The Growing Role of Immigration Law in Universal Higher Education: Case Studies of the United States and the EU

By Olivas, Michael A. | Houston Journal of International Law, Spring 2015 | Go to article overview

The Growing Role of Immigration Law in Universal Higher Education: Case Studies of the United States and the EU


Olivas, Michael A., Houston Journal of International Law


I.   Introduction II.  U.S.: The War on Terror, Updated      A. Pre-9/11 (1980-September 11, 2001)      B. Post-9/11      C. The DREAM Act at the State and Federal Levels      D. Prosecutorial Discretion and Deferred Action III. The EU as a Loose Federation      A. History of the Bologna Process      B. Related College Law Decisions in ECJ Cases IV. Conclusion and Cautions 

I. INTRODUCTION

The increasingly prominent role of immigration law in the world of higher education is evident to observers in both camps, that is, to those who specialize in the comprehensive law of higher education, across countries, and to those whose expertise is immigration and naturalization law. of course, there has always been a substantial and broad band of intersection, such as the required visa regime for international admissions, across all nations and institutions (in the United States, the usual F-1 process that admits and enrolls more than a million students and scholars each year--one of several categories possible for international study), and the complex process for working in a foreign country as an academic and evaluating educational credentials for employment authorization (such as the landed immigrant procedures in Canada or NAFTA-related work certification degree requirements). (1) As common as these transactions have been over the years, the shrinking world with its increased geopolitical and diplomatic roles played by competitive higher education policies has moved the implementation of immigration to center stage as never before. Not only is there a growing propensity for these regimes to be considered in court cases and for a dizzying array of legislative/regulatory/administrative rules to be drafted in their service, but there is an astonishing move towards large scale national, international, transnational, consortial, and other interlocking legal mechanisms for advancing higher education interests across countries. (2) Perforce, immigration law has become the technical and policy regime for effectuating and implementing these interests, joining the traditional areas of diplomacy, foreign policy, finance, intellectual property, and increasingly, national security domains.

In this preliminary investigation, I use case studies and detailed literature reviews from the United States (U.S.) and from the European Union (EU), as higher education institutions in these two systems represent the major receiver colleges in the world system, and among the major sender nations as well. Moreover, while there are many differences in the details, the large-scale immigration mechanisms are similar in their organizational features. (3) The review of events traces back just before the most important existential event of the twenty-first century, the terrorist attacks upon the United States in 2001 and similar terrorism events in the world, and then considers the reflexive and resultant immigration changes initiated as a direct result of these international terrorist threats.

In addition, in the United States, there has been an increased anti-Latino nativism and restrictionist backlash, particularly aimed at the rising number of undocumented college students, those not in authorized status; while these do not, in most instances, invoke immigration controls at the front end, the increased visibility and the sympathetic back-stories of these sojourner children have led several of the individual states to enact more accommodationist college policies. In this context, I review the political economy of the DREAM Act--both at the federal level and at the state level, and the 2011-2012 developments in the use of prosecutorial discretion to treat undocumented college students, that is, students in unlawful status in the United States. (4)

Over a decade later, some of the more routine immigration controls instituted have been enacted and regularized, while some have been discarded, but a surprising number of them have been added and incorporated into institutional practice. …

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