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I-9 E-Verify Immigration Compliance

NLRB Says Unlawful to Threaten Deportation to Graduate Assistants

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By: Bruce Buchanan, Sebelist Buchanan Law PLLC

In a case where immigration law and labor law overlapped, the National Labor Relations Board’s Division of Advice issued an Advice Memorandum finding on one occasion that Washington University unlawfully threatened its graduate assistants who were involved in a union organizing campaign.

The dispute began when SEIU, Local 1 (Union) began an organizing campaign among graduate students (graduate assistants) at Washington University, many of which were foreign students. During the campaign, the University sent an email to all graduate assistants. One of the University’s statements was:

Foreign students...I have been told that if a graduate student union is formed,
and this union goes on strike...all foreign students will lose their visas and have
to leave the country
. In my opinion, this would be terrible for our students and
our program.
The next day, a union organizer stated unionization would not have any effect on the graduate assistant’s visa status and there was no possibility of them being deported.

Due to the contradicting information, the graduate assistants requested another meeting with the University. At this meeting, the University stated that they did not know what would happen, but information provided by the Department of Homeland Security indicated that if the Union were to strike, student-visa holders “could lose their status and be asked to leave the country.”

Later in the campaign, the University emailed a FAQ document addressing the foreign student visa issue. The University stated:

Question: Could a strike potentially have an impact on my F-1 visa status?
To obtain an answer, the University contacted an outside immigration attorney
and ICE. The information provided to the University is set out below.
Answer: If graduate students are required as part of their academic program
to “work” as graduate assistants teaching classes or conducting research,
then continuing to serve in that capacity is required in order for the student to
maintain a “full course of study” and thus to maintain their F-1 status.

As 8 CFR §214.2(f)(14) states: Any employment authorization, whether or
not part of an academic program, is automatically suspended upon certification
by the Secretary of Labor … or the Commissioner of the Immigration and
Naturalization Service …, that a strike or other labor dispute involving a work
stoppage of workers is in progress in the occupation at the place of employment.

Under such circumstances, F-1 visa students could be subject to deportation
whether they continued to “work” or not
. If students honored the strike and
caused the suspension of their work status under 8 CFR §214.2(f)(14), they
could be deemed out of status for having failed to maintain a “full course of
study.”
Based upon this evidence, the Division of Advice concluded “the Employer violated Section 8(a)(1) of the Act by threatening that, in the event of a strike, “all foreign students will lose their visas and have to leave the country.” Furthermore, the Advice memo stated: “While a strike could potentially lead to such consequences for at least some graduate student employees, the Employer’s statement overstated the requirements of the applicable regulations and the potential effects of those regulations on the affected graduate student employees. In many strike situations, graduate student employees in fact would not lose their visas, given the time that it takes the Secretary of Labor to certify the strike after being notified by the relevant school officials. Moreover, even where the Secretary of Labor does certify a graduate student employee strike, and foreign graduate student employees do lose their student visas, individual graduate student employees may well have some basis other than their student status for lawfully remaining in the United States, despite the Employer’s blanket statement that they all would ‘have to leave the country.’”

However, the Employer’s other statements were lawful, as they either set forth the exact language of the applicable Federal regulations or accurately conveyed the possibility that a strike “could” lead to the loss of student visas.

For answers to many other questions related to immigration compliance, I invite you to read The I-9 and E-Verify Handbook, a book that I co-authored with Greg Siskind, and is available at http://www.amazon.com/dp/0997083379.

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