Judge blocks DHS visa cap for international researchers

A federal judge on Monday issued a preliminary injunction blocking the Trump administration from upending a long-standing policy that allows foreign students and scholars to stay in the U.S. for the duration of their training, a decision that suggests that plaintiffs opposed to the policy change are likely to ultimately succeed.

The ruling halts plans by the Department of Homeland Security to place a four-year cap on the kinds of visas used by graduate students and postdoctoral researchers while a judge hears full arguments in a lawsuit over the new policy. Experts warn the outcome of the case could have a dramatic impact on the nation’s biomedical preeminence given that international researchers make up a large share of the U.S. life science workforce. The new policy had been set to take effect on Tuesday. 

In his ruling, Judge F. Dennis Saylor IV of the U.S. District Court for the District of Massachusetts wrote that “the promulgation of the rule clearly failed to comply with the [Administrative Procedure Act].” Saylor added that the administration’s argument that the new visa policy is needed to safeguard national security was weak and “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 — such as, for example, asserting greater government control over academic institutions.” 

While Saylor said that the plaintiffs have a “substantial likelihood of success” in the case, he declined to issue a summary judgment definitively striking down the DHS rule.

In a Sept. 3 hearing, an attorney for the coalition of academic groups that challenged the visa restrictions, Paul Hughes from the firm McDermott, Will & Schulte, argued the government did not conduct a sufficient analysis of the fallout of the new policy. Without a delay in its implementation or throwing out the change, he said schools would experience “irreparable harm.” 

Michael Celone, a Department of Justice lawyer, in turn, argued that the government had done its due diligence and that the plaintiffs had not demonstrated tangible harm that would result from the policy. Celone said students who are impacted by the policy could either apply for extensions or easily apply elsewhere, comparing students choosing schools to taking a book out of the library. 

Saylor seemed skeptical of the government’s reasoning, questioning how the policy would diminish any national security risks posed by international students. “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,” he said to Celone during the hearing. 

The judge also took issue with the relatively short time the policy was open for public comments: “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.”

Academic groups, including the nonprofit NAFSA: Association of International Educators and the Presidents’ Alliance on Higher Education and Immigration, have joined the suit. DHS; Markwayne Mullin, secretary of the department; U.S. Immigration and Customs Enforcement; and David Venturella, acting director of ICE, are named as defendants.

The case centers around a long-standing policy known as duration of status, which for more than 40 years has allowed international students and scholars to remain in the U.S. for however long it took them to complete their training. 

The federal government implemented the policy in 1979 to streamline international students’ admission into the country. But the Trump administration has argued duration of status has led to the creation of “forever students,” whom they allege cheat the system by perpetually enrolling in courses to avoid leaving the U.S.

In mid-July, DHS announced that, going forward, foreign students and postdocs won’t be allowed to stay in the U.S. for more than four years on nonimmigrant visas unless they apply for and receive an extension. Students and postdocs already in the U.S. wouldn’t need to apply for extensions if their training will end before September 2030.

But in a suit filed in mid-August, the academic groups alleged that the new rules violate the Administrative Procedure Act, a law that governs how agencies implement new regulations. The plaintiffs alleged that DHS didn’t give interested parties enough time to comment on the new rule, didn’t respond substantively to comments, and hasn’t clearly explained why the new policy is a rational and necessary response to alleged visa fraud.

The academic coalition warned in the suit that uncertainty around whether foreign researchers will be able to stay in the U.S. for the length of their training could prevent them from coming here in the first place. A NAFSA poll of more than 1,000 current students and postdocs found that nearly half of them would not have come to the U.S. under a fixed period of admission.

In its response, the Trump administration dismissed the findings of the poll as “uncertain and speculative.” The government also argued that the new rule was necessary to safeguard national security and would have minimal downside, and that if international enrollment does decline, it could be for reasons unrelated to the end of duration of status.

International researchers make up nearly a quarter of life science Ph.D. graduates and around 60% of postdoctoral researchers. The new policy would mean many of them would need to apply for a visa extension; the average biomedical Ph.D. takes five to six years to complete, and National Science Foundation data indicate that about a fifth of postdocs have worked in that role for more than six years.

STAT’s coverage of the federal government’s impact on the biomedical workforce is supported by a grant from the Dana Foundation and the Boston Foundation. Our financial supporters are not involved in any decisions about our journalism.