Advocacy and Compliance

The Best of Both Worlds

David L. Di Maria Michael R. Pfahl, J.D.

Kent State University

Two Schools of Thought

Advocacy• International students

and scholars represent a unique subgroup within the university community. Their problems are often misunderstood or totally unknown. Immigration regulations make them dependent on university officials to serve as their advocates. The NAFSA Code of Ethics serves as an excellent guide for understanding the role of an advocate.

Compliance• Each action taken by a

university official affects the university’s exposure to liability, from governmental regulators to civil lawsuits. In order to ensure compliance, the university must act openly within its own offices and coordinate its efforts when interpreting immigration responsibilities.

Discretionary Decisions vs. Legal Interpretations

Issue PDSO/RO University Counsel

Main role Program administrator and part-time advocate

Legal interpreter and compliance officer

Reinstatement Discretionary decision Statutory interpretation

RCL Discretionary decision Statutory interpretation

CPT/OPT Discretionary decision Statutory interpretation

Program Extension Discretionary decision N/A

SEVIS Termination Authorization University interpretation

ICE/USCIS Site Visits Records production University representative

Issues involving students

Substantive Legal exposure

Private student issues Not related to core PDSO/RO duties

Not covered under most university practices

Constructive Knowledge

• When do I “know” and why should I report?• 8 CFR 214.3(g)(2)(ii)(A) – “any student who has failed to

maintain status.”• Leads to a question posed in a NAFSA 2009

presentation:• Does the PDSO or DSO terminate immediately upon

constructive knowledge of an event? Why?

• As related to employment in 8 CFR 274a.1:• (l)(1) “The term knowing includes not only actual

knowledge but also knowledge which lead a person, through the exercise of reasonable care, to know about a certain condition.

• Due Diligence• “The diligence reasonably expected from, and ordinarily

exercised by, a person who seeks to satisfy a legal requirement

When to involve Counsel?

• When you are asked to work outside of your regulatory role or circumvent an applicable provision of the Code of Federal Regulations.

• When you are about to interpret a regulation that will have an effect upon the university’s future administration of international students

• When you are served with a subpoena by USCIS, ICE, DOL, or any alphabet soup federal agency.

• When another department on campus is resisting compliance with your directives regarding a student/ student employment matter.

• When anyone brings up the phrase, “you’ll be hearing from my attorney.”

Barriers to Collaboration

• My counsel doesn’t know immigration law• This is “my” area. (works both ways)• Over-reliance on external “experts”• Over-reliance on “this is how we always did

it.”• The “we’ve” tried approach• Disinterest in international students by the

university community• Unavailable resources (lack of funding)• Lack of access to continuing training

Strategies for Overcoming Barriers

• Hold joint educational opportunities with your counsel – invite them to webinars, seminars, conferences.• Once a month at least.

• Discuss the opinions/interpretations of external “experts” with your counsel.

• Invite counsel to your campus events (coffee hours, cultural dinners, etc.).

• Invite counsel to semester/quarterly meeting with your office to go over critical issues.

• Call before the issue becomes an emergency. Attorneys appreciate a “heads up.”

Resources

• Catholic University of America • http://counsel.cua.edu/immigration/

• Kurzban’s Immigration Law Sourcebook• Available at www.aila.org

• NACUA and AILA• Attorneys at other institutions• Local immigration attorneys (the local bar

association)

• NAFSA Advisor’s Manual• Reference, not a bible.• Keeping up with the updates• Available to counsel

Case Study

• Dagvadorj v. DeFleur, 2010 N.Y. Slip Op. 01591 (3rd App. Div)• Facts:

• F-1 student attending SUNY Birmingham gets a tutoring job at SUNY Morrisville.

• This despite two or more previous emails from the DSO stating that the student is not eligible to work in such capacity without prior authorization.

• Fails to get prior authorization or notify DSO.• DSO reports unauthorized employment to DHS.• Student appeals, claims due process violation.

Case Study Continued

• Findings:• “A school’s DSO is responsible for monitoring each

student’s progress … and for reporting to the [DHS] any violation by a student of their visa status within 21 days ….”

• “Petitioner does not have a constitutionally-protected liberty interest in his F-1 visa status or an “inherent property right” in his visa.”

• [DSO] is a state official who does not have the power to revoke a visa. … She has no choice but to make this notification and has no role as to what impact, if any, such a notification will have on the student’s visa status.”

• Student has no right of due process to refute the DSO’s decision making process.

Discussion