Big Tech backs colleges in war against Trump's ban on foreign students taking web-only classes mid-pandemic

Microsoft, Google, Facebook and pals weigh in on F-1, M-1 visa lawsuit

Big Tech has thrown its support behind a legal challenge to a Trump administration rule that will force foreign students to leave the US if their university courses are online-only amid the coronavirus pandemic.

Facebook, Google, and Microsoft have joined [PDF] a wide range of other large tech companies, including Adobe, Dropbox, GitHub, Linkedin, Paypal, Spotify, Salesforce, and Twitter, in backing a lawsuit brought by Harvard and MIT against the Department of Homeland Security.

Many universities are moving their classes to online-only formats to help curb the coronavirus outbreak, something that has proved controversial because it has not come with a reduction in fees. Many academic institutions, and US corporations, were shocked, though, when the Trump administration announced that unless there were at least some in-person lessons as part of their courses, foreign students' visas would be cancelled, effectively forcing those students to leave the country and barring those outside from entering.

A separate lawsuit from 17 state attorneys generals also seeks to block the new rule.

Aside from the billions of dollars in revenue that would be lost by forcing up to an estimated one million foreign students to leave, and the reputational damage to US universities, many of America’s largest and most innovative companies rely on recruiting talent from the nation's top universities, and the new rule would make that process much harder, if not impossible, for non-American students.

“These students contribute substantially to the US economy when they are resident in the United States,” reads the supporting brief from the 19 organizations.

“And without international students, American educational institutions face a sudden loss of critical mass - jeopardizing their ability to maintain their standards of excellence; produce research that helps keep US businesses on the cutting edge of innovation; and provide the training that makes American students a strong talent pool for their future employers.”

Legal argument

The brief argues that any new rules made through the Administrative Procedure Act (APA), which is what the Trump Administration relied on in making the new rule, requires the impact of any such decision to be fully considered.

The briefing argues that process never happened, despite the obvious and substantial impact. “The Supreme Court has long held that agency action is arbitrary and capricious – and must be vacated under the APA – when the agency ‘entirely fail[s] to consider an important aspect of the problem’ before it,” it argues.

It also argues that any rule change has to consider the impact of changing long-standing policies - and it has long been policy that any student accepted to a US university as a foreign student has the right to live in the country while attending.

It argues that the US government “did not consider the harm to businesses and the economy that will result from the loss of the tens of billions of dollars that international students contribute to US GDP each year” and “second, they failed to address the critical role played by international students in maintaining the world-leading status of US educational institutions.”

It also argues that the new rules effectively ignores the “substantial benefits to US businesses from international students’ employment in the United States during and after their course of study” and “the significant long-term benefits to businesses and the entire economy from international students who remain in the United States, and from those who find permanent employment outside the United States.”

Policy process

The rest of the brief then digs into the details of its main points, providing evidence of the impact of foreign students and the recruitment rates of top students within US businesses.

Aside from the legal challenge, Big Tech has also taken the argument onto social media, with Microsoft president Brad Smith tweeting on Monday that “COVID-19 has thrown universities and students into a state of uncertainty. We need to give all students - including those who’ve come to the US from abroad to learn - flexibility during this pandemic. That’s why we signed today’s amicus brief.”

The rule is just the latest rule change that has been made by the Trump administration with little or no discussion with interested and affected parties; a significant break from the long-held traditions of governance. The top-down rulemaking has been particularly pronounced on issues surrounding immigration: a topic that President Trump and his advisors believe is fundamental to his popularity and re-election chances. ®