WHAT IS THE WAY FORWARD FOR FOREIGN STUDENTS IN THE USA

ABSTRACT

The current US government is creating immigration policies that are now posing a threat to the  higher education sector, particularly for international students. These policies are being made at a  time when the Trump administration is issuing travel bans to the USA and now restricting the entry  of foreign students, possibly revoking student visas, and further limiting and canceling  universities’ foreign enrollment certificates (such as Harvard. This article will therefore  investigate, analyze, and critique the legal implications of the proclamation that suspends/bans entry of foreign students into the USA. It will analyze the possible legal reasons for making such  an order, and the legal status quo of the situation created as a result. It will also suggest possible  solutions to these immigration challenges caused by the making and signing of the proclamation by the President.

INTRODUCTION

The United States of America has for the longest time been the hub for great academic institutions  of higher education. However, the current administration has been making immigration policies  that seem to pose a hurdle to foreign/international students from all over the world who are  planning to, or are currently studying in American universities. Therefore, this article looks into  the legal implications of the recent proclamation made by President Donald Trump, which seeks  to suspend/ban the entry of foreign students into the USA for studies, research, and exchange  programs at Harvard University. Furthermore, this article will delve into the status quo of  international students in America after the proclamation and the way forward once they resume  school in the fall. I will look into the legal conundrum that has resulted from the immigration  policies that bring about new measures for student visa applications in American embassies and  consular offices, and what the higher education sector in the USA looks like for international  students. Some of the issues l scrutinize include: the legal reasoning behind the proclamation  suspending entry of foreign students into Harvard University in the USA, the diverse legal  implications of that proclamation to the foreign students, other American universities and not just Harvard and finally the legal implication of the temporary restriction order made by the US district  Judge that has halted the implementation of the proclamation up until 20^th June 2025. The article  will also provide solutions/ solutions to this problem.

BACKGROUND

Early June this year, the president of America signed a proclamation that aimed at restricting  foreign students’ visas at Harvard University. This move was made to safeguard the national  security and interests of the country. Furthermore, the president stated that Harvard’s conduct has  rendered the institution an unsuitable destination for foreign students, and in that regard, this was  the main reason given for making and signing the proclamation.¹In a detailed statement from the  white House president Donald Trump gave several reasons for suspending Harvard’s Student  Exchange Visa Program (SEVP) certificate and among them was the fact that,”… the Federal  Bureau of Investigation (FBI) has long warned that foreign adversaries take advantage of easy  access to American higher education to steal information, exploit research and development,  and spread false information. The fact that the University has seen a drastic rise in crime in  recent years, it has failed to discipline at least some categories of conduct violations on campus. Moreover, Harvard has failed to provide sufficient information to the Department of Homeland  Security about foreign students’ known illegal or dangerous activities, reporting deficient data  on only three students. Therefore, Harvard is either not fully reporting its disciplinary records  for foreign students or it is not seriously policing its foreign students…”²

• This proclamation suspends the entry of foreign nationals seeking to study or participate in  exchange programs at Harvard, and that includes:³
• The entry of new Harvard students as non-immigrants under F, M, or J Visas. 
• It directs the Secretary of State to consider revoking existing F, M, J Visas for current  Harvard students who meet the proclamation’s criteria. 
• Alien students who attend other US universities under the SEVP program and those  whose entry is deemed to be in the national interests are exempted from this  proclamation. 

This proclamation has been legally challenged in the US District Court by Harvard University.  The district judge Allison Burroughs made a temporary restriction order that has halted the  implementation of this proclamation until 20^th June this year, when further litigation will  proceed.⁴

This Article will critique and analyze the USA Immigration laws and the Constitution, as well  as the relevant precedents made in that regard.

BODY

The Legal Reasoning Behind the Proclamation that Restricts Enrollment of Foreign  Students into Harvard University in the USA

The main reason that fronted the action taken by President Donald J Trump in signing a  proclamation that suspends the entry of international students into America’s Harvard  University was in the interests of safeguarding national security. This action came after the  federal government’s claims that the university had seen a drastic rise in crimes in recent years, and Harvard failed to conduct disciplinary action against some of the violations that occurred

in the university.⁵ Furthermore, the administration claims that Harvard has not been cooperative  with the Department of Homeland Security, as it has failed to provide sufficient information  about foreign students’ known illegal/ dangerous activities and has only reported insufficient  data on three of its students; therefore, it can be concluded that either the university is not fully reporting its disciplinary records for foreign students.⁶ The FBI has long warned that most  foreign adversaries are taking advantage of the easy access to American higher education to  exploit research and development of the country, steal and spread false information.⁷

Moreover, the federal government alleges that Harvard has developed extensive ties with  foreign political/ideological adversaries of US such as China who have gone ahead to fund the  university’s research and study programs.⁸In line with this, it is their claim that the university has hosted Chinese Communist Party Paramilitary members and partnered with Chinese  nationals on research that could advance China’s military modernization.⁹ Therefore, as a result  of the above, many Chinese nationals have entered US with aim of studying in its university and Harvard ranks at the top considered institutions.

In addition to the reasons given, the president, in line with enforcing the executive order he  signed early January this year, on Additional Measures to Combat Anti-Semitism.¹⁰ Stated that  the Ivy League institution had failed to address anti-Semitic incidents on the campus, with many  of the agitators being foreign students.¹¹

The president, in making and signing this proclamation, is empowered by the provisions of the  Immigration and Nationality Act, which gives him the authority to suspend the entry of any  class of aliens whose entry would be detrimental to the interests of the US.¹² Section 212(f) and  215(a) of the Immigration and Nationality Act, respectively, grant the President of the USA the  power to suspend entry of a class of aliens into the country and the power to revoke visas for aliens.^{13 14} In Trump v Hawaii, the court in this case upheld the powers of a president under the  USA Constitution and, affirming that the provisions of the Immigration and Nationality Act, especially section 212(f), grant him the discretion to restrict entry of a class of aliens into the  USA.¹⁵

The diverse legal implications of the proclamation to the affected sectors

A presidential proclamation differs from an executive order or a presidential memorandum and  therefore it has a different legal bearing and effect. A proclamation is known to be an official  announcement of a policy made by the president of America, that is ceremonial or honorary in  nature and it tends to affect the activities of private individuals.¹⁶ Despite being ceremonial  proclamations carry some legal weight especially if they fall within the scope/ authority of the  president.¹⁷ Therefore, when it comes to this suspension of entry of foreign students into Harvard,  the proclamation does indeed have some legal effect and can be legally binding. It is key to note  that such proclamations require checks and balances for them to be implemented and they can be  legally challenged. 

Looking at the legal implications of this specific proclamation, we therefore conclude that its legal  consequences are of great significance to the immigration laws and policies of the USA and may  pose a legal hurdle to the relevant affected sectors. Therefore, there is a need for this proposed  policy to be scrutinized legally.

a) To the foreign students:

Harvard University has been one of the oldest and wealthiest Ivy League institutions in  America, and over the years, it has accepted and housed students from most nations of the  world. It is as a result of this that a larger percentage of its students are composed of  international students. Therefore, in line with the signing of this proclamation, many foreign students are affected, and it is as a result of this that Harvard filed a suit against the  federal government and the same was granted a temporary restriction order.  From the proclamation, new students awaiting to join the university in the fall may be  forced to change their education destination as the order blocks international students’  enrollment into Harvard unless the government changes its course and the US district court  rules in favor of the institution.¹⁸ When it comes to ongoing foreign students, there lies the  biggest uncertainty because, from this order, it was stated that such students’ visas may be  revoked upon the determination by the Secretary of State.¹⁹

In line with Harvard’s efforts to protect its foreign students it has cited that this order  violates its first Amendment rights.²⁰ Furthermore, the government infringes the  institution’s right to autonomy as they state that this move is a retaliatory one, for failure  to comply with the demands of the administration. Furthermore, the measures being proposed in the student visa application process are of detrimental effects to the legal rights  of students all over the world planning to join or in Harvard. Some of the proposed  measures that are to be implemented incase this order is effected include a heightened  scrutiny of an individual’s social media presence and profiles for those applying for visas  to join/visit Harvard University.²¹ These measures include the possible denial of student  visas for those individuals who lack an online footprint, as it will be interpreted as evasive  or suspicious behavior by the consular officers. These measures were shared worldwide to  all embassies by the Secretary of State in preparation to having more stringent measures to  reinforce the security protocols upon entry into the US, stating that a private social media  account or lack thereof of an applicant’s social media presence will lead to the denial of  their visa and this will apply to current and prospective students as well as any other  category of visitor to Harvard.²² Therefore, this policy infringes on the freedom of expression and speech of applicants because one is not only penalized for posting content  that the government disapproves but also for failing to maintain a visible online presence.²³

b) To other institutions of higher education

As a result of the federal crackdown on Harvard, other institutions in the US may face  similar treatment from the administration. Currently, as Harvard is hit by the loss of the  SEVP accreditation and the loss of research funding from the federal administration over  100 federal investigations have been launched in various universities whereby Harvard was  caught up and now Columbia may be the next target to lose foreign accreditation.²⁴ Moreover, there has been ongoing active investigations in more than 60 universities in the  country with an aim to push for diversity programs, gender identity policies and responses  to pro-Palestine protests, which the administration terms as causing anti-Semitism in  campuses and hence promotes biased and unconstitutional practices.²⁵

These policies affect other universities as much as they are affecting Harvard and among  them being the freezing or delay in granting of federal research funds or grants hence  halting various research projects carried out by the institutions. This freeze, or delay in  granting federal funds particularly affects the international faculties such as the one in  Harvard.²⁶

A similar contention among these institutions is that such actions and policies are not only  threatening funding but also the core values of academic freedom and institutional  autonomy.²⁷ Finally among the legal implications that befall these institutions is the fact  that they claim that the administration is specifically targeting Diversity, Equity and  Inclusion programs and failure to respond to or allowing student protests as well as the  failure of some institutions to complete foreign gift disclosures.²⁸ Therefore, most institutions claim that the clear intention for this scrutiny is unknown, as universities such  as Northwestern that has tried to comply with the government’s demands and policies and  gone ahead to adopt anti-discrimination reforms have been added to the list of institutions  under federal scrutiny. 

Furthermore, with President Trump’s recent travel ban orders on specified countries, it  seems to puzzle and cause more immigration hurdles to entering the US.

The legal implications of the temporary restriction order that has halted the implementation  of the proclamation until further litigation

When the US District court judge made the order, that temporarily halted the implementation of  the orders on entry of foreign students into the USA, what does this mean legally? What does the  future of higher education look like in America for prospective and current foreign students, as a  result of this court order? 

With the temporary halt of the implementation of the president’s proclamation that suspends the  visa issuance and further restricts entry of foreign students into the USA especially those studying  at Harvard, several matters are left to continue in status quo. However, as a result of that court  order the administration has taken some measures in preparation for implementation of the orders in case the court decides in their favor. Nonetheless, several immigration processes have been  paused as a consequence of this court order. This means that Trump’s administration cannot  implement the orders in the proclamation and further their efforts of limiting Harvard’s  participation in the SEVP system and further trying to deactivate its SEVP certificate that enables  them enroll foreign students into their institution, cannot be enforced. 

In the meantime, the administration has paused the scheduling of Student Visa appointments at  embassies and consular offices. ²⁹ In addition to that the state department is developing and disseminating internal guidance on the proposed heightened social media review process of student  visa appointments in time for the fall 2025 school semester.³⁰

Foreign students in the USA and prospective ones are therefore, in a state of confusion and  uncertainty in regards to their stay or immigration into the country for study purposes. 

Possible Solutions/Recommendations

The current status of higher education in the USA is among the sectors that are being caught up in  the President Trump administration’s immigration policies. The fact that the education sector is  caught up in this causes dire effects to the higher education sector of the US, among other sectors.  Some of the solutions that could remedy the state of affairs include: 

• Dialog talks between the higher education stakeholders and the federal administration. This  could amicably settle the ongoing wrangles and at the very least, the interests of the  international students would be considered and tabled, hence a win-win situation could be  achieved.
• The outcomes from the US District court and the further appeals from appellate courts  could set precedents in the education sector to prevent it from being caught up in  immigration policies made by the federal government.

Conclusion  

The legal impacts caused as a result of the president’s proclamation, that could see the restriction  of foreign students’ entry into the USA and further revoking most of these students’ visas not only  violates the legal rights of Harvard and possibly other universities but also the rights of these  students during their stay in the country and hinders prospective students from applying to US  institutions. As much the legal reasoning behind formulating the proclamation may be valid and  yet to be ascertained, a state of confusion and uncertainty, and to some extent anxiety among  foreign students is heightened as a result and in the possible implementation of more stringent visa application and approval measures, bearing in mind such immigration processes are already  competitive and stringent as it is.

Therefore, this order affects and may affect several sectors other than the higher education sector,  such as the employment and research and development sectors. Moreover, this policy goes ahead  to make the immigration policies challenging and unfavorable to most countries in the world, and  as a result, they may opt for other countries as education and working destinations, among other  things as they will have favorable immigration policies and laws.

REFERENCE(S):  

CASELAWS, CONSTITUTION AND USA CODES OF LAW

1. Trump v Hawaii 585 U.S., 138 S.Ct. 2392, 201 L.Ed.2d 775 (2018)
2. USA Constitution
3. Immigration and Nationality Act

ONLINE WEBSITES, NEWSPAPER ARTICLES, ENCYCLOPEDIAS 

4. ‘Trump Signs Proclamation to Restrict Foreign Student Visas at Harvard’ The Guardian (5 June 2025) https://www.theguardian.com/us-news/2025/jun/04/trump-restricts-harvard student-visas >accessed 9 June 2025
5. https://www.whitehouse.gov/fact-sheets/2025/06/fact-sheet-president-donald-j-trump restricts-foreign-student-visas-at-harvard-university/> accessed 9 June 2025 6. ‘Judge Blocks Trump’s Ban on Harvard’s Foreign Students From Entering the US’ The Guardian (6 June 2025) <https://www.theguardian.com/education/2025/jun/05/harvard trump-foreign-student-ban>accessed 9 June 2025
6. https://www.whitehouse.gov/presidential-actions/2025/01/additional-measures-to combat-anti-semitism/ > accessed 9 June 2025
7. https://ballotpedia.org/Presidential_proclamation> accessed 10 June 2025
8. ‘Trump v Harvard: Temporary Relief for University; court halts Trump’s ban on foreign students’ The Times of India (6 June 2025) >accessed 10 June 2025
9. ‘United States: District Court Temporarily Blocks F/M/J Ban for Incoming Harvard Students’ (6 June 2025) https://www.fragomen.com/insights/united-states-district-court temporarily-blocks-fmj-ban-for-incoming-harvard-students.html > accessed 10 June 2025
10. ‘Silent Online, Denied Entry: How no social media presence could cost you a US visa’ The Times of India (3 June 2025) > accessed 10 June 2025
11. ‘After Harvard, these 60+ Universities are now under Trump Radar’ The Economic Times (5 June 2025) https://economictimes.indiatimes.com/news/international/global trends/after-harvard-these-60-universities-are-now-under-trump-radar-check-the list/articleshow/121655167.cms >accessed 10 June 2025

¹‘Trump Signs Proclamation to Restrict Foreign Student Visas at Harvard’ The Guardian (5 June 2025)  https://www.theguardian.com/us-news/2025/jun/04/trump-restricts-harvard-student-visas > accessed 9 June 2025 

²https://www.whitehouse.gov/fact-sheets/2025/06/fact-sheet-president-donald-j-trump-restricts-foreign-student visas-at-harvard-university/ >accessed 9 June 2025

³Ibid note 2

⁴ ‘Judge Blocks Trump’s Ban on Harvard’s Foreign Students From Entering the US’ The Guardian (6 June 2025)  <https://www.theguardian.com/education/2025/jun/05/harvard-trump-foreign-student-ban> accessed 9 June 2025 

⁵https://www.whitehouse.gov/fact-sheets/2025/06/fact-sheet-president-donald-j-trump-restricts-foreign-student visas-at-harvard-university/ >accessed 9 June 2025

⁶Ibid note 5

⁷Ibid note 4

⁸Ibid note 4

⁹Ibid note 4

¹⁰ https://www.whitehouse.gov/presidential-actions/2025/01/additional-measures-to-combat-anti-semitism/ >  accessed 9 June 2025

¹¹https://www.whitehouse.gov/fact-sheets/2025/06/fact-sheet-president-donald-j-trump-restricts-foreign-student visas-at-harvard-university/ >accessed 9 June 2025

¹² Immigration and Nationality Act

¹³ Immigration and Nationality Act, s212(f) 

¹⁴ Ibid, s215(a)

¹⁵ Trump v Hawaii 585 U.S., 138 S.Ct. 2392, 201 L.Ed.2d 775 (2018).

¹⁶ https://ballotpedia.org/Presidential_proclamation >accessed 10 June 2025

¹⁷ Ibid note 14

¹⁸ ‘Trump v Harvard: Temporary Relief for University; court halts trump’s ban on foreign students’ The Times of India  (6 June 2025) >accessed 10 June 2025

¹⁹ Ibid note 16

²⁰ USA Constitution

²¹ ‘Silent Online, Denied Entry: How no social media presence could cost you a US visa’ The Times of India (3 June  2025) > accessed 10 June 2025

²² Ibid note 21

²³ Ibid note 20

²⁴ ‘After Harvard, these 60+ Universities are now under Trump Radar’ The Economic Times (5 June 2025)  https://economictimes.indiatimes.com/news/international/global-trends/after-harvard-these-60-universities-are-now under-trump-radar-check-the-list/articleshow/121655167.cms >accessed 10 June 2025

²⁵ ‘Silent Online, Denied Entry: How no social media presence could cost you a US visa’ The Times of India (3 June  2025) > accessed 10 June 2025

²⁶ Ibid note 25

²⁷ Ibid note 25

²⁸ Ibid note 25

²⁹ ‘United States: District Court Temporarily Blocks F/M/J Ban for Incoming Harvard Students’ (6 June 2025)  https://www.fragomen.com/insights/united-states-district-court-temporarily-blocks-fmj-ban-for-incoming-harvard students.html > accessed 10 June 2025

³⁰ ‘Silent Online, Denied Entry: How no social media presence could cost you a US visa’ The Times of India (3 June  2025) > accessed 10 June 2025