Universities: Watch Out for Lost Student Work Authorization as a Result of New Ban on Remote Learning under F-1 Visas
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“UPDATE:  On July 14, 2020, as part of a settlement of a lawsuit brought by Harvard University and the Massachusetts Institute of Technology seeking to block the new rule discussed above, the Department of Homeland Security rescinded the rule.  As a result, F-1 and M-1 students enrolled in programs that are conducted entirely remotely due to the coronavirus in the fall 2020 term will NOT be out of compliance with their visas, nor will their work authorizations be affected.  The government has not yet said what the policy will be for the spring term 2021 term.”

On July 6, 2020, the U.S. Department of Homeland Security issued a new rule that bars foreign students from using F-1 and M-1 visas to participate in programs that are being conducted remotely as a result of the coronavirus outbreak.  The new rule as it relates primarily to qualifying enrollment and immigration consequences is discussed more fully in this alert from Pullman & Comley.  Universities employing such students, however, need to consider an additional consequence.  If a student goes out of lawful visa status because his or her program has gone fully remote, then the student is not authorized to work for the university any more than he or she is authorized to remain in the U.S. to study.  Crucially, this is true even if the student has job responsibilities that are themselves curricular – serving as a teaching assistant or lecturer for undergraduates, for example, while pursuing his or her own post-graduate studies.  In that example, it is the enrollment in the qualifying post-graduate program, not the teaching responsibilities, that underlies the visa, and when the program ceases to be qualifying, the teaching responsibilities cannot independently support continued lawful visa status.

It may be easy for the institution to overlook the lost authorization, because the I-9 that the human resources department completed for the student when placing him or her on the payroll likely will list an expiration of work authorization tied to the planned end of the program, not to the sudden and unexpected end of visa status brought about by the change to a remote curriculum.  Students who lose their lawful status in this way and who overstay may not inform the department or office where they are employed, much less HR, that they are out of status, and that fact may not be obvious to those with whom they work.  And students who pursue a change to another visa status to remain lawfully in the U.S. after losing the F-1 status may not understand, nor may their supervisors, that the new status, or the temporary reprieve that accompanies the pending change, does not authorize the students to continue to work.  Nonetheless, an I-9/payroll audit by the Department of Labor would find continued employment in those situations to be a violation by the university.  Thus a degree of proactivity in identifying student employees whose visas have been affected by a change to remote learning, and taking steps to ensure that they do not remain on the payroll beyond their lawful status, will be important to a good-faith effort to ensure I-9 compliance.

The new policy is an emerging and fast-changing issue that is already the subject of litigation.  Stay tuned to this blog for developments.

This blog/web site presents general information only. The information you obtain at this site is not, nor is it intended to be, legal advice, and you should not consider or rely on it as such. You should consult an attorney for individual advice regarding your own situation. This website is not an offer to represent you. You should not act, or refrain from acting, based upon any information at this website. Neither our presentation of such information nor your receipt of it creates nor will create an attorney-client relationship with any reader of this blog. Any links from another site to the blog are beyond the control of Pullman & Comley, LLC and do not convey their approval, support or any relationship to any site or organization. Any description of a result obtained for a client in the past is not intended to be, and is not, a guarantee or promise the firm can or will achieve a similar outcome.

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