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Professional Opinion

Immigration compliance aids foreign graduates

Institutions must comply with the rules to ensure continued preferential visa treatment for higher ed
University Business, December 2015
David Rugendorf is an attorney with Mitchell Silberberg & Knupp, specializing in immigration and nationality law, representing employers and individuals in administrative petitions to governmental agencies.
David Rugendorf is an attorney with Mitchell Silberberg & Knupp, specializing in immigration and nationality law, representing employers and individuals in administrative petitions to governmental agencies.

Just imagine this nightmare scenario playing out at your institution of higher education: armed agents in navy blue “FBI,” “ICE” and “DHS” windbreakers wandering the halls, stuffing files into boxes marked for evidence, removing and taking possession of computer hard drives, and sealing off rooms with yellow tape.

Television reporters chase you and other university officials, shoving bright lights and microphones in your face and pushing for comment.

Agents. Subpoenas. Investigations. Not fun. Certainly avoidable.

This fall’s revelations of alleged immigration improprieties at Wright State University in Dayton, Ohio, have provided a wake-up call to higher education administrators throughout the country. While charges of misuse of visa programs in the private sector are commonplace, rarely do such allegations reverberate through the halls of a public university.

In the Wright State case, which is still under investigation, university administrators were accused of filing visa petitions for employees who, despite what was stated in documents filed under the penalty of perjury, did not work at the school. These individuals were instead employed at local businesses with ties to school officials.

As a result, the university has, according to reports, incurred hundreds of thousands of dollars in legal fees.

Likewise, the university is paying hundreds of thousands of dollars in salaries for officials placed on administrative leave while the lengthy investigation plays itself out.

In addition, the school has lost numerous high-level officials as a result of the scandal and has suffered extensive damage to its reputation.

What happened

According to the Dayton Daily News, Wright State obtained 124 H-1B work visas between 2005 and 2013. Many of those were secured for professors and assistant professors who obtained their visas properly, but some were employees of the Wright State Research Institute assigned to work at private businesses, including some businesses whose ownership had close ties to the university.

In one instance, an individual was assigned to work at a defense contractor whose CEO sits on Wright State’s board of trustees. That company reportedly held more than $300,000 in contracts with the university.

Further investigation showed that the individual’s employment was controlled by the defense contractor, and not the research institute which petitioned for the visa. Under federal immigration law, the foreign worker must work for the petitioner, not an outside party.

Demand exceeds quota

Obviously, allegations of improper use of visa programs are nothing new. This is especially true with regard to the H-1B temporary worker visa, in part because the demand for such workers so far exceeds the annual quota of 65,000 workers. (There’s an additional annual allocation of 20,000 slots for individuals with U.S. masters degrees or higher.)

Last year, the U.S. Citizenship and Immigration Services received approximately 233,000 applications in the one-week filing period after the annual filing window opened on April 1, 2015. The 85,000 winners were selected by a random lottery.

This meant that even though the government returned filing fees for cases not chosen in the lottery, an H-1B employer had only a 27 to 37 percent chance of success despite incurring non-recoverable costs of attorneys’ fees, overnight shipping, credential evaluations and translations.

But here is what many do not know: Universities, hospitals and nonprofit research institutions are exempt from the annual quota.

Given the terrible odds, one can see why a private sector employer would want to circumvent the rules by having a friendly, quota-exempt employer—i.e., a university—petition on its behalf.

So it is easy to see how the Wright State scandal happened, and surprising only that there are not more situations like this.

Contributing to economy

One wonders if successful immigration reform legislation would have prevented the Wright State mess.

While not as popular in the news media as other immigration topics—such as border security—innovators and tech-driven industries have for over a decade pushed for a higher H-1B quota and additional visa options for highly talented STEM workers.

They argue this is desperately needed to grow our technology sector—that we need to provide more opportunities for foreign graduates of America’s advanced degree programs to contribute to our economy.

Of course, that the Wright State affair is symptomatic of intolerable pressures building up in the system does not excuse anyone or any institution for violating the rules, as inconvenient and frustrating as the current rules are.

The message to colleges and universities is clear: If there is a perception that the current presidential administration may have eased immigration enforcement, that perception is false, at least when it comes to worksite enforcement.

For the past 15 years, extra surcharges have been added to immigration filing fees, and these fees are used to fund investigatory programs and site visits. Educational institutions, universities, hospitals and research institutions are not exempt from this stepped up on-site enforcement.

Dividing line

Because investigations and enforcement are going strong, higher education administrators need to be more, and not less, vigilant about immigration compliance in their institution.

This poses a challenge, because educational institutions can be compartmentalized, with individual units each having a measure of autonomy. Another complicating factor is that there are now so many university/business partnerships that it is sometimes difficult to see the dividing line between the institution of higher learning and the private company.

Colleges and universities should employ consistent and clear best practices in order to curtail the potential of such abuses.

Control over visa policy should be centralized and consolidated into one well-trained department, accountable to senior university human resources management and the university’s general counsel. Nothing immigration- related should be done in the university’s name without clearing it through this central authority.

The policies and guidelines should be very clear and known by all potential stakeholders.

Standards should be uniform and consistent, with the understanding that immigration-related “favors”—whether to other universities, research institutions, nonprofit organizations or private industry—are not to be granted unless they are thoroughly vetted for compliance with the law and standard operating practices.

Training is essential

Educational institutions should expend the time and resources to train administrative, legal and human resources staff in immigration compliance matters. Staff should learn the proper procedure for requesting that an immigration petition be filed. And they also need to understand what an approved immigration petition or visa allows the recipient to do.

A small investment in prevention might save the institution a great deal of money—and might prevent immeasurable damage to its reputation.

It also can help ensure the continued availability of immigration programs and preferred treatment to the higher education community.

David Rugendorf is an attorney with Mitchell Silberberg & Knupp, specializing in immigration and nationality law, representing employers and individuals in administrative petitions to governmental agencies.

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