of Status mechanism was meant to come into effect on 15 September. However, on 14 September US District Judge F. Dennis Saylor IV issued an injunction which grants "" in the lawsuit. In other words, the rule is blocked from coming into effect and the existing Duration of Status framework remains in place.

“The court’s nationwide preliminary relief is an important step toward preserving a fair and predictable system for international students and scholars and the institutions that welcome them," said NAFSA CEO Dr Fanta Aw. "International educators already work diligently with the federal government to ensure compliance with U.S. immigration law. At a time when countries around the world are competing for talent, the United States should be strengthening our ability to attract the best and brightest, not creating new barriers to it.”

Presidents’ Alliance on Higher Education and Education CEO Miriam Feldblum added for the plaintiffs: “We welcome the court’s decision to grant nationwide preliminary relief and block the rule from taking effect. Today’s decision recognises the serious and irreparable harm this rule would cause to international students and scholars, higher education institutions, and communities across the country, as well as to the US economy, research and innovation. We greatly appreciate the court’s clear and careful consideration. While the case continues, this relief preserves the longstanding system that enables our colleges and universities — and our country — to attract, educate, and retain global talent.”

What did the judge decide?

Judge Saylor's provides some important insights into the court's thinking and to the legal questions at issue.

"The current system – like any government regulatory framework – is not without its problems. Rather than attempt to improve that system, DHS elected to replace it with a new program that will substantially restrict the overall number of foreign students, researchers, professors, and journalists in the United States."

"The holder of an F or J visa who requires more than four years to complete his or her studies or work – such as, for example, nearly all students in Ph.D. programs – will need to submit an extension-of-stay request to DHS, using a Form I-539. The rule contains limited guidance, at best, for the exercise of discretion by DHS in considering such a request. The government has provided no indication as to how the immigration system will be expanded, or funded, to accommodate a large influx of such requests. Worse yet, any decision by DHS to deny a request for an extension is entirely discretionary and unappealable, even within DHS itself. In other words, a DHS official – based on limited and vague criteria, and with no possibility of appeal – will have the power to cut short the academic, research, or teaching activities of any non-US citizen for no reason or any reason…That introduces, at a minimum, a high degree of uncertainty into the educational process, which will have an obvious deterrent effect on student enrolment."

Judge Saylor's assessment of the likely impact of the rule was equally blunt: "The damage to the higher education system and to the economy of the United States is likely to be catastrophic…In fact, the anticipated harms have begun to materialize, even though the new rule has not yet taken effect. Multiple commenters noted that large numbers of international students have already disenrolled from American university programmes or declined to apply at all. Notwithstanding the scale of the likely harm, the government’s proffered rationales for the rule are exceptionally weak, and the connection between the rule and the problems it purports to address is exceptionally attenuated."

"The government’s contention that the rule is necessary to safeguard national security borders on the absurd. It is based almost entirely on a small handful of anecdotes, each of which involved incidents that the new rule would do nothing to prevent or even mitigate."

However, the Judge was also careful to say that the court must assess the legal challenge only on the basis of whether or not the government adhere to the law in establishing the new rule.

"In any event – and to be absolutely clear – this Court does not have the power to block the rule on the ground that it is misguided or ill-advised; that the government’s candor in promulgating the rule is questionable; or that the rule may inflict substantial and long-term damage upon the United States and its educational institutions…The only authority that the Court possesses is to ensure that when the government promulgates a new regulation, it adheres to the law."

"In this case, the relevant law is the Administrative Procedure Act, 5 U.S.C. § 705. That statute permits courts to set aside agency actions that are arbitrary, capricious, or contrary to law."

And here we arrive at the most important part of the ruling: "The promulgation of the rule clearly failed to comply with the APA in multiple respects," Judge Saylor determines. "Plaintiffs are therefore likely to succeed on the merits of their claims; immediate irreparable harm will ensue if an injunction does not issue; and the balance of equities and public interest favor the issuance of an injunction. Accordingly, the Final Rule will be postponed pending final resolution of this matter on the merits."

What's next?

Leading immigration law firm Fragomen advises: "As a result of the preliminary injunction, for now, DHS is barred from implementing the fixed admission final rule until further court order. However, the agency is likely to appeal the court decision in short order; employers and foreign nationals should be prepared for the possibility of a reversal of the order and perhaps quick implementation of the regulation with little or no notice."

For additional background, please see:

• "US coalition files lawsuit to challenge rule ending Duration of Status admissions for international students"
• "Updated: US Department of Homeland Security publishes rule to end Duration of Status for international students"