International students and other temporary visa holders are concerned about new immigration policies that may impact and undercut their immigration statuses in the United States. Some of these new policies include language regarding the revocation of visa and even the removal of foreign nationals from the United States that may have violated those new policies. These policies raise several questions. Can the President and the US immigration agencies revoke visas and remove foreign nationals for violations that may have taken place prior to the new policy’s implementation? How would such a policy even be implemented? Will there be arguments these students can make to prevent their loss of status or removal from the United States?
On January 29, 2025, President Trump signed an executive order titled Additional Measures to Combat Anti-Semitism. The order reaffirms and builds upon Executive Order 13899, a December 2019 order signed by President Trump during his first term with the stated purpose of “[combating] the rise of anti-Semitism and anti-Semitic incidence in the United States and around the world.” This new order may have important implications for academic institutions and for international students in the United States. The order raises particular concerns for international students who have previously participated in on- or off-campus political demonstrations against Israel’s response to the October 7 attacks by Hamas. The White House Fact Sheet on the new executive order describes the intent of the order: to protect the rights of Jewish citizens; to aggressively enforce the law, protect public order, and prosecute anti-Semitic crimes; and to revoke the student visas of Hamas sympathizers and deport them.
The new Executive Order requests recommendations for educating universities on the inadmissibility provisions of Section 212(a)(3) of the Immigration and Nationality Act that relate to entering the United States to engage in any unlawful activity, including “endors[ing] or espous[ing] terrorist activity or persuad[ing] others to endorse or espouse terrorist activity or support a terrorist organization.”
The Executive Order calls for educating universities about the scope of that inadmissibility provision so that universities can “monitor for and report activities by” their international students and staff so that the Departments of State and Homeland Security can make relevant inadmissibility determinations.
It is unclear what conduct universities are expected to monitor and report, and where lines will be drawn. The provision of the INA relied upon by the Executive order may tie inadmissibility to participating in nonviolent demonstrations and making social media posts. That ambiguity raises significant constitutional concerns relating to free speech, free expression, and free assembly guaranteed by the First Amendment. EO 13899 explicitly referenced the First Amendment, stating that agencies should not diminish or infringe upon those rights. The directives of the new EO could go much further.
This type of broad enforcement may also raise due process concerns, given that there appear to be minimal procedural safeguards in place for determining how individuals may be implicated and that universities, students, and staff will likely not receive clear notice of what constitutes culpable conduct and how enforcement will be carried out.
The White House has requested that varying executive agencies report administrative actions that may have been covered by the order and that involve institutions of higher education. Without a formal complaint or pending action against a specific student, it is unclear how the Administration will identify cases moving forward. The Executive Order does not make clear under what authority the administration can compel schools to “monitor” or “report” demonstrations or other activities covered by the inadmissibility grounds the Order relies upon.
Against students where there is a clear violation of Section 212(a)(3), such as by raising money and sending it to a designated terrorist organization abroad, there are several potential actions that the Administration may take to revoke visas. One action is to “provisionally revoke” the students’ visas while they are in the United States, meaning that their status in the United States is valid until they depart, but upon departure they would be re-vetted through a new visa application overseas. Similar revocations take place, by example, for foreign nationals arrested for or convicted of Driving Under the Influence (DUI). In these cases, the foreign national is not generally ordered removed from the United States immediately, as their temporary legal status remains valid. However, after departing the United States, the foreign national can no longer use the revoked visa to reenter. They must apply for a new visa before returning, at which point the United States may choose to refuse a new visa based on their prior conduct.
If the administration wants to proceed more aggressively, the State Department can revoke the international student’s visa with immediate effect. If an international student’s visa is invalidated with immediate effect, they are deemed to be present in violation of law and subject to removal. Generally, removal under these provisions does not provide for judicial review, except—whereas here—the visa revocation is the sole provides the sole ground for removal. This option raises due process concerns, given that visa revocations are generally nonreviewable and foreign nationals do not necessarily receive clear notice of the cause of their visa revocation. Under Supreme Court precedent, however, all individuals in the United States are entitled to notice of the charges against them and the opportunity to respond. It is, therefore, not clear that revoking a visa without notice and then issuing a removal order without the opportunity to respond will pass constitutional muster.
Until the directives of the EO have been performed, it is uncertain how the order will be enforced, but its language offers a broad net of impact. Universities should consult their counsel regarding downstream impacts of the executive order. Similarly, individuals who are concerned by their past actions should consult with personal counsel to ensure they are fully considering what consequences may result from those past actions.
The material contained in this article does not constitute direct legal advice and is for informational purposes only. An attorney-client relationship is not presumed or intended by receipt or review of this presentation. The information provided should never replace informed counsel when specific immigration-related guidance is needed.
Reprinted with permission from the February 5, 2025 edition of The Legal Intelligencer© 2024 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. ALMReprints.com – 877-257-3382 – reprints@alm.com.
