COMPLIANCE AND FOREIGN STUDENTS AND FACULTY
April 20, 2007
Leigh Polk Cole, Attorney
Dinse, Knapp & McAndrew, P.C.
Burlington, Vermont
Jane Etish-Andrews
Director, International Center
Tufts University
Boston, Massachusetts
Introduction
Colleges and universities must comply with U.S. immigration law in enrollment
and tracking of international students and scholars and in hiring and employing
international faculty. This outline provides an overview of immigration issues and
requirements and suggests best practices in several areas.
I.
Roles of Government Agencies
The roles of various state and federal government agencies in the immigration
process are a source of confusion. Diverse agencies are involved in immigration
regulation. Each government agency has a defined role but their roles overlap in these
important respects.
U.S. Department of Homeland Security (DHS). DHS was created in 2003 when
large number of government agencies were reorganized into DHS, including the
Immigration and Naturalization Service (INS) (which was a division of the U.S.
Department of Justice), Customs, Border Patrol, Coast Guard, the Federal Emergency
Management Administration (FEMA), the Secret Service and the Transportation Security
Administration (TSA), among others. DHS has overall responsibility for immigration
benefits and enforcement. The former responsibilities of INS (benefits, customer service,
domestic enforcement and border enforcement) were allocated to various divisions of
DHS (USCIS, ICE and CBP, described below). See Exhibit A, DHS Organizational
Chart.
U.S. Citizenship and Immigration Services (USCIS, in DHS). Formerly the Immigration
and Naturalization Service (INS) under the U.S. Department of Justice, USCIS is a division of
DHS with primary responsibility for adjudicating immigration benefits such as applications for
immigration status to live, work or study in the United States, applications to change from one
status to another, and applications for adjustment of status to permanent residency. USCIS is a
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benefits and customer service division of DHS. See Exhibit B, I-797 Approval Notice issued by
USCIS.
U.S. Immigration & Customs Enforcement (ICE, in DHS). ICE is a division of DHS
with responsibility for immigration and customs enforcement within the United States (not at the
borders). ICE is responsible for the SEVIS system to monitor students and scholars at U.S.
institutions of higher education. ICE is an enforcement division of DHS.
U.S. Customs and Border Protection (CBP, in DHS). CBP is a division of DHS
with responsibility for enforcement of immigration and customs law at U.S. borders and
ports of entry. Travelers requesting entry to the United States are examined by CBP
officers. See Exhibit C, I-94 issued by CBP at port of entry
U.S. Department of Labor (DOL). The U.S. Department of Labor adjudicates
applications for labor certification for permanent residency, maintains a prevailing wage
database for all U.S. states, and reviews and approves prevailing wage determinations
issued by each state for immigration applications.
State departments of labor, employment and training. States agencies are
responsible for issuing prevailing wage determinations for immigration applications
related to employment in the respective states, based on sources including the prevailing
wage database maintained by DOL.
U.S. Department of State (State Department or DOS). The State Department and
its U.S. consular posts abroad (embassies, consulates) is responsible for issuing U.S.
passports to U.S. citizens, issuing U.S. visas to non-U.S. citizens, approving J-1 program
sponsors such as institutions of higher education, and approving waivers of the 212(e) 2year home country residency requirement for J-1 exchange visitors. Visa approval
involves a security check process. A visa is a permit to request entry to the United States;
actual entry is approved by CBP upon a traveler’s arrival at a U.S. port of entry. A visa is
not a guaranty that CBP will allow the holder to enter the United States. While many
visas are based on an approval issued in advance by USCIS, F-1 and J-1 visas are based
on the I-20 or DS-2019 issued by the F-1/J-1 sponsoring institution. See Exhibit D, Visa.
II.
SEVIS and Immigration Compliance for F-1 Students and J-1 Scholars
A.
Immigration Status and Benefits for Students and Scholars
F-1 Status
F-1 status is available for academic study by international undergraduate and
graduate students. Institutions of higher education must be authorized by ICE to approve
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F-1 status for students and to use the SEVIS monitoring system to issue F-1
documentation. See 8 C.F.R. 214.2(f).
F-1 status is available only for full time study and only for the period of time
needed to complete the degree program up to one year for employment for Optional
Practical Training (OPT) after a degree is obtained.
J-1 Status
J-1 status is available for study, research and cultural exchange, including
employment in the United States for these purposes. J-1 program sponsors, including
nonprofits, for-profits and institutions of higher education, must be authorized by the
State Department to issue J-1 documentation for participants and to use the SEVIS
monitoring system to create J-1 documentation. See 8 C.F.R. 214.2(j).
The sponsor’s J-1 program, description approved by the State Department,
governs which activities are permissible by participants in a J-1 program. Permissible
activities include study, research or employment. J-1 status is available for up to 6 years
for research scholars and faculty, depending on program requirements. There is no time
limitation on J-1 status for full time students.
Many J-1 participants become subject to a 2-year home country residency
requirement under the Section 212(e) of the U.S. Immigration and Nationality Act. See
U.S. Immigration and Nationality Act, Section 212(e), codified at 8 U.SC. 1182(e).
Section 212(e) is triggered by U.S. or foreign government funding of the applicant’s
program participation or if the field of study or research is on the Skills List for the
participant’s home country. The Skills List is a list of occupational subject areas for
which J-1 participants are required to return to their home country for at least 2 years to
share the information they learned as J-1 exchange visitors in the United States. See 22
C.F.R. 41.63; State Department’s Foreign Affairs Manual (FAM), 9 FAM 41.62, Exhibit
II. The 212(e) 2-year home residency requirement must be satisfied or waived before the
J-1 participant may obtain any other immigration status in the United States (other than
O-1 status based on extraordinary ability in their field of endeavor).
212(e) waivers (or “J-1 waivers”) are difficult obtain and must be based on one of
the following, none of which can be assumed to be available in any given case:
a.
Request by an interested U.S. government agency (IGA)
b.
Hardship to a U.S. citizen or permanent resident
c.
A no-objection letter from the participant’s home country.
The State Department reviews 212(e) waiver applications and recommends
whether a waiver should be approved. Favorable waiver recommendations by the State
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Department are submitted to USCIS with an I-612 Application for Waiver of the Foreign
Residence Requirement, to finalize the waiver process. See 22 C.F.R. 41.63.
M-1 Status
M-1 status is available for vocational and technical students at approved nonacademic vocational institutions. See 8 C.F.R. 214.2(m). M-1 status is subject to SEVIS
monitoring like F-1 and J-1 status.
B.
History and Purpose of SEVIS
SEVIS was conceived before 9/11 as a system to monitor the whereabouts and
activities of the vast number of international students and scholars physically present in
the United States at any given time. SEVIS was implemented on an expedited basis after
9/11 when it came to light that the 9/11 perpetrators had gained entry to the United States
as purported students. SEVIS is a management system for F-1, J-1 and M-1 status only.
See 8 C.F.R. 214.12, 214.13.
SEVIS is a substantive status system, not merely a database. The information
entered into SEVIS by an F-1 or J-1 sponsor, such as an international student advisor at a
college or university, becomes the actual government record of the F-1/J-1
student/scholar. If a SEVIS record expires or terminates for any reason, even due to an
inadvertent data entry error by the SEVIS officer on campus, the F-1/J-1
student/scholar’s immigration status ends by operation of law and ICE, USCIS and the
State Department are notified automatically that the student/scholar is out of status.
To maintain lawful F-1 status and a valid SEVIS record, F-1 students must
maintain a full course of study, which is defined as a minimum of 12 credit hours per
semester or as certified by the college for postgraduate studies. To maintain lawful J-1
status and a valid SEVIS record, J-1 scholars and students must continue to participate in
all respects in the J-1 program as described in the approved J-1 program description.
The SEVIS system leads to serious immigration issues for F-1s and J-1s as a
result of otherwise mundane events in an academic setting, such as:
a.
Dropping courses below full-time status as defined by the school
b.
Failure to register on time
c.
Withdrawal
d.
Leave of Absence
The introduction of SEVIS caused a sea change in campus climate and culture
around immigration status for students and scholars. International services staff on
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campus, who formerly were in the role of advisors and guides for international students
and scholars, now play a role in the SEVIS government oversight and enforcement
structure for students and scholars.
IMPORTANT NOTE: The SEVIS Helpdesk is available to assist SEVIS users
with technical issues. But the SEVIS Helpdesk is a computer–oriented helpdesk service
staffed by computer-oriented staff who are not immigration examiners. The SEVIS
Helpdesk should not be relied upon for immigration compliance information.
C.
Documentation for F-1 and J-1 Status
F-1 sponsoring institutions must apply to ICE for approval as SEVIS users. J-1
sponsoring institutions and the descriptions of each J-1 program must be approved by the
State Department. Also, J-1 sponsors must apply to ICE for approval as SEVIS users. F1 and J-1 sponsoring institutions issue immigration documentation created in SEVIS for
to F-1 and J-1 participants. These documents are: I-20 for F-1 status, and DS-2019 for J1 status. See 8 C.F.R. 214.2(m); see Exhibit E, I-20; see Exhibit F, DS-2019 (formerly
IAP-66, before SEVIS)
F-1 and J-1 participants are responsible for obtaining USCIS or State Department
approval of their F-1 or J-1 status, based on the I-20 or DS-2019 issued by the sponsoring
institution.
a.
F-1/J-1 participants who are outside the United States must apply for a
U.S. visa (F-1 or J-1) at a State Department consular post abroad
b.
J-1 participants who already are in the United States in another status may
apply to USCIS for a change of status to J-1. See Exhibit G, I-797 Approval Notice for
Change of Status with Replacement I-94.
c.
F-1 participants who already are in the United States in another status
generally must depart the United States to apply for a U.S. visa (F-1) at a State
Department consular post abroad and then return to the United States in F-1 status.
USCIS and the State Department consider F-1 status to be a “high fraud”
category. Before SEVIS, there was limited monitoring of F-1 students. Unfortunately,
F-1 documentation could be obtained improperly on campus and distributed outside the
campus community for improper purposes. Also, F-1 status was easily obtained through
proper channels by enrollment at a college or university, yet whether the F-1 student
undertook bona fide academic activities generally was not necessarily monitored on
campus or by the government. For example, 9/11 perpetrators entered the United States
in F-1 and M-1 status but were not engaged in bona fide study.
For these reasons, intending F-1 students generally are required to go to a State
Department consular post for examination and security clearance as part of the visa
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application process. Changes of status from B-1/B-2 visitor to F-1 are prohibited, unless
the applicant already went through the consular process and obtained a B-1/B-2 visitor
visa. Applicants for F-1 visas at consular post must establish sufficient ties to their home
country to satisfy consular officers that they intend to return.
Even if an intending student already is in the United States and a change of status to
F-1 is allowed under law, there are important considerations that may weigh in favor of using
consular processing to obtain a visa:
a.
Timing – change of status takes months;
b.
Financial aid - eligibility may be limited to F-1 students;
c.
OPT/CPT – eligibility accrues only in F-1 status; and
d.
Travel – future travel outside the United States will require a visa anyway.
D.
Studies Permitted by Individuals in Other Lawful Status
International students in the United States in other categories lawful status are
allowed to study, including H-1B/H-4, TN, L-1/L-2/L-4, TN, 0-1/0-2 and 0-4 status.
Students in these status categories are allowed to apply for change of status to F-1 status.
Or, perhaps the student can change from B-1/B-2 visitor to one of these other categories
for study. Premium processing is available for change of status to H-1B/H-4, L-1/L-2/L4, TN, R, or O status (but not F-1 or J-1) (for a $1,000 USCIS fee for premium
processing) which alleviates timing concerns usually related to change of status.
Permanent residents (green card holders) also are allowed to study.
Dependents of F-1 students in F-2 status are not allowed to study. If F-2
dependents choose to study, they must obtain F-1 status (through change of status or
consular application).
Study is not permitted for B-1/B-2 visitors, except for short term courses if Visa
Waiver applies or a visa is obtained from a consular post for this purpose (example: 15
hours or less per week of English as a Second Language). See Exhibit H, I-94 for B-1/B2 visitor entry with Visa Waiver (WB).
SEVIS does not apply to internationals studying in any status other than F-1, J-1
or M-1. International students outside SEVIS may study part-time or in a nondegree
programs, as SEVIS compliance requirements do not apply. Campus policies vary
regarding study in status categories other than F-1/J-1, and campus tracking varies for
international students outside SEVIS.
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There is no legal duty to track international students outside SEVIS.
Nevertheless, there are good policy reasons to track all international students on campus,
regardless of their status category:
E.
a.
Travel considerations
b.
Demographic analysis
c.
Response to governmental inquiries regarding international
community
d.
Security concerns related to internationals on campus.
Consular Adjudication of Visa Applications
It is the student’s responsibility to obtain a visa in their passport, with a SEVIS document as
supporting documentation (DS-2019 for J-1, I-20 for F-1). See Exhibit D, Visa. A receipt showing
payment of the $100 SEVIS fee must be presented at a consular post for F-1, J-1 and M-1 visa
applications. See 8 C.F.R. 214.13.
Visas are issued only at U.S. consular posts in the applicant’s home country or in
Canada or Mexico. Travel and timing concerns raised by this requirement vary according to
the student’s or scholar’s home country.
Visa terms vary by country according to reciprocity agreements. Depending on
reciprocity, a visa may be valid for multiple entries to the United States over 10 years or may
be limited to a single entry to the United States within 90 days (this is common for visas
issued to citizens of China).
F.
Employment of F-1 Students
F-1 students are permitted to engage in employment on campus or off campus in
compliance with specific rules and limits. See 8 C.F.R. 214.2(f)(9). F-2 dependents are
not allowed to engage in employment.
On Campus. F-1 students may be employed on campus for up to 20 hours per
week during the semester and full–time during summers and breaks. An employment
authorization document (EAD) is not required for on campus employment. See Exhibit I,
Employment Authorization Document (EAD).
Off Campus.
Optional Practical Training (OPT). F-1 students may be employed off
campus for OPT related to the degree program. OPT is available after successful
completion of one academic year. The student must be in good academic standing. OPT
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is valid for an aggregate of 12 months which may be used during the course of study or
within 14 months after graduation. OPT eligibility must be endorsed on the I-20 by the
international student advisor and the F-1 student must obtain an Employment
Authorization Document (EAD) from USCIS before commencing OPT employment.
Advance planning is required to obtain an EAD as it can take 3-4 months for EAD
applications to be approved by USCIS.
Curricular Practical Training (CPT): F-1 students may be employed off
campus for CPT that is an integral part of the degree program. CPT eligibility must be
endorsed on the I-20. An EAD is not required. There is no limit on the duration of CPT.
Twelve months of full-time CPT applies against (eliminates) OPT.
Other employment. Other types of employment are possible in special cases such as
changed circumstances outside student’s control that qualify as severe economic hardship,
but this is very hard to obtain. An EAD is required, and it can take 3-4 months for EAD
applications to be approved by USCIS.
G.
Employment of J-1 Students and Scholars
Approved J-1 programs can include employment and to that extent, J-1s are
allowed to engage in employment. J-1s are not allowed to engage in any employment
that is not part of the approved J-1 program. See 8 C.F.R. 214.2(j).
J-2 dependents are allowed to engage in employment in any position for any U.S.
employer. 8 CFR 214.2(j)(1)(v)(B). J-2 dependents must obtain an Employment
Authorization Document (EAD) from USCIS before engaging in employment. Again,
advance planning is required to obtain an EAD – it can take 3-4 months for EAD
applications to be approved. IMPORTANT NOTE: To obtain an EAD, J-2 dependents
must certify that their employment is optional and is not necessary to support their
household. This requirement corresponds to a condition of J-1 status to the effect that
the J-1 applicant must have adequate financial support for the entire household without
considering any income that may be derived by J-2 dependents through employment in
the United States.
J-1 students can qualify for up to 18 months of employment for academic training
(AT) during their studies or following completion of their studies. J-1 students
completing their PhD can qualify for up to 36 months of AT if they are pursuing a post
doctoral training program. No EAD is required for AT. AT eligibility is authorized by
the international student advisor’s endorsement on the J-1 student’s DS-2019.
III.
Immigration Compliance for Faculty
Immigration for faculty utilizes employment-based categories such as H-1B, TN,
O and permanent residency, and J-1 status if the J-1 program allows teaching. The
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typical scenario for tenure-track faculty involves H-1B status followed by permanent
residency.
A.
H-1B Status for Specialty Occupation Workers
H-1B is a temporary status available for a maximum of 6 years. Occupations
qualify for H-1B status if a bachelor’s degree or equivalent specific vocational
preparation is a minimum requirement for entry into the profession. See 8 C.F.R.
214.2(h)(1)(ii)(B).
USCIS relies on the resources maintained by the U.S. Department of Labor (not
the particular requirements of a particular employer) to determine whether an occupation
requires a bachelor’s degree or equivalent as a minimum qualification. College and
university faculty positions are eligible for H-1B status, as are IT staff, librarians,
residence life professionals, health educators, and many other professionals on campus.
There are important regulatory requirements for H-1B petitions, including:
a.
Labor condition approval is required from the U.S. Department of Labor.
See 8 C.F.R. 214.2(h)(1)(ii)(B)(1).
b.
The employer must pay the prevailing wage as determined by the U.S.
Department of Labor.
c.
The employer must post a notice with specific information about the
proposed H-1B position, including the offered wage, for ten days in two locations at the
place of work..
d.
The employer must maintain a public access file for 4 years after the
application is filed (or for a shorter time, if the H-1B employment terminates in less than
4 years) which documents the basis for the H-1B petition and is available to the public
upon request.
e.
The employer must make specific attestations about the state of the labor
market and certify that employing an H-1B worker will not displace U.S. workers.
See 22 C.F.R. Part 655.
One well publicized challenge related to H-1B status is that the number of H-1B
approvals is limited to 65,000 each year (the so-called “H-1B cap”) plus 20,000
additional approvals for beneficiaries holding at least a masters degree from a U.S.
institution. IMPORTANT NOTE: Colleges and universities, and affiliated nonprofits,
are exempt from the H-1B cap, so the H-1B cap is not an issue for college and university
employers.
H-1B approvals take about 5 months at USCIS, which presents a challenge for
employers seeking to start a new employee within the customary 2 to 4 weeks after hire.
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Premium processing is available for H-1B petitions, but it costs an additional $1,000
USCIS filing fee. With premium processing, an H-1B approval can be obtained in 2 to 6
weeks (6 weeks if USCIS issues a request for evidence and the employer responds
immediately).
There are other costs associated with H-1B petitions, including filing fees of
approximately $690 (subject to change), staff time to prepare the application, and
document preparation fees (in-house) or attorneys fees to prepare the application and
handle compliance steps, all of which can cost an additional $1,500 to $2,500.
IMPORTANT NOTE: There are additional USCIS filing fees for H-1B petitions of $750
or $1,500 for most H-1B employers but colleges and universities are exempt from all but
$690 of the H-1B filing fees.
Campus policies vary on H-1B sponsorship and use of in-house staff or outside
counsel. Some campuses routinely use H-1B status for all types of eligible staff, and
others limit sponsorship to positions that require advanced degrees or tenure track
faculty.
B.
O Status for Extraordinary Ability
O status is a temporary status for workers who have risen to the top of their fields
of endeavor. O status is available for an initial period of three years and then can be
renewed every year indefinitely, but eligibility must be proven anew at each renewal. A
petition for O status requires extensive documentation that the beneficiary is one of a
small percentage who has risen to the top of the field of endeavor, based on statutory
criteria such as awards, original scientific contributions, publications by the beneficiary,
publications by others extolling the importance of the beneficiary’s work, established role
as a peer reviewer for others in the field, and high compensation relative to others in the
field. See 8 C.F.R. 214.2(o).
Eligibility for O status is difficult to establish and requires a high standard of
proof. There are no labor condition, labor certification or prevailing wage requirements
for status. Nevertheless, there are significant timing and cost considerations. Approval
of an O petition takes approximately 5 months under normal processing at USCIS.
Premium processing is available (with an $1,000 USCIS filing fee for premium
processing). Most importantly, it takes a significant amount of time and effort to
assemble the required documentation for a successful O petition, and document
preparation fees (in-house) or attorneys fees can be substantial ($2,000 to $5,000 is not
unusual).
C.
TN Status for Canadians under NAFTA
TN is a temporary status available under the North American Free Trade
Agreement (NAFTA) for citizens of Canada and Mexico in certain professions listed in
NAFTA, including college and university teachers. See North American Free Trade
Agreement, Annex 1603, Section D; 8 C.F.R. 214.2(b)(4). For Canadians, TN status can
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be obtained at a U.S. port of entry upon presentation of a letter from the employer
establishing a qualifying offer of employment along with documentation that the
employee meets the qualifications for the position (degrees or certificates and applicable
licenses). IMPORTANT NOTE: TN status is not available for clinical physicians, so it
is of limited utility for faculty at academic medical centers (H-1B is useful for those
cases).
TN approvals are issued for only one year, renewable each year
The process for obtaining TN approvals for citizens of Mexico is less favorable
than for citizens of Canada, and port of entry adjudication is not available. It generally
makes more sense to apply for H-1B status for a citizen of Mexico, to avoid renewing TN
status every year. If necessary, a citizen of Mexico can change from H-1B status to TN
status after using all 6 years of H-1B status if permanent residency was not obtained
during the H-1B employment.
D.
Permanent Residency, Labor Certification
Permanent residents hold a “green card”. Permanent residents can live and work
in the United States indefinitely. See Exhibit J, I-551 Alien Registration Card (“green
card”). To support an employment-based permanent residency petition, the
employment must be full-time and permanent, meaning a position that exists permanently
in the hiring department and is not subject to grant renewals.
Labor certification is required for most permanent residency cases. See 20 C.F.R.
Part 656. Labor certification is obtained from the U.S. Department of Labor through an
automated application process (known as PERM). See 20 C.F.R. 656.17. Machinereadable PERM applications are subject to audit of the underlying compliance
documentation by the U.S. Department of Labor. See 20 C.F.R. 656.20. Employers are
required to create and maintain a complete file of supporting documentation for every
PERM case.
To obtain labor certification, the employer must pay the prevailing wage
requirement as determined by the state labor department and approved by the U.S.
Department of Labor. The employer also must test the labor market within 6 months
before filing the labor certification application to establish there is no minimally qualified
U.S. applicant ready and willing to take the job.
The test of the labor market for PERM labor certification applications must meet
detailed requirements, including:
a.
Newspaper advertisement in print (two Sundays)
b.
A print journal advertisement can take the place of one Sunday newspaper
advertisement for professional positions
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c.
Position must be posted on employer web site if that is customary
d.
Three other recruitment steps are required (such as local or ethnic
newspaper, job search web site, job fair, employment service or recruiter).
See 20 C.F.R. 656.17. IMPORTANT NOTE: PERM does not allow employer to rely
upon electronic advertising in lieu of print advertisements in newspapers or journals.
Sponsorship for permanent residency is employer-specific, but once it is approved
the permanent resident is not tied to sponsoring employer. This is a significant
consideration for employers who want to retain sponsored employees long-term. The
sponsored employee can leave the sponsoring employer at a specific point during the
application process (180 days after filing of I-485 adjustment application) or anytime
after approval, and can take other employment in the same occupational classification
without losing the benefits of the sponsoring employer’s immigrant petition. Also,
beginning at a specific point during the application process (upon issuance of an
Employment Authorization Document or EAD), the employee can work for any other
U.S. employer in addition to the sponsoring employer (“moonlighting”) without
jeopardizing the permanent residency sponsorship.
D.
Special Handling Labor Certification for Teaching Faculty
Good news! There is a more favorable labor certification process for college and
university classroom teachers only. Colleges and universities can sponsor faculty for
permanent residency and rely on a competitive recruitment conducted in the past (the
recruitment can be more than six months old). See 20 C.F.R. 656.18.
Under so-called “Special Handling Labor Certification” for college and university
teachers, colleges and universities also can select the “most qualified” candidate for a
faculty position, rather than showing there is no minimally qualified U.S. candidate.
To qualify for Special Handling Labor Certification, the college or university
must file the labor certification application within 18 months after the teacher was
“selected”, to be eligible to obtain labor certification based on the prior competitive
recruitment. Otherwise, the college or university must test the labor market again with a
competitive recruitment that meets the employer’s usual standards (not a full blown
PERM recruitment) within 6 months before a labor certification application is filed.
E.
Current Challenges in Permanent Residency Application Process:
Visa retrogression See Exhibit K, Visa Bulletin for April 2007 (issued monthly by
State Department).
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“Visa retrogression” refers to a lack of availability of visas under numerical limits
imposed under U.S. immigration law. In other words, the visas in certain categories have
run out and are not available until a future date.
If a visa category is subject to retrogression, the employer can file the I-140
Petition for Immigrant Worker, and the I-140 Petition can be approved, but the
beneficiary/employee cannot file an I-485 Application for Adjustment of Status until a
visa is immediately available for the case.
Whether a visa category is retrogressed, and if so, at what future date a visa will
become available, varies by country of birth because numerical limits on U.S. visas vary
by country of birth.
To navigate visa retrogression, look for the visa preference category for which a
visa is immediately available and the applicant is most readily eligible. Employmentbased preferences 1, 2 and 3 (EB-1, EB-2 and EB-3) are the most commonly used by
colleges and universities. See U.S. Immigration and Nationality Act, Section 203(b) (13), codified at 8 U.S.C. 1153(b)(1-3).
a.
EB-3: Employment Based Third Preference –Skilled Workers,
Professional and Others (retrogression applies to all applicants as of April 2007;
see chart in Visa Bulletin, Exhibit K)
i.
ii.
iii.
iv.
Labor certification required
Skilled workers – 2 years of training or experience
Professionals – BA or equivalent required
Other workers – less than 2 years of training or experience
OR, if not:
b.
EB-2: Employment Based Second Preference (EB-2) (retrogression
applies to citizens of India and China as of April 2007; see chart in Visa Bulletin,
Exhibit K)
i.
Labor Certification required (including special handling labor
certification for college and university classroom teachers)
ii.
Advanced Degree Professionals (MA or BA plus 5 yrs of
progressive experience)
iii.
Workers of Exceptional Ability (3 of 6 statutory criteria)
OR, if not:
c.
EB-1: Employment Based First Preference – Priority Workers (no
retrogression as of April 2007; see chart in Visa Bulletin, Exhibit K)
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i.
No labor certification required but requires extensive
documentation of eligibility.
ii.
Workers of extraordinary ability (similar to O-1 standard,
discussed above, but subject to a more stringent standard of proof)
iii.
Outstanding professors and researchers (3 years plus 2 of 6
statutory criteria)
There are other employment based visa categories for clergy, investors, Iraqi and Afghani
translators and for employment in designated high unemployment areas, but these
categories are not commonly used by colleges and universities. See chart in Visa Bulletin,
Exhibit K.
Security Checks
All immigrant applications at USCIS and all visa applications at State Department
consular posts now are subject to security checks, which can take time. Delays can be
substantial (weeks or months in some cases), especially for countries subject to the
National Security Entry-Exit Registration System (NSEERS): Afghanistan, Algeria,
Bangladesh, Bahrain, Egypt, Eritrea, Indonesia, Iran, Jordan, Kuwait, Lebanon, Libya,
Morocco, North Korea, Oman, Pakistan, Qatar, Saudi Arabia, Somalia, Sudan, Syria,
Tunisia, United Arab Emirates and Yemen.
The time required for security checks, and the relative risk of a long security
check for a particular applicant, is a significant consideration in planning travel, visa
applications at consular posts abroad, and potential timing for permanent residency
applications. IMPORTANT NOTE: When a visa applicant applies for a visa at a U.S.
consular post, the applicant cannot return to the United States until the visa is approve,
even in the applicant has another approved U.S. immigration status and travel
documentation. See State Department’s Foreign Affairs Manual (FAM), 9 FAM 41.112,
Notes 4.2 , 4.3. The risk of a visa delay due to security clearance is a significant concern
when making travel plans and weighing the advisability of travel outside the United
States that will require a visa application at a U.S. consular post abroad.
IV.
Volunteering
The ability of internationals to “volunteer” in the United States is a common topic
of discussion. Internationals only are allowed to provide volunteer services in roles that
typically are provided by volunteers and for which U.S. workers are not paid. For
example, if U.S. volunteers commonly read childrens books aloud at a library story hour,
an international can read childrens books aloud at the library story hour. However, if
other people are paid for the services, an international cannot provide the services as a
“volunteer.” For example, librarians usually are paid and therefore internationals cannot
“volunteer” as a librarian. U.S. immigration law and employment law protect all workers
(U.S. citizens and internationals) from being exploited by working for no pay or for
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wages that are below the minimum wage. Employers who allow internationals to
“volunteer” in a position for which U.S. workers are paid risk both a wage and hour
violation under state law and an immigration violation under federal law.
V.
Social Security Numbers
Under current U.S. Social Security Administration polices and practices, social
security numbers (SSNs) only are available to U.S. citizens and internationals who are
authorized for employment. Students are not eligible for SSNs unless they are employed
or have an EAD for OPT. Students do not need an SSN to open a bank account, as banks
can open an account based on the student’s passport rather than an SSN.
Employees can start work while an application for an SSN is pending. Employees
must apply for an SSN within 3 days after commencing employment. While the SSN
application is pending, the employer can enter a fictional (dummy) social security
number as a placeholder in the payroll system. When the actual social security number is
issued, the employer replaces the dummy number with the actual number. The actual
social security number must be used for year end reporting.
VI.
Selected Best Practices and Policies
I-9 Processes
Each campus should have one office preparing I-9s in a centralized manner, with
trained staff familiar enough with immigration requirements to identify issues.
Immigration issues can be discovered when the I-9 is completed, which is the express
purpose of the I-9 process. Immigration problems that should be discovered when an I-9
is completed may go unnoticed until later (and become a larger problem) if the I-9 officer
is not familiar with immigration requirements.
Good lines of communication should be established between the I-9 officer and
the international office to identify and resolve immigration issues efficiently and
effectively.
Respect for Campus Culture
Variations among immigration policies and practices at individual campuses flow
naturally from varying approaches and circumstances at each institution. To foster
understanding and predictability and to enhance leadership support at all levels,
immigration policies and practices should be in line with campus culture, not more strict
or more permissive than the institutional environment in general.
Institutional Representation for Immigration
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If an immigration application is employment-based, the employer is the petitioner
and the immigration attorney is deemed to represent the sponsoring institution/employer.
If the immigration attorney is selected and paid by the employee, the institution needs to
monitor institutional compliance with immigration laws throughout the process.
Campus Structure Immigration Services
The administrative structure responsible for immigration compliance on campus
varies widely among campuses. There are advantages and disadvantages of various
structures for immigration services:
a.
All immigration can be part of Human Resources, General
Counsel, Student Affairs or Academic Affairs;
b.
Immigration for faculty, staff and students can be part of different
offices, for example:
i.
Faculty immigration as part of Academic Affairs;
ii.
Student immigration as part of Student Affairs; and
iii.
Staff immigration as part of Human Resources; or
c.
Immigration can be combined with all other International issues
(study abroad, international campus locations) under Academic Affairs; or
d.
Immigration functions can be housed in other structures that make
sense on a particular campus.
Campus Working Group for Immigration Services
The college or university’s International Services Advisor, General Counsel, and
Immigration Counsel, and either Human Resources (for employee immigration) or
Student Affairs (for student immigration) each have an important role in immigration
matters, particularly in setting policy and dealing with problem cases. To foster
efficiency, legal compliance and institutional harmony, each campus should identify an
immigration team including representatives of each of these campus constituents, to
guide or set immigration policy and handle problem immigration cases.
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EXHIBITS
A
DHS Organizational Chart
B
I-797 Approval Notice issued by USCIS
C
I-94 issued by CBP at Port of Entry
D
Visa
E
I-20
F
DS-2019
G
I-797 Approval Notice for Change of Status with Replacement I-94
H
I-94 for B-1/B-2 Visitor Entry with Visa Waiver (WB)
I
Employment Authorization Document (EAD)
J
I-551 Alien Registration Card (green card)
K
Visa Bulletin for April 2007
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Exhibit A
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Exhibit B
I-797 Approval Notice issued by USCIS
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Exhibit C
I-94 Issued by CBP at Port of Entry
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Exhibit D
U.S. Visa
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Exhibit E
I-20
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Exhibit F
DS-2019
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Exhibit G
I-797 Approval Notice for Change of Status with Replacement I-94
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Exhibit H
I-94 for B-1/B-2 Visitor Entry with Visa Waiver (WB)
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Exhibit I
Employment Authorization Document (EAD)
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Exhibit J
I-551 Alien Registration Card
(Green Card)
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Exhibit K
Visa Bulletin for April 2007
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