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Trouble at the Border
How U.S. anti-terrorism efforts affect foreign students and visiting scholars

By Robert M. O'Neil

As the new academic year opened on the nation's college and university campuses, there was an alarming decline in the number of international graduate students. The Council of Graduate Schools reported in early September that the number of such students admitted to U.S. graduate programs had declined by eighteen percent from the previous year.

Such a loss reverses a trend that has been generally positive since World War II. A nation that for decades had actively sought, and eagerly welcomed, graduate students from all parts of the world, now appears to many prospective scholarly visitors to be ambivalent at best and downright hostile at worst. The causes and consequences of so dramatic a change merit the urgent attention of the academic community.

The case for embracing foreign graduate students needs little documentation. The quantitative measures alone are striking. During the past two decades, non-citizens have accounted for more than half the growth in the number of Ph.D.s earned in this country, most especially in the biological and agricultural sciences. As Princeton University President Shirley Tilghman (herself once a foreign graduate student in the U.S.) recently reminded a Congressional committee, nearly a third of current doctoral degrees in science and engineering go to foreign nationals; even more impressive, she stressed, is that "two thirds of foreign students who receive a Ph.D. in science or engineering stay in the U.S., taking positions in academia and industry. And nearly 400 of the current U.S. engineering faculty are foreign-born."

The qualitative assessment is equally compelling. American Council on Education President David Ward (who first came to the University of Wisconsin from the U.K. for graduate study) may have put it best in recent Congressional testimony: "International students and exchange visitor programs... dramatically increase the knowledge and skills of our workforce. They boost worldwide appreciation for democracy and market-based economics and give future world leaders first-hand exposure to America and Americans. At the same time, international education generates billions of dollars in economic activity every year."

If one views Dr. Ward as a possibly biased source, similar claims pervade a May, 2002, statement by Attorney General John Ashcroft: "Allowing foreign students to study here is one of the ways we convey our love of freedom to foreign students who will one day return to their countries and take on leadership positions." Thus there is little question that, in the abstract, the presence at our universities of substantial foreign graduate enrollments has been a laudable objective.

Sadly, the climate has greatly changed since the attacks of September 11, 2001. This nation has felt compelled, as President Tilghman described the dilemma in her testimony, to "balance two exceedingly important objectives: to minimize the risk that our laboratories and the materials in them will be used for terrorist purposes, and to maximize the likelihood that the American scientific enterprise will flourish."

The source of this tension was the realization that, as Homeland Security Undersecretary Asa Hutchinson cautioned, "[One of the hijackers] came in on a student visa and was on the flight that went into the Pentagon, and so 9/11 reminds us that there are foreign students that come into the United States not to get an education, but to do us harm." He might have added that, incredibly, some six months after their deaths, student visas for two of the deceased hijackers were routinely reissued.

The initial response in Congress was clearly overkill. Senator Dianne Feinstein, a California Democrat whose state probably hosts the largest number of foreign doctoral students, seriously proposed a six-month moratorium on all student visas. The higher education community protested so draconian a move, and Feinstein relented. Several weeks later, the House of Representatives passed a version of the USA PATRIOT Act that would have barred foreign students from working in any research laboratories. Mercifully a calmer, wiser Senate did not concur, settling instead for specific restrictions on certain persons and certain hazardous materials, but no blanket ban.

What did emerge was a refinement and tightening of the visa-granting process through the Student Exchange Visitor and Information Service (SEVIS), a web-based system designed to track foreign students and scholars. Although such a system had been in development since 1996, two major changes were made. All colleges and universities were required to participate in the system by the spring of 2003, and the Immigration and Naturalization Service (which had maintained the system) became part of the Department of Homeland Security in the spring of 2003. The administration of SEVIS was then transferred to a new Bureau of Immigration and Customs Enforcement within Homeland Security.

Two aspects of the current system seem to have depressed international applications and enrollments. One has simply been the protracted process of implementing SEVIS-missed deadlines, incompatible reporting systems and the like-which has caused far more grief to the institutions that enroll foreign students than to the students themselves. Recent reports suggest, however, steady improvement in the operation of SEVIS, along with a heightened federal government concern. A General Accounting Office report in late June acknowledged some residual problems and delays with SEVIS, notably in preparing to collect the $100 fee which every foreign student or visiting scholar must pay as of September 1, 2004.

For students from abroad who seek to study in this country, far graver concerns involve obtaining visas for entry and re-entry. A mid-August letter from the major higher education groups to the chair of the House Committee on International Relations laments that "many foreign students and scholars have experienced significant problems in securing visas" and warns that "the extraordinary delays that affect some foreign students and scholars have had the unintended effect of making the nation seem less welcoming than it truly is." The letter closes by urging the committee to hold hearings as soon as possible on the visa system and its effect upon international academic exchange.

Much evidence of the impact of such delays is anecdotal-a Chinese graduate business student at MIT who went home to visit his family but could not return to Cambridge for three months, missing two conferences, a semester of classes and eligibility for summer internships; or a French doctoral archeology student at Berkeley whose Iranian birthplace has kept him in France for more than a year awaiting a return visa; or a Pakistani engineering doctoral student at MIT who was in limbo for more than two months after a home visit.

While such experiences are not easily aggregated, an informal survey last spring of 1,700 foreign students and scholars at Berkeley revealed that sixty percent of them had experienced delays at U.S. consulates and embassies or at U.S. ports of entry-even among the lucky ones who did eventually get to the campus in reasonably timely fashion.

More ominous than such individual horror stories are broader impressions one gleans from visitors; the MIT Pakistani engineering student, for example, lamented that most of his classmates had initially applied for U.S. visas, but gave up along the way-"given the general perception that, oh, it takes so long and why waste one year of your life, when you can continue somewhere else. Now I would say the top ten percent of my high school class is either in Germany or France right now." Association of American Universities President Nils Hasselmo, urging improvements in the visa-processing system, recently warned that "many of the best and brightest students from abroad no longer believe that the United States is the destination of choice."

While evidence of such disenchantment remains largely anecdotal, we do now have hard data on recent trends in applications and enrollment of foreign graduate students on U.S. campuses. These data describe disturbing shifts in the presence and prospect of international visitors at our most prestigious institutions. The most reliable information about application and enrollment trends comes from surveys conducted in spring and summer, 2004, by the Council of Graduate Schools.

Of the 230 member institutions that responded to the surveys, almost 90 percent reported declines in the number of international graduate applications for 2004-05, compared with the previous year. That decline averaged 32 percent, covering all types of institutions. This report finds striking confirmation from a wholly different source: One third fewer international students took the Graduate Record Examination (required for most U.S. post-baccalaureate study in the arts and sciences) during the 2003-04 academic year than had taken the test the previous year.

The reported decline was sharpest among applicants from China, India, South Korea and Taiwan, although forty percent of graduate deans reported fewer Western European applications. Non-trivial declines were also noted in applications from Australia and New Zealand, from Central America and Mexico, and from Canada, albeit smaller than the losses in Southeast Asian applicants. By subject matter, the decline was most pronounced in engineering, agriculture and biological sciences, although half reported a drop in humanities applicants, and more than half noted a falling off in business and in the social sciences.

Perhaps most ominous, the CGS survey noted that the reduction in the applicant pool was greatest at the fifty institutions that traditionally enroll the largest numbers of foreign students, all but one of which reported declines in 2002-03. The actual admission data reported in late summer were quite consistent in all respects with the application trends that had been noted earlier.

Although CGS cautioned that eventual enrollments this year may not decline in lockstep with applications, if only because some students apply at many places, prior year data on actual enrollments are consistent. The distribution of registered foreign graduate students reflects significant differences by nation of origin-though not necessarily the differences one would have expected. From the academic year 2001-02 to 2002-03, the numbers of students coming to the U.S. from Indonesia and Thailand declined by more than ten percent, while enrollments even from Canada and Germany declined by five percent and four percent respectively-thus suggesting that the impact of the more restrictive environment has not been limited to "sensitive" or "unfriendly" nations and regions. Eastern Europe, which had been a rapidly growing source of international enrollments in the United States, for the first time sent fewer students in 2002-03 than the year before.

It would be easy to attribute the entire problem to heightened security measures and a less welcoming climate. Other factors could, however, affect the equation, and might have caused some decline in international enrollments even without the terrorist attacks. The Council of Graduate Schools report summarizes these elements: "Overall, global capacity for graduate education is on the rise. Several countries, notably China, have expanded their systems of graduate education, and several countries, specifically Australia and New Zealand, have become highly active in international graduate education. Foreign governments are making aggressive and conscious decisions to expand graduate access and opportunities, both for domestic and international students. Further, the participation of scientists educated abroad in U.S. research is also increasing."

In such a complex environment, it would be unfair to blame the foreign student decline solely upon heightened national security measures. Moreover, some regions of the world that seem to be sending fewer graduate students to this country are not primary targets of increased surveillance and visa restriction. Perhaps the most that can be said with confidence is that some part of a deeply disturbing trend may fairly be attributed to current limitations on access, and to a less receptive climate for foreign academic visitors.

There are some modestly promising signs that persistent pleas from the academic community are being heard. In late July, the Citizenship and Immigration Service (a unit within Homeland Security) granted an extension or grace period so that student visa-holders could remain within the U.S. for a month or two while awaiting renewal or extension of work visas. Previously-even before September 11, 2001-when the supply of such visas was exhausted before the end of the academic year, visitors had to return home and await the issuance of a new batch of work permits.

On the very same day, SEVIS announced increased staff support and 24-hour availability, among other measures designed to expedite visa processing during the summer. At the end of August, Homeland Security announced it was seriously considering extending security clearances to foreign students and scholars for the duration of their academic program or teaching appointment. Because current clearances are valid for only one year, regardless of the length of the academic commitment, such a change would markedly improve the experience of many visitors, and would sharply reduce visa delays. Since this was a dispensation for which higher education groups had been pressing for some time, the announcement was applauded in the university world.

A curious irony brings us full circle. This welcome change coincided almost to the day with news that the State Department had canceled the visa of Professor Tariq Ramadan, a distinguished Muslim scholar who was about to assume a senior faculty position at the University of Notre Dame. Although the reasons for this action remain obscure, The Department of Homeland Security apparently found Ramadan to be a "person of prominence" whose admission to the U.S. could be barred under a law that targets visitors deemed likely to "engage after entry in terrorist activity."

The evident basis for such a harsh judgment seems to be Ramadan's widely expressed hostility toward Israel, and his association with outspoken Islamic critics of U.S. policy in the Middle East. Such unexplained hostility toward a senior foreign scholar could well undermine the modest gains that have recently occurred, and might further depress the flow of foreign graduate students who so enhance the quality of our academic programs and our institutions.

Robert M. O'Neil is a professor of law at the University of Virginia School of Law and director of the Thomas Jefferson Center for the Protection of Free Expression.

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National CrossTalk Fall 2004



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