Institutional Roles, Responsibilities and Risk Assessment in Immigration Compliance

Helen Konrad, McCandlish Holton Carrie O’Neill, George Washington University

Virginia Underwood, Eastern Kentucky University

SESSION 8H

Session Roadmap

• Review the relationship between university offices in immigration compliance.

• Assess risks – perceived and actual - in immigration compliance: Examples from the trenches.

• Recommend practices for educating core constituencies.

• See handout for additional practical guidance.

Competing Needs and GoalsUniversity offices with a role in immigration compliance:

•Admissions: Direct the admitted international students to the International Services Office for issuance of I-20.•International Services Offices: Track and monitor the status of international students in SEVIS while complying with DOL, State, and DHS regulations.•Provost/Academic Affairs: Manage the hiring and retention of foreign faculty.•HR: Oversee I-9 compliance of students and faculty employed on campus.•Export Control Office: Complete H-1B deemed export certifications.•Career Services: Place students in internships during school and employment after graduation.

Identifying and Assessing the Institutional Risks

• Related to students:

• Unauthorized employment → I-9 violations.

• Reduced course load → ICE/SEVIS violations.

• Volunteer internships → Wage and Hour violations.

Related to Faculty:

• Was search compliant?• Print v. online.• Did selected applicant qualify for position

advertised?

• If not compliant:• Cost of new search.• Potential that applicant is not most qualified.• Risk of losing/not retaining selected faculty.

Identifying and Assessing the Institutional Risks

Related to Staff:

• Basic Labor Certification• Expanded advertising requirements.• “Minimally Qualified” standard.• Cost of new search.

• “Some teaching duties” to get to “most qualified.”

Identifying and Assessing the Institutional Risks

• Position Offered: Director of Housing Information Systems.• Job Requirements: MS Computer Science or related field plus five

years of experience.• Search: Committee recommends former student from India, who

holds Ph.D. plus three years experience at XYZ plus two years experience as interim Director of Housing Information Systems.

• Offer: V.P. Student Affairs sends email offering the permanent position and agrees to proceed to pursue permanent residence “through the fastest option possible.”

• University Policy: Will not sponsor staff for permanent residence or pay for any portion of self-sponsored filings.

Hypothetical Scenario #1: Permanent Residence Promised

Perceived vs. Actual Risks – Roles to Resolve• Is University bound by promise to pursue PR?

• If University agrees to make an exception to sponsor, is it obligated to pursue “fastest option possible”?

• How does difficulty recruiting a position impact decision-making?

• How should exception be viewed in terms of other Departments’ hiring practices?

Hypothetical Scenario #2: On-line Wages vs. PWD “Safe Harbor”

• Department recommends international faculty hire at $80,000.• International Services Office processes H-1B:• 60-90 days to get PW determination;• University policy has always been to obtain PWD;• Likely PW based on job requirements is $65,000;• Start date not likely to be met if wait for PWD;• Will have to pay $1,225 additional fee for premium

processing.

Perceived and Actual Risks – Roles to Resolve

• If file H-1B before PW comes back, risk a potential for back pay.

• If wait to file until PW comes back to eliminate risk of backpay, virtually guarantee additional cost to university through premium processing and alternate faculty arrangements.

• How should these risks be balanced?

• Does it matter that institutions have always done the PWD in the past (can you mix-n-match)?

Hypothetical Scenario #3: Curricular Practical Training – “Integral to Curriculum”

• ABD Ph.D. Student in Statistics comes to International Student Office with offer letter from NIH to “perform research” at no pay;

• Department submits a letter in support explaining how research is related to curriculum;

• Student wants CPT authorization.

Perceived and Actual Risks – Roles to Resolve

• What facts should be considered in assessing CPT request?

• How much deference should International Office give to Department’s letter of support?

• Does it matter that it is not for pay?

• Who should decide whether to proceed?

Summary from Hypos:

• Immigration compliance is rarely black and white.

• University has much discretion in defining institutional practices.

Recommended Practices for Effective Decision-Making

• Communication:• Evaluate areas where University has discretion

within Immigration Compliance.• Define institutional practices for these areas.

• Structure• Internal advisory committee.• Designation of key individuals in Academic Affairs,

HR, Deans’ offices, and in GC.

Questions?