Abstract
The volatile and fluid nature of ongoing changes makes it more difficult than ever for higher education institutions to stay in compliance with the immigration laws impacting international students, faculty, and staff. That's according to immigration law expert Christian G.A. Zeller, Esq., Managing Partner at Maney Gordon Zeller, P.A., who shared his expertise in a webinar hosted by Stetson University's Center for Excellence in Higher Education Law and Policy. The COVID‐19 pandemic disrupted immigration and visa processes, while recent travel bans, entry requirements, and the presidential election continue to complicate this area of law and federal policy.
Consider COVID‐19‐related rules
When managing immigration issues involving foreign students, faculty, and staff, you must first distinguish between COVID‐19‐related travel restrictions and immigration‐related travel restrictions, Zeller advised.
Foreign students, faculty, or staff members who have been in any of the following restricted countries within the past 14 days can't travel to a U.S. campus, regardless of their visa status:
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The People's Republic of China.
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Iran.
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The Schengen States (Austria, Belgium, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Holland, Hungary, Iceland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Norway, Poland, Portugal, Slovakia, Slovenia, Spain, Sweden, and Switzerland).
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The United Kingdom.
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Ireland.
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Brazil.
One way around this is to quarantine in a non‐restricted country before traveling to the United States, Zeller advised. (But first check https://bit.ly/3mLtgcK to determine the requirements to enter certain countries.) The 14‐day travel restrictions don't apply to U.S. citizens and legal permanent residents (individuals with green cards) and their families.
Consider immigration‐related rules
The April 22, 2020, presidential proclamation suspended entry of immigrants (individuals with green cards) who represent a risk to the U.S. labor market during the economic recovery, Zeller noted. However, this doesn't apply to:
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Individuals who already hold an immigrant visa.
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Health care workers.
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EB‐5 investors.
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Spouses and offspring of U.S. citizens and armed forces members.
The June 24, 2020, proclamation restricts nonimmigrants in certain visa categories, including:
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H‐1B (specialty occupation visa; held by many international researchers and professors).
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H‐2B (for temporary and seasonal workers).
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L‐1A and L‐1B (for intercompany transferees).
However, others can seek waivers of these travel restrictions, Zeller noted, by applying for national interest exception waivers, and most individuals working in academia will qualify under the category of immediate and continued economic recovery.
To help institutions compile a successful application for NIE waivers for their candidates, Zeller recommended the following key steps:
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Time it right. Remember, the application must be filed within 30 days of the individual's proposed travel. Also keep in mind that although U.S. embassies and consulates are reopening and commencing routine visa processing, reopenings aren't uniform, so you'll want to contact the particular post to find out what's available.
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Consider making the F‐1 and/or E‐2/EB‐5 arguments. Because foreign national students fall within the purview of the NIE and qualify for F‐1 visas, foreign national faculty should also qualify for the NIE. Your candidates should also qualify for NIE waivers based on the Treaty Investor (E‐2) visa, designated for individuals who buy a business that creates jobs, or the EB‐5 Immigrant Investor visa, designated for individuals who invest between $900,000 and $1.8 million and create 10 jobs. Because most higher education institutions have invested more than $900,000 and have created more than 10 jobs, “to make this argument is a very healthy one and a very effective one,” Zeller said.
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Show that your institution exists. Tell them about your institution, including location, mission, and purpose.
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Emphasize the essential nature of your candidate's job. Explain how it directly or indirectly impacts economic recovery. Describe what would happen if you can't bring this candidate to your U.S. campus (e.g., class cancellations, adverse impacts on finances and/or students). Keep in mind that each consular officer must consider the Buy American and Hire American Presidential Executive Order in their decision‐making, so emphasize what your candidate will contribute to that initiative.
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Brag about your candidate's impact and contribution. Include supporting and biographical documentation so the consular office who doesn't know you or your candidate will have a clear picture of your candidate.
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Be specific. The determination about whether your candidate will be approved for the NIE will be made by an unknown consular officer at a U.S. post overseas. That consular officer doesn't know you or what you, your institution, or your candidate does, so speak to them in detailed ways that they'll understand.
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Prepare your candidates. Familiarize your candidates with the contents of the application you submit on their behalf; otherwise, their lack of knowledge could lead to an unfavorable decision.
Know how to handle F‐1 travel restrictions
International students with F‐1 visas are subject to COVID‐19‐related travel restrictions but they're not subject to immigration restrictions, which is good news for international students, Zeller noted. Existing visa holders can travel, unless there are travel restrictions, and visa renewals also remain unchanged, he added. However, if institutions offer only online programs, that would likely prevent issuance of a new student visa (unless the institution offers a hybrid model), he said.
For F‐1 students who have graduated and want to obtain their optional practical training, known as OPT, or science, technology, engineering and math OPT extension before pursuing their graduate degree or starting work, the allowable unemployment period has been extended as long as they can show they're looking for work, Zeller noted. If they've properly applied for their OPT to work and received an approval notice, then they're allowed to work even though they haven't received their actual employment authorization document card, or EAD, he added.
For more guidance about international students, Zeller recommended visiting https://bit.ly/3mPYHmd.
Review other visa restrictions
Zeller noted other key points about visa restrictions:
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Canadians who don't need a visa (i.e., in categories H or J) are excluded from the presidential proclamations.
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Candidates who don't have a visa but have a valid I‐94 that allows them to remain in the United States can get an automatic I‐94 revalidation by traveling to a contiguous territory (e.g., Canada, Mexico, and some Caribbean islands), but they must have a valid I‐94 at the time they leave the country and must apply to reenter in the same classification, as long as they can show they haven't been outside the country for more than 30 days.
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Candidates can change their status stateside, as long as they beware of preconceived intent (e.g., a candidate comes into the country on a B‐2 visitor's visa and then in less than 90 days decides to change that to an H‐1B because she has a job offer as a researcher at a university).
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Institutions can't “furlough” H‐1B visa holders unless the institution continues to pay them the same as if they were working. Any wage reduction requires a refiling of the entire H‐1B visa.
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When allowing faculty/staff to work from home, make sure the institution knows the location of that home and that it's in the same metropolitan statistical area in which the candidate completed her labor condition application. Otherwise, you'll need to amend the labor condition application. Amendment is also needed if the candidate switches from full‐time to part‐time work.
For more information, email Zeller at c.zeller@maneygordon.com, or visit www.immigrationhelpchannel.com to watch videos about the latest news on immigration law.
*Due to the frequently changing nature of this area of the law, all information is subject to change but was accurate at the time of this writing in early October 2020.
About the author.
Claudine McCarthy is Co‐Editor of Campus Legal Advisor, a monthly publication also published by Wiley. For more information about that publication, please go to www.wileyonlinelibrary.com/journal/cala.
Review Q&As about student, staff immigration issues.
Immigration law expert Christian G.A. Zeller, Esq., Managing Partner at Maney Gordon Zeller, P.A., answered some questions during a webinar hosted by Stetson University's Center for Excellence in Higher Education Law and Policy. The following is an excerpt of that Q&A session, edited for space and clarity.
Q: What are some of the most common, easily avoidable mistakes that institutions make regarding staff/student immigration issues?
A: Last‐minute issues and poor planning. Visa applications can be filed 180 days prior to the expiration date, so as soon as you have the opportunity, go ahead and do it.
Another problem is not being specific enough. It's very typical to receive a request for additional evidence, and that causes so much grief. Be as specific as possible on the application (e.g., what your candidate does).
Q: What steps can campuses take to cover the necessary bases for compliance?
A: Reach out and establish a relationship with an immigration attorney in advance, even if it's just for a few questions, because right now things are so volatile and fluid, changing so quickly, that your general counsel might not be aware of all of the latest issues.