TABLE OF CONTENTS Introduction 581 I. International Students in the United States: Anxieties and 583 Potential II. University Programming as Immigrant Integration: A Proposal 590 Conclusion 601 INTRODUCTION
I am very grateful to have been asked by the organizers of the Fordham Urban Law Journal's 2018 Cooper-Walsh Colloquium to discuss a portion of Professor Ming Hsu Chen's forthcoming book, Constructing Citizenship for Noncitizens. This important book sets forth a lofty goal: creating and improving pathways to U.S. citizenship for noncitizens residing in the United States. (1) Notably, Professor Chen frames citizenship not just as a matter of law, but also as a matter of belonging, emphasizing the legal, social, economic, and political integration of noncitizens. (2) Her book draws on several years of on-the-ground field research and individual interviews. (3)
My comments in this Essay focus on Chapter Four, "Blocked Pathways to Citizenship." In this chapter, Professor Chen discusses the hurdles facing three distinct groups of noncitizens living in the United States: temporary workers in skilled positions working for American companies, recipients of Deferred Action for Childhood Arrivals (DACA) living in the United States for their entire adult lives and much of their childhood, and international students studying at American universities. Professor Chen finds that these three groups all share a "quandary of citizenship insecurity." (4) Each group has some level of authorization for their presence in the United States: there are skilled employees holding H-1B visas to work for U.S. businesses; there are DACA recipients that have been granted limited periods of deferred deportation coupled with work authorization; and there are international students holding F visas to pursue full-time degree studies. Yet the continued availability of these statuses can change as immigration law and policies shift, (5) rendering the "lived experience" of these workers, DACA recipients, and students "profoundly challenging." (6)
Perhaps the most startling finding in Professor Chen's research concerns the attitude of many international students and professional workers toward the prospect of eventual U.S. citizenship: deeply ambivalent. This presents a striking contrast to the perception of crisis on the southern border--that building a life in the United States is so powerfully attractive that a wall may be needed to keep people out. (7) Professor Chen notes that many international students and professional workers who have worked hard to secure the legal right to be present in the United States wind up feeling unsure about remaining. (8) Adding to the puzzle is the fact that the United States has historically and continually prioritized the immigration of skilled workers. (9)
This Essay focuses on international students' puzzling ambivalence about making a life in the United States. It begins by looking at the stressors that might lead international students, already present in the United States, to be lukewarm about the prospect of staying. It then considers how U.S. universities might take on a larger role to promote the integration of noncitizen students and thereby encourage those students to think about building a life stateside should the opportunity arise.
INTERNATIONAL STUDENTS EN THE UNITED STATES: ANXIETIES AND POTENTIAL
Professor Chen notes that one factor causing international students not to unreservedly embrace staying in the United States is the immigration process itself. International students must secure a visa to study in the United States. (10) And to the extent they hope to secure a post-graduation work visa, they must find a U.S. employer willing to sponsor them. (11) These things take time. And noncitizens can get bogged down by the waiting periods involved in going from one visa category (an F visa for students) to another (an H-1B visa for skilled workers). (12)
Professor Chen notes another deterrent is the threat that political change poses to temporary visa status. (13) When President Donald Trump's travel ban was unveiled in 2017, many international students were stranded outside the United States and unable to come back to continue their studies. (14) In another example, Chinese graduate students studying aviation, robotics, and advanced manufacturing previously were eligible for five-year student visas in the United States but have recently been restricted to one-year visas. (15) Given this history, international students tend to worry that changes like these might affect their ability to finish their education. (16)
The mercurial nature of immigration policy is not the only concern weighing on international students. These students must focus on maintaining their current visa status. (17) For those with F visas, this means continuing their status as full-time students, taking a certain number of credits, and achieving a sufficient grade point average to be allowed to continue their university studies. (18) These concerns, as well, may be relevant to deep-seated ambivalence about remaining in the United States.
In addition, unexpected obstacles can threaten the legal status of international students. For example, students with unpaid or underpaid tuition might find themselves unable to enroll, thereby forfeiting their student status and rendering them noncompliant with their visa obligations. (19) What is more, owing to a recent policy change, (20) international students now accrue unlawful presence in the United States as soon as they are no longer pursuing their studies or as soon as they are engaging in an activity that is not authorized by their particular visa status. (21) This unlawful status, if discovered, can lead to bans from the United States lasting up to ten years. (22)
International students can also be swept up in immigration enforcement efforts--not with standing their having authorization to be present in the United States. For example, valid-visa-holding international students have been arrested and detained because they were unable to produce their passport and visa documentation when asked to do so by Border Patrol agents. (23)
Each of these stressors is compounded by anxieties about how international students are perceived by American students, American employers, and their American communities. (24) Moreover, many international students have worries about the United States that have nothing to do with their immigration status, such as fears about the prevalence of gun violence in this country. (25)
Despite these myriad concerns, international students are uniquely positioned to someday achieve U.S. citizenship. (26) That is because international students holding F visas may be able to obtain post-graduation work in the United States, most commonly under the H-1B visa program for skilled workers. (27) Achievement of this status is dependent on an international student connecting with an American employer willing to file an H-1B petition on their behalf, (28) and the employer must be lucky enough to succeed in obtaining one of the 65,000 H-1B visas allotted each year through a lottery process. (29) Here, international students can have a leg up. An additional 20,000 visas slots are available every year for those who have earned masters or doctoral degrees from U.S. institutions. (30) Notably, the Trump administration has proposed a rule change that would allocate the general 65,000 H-1B visas first, and the 20,000 visas for U.S. students thereafter, which would increase the odds that individuals with U.S. degrees will be able to secure an H-1B visa. (31) For those international students who secure an H-1B visa, they will hopefully find themselves working for an employer willing to file the paperwork necessary to convert their status from a nonimmigrant visa holder into a lawful permanent resident (LPR). (32) Colloquially known as a "green card," LPR status is the most coveted noncitizen status in the United States. (33) Those who have employment-based LPR status are then eligible, after five years, to apply for naturalization, transforming them from noncitizens to U.S. citizens. (34)
Professor Chen emphasizes that immigrants who achieve LPR status through this route--from F-visa student to H-1B worker to employment-based LPR--frequently do not take the last step to become U.S. citizens through naturalization. (35) Despite their eligibility, these individuals naturalize at rates lower than individuals who become eligible for naturalization through other routes, such as family connections. (36) Professor Chen argues that this is a sign of "disconnection and nonintegration." (37)
Why might the United States want skilled workers to naturalize? For one, when an individual naturalizes, it is far less likely that he or she will be lured away to work in another country. (38) And economists note that increasing the average skill level of the working-age population leads to the growth of labor productivity. (39) That, in turn, is a key component of a nation's economic growth. In addition, having a significant population of long-standing residents who lack the desire to naturalize can lead to a lack of cohesiveness in society. (40)
So, understanding that it would be good to encourage LPRs who were once F-visa students to naturalize, how should we go about doing that? Professor Chen argues that an "easier legal pathway and a more welcoming climate" could help the United States to retain these highly educated and highly skilled workers. (41) As to the first half of her solution, Professor Chen rightly calls on the federal government to enact legal changes to our citizenship processes in order to facilitate and encourage individuals to become citizens of the United States. (42) I see room in the second half of Professor Chen's prescription for American universities to create "a more welcoming climate" that will induce LPRs who were once F-visa students to eventually...