NONIMMIGRANT EMPLOYEES AT TEMPLE UNIVERSITY A presentation by International Student and Scholar Services
Contact: Martyn J. Miller, Ph. D. , Interim Asst VP, International Affairs mjmiller@temple. edu; 1 -4682 - O-1 Workers Joan Mc. Ginley, Interim Director joanw@temple. edu 1 -1272 Answer immigration questions if Primary is not available Sharon Loughran, Immigration Services Specialist sharonl@temple. edu 1 -3805: J-1 Scholars, J-1 Student Interns, H-1 B Employees, -3 Australian Specialty Workers and TN Temporary Workers Takiko Goldschneider, Immigration Services Specialist (Students) takikog@temple. edu 1 -3804 - F-1 Students Jamie Graver, Immigration Services Assistant (Students) jamie. graver@temple. edu 1 -3442 - F-1 Students E
US Government Agencies US Department of Homeland Security US Department of State • Visa stamps at US Embassies • J Program • US Citizenship and Immigration Services (USCIS) US Department of Labor • US Customs and Border Protection (CBP) • Labor Condition Applications for H-1 Bs • Labor Certification/PERM for green cards
• U. S. Department of Homeland Security (DHS): DHS combined 22 different federal departments and agencies into a unified, integrated cabinet agency in 2002 www. dhs. gov/ • US Citizenship and Immigration Service (USCIS): Branch of DHS which has authority over all aliens in the US www. uscis. gov • US Department of Labor (DOL): Government Agency that has authority over Labor Condition Application (LCA) needed for H-1 B and O-1 Petitions /E-3 Visa www. dol. gov • US Customs and Border Protection (CBP): Branch of DHS responsible for admitting internationals into the US www. cbp. gov • US Immigration and Customs Enforcement (ICE): enforces federal laws governing border control, customs, trade and immigration to promote homeland security and public safety; oversees SEVIS, the software system used for F and J students/scholars https: //www. ice. gov/ • US Department of State: Authority over issuances of all US non-immigrant and immigrant visas http: //travel. state. gov/content/visas/english. html
ISSS DOES NOT DECIDE JOB TITLE / POSITIONS • Please note that ISSS does not determine job titles (paid/unpaid) or salaries. We are the final stage in facilitating the appropriate visa classification once the department and HR has determined these factors and a prospective employee has been identified. • Departments need to work with their HR Generalist, the Postdoctoral Affairs Office and the Senior Vice Provost for Faculty Development and Faculty Affairs to determine the job title
Questions Department Needs to Ask After Job Title is Determined and Candidate is Identified: • Is applicant currently in the US? If yes, is s/he already employed by TU? If so, what is the foreign national's immigration status? Current job title? • What Is the Highest Degree the Applicant Holds? Does Applicant Meet Minimum Degree Requirement for position? • Does Applicant Have the Minimum number of years of experience required? • REALISTIC Expected starting date of appointment? • How long will you employ applicant? On a yearly basis? Permanently? • Foreign national's country of citizenship? • Has the potential employee applied for a Green card? • Does the applicant plan to travel abroad in the near future? (This will affect both visa timing and procedure)
SEND DOCUMENTS SECURELY It is critical that you do not send immigration documents, doctor’s notes, financial documents, employment offer letters and the like through regular email. Use ISD or TUSafesend.
Inform ISSS about all new international hires even if we are not issuing an immigration document for that person Case example: TU School hired someone who held J -1 Exchange Visitor in the Doctoral Student category and who had been granted Academic Training by the Institution where he’d received his Ph. D. ISSS is not informed of these hires, so we had no way of knowing that he was even at Temple, yet alone that his work authorization was expiring and that the Department needed to submit an H-1 B application ASAP.
The B-1 category is appropriate for aliens who wish to come to the United States to engage in temporary commercial, business, or professional activities related to their employment or business abroad, provided that the U. S. activity does not constitute "employment" in the U. S. 22 C. F. R. § 41. 31(b)(1) The term "business, " as used in INA 101(a)(15)(B), refers to conventions, conferences, consultations and other legitimate activities of a commercial or professional nature. It does not include local employment or labor for hire.
The State Department Foreign Affairs Manual (FAM) contains an example of what is NOT local employment: "The clearest legal definition comes from the decision of the Board of Immigration Appeals in Matter of Hira, affirmed by the Attorney General. Hira involved a tailor measuring customers in the United States for suits to be manufactured and shipped from outside the United States. The decision stated that this was an appropriate B-1 activity, because the principal place of business and the actual place of accrual of profits, if any, was in the foreign country. "
B-1/2 Tourist Visa Usually Not Appropriate for Researchers In general, ISSS recommends that non-employee individuals from abroad who will come to Temple to engage in research, lecture, etc. should enter the US as a J-1 Exchange Visitor. Our office has seen too many instances of individuals being turned away at the border when they try to enter with B-1/B-2 (Tourist) or WB/WT (Visa Waiver) status.
Presumption of Immigrant intent Every alien (other than a nonimmigrant described in subparagraph (H)(i) or (L) of Section 101(a)(15)) shall be presumed to be an immigrant until he establishes to the satisfaction of the consular officer, at the time of application for a visa, and the immigration officers, at the time of application for admission, that he is entitled to a nonimmigrant status under 101(a)(15).
The way to prove you do not have immigrant intent is to prove that you do qualify for a nonimmigrant classification. Nonimmigrant must: • Have an Unabandoned residence abroad • Be entitled to a particular nonimmigration classification • Be admissible to the US [long list of reasons someone might be “Inadmissible” like criminal records or contagious diseases]
Nonimmigrant Status Nonimmigrant status is a legal condition, not a physical thing. It is also dynamic, not static, which means that a person's nonimmigrant status must be acquired and maintained, and can be changed or lost. In many respects, nonimmigrant status is a relationship with the U. S. immigration system, with actions, events, and data in the "real" world contributing to the acquisition, maintenance, change, or loss of the nonimmigrant relationship. These actions, events, and data are often recorded and presented in relation to one another in the form of: • Documents, including immigration documents • Electronic records, stored in a database. Like documents, there can be electronic immigration records, such as SEVIS, CLAIMS 3, NIIS, ADIS, US-VISIT, CCD, and IBIS, just to name a few, and electronic ancillary records, such as a school's student database, an institution's HR database, etc.
General Non-Immigrant Process Preliminary steps are: • Admission to a school and issuance of a SEVIS I-20 • Acceptance by an exchange visitor program and issuance of a SEVIS DS-2019 • A U. S. employer securing the approval of an employment-based nonimmigrant worker petition (Form I-129) • Obtaining a Visa Stamp from a US Consulate Outside the US Entry includes inspection and admission to the United States by an immigration inspector. Some key entry steps are: • • • Office of Biometric Identity Management processing Namecheck clearances Review and processing of status eligibility documents Issuance of Form I-94
General Non-Immigrant Process (con’t) Some key maintenance of status steps are: • Complying with deadlines and reporting requirements • Engaging in required activity • Avoiding prohibited activity Some key exit steps are: • Departing the United States before the period of authorized admission has expired • Complying with any applicable exit procedures
Identifying nonimmigrant documents Four types of documents are generally associated with nonimmigrant status: • Passports • Visas • Enabling documents [I-20, DS-2019, I-797 Approval Notice] • I-94 Form [https: //i 94. cbp. dhs. gov/I 94/#/home#section]
Passports • Most aliens seeking admission to the US in nonimmigrant status must have a valid passport or they are ineligible for admission. • A passport permits bearer to return to the issuing country, usually the country of the bearer's nationality. • Passport must be valid for a minimum of six months from the date of the expiration of the initial period of the alien's contemplated initial period of stay.
VISA Stamp • Issued by a consular officer (an official of the Department of State). • “Used" when an alien presents her/himself to an immigration inspecting officer when applying for admission to the US. Once the alien is admitted to the US, the visa ceases to have a function until the next time the alien wants to enter the US. • Can expire while the nonimmigrant is inside the U. S. , with no negative effect on the person's nonimmigrant status. • Must be valid for the re-entry if a person wishes to exit and reenter the U. S. If the visa has expired, the individual must obtain a new visa at a U. S. consular office before re-entering. • If a person travels outside the U. S. after a change of status, he or she will have to obtain a new visa in the new category in order to be readmitted to the U. S. in the new status.
Visa stamps • Visa cost, validity, and the number of entries allowed on a particular visa are determined by a policy of reciprocity between the US and another country • Cost, validity period, and number of entries differ from country to country and from visa category to visa category. You can find out what the visa fees, period of validity, and number of entries will be by consulting the DOS Visa Reciprocity tables but note that the website is not always accurate. • A visa is not required for Canadian citizens to enter the United States in any nonimmigrant category except E, K, S, and V categories. • http: //travel. state. gov/content/visas/english/fees/reciprocity-bycountry. html
Visa security clearances • • • Before Issuing a Visa, Consular Officers Carry Out the Following Checks: Fingerprint Checks - Screen a visa applicant's fingerprints against DHS' Automated Biometric Identification System (IDENT) and the FBI's Integrated Automated Fingerprint Identification System (IAFIS) Facial Recognition Checks - Use facial recognition technology to screen the photographs of all visa applicants against FBI watchlists as well as against the photos contained in DOS' Consular Consolidated Database (CCD). CLASS Namecheck - Check the names of all visa applicants against the Consular Lookout and Support System (CLASS) database. CLASS contains information on persons found ineligible for visas, or against whom potentially derogatory information exists. Almost 70 percent of CLASS records come from other agencies. CCD checks - Visa applicant's data is screened against the visa applicant data in the Consular Consolidated Database. Enterprise Case Assessment Service checks - this platform stores fraud-related research. Post information gathering - Collect information from all sources relevant to making their decision. This includes getting information directly from the visa applicant through application forms, supporting documentation, and personal interviews. When another post may have information affecting the applicant's visa eligibility the post considering the visa application may have to obtain information from the other post in order to complete the clearance process. Advisory Opinions (AOs) - from the Department of State on questions of law and policy. Security Advisory Opinions (SAOs) - through the Department of State regarding security and related grounds.
Security Name checks • Special clearance procedures may be required if the consular officer has reason to believe that an individual may be inadmissible under INA § 212(a)(3), which establishes a basis for inadmissibility relating to "Security and Related Grounds. " These grounds include activities such as espionage, terrorism, export of sensitive technology, and other activities that have been determined to affect the security of the US. If a consular officer knows, or has reasonable grounds to believe, that an alien falls under INA § 212(a)(3), a visa will not be issued. • "security advisory opinion" (SAO) process is a multi-agency The review that collects additional information on applicants to provide a recommendation to posts to issue or refuse a visa. SAOs are mandatory for some categories of visa applicants. In some situations, an SAO is mandatory; in others, the consular officer has the discretion to request an SAO.
Mantis and export control clearances Inquiry and clearance procedures relating to the INA § 212(a)(3)(A)(i)(II) ground of inadmissibility (concerning prohibited export from the US of goods, technology, or sensitive information) are guided by a DOS policy called Mantis. The mantis program was developed due to law enforcement/ intelligence community concern that U. S. produced goods and information are vulnerable to theft. . . The primary program security objectives are: • -To stem the proliferation of weapons of mass destruction and missile delivery systems; • -Restrain the development of destabilizing conventional military capabilities in certain regions of the world; • -Prevent the transfer of arms and sensitive dual-use items to terrorist states; • -And maintain U. S. advantages in certain militarily critical technologies. " A Mantis clearance might be requested for a national of any country who may come within the purview of INA § 212(a)(3)(A)(i)(II), and the decision to request a Mantis clearance is often in the discretion of the consular officer.
Enabling Documents Enabling documents include documents like an I-20 (issued by a designated school authorized to enroll F-1 students) or DS-2019 (issued by a designated J-1 exchange visitor program). An enabling document serves different purposes: • To evidence the parameters of an alien's nonimmigrant status; • To evidence eligibility to receive a nonimmigrant visa or be admitted to the U. S. in a nonimmigrant status; • To implement changes or updates to a nonimmigrant's status once they hold a status. Some enabling documents (like an I-20 or DS-2019) are issued directly to an alien by an individual authorized to issue them. Other enabling documents, such as Form I-797, are issued by USCIS only after USCIS has adjudicated and approved an official petition that was filed on the alien's behalf by a U. S. employer.
Form I-94 https: //i 94. cbp. dhs. gov/I 94/#/home Admission as a nonimmigrant is evidenced in most cases by a Form I-94 that reflects the date and class of admission, and the expiration date of the period of authorized stay. There are both paper and electronic versions of Form I-94. It also serves as the principal "registration document" that an alien is required to keep on his or her person. Nonimmigrants are admitted to the United States either until a specific date ("date certain"), or for duration of status ("D/S"). "D/S" stands for "duration of status" - the individual can stay in the US for as long as it takes to complete their activity, within certain limits. Even though there is no specific expiration date on their I-94 s, the authorized stay of aliens admitted for duration of status is still tied to specific documents and to the duration of the activity that they came to the United States to engage in. F-1 s have a 60 day grace period; J-1 s have a 30 day grace period. Date certain I-94 - Individual must either leave the US or have applied for an extension or change of status by the end date listed on the I-94 Aliens should be encouraged to examine the date expiration date stamped on their I-94 each time they enter the United States, to avoid inadvertently staying beyond their period of authorized admission.
Technology alert list (TAL) Cases involving fields on the Technology Alert List (TAL) usually require a Mantis Security Advisory Opinion before a visa is issued. The most recent version of the TAL is not available to the public. Here are the fifteen categories included on the "critical fields list" in the last public version of the TAL before it was designated as "sensitive but unclassified. " This list is provided as background only as the actual current TAL may now be quite different: • Conventional Munitions • Nuclear Technology • Rocket Systems • Rocket System and Unmanned Air Vehicle (UAV) Subsystems • Navigation, Avionics and Flight Control Usable in Rocket Systems and Unmanned Air Vehicles (UAV) • Chemical, Biotechnology and Biomedical Engineering • Remote Sensing, Imaging and Reconnaissance • Advanced Computer/Microelectronic Technology • Materials Technology • Information Security • Laser and Directed Energy Systems Technology • Sensors and Sensor Technology • Marine Technology • Robotics • Urban Planning
Inspection at a US port of entry Individuals seeking admission to the US must be inspected in person by an immigration officer at an official U. S. port of entry (POE). Before inspection, arriving aliens are seen as "applicants for admission. ” The first level of inspection is called primary inspection which consists of a brief interview by a CBP immigration inspector [Customs and Border Protection], who also examines the alien's immigration documents and supporting documents, and conducts other standard procedures. The inspector will ask what the alien's purpose is in coming to the US, look to see that the passport is valid and belongs to the holder, ensure that the visa is valid, appropriate, and belongs to the holder, and assess whether the supporting documents are valid, appropriate, and belong to the holder. The immigration inspector will also query government databases. If all is in order, the immigration inspector will conduct OBIM biometric data collection, and then admit the alien to the United States. Primary inspections are usually fairly quick, lasting not much more than a couple of minutes.
Secondary inspection • If there is a lookout that needs to be resolved, or if the inspector wants to have documents examined more carefully, needs to ask for help on a particular inspection, or needs to have a person's SEVIS record checked, the inspector may place the individual in a higher level of inspection called secondary inspection. This can take the form of the inspector asking the person to wait in a separate area until the inspector can complete the inspection. At larger ports of entry, secondary inspection takes place in a separate room with additional inspectors. • Arriving aliens may find secondary inspection somewhat anxiety -producing, and it may take significantly longer than primary inspection. Travelers should be advised to travel with complete documentation appropriate for their immigration classification, and to leave sufficient time for connecting flights or airport pickups to accommodate the possibility of secondary inspection.
I-94 Document • Form I-94 is a card on which DHS records important information about a particular admission of an alien to the US, such as the category the person has been admitted in and the duration of the person's stay. • Enabling documents and Form I-94 are like "snapshots in time" reflecting particular aspects of a person's status at the time of the documents' creation or amendment. For instance, someone entered as an F-1 student but changed to J-1 status…an I-94 may reflect F-1 status but the individual now holds J-1 status and will receive a new I-94 documenting J-1 status upon departure and reentry into the US
Admission to the US • Nonimmigrants are admitted to the United States either until a specific date ("date certain"), or for duration of status ("D/S"). • For most nonimmigrants, the expiration of the period of authorized stay is recorded on Form I-94 (paper or electronic). Such an I-94 is said to be "date certain. " Generally speaking, that date is the date by which the individual must either leave the United States or have applied for an extension or change of status. • Aliens should be encouraged to examine the date expiration date stamped on their I-94 each time they enter the US to avoid inadvertently staying beyond their period of authorized admission.
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