Expert: Supreme Court's Chevron Decision Could Affect International Student Policy

Karin Fischer, Chronicle of Higher Education, Jan. 24, 2024

"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 and regulations. The logic is that agencies have the subject-matter expertise that judges may lack….  ...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…. ...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."