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Two of the Trump administrations favorite foils are immigrants and higher education. This week’s announced initiatives against Chinese students and exchange visitors represent a convergence of those two subjects.
What Happened?
On May 27, Secretary of State Marco Rubio issued a cable to U.S. Embassies and Consulates worldwide, pausing appointments for student visa applicants:
Effective immediately, in preparation for an expansion of required social media screening and vetting, consular sections should not add any additional student or exchange visitor (F, M, and J) visa appointment capacity until further guidance is issued …, which we anticipate in the coming days.”
The next day, Rubio tweeted on X, announcing a plan to revoke Chinese student visas:
The U.S. will begin revoking visas of Chinese students, including those with connections to the Chinese Communist Party or studying in critical fields.
A State Department press statement elaborated that such efforts will be “aggressive”:
Under President Trump’s leadership, the U.S. State Department will work with the Department of Homeland Security to aggressively revoke visas for Chinese students, including those with connections to the Chinese Communist Party or studying in critical fields. We will also revise visa criteria to enhance scrutiny of all future visa applications from the People’s Republic of China and Hong Kong.
What Does the Pause in Visa Appointments Mean?
Over 277,000 students from China studied at U.S. colleges during the 2023-24 academic year, second only to the number of international students from India, according to the most recent Open Doors report from the Institute of International Education and the State Department. Another 5,600 students came from Hong Kong.
State Department spokesperson Tammy Bruce Bruce said the pause on new appointments is intended to be temporary. “There is an end point and it should be rather quick,” she said. In the meantime, Existing appointments have not been canceled, and F, J, and M applicants can still submit their visa application forms.
Still, the pause in scheduling student and exchange visitor visa appointments comes during the annual busy season, from June to August, when new students and students abroad for the summer seek visas to travel to the United States. During this peak season, even a short pause in visa appointments could mean that many students will report to school late, or not at all.
The State Department started collecting social media handles from visa applicants in 2019 for vetting purposes. The Department has not indicated why appointments need to be paused now.
A cynical observer may find this appointment pause reminiscent of the first Trump administration’s “temporary” Muslim visa ban, which Trump explained like this:
We have to stop on a temporary basis at least, but we have to stop people from pouring into this country until we find out what the hell is going on.… So what I’m saying is it’s a temporary ban, in particular for certain people coming from certain horrible—where you have tremendous terrorism in the world…. We have to put a stop to it until such time as we can figure out what is going on.
The Muslim ban went into effect in March 2017 and lasted until President Biden revoked it in January 2021.
The appointment pause may withstand legal challenges. Section 212(f) of the Immigration and Nationality Law (INA) authorizes the President to “suspend the entry of all aliens or of any class of aliens as immigrants or nonimmigrants” if the President finds that their entry “would be detrimental to the interests of the United States.” That was the justification for the Muslim visa ban, which was ultimately upheld by the Supreme Court, as well as various COVID visa bans during Trump’s first term.
What Will the Visa Revocation Policy Mean?
I hesitate to call the State Department’s announcements about revoking Chinese students visas a new “policy”. The announcements are too vague. They may (or may not) just point to plans for “aggressive” enforcement of existing policy against Chinese students with connections to the Chinese Communist Party or studying in critical fields.
The administration justifies scrutiny of Chinese students and exchange visitors by citing to incidents of espionage, theft of trade secrets, theft of technology, and spying on other Chinese in the U.S. There are strong counterarguments: How Trump Denying Visas to Chinese Students Could Backfire on the US – The New York Times.
Persons with Ties to the Chinese Communist Party
Under current law, Communist Party members and affiliates are barred from being granted permanent resident (green card) status. INA § 212(a)(3)(D). But the Immigration Act of 1990 eliminated the bar on granting nonimmigrant visas, such as student and exchange visitor visas. House Conference Report 101-955 stated that granting a nonimmigrant visa “is not a sign of approval or agreement” by the U.S. with communism, and persons should not be denied visas “merely because of the potential signal that might be sent because of their admission.” Instead, nonimmigrant visa denial is appropriate only “when there would be a clear negative foreign policy impact associated with their admission.”
Despite that legislative reform, during his first administration, Trump considered a sweeping travel ban on members of the Chinese Communist Party and their relatives. He settled for a policy limiting their B1/B2 (visitor for business or leisure) visas to being valid a single entry for one month.
Now, one difficulty the administration will face in revoking visas is that they don’t know who is a Party member. The current Form DS-160, Nonimmigrant Visa Application, does not ask student and exchange visitor visa applicants about that. And there is no obvious database to check for whether an individual is a member.
Students and Exchange Visitors in Critical Fields
During his first administration, Trump issued Proclamation 10043 on the Suspension of Entry as Nonimmigrants of Certain Students and Researchers from the People’s Republic of China on May 29, 2020. It suspends entry as an F (student) or J (exchange visitor), except for undergraduate study, in fields that would contribute to China’s military-civil fusion strategy (i.e., any STEM field), if the individual has certain links to an entity that “implements or supports” China’s “military-civil fusion strategy.” Those links include current or previous research conducted at or on behalf of such entity, receiving funding, current or prior employment by, or current or prior study at such entity. The Proclamation also empowers the State Department to revoke F and J visas of covered individuals. The Proclamation has the decimated Chinese postgraduate student in STEM fields in American universities. The Biden administration left the Proclamation in place.
In addition, the State Department already conducts security interagency security checks meant to weed out visa applicants who may in the U.S. have access to sensitive technology with potential military applications and may seek to unlawfully export that technology. This is one type of check that the State Department refers to as “administrative processing.” At times, the wait for such checks has exceeded a year.
It’s unclear what more the Trump administration wants to do to keep Chinese students and exchange visitors out of critical fields.
How Does Revocation Work?
If a visa holder is outside the U.S., a consular officer has the power to revoke a nonimmigrant visa, including student visas, at any time as a matter of discretion, on the basis that the holder is not eligible for the visa classification. Generally speaking, mere suspicion of visa ineligibility is not enough. The consular officer must have sufficient evidence to determine that that the visa holder is ineligible. See INA § 221(i); 22 C.F.R. § 41.122(a); 9 FAM 403.11-3(A).
Typically, State Department revocations of visas of individuals in the U.S. may only be by the Department’s Visa Office of Screening, Analysis, and Coordination. 9 FAM 403.11-3(B). That office may revoke visas based on mere suspicion of visa ineligibility. This is known as “prudential revocation.” 9 FAM 403.11-5(B).
The visa holder should be given notice (though no specific time limit is indicated) and an opportunity to show why the visa should not be revoked. They are asked to present the visa at the consulate. If they do so, the visa is stamped “revoked.” If they fail to appear, cannot be contacted, or have already left for the United States, the consular officer will send notice of the revocation to transportation lines and to the Department of Homeland Security (DHS). 22 C.F.R. § 41.122. An individual whose visa has been revoked can typically reapply for the visa, submitting additional evidence of eligibility.
Revocation of the visa will make the holder ineligible for entry to the U.S. with that visa. But revocation of a visa does not automatically void the status of a holder already in the United States.
DHS is also authorized to cancel nonimmigrant visas when the holder is notified at a port of entry that they appear to be inadmissible and elect to withdraw their application for admission, i.e., not to enter the United States but to go elsewhere. The cancellation is confirmed by stamping the visa with the bold-lettered notation “CANCELLED.” A motion to reconsider may be filed with the agency.
Revocation, whether by the State Department or DHS, is not subject to judicial review. INA § 221(i).
INA § 212(f), which as mentioned above, authorizes the President to “suspend the entry of all aliens or of any class of aliens as immigrants or nonimmigrants” may protect Trump administration visa revocation initiatives from challenges in court. A class action suit challenging Proclamation 10043 was dismissed in 2023.
Chaos Is the Point
The “rule of law” refers to a system where everyone, including the government, is subject to and bound by the law. It ensures laws are fair, publicly known, and applied equally to all, fostering predictability and restraint of government actions. Rule of law creates “settled expectations,” meaning individuals can rely on the law to guide their actions and understand what is expected of them.
This week’s vague and explicitly “aggressive” announcements by the Trump administration–part of a broader assault on higher education and immigrants–are detrimental to the rule of law. Individual students in the middle of their studies have a reasonable expectation that they should be allowed to finish. New students who have taken American college entrance exams, applied and been admitted should have a reasonable expectation that they should be allowed to start their studies. Universities that have followed federal regulations regarding administration of programs for foreign students and exchange visitors have a reasonable expectation that they should be allowed to run those programs.
Vague and aggressive policies are a trademark of this administration. For instance, the executive order ending birthright citizenship for children of nonimmigrants omits mention of what the children’s status will be or how to apply for it, leaving intending parents dumbfounded about what to do. During Supreme Court oral arguments in the case challenging that executive order, the Solicitor General conceded that “federal officials will have to figure that out.” That could cause chaos on the ground.
The chaos isn’t accidental. Former Trump advisor Steve Bannon said:
All we have to do is flood the zone. Every day, we hit them with three things. They’ll bite on one, and we’ll get all of our stuff done, bang, bang, bang. These guys will never be able to recover, but we got to start with muzzle velocities.
When the administration pushes out so many disruptive polices, there’s only so much that the media can cover, that the public can consume, that advocates can fight back against. With the population distracted and confused, the administration can consolidate power. Today the target is Chinese students and exchange visitors, tomorrow Trump will find new ways to push the boundaries.
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