Welcome to [our] United States of America
This is a message of “welcome” from Rauhmel Fox, CEO, WHOMENTORSDOTCOM INC., to foreign nationals around the world, and nonimmigrants inside the United States of America.
In the midst of a rampant viral outbreak, colleges and universities in the United States of America (U.S.A.) are finding themselves confronting anxiety and a troublesome dilemma.
On March 13, 2020, President Donald J. Trump declared a national emergency: https://www.whitehouse.gov/presidential-actions/proclamation-declaring-national-emergency-concerning-novel-coronavirus-disease-covid-19-outbreak/
The proclamation was issued in recognition of the fact that the USA, along with the rest of the world, was facing a pandemic without parallel in recent history. The lethal coronavirus that is sweeping the globe, has forced governments, businesses, and organizations at all levels of society to implement unprecedented protocols to slow the transmission of the virus and mitigate the still-rising death toll from COVID-19, the disease caused by the virus.
The federal government recognized the fact that protection of public safety, together with permitting universities to continue their mission of educating all of their students, depended on those universities’ ability to educate students remotely. On March 13, 2020, this recognition took the form of an “exemption” issued by United States Immigration and Customs Enforcement (“ICE”), a division of the Department of Homeland Security, to a preexisting rule that students in the country on certain nonimmigrant student visas (“F-1” visas) must attend most classes in person. Recognizing the depth of the emergency and the needs of both students and educational institutions, ICE provided that students holding those nonimmigrant visas could attend remote classes while retaining their visa status. The government made clear that this arrangement was “in effect for the duration of the emergency.”
Immediately after the Fourth of July weekend, ICE threw Harvard and MIT — indeed, virtually all of higher education in the United States — into chaos. On July 6, 2020, ICE announced that it was rescinding its COVID-19 exemption for international students, requiring all students on F-1 visas whose university curricula are entirely online to depart the country, and barring any such students currently outside the United States from entering or reentering the United States of America.
L. Rafael Reif, president of the Massachusetts Institute of Technology (MIT), is quoted as saying, “Our international students now have many questions — about their visas, their health, their families and their ability to continue working toward an MIT degree. Unspoken, but unmistakable, is one more question: Am I welcome?
At MIT, the answer, unequivocally, is yes.”
On JULY 7, 2020, the OFFICE OF THE SPOKESPERSON, U.S. Department of State, published the headline, “International Students Are Welcome in the U.S.”
It’s human nature to focus on the negative. That doesn’t always serve us well.
The truth is elusive. But, it’s there, if you know how to critically analyze information. I’ve taken the liberty to highlight the key phrases in bold and italics and contrast them in two colors. Red — an alarm condition that requires immediate attention. Unless the problem is resolved immediately, the system cannot continue to run properly. And, green — an alarm condition that requires no attention on your part.
- Active students currently in the United States enrolled in such programs must depart the country or take other measures, such as transferring to a school with in-person instruction to remain in lawful status. If not, they may face immigration consequences including, but not limited to, the initiation of removal proceedings.
- Nonimmigrant students within the United States are not permitted to take a full course of study through online classes. If students find themselves in this situation, they must leave the country or take alternative steps to maintain their nonimmigrant status such as a reduced course load or appropriate medical leave.
The most curious part of the announcement is “if students find themselves in this situation.”*
*Note: This situation refers to maintaining a full course of study.
On the Form I-20, SCHOOL ATTESTATION, a designated school official states, “I certify under penalty of perjury that … the school has determined that … the student WILL BE REQUIRED to pursue a full program of study as defined by 8 CFR 214.2(f)(6).”
Under STUDENT ATTESTATION, an individual acknowledges, “I have read and agreed to comply with the terms and conditions of my admission and those of any extension of stay*. I CERTIFY THAT I SEEK TO ENTER OR REMAIN IN THE UNITED STATES TEMPORARILY, AND SOLELY FOR THE PURPOSE OF PURSUING A FULL PROGRAM OF STUDY at the school named above.”
*NOTE: The United States of America (USA) is a nation of laws written in legalese. Immigration law is vast and complex. As a result, it’s highly doubtful non-native English speakers take the time to discern all applicable laws.
Because ignorance of the law excuses no one, not even a U.S. Citizen, it’s important for F-1 and M-1 students to understand the concept of immigration status and the consequences of violating that status. Being aware of the requirements and possible consequences will make it more likely that they can avoid problems with maintaining their status.
Every visa (or status) is issued (or authorized) for a particular purpose and for a specific class of visitor. Each visa classification (or status category) has a set of requirements that the visa (or status) holder must follow and maintain. Those who follow the requirements maintain their status and ensure their ability to remain in the United States. Those who do not follow the requirements violate their status and are considered “out of status.”
It is understandable that plans can change (even if it is caused by a presidential proclamation or an update to DHS/USCIS/ICE policy). If the original reason for coming to the United States changes, lawfully admitted foreign nationals may be required to change their nonimmigrant status to a different one before they lawfully begin to engage in the activities they want to pursue.
Only F and M students are limited to attendance at Student and Exchange Visitor Program (SEVP)-certified schools. This means NONIMMIGRANTS who are ATTENDING SCHOOL INCIDENTAL TO THEIR PRIMARY PURPOSE for being in the United States MAY ATTEND THE SCHOOL OF THEIR CHOICE EITHER PART-TIME OR FULL-TIME (unless otherwise noted). However, these nonimmigrants must abide by the rules of their current status and cannot extend their stay in the United States for the purposes of completing a program of study or a degree.
https://www.ice.gov/doclib/sevis/pdf/Nonimmigrant%20Class%20Who%20Can%20Study.pdf
Under 8 C.F.R. 214.2(h)(4)(ii), a specialty occupation is defined as: “an occupation which requires theoretical and practical application of a body of specialized knowledge in fields of human endeavor … and which requires the attainment of a bachelor’s degree or higher in a specific specialty, or its equivalent, as a minimum for entry into the occupation in the United States.”
8 C.F.R. 214.2(h)(4)(iii)(A) sets forth that a “specialty occupation” must meet one of the following criteria:
1. A baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the particular position;
2. The degree requirement is common to the industry in parallel positions among similar organizations or, in the alternative, an employer may show that its particular position is so complex or unique that it can be performed only by an individual with a degree;
3. The employer normally requires a degree or its equivalent for the position; or
4. The nature of the specific duties are so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree.
An F-1 or M-1 international student pursuing a master’s or doctorate program in the USA, could create a Delaware Charitable Nonstock Exempt Corporation online, on the same day, using the document upload service: https://corp.delaware.gov/document-upload-service-information/ using a legitimate, physical location (not a mailing address offered by UPS Store, etc.) that will clear validation by Dun & Bradstreet to assign a data universal numbering system (DUNS) number the business entity and LexisNexis to qualify for opening a corporate banking account. This part requires locating a registered agent in the State of Delaware: https://corp.delaware.gov/agents/
A “responsible party” with a Taxpayer Identification Number (SSN, ITIN, or EIN, who controls, manages, or directs the applicant entity and the disposition of its funds and assets, can generate an employer identification number (EIN) for the newly formed entity within a few minutes.
After creating an internet-based email account, the responsible party can create a “company account” to file the IRS Form 1023-EZ, Streamlined Application for Recognition of Exemption Under Section 501(c)(3) of the Internal Revenue Code. The current application fee, as of Thursday, July 8, 2020, is $275. While an application is pending, the organization can treat itself as exempt from federal income tax under section 501(c)(3).
In California, it’s possible to drop-off the Certificate of Status from Delaware along with a completed Statement and Designation by Foreign Corporation (Form S&DC-S/N),
The Sacramento lobby for the California Secretary of State will be open from 8:00 a.m. to 5:00 p.m. Their public counters in Sacramento remain closed. Public access beyond the first floor will not be granted. However, they will accept drop off documents in their Sacramento lobby. Submissions must include the required filing fee in the form of check or money order only.
Expedite/Preclearance Drop Off: Effective Wednesday, June 24, 2020, they will resume limited Expedited/Preclearance services for business filings in Sacramento, as follows:
24 Hour Expedite Fee: $350 plus filing fee; and
24 Hour Preclearance Fee: $500.
Customers wanting these 24-hour expedite/preclearance services are asked to drop their document with separate checks or money orders (no cash or credit cards) for the fee and expedite/preclearance service in the Business Entities Drop Box in the Sacramento first floor lobby. Clearly mark your drop-off envelope with “24-hour Expedite”
Reference: https://www.sos.ca.gov/business-programs/business-entities/processing-dates/
Section 214(g)(5)(A) of the Act, 8 U.S.C. $ 1184(g)(5)(A), as modified by the American Competitiveness in the Twenty-first Century Act (AC21), Pub. L. №106–313 (October 17, 2000), states, in relevant part, that the H-1B CAP SHALL NOT APPLY TO ANY NONIMMIGRANT alien issued a visa or otherwise provided status under section lOl(a)(lS)(H)(i)(b) of the Act WHO “IS EMPLOYED (OR HAS RECEIVED AN OFFER OF EMPLOYMENT) AT AN institution of higher education (as defined in section 101(a) of the Higher Education Act of 1965 (20 U.S.C. 1001(a)), or a related or AFFILIATED NONPROFIT ENTITY … OR NONPROFIT RESEARCH ORGANIZATION.
The valid reason to “claim” eligibility for exemption from the numerical limitation is found in law.
At § 214.2(h)(8)(ii)(F)(2), DHS added the phrase ‘‘if it satisfies any one of the following conditions,’’ to clarify that A PETITIONER ONLY HAS TO MEET ONE OF THE LISTED REQUIREMENTS.
DHS added the same clarifying language to 8 CFR 214.2(h)(19)(iii)(B). In § 214.2(h)(8)(ii)(F)(2)(iv) and (h)(19)(iii)(B)(4), which address CAP EXEMPTION and ACWIA fee exemption, respectively, FOR A NONPROFIT ENTITY* THAT IS RELATED TO OR AFFILIATED WITH AN INSTITUTION OF HIGHER EDUCATION BASED ON A FORMAL WRITTEN AFFILIATION** AGREEMENT, DHS is replacing the term ‘‘primary purpose’’ with ‘‘fundamental activity’’ in response to public comments suggesting the term ‘‘primary purpose’’ was too restrictive.
Reference: Federal Register / Vol. 81, №223 / Friday, November 18, 2016 / Rules and Regulations 82403:
https://www.govinfo.gov/content/pkg/FR-2016-11-18/pdf/2016-27540.pdf
Section 101(a) of the Higher Education Act of 1965, (Pub. Law 89–329), 20 U.S.C. 8 1001(a), defines an institution of higher education as an educational institution in any state.
The H-1B regulation at 8 C.F.R. tj 214.2(h)(19)(iv) on fee exemption should be applied to determine whether an entity is “nonprofit” for purposes of cap-exemption determinations:
Non-profit or tax exempt organizations. For purposes of paragraphs (h)(l9)(iii) (B) and © of this section, A NONPROFIT ORGANIZATION OR ENTITY IS:
(A) Defined as A TAX EXEMPT ORGANIZATION under the Internal Revenue Code of 1986, section 501(c)(3), ©(4) or ©(6), 26 U.S.C. 501(c)(3), ©(4) or ©(6), and
(B) Has been approved as a tax exempt organization for research or educational purposes by the Internal Revenue Service.
Example of WRITTEN AFFILIATION with San Francisco State University (SFSU):
https://icce.sfsu.edu/sites/default/files/SAMPLE-SF%20State%20Learning%20Placement%20Agreement.pdf
On July 16, 2020, USCIS rescinded two policy memoranda regarding the adjudication of certain petitions for H-1B nonimmigrant classification and issued updated policy guidance in their place:
- Determining Employer-Employee Relationship for Adjudication of H-1B Petitions, Including Third-Party Site Placements (Reference AFM Chapter 31.3(g)(16)), HQ 70/6.2.8 (AD 10–24), issued January 8, 2010;1 and
- Contracts and Itineraries Requirements for H-1B Petitions Involving Third-Party Worksites, PM-602–0157, issued February 22, 2018.2
https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2020/PM-602-0114_ITServeMemo.pdf
In FY2018, the total petitions filed by affiliated or nonprofit research organizations were 16,329. The total number approved was 13,782. That’s an 84.4% success rate.
Other options do exist.
For example, a for-profit company that would not otherwise be a qualifying institution, can file an H-1B petition on behalf of a direct employee of the company and whose duties qualify as a specialty occupation. The company must maintain a relationship with a qualifying non-profit research organization and the new direct employee must spend 55% (i.e., a majority) of her time working on-site at the non-profit research organization.
The burden of proving eligibility for the benefit sought remains entirely with the petitioner. Section 291 of the Act, 8 U.S.C. § 1361; see e.g., Matter of Otiende, 26 I&N Dec. 127, 128 (BIA 2013). In preparation for filing a petition, read the Administrative Decisions why 15.6% failed:
The United States welcomes international students who come to study in our nation. While they’re enjoying their time in America, it is very important that they understand and comply with the requirements governing their stay to ensure that they don’t jeopardize their immigration status.
If the burden is too much for a self-represented applicant, properly engage a self-enrichment education teacher (SOC: 25–3021.00), like myself, to learn how to do this or have an attorney represent the entity as the client:
Foreign nationals (F-1, M-1 nonimmigrant international students) are facing severe economic hardship due to ICE policy regarding online courses during COVID-19 pandemic.
Donate via SMS text WELCOMETOOURUSA to 44321 or https://donate.whomentors.com
WHOMENTORSDOTCOM INC. will extend hospitality to them.
