Travel Ban 3.0

Higher education groups on Monday began to grapple with what new restrictions on travel to the U.S. from eight countries imposed Sunday night by the Trump administration will mean for international students and scholarly exchange.

The new restrictions, which replace a 90-day ban on travel for nationals of six Muslim-majority countries that expired Sunday, vary by country, ranging from a ban of all travel from North Korea and Syria to a targeted ban on tourist and business travel limited to certain government officials and their family members from Venezuela. Though all Iranian immigrants and most nonimmigrant visitors will be barred, nationals from Iran traveling on student (F and M) and exchange visitor (J) visas will still be able to enter the U.S., “subject to enhanced screening and vetting requirements.” Nonimmigrant visitors -- including students and scholars -- from Somalia will be permitted to come to the U.S. but will also be subject to heightened screening.

The new rules do not limit travel by visiting students and scholars on F, J or M visas who come from the other three countries targeted for restrictions: Chad, Libya and Yemen. However, in suspending all travel on business and tourist visas (the B visas) from those three countries, the new restrictions could prevent students and scholars from coming to the U.S. for short-term visits -- such as to participate in a conference.

Travel by prospective immigrants to the U.S. is banned for seven of the eight countries, all except for Venezuela.

The Trump administration says the restrictions, developed after a review by the Department of Homeland Security, are needed to address the failure of most of the affected countries to share adequate information with the U.S. about terrorism-related risks. "All countries share responsibility to prevent terrorist attacks, transnational crime and immigration fraud … If foreign countries do not meet the United States government’s traveler vetting and information sharing requirements, their nationals may not be allowed to enter the United States or may face other travel restrictions, with certain exceptions," the White House said in a statement Sunday.

"Making America safe is my No. 1 priority," Trump said in a tweet in which he linked to the presidential proclamation outlining the restrictions. "We will not admit those into our country we cannot safely vet."

NAFSA: Association of International Educators, the largest higher education group focused on international education and exchange, issued a statement Monday expressing questions and concerns.

“While the proclamation adopts a ‘more tailored approach’ to nonimmigrants and appears to recognize the value of educational exchange, questions remain about how the ban will be implemented,” said the statement from Jill Welch, the deputy executive director for public policy at NAFSA. “For example, researchers from Chad, Libya and Yemen may no longer be able to attend a U.S. conference, and other nonimmigrant travelers from the additional countries named will be subjected to yet further enhanced screening and vetting. Such an approach only helps fuel the ongoing uncertainty felt by students, scholars and other travelers from across the world since the first travel ban took effect in January. Again, true security lies in understanding the nature of specific threats and focusing on individuals who mean to cause us harm -- not in preventing entire nationalities from entering the United States.”

"The newest version of the ban leaves no reliable path for legitimate travel to the United States from these eight countries, such as Syrian parents hoping to be reunited with their U.S. citizen children, an Iranian educator who wants to attend a conference in the United States or parents of students from any of the eight countries who would seek a B visa to come visit for graduation or other major events," Welch said.

She added, "While it may be tempting to think that preventing such legitimate travel is just collateral damage in keeping the nation safe, it is important to remember the unwelcoming message these bans send to groups of people around the world who wonder if their nation may be next on the list."

Universities and higher education groups widely opposed two earlier travel bans imposed by Trump, in part out of concern that they would prevent talented students and scholars from coming to the U.S. and damage American higher education's reputation for valuing openness and diversity. The first ban, introduced a week after Trump took office, barred all travel from seven Muslim-majority countries -- Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen -- and went into effect immediately, leaving students and scholars from those countries who happened to be outside the U.S. at the time it went into effect stranded. A second ban, introduced in March after court challenges blocked enforcement of the first, dropped Iraq from the list of countries, had a delayed effective date and honored visas that were already granted, but was otherwise similar.

Federal courts blocked the second ban before it went into effect, with judges variously ruling that it was discriminatory against Muslims or that the president had overstepped his authority in issuing it. The Supreme Court ruled in June, however, to allow a scaled-back version of the ban to go into effect, and permitted the Trump administration to ban all travelers from the (at that point) six Muslim-majority countries who could not demonstrate a “bona fide relationship” with a U.S. person or entity, such as a university. Under the modified ban permitted by the Supreme Court pending a full review of the case, students from the six affected countries with an admissions offer from an American university could still come to the U.S., as could a scholar with a lecture invitation.

It is unclear how the new travel restrictions issued Sunday will affect ongoing litigation involving the second travel ban. The Supreme Court on Monday canceled oral arguments, originally scheduled for Oct. 10, on two pending legal challenges to the now-expired travel ban, and instructed the parties to submit briefs addressing whether the issues at hand are now moot.

Higher education groups and universities have been involved in some of the legal challenges to the two earlier versions of the travel ban. Thirty higher education groups filed an amicus brief with the Supreme Court earlier this month saying that the March executive order barring travel for nationals of six Muslim-majority countries “sends a clarion message of exclusion to millions around the globe that America’s doors are no longer open to foreign students, scholars, lecturers and researchers. It directly threatens amici’s ability to attract the international students and scholars who are essential to the success of American educational institutions. Foreign students, faculty and researchers come to this country because our institutions are rightly perceived as the destinations of choice compared to all others around the globe. The [executive order] has fundamentally altered those positive perceptions with the stroke of a pen.”

“I think we’ve already seen a negative impact on higher education because of the first two travel bans, and I do not see anything in this latest travel ban order that significantly will change that perception,” said Stephen Yale-Loehr, a professor of immigration law practice at Cornell University. “I don’t think that international students are going to feel more welcomed because of this latest version of the travel ban. I think that as a practical matter international students from at least these countries will still have a very difficult time getting visas even though technically they’re allowed to apply for them” -- except in the cases of North Korea and Syria, for which all immigrant and nonimmigrant travel is banned -- “and I think the fact that we have a travel ban at all sends a signal to international students and others that they may not be welcome in the United States.”

Yale-Loehr said he thinks it’s more likely this newest set of travel restrictions will hold up in court.

“I think that because it’s more narrowly focused and the fact that not everyone from a country is barred, because of the fact that it does not bar refugees from entering the United States, because the proclamation goes into great depth in going into how the government went about figuring out which countries should be subject to increased screening, and because certain countries, North Korea and Venezuela, are not Muslim countries, I think this travel ban has a much higher chance of surviving a court challenge,” he said.

Civil rights groups and some higher education groups have criticized the various travel bans -- including this latest one -- as intended to block the entry of Muslims, a step Trump called for during his campaign.

The American Anthropological Association said in a statement Monday that the new travel ban "represents a cynical attempt to circumvent the judicial system’s legal prohibitions against discriminating on the basis of religious affiliation or national origin."

“In addition to retaining all but one of the Muslim-majority countries that the administration originally targeted for discrimination” -- referring to Sudan -- “it adds yet another Muslim-majority country (Chad), and seeks a smokescreen of Venezuelan diplomats and North Korean visitors to support a dubious claim that religious affiliation is not the issue. These restrictions distinguish between ‘immigrants’ and visitors, but send the same chilling message regardless: ‘the current administration says you are not welcome here,’” the anthropology association said.

Jessica Sandberg, the director of international admissions at Temple University, is directing a nationwide campaign involving more than 300 universities to spread the opposite message to international students -- that, per the campaign name and hashtag, "#YouAreWelcomeHere." Sandberg said she thinks it's too early to say whether the new travel restrictions will affect the negative perceptions that the campaign is attempting to counter, or how it will change the international recruiting landscape. Many universities have reported declines in applications and enrollments of international students this fall.

“At Temple, we will continue to focus on the sentiment that motivated us to spearhead the #YouAreWelcomeHere campaign: international students enrich and strengthen our academic community,” Sandberg said. “That’s as much a part of our identity today as it was 10 years ago, and as it will be 10 years from now.”

The American Association for the Advancement of Science issued a statement Monday about what it described as the “chilling effect” of the Trump administration’s various actions on students and scholars wanting to come to the U.S.

“The Trump administration’s actions on immigration and visas -- most recently the Sept. 24 White House proclamation -- continue to have a chilling effect on students and scientists who seek to work and collaborate with their peers in the United States,” AAAS's chief executive officer, Rush Holt, said in a statement. “Scientific progress depends on openness, transparency and the free flow of ideas. The United States has historically benefited from its attraction of international scientific talent, which is essential to U.S. economic and national security. We remain concerned that administration policies are trading the loss of scientists and future scientists to our country for unsubstantiated improvements to security. Impacts to U.S. leadership in science, technology and innovation must be considered in the development of immigration and visa policy.”

The president and CEO of the Association of American Medical Colleges, Darrell G. Kirch, said in a statement that while Sunday's presidential proclamation “eases restrictions on individuals from most of the previously affected countries who hold visas commonly used for medical education and training, and includes education, professional training and urgent medical need as potential grounds for waivers … highly qualified aspiring and practicing physicians and scientists may still face barriers to entry, including potentially inconsistent waiver decisions. To address this concern, medical schools and teaching hospitals urge the administration to make categorical exceptions for medical students, medical residents, physicians and scientists as well as those attending medical and scientific conferences in the United States.”

Below is a chart with data from the Institute of International Education on the number of international students and visiting scholars from the eight affected countries, plus Iraq. Although Iraq is not among the eight countries targeted for travel restrictions, the presidential proclamation notes that the Department of Homeland Security has recommended that Iraqi nationals who wish to travel to the U.S. should be subject to enhanced screening and vetting.

Of the affected countries, Iran sends the most students and scholars to the U.S. In 2015-16, it was the 11th leading country of origin for international students in the U.S., falling just below Mexico and just above the United Kingdom.