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Immigration Law : Issues for Faculty and Staff, 2007 Update

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Immigration Law : Issues for Faculty and Staff, 2007 Update Immigration Law: Faculty and Staff Issues 2007 UPDATE MARK B. RHOADS HELEN L. KONRAD National Association of College and University Attorneys PUBLICATION SERIES Mark B. Rhoads is a Partner in the Immigration Practice Group at the law firm of McCandlish Holton. He provides immigration advice and visa processing services to universities hiring international personnel, including researchers, professors, and university professional staff and advises on foreign student issues. Mr. Rhoads has extensive exper- tise in all temporary visa and permanent resident categories specific to university settings and regularly lectures across the country on immigration and employment law topics to attorneys, and business and university groups. In addition, he brings to his immigration practice a broad employment law background. Mr. Rhoads is a graduate of The College of William & Mary in Virginia and received his law degree from the University of Richmond in 1985, where he was an associate editor of the Law Review. He is co-author of A Practical Guide to Employment-Based Immigration, published in the Washington & Lee Law School Race & Ethnic Ancestry Law Digest (Vol. 3, 1997), and is a member of the American Immigration Lawyers Association. Helen L. Konrad is a Partner in the Immigration Practice Group of McCandlish Holton. Her practice focuses on advising universities and employers across the United States regarding immigration options for professional and highly skilled employees, including professors, researchers, physicians, and others. Ms. Konrad provides critical expertise specific to J visas, including J-1 Waivers. She also regularly speaks on immigration issues to business and university groups all over the U.S., including NACUA, the National Association of Student Employment Administrators, and the National Association of Colleges and Employers. Ms. Konrad received a B.A. from Hamilton College in 1984, an M.B.A. from New York University in 1988, and a J.D. with honors from Washington and Lee University in 1991. She is co-author of A Practical Guide to Employment-Based Immigration, published in the Washington & Lee Law School Race & Ethnic Ancestry Law Digest (Vol. 3, 1997), and is also an active member of the American Immigration Lawyers Association. This is one of a series of publications from NACUA, an organization whose mission is to advance the effective practice of higher education attorneys for the benefit of the colleges and universities they serve. The views expressed herein are to be attributed to the authors and not to the National Association of College and University Attorneys. This publication is intended for general informational purposes only, and does not constitute legal advice. An attorney should be consulted regarding the specific facts and circumstances associated with any legal matter or case. Copyright © 2007 National Association of College and University Attorneys One Dupont Circle, Suite 620, Washington, DC 20036 Printed in the United States of America All URLs and links are current as of June 2007. Immigration Law: Faculty and Staff Issues olleges and universities increasingly rely on talented international personnel to fill faculty, research, and staff positions. This monograph is designed to assist higher education attorneys and administrators understand some of the basic Cissues and options for employing foreign nationals, including both short- and long-term employment options. Student immigration issues are discussed only as they relate to employment of foreign students at the institution. Basic terms and definitions pertaining to immigration are described below. Following that, Section I discusses the types of non-immigrant (temporary) visas commonly held by individuals employed at U.S. colleges and universities; Section II summarizes the processes by which such workers may seek permanent residency in the U.S.; and Section III addresses some issues regarding the employment of unauthorized aliens. Although citations are provided for general reference, this monograph cannot pro- vide an exhaustive treatment of all immigration issues; therefore, additional research or consultation with an immigration expert should be undertaken prior to making any final decisions regarding the employment of foreign nationals. Basic Terms and Definitions1 Before reviewing the specific rules governing the employment of foreign nationals (or “aliens”) in the United States, a brief overview of immigration terms, and the govern- mental agencies charged with enforcing immigration laws, may be useful. An “alien” for immigration purposes is defined generally as any individual in the U.S. who is not a U.S. citizen or permanent resident. Legal aliens in the U.S. can be divided into two basic groups: “immigrants” and “non-immigrants.” An immigrant is an individual who is permitted to reside permanently in the U.S. A non-immigrant is an individual who is permitted to enter the U.S. for a temporary period of time (which, depending on the visa status, can range from a few months to seven years or more) and for a specific purpose. Entering the U.S. as an immigrant involves a lengthy and time- consuming process, often taking many months or years for those who qualify. As a result, most aliens who come to the U.S. for business, employment, or tourism enter initially as “non-immigrants” on temporary non-immigrant visas. There are more than 20 non- immigrant visa categories, each with specific rules regarding the length of stay and the activities the alien may undertake while in the U.S. As a general rule, an alien applying for a non-immigrant visa must establish that he or she has a permanent residence abroad to which he or she intends to return. This is called “non-immigrant intent.”2 1. A general glossary of some of the terms used throughout this pamphlet can be found on page 31. 2. One common non-immigrant visa for university faculty and researchers, called the H-1B visa, is an exception to the rule requiring non-immigrant intent. This visa is discussed in detail beginning on page 6. 1 The admission of aliens into the United States is governed by two different depart- ments of the U.S. government: the Department of Homeland Security (DHS) and the Department of State (DOS). The Department of Homeland Security assumed all functions of the former Immigration and Naturalization Service as of March 1, 2003. Within the DHS, the U.S. Citizenship and Immigration Services (CIS) reviews petitions and applications requesting immigration benefits from individuals and organizations within the U.S., and determines whether a particular visa status is appropriate for an individual. DHS officers also interview applicants at ports of entry into the U.S. (airports, land borders, or seaports) to determine whether to admit them and how long they may remain. The Department of State, through U.S. Consulates outside the U.S., reviews appli- cations for visas from individuals who wish to enter the U.S. For some types of non- immigrant status, such as H-1B and O, an individual must have approval from CIS before applying at a U.S. Consulate for a visa. For other types, such as B, F-1, or J-1, it is possible for an individual to apply directly at a U.S. Consulate for a visa, without first applying to CIS. To understand how these two Departments work together, one must know the difference between a “visa” and an “immigration status.” A visa is issued by a U.S. Consulate and is physically placed into the holder’s passport. It enables an alien to apply to a Department of Homeland Security official at a port of entry for admission to the U.S. A visa includes a photograph of the holder, and also identifies the visa status of the person entering (i.e., B-1, H-1B, etc.) and the duration of the visa status. In most cases, an alien must have a visa to enter the U.S.3 A person’s immigration status in the U.S. is conferred by a DHS official upon the alien’s entry into the U.S., and is evidenced by a Form I-94 (Admission/Departure record). This form (a card that usually is stapled into the individual’s passport) indicates the date of entry, the holder’s name, country of citizenship, date of birth, the status in which the per- son was admitted, and the dates during which the individual is authorized to remain in the U.S. If the person extends his or her status, or changes to another visa status, while in the U.S., he or she will receive a new I-94 document from CIS. If an application to change or extend a visa status is filed in the U.S. before the person’s current status expires, he or she does not have to travel outside the U.S. to obtain the new visa. The new I-94 issued by the CIS will authorize the person to remain lawfully in the U.S. The I-94 will indicate that he or she is authorized to be in the country and to engage in whatever specific activities are allowed for his or her particular status, even if the visa used to enter the U.S. has expired. 3. There are some exceptions. For example, Canadians are exempt from this requirement in most situations. Also, under the “visa waiver” program, citizens of about 20 countries with a low incidence of visa fraud and abuse are permitted to enter the U.S. as visitors for business or pleasure for 90 days without first obtaining a visa. 8 C.F.R. § 217.1 - 217.2. 2 I. Non-Immigrant Visas TYPES OF NON-IMMIGRANT CATEGORIES TYPICALLY USED BY FACULTY AND STAFF There are a variety of non-immigrant categories, ranging through the letters of the alphabet from A (an ambassador or diplomatic official) to V (a spouse or child of a lawful permanent resident of the United States who applied for an immigration benefit before a certain date).
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