Conditioned Inclusion: The Student Visa as History

By Abigail Boggs

On July 10, 2020 the National Geographic website published “Education interrupted. Years lost. Students face ‘cruelty of new visa policy,”  an article covering the July 6 Department of Homeland Security (DHS) directive that capriciously attempted to restrict the terms by which international students can enroll in U.S. colleges and universities despite the ongoing Covid-19 pandemic. That the story was categorized as “History” on the National Geographic website is a result of the site’s limited taxonomy rather than an authoritative statement on the story’s relevance for the current moment, but from just a few weeks after its publication the categorization appears prescient. After all, like many other efforts by the Trump administration, the federal government was forced to quickly rescind the mandate in the face of a robust and resounding legal response from universities, state governments, and the corporate world, though not before the proposal could callously wreak havoc upon the lives of hundreds of thousands of students, faculty, and university administrators.

The denotation of this story as “History” speaks also to the historicity of the student visa itself. Situating the policy proposal and the reactions it instigated within a longer history of the form and function of the student visa — a document that provides temporary, conditional, and exceptional access to persons otherwise excluded from entry to, let alone life-making in, the United States – provides important insight into how the visa works as an administrative tool and demographic lever. Contextualizing the directive within the narrow historical frame of the Trump administration’s effort to curtail the distribution of student visas and also within the much longer historical trajectory of U.S. higher education makes apparent the broad dependence of the U.S. social order upon noncitizen students. Federal efforts to regulate and manage student mobility have long served a confluence of interests and, as such, provoked surprisingly direct articulations of the entwined dependence of states, corporations, and universities on noncitizen, nonimmigrant, and often nonwhite, students to secure their financial and broader social futures. Further contextualizing the proposal beyond higher education enables and requires that we recognize DHS’s attempt to impose restrictions on international students as part of what Lisa Lowe has described as “a multi-pronged assault on public higher education, of a piece with migrant detention, bans, walls, Islamophobia, state racial terror, prison buildup, & neglect of public health.”

When the vast majority of U.S. colleges and universities swiftly, if reluctantly, moved their classes online in mid-March in response to the Corona virus, the Student and Exchange Visitor Program (SEVP), the DHS program that administers the Student Exchange Visitor Information System (SEVIS), announced a temporary change to their policy on online education. Since 2002 the standing policy on online education, itself a result of technological developments that made online instruction possible and post-9/11 efforts to intensify the regulation of students, allows international students present in the U.S. on F-1 visas to enroll in “no more than an equivalent of one class or three credits per session” online. The March guidance eased restrictions to allow continuing students to enroll in a fully online course load, stipulating that “[t]his temporary provision” would remain “in effect for the duration of the emergency.” Despite the surge in Covid-19 cases in late June and into July, the July 6 directive narrowed rather than extended the March policy to require students to enroll in at least on in-person course to retain their visa in fall 2020. Just hours before the DHS distributed the guidance, Harvard and Princeton announced that all of their fall classes would be online, setting an important standard for U.S. higher education more broadly.

Within days of DHS’ announcement of the proposed policy essentially revoking visas for students enrolled in online-only courses, the federal government was challenged by lawsuits from across various sectors of U.S. public life. First Harvard and MIT filed a joint suit against DHS and they were quickly joined by schools in California and then by 18 state attorneys general who called the directive “cruel, abrupt, and unlawful.” Shortly thereafter, many of the country’s most powerful corporations signed on as well. As the Harvard/MIT lawsuit asserted, the directive “would undermine the education, safety, and future prospects of their international students and their campus community.” The lawyers argued that “the effect—and perhaps even the goal – is to create as much chaos for universities and international students as possible.” As Jenny J. Lee argues in Inside Higher Ed, the policy uses students as “political pawns” in its attempt to “strong-arm U.S. higher ed institutions into resuming in-person classes or risking losing even more much-needed tuition revenue should their thousands of international students defer or drop out.” In targeting students, the policy subjected them to the reasonable fear of deportation should their institution not offer in-person classes or that they would have to risk Covid-19 exposure to retain their visas. The directive and its timing were a calculated attempt to force colleges and universities to open their campuses at the very moment when many institutions were announcing their plans to take the financially destabilizing, but far more prudent, approach of going fully online for the fall.

Even with the July 6 directive rescinded, issues persist for international students and the universities and colleges they intend to attend. For one, during the week the directive consumed the world of international higher education, students were already denied entry to the United States on the presumption that the guidance would be implemented. Even with the policy rescinded, rumors persist of student visa holders being denied entry at LAX because they are to enroll in hybrid programs. Secondly, because the March order applies only to continuing students, incoming students, presumably amounting to one quarter of 2020-2021 enrollees, will not be granted visas if their full course of study will be online. As a result, by July 22, institutions publicized guidance advising incoming students not to attempt to come to the United States. Finally, there is broad concern that the turmoil caused by the proposal will almost inevitably deter future applicants from outside of the U.S. This is simply an added bonus for the Trump administration’s racist, anti-immigrant and anti-education agenda since it will compound the already existent decline in new international students that began in 2016-17. As such, the July 6 directive has functioned as another example of the Trump administration’s tactic of floating impetuously concocted policies orchestrated to cause the most harm to institutions and individuals regardless of whether or not they are never actually implemented.

Since its earliest days in office, the Trump administration has proposed, and to varying degrees implemented, a series of policies that would, among other outcomes, significantly impede the movement and lives of noncitizen students in the United States. The original 2017 Muslim Ban, for instance, targeted students along with immigrants and nonimmigrants across a variety of vulnerable statuses. Later iterations of the ban strategically omitted students and scholars from the ban but only because universities, namely the University of Washington and the University of Hawaii, were able to successfully argue that the ban on students would do substantial harm to the institutions and the state. In 2018, the administration rescinded an Obama administration policy that had reduced the discretionary power of Customs and Boarder Patrols (CBP) agents. Under the Trump policy, CBP agents deny visa holders entry at the border, often on specious basis of their friends’ social media postings, as was the case in 2018 when Palestinian student Ismail B. Ajjawi was denied entry at Logan Airport. Over the last two years the administration has also been working to push through a significant change to how “unlawful presence” is accrued by students on visas. The change, currently under injunction, would have chilling effects on international education, especially in combination with the administration’s efforts to impose limits on H1B visas and the Optional Practical Training program, which allows students who have studied in the U.S. to work for one year after completing their degree. This policy is currently under injunction because of pushback from Guilford College, Guilford College International Club, The New School, Foothill-De Anza Community College District, and Haverford College.

While the Trump administration’s persistent efforts to restrict the movement of international students may seem to have come out of left field, many simply illustrate the ways Stephen Miller, Trump’s primary advisor for all things immigration, has been inspired by the long-standing policy agenda of the Center for Immigration Studies (CIS), a Boston think tank classified by the Southern Poverty Law Center (SPLC) as an anti-immigrant, white nationalist hate group. According to CIS, the organization was founded in 1985 by Otis Graham Jr, a history professor who taught at UCSB and UNC and author of books such as Unguarded Gates: A History of America’s Immigration Crisis. SPLC traces the organization’s origins to John Tanton, the founder of the Federation for American Immigration Reform (FAIR) and the pro-eugenics organization Society for Genetic Education. CIS has been especially concerned with the idea that the student visa provides a backdoor to immigration since at least the 1990s, and they were frequently called upon to testify in support of creating and expanding international student tracking. In 2014, CIS’s current Executive Director Mark Krikorian famously defended the notoriously racist and eugenic 1924 Johnson-Reed Act. This particular move is interesting in that, in addition to instantiating a quota-driven immigration system that explicitly favored white Europeans and maintained the exclusion of most nonwhite people, it was also the first immigration law to enact special provisions for monitoring international students as an especially desirable but also potentially dangerous group. The terms formally developed in 1924, in fact, have set the terms for much of the regulation of noncitizens students through to the present day, leaving students in a uniquely liminal category hovering somewhere between the status of immigrant and citizen.

 Since the very beginnings of federal immigration law in the 1870s and 1880s, international students were included alongside business people, clergy, and others in a special category of exceptionally desirable travelers admitted to the country temporarily despite their membership in groups otherwise excluded. Backed largely by anti-immigration Senators who supported and envisioned a narrowly white American future, the 1921 Emergency Quota Act imposed numerical limits on immigrants traveling to the United States from outside of the Western hemisphere and maintained what it asserted to be the existent bar to immigration for all people deemed ineligible for naturalization due to their status as neither white nor of African-descent. In the initial version of the law, students were removed from the list of people and professions to be granted exceptional permission to enter the country. According to their 1922 annual report, the then recently founded Institute for International Education was able to negotiate a special arrangement with immigration officials to allow students into the country on the condition that they provided a bond and that IIE would accept institutional responsibility for tracking them.

In debates on the 1924 Johnson-Reed Act, the one Krikorian supports, California Senator Samuel Shortridge argued that student visitors required special treatment and oversight because the category of “study,” which set the student apart from other immigrants, was simply “too indefinite,” “too vague.” This understanding continues to underwrite the regulation of international students through to our present day. The events unfolding today are part of longer history of the conditional inclusion of noncitizen students through immigration law as well as special conditions set by universities and funders – according to which students must demonstrate that they are properly participating in both the institution and in the country under the always present threat of  always having their status rescinded. When placed in this longer history and read alongside the ongoing efforts to disrupt the lives and flow of international students, the July 6 shift in the DHS Covid guidance reads as one more cruel and opportunistic move that fits squarely within a constellation of other exertions to simultaneously disrupt higher education (which is deeply dependent on international students who make up 6% of U.S. enrollments and contribute $42 billion to the U.S. economy) and U.S. immigration.

If there is a desire to effectively advocate with and for the well-being of international students, it is necessary to remember a few key points: The first is that the effort to curtail and control noncitizen students is not unique to the Trump administration. Rather, anti-international student actions by the Trump administration are an extension of, rather than a derivation from, a persistent thread of federal policy and white nationalist advocacy. Second, while international students have long been a crucial part of the U.S. immigration pipeline, they are distinctly, at least while they are students, not immigrants. Thus, advocacy for them must attend to the particular legal liminality of their position. And last, universities and the broader economy of local, state and federal government as well as industry have long shared an interest in the recruitment and education of international students as would-be or at least could-be citizens and certainly as labor. If the people and organizations appalled by the cruelty of the July 6 directive want to more effectively push back against the xenophobia of the Trump administration and enact a future that radically differs from the Trumpian present, it will be necessary to go beyond critiques of Trump to instead confront the deep roots of anti-immigrant, and more broadly anti-noncitizen, logics that provide the foundation of U.S. federal policy and  national logics. In other words, we must be careful not to exceptionalize this administration’s actions and instead, as A. Naomi Paik persuasively argues in her recent book Bans, Walls, Raids, Sanctuary: Understanding U.S. Immigration for the Twenty-First Century, “grapple with how the United States has been defined by exclusion and exploitation based, among other things, on race, gender, citizenship status, and labor.”

To make good on expressions of support and concern for international students it will be necessary to work in solidarity with the organizing international students themselves are doing. Scholars and activists can and should turn to groups such as the International and Immigrant Student Workers Alliance, “a group of international and immigrant student workers across the United States committed to fighting for the rights and advocating for the interests of student workers who do not have the protections afforded by U.S. citizenship.” We can also look to students and scholars at American University’s Washington College of Law who created a “Reclaim Your Campus” toolkit that provides guidance on how to “de-ICE” campuses. In their piece “Those Who Study Have Rights”  May Day Student Organization, a collective that emerged from a 2018 occupation of the New School cafeteria in New York, speaks to the importance of going beyond simply advocating for a return to pre-July 6^th conditions to instead recognize students as part of a larger international working class. They articulate four key demands: equal political rights for immigrants and nonimmigrants, an end to the deportation of students,  broad access to education for immigrant, international, and native-born students, and  the “unconditional right to labor.”

The student visa as a document, and student visa holder as a legal status, has long operated in a unique way within the broader architecture of U.S. immigration processes:  under its terms, now over one million people a year enter the country for the purposes of study. To retain their legal status, they are subjected to ongoing surveillance by the state and by the institutions in which they are enrolled. As we navigate through the uncertain future of higher education writ large, and international education in particular, it is essential that we remain attentive to the histories that underwrite our present as we fight for a more just future.

AUTHOR BIO

Abigail Boggs teaches in the sociology department, education studies college, and feminist, gender, and sexuality studies program at Wesleyan University. She is currently revising her first book, “American Futures: Noncitizen Students and the Transnational U.S. University,” and continuing to collaborative on the abolitionist university studies project. Her scholarly work can be found in Feminist Studies, American Quarterly, S&F Online, The Journal of Academic Freedom, and the edited collection Mobile Desires: The Politics and Erotics of Mobility Justice. Thanks and appreciation to the editorial team here and J. Kēhaulani Kauanui for their support of this post.