Current issues, challenges facing international students looking to study in the United States

New international student enrollment in the United States has fallen by 10 percent since 2015, according to a recent article written by Forbes' Stuart Anderson, who believes added "immigration restrictions are likely to blame for the poor performance ... relative to other countries."

Below is an examination of some of the current problems and challenges facing foreign nationals seeking visas to further their education in the American university system.

Buy American, Hire American Executive Order

Some of the issues facing international students stem from President Donald Trump's Buy American, Hire American Executive Order (EO).

Signed in 2017, the EO "seeks to create higher wages and employment rates for U.S. workers and to protect their economic interests by rigorously enforcing and administering our immigration laws," according to U.S. Citizenship and Immigration Services (USCIS). It also directed the Department of Homeland Security (DHS), in coordination with other agencies, to advance policies to help ensure H-1B visas are awarded to the most-skilled or highest-paid beneficiaries.

Students have certainly felt the effects of the Executive Order, which has led to a surge in Requests for Evidence (RFE) being issued after filing a petition with USCIS as well as an increase in petition denials over the past two-plus years.

USCIS processing delays have reached all-time highs during the Trump administration, as well, as 94 percent of all immigration petitions in fiscal year (FY) 2018 took longer to process when compared to FY2014.

READ MORE: Two Years of the Buy American Hire American Executive Order: Commemorating and Commiserating

"We're alienating, potentially, a population that could be very favorably inclined to the United States," Amy Gadsden, associate vice provost for global initiatives at the University of Pennsylvania and executive director of Penn China Initiatives, told the New York Times in August.

She added: "(The government) feel(s) they need more time to review these cases, but it has the effect of sending a message to students that the U.S. is not as welcoming as it once was."

Meanwhile, international graduate application and first-time enrollment rates decreased at U.S. universities in both 2017 and 2018, data from the Council of Graduate Schools (CGS) shows.

"This is the first time we've seen declines across two consecutive years, and while we think it's too soon to consider this a trend, it is troubling," CGS President Suzanne Ortega said in a statement in February. "We continue to monitor issues, including changes in immigration and visa policy, with growing concern over the possible negative impact to the U.S.'s image as a welcoming destination for international students and scholars."

Experts, including Rachel Banks, public policy director for NAFSA: Association of International Educators, have also blamed the increased scrutiny of visa applications on the implementation of the Presidential Memorandum known as "Heightened Screening and Vetting of Applications for Visas and Other Immigration Benefits."

"There is a clear sense in the international education community that ... (the presidential memorandum) has led to many more visa denials, intrusive searches of electronic devices and social media accounts at ports of entry, and denials of admission to the U.S. than seen in prior administrations," Banks told the Arkansas Democrat-Gazette in late October.

The enhanced difficulty of acquiring a student visa has led to a surprising development: Canada has reportedly passed the United States as the top destination for Indian nationals looking to continue their education.

In FY2018, Indians obtained 107,290 visas to study in Canada compared to just 42,694 in the United States, according to data published by the Arkansas Democrat-Gazette.

University Concerns

Top education officials from around the country have taken issue with the increased difficulties related to obtaining a student visa.

Harvard president Lawrence S. Bacow wrote a letter in July addressed to Secretary of State Michael Pompeo and then- Acting Secretary of Homeland Security Kevin McAleenan to share his "deep concern over growing uncertainty and anxiety around issues involving international students and scholars."

"I understand that the responsibility for the uncertainties in today's immigration policy rest more broadly than just with your two agencies," Bacow's letter read, in part. "That said, the visa and immigration process is increasingly unpredictable and uncertain. This poses risks not just to the individuals caught up in it, but also to the entirety of our academic enterprise."

More than 60 presidents from New York colleges and universities also signed a letter in October to the state's congressional delegation, calling for them to "closely monitor the policies and administrative actions that are disrupting the mobility of students and scholars."

"American universities have historically been the envy of the world, enabling them to recruit and retain the most talented students from around the globe," the letter said, in part. "This, in turn, has been a leading driver of American innovation, economic strength, and robust job creation. For the U.S. to retain this position of preeminence, we must have the policies and practices in place that support its success."

New OPT Guidance

The DHS has imposed stricter guidelines for the Optional Practical Training (OPT) program in recent years and appears positioned to continue the trend in 2020.

OPT may be authorized for one year in an occupation that is directly related to an individual's major area of study and allows certain students who receive science, technology, engineering or mathematics (STEM) degrees to apply for an additional 24 months of post-completion OPT.

Immigration and Customs Enforcement (ICE) issued policy guidance in late September revolving around the Student and Exchange Visitor Information System (SERVIS) that could impose considerable challenges for both employers and international students. Anderson provided full details about those changes in a separate article published by Forbes, which can be found here.

In addition, ICE began performing random site inspections targeting individuals enrolled in OPT in early July 2019, with the number of visits picking "up speed" since then, attorneys told Law 360 last month.

The Trump administration also announced in its Fall 2019 Unified Agenda of Federal Regulatory and Deregulatory Actions that it is planning to have ICE "amend existing regulations and revise the practical training options available to nonimmigrant students on F and M visas."

FIND OUT MORE: Trump administration's year-end agenda could have major impact on future immigration matters

Meanwhile, some lawmakers are looking to make it even more challenging to use the OPT program to continue studying and working in the United States.

In June, congressman Paul Gosar (R-Ariz.) introduced the "Fairness for High Skilled Americans Act," a bill that would effectively end the OPT program entirely.

"Big Tech firms have reached a point of profitability and market control that they do not need federal assistance, loopholes, or subsidies," Gosar said in a statement to Bloomberg Law at the time. "It is time these companies hire American citizens and it is bad policy to allow foreigners to take great career jobs and displace American workers."

The House of Representatives has not considered the bill, which is not expected to become law.

Gosar has called on Trump to end the program via executive order, as well, arguing that "OPT hurts American citizens."

The OPT extension program has also been challenged in federal court in a lawsuit filed by the Washington Alliance of Technology workers.

Last month, more than 115 colleges and universities composed an amicus brief to defend the program, arguing that "the opportunities facilitated by OPT gives American institutions of higher education an edge in an increasingly competitive global education market" and "the consequences of ending OPT for students, schools, and the economy at large will be severe."

Recommendations from Garfinkel Immigration Law Firm attorneys

Students should make sure to work closely with their university's designated school official (DSO) as well as their employers.

When in doubt about policies and procedures, individuals should consider speaking with an experienced immigration attorney.

Garfinkel Immigration Law Firm continues to monitor the situation closely and will reach out and advise as it impacts our clients.

As always, please do not hesitate to call us at 704-442-8000 or contact us via email with any questions.

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