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WHY IMMIGRATION MATTERS

  • Foreign students earn approximately one-third of all doctoral degrees awarded in the United States in the sciences and engineering.
  • In some fields, electrical engineering, their proportion is considerably higher.
  • National Science Foundation, Division of Science Resource Statistics (NSF, SRS), Science and Engineering Indicators 2004 ( ), Figure 2-23, "Foreign student share of S&E degrees, by degree level and field: 2000 or 2001, available at.
  • National Science Foundation, Division of Science Resources Statistics, Science and Engineering Doctorate Awards: 2001. NSF 03-300. Arlington, VA, available at.
  • The imbalance is also striking, if not quite as pronounced, at the master’s degree level, where foreign students represent more than a third of master’s degrees awarded in the computer sciences, and engineering.
  • National Science Foundation, Division of Science Resource Statistics, Science and Engineering Indicators 2004, Appendix Table 2-25, "Earned master’s degrees, by field, race/ethnicity, and citizenship: Selected years, 1977-2000,"available at.
  • The result of this imbalance is obvious: U.S. academic and research institutions draw disproportionately on noncitizens to fill critical academic and research positions.

Reality: PI can obtain an H-1 working visa a foreign PhD/MD with 5 yr post doc experience for slightly more salary than a cook at In & Out Burgers

WHY YOUR OFFICE?

  • A PI may address his personnel needs to the research administrative office as the hiring of a foreign scholar will require disbursement of funds
  • For salary
  • For costs and government fees
  • Often involves involvement of the institution beyond the usual job offer
  • Reluctance of PI’s to contact HR department

HIRING OUTSIDE COUNSEL

While every institution is unique and many have decentralized services, to the extent feasible you should strongly encourage counsel to:

  • Centralize immigration functions and limit who can sign petitions;
  • Those signatures involve legal responsibilities; and
  • Individual department heads should not be committing their institution to visa sponsorship without some oversight by the international office and/or counsel’s office.

Tasoff & Tasoff recommends:

  • A quality assurance immigration law compliance plan for the university or institution. The plan should include provisions for a team of professionals on campus who deal with immigration issues and interact regularly to discuss compliance, training of those individuals, and periodic internal compliance audits (e.g., annual reviews). While 100 percent compliance may be unattainable, especially for a large decentralized organization, the minimum goal should be "good faith/reasonable" compliance. Potential team members include the legal office human resources, research administration, foreign student office, and the J-1 designated official.
  • An immigration "gatekeeper" who reviews all of the intitution’s immigration petitions and supporting documents for accuracy and immigration law compliance. This gatekeeper should have sufficient institutional authority and resources to maintain a sound compliance program.
  • The gatekeeper must also keep track of changes in immigration laws and procedures, and communicate them to the relevant officials on campus.
  • The gatekeeper or some other appointed department must keep copies of all documentation including those documents that are required to be maintained under DOL and DHS regulations.

The quality assurance team (or other designated official) for each institution must decide which types of immigration applications or petitions should be prepared in-house and which are best handled by outside counsel.

Tasoff & Tasoff recommends that when outside counsel is retained that:

  • Outside counsel is limited and that the “gatekeeper” coordinates with all outside counsel to maintain a coherent data set and procedure to be used by all parties;
  • A small institution have one or two outside counsel; and
  • Large institutions have a maximum of three law firms.

At some institutions, talented and well-meaning foreign scholar advisers, or human resources managers may be offering advice on visa issues beyond the basic employment-based petitions (marriage cases, dependents, etc.), while at other institutions, busy international offices might be looking for ways to outsource some petitions to help manage their workload.

In addition to institutional considerations of workload and cost, federal and state law govern those types of applications that are the employer’s responsibility. By analogy to the income tax area, certain forms are the institution’s responsibility, such as the W-2, W-3, 940, 1120, etc., while others are personal forms, such as the W-4 and 1040. By following a legal responsibility test such as this in the immigration context, the institution can create a bright line rule. The legal responsibility test reduces the risk of personal and institutional civil and criminal liability for noncompliance with federal laws and regulations. This test also minimizes the risk of "unauthorized practice of law" under state and federal statutes.

Centralized, clear guidance and review preserves the institution’s reputation with federal agencies involved in immigration. In at least one case of which we are aware, an interested government agency (IGA) called an institution to ask about an application for a J waiver, and the international office and counsel’s office had no knowledge of the application. A department head at the university’s medical school signed it. This type of interaction can hurt the institution’s credibility, and ability to have applications approved in the future. Establishment of a single immigration gatekeeper can help avoid this type of problem.

Tasoff & Tasoff suggests:

  • That institutions are best served by adopting a policy of not preparing immigration petitions or applications that are not the legal responsibility of the institution. Helping faculty, staff, or students with forms such as the I-485s, I-539s, DS-156s, and others that are the legal responsibility of the individual may cause the institution to incur some liability if the process is not done in complete compliance with all legal rules.

The point of this discussion is not to set strict rules for what services an institution should handle, but rather to make sure that these are informed decisions, and that the institution’s counsel are aware of the potential risks. The institutions’ counsel can then engage in legal risk assessment, which is their main function.

Note that if the institution does choose to provide assistance on individual applications, the school must then assume the responsibility of looking out for grounds of denial of the visa. Also, the institution may not want to know about someone’s criminal or medical background, and there may be serious conflict of interest questions that arise. A review of the types of issues that must be considered on any individual application will help to clarify the scope of responsibility entailed with preparing those applications for beneficiaries.

HIRING TASOFF & TASOFF AS OUTSIDE COUNSEL

Tasoff and Tasoff has practiced in the field of immigration and nationality law for over 60 years. The firm has reprehensive clients throughout the United States. The attorneys deliver personal service and are easily accessible. Tasoff and Tasoff will help in organizing and streamlining the task of obtaining information from departments and aliens to advise the institution and to prepare the applications. The attorneys spend considerable in advising institutions often without additional charges. The firm’s website and client portal provides institutional staff with information on all foreign employees and the progress of each immigrant application. Check out our credentials on

SHOULD THE UNIVERSITY PAY FOR VISA PETITIONS/APPLICATIONS?

An employer should establish a policy not only for what applications will be sponsored, but for those the institution will pay for. Paying for visa costs may be a marketing tool for attracting top faculty or staff. Two legal issues that arise are compliance with LCA rules on authorized deductions and liquidated damages clauses.

The Department of Labor regulations at 20 C.F.R. §655.731(c) describe the wage requirement for H-1B and PERM. Payment of less than the higher of the actual or prevailing wage is a violation of the labor condition guarantees by the employer in both the non-immigrant and immigrant context.

Specifically, H-1B petition filing fees and attorney fees that are "connected to the performance of H-1B program functions that are required to be performed by the employer" are considered by the DOL to constitute "employer business expenses." It appears then that if the employee pays the attorney’s fees or filing fees that would be an unauthorized deduction from the wage. 20 CFR §655.731(c)(9).

If that deduction causes the wage received to be less than the actual wage or the prevailing wage, the employer may be liable to DOL investigation, assessments for back pay, civil penalties, and/or disqualification from visa sponsorship.

20 CFR §655.731(c)(8).

Therefore, the policy of payment of fees should be discussed with immigration counsel.

Practice Pointer: Requesting reimbursement of any immigration costs related to the H-1 process is problematic, and the best practice is that the employer should bear all of the legal costs and filing fees to minimize problems with DOL. Also, the institution’s counsel should consider the difficulty of enforcing any provision requiring repayment, and state liquidated damages and contract case law before adding such language to the employment agreement.

SHORT PRIMER ON IMMIGRATION

Five types of people in the US:

  • US citizens
  • Resident aliens (green card)
  • Non-immigrant visitors
  • Here under the color of law such as TPS (Haitians)
  • Illegals

I. NON-IMMIGRANTS

  • There are limited ways in which a person can gain admission to the United States.
  • Individuals who come legally to the United States must have been prescreened by a consular officer (an employee of the Department of States who works at an overseas office of the Department of State referred to as a consulate)
  • Consulate will require fingerprints and background check.
  • Upon approval the alien is issued a travel permit or "visa" that gives them permission to seek admission at the border.
  • The visa, however, does not provide a guarantee that the person will be admitted.
  • Many reasons why a person can be turned away at the border including anti-terrorist screening.

The only nonimmigrant visas that have numerical restrictions are the H, Q-2, and S visas. There are, however, strict numerical limitations on immigrant visas.

It is necessary to understand several important concepts before exploring each of the nonimmigrant visa categories.

  • First immigration statute--the Immigration and Nationality Act (INA) Immigration and Nationality Act of 1952 (INA), Pub. L. No. 82-414, 66 Stat. 163 (codified as amended at 8 USC §§1101 et seq.).--operates under a presumption that all persons coming to the United States (even on nonimmigrant visas) are intending immigrants and wish to remain permanently. This presumption places a heavy burden on the applicant to convince the consular officer that the applicant will depart the United States after completing his or her journey.
  • Second, there are no catch-all nonimmigrant visas; each applicant must establish that he or she qualifies under one of the designated nonimmigrant categories.
  • Third, each category of nonimmigrant visa may be obtained only by individuals who meet that category’s specific criteria, and the individual receiving the visa must comply with all of its requirements for the entire time he or she is in the United States.
  • Fourth, there are usually three to four government departments involved in each application: Dept. of State, Citizenship & Immigration Services, Customs & Border Protection, Department of Labor, and sometimes the Immigration & Customs Enforcement.

These regulations are contained in 8 CFR §214 (regulations governing DHS); 8 CFR §248 (regulations governing change of nonimmigrant classifications); 22 CFR §41 et seq. (regulations governing Department of State (DOS) issuance of nonimmigrant visas).

The nonimmigrant process can be difficult because the rules are not always clear, especially to the extent that the nonimmigrant has to navigate around the grounds of inadmissibility and deportability. Moreover, the individual often is attempting to maintain his or her nonimmigrant status with an eye toward extending his or her stay in the United States. These challenges have been heightened in the wake of the attacks of 9/11, for already-suspicious officials have become increasingly suspicious of noncitizens.

The Visa Waiver Program appears at 8 USC §1187, INA §217. Countries presently under the Visa Waiver Program are: Andorra, Australia, Austria, Belgium, Brunei, Denmark, Finland, France, Germany, Iceland, Ireland, Italy, Japan, Liechtenstein, Luxembourg, Monaco, New Zealand, the Netherlands, Norway, Portugal, San Marino, Singapore, Slovenia, Spain, Sweden, Switzerland, and the United Kingdom.

1. Categories of Nonimmigrant Visas

In an effort to place the nonimmigrant visa categories into an easily understood conceptual framework, they have been organized below into six separate categories: (1) tourism; (2) educational; (3) special or family-related; (4) work or business; (5) governmental or quasi-governmental; and (6) miscellaneous. Discussion of some of the categories:

(1) Tourism

B-1. While this visa is for visitors, it is also for those with a business purpose.

8 USC §1101(a)(15)(B), INA §101(a)(15)(B).B-2. The largest of the nonimmigrant visa categories is this one, which is designed for the admission of tourists. In any given year, the United States admits more than 13 million people as tourists. Tourists are defined in the statute as persons coming to the United States for "pleasure."

Visa Waiver Program. Persons from the visa waiver countries need not obtain visas when coming to the United States as tourists or visitors for business; when they arrive, they are inspected and at that time a decision is made as to whether they can be admitted. Countries included in the Visa Waiver Program (VWP) are those with a low rate of visa denial, and have reciprocal arrangements with U.S. visitors. Although visas are unnecessary, the foreign nationals need passports, and there are additional requirements governing acceptable passports. 90 days w/o opportunity to extend or change status. Aliens must also register online and obtain authorization prior to travel to the United States authorization is valid for two years

Example: Foreign scholar will probably be admitted on B-1 to attend conference in the US where he meets you PI who invites to work with him on a project.

Over the years, the visa has expanded to include persons coming for health reasons, participating in amateur athletics, and accompanying U.S. Armed Forces personnel as dependents. The critical factor in qualifying for the visa is that the consular officer must be convinced that the person coming to the United States will not engage in work; is coming for a short period of time with a clear purpose; and unmistakably will depart at the end of the visit.

A person coming under this visa must have a definite plan for his or her trip and the ability to carry it out.

(2) Educational

Attracting foreign students has long been a part of U.S. foreign policy. The revenue that students bring provides benefits to the communities in which they reside, as well as to the institutions that receive their tuition dollars. F-1. This is the most common of the educational study visas and is designed for persons coming to engage in academic study in a full-time program at an approved institution.

One year Optional Practical Training (OPT) and for Science Technology Engineering Math (STEM) additional 17 months.

J-1. This is a broad visa category and it is for a person coming to the United States as a student, researcher, professor, nonacademic specialist, physician, international visitor, camp counselor, au pair, or summer student in a travel/work program. A distinguishing feature of the J-1 visa is that some persons who are admitted under it are subject to a two-year foreign residency requirement before they may change to certain other nonimmigrant visa categories or before they may obtain permanent residency. The two-year foreign residency requirement is triggered where the person’s program was financed in whole or part by the U.S. government, or by the government of the person’s nationality or country of last residence; where the person was engaged in a field that was designated at the time of his or her entry as in short supply or needed in the person’s home country SKILLS LIST; or where the person obtained medical training after January 10, 1977.

(4) Work

H-1B. This classification allows persons who will engage in "specialty occupations," or persons providing service related to the Department of Defense, to come to the United States to engage in work. 8 USC §1101(a)(15)(H)(i)(b), INA §101(a)(15)(H)(i)(b). Unlike most other visa-holders, H-1B nonimmigrants are not prejudiced if they are pursuing permanent residency under one of the immigrant visa categories.

The definition of what is a "specialty occupation" is very expansive and is defined as a position that requires "the theoretical and practical application of a body of highly specialized knowledge" and a bachelor’s or higher degree (or its equivalent) for entry into the field. 8 USC §1101(a)(15)(H)(i)(b), INA §101(a)(15)(H)(i)(b); see also 8 CFR §214.2(h)(4)(ii). In addition to the substantive criteria, the H-1B visa carries an annual quota of 65,000. However, H-1Bs who are sponsored by educational institutions of higher learning or affiliates are neither subject to the numerical cap, nor are required to pay the normal processing fee. 8 USC §1184(g)(5), INA §214(g)(5).

In order to qualify for the H-1B, the U.S. employer must obtain a certification of a labor condition application (LCA) from the Department of Labor (DOL). The application requires the employer to state ("attest") that it will comply with the requirement that: (1) the employer will pay a wage that is no less than the wage paid to similarly qualified workers or, if greater, the prevailing wage for the position in the geographic area; (2) the employer will provide working conditions that will not adversely affect other similarly employed workers; (3) there is no strike or lockout at the place of business; and (4) notice of the DOL filing has been given to the bargaining representative or has been posted at the business. 20 CFR §§655.705(c), (d).

The H-1B nonimmigrant may be admitted for a period of up to three years and extensions generally cannot go beyond a total of six years except under certain circumstances. An H-1B nonimmigrant also may change employers upon the filing of a new application by the prospective employer as long as the H-1B foreign worker was lawfully admitted into the United States and has not worked in the United States without authorization.