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 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) 2-year 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 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 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 non-academic 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 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. F-1 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 J-1 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 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/L-4, 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/B-2 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.
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:
a.Travel considerations
b.Demographic analysis
c.Response to governmental inquiries regarding international community
d.Security concerns related to internationals on campus.
E.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 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 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: