Harvard, Federal Government Quarrel Over Preliminary Injunction Terms in International Students Lawsuit

Harvard and the Trump administration submitted proposals on Thursday for a preliminary injunction that would keep Harvard’s Student and Exchange Visitor Program certification in place while its lawsuit moves forward — but differed on key terms.

The Department of Homeland Security’s attempt to revoke Harvard’s SEVP status, which allows it to host international students, was temporarily blocked by a federal judge in May. Harvard asked for a preliminary injunction, which would extend the block until the court reaches a decision, but U.S. Judge Allison D. Burroughs asked the two sides to agree on terms before granting the injunction.

The Trump administration argued, in a brief opposing Harvard’s proposed injunction terms, that the language would encroach upon the White House’s broader authority to regulate student visas.

The two sides’ proposed injunctions differed in three main areas: how to preserve Harvard’s eligibility to enroll international students, whether to block a new attempt to revoke Harvard’s SEVP status for an additional 30 days, and which documents the government needed to turn over to show compliance with a May 23 temporary restraining order.

In her May 29 decision extending the TRO, Burroughs told lawyers for the government and Harvard that she wanted to “maintain the status quo.”

But Harvard and the government disagreed over how to implement Burroughs’ instructions. One clash centered on whether the DHS could move forward with an attempt to revoke Harvard’s SEVP status under its standard process.

When Harvard first sued the DHS and other federal agencies one day after the attempted revocation, it argued that the abrupt move — which gave the University no opportunity to appeal — had violated procedures that require the SEVP to give Harvard 30 days’ notice before moving forward with a withdrawal of its status.

Six days later, the federal government shifted course by sending Harvard a formal notice of its intent to revoke the University’s SEVP certification, potentially setting in motion a process that could shut out international students while undercutting Harvard’s procedural objections. The May 28 letter gave Harvard the customary 30 days to respond and appeal — a window that is currently set to expire at the end of June.

In their Thursday brief, Harvard’s lawyers argued that without the 30 day stay — which would effectively reset the clock — they would be forced to “rush to the courthouse for a third time.”

“Requiring the Court to take up these issues on an emergency basis yet again to prevent predictable harms — the inevitable result of the government’s approach — is inefficient, ineffective, and unnecessary,” they wrote.

But the administration’s lawyers wrote that such a stay would be “unwarranted,” arguing that the purpose of Burroughs’ TRO was “to ensure the procedures are followed, not to freeze the results of that process.”

They wrote that the extra wait could impose irreparable harm for the government if it determines there is an “immediate need” to withdraw Harvard’s SEVP certification or Exchange and Visitor Program designation. If Harvard took issue with a future decision of the government, it could move for relief again, they wrote.

Lawyers for the federal government also rejected the University’s move to include a clause in the injunction stating that the government could not impose “a categorical restriction” on Harvard’s ability to host non-immigrant F or J visas.

Harvard’s lawyers wrote that the clause was necessary to stop the government from “implementing the same Revocation Notice under a different name” and to reassure Harvard’s international affiliates.

“Absent Harvard’s proposed language, there is nothing to stop the Department of Homeland Security (‘DHS’) from issuing a new Revocation Notice with a new date, or simply cutting off Harvard’s access to the Student and Exchange Visitor Information System,” they wrote.

The government’s lawyers labeled the clause overly broad and unnecessary, writing that it could impede other actions of the government that they do not believe are restricted by the temporary restraining order that was granted — and then extended — by Burroughs.

Citing President Donald Trump’s June 5 executive order barring incoming international students from entering the country to attend Harvard, they wrote that the order was already the subject of a separate TRO — which Burroughs granted that day.

The administration’s lawyers argued that including a clause to prevent a categorical restriction could interfere with the litigation regarding Trump’s proclamation.

“That process should be fully litigated on the merits rather than be prematurely subject to this proposed preliminary injunction,” they wrote.

The two sides also contested whether the White House should have to provide a public copy of the guidance circulated to the administration’s agencies to ensure compliance with the preliminary injunction.

The administration’s lawyers wrote the government does not have an obligation to make that guidance publicly available and that the content is protected by attorney-client privilege. But Harvard’s lawyers deemed it necessary to ensure governmental compliance with the court order and provide reassurance to Harvard’s international students and scholars.

“Given the government’s pattern of behavior thus far and the chaos it has inflicted, this surety is more than warranted,” Harvard’s lawyers wrote.

The Trump administration has already sent flip-flopping directives to consulates and embassies. Shortly after Trump’s proclamation, the State Department instructed consular staff to reject Harvard students applying for visas — then reversed course in a second cable the next day in response to Burrough’s TRO.

But between the two messages, both of which were reported by the Washington Post, at least one Harvard affiliate — a returning postdoc at a European consulate — was denied a visa on the basis of Trump’s proclamation.

Several immigration lawyers said the refusal the postdoc received was in clear violation of the terms of the June 5 TRO.

If Harvard loses its SEVP certification, international students could be forced to transfer or risk losing their authorization to remain in the U.S. There are more than 10,000 international students and scholars at Harvard, thousands of whom are on F or J visas that would be impacted by SEVP revocation.

—Staff writer Samuel A. Church can be reached at samuel.church@thecrimson.com. Follow him on X @samuelachurch.

—Staff writer Cam N. Srivastava can be reached at cam.srivastava@thecrimson.com. Follow him on X @camsrivastava.