Questions and Answers
Q: Several individuals present in the USA on L1 visas have inquired about enrollment at our university. Our resource person states that they can only study as incidental to their employment, that the classes they take must be related to their work and that they cannot be full-time degree seeking students. The attorney for the prospective students says there is nothing in the immigration regulations that prevents them from studying while they are in the US in L-1 status, so long as they continue to perform all of their L-1 job duties on a full time basis and their academic pursuits are only incidental to their L-1 employment and status. It seems that the definitions of "incidental" and "full-time" are pretty important here. Can someone one give me a primer on this?
A: (Answer Provided Courtesy of Leigh Polk Cole, Attorney at Law Dinse, Knapp & McAndrew, P.C.)
L-1 status is for managers, executivies and employees with specialized knowledge who are transferred to work at the U.S. affiliate or subsidairy of a company with which they have been working abroad for at least one year in the last 3 years. L-1 employment can be full-time or part-time. If an L-1 individual is employed part-time in L-1 status and is studying full time, there may be a question as to whether the study is incidental to the L-1 employment (or vice versa). For example, an employee may be offered a transfer to the U.S. company but it is only a part-time position, so the employee may decide to study full-time while in the United States to take advantage of the opportunity to work for the company in the United States while making productive professional use of the remainder of their time. There are scenarios where full-time study could be incidental to part-time work in L-1 status, and there are scenarios in which full-time study would be the primary purpose of the L-1's stay in the United States.
So the L-1 may or may not be violating L-1 status by studying full time, and this is a question for the USCIS, not for the educational institution. Educational institutions are not responsible for monitoring maintenance of nonimmigrant status or maintenance of a full-time or part-time course load by any students, other than those in F-1, J-1 or M-1 status. From a compliance perspective, the educational institution can enroll an L-1 in full-time study. From a policy perspective, an educational institution can choose not to enroll L-1 students in full-time study, but that is not a legal requirement.
Q: What does an individual from another country need in terms of a visa or work permit in order to be hired to teach at CUA?
A: (answer provided by Helene Robertson, Director of International Student and Scholar Services)
CUA sponsors individuals to teach, conduct research, etc. There are a variety of immigration statuses available, each with its own specific legal purpose. As a result, the status chosen for sponsorship will be determined by the type of position with the university (paid, unpaid, short term vs. longer term employment, country of citizenship, etc.)
In general we sponsor people most for J-1 and H-1B status. J-1 is an immigration status designed to promote international educational and cultural exchange. We have sponsored several adjunct language instructors in this classification. Individuals in this classification are expected to return to their home country. Individuals sponsored in this classification can be paid by CUA or supported by their own funding sources.
H-1B status is a work visa in which the employer must establish that both the position and the individual qualify for H-1B status. The position must be a specialty occupation that requires the application of a specialized body of knowledge. Essentially, the position must require at least a bachelors degree in a specific field or set of related fields and the individual must have at least a bachelors degree in the specific field or related field. If the position simply requires a bachelors degree in any field, then the position does not qualify for H-1B status, even if the individual has a bachelors or higher in the field. This sponsorship does require that the employer pay the prevailing wage for the position in the area so it would entail working with he Department of Labor to determine wage level.
Before an individual could begin working CUA would need to sponsor his/her immigration status so he/she could legally work here. The process of obtaining the status varies depending upon which status is desired and whether or not she/he has plans to leave the U.S. prior to commencing employment. More information on the two statuses is available on our website: http://international.cua.edu/recruiting
Q: Are there new travel restrictions on trips by college students to Cuba?
A: (answer provided by Helene Robertson, Catholic University, May 2004, based on information obtained from
La Alborada, Cuban American Alliance Education Fund, 1010 Vermont Avenue NW #620 - Washington, D.C. 20005 nuevas@earthlink.net - www.cubamer.org).
The Office of Foreign Assets Control is advising travel service providers that the new restrictions on travel to Cuba are anticipated to go into effect June 1st. There is not yet an official announcement of the rules. A summary of the provisions follows:
- Elimination of General License for travel to visit relatives.
- Requirement that individuals traveling for family visits apply for specific license, and wait three years after each visit to apply again.
- No exceptions will be granted for extreme humanitarian need (a sick or dying relative for instance), as has been the case previously.
- "Family" is defined to limit family visits to grandparents, grandchildren, parents, siblings, spouses, and children.
- Family visits will be limited to 14 days.
- The per diem for visiting relatives will be $50 per day, but $167 per day for other licensed travel. It will not matter if the relative is staying at a hotel instead of with family.
- Most visits of colleges and universities are eliminated (semester-long program licenses apply to a very small number of programs). There will be very limited exceptions for shorter-length programs, and only if such programs "directly support US foreign policy goals" and are approved by OFAC.
- OFAC is yet to announce whether travel in June already paid for by colleges and high schools will be permitted.
- All high school visits are eliminated.
- Baggage is limited to 44 lbs, except for specifically-licensed humanitarian donations, food, and informational materials.
- Gift parcels are limited to medicines, medical supplies, and receive-only radios, not to exceed $200 in value and limited to one per household per month.
- Elimination of provision allowing $100 worth of Cuban goods to be purchased in Cuba by licensed travelers.
- Elimination of General License for amateur athletic teams competing in international events. They must now apply for specific licenses.
- Elimination of specific license for clinics and workshops.
- Elimination of exceptions for fully-hosted travel. All Cuba travel-related transactions -- no matter who pays -- must be under the remaining specific licenses or general license categories.
- Increased inspections of all travelers and shipments to and from Cuba, and continued training of all inspectors at all points of departure and entry.
- OFAC has no plans to hire additional personnel to process the expected thousands of applications for specific licenses from relatives, on the grounds that "Congress would block any such plan because of opposition to the new restrictions."
Here is an excerpt of the proposal, the section on education:
- Educational Travel:
- Under current regulations, accredited academic institutions receive specific licenses, usually valid for up to two years, to permit students to travel to Cuba for certain educational activities. These include undergraduate or graduate students participating in a program as part of a course at a licensed institution; students conducting research towards a degree; students participating in a formal course of study at a Cuban academic institution; and other teaching-related activities. In practice, while there are well-meaning participants who use this license category as intended, other travelers and academic institutions regularly abuse this license category and engage in a form of disguised tourism.
- Many institutions use Cuba "study-tour programs" to generate revenues for other programs and most accept students not enrolled in their institution. A large number of programs are for a short duration, allow for limited interaction with the Cuban people, and include lengthy unscheduled time periods to permit largely tourist activities to be accomplished. Such travel does not promote a genuinely free exchange of ideas between Cubans and American students. Evidence indicates that the majority of visits by U.S. students are organized by or coordinated through Cuban state travel and tour entities, are highly controlled by Cuban state security officials, and allow for only limited interaction with the average Cuban citizen. Moreover, the regime has often used the visits by U.S. education groups to cultivate the appearance of international legitimacy and openness to the exchange of ideas. Requiring that educational licenses be granted only to programs engaged in full-semester study in Cuba would support U.S. goals of promoting the exchange of U.S. values and norms in Cuba, would foster genuine academic study in Cuba, and would be less prone to abuse than the current regulations. Academic programs of a shorter duration would be permitted only when the program directly promotes U.S. foreign policy goals.
Q: What are the current rules regarding being an "Acceptance Agent" for purposes of assisting foreign nationals in obtaining individual taxpayer identification numbers (ITINs)?
A: IRS Rev. Proc. 2006-10 updates the rules for acceptance agents. Per Bert Harding, higher education tax expert, the Revenue Procedure makes four major changes to the rules:
1. Acceptance agents may be required to submit "suitability checks" as explained in the revenue procedure
2. Acceptance agent agreements entered into after the publication of this revenue procedure will expire on December 31 of the fourth calendar year after the year in which the agreement went into effect
3. Existing acceptance agent agreements will expire on December 31, 2006, and acceptance agents must reapply to retain acceptance agent status
4. Acceptance agents may request to be included on a public list of acceptance agents published periodically by the IRS.
Q: (answer provided by Helene Robertson, Director of International Student and Scholar Services, The Catholic University of America, March 2006, based on information obtained from a 1994 Immigration and Naturalization Service memo regarding reimbursements to H-1Bs). An academic department would like to bring a scholar who is at another institution on an H-1B visa to our campus for a lecture, workshop, and series of critiques, as well as to serve on thesis committees. The department would like to pay him - we can assume that he would like to be paid, not only his travel expenses (which are presumably permissible) but also a significant honorarium. While apparently it is not permissible to pay the honorarium, other institutions have said that, in similar situations, "everybody" "simply" pays the home institution, which then passes it on to the scholar -- essentially treating the institution as the contractor and the scholar as a subcontractor -- and that this is "perfectly legal". Are there any federal immigration advice letters on this question?
A: People in H-1B status are not eligible for an honorarium. To pay the individual directly (for anything other than reimbursement of expenses), they would need to file a concurrent H-1B for the individual - a ridiculous notion since it would cost $690 in DHS filing fee. See the 1994 memo from legacy INS on reimbursements to H-1Bs below. It clearly indicates reimbursements are fine, but any financial gain is not allowed. There has been no change in position since that time.
Since presentations/lectures are considered a normal part of many academic positions, a work-around that many institutions have adapted is to pay the current employer which then passes the money on to the individual. But it needs to be a part of the job description included in the H petition. At least one major university has decided not to allow this practice because of the administrative costs associated with allocating the money to the individual.
This approach has difficulties, as one needs to be sure that this has been included in the job description on the H petition and, if it has and the H-1B sponsoring institution really wants to comply with the regulations, they need to closely monitor how long a person is on the other campus, comply with DOL regulations governing LCA posting requirements and short-term placements, not to mention per diem and travel reimbursements (20 C.F.R. 655.735). Since most of the time, the individual doesn’t inform the faculty member doesn't inform the person who handled the H about this, the institutional oversight turns into institutional hindsight with little opportunity for retroactive compliance, if needed. The policy at The Catholic University of America is that for H-1Bs honoraria payments are not permissible.
Q: Will the new April 1, 2006 date for changes in the federal immigration structure in order to improve service and streamline operations have any effect on our campus immigration issues, particularly regarding green card petitions?
A: (answer provided by Helene Robertson, Director of International Student and Scholar Services, The Catholic University of America, March 2006) It might effect green card applications for non-tenure track employees, particularly those on the research side. Effective April 1, Immigration is reshuffling their division of labor in an attempt to improve service. In doing so, they are changing the location where some schools, including The Catholic University of America, has to file green card petitions for our employees. This particular change might have an effect on green card applications we file for people in research positions. Currently, Catholic University files all employment-related petitions with Immigration's Vermont Service Center. On April 1, we will file only our H-1B petitions there and must file green card petitions with the Nebraska Service Center. Nebraska is understood to take a strict approach to their definition of "permanent" when it comes to adjudicating petitions for permanent residency. It is understood in the higher education community that want employers to state that someone is being offered what amounts to permanent employment - something that is difficult to achieve with grant-funded positions or for at-will employers who have annual appointments.
I'm attaching a March 8, 2006 Association of American Universities letter to the Immigration service addressing this issue.
OGC memorandum on social security numbers and other miscellaneous legal issues regarding hiring (dated Dec. 6, 2002) (In Q & A format)
Last Revised 12-Jul-07 04:55 PM.
