How to: Admit Foreign Students Into Your School

Transcription

1 How to: Admit Foreign Students Into Your School A Guide to Participation/ Recertification in the Student and Exchange Visitor Program for Colleges, Universities and Public/Private Postsecondary Schools

2 How To: Admit Foreign Students Into Your School A Guide to Participation/Recertification in the Student and Exchange Visitor Program for Colleges, Universities and Public/Private Postsecondary Schools Part 1: What is SEVP? Part 2: Defining Terms Part 3: The Process Part 4: Program Compliance Part 5: Miscellaneous Issues To Be Aware Of About the Authors: Russell Ford assists public and private employers, large and small, in developing effective immigration policies and strategies for personnel movement around the globe. His clients include colleges and universities, multinational corporations, and nonprofit organizations who need legal guidance regarding the recruitment, maintenance, and retention of international personnel. russell@fordmurraylaw.com Michael Murray has devoted his career to working with hospitals, institutions of higher education, and businesses large and small to find the best solutions for their immigration law needs. Whether obtaining work visas or assisting employees through the Permanent Residence process, Michael is a trusted advisor who can be counted on to find efficient, practical solutions that work for your organization. michael@fordmurraylaw.com

3 Part 1: What Is SEVP? The Student and Exchange Visitor Program (SEVP) is an immigration program jointly administered by Immigration and Customs Enforcement (ICE) at the Department of Homeland Security and the consulates and embassies of the State Department. In order to accept foreign students, a school must qualify for SEVP and follow its requirements. A History of SEVP In the aftermath of the September 11, 2001 terrorist attacks many new protections were put into place regarding national security. Among them were changes to the F-1 student visa regulations. Prior to 9/11, schools only needed to have information about foreign students in order to respond to a Citizenship and Immigration Services (CIS) request for information on its foreign student population within a three day period if the information was requested. After 9/11 and the creation of the Department of Homeland Security (DHS), the regulations surrounding SEVP were revised. SEVP was placed under the purview of Immigration and Customs Enforcement (ICE), the reorganized immigration enforcement agency at DHS. With the creation of SEVP came an ew online database, the Student and Exchange Visitor Information System (SEVIS), which was created with a focus on security and antifraud protocols and to facilitate the sharing of information on F-1 students between government agencies. In order to remain in compliance with SEVP, schools must fulfill SEVIS reporting requirements. Page 3

4 Part 2: Defining Terms Citizen Citizenship is a status obtained at birth or via the naturalization process. Someone with permanent resident status may apply for citizenship 3 to 5 years after obtaining permanent status. People who become citizens through the naturalization process enjoy all civil rights and legal protections afforded to United States citizens. Once granted citizenship status, it is very difficult to lose it unless it was obtained via fraudulent means or it is self-relinquished. Immigrant An immigrant is a foreign national seeking permanent residence in the United States based on investment, work, family relationship, or political asylum. An immigrant is also commonly referred to as a green card holder or a permanent resident. Immigrants are free agents when it comes to seeking employment in the United States. There is no expiration on immigrant status, but while immigrant is a stable status it can still be lost. Nonimmigrant A nonimmigrant is a foreign national seeking temporary entry to the United States for business, pleasure, study, or work. Nonimmigrant status is also referred to as holding a business, tourist, student, or work visa. There is a time limit on how long nonimmigrants may stay in the United States, and it is easy to lose legal nonimmigrant status. Page 4

5 Visa A visa allows people to enter the United States in a certain visa status. Visas are issued by United States embassies and consulates abroad, and they have an expiration date. The expiration date, however, is the final date of visa entry validity and not the length of time that a visa holder can remain in the United States. I-94 Departure/Arrival Card An I-94 Departure/Arrival Card designates someone s immigration status and the length of their permitted stay. Form I-20 Form I-20 is the certificate of eligibility for a nonimmigrant F-1 student, and serves as the underlying status document for the student. Schools that are SEVP certified are empowered to create forms I-20 and sponsor foreign students. Page 5

6 Part 3: The Process Where to Start Before a school can begin taking part in SEVP, there are several steps that must be taken. A school must first be certified via an I-17 petition, in which the school must show: That it is a qualified academic institution The purpose and scope of the foreign student program (FSP) Identity and immigration status of the Principal Designated School Official (PDSO) and additional Designated School Officials (DSOs) The requirements for completion of the FSP, including the full-time curriculum Sufficient funding and facilities Page 6

7 The On-Site Inspection A school must also undergo an on-site inspection to determine its adequacy for the FSP before it can take part in SEVP. The applying school should design a tour to show off the school in its best light. During the on-site inspection the school must also present a signed I-17 and I-17A, the school s licensing and accreditation, and proof of the immigration status of the PDSO and DSOs. While this information will be on the I-17, the PDSO and DSOs need to bring their original passports and green cards, or a birth certificate, to the on-site inspection, and the PDSO and DSOs must all be present. During the on-site inspection, at least one DSO will be interviewed to assess the school s understanding of immigration regulations and SEVP procedures. The school should determine who this DSO is beforehand, and it is best if the DSO who is interviewed is the person with the primary duty to update SEVIS. In addition to having all original documents organized and ready to be presented, the school should also make copies of all documents for the inspecting agent to take with them. It is also important to ensure that the school s student file storage area is organized for the inspection. Admissions Process To accept foreign students under SEVP, schools must follow a strict admissions process. Students must meet standards for academic success to be accepted, and the student must be seeking to undertake a full course of study. The school must also assess the student s English proficiency and their ability to engage in coursework in English. The student s TOEFL or similar test score may be used for this assessment, and the student must also be able to demonstrate English at their visa interview. In addition to language and academic standards, the school must also verify a student s ability to pay for tuition and expenses. This verification can be done through an examination of bank records, or a consideration of private scholarship awards received by the student. The assessment of an applicant s qualification must be performed by a qualified school official, and cannot be done by a recruiter or an agency. DSOs who recruit students may not be compensated for doing so. Page 7

8 Form I-20 Process An I-20 form is created once a student has been reviewed and accepted for attendance. However, in order to create and submit a form I-20, a school must have a certified I-17 petition. The form I-20 is created using SEVIS, and student data is transmitted to the designated consulate (the consulate nearest the student s foreign residence). Then, the form I-20 must be printed, signed, and mailed to the student who then brings the original form I-20 to their visa interview at the embassy/consulate. Important data fields to pay particular attention to on the form I-20 include the: Report date: program start date Completion date: program end date Normal length of study: months Student funds (#8) must exceed program costs (#7) It is absolutely crucial that the I-20 form be completely accurate. The misspelling of a name or a reversal of a birthdate can cause very long delays at the consulate and can cause the student to miss the start of school. We recommend that a school have at least two sets of eyes review all data for quality control before the finalization of an I-20 form. Page 8

9 Student At The Consulate Once the I-20 is issued, the student can begin preparing for their visa interview. Before going to the consulate to obtain their F-1 visa stamp, the student should take the following steps: Pay I-901 SEVIS user fee ($200) prior to visa application (online process) Schedule visa interview appointment and pay visa fee online ($160) Complete DS-160 visa application online Check the latest procedure at his/her consulate as each site has special procedures/fees and rules are subject to change Determine which local agencies may be of assistance in the consular process Before attending the visa interview at the consulate, the student should be sure to have the following completed and ready to bring with them to the consulate: Completed visa application Proof of I-901 and visa fee payment Original from I-20 A passport that is valid for at least six months beyond the program end date Two passport style photos Academic records English proficiency scores Notarized statement from DSO who signed I-20 confirming payment to school as proof of full payment for tuition and expenses Proof of student s intent to return home after program; e.g. information about family s strong ties to country, financial status, successful prior return after travel to United States Page 9

10 At the interview, the student should be able to answer questions about the school and the program of study. They should also be able to demonstrate their English proficiency at the interview, although the consular officer is instructed to defer to the language test score for English proficiency. Visas may be issued up to 120 days before the program start date. While they are usually issued within a week of the interview, consular officers may request further information and follow-up after the interview and in some cases security clearances can take weeks or months. As such, students should start the visa process as soon as possible. Student At The Airport The student may arrive in the United States up to 30 days before the program start date that is listed on the I-20 form. They can enter early for an orientation, to meet friends or family, or to travel. When the student arrives at the airport they will be interviewed and inspected by the Customs and Border Patrol officer. It is important that the student have the following for presentation at customs: Passport valid at least six months beyond their program end date F-1 visa stamp in passport Original I-20 form signed by DSO Proof of I-901 payment Proof of tuition and expenses payment Any other documentation submitted with the visa application The student will be issued an I-94 card which will indicate their F-1 status, the duration of their status (D/S), their name and birthdate, and the name of the school they will be attending. The I-94 card is a very important immigration document, so the student should verify the information on the card and have any error corrected as soon as possible. Page 10

11 Student and School After The Airport The student and school must comply with SEVP requirements in order to maintain the student s F-1 status. The student can lose their F-1 status due to the following behaviors on their part: Student does not report to school Student fails to maintain a full course load without a documented excuse Student fails academically or is expelled Student commits crime warranting removal from the United States Student departs the United States and tries to re-enter without the proper documents (passport, up-to-date I-20, valid visa) Student transfers to another school or immigration status without the proper transfer process Student remains in the United States past the program completion date and 60-day grace period The Student Can Lose Their F-1 Status if the School: Fails to report status milestones in SEVIS Has its SEVP certification rescinded due to compliance violations Page 11

12 If a student does lose their F-1 status, they can apply for reinstatement of the status by filing an I-539 application and providing the following: A new form I-20 issued by the school recommending reinstatement Evidence showing the student was out of status for fewer than 5 months or that the reinstatement request was filed as soon as possible given the circumstances Documentation showing that the violation was beyond the student s control, e.g. a medical condition, natural disaster, or error by the school Page 12

13 Part 4: Program Compliance The School While a school is accepting F-1 students, they must comply with SEVP requirements in order to allow SEVP to track the whereabouts of foreign students, assist students in maintaining proper immigration status, and to keep their FSP in good standing. The school performs its reporting via SEVIS, and must also comply with document and data retention requirements. The school must register foreign students in SEVIS within 30 days of the program start date. If the student does not report to the school within this period, then the school must report a no-show. The school must also report student registration and enrollment in SEVIS at the beginning of each term/session start date. Registration and enrollment are two separate concepts. Registration tells the government that a student is physically present, while enrollment notifies the government the student has actually enrolled in the required full-time course load. Page 13

14 The school is also responsible for reporting the following within 21 days: Change of student s legal name or address Early program completion Any failure to maintain F-1 status Serious disciplinary actions Changes to program dates or requirements Change in PDSO and DSO assignments Change in I-17 information Loss of accreditation or licensure School closure Substantial changes in school curriculum affecting FSP Compliance In The Case of Student Transfers A student may only transfer from one SEVP-certified school to another. The DSO at the school from which the student is transferring must release the SEVIS record to the school to which the student is transferring. A DSO may not refuse to transfer records for a student accepted by another SEVPcertified school for any reason, including financial or business reasons. If the SEVIS record was in active status at the original school, the DSO at the new school must create a new I-20 and print and sign it for the transfer student. The DSO must then register the student and create an active record within 30 days of the program start date. Page 14

15 If the SEVIS record was in terminated status at the time of the transfer, the DSO at the new school must create a draft I-20 and print a reinstatement form I-20. The student must immediately file an application for reinstatement with USCIS unless the DSO at the original school put the student into transfer status erroneously. In this case, the DSO should call the SEVP response center to request a data fix. Compliance In The Case of Student Employment On Campus To remain in compliance, the student must be working at the school or at an educationally-affiliated off-campus location. They can work for the school, or at an on-campus commercial business such as a bookstore or cafeteria, though their allowed hours are limited when school is in session. When school is in session students can work up to twenty hours a week, but they can work full-time when school is not in session or during the annual vacation period. Students are responsible for reporting their work to the DSO in order to receive a certification letter that allows them to receive a Social Security number. However, on campus work does not need to be reported on SEVIS or authorized on the form I-20. Compliance In The Case of Student Employment Off Campus A student may only work off campus if they have been in F-1 status for at least one full academic year and are experiencing severe academic hardship. The student must also be unable to get on-campus employment or be unable to meet their financial meets with the earnings available from on-campus employment. To be authorized for off-campus employment, the student must have a DSO approve the need and endorse an I-20 form for off-campus employment. Then, the student must file an I-765 application and the endorsed I-20 with the USCIS. The USCIS will approve applications on a case by case basis. If approved, a student s authorization to work off campus is valid for one year, though a student can reapply for another year of authorization. Page 15

16 Compliance In The Case of Student Employment For Curricular Practical Training (CPT) Many academic programs have accompanying work requirements, and the CPT allows an F-1 student to work off campus to fulfill such requirements. For a student to be employed via CPT the DSO must endorse the CPT on form I-20 and the school must also have a signed cooperative agreement with the CPT employer. A student may work full-time or part-time at the CPT, but once certain limits are reached at a CPT it may make a student ineligible for Optional Practical Training (OPT). Any time spent on CPT will be deducted from OPT. Resultantly, twelve months or more of full-time CPT or 24 months or more of part-time CPT disqualifies the student for OPT. OPT is discussed further in the next section. Compliance In The Case of Student Employment For Optional Practical Training (OPT) OPT is post-graduation employment that must relate to the major course of study. In order to be authorized for OPT a student must apply using form I-765 and file it within ninety days before graduation or within sixty days after graduation. Additionally, the DSO must authorize OPT through SEVIS and the I-765 must be filed within thirty days of that DSO authorization. An approved student will be granted a work card, and must wait until they have received the work card to begin working. The card is valid for twelve months, however students majoring in a STEM field may apply for an additional 24-month card. In this case, the employer must be enrolled in e-verify. During the time period in which the student is using the work card they may not accrue more than 90 days of unemployment or their F-1 status is invalidated. Page 16

17 General Compliance In order to remain in compliance with SEVP, a school must retain the following items for a period of three years after program completion for each foreign student: Name Date of birth Country of citizenship School ID number Residential and mailing addresses Credits, grades, course ID code, and term for each course taken Date of withdrawal from any course Cumulative credits or clock hours GPA for each term and cumulatively Unabridged academic transcript Written application Documentation of student acceptance Documentation of student payment and expenses Medical documentation used to substantiate reduced course load Recertification Compliance To remain SEVP-certified, a school must recertify their FSP every two years. They will be notified by the government about their need to recertify and the deadline for doing so. Page 17

18 Part 5: Miscellaneous Issues To Be Aware Of If I-17 information changes or irregularities are noticed, then an out of cycle review may be triggered for a school. The review may be comprised of an audit, recertification, and/or an onsite inspection. Schools are limited in how they can advertise their SEVP certification; all they can say is: This school is authorized under federal law to enroll nonimmigrant alien students. If schools use recruiting agencies, they should be sure that the agency is thoroughly vetted. One way to do so is to obtain references from other schools and students that have gone through the agency to obtain F-1 status. Schools should also be very careful that they do not cede legal compliance to recruiters in any way. Page 18

19 Summary The SEVP program can be beneficial to both schools and students, offering new and broader experiences to both, but it is a program that requires strict and careful compliance. Let s revisit the basic steps for acceptance into and compliance with SEVP: Students must apply to the school in writing School must verify a student s academic qualifications, English proficiency, and financial resources School issues form I-20 via SEVIS and sends the original to the student Student uses form I-20 to obtain their F-1 visa at the United States Consulate in their home country Student presents their passport, I-20, F-1 visa, and other documents at their United States Port of Entry and is issued an I-94 card notated F-1 and D/S School enters arrival of students to campus, enrollment, and other on-going reporting requirements into SEVIS DSO must authorize various forms of work authorization Student departs the United States within 60 day grace period after program completion or applies for continuing status If you have questions or need assistance with SEVP applications and compliance, contact FordMurray. We have worked with many institutions of higher education that accept F-1 students, and would be happy to help you and your institution with your foreign student program. LEARN MORE: Page 19 Visit to learn more about Business Immigration solutions for employers and individuals, or contact Attorney Russell Ford at russell@fordmurraylaw.com