immigration & schools...the following presentation will discuss how issues surrounding...

Immigration & SchoolsAn Overview of Immigration Topics and

School Board Policies

ASBA Law Conference 2019

Presented by

Jessica Sanchez, Esq. Udall Shumway PLC

Phil D. Ortega, Esq. Udall Shumway PLC

Disclaimer

The information provided in this presentation is notintended to be legal advice for any specific situation.Please consult with your legal counsel for any specificlegal advice.

Introduction and Agenda

The following presentation will discuss how issues surroundingimmigration impact the following policy areas for school districts:

• Enrollment

• Non-Discrimination

• Bullying, Harassment, and Intimidation

• Student Records

• Interviews, Searches, and Arrest

• Professional Staff Hiring

Part I:

Issues Related to Students

ENROLLMENT

Plyler v. Doe

A School May Not Deny Enrollment to Children Based on Legal Citizenship Status:

• Plyler v. Doe, 457 U.S. 202 (1982).• Facts: A Texas statute withheld from school districts any

state funds for education of children not “legallyadmitted” into the United States. The statute waschallenged on behalf of a class of undocumentedchildren.

• Issue: Did the Texas law violate the Equal Protectionclause of the Fourteenth Amendment?

A School May Not Deny Enrollment to Children Based on Legal Citizenship Status:

• Plyler v. Doe, 457 U.S. 202 (1982).

• Holding: Yes. The Court held that the Equal Protection clauseapplies to documented and undocumented students alike.

• Reasoning: If the State is to deny a discrete group of children thefree public education that it offers to other children, that denialmust be justified by showing that it furthers a compelling stateinterest. The State was unable to show such an interest.

• Any person subject to the laws of a State is “within its jurisdiction”for purposes of the Fourteenth Amendment and can claim thebenefit of the Equal Protection clause.

Plyler v. Doe, 457 U.S. 202 (1982)

• Public schools and school personnel are prohibited under Plyler fromadopting policies or taking actions that would deny students access toeducation based on their immigration status.

• School officials may not require children to prove they are in thiscountry legally by asking for documents such as green cards,citizenship papers, etc. They may only require proof that the childlives within the school district attendance zone, just as they might forany other child.

• Schools should be careful of unintentional attempts to documentstudents' legal status which lead to the possible "chilling" oftheir Plyler rights.

Plyler v. Doe, 457 U.S. 202 (1982)

• Public schools may not:

• Bar access to a student on the basis of legal status or alleged legalstatus.

• Treat students disparately for residency determination purposeson the basis of their undocumented status.

• Inquiring about a student's immigration status, including requiringdocumentation of a student's legal status at any time.

• Make inquiries from a student or his/her parents which mayexpose their legal status.

Plyler v. Doe (and Title VI)

• A school may not require enrollment documents to be inEnglish. Likewise, a school may not require parent(s) or legalguardian(s) to translate enrollment documents from anotherlanguage to English.

• There is no legal basis for requiring documents in English.This requirement imposes an undue burden on the parent orlegal guardian of the child.

Plyler v. Doe

• In 2014, the US Department of Justice and the US Department ofEducation issued the following joint letter, further expanding on theruling in Plyler:

https://www.justice.gov/sites/default/files/crt/legacy/2014/05/08/plylerletter.pdf

• According to the joint letter:• A district may require students or their parents to provide proof of

“residency” within the district.

• For example, a district may require copies of phone and water bills or leaseagreements to establish residency.

Plyler v. Doe

• While a district may restrict attendance to district residents,inquiring into students’ citizenship or immigration status, or thatof their parents or guardians would not be relevant to establishingresidency within the district.

• Districts should review the list of documents that can be used toestablish residency and ensure that any required documentswould not unlawfully bar or discourage a student who isundocumented or whose parents are undocumented fromenrolling in or attending school.

Plyler v. Doe

• A school district may not bar a student from enrolling in its schoolsbecause he or she lacks a birth certificate or has records thatindicate a foreign place of birth, such as a foreign birth certificate.

• While the Department of Education requires districts to collectand report such information, districts cannot use the acquireddata to discriminate against students; nor should a parent’s orguardian’s refusal to respond to a request for this data lead to adenial of his or her child’s enrollment.

Plyler v. Doe

• A district may not deny enrollment to a student if he or she (or hisor her parent or guardian) chooses not to provide a social securitynumber. See 5 U.S.C. §552(a)

• If a district chooses to request a social security number, it shallinform the individual that the disclosure is voluntary, provide thestatutory or other basis upon which it is seeking the number, andexplain what uses will be made of it. Id. In all instances ofinformation collection and review, it is essential that any requestbe uniformly applied to all students and not applied in a selectivemanner to specific groups of students

McKinney-Vento

McKinney-Vento Considerations:

• The McKinney-Vento Homeless Assistance Act of 1987 (42 U.S.C. § 11301 etseq.) contains several programs to address homelessness.

• One such program is the McKinney-Vento Education for Homeless Childrenand Youth Program (“McKinney-Vento” or “McKinney-Vento Program”).

• This Program’s purpose is to address problems that homeless children have inenrolling, attending and succeeding in school.

• Public schools must ensure that homeless children have equal access to thesame FAPE as other children.

• This includes access to educational resources and services to enable them tomeet the State’s academic achievement standards to which all students areheld.

• Generally, McKinney-Vento services and supports are available to childrenregardless of their immigration status.

McKinney-Vento Considerations:

• https://www2.ed.gov/policy/rights/guid/unaccompanied-children.html

• Unaccompanied children who are in Department of Health and HumanServices (HHS) shelters receive services, including education services,while in custody.

• While unaccompanied children are not eligible for McKinney-Ventoservices while in HHS custody, the children may be eligible for McKiney-Vento services once they are released to live with sponsors if they meetthe eligibility requirements under the law (discussed next)

• Additionally, children who immigrate with their parents/guardians maybe eligible for McKiney-Vento services if they meet the eligibilityrequirements.

https://www2.ed.gov/policy/rights/guid/unaccompanied-children.html

Key Points – McKinney-Vento:• The term “homeless” is broad and may include children who:

• Lack a fixed, regular, and adequate nighttime residence;

• Share the housing of other persons due to loss of housing, economic hardship, or asimilar reason (sometimes referred to as doubled-up);

• Live in motels, hotels, trailer parks, or camping grounds due to lack of alternativeadequate accommodations;

• Live in emergency or transitional shelters;

• Are abandoned in hospitals;

• Are awaiting foster care placement;

• Have a primary nighttime residence that is a public or private place not designed for,or ordinarily used as, a regular sleeping accommodation for human beings;

• Are living in cars, parks, public spaces, abandoned buildings, substandard housing,bus or train stations, or similar settings; or

• Migratory children who qualify as homeless because they are living in circumstancesdescribed above.

Key Points – McKinney-Vento:

• Public schools must immediately enroll a homeless child, even if the child“is unable to produce records normally required for enrollment, such asprevious academic records, records of immunization and other requiredhealth records, proof of residency, or other documentation; or [] hasmissed application or enrollment deadlines during any period ofhomelessness.”

• Public schools must ensure that homeless students are not separatedfrom the mainstream school environment.

• Public Schools must also adopt policies to ensure that homeless childrenare not stigmatized or segregated on the basis of their homeless status.


• Public schools must keep homeless students in their schools of origin (schoolthe student attended when permanently housed or the school in which thestudent was last enrolled), to the extent that it is in homeless students’ bestinterests. This does not apply when contrary to the parent or guardian’swishes, or in the case of unaccompanied youth, the youth’s wishes.

• If there is a dispute over program eligibility, school selection or enrollment, thestudent shall be immediately enrolled in the school in which enrollment issought, pending resolution of the dispute.

• The parent or guardian or (in the case of an unaccompanied youth) the youthmust be given written notice and explanation of any decisions relating toeligibility, school selection or enrollment, including the rights of the parent,guardian or youth to appeal the decision.


• School districts must designate an appropriate staff member as a localhomeless education liaison. Liaisons have a number of specific dutiesprescribed in 42 U.S.C. § 11432(g)(6)(A)(i)-(x).

• At a parent or guardian’s request, homeless students must be provided withtransportation to and from their schools of origin.

• If the homeless child is unaccompanied, transportation to and from the schoolof origin must be provided at the request of the liaison.

• In addition to providing transportation to and from the school of origin at aparent, guardian or (for unaccompanied youth) liaison’s request, the schooldistrict must provide homeless children with transportation servicescomparable to those provided to other students.

Equal Opportunity/Non-Discrimination

Title VI Considerations

• Title VI of the Civil Rights Act of 1964 prohibits discrimination basedon a number of protected categories, including national origin, inprograms or activities receiving federal financial assistance.

• The US Department of Education Office for Civil Rights maintains aFAQ reference at the website below (which is paraphrased in the nextfew slides):

https://www2.ed.gov/about/offices/list/ocr/frontpage/faq/race-origin.html

https://www2.ed.gov/about/offices/list/ocr/frontpage/faq/race-origin.html

Title VI Considerations – OCR Guidance

• What does “race, color, or national origin” mean within the context ofTitle VI?• Discrimination on the basis of race, color, or national origin

includes discrimination based on a person’s actual or perceivedrace, color, national origin, ethnicity, or ancestry. This includesdiscrimination based on the country, world region, or place wherea person or his or her ancestors come from; a person’s limitedEnglish proficiency or English learner status; or a person’s actual orperceived shared ancestry or ethnic characteristics, includingmembership in a religion that may be perceived to exhibit suchcharacteristics (such as Hindu, Jewish, Muslim, and Sikhindividuals).


• Does Title VI protect only students?

• No. Title VI protects all persons from discrimination, includingparents and guardians, students, and to a limited degree,employees.

• What types of Title VI cases does OCR handle?

• OCR handles cases of race, color, and national origin discriminationinvolving a range of issues, such as discriminatory discipline, racialharassment, unequal access to educational resources, and denialof language services or equal educational opportunities to Englishlearners.

Title VI Considerations • What is racial and national origin harassment?

• Racial and national origin harassment is unwelcome conduct based on astudent’s actual or perceived race or national origin.

• Harassers can be students, school staff, or even someone visiting theschool, such as a student or employee from another school.

• Racial and national origin harassment can take many forms, including slurs,taunts, stereotypes, or name-calling, as well as racially-motivated physicalthreats, attacks, or other hateful conduct.

• Although none of the laws OCR enforces expressly address religiousdiscrimination, OCR can investigate complaints that students weresubjected to ethnic or ancestral slurs; harassed for how they look, dress, orspeak in ways linked to ethnicity or ancestry (e.g. skin color, religiousattire, language spoken); or stereotyped based on perceived sharedancestral or ethnic characteristics. Hindu, Jewish, Muslim, and Sikhstudents are examples of individuals who may be harassed for beingviewed as part of a group perceived to exhibit both ethnic and religiouscharacteristics.


• What are the responsibilities of school districts under Title VI toaddress racial and national origin harassment?• Title VI requires an educational institution to respond to racial or national

origin harassment that is sufficiently serious to deny or limit a student’s abilityto participate in or benefit from the recipient’s education programs andactivities (i.e., creates a hostile environment).

• When an educational institution knows or reasonably should know of possibleracial or national origin harassment, it must take immediate and appropriatesteps to investigate or otherwise determine what occurred. If an investigationreveals that the harassment created a hostile environment, the educationalinstitution must take prompt and effective steps reasonably calculated to endthe harassment, eliminate the hostile environment, prevent its recurrence,and, as appropriate, remedy its effects.


• How do educational institutions balance their Title VI obligations withindividuals’ First Amendment rights?• OCR has consistently reaffirmed that the Federal civil rights laws it enforces protect

students from prohibited discrimination, and are not intended to restrict expressiveactivities or speech protected under the U.S. Constitution’s First Amendment.

• The fact that discriminatory harassment involves speech, however, does not relievethe school of its obligation to respond if the speech contributes to a hostileenvironment. Schools can protect students from such harassment without runningafoul of students’ and staff First Amendment rights. … educational institutions canestablish a campus culture that is welcoming and respectful of the diverse linguistic,cultural, racial, and ethnic backgrounds of all students and institute campus climatechecks to assess the effectiveness of the school’s efforts to ensure that it is free fromharassment.

Title VI Considerations • What does Title VI require school districts to do for English learner

students?• Under Title VI, school districts must take affirmative steps to ensure that English

learner (EL) students (also sometimes referred to as English language learners orLimited English Proficient students) can participate meaningfully and equally ineducational programs and services. For example, school districts must:• identify EL students in a timely, valid, and reliable manner;• offer all EL students an educationally sound language assistance program; provide qualified

staff and sufficient resources to instruct EL students;• ensure EL students have equitable access to school programs, activities, and services;• avoid unnecessary segregation of EL students from other students;• monitor the progress of EL students in learning English and doing grade-level classwork;

remedy any academic deficits EL students incur while in a language assistance program;• move EL students out of language assistance programs when they are proficient in English

and monitor them to ensure they were not prematurely exited; and• evaluate the effectiveness of EL programs.

BULLYING, HARASSMENT, INTIMIDATION

Intersection of Title VI

• School Districts should adopt and train personnel on policies toaddress and promptly investigate complaints of bullying, harassment,and intimidation.

• When such complaints are based on a students membership in aprotected class, such as national origin, school personnel must alsoensure that they are responding to such complaints in accordancewith their Title VI complaint process.

STUDENT RECORDS

The Family Educational Rights and Privacy Act

• Under the Family Educational Rights and Privacy Act (FERPA), schooldistricts must maintain the confidentiality of all personally identifiableinformation in education records related to students. See 20 U.S.C.§1232g, et seq; and 34 CFR § Part 99.

• FERPA prohibits the disclosure of student records and personallyidentifiable information unless the parent or eligible student hasprovided written consent.

• Several exceptions apply where parent consent is not required

The Family Educational Rights and Privacy Act• The Department of Homeland Security and its ICE bureau is permitted

to have access to student records in order to monitor the stay ofinternational students pursuant to the Student Exchange and VisitorInformation System program, namely, those students in the countrypursuant to a “F”, “J” or “M” visas;

• There is no general exemption to FERPA that grants ICE agentsunfettered access to student information, or even to those studentssuspected of being undocumented.

• While there are exceptions to the prior written consent rule, forexample, directory information or a health and safety emergency,there is no real justification to include immigrations status in either ofthose exceptions.

The Family Educational Rights and Privacy Act• FERPA permits the disclosure of personally identifiable information to comply with a

judicial order or lawfully issued subpoena; however:• The school district (prior to disclosure) must make a reasonable effort to notify

the parent or eligible student of the order or subpoena in advance ofcompliance, so that the parent or eligible student may seek protective action,unless the disclosure is in compliance with—• (A) A Federal grand jury subpoena and the court has ordered that the

existence or the contents of the subpoena or the information furnished inresponse to the subpoena not be disclosed;

• (B) Any other subpoena issued for a law enforcement purpose and the courtor other issuing agency has ordered that the existence or the contents of thesubpoena or the information furnished in response to the subpoena not bedisclosed; or

• (C) An ex parte court order obtained by the United States Attorney General(or designee not lower than an Assistant Attorney General) concerninginvestigations or prosecutions of an offense listed in 18 U.S.C. 2332b(g)(5)(B)or an act of domestic or international terrorism as defined in 18 U.S.C. 2331.

INTERVIEWS, ARRESTS, SEARCHES

“Sensitive Locations” Policy

• The U.S. Immigration and Customs Enforcement (ICE) follows a policy set forth in a 2011memorandum:

https://www.ice.gov/doclib/ero-outreach/pdf/10029.2-policy.pdf

• The memo describes ICE’s policy on immigration enforcement actions (such as arrests,interviews, searches, and surveillance operations) at “sensitive locations.”

• The memo was updated in January 2018, but only with respect to enforcement actionsinside courthouses.

• According to 2011 memorandum “sensitive locations” include (non-exhaustive list):• Schools (pre-schools, primary schools, secondary schools, post-secondary schools, colleges and

universities, and other learning institutions such as vocational or trade schools);• Hospitals;• Churches, synagogues, mosques, or other institutions of worship, such as buildings rented for the

purpose of religious services;• The site of a funeral, wedding, or other public religious ceremony; and• Public demonstrations, such as a march, rally, or parade.


• As a general rule, any planned enforcement action at orfocused on a sensitive location covered by this policy musthave prior approval of a high level supervisor.

• ICE will give special consideration to requests forenforcement actions at or near sensitive locations if the onlyknown address of a target is at or near a sensitive location(e.g., a target's only known address is next to a church oracross the street from a school).


• Exceptions to the rule: ICE officers and agents may carry out anenforcement action covered by this policy without prior approval fromheadquarters when one of the following exigent circumstances exists:

• the enforcement action involves a national security or terrorism matter;

• there is an imminent risk of death, violence, or physical harm to anyperson or property;

• the enforcement action involves the immediate arrest or pursuit of adangerous felon, terrorist suspect, or any other individual(s) thatpresent an imminent danger to public safety; or

• there is an imminent risk of destruction of evidence material to anongoing criminal case.


• Actions not covered by this policy include actions such as:

• obtaining records, documents and similar materials from officialsor employees;

• providing notice to officials or employees;

• serving subpoenas;

• engaging in Student and Exchange Visitor Program (SEVP)compliance and certification visits; or

• participating in official functions or community meetings

ASBA Sample Policies

• IHAA © ENGLISH INSTRUCTION - Subject to the exceptions provided in A.R.S. section 15-753, all students in this School District shall be taught English by being taught in English.

• Definitions

• "Bilingual education/native language instruction" means a language acquisition process for students in which much or all instruction, textbooks, or teaching materials are in the child's native language other than English. "English language classroom" means a classroom in which English is the language of instruction used by the teaching personnel, and in which such teaching personnel possess a good knowledge of the English language. English language classrooms encompass both English language mainstream classrooms and sheltered English immersion classrooms. . . .

• English Immersion

• All students who are English learners shall be educated through sheltered English immersion during a temporary transition period not normally intended to exceed one (1) year. Once English learners have acquired a good working knowledge of English and are able to do regular school work in English, they shall no longer be classified as English learners and shall be transferred to English language mainstream classrooms. . . .

http://www.azleg.gov/FormatDocument.asp?inDoc=/ars/15/00753.htm&Title=15&DocType=ARS


• JB © EQUAL EDUCATIONAL OPPORTUNITIES - The right of a student to participate fully in classroom instruction shall not be abridged or impaired because of race, color, religion, sex, age, national origin, and disability, or any other reason not related to the student's individual capabilities.

• JE © STUDENT ATTENDANCE - The parent or guardian is charged by law with responsibility for the student's consistent school attendance. The Superintendent will enforce the laws regarding attendance, with consideration for the variables that affect children and families. The Superintendent will place emphasis on the prevention and correction of the causes of absenteeism.

• JFAA © ADMISSION OF RESIDENT STUDENTS - A student who is a resident of the District and who meets the applicable age requirements established by state law shall be admitted without payment of tuition to the school in the attendance area in which the student resides and may be admitted as a resident transfer student to another school in the District in accordance with the District's open enrollment policy.


• JFAB © TUITION/ADMISSION OF NONRESIDENT STUDENTS - For purposes of open enrollment a "nonresident pupil" means a student who resides in this state and who is enrolled in or is seeking enrollment in a school district other than the school district in which the student resides. A student who is not a resident of the District but is a resident of Arizona who meets the age and other requirements for open enrollment established by state law and District policy shall be admitted to a school without payment of tuition.

• JFABC © ADMISSION OF TRANSFER STUDENTS - Academic credit for students who transfer from private or public schools shall be determined on a uniform and consistent basis.


• JFABD © ADMISSION OF HOMELESS STUDENTS - This policy is intended to direct compliance with Arizona State Laws and Arizona Administrative Code and the McKinney-Vento Homeless Education Assistance Improvements Act of 2001, as amended by the Every Student Succeeds Act (ESSA) of 2015, and should be read as consistent with those documents.

The implementation of this policy shall assure that . . . homeless students are immediately enrolled in their school of origin or school of residence;

• JFABDA © ADMISSION OF STUDENTS IN FOSTER CARE - This policy is intended to direct compliance with Arizona State Laws, Arizona Administrative Code, and the Every Student Succeeds Act (ESSA) Foster Care provisions.


JFB © OPEN ENROLLMENT - No tuition shall be charged for open enrollment, except as authorized by applicable provisions of A.R.S. 15-764, 15-797, 15-823, 15-824, and 15-825.

JG © ASSIGNMENT OF STUDENTS TO CLASSES AND GRADE LEVELS - Students who apply for admission to grades two (2) through twelve (12) on the basis of prior schooling outside the District will be placed initially at the grade levels they have reached elsewhere







• JHB © TRUANCY - A child between the ages of six (6) and sixteen (16) failing to attend school during the hours school is in session is truant unless excused pursuant to A.R.S. 15-802, 15-803, or 15-901.

• JHD ©EXCLUSIONS AND EXEMPTIONS FROM SCHOOL ATTENDANCE(Chronic Health Conditions)





• JICK © STUDENT BULLYING/HARASSMENT/INTIMIDATION - Students are prohibited from bullying, harassment, or intimidation on school grounds, school property, school buses, at school bus stops, at school-sponsored events and activities, and through the use of electronic technology or electronic communication equipment on school computers, networks, forums, or mailing lists.

• Disciplinary action may result for bullying, harassment, or intimidation which occurs outside of the school and the school day when such bullying, harassment, or intimidation results in a substantial physical, mental, or emotional negative effect on the victim while on school grounds, school property, school buses, at school bus stops, or at school-sponsored events and activities, or when such act(s) interfere with the authority of the school system to maintain order. All suspected violations of law will be reported to local law enforcement.


• JIH © STUDENT INTERROGATIONS, SEARCHES, AND ARRESTS - School officials may question students regarding matters incident to school without limitation. The parent will be contacted if a student interviewed is then subject to discipline for a serious offense. A student may decline at any time to be interviewed by the School Resource Officer (SRO) or another peace officer.

• School officials have the right to search and seize property, including school property temporarily assigned to students, when there is reason to believe that some material or matter detrimental to health, safety, and welfare of the student(s) exists. Disrobing of a student is overly intrusive for purposes of most student searches and is improper without express concurrence from School District counsel.

• When a peace officer enters a campus providing a warrant or subpoena or expressing an intent to take a student into custody, the office staff shall request the peace officer establish proper identification, complete, and sign a form for signature of an arresting officer or interviewing officer. The school staff shall cooperate with the officer in locating the child within the school. School officials may respond to parental inquiries about the arrest or may, if necessary, explain the relinquishment of custody by the school and the location of the student, if known, upon contact by the parent.


• JR, STUDENT RECORDS - Required student records (regular and special education) will be prepared in a manner consistent with state and federal laws, the requirements of the Arizona Uniform System of Financial Records (USFR) and those of the Arizona Department of Libraries, Archives and Public Records. Retention periods and disposition of records shall be as specified in the USFR, the Arizona Department of Library Archives and Public Records and relevant federal statutes and regulations.

• The District will comply with the provisions of the Family Educational Rights and Privacy Act (FERPA) and the Individuals with Disabilities Education Act (IDEA), the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT ACT), and the Every Student Succeeds Act of 2015 (ESSA) in the establishment, maintenance, correction, and disposition of student records.

• JRE, STUDENT BIOMETRIC INFORMATION – Written permission of parent/guardian required.

• JRR, STUDENT SURVEYS – ARS 15-117

• Statutes and AGOs are referenced in each policy.

ASBA POLICY ADVISORY – MAY 2019

Volume 31, Number 1 May 2019

• Policy Advisory No. 648 Policy JFAA — Admission of Resident Students

Exhibits JFAA-EA, JFAA-EB

• Policy Advisory No. 649 Policy JFAB — Admission of Nonresident Students

Exhibits JFAB-EA, JFAB-EB

PAs Number 648 and 649 are essentially updates due to the revision of the Arizona Department of Education Arizona Residency Guidelines released on April 24, 2019.

Part II:

Issues Related to Employees

WHAT’S THE SCENARIO Applicant needs visa sponsorship or wants

you to talk to this J-1 agency or tells you they have an EAD card…..what’s next?

Reasons to Stop1. H-1B: who is authorized employer on I-797; how much time spent in

status; currently in status (I-94 valid); etc.?

2. J-1: who is authorized employer on DS-2019; is J-1 agency wiling to transfer J-1; does he or she possess a 212(e) waiver, etc.?

3. F-1 w/ OPT/EAD: possess EAD; is EAD valid; if not valid, but he or she has application receipt notice, is employment authorization automatically extended?

H-1B Specialty Occupation - Temporary Worker

• Specialty Occupation generally means: • Job requires Bachelors degree or higher

• Possess proper certification for position

• Ex: teachers, psychologists, administrators

• Temporary means:• Max of 6 years

• Extensions beyond 6 years are possible

• PERM/I-140 (discussed later)

• Visa allows initial entry of 3 years; renewable for 3 more

H-1B Process & Costs• Labor Condition Application (LCA) is requested from the

Dept. of Labor• DOL provides minimum salary based on job and location

(county)• Employer must pay minimum salary or higher

• I-129 petition is filed with USCIS• Approval is called an I-797 Notice of Action (provides who

Employer is)• Typically on I-797 is an I-94 (record of lawful entry status w/

validity dates)

• Costs & Attorney Fees• Initial filing $960; renewal $460

• District must costs and attorney fees; employee cannot pay fees (except Premium Processing (expedited processing) – $1,410)

• Title II-A funds

H-1B Liabilities & Responsibilities• Must pay minimum prevailing wage as determined by the DOL

• Pay fees associated with H-1B visa (not required to pay Premium Processing)

• Employ H-1B employees under the same working conditions and terms of employment as U.S. citizen workers

• Not use H-1B to displace or adversely impact U.S. workers

• Not use H-1B workers during strike or lockout

• Notify all workers regarding employment of H-1B employee (with specific salary and timing details)

• Cannot “bench” (leave is allowed)

• Maintain Public Access file If terminated, liable for the foreign worker’s return transportation (reasonable amount)• When terminated, inform employee in writing & withdraw sponsorship w/ USCIS

J-1 Visa • Created as Cultural and Educational Exchange visa

• J-1 agency sponsors visa & school employs visa holder• Contract between agency (sponsor) & school (employer)

• Department of State approves visa

• Typically valid for 3 years • Possibly renewable for 2 more (agency decision)

• Costs• District pays fee to sponsoring agency to employ (if applicable)

• Most often J-1 visa holder pays fee the agency

• Issues to be aware of• ASRS• Tax• Change of status to H-1B• 212(e) requirement

• Visa holder cannot change status to H1B until returns home for 2 years or until obtains a waiver

“Change of Status” J-1 to H-1B

• Permissible under immigration regulations; at times, not, under agreement with J-1 agency• Must not be subject to 212(e)

• “Cultural Exchange Visa”

212(e) Requirement

• J-1 visa holder cannot change or adjust status to H-1B, legal permanent resident, etc. until:• Returns to home country for two years; or

• Obtains I-612 waiver from USCIS (waives 212(e) requirement)• Waiver options: (1) no-objection from the home country (2) hardship to a citizen or legal

permanent resident spouse or child, (3) persecution in home country, (4) interested government agency.

J-1 Responsibilities/Obligations• Involve exchange teachers in school and community cultural

activities;

• Monitor the performance of exchange teachers in the classroom and in carrying out official responsibilities;

• Inform sponsor of any issues/concerns with J-1 visa holder; and

• Provide necessary insurance.

• Remember – each agency has its own agreement they will ask you to sign, and which you should adhere to.

F-1 Visa w/ OPT & CPT• F-1 is a student visa

• School controls visa• Optional Practical Training (OPT)

• At the end of their studies, visa holder may qualify to continue their education • Visa holder files for and obtains Employment Authorization Document (“EAD”)

• Up to 1 year • Up to 2 years for STEM degree

• Curricular Practical Training (CPT)• During studies, visa holder obtains permission from school to engage in employment related to

studies • Typically 20 hours a week or less• Authorization for employment would be indicated on visa holders I-20 (F-1 visa

receipt/info page)• Cost

• District pays $0 in fees • Change of Status to H-1B is available • Issues

• Tax• ASRS

EAD Category Examples

Employment Authorization Documents (“EAD”)

• Document showing an individual is authorized to work in the U.S.

• Attached to a status ex. pending legal permanent resident, OPT, DACA, asylum, refugee, etc.

• Each status has its own code indicating Class or Category of EAD

What’s Different about these Employees

• Treat like any other employee – can be terminated, put on leave, etc.

• Some exceptions -• H-1B:

• if terminated, must offer “reasonable cost of return trip home” and notify USCIS of sponsorship withdrawal

• If position or job site changes, may need to amend H-1B by filing petition

• J-1

• Follow rules in J-1 agency agreement re: termination, insurance, notification, etc.

• EAD

• Reverify on I-9 employee possesses work authorization on or before date EAD expires

THANK YOU!

Jessica S. Sanchez

[email protected]

Phil D. [email protected]

480-461-5330

http://www.azsba.org/

QUESTIONS