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Law360 (July 22, 2020, 2:09 PM EDT ) The Trump administration has not yet followed through on its promise to drop a policy barring foreign students from the U.S. if their colleges go fully online during the COVID-19 pandemic, states suing to block the directive told a federal judge Tuesday.
As recently as Tuesday — a week after the government pledged to rescind the directive — the federal government was denying or putting on hold student visa applications that lacked evidence of in-person instruction, according to a status report filed by Massachusetts Attorney General Maura Healey.
"Defendants have not fully executed their commitments to implement the rescission of the July 6 directive and to return to the March policy," the states told U.S. District Judge Allison D. Burroughs in Boston.
The Trump administration said July 14 it would revert to the March guidance, which allowed international students to remain in the U.S. even if their college or university opts for online-only instruction during the pandemic. However, the states said Tuesday that some schools have reported that students are being told by "consular officers at the State Department or other government officials or websites" that they still need paperwork showing they have in-person classes if they want a visa.
Attorneys general from 18 jurisdictions — Healey in Massachusetts, joined by Colorado, Connecticut, Delaware, the District of Columbia, Illinois, Maryland, Michigan, Minnesota, Nevada, New Jersey, New Mexico, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia and Wisconsin — sued on July 13 to block the policy. The next day, the Trump administration gave notice in a separate case brought by Harvard University and MIT that it would back off the policy.
Hundreds of schools — including the full Ivy League — as well as business groups and advocacy organizations backed Harvard and MIT in the litigation. The government had argued the policy was "black letter law" and well within the discretion of the executive branch.
At the July 14 hearing in the Harvard and MIT case, Judge Burroughs said the schools and Trump administration lawyers had reached a deal to rescind the visa restrictions and revert to the March policy.
Judge Burroughs said the agreement rendered moot the state's urgent request to block the visa policy.
But on Tuesday, the states said Immigration and Customs Enforcement has not published anything rescinding the July directive. Meanwhile, a press release announcing the visa restrictions remains on ICE's website, the states said. Updates to the Foreign Service Manual regarding the in-person instruction restrictions also remain intact, according to the filing.
The government has offered no other guidance about how the return to the March policy will work for students currently abroad who wish to return to the U.S. for their classes, according to the states.
The states told Judge Burroughs that "further guidance is needed to fully rescind the July 6 policy directive and, specifically, to provide clarity and additional details — to our schools and students, as well as to consular officials and CPB officers at the country's borders — as to how the flexibility provided by the March policy will be applicable to new and returning students."
In their status report, the states said a Trump administration lawyer told them the government is "working expeditiously" on new guidance and implementing the agreement. Still, the lawyer didn't know when the guidance or directive would be published.
In a statement, a spokeswoman for the Massachusetts Attorney General's office said, "We are concerned that the Trump administration has not yet fully implemented its commitment to return to a policy that recognizes that requiring in-person instruction would be harmful and senseless in the midst of a pandemic."
A spokeswoman for the U.S. Attorney's Office declined to comment on Wednesday. Representatives for ICE were not immediately available for comment on Wednesday.
The states in the Massachusetts suit are represented by Abigail Taylor, Elizabeth N. Dewar, Andrew J. Haile and Julie E. Green of the Massachusetts Attorney General's Office.
The federal government is represented by Rayford A. Farquhar of the U.S. Attorney's Office for the District of Massachusetts.
The case is Commonwealth of Massachusetts et al. v. United States Department of Homeland Security et al., case number 1:20-cv-11311, in the U.S. District Court for the District of Massachusetts.
--Additional reporting by Chris Villani. Editing by Alyssa Miller.
Update: This story has been updated with comments from the Massachusetts Attorney General's office.
For a reprint of this article, please contact reprints@law360.com.
