Latitudes: Why a court challenge to an obscure fisheries regulation could upend student-visa policy

A Supreme Court decision could lead to regulatory uncertainty. Plus, overseas applicants are up, according to the Common App. ADVERTISEMENT [Latitudes Logo]( You can also [read this newsletter on the web](. Or, if you no longer want to receive this newsletter, [unsubscribe](. It “will affect them one way or another” A pair of U.S. Supreme Court cases about whether commercial fishermen can be forced to pay the cost of federal monitors could have far-reaching implications for regulations affecting international students, including those that govern Optional Practical Training, the popular work program for foreign graduates of American colleges. “Colleges and universities may think cases involving fisheries regulation have nothing to do with them,” said Stephen Yale-Loehr, a professor of law at Cornell University who specializes in immigration law, “but what the court decides will affect them one way or another.” That’s because the cases, which were argued last week, are challenging a 40-year-old legal precedent that says judges must defer to federal agencies’ reasonable interpretations of ambiguous laws. The logic is that agencies have the subject-matter expertise that judges may lack. The legal principle — known as “Chevron deference,” after the 1984 decision, Chevron v. National Resources Defense Council, that originated it — is the foundation for the current federal regulatory system, in which executive-branch agencies issue rules to interpret statues passed by the U.S. Congress. At the center of the dispute is a 2020 Department of Commerce regulation interpreting an earlier law requiring herring boats to carry federal monitors to prevent overfishing. The plaintiffs argue that the newer rule, which requires fishermen to pay for the costs of the oversight, overstepped the authority Congress granted the agency. If the Supreme Court justices limit or roll back Chevron deference — and many experts expect them to — it could threaten regulations on health care, consumer safety, government-benefit programs, and the environment. “It’s one of those cases that’s the nerdiest of the nerdiest,” said Heather Stewart, counsel and director of immigration policy for NAFSA: Association of International Educators. “But its impact could be seismic.” Stewart and Yale-Loehr said the role of rulemaking is particularly prominent in the areas of immigration and visas. The reasons are two-fold: First, the legislative language tends to be broad. Immigration law sets out that international students wishing to study in the United States can get visas, but beyond that basic definition it doesn’t detail the parameters or policies. And Congress has not passed meaningful legislation on the hot-button issue in decades, meaning that changes to immigration law to meet evolving needs have come through regulation. For example, the enactment and expansion of Optional Practical Training, or OPT, and its sister program, Curricular Practical Training, which allows students to work or intern as part of coursework, were done through regulation — based on the rationale that hands-on experience is critical to student learning. When a federal appeals court in 2022 [rejected a challenge]( to OPT, it, in part, cited Chevron deference in its ruling. Critics have singled out OPT as an example of bureaucratic overreach. “Judges all too often defer to executive officials’ rewrite of law even when those laws aren’t ambiguous,” The Wall Street Journal editorial board [wrote]( arguing that the international-student case “is crying out for Supreme Court review.” The court [decided not to hear]( the OPT challenge. Yet the program could be affected by the outcome of the fisheries cases. “Chevron is either dead or will survive in a kind of zombie-fied, hollowed-out version where it doesn’t do much work or it does work in a narrow band of cases,” Adam Liptak, The New York Times’s Supreme Court reporter, told The Daily [podcast](. “This is probably the case this term that overrules a major precedent like affirmative action in the last term, like abortion in the previous term.” Yale-Loehr said that, based on the justices’ questions and statements during arguments, the Supreme Court could “at least narrow” Chevron deference, if not override it altogether. The court’s decision could have an impact on international-student policy in several ways. It could put any current legal challenges on hold until the fisheries cases are decided, Yale-Loehr said. It could change the federal government’s approach to rulemaking that is currently in progress, such as [updates to the skilled-worker-visa program]( that affect both international students and foreign workers hired by colleges. Then there’s the question of whether a new standard could be applied retroactively, allowing past policy disputes, like that around OPT, to be revisited in the courts. Still, Yale-Loehr said that overturning or weakening Chevron deference could “cut both ways” for policies affecting international and immigrant students. Higher-education groups were among those that argued that the Trump administration went too far in its interpretation of federal rules to make it harder for immigrants who receive government benefits from gaining permanent residency. The [policy]( they said, could have a chilling effect on immigrant students receiving benefits for which they’re eligible and could deter students from overseas from coming to study here. Likewise, many in international education would like to see the federal government give international students greater flexibility to take [online courses]( given the rise of virtual and hybrid instruction since Covid. The prohibition on foreign students taking more than one online class a semester is in regulatory guidance. Stewart said the biggest impact of a ruling curbing or undoing Chevron would be the uncertainty it injects into student-visa policy and federal rulemaking. “It would be, for international students and for international-student advisers, opening a can of worms.” ADVERTISEMENT NEWSLETTER [Sign Up for the Teaching Newsletter]( Find insights to improve teaching and learning across your campus. Delivered on Thursdays. To read this newsletter as soon as it sends, [sign up]( to receive it in your email inbox. Ghana is the fastest gainer as Common App reports increase in overseas applicants International applications to American colleges are growing faster than those from domestic applicants, according to the [latest data]( from the Common App. Undergraduate applications from overseas are up 16 percent from the previous year, through January 1. The nonprofit organization, which allows prospective students to submit one application to multiple colleges, reports that foreign-applicant numbers have increased from about 77,000 in 2019-20 to more than 123,200 for the current admission cycle. Among the countries with the largest volume of Common App submissions, Ghana increased the fastest over that four-year period, by 122 percent. Of the 10 highest-volume countries, just one, China, experienced a decrease in applicants in that time. China, however, remains the largest source of overseas applicants, with nearly 15,600 so far this year. FROM THE CHRONICLE STORE [The Future of Campus Safety - The Chronicle Store]( [The Future of Campus Safety]( Colleges can’t foresee and avoid every possible safety concern. Yet students, parents, and others are demanding that colleges do more to keep campuses safe. [Order this report]( to explore strategies colleges are employing to counter threats to their communities’ well-being. Canada will cap student visas Canada will temporarily cap international enrollments, decreasing the number of student visas it approves by 35 percent in 2024. In a [press release]( the Canadian government said it would limit study permits to 360,000 this year and that the restrictions would be in place through 2025. Support programs for international students have not kept pace with the recent rapid increase in enrollments, and the growth has taxed housing, health care, and other services, said Immigration, Refugees, and Citizenship Canada in the statement. The cap will not apply to graduate students or to current visa holders. Each province will be allocated a specific number of visas based on its population and will then decide how to distribute visas among its educational institutions. In a [blog post]( Alex Usher, a higher-education consultant, said the cuts will disproportionately be in just three provinces, Ontario, British Columbia, and Nova Scotia. Universities Canada, a higher-education association, said in a written statement it was concerned that the province-by-province roll out of caps could delay student-visa processing, and that students could choose alternatives to Canadian institutions. In his post, Usher noted that students have already begun to apply for visas for the fall semester: “This could create a lot of uncertainty in the short term.” Canada is one of several major destination countries [tightening up]( on international students. Around the globe House Republicans have begun an [investigation]( of more than $30 million in federal grants [awarded]( to a former University of California at Los Angeles professor who has since returned to China to lead artificial-intelligence research. Democratic lawmakers are urging congressional leaders to [remove language]( from a spending bill that would [restart the China Initiative]( a federal investigation of academic and economic espionage. A Florida law restricting state colleges’ ties with “countries of concern” may shut down a large and well-established Florida International University [dual-degree program]( in hospitality and hotel management in China. The same law could hinder institutions from [hiring graduate assistants]( from places such as China, Iran, and Russia. Two major English-speaking universities in Quebec are offering grants to help offset tuition hikes on international students and those from outside the province that they fear could have a “[catastrophic]( impact on enrollments. More than 1,200 professors have been fired after the Nicaraguan government [took over]( universities there. The Chinese Communist Party is taking a [more-direct role]( in the running of the country’s colleges. Employment rates for recent college graduates in China appear to be improving, but [employability]( has not returned to pre-pandemic levels. Singapore’s government has said that events held on college campuses “must be in [national interest]( After Russian attacks scattered Ukrainian academics, higher-education institutions worry that displaced scholars [might not return](. Colleges in Slovakia want to increase [campus security]( after a mass shooting at a university in neighboring Prague. Gaza’s last standing university was [destroyed]( by Israeli forces. ADVERTISEMENT And finally … Students from overseas are often focused on prestige and global rankings. So how do smaller colleges or those in particular niches stand out? I’m hosting a Chronicle [virtual forum]( this Thursday, January 25, at 2 p.m. ET, looking at ways specialty or lesser-known institutions, including women’s, rural, and two-year colleges and arts institutes, can raise their institutional profile. I’ll be joined by experts to share ways they leverage their distinctive attributes to attract international students. The session is free, but registration is required. [Sign up here]( Thanks for reading. I always welcome your feedback and ideas for future reporting, so drop me a line at karin.fischer@chronicle.com. You can also connect with me on [X]( or [LinkedIn](. If you like this newsletter, please share it with colleagues and friends. 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