Immigration

Introduction to Office of General Counsel Immigration Services

In today's global economy, Minnesota State Colleges and Universities' institutions are welcoming increasing numbers of faculty and students from all over the world. The Office of General Counsel, Minnesota State Colleges and Universities, is available to assist campuses with immigration-related issues in their roles as employers and educators. Compliance with the law is important. Failure of an institution to comply can lead to sanctions such as fines or withdrawal of approval to sponsor foreign students or employees. Failure of individuals to comply with their legal responsibilities could compromise their future ability to remain in the United States, or achieve permanent residence.

The Office of General Counsel, Minnesota State Colleges and Universities, provides general guidance to college and university officials related to the institution's responsibilities in such matters as:

  • Requirements/characteristics of different types of visas;
  • Understanding the institution's role in visa application/extension/change in status processes for students and employees;
  • Defining employer responsibilities;
  • F-1 and J-1 program requirements;
  • Finding forms;
  • Drafting professional/technical contracts;
  • And more!

The Office of General Counsel has many written resources available. This area of law changes rapidly. Using updated forms and current addresses or other information is important for filing documents in a timely manner.

Note, however, that the Office of General Counsel cannot provide personal legal advice or services. Many immigration matters are complex and require the consideration of factors that are purely personal. Individuals are encouraged to consult with private attorneys for advice concerning their immigration status; they may be reminded that many decisions have long-term consequences for their futures and so should be approached thoughtfully.

Local bar associations can provide names of practitioners in immigration law, if assistance for personal matters is requested. The Minnesota State Bar Association Web site is: www.mnbar.org.

If a college or university requires technical assistance in processing immigration matters, the OGC may assist in drafting a professional /technical contract for services and locate suitable providers. Although such work is often done by attorneys, it is important to specify that the contract is not for legal services as per Minn. Stat. Sect. 8.03. Contact Assistant General Counsel, Daniel McCabe for assistance.

I know that some discrimination laws apply to foreign employees, but during a job interview, may I ask an applicant whether he/she is authorized to work in the U.S.?

Yes. Since proof of legal work authorization is a legitimate requirement for employment, you may ask prospective employees about their work authorization status during the interview process. You should do so for all candidates. Documentation should not be requested until required for an I-9 (i.e., when or if employment begins).

A question that has reportedly been approved for such an inquiry is: "Will you now or in the future require sponsorship for an employment visa status?" If the answer to the question is "yes" an employer may take into account the additional financial burden required in making a hiring decision.

May I make a job offer to a candidate I know does not currently have work authorization?

Yes, but you should clarify that proof of identity and legal work authorization will be required no later than the third day of employment. One way of providing this notice is to include the following in letters offering employment: "The offer of employment specified in this letter is contingent upon your ability to provide proof of identity and work authorization documentation required by the Immigration Reform and Control Act of 1986."

You may also choose to enclose information about the types of documents that will be required. If applicable to all employees, a college or university could choose to request new employees to present documents for I-9 compliance a short time before employment actually begins. This may be helpful to avoid surprises (and terminated employment) by learning that required documents are not readily available. However, the documents should not be requested more than 30 days before employment is scheduled to begin so that the information is current.

If someone has a visa application that is still pending at the time employment is scheduled to begin, can the individual start work with the understanding that work authorization will be provided as soon as it is obtained?

No. Actual work authorization in compliance with I-9 requirements must be presented no later than three days after employment begins. Employment cannot begin (or must be terminated) if proper work authorization documents are not in place.

What do I do if I discover that someone who is working for the institution is not, in fact, legally authorized for employment in the US?

As with any personnel action, it is important that you make decisions based on facts rather than conjecture, so the first step is to verify that individual cannot provide evidence of employability sufficient to comply with I-9 requirements. Feel free to consult with the OGC or AGO for assistance. If an individual cannot make this showing, employment must be terminated immediately. An individual who was never properly authorized to be employed, generally, should still be paid if the individual has performed work. Consult with the OGC or AGO if you are faced with this situation.

Can an employee on an H visa that has expired continue to work while the application for an extension is pending?

If it is a routine extension, no change in employer or job duties, and the application is filed before the visa has expired, the 240 day rule applies. This means that the employee may continue to work for 240 days without penalty, unless the extension is denied.

Kris Kaplan, Assistant General Counsel Presentation October, 2004: " I-9 Compliance and Issues on Hiring Foreign National Workers"

The former Department of Immigration and Naturalization Services ("INS") is now known as U.S. Citizenship and Immigration Services ("USCIS"), a bureau of the U.S. Department of Homeland Security. Its website at: www.uscis.gov includes many helpful references and links to the applicable federal laws and regulations, as well as forms. The USCIS also maintains local offices. The general information number is 612-854-7754, although you should be aware that it is often difficult to get through by phone.

Department of State Travel Advisories www.travel.state.gov/

International Advisor Resources

A good source of immigration-related information that is geared to institutions of higher education is NAFSA: Association of International Educators. Its website at: www.nafsa.org contains useful information and links, and the organization has published numerous practical booklets and manuals that are available for purchase. Some information is available to the public, but much is limited to members.

Information about international student programs in the metro area is available through the International Student and Scholar Services website of the University of Minnesota: www.isss.umn.edu.

All Minnesota State Colleges and Universities international student advisors are encouraged to join the Minnesota International Educators (MIE). MIE is a statewide organization of international student advisors that meets every other month during the academic year. Members share best practices and get updated information on new laws, regulations, and government services of relevance to international students. For more information see: http://mn-mie.com/.

Extensive resources on the Student Exchange Visitor Information System (SEVIS) are located at: www.ice.gov/sevis/ .

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