Harvard Has Strong Chance To Prevail Over Trump In Immigration Lawsuit

Harvard University has a strong chance to prevail in its immigration battle with the Trump administration over the right to enroll international students. After Harvard refused the Trump administration’s demands for the federal government to take over the university’s hiring, admissions and governance policies, the Department of Homeland Security removed the school’s certification to admit international students. The high-profile action against Harvard came as the Trump administration’s nominee for director of U.S. Citizenship and Immigration Services said he would eliminate Optional Practical Training and STEM OPT, another measure educators warn could cause international student enrollment at U.S. universities to plummet.

The Trump Administration’s Immigration Decision On International Students

On May 22, 2025, DHS Secretary Kristi Noem sent a letter to Harvard: “I am writing to inform you that effective immediately, Harvard University’s Student and Exchange Visitor Program [SEVP] certification is revoked.” Without the certification, a school cannot enroll international students.

Enacted after the terrorist attacks of September 11, 2001, the SEVP rules and certification process were intended to encourage schools to report when students dropped out or no longer maintained a required courseload and to remove fraudulent or illegitimate schools. The rules were never intended to be used to punish universities for not complying with unrelated demands by ending their ability to enroll international students.

After Harvard refused to capitulate to an administration ultimatum to hand university control to federal officials, DHS Secretary Kristi Noem sent the school a letter on April 16, 2025. She demanded Harvard answer several questions and warned that if the school failed to respond fully, DHS would terminate the university’s legal authority to enroll international students using the Student and Exchange Visitor Program. The letter gave Harvard two weeks to provide answers about thousands of student visa holders and their illegal activity, disciplinary actions or “obstruction of the school’s learning environment.”

“Failure to comply with this Student Records Request will be treated as a voluntary withdrawal, per CFR § 214.3(h)(3)(vii),” according to Noem’s April 16, 2025, letter. “Therefore, in the event the school fails to respond to this request within the timeframe provided above, SEVP will automatically withdraw the school’s certification. The withdrawal will not be subject to appeal.”

Harvard responded to DHS, but Noem said the school had not satisfied the agency. Harvard’s response included identifying three international students who were “subject to discipline that resulted in a change of academic status” as defined by regulation. It is possible no reply or records provided would have satisfied DHS because the Trump administration had decided to remove Harvard’s ability to enroll international students to punish it for not submitting to its other demands. Harvard, a private institution founded in 1636, is America’s oldest university.

The Wall Street Journal asked, “Is Trump Trying To Destroy Harvard?” in a recent editorial. “The Trump Administration has frozen billions in federal grants to Harvard University, threatened its tax-exempt status and sought to dictate its curriculum and hiring,” wrote the Journal. “Now the government seems bent on destroying the school for the offense of fighting back. And for what purpose? That’s how we read the Department of Homeland Security’s move Thursday to bar foreign students from attending the world-renowned institution.” The editorial labeled the move against international students, a quarter of Harvard’s student body, “whose futures are suddenly in disarray,” to be “a short-sighted attack on one of America’s great competitive strengths: Its ability to attract the world’s best and brightest.”

Harvard’s Response To The Trump Administration’s Immigration Actions

On May 23, 2025, Harvard University filed a complaint against the revocation of its certification to enroll international students. U.S. District Judge Allison Burroughs granted a Temporary Restraining Order for Harvard against the Trump administration’s action, writing that Harvard “has made a sufficient showing that it has provided notice to Defendants . . . that unless its Motion for a Temporary Restraining Order is granted, it will sustain immediate and irreparable injury before there is an opportunity to hear from all parties.” That means DHS cannot yet remove Harvard’s certification to enroll international students.

In its complaint, Harvard noted that despite “the unprecedented nature of the demand” for records from DHS, Harvard’s International Office “immediately began collecting responsive records from the information it maintains or keeps ‘accessible, 8 C.F.R. § 214.3(g)(1), and, on April 30, Harvard produced that information to DHS.” The complaint adds, “On May 14, Harvard also produced additional information in response to a follow-up request from DHS. Yet, on May 22, 2025, DHS deemed Harvard’s responses ‘insufficient’—without explaining why or citing any regulation with which Harvard failed to comply—and revoked Harvard’s SEVP certification ‘effective immediately.’”

Harvard called the government’s termination of Harvard’s SEVP certification “the culmination of its unprecedented and retaliatory attack on academic freedom at Harvard.”

Harvard’s strongest argument may be that DHS did not follow its regulations in decertifying the university, which would violate the Administrative Procedure Act. Congress passed the APA to prevent federal agencies from operating in an arbitrary and capricious manner.

“In sum, the regulations provide DHS with only two means of terminating a school’s existing F-1 visa program outside of the normal biennial recertification process: First, DHS can withdraw a certification only by issuing a NOIW [Notice of Intent to Withdraw] and initiating ‘withdrawal proceedings’ pursuant to 8 C.F.R. § 214.4(b),” notes Harvard’s complaint. “Second, if DHS initiates an out-of-cycle review and the school wishes to acquiesce in the withdrawal of its certification, it can ‘voluntarily withdraw’ its certification either by submitting a letter to that effect or simply by declining to engage with the out-of-cycle review process.” Neither action took place in Harvard’s case.

The university’s complaint notes that before the Trump administration’s action against Harvard, “no school had ever had its SEVP certification revoked for any reason other than failure to meet the eligibility criteria for certification or failure to comply with the recordkeeping, retention, reporting and other requirements set out in the federal regulations governing certification.”

Harvard explains in its complaint that the regulations list compliance criteria for a school’s recordkeeping, retention and reporting obligations on “specific information and documents relating to each F-1 . . . student.” Under the DHS regulation, per Harvard’s complaint, “specific information” is defined to include the student’s name, date and birthplace, country of citizenship, address, coursework record, academic status, including “the effective date or period if suspended, dismissed, placed on probation, or withdrawn,” or a termination date and reason.

DHS has asked for information far beyond the scope of records available within the Student and Exchange Visitor Information System known as SEVIS. For example, Kristi Noem stated in her May 22, 2025, letter that if Harvard wanted to regain its SEVP certification, it must provide “Any and all audio or video footage, in the possession of Harvard University, of any protest activity involving a nonimmigrant [temporary visa holder] on a Harvard University campus in the last five years.”

Evaluating Harvard’s Chances To Prevail On Its Immigration Lawsuit

Harvard appears to have a good chance of succeeding on the merits of its lawsuit. “Having read the entire complaint, it is clear that Harvard was expecting the administration to withdraw its SEVP [Student and Exchange Visitor Program] authorization,” said Jonathan Grode of Green & Spiegel. “The complaint is well organized, filed swiftly and lists ten compelling counts in seeking relief. These arguments center around the Administrative Procedure Act and First Amendment free speech rights as well as due process claims.” Harvard’s complaint totals approximately 70 pages.

The judge may focus on whether the Department of Homeland Security followed its rules in revoking Harvard’s certification to enroll international students. “As far as where the courts might side with Harvard, the most compelling argument is that the administration did not follow the well-established protocol for SEVP termination, namely citing the basis for the revocation and providing opportunity for appeal.”

Grode notes that in its original demand letter in April, DHS stated that Harvard’s failure to comply with its document request would be viewed as a voluntary withdrawal from the Student and Exchange Visitor Program. However, Harvard responded timely and stated it had no intention to withdraw voluntarily.

“At the core of the dispute between Harvard and the administration are the First Amendment claims, but with the administration’s failure to follow federal regulations [8 C.F.R. § 214.4(b)-(h)] I would not be surprised if the courts remain silent on that aspect of the filing,” said Grode.

He thinks even if the administration loses in court, it could try again. “While Harvard may prevail in court, the administration could attempt to go through the proper procedural methods for revoking SEVP authorization.” That would include being specific and allowing opportunities for remediation and appeal.

Former Cornell Law Professor Stephen Yale-Loehr agrees with Grode’s legal analysis that Harvard will likely win its case. “While Trump may lose this litigation battle, he may win his war against international students,” said Yale-Loehr. “The combination of starting this lawsuit against Harvard, threatening to terminate Optional Practical Training and revoking the immigration status of over 1,000 international students leaves prospective students applying to colleges outside the U.S., and current international students worried about their futures.”