David J. Bier
Today, the Trump administration made public two new rules limiting legal immigration: one, a massive overhaul of the international student visa system; the other, a rewrite of the public charge ground of inadmissibility that will primarily hit relatives of US citizens—overwhelmingly their spouses and minor children.
As I have detailed, Trump had already cut legal immigration far more than illegal immigration—2.5 times as much. These two rules will exacerbate that trend. Neither targets anyone who crossed the border illegally. Both target people who did exactly what the law asked of them.
The Student Rule: Banned from Changing Your Mind
Previously, international students on F visas, exchange visitors on J visas, and foreign media on I visas were granted admission for their “duration of status”—that is, for as long as they were in status or following the rules of the visa programs. DHS’s final rule replaces that with a fixed period of entry of no more than four years (for international students and exchange visitors). But it does far more than end open-ended admission. Littered throughout it is a set of unprecedented restrictions with no statutory basis.
Students can’t change majors or transfer schools in year one—and graduate students can’t ever. The rule’s own summary states it plainly:For F‑1 students changing educational objectives or transferring to an SEVP-certified school, requiring that the student complete his or her first academic year of a program of study at the school that initially issued his or her Form I‑20 or successor form, unless an exception is authorized by SEVP; Prohibiting F‑1 students at the graduate education level or above from changing educational objectives at any point during a program of study.
Undergrads get one year before this restriction lifts. Graduate students never get it lifted at all, absent a SEVP exception. Change your mind about your PhD topic in year four, and you’re the same as someone violating status on day one.
You can’t complete a second degree at the same level or step down a level, ever. Also from the summary:Requiring any nonimmigrant who has completed a program at one educational level to only be allowed to begin another program at a higher educational level as an F‑1 student and prohibiting a change to the same or a lower educational level while an F‑1 student.
Finish a master’s and want a second master’s in a different field? Illegal. Finish a PhD and want to pick up an associate’s degree in something practical? Illegal.
DHS’s real response to people worried about the need to double major: plan ahead, or too bad. Commenters pointed out that this would devastate students in interdisciplinary fields who need two degrees to do their work. DHS’s answer:this rule does not prevent students who need double majors to achieve their goals from planning ahead and enrolling in both at the same time. For example, nothing in this rule prevents someone from doing a J.D./M.B.A. program at one institution with one I‑20 indicating the program end date that accounts for the longer time it takes to complete the double major.
A J.D. and M.B.A. are not even examples of majors at all, as opposed to types of credentials, so whoever wrote this rule doesn’t have the slightest idea what students are even doing in higher education. More to the point, though, many people arrive at a US university not already knowing they’ll need to pursue a joint degree on day one. DHS’s answer to that reality is: you should have known in advance.
30 days to find a job, get out, or become illegal. The rule also slashes the departure/status-maintenance window from 60 to 30 days. Giving people 30 days to leave the country is an unreasonably short period, especially after many of these individuals have spent years in the United States. And the paperwork will bury USCIS’s own broken system. Every one of these changes—first-year transfer denials, graduate-level exceptions, program extensions past four years, OPT filings—now requires a Form I‑539 filed with USCIS. Right now, 20 percent of Form I‑539 applications to change to F or M student or J exchange visitor status from another status already take eight months or more to process. This rule is about to flood that same broken pipeline with hundreds of thousands of additional filings a year. “May apply” is not a promise. Cato adjunct scholar Stuart Anderson flagged the tell in DHS’s own language, responding to comments that four years isn’t enough time for most degrees:Students who demonstrate continued academic progress and meet F‑1 eligibility criteria may apply for an extension of status to complete their programs, consistent with the realities of U.S. higher education.
In other words, there is no guarantee of approval. DHS will still subjectively evaluate each request. DHS’s own numbers make clear how often that gap matters: NCES reports a median of 52 months—4.3 years—to finish a bachelor’s degree, and NSF reports a median of 5.7 years for a PhD. Both exceed the fixed four-year period for a majority of students, according to the government’s own data.
J‑1 research scholars and physicians get squeezed hardest. J‑1 categories like research scholars and alien physicians are authorized under DoS rules for programs running five to seven years—longer than most F‑1 degree programs. Under this rule, none of that matters. DHS says it outright. A physician in a multi-year medical training program, doing exactly what their visa category contemplates, still hits a DHS-imposed wall at year four and has to file for permission to keep doing the thing they were already approved to do. That’s more cost, uncertainty, and waiting for important researchers and physicians.DHS can’t explain why any of this is necessary. Read DHS’s own characterization of the comments, and it becomes obvious there is no reason for these rules, no statutory mandate to create them, and no engagement with the practical harm the agency is creating. International students keep American universities the most elite in the world, and they often stay after graduation to start many of America’s most valuable businesses.
The Public Charge Rule: A Stealth Ban on “Low-income” Immigrants
The second rule made public today paves the way for the USCIS to ban most legal immigrants who it projects will have low incomes. The Immigration and Nationality Act section 212 renders inadmissible people deemed to be “likely to become a public charge.” Back in the 19th century, public charges were people who lived in publicly supported almshouses. Since 1999, it has meant people who are institutionalized or receive most of their cash income from welfare—“primarily dependent” on the taxpayer. If the officer projected that an immigrant was likely to meet this definition after receiving a green card, they could deny the green card application.
Replacing a clear rule with nothing: In 2019, in his first term, President Trump rescinded this rule and replaced it with an extremely detailed, convoluted, and perverse regulation. The Biden administration quickly reinstated the 1999 rules. This time, DHS decided not to reissue that 2019 rule. Instead, it is simply rescinding the current public charge regulation and replacing it with nothing—not a new definition, not a new standard, just unbounded agency or officer discretion. This one hits family immigration hardest, because family-sponsored immigrants—the spouses, minor children, and parents of US citizens—dominate the flow of legal immigrants subject to the rule.Officers will now decide, in their discretion, whether someone might ever use any of a much broader list of public benefits than DHS previously considered (such as free school lunch), based solely on “the totality of the circumstances.” DHS suggests that it may provide “subregulatory guidance,” but we have no idea what that will be. Either way, it sets up a situation for arbitrary denials of legal immigrants based on a subjective standard.
It is important to clarify that this rule does not simply ban noncitizens or even green card applicants from using benefits, as many news outlets have reported. It is a rule that bans people based on the prediction that they might someday use welfare. If DHS simply banned green card applicants from using welfare, that would be no problem at all—they’d just stop using it. That’s not what this does. This is about excluding people from the country based on a subjective guess about their future, not about giving anyone a chance to prove themselves self-sufficient under a knowable standard.
The “low income now” framing is wrong. As we show in our recent paper, low-skilled immigrants—defined in our analysis as those without a bachelor’s degree, the population public charge officers will be most inclined to flag—were fiscally positive by $2.8 trillion from 1994 to 2023. They work at higher rates than similarly educated US-born workers and use old-age benefits, education, and prison spending at well below the per capita average.What’s more is that it makes no sense to look at someone’s income the moment that they apply. Green card applicants are often ineligible to work when they are applying. That’s why, historically, as long as someone could work, the default was to assume they would. The default presumption should hold, absent strong evidence to the contrary, such as still being on benefits when they apply. The exact effects remain unknowable because DHS states it will provide more guidance only after the rule is final—the “finalize the regulation to find out what’s in the regulation.”
The Most Anti-Legal Immigration Administration
Neither of these rules touches anyone who crossed the border illegally. One targets people who already followed every rule to get a student visa and simply want the same academic flexibility every American student has. The other targets people whose only “offense” is being related to a US citizen and not being wealthy enough to satisfy an undefined, unappealable, after-the-fact judgment call by a single officer.
These rules highlight that the administration’s focus is not on reducing illegal immigration. It is also about making legal immigration illegal. Immigrants are good for government budgets and our prosperity, increasing our productivity through innovation, entrepreneurship, and work. There is no reason to adopt these harmful, ill-conceived rules. Congress should intervene to prevent them from taking effect.
