Reflections on the D/S Rule Hearing
Written by Liz Goss
Over the years my work has bridged legal practice, international education, and institutional compliance. Currently, I am the CEO of Goss Associates located in Boston, Massachusetts. Before practicing law, I served as a Student and Scholar Advisor and later as Director of International Student and Scholar Services at Tufts University’s Health Sciences campus in the late 1990s. During that time, I worked directly on F, J, H-1B, TN, O-1, and permanent residence matters affecting students, scholars, faculty, and researchers. I was also a co-founder of NewFront Software, the company that created fsaATLAS, one of the first institutional software platforms designed to interface with SEVIS. Over the last several decades, I have held national leadership roles in NAFSA, including service as Chair of Region XI GRAC and Chair of the ISSRP Employment-Based Subcommittee. Today, our firm focuses on employment-based immigration, with particular emphasis in representing institutions of higher education, nonprofit research organizations, and individual students and scholars.
A few weeks ago, I had the opportunity to attend the hearing in federal court a few weeks ago and listen in person to the government’s arguments in defense of ending duration of status, or D/S, for F, J, and I visa holders, as well as the proposed limitations on academic choices. I was in good company with leadership from the Presidents’ Alliance, NAFSA, representatives from several universities and journalist unions, and members of the press. What struck me most, although it did not surprise me, was how little evidence the government could produce to support its central claim that these categories of nonimmigrant visa holders require additional oversight and check-ins because of national-security concerns. The judge specifically called out the weakness of that claim, noting that it rested on only a handful of examples out of the millions of students and scholars who have come to the United States over the years, including more than a million who are here today. The government’s argument was further diminished by its reliance on Fox News reports rather than actual court records.
The central claim behind the rule is that replacing D/S with fixed admission periods would better protect Americans and strengthen immigration oversight. But when the judge pressed government counsel for concrete facts showing that the existing system created a specific security or public-safety problem, the answers remained vague. The government pointed to broad concerns about compliance and monitoring, yet it did not clearly identify evidence showing that the proposed change would do anything more than existing systems already do to identify potential threats or fraud. Attorney Paul Hughes, representing the Presidents’ Alliance, emphasized that SEVIS already provides an extensive amount of information and reporting for this population. The government has current information that has been reported through the system for decades. If there were large-scale problems of the kind the government claimed, the existing system should already allow the government to identify and address them. Ending D/S does not materially advance those goals. In my view, the rule functions more as a talking point for government officials, a deterrent for international visitors, and an added burden on international offices than as a solution to an identifiable problem. The government is creating a solution for a problem that simply does not exist.
That evidentiary gap mattered because the hearing was not simply a policy debate over whether stricter immigration controls are necessary. The court was examining whether DHS had adequately explained and justified a major regulatory shift under the Administrative Procedure Act. A broad claim that a policy could improve enforcement is different from showing, with evidence, why the existing D/S system is inadequate and why this particular change is needed.
The discussion of SEVIS exposed a weakness in the government’s presentation. SEVIS already gives the government an extensive mechanism to track international students and exchange visitors. Schools report enrollment, program dates, address changes, employment authorization information, transfers, terminations, and other changes in status. As the hearing unfolded, government counsel did not seem to fully understand what SEVIS does or explain how replacing D/S with fixed admission periods would meaningfully improve the existing reporting and oversight system.
The judge’s questions repeatedly returned to the same point: what specific examples showed that the rule change would advance government interests not already being served by the current system? The government did not provide a persuasive, fact-based answer.
Attorney Paul Hughes, by contrast, framed the case around the real-world consequences for students, universities, exchange programs, and media organizations. He emphasized that the rule would impose new extension filing requirements, create uncertainty for long academic and research programs, and disrupt a system that has operated for decades while still being closely monitored through SEVIS. The government also offered no persuasive explanation for the academic limits included in the rule. It cited examples of students remaining in F-1 status for ten years, but that figure is not inherently suspicious. A student who comes to the United States for undergraduate study and remains through a Ph.D. program could reasonably spend more than ten years in F-1 status. This is standard and unremarkable timeframe.
The academic-choice restrictions raise a basic question: why should the government care if someone completes two master’s degrees or a joint degree program that is customary in the field and helps the student advance professionally? The government has not identified any harm to the United States from that kind of academic progression. To the contrary, international students contribute financially, academically and culturally to U.S. institutions and communities.
The preliminary injunction, although very good news, is only a temporary reprieve. But the hearing suggested that the plaintiffs may have the more compelling argument. The government faced pointed questions about evidence, administrative justification, and the workings of the system it sought to replace. For now, D/S remains in place. I am hopeful based on what I witnessed in court that things will continue to go in favor of the plaintiffs.
The status conference on the case is scheduled for the beginning of October. The judge did not grant the Plaintiff’s request for summary judgement in this initial injunction, but this could be revisited. In my opinion, there is a path forward for this to be considered based on the fact that the government’s claims didn’t hold up under judicial scrutiny. DHS has thus far not appealed the preliminary injunction, but there is still time. The judge’s decision was well-written, likely in anticipation of a government appeal. However, the first circuit has been fair and reasonable in its adjudication standards in similar cases against DHS. We will have a clearer picture of where the litigation will go by early October. As it develops, I will be watching how the government tries to justify its position. Thus far, that justification has been unimpressive to say the least.
For now, ISSO offices have already started to prepare for the possibility of significant changes in how these programs are administered on campus. If the rule is ultimately allowed to take effect, thoughtful planning and campus-wide support will be essential. However, at least today, the fate of the rule is unclear. In the meantime, our advising should remain steady, practical, and grounded in what we know today. We can address future developments as they arise without adding to the understandable anxiety within the international student and scholar community. Institutions should continue reviewing their policies on I-94 expiration dates, extensions of stay, and academic issues. It is also helpful to revisit the line between guidance an advisor can provide and issues that should be referred to legal counsel. This has always been an important part of ISSO work and will remain so regardless of the rule’s fate. Strong coordination across departments, together with greater awareness of the needs of international students and scholars, will help campuses respond with clarity and care.