Poorly Worded, Ambiguous Regs Are Par for the Course:
Developing policies when F & J regs aren't clear
2007 NAFSA Conference: Minneapolis, MN
Wednesday, May 30
Session Web Page: www.isss.umn.edu/nafsa
Co-chairs
Alisa Eland
Assistant Director
University of Minnesota
Presenters
Mary Idzior
Director of Visa Services
Princeton University
Eric Kroetsch
International Student & Scholar Advisor
University of Minnesota
William Stock
Partner
Klasko, Rulon, Stock & Seltzer, LLP
Contributions to session content made by Martha Wailes, Scholar Advisor, Indiana University
A Framework for Analyzing Ambiguous Regulations
1. Read the NAFSA manual for the regulation citation and any interpretive notes.
2. To be sure of what is written in the regulations, consult other resources, such as the “Laws
and Regulations” link at <uscis.gov>, the American Immigration Lawyer Association’s
publication of the Code of Federal Regulations or Interpreter Releases published by
Thomson West.
3. Ask “What is the spirit of the law?” (e.g. The spirit of F-1 practical training is to gain
practical experience in one’s field of study—not to make money or to position one’s self for
long-term employment.)
4. Know your institution’s general attitude toward the regulations (e.g. if not prohibited, it is
allowed).
5. Ask the following questions:
a. Is there room for interpretation of the regulations?
b. If there is room for interpretation, is the interpretation defensible?
c. Are institutional policies more restrictive than the regulations?
d. If this path is taken, what are any risks to the individuals involved, the F or J program,
and the school?
e. What are any potential issues if questioned by the DOS or DHS?
f. Will this decision set a precedent that others will ask for, and will that be a problem or
not?
g. If there is a risk, how likely will the risk become reality?
6. If further input is needed, consult with knowledgeable colleagues on and off campus.
Possible resources include campus legal counsel, mentors, listservs, NAFSA regulatory
ombudsperson, and external immigration attorneys.
7. Discuss the issue within the office to make sure there is consensus on the approach.
8. Make some kind of written record regarding the policy for a given situation.
9. Be willing to re-examine the policy.
Handout duplication provided by Klasko, Rulon, Stock & Seltzer, LLP.
For information or additional copies, contact William Stock <[email protected]> or <www.klaskolaw.com>.
Case #1: Reduced Course Load for F-1 Student
Due to Temporary Illness or Medical Condition
A student in F-1 status visits your office at the beginning of the semester and provides a note from a licensed M.D.
confirming that she is pregnant and suggesting that she reduces her activity. The M.D. does not explicitly recommend in the
letter that the student take a reduced course load.
APPLYING THE FRAMEWORK
1.
The regulation: 8 CFR§214.2(f)(6)(B)
“The DSO may authorize a reduced course load (or, if necessary, no course load) due to a student's temporary illness or
medical condition for a period of time not to exceed an aggregate of 12 months while the student is pursuing a course of
study at a particular program level. In order to authorize a reduced course load based upon a medical condition, the
student must provide medical documentation from a licensed medical doctor, doctor of osteopathy, or licensed clinical
psychologist, to the DSO to substantiate the illness or medical condition….”
The Ambiguity
For the DSO to grant a RCL (reduced course load), is it enough that the medical professional simply substantiates the
illness or medical condition through documentation, as the regulation above implies?
2.
Other resources
More information about an F-1 RCL due to a medical reason is found in the December 11, 2002 Federal Register. “The
DSO may also authorize a student to refrain from taking any courses due to medical condition or illness if the severity of
the condition warrants such authorization.” From this regulation one can reasonably conclude that the severity of the
medical condition or illness must be accessed before any RCL is granted in this case.
3.
The spirit of the law
The medical condition must justify an interruption or reduction in a full course of study.
4.
The institution’s general attitude toward the regulations
While the U of MN’s policies are consistent with F-1 regulations, the U of MN has a history of taking a more liberal
stance regarding ambiguous regulations, as long as this stance can be reasonably justified.
5.
Ask the following questions:
a. What are any risks to the individuals involved, the F or J program, and the school if we take this path?
i.
“Inability to offer a reasonable explanation will be construed as intentional abuse of the student school
program” (INS Operations Instructions as cited in NAFSA Manual, 2006, p. 175-176). It makes sense to
retain documentation that indicates that the severity of the condition warrants a RCL.
ii.
No medical privacy issues if the medical condition is not required to be indicated in the doctor’s letter.
b. Will this decision set a precedent that others will ask for, and will that be a problem or not?
If no documentation is required to indicate that the severity of the medical condition that warrants a RCL, this
decision could set a precedent that others will ask for. Such a precedent could be a problem if there are numerous
requests for RCLs due to medical reasons without documentation to indicate that the severity warrants a RCL.
6.
Discuss the issue within the office to make sure there is consensus on the approach.
7.
Make some kind of written record of what the policy is for a given situation.
8.
Be willing to re-examine the policy.
SUMMARY
For the DSO to grant a RCL, is it enough that the medical professional simply substantiates the illness or medical condition
through documentation, as the regulation above implies?
According to 8 CFR§214.2(f)(6)(B), substantiation of the illness or medical condition by the medical professional is
sufficient to grant a RCL. Nonetheless, the U of MN requires (1) a doctor’s letter that does not need to state the specific
medical condition, but does indicate that the condition requires less than full-time or no enrollment for a specific semester,
and (2) a form signed by the student’s academic adviser recommending the RCL.
2
Case #2: F-1 Curricular Practical Training
A student submits an application for Curricular Practical Training. He and his advisor have arranged for him to work at a
company for the summer months and will register for an independent study in the fall semester. Do you approve the CPT?
APPLYING THE FRAMEWORK
1.
The regulation: 8 CFR§214.2(f)(10)(i)
An F-1 student may be authorized by the DSO to participate in a curricular practical training program that is an integral
part of an established curriculum. Curricular practical training is defined to be alternative work/study, internship,
cooperative education, or any other type of required internship or practicum that is offered by sponsoring employers
through cooperative agreements with the school…
2.
Other resources
Regulatory history: The concept of curricular practical training
• Formally introduced in May 1987
• Last defined in the October 29, 1991 regulations with supplementary information in the preface to the regs
• Subsequent agency guidance to clarify the terms “required” and “sponsored”
o *INS Memo January 22, 1992; Interpreter Releases Feb 10, 1992, p. 187-188
o *INS Memo May 4, 1992; Interpreter Releases 1992, p. 587
• SEVIS additions to the regs
Clearly curricular practical training includes: Cooperative education; training required of all students for the degree; and
optional internships, practical experiences, and field work.
3.
The spirit of the law
“An integral part of an established curriculum” where the student may “engage in temporary employment to gain
practical experience in his or her field of study.”
4.
The institution’s general attitude toward the regulations
5.
Ask the following questions:
a. Does CPT include independent study or dissertation credit?
A January 22, 1992 memo discussed CPT required for a particular course but not for all students pursuing a degree.
“The training program must be listed in the school’s course catalog with the assigned number of credits and the
name of the faculty member teaching the course clearly indicated. There should also be a description of the course
with the course objectives clearly defined. A student enrolled in such a course may work out the details of their
specific projects within the established course objectives under the supervision of the instructor.”
b. Must a student with authorized CPT maintain full-time status during CPT?
c. What constitutes full-time status during CPT?
Schools handle enrollment for internships and training differently.
d. Must a student be enrolled while actually working?
e. Can a student be authorized CPT during summer and enroll in a fall CPT course?
Does a student receive academic credit for employment or academic credit for the other requirements, such as a
written paper, site visit, etc.?
An academic advisor’s recommendation is not required anywhere in the regs, but it is helpful to involve a student’s
academic advisor or major professor in the discussion about whether or not a training program meets the
requirements of an individual student’s program, as well as to get documentation for the student’s file.
6.
Discuss the issue within the office to make sure there is consensus on the approach.
Adhere to a narrow definition of curricular practical training, which facilitates eligibility decisions but severely limits the
number of students who can participate, or take a more expansive view that requires a thorough and difficult
examination of the nuances of each practicum, but opens this important education benefit to a greater number of
students. Policies need to be (1) developed through discussion within the office and with other relevant campus offices;
(2) established and followed consistently so that the legitimacy of a CPT authorization is in good faith; (3) able to deal
with new situations that arise; and (4) able to fit into your interpretation and make it work.
* Available at the session Web site: www.isss.umn.edu/nafsa
3
Case #3: J-1 Academic Training
If all academic training eligibility criteria are met, would you approve academic training for a tenure track position at a
university?
APPLYING THE FRAMEWORK
1.
The (primary) regulation: 22 CFR§62.23(f)(3)
• In U.S. primarily to study rather than engage in academic training
• AT is directly related to major field of study
• In good academic standing
• Receives written approval in advance from RO
Post-doctoral Training
• For post-doctoral training, does not exceed a total of 36 months, inclusive of any prior academic training in the
U.S. as an exchange visitor, or the period of the full course of student in the U.S., whichever is less.
Other relevant regulations
• “Tenure Track” in Research Scholar and Professor Regulations
22 CFR§62.20 (d) Visitor eligibility: An individual may be selected for participation in the Exchange Visitor
Program as a professor or research scholar subject to the following conditions: (i) The participant shall not be a
candidate for tenure track position; and…
2.
The spirit of the law
Purpose of Exchange Visitor Program
Mutual Educational and Cultural Exchange Act (Fulbright-Hayes Act) of 1961 (Public Law 87-256, as amended, 22
USC§2451, et seq.); 22 CFR§62.1(a & b)
The purpose of the Act is “to increase mutual understanding between the people of the United States and the people
of other countries by means of educational and cultural exchanges.”
The purpose of the Program is “to provide foreign nationals with opportunities to participate in educational and
cultural programs in the United States and return home to share their experiences, and to encourage Americans to
participate in educational and cultural programs in other countries.”
3.
The institution’s general attitude toward the regulations
Does your institution generally allow what is not specifically prohibited in the regulations or only allow what is
specifically outlined in the regulations? Are there exceptions to your school’s approach?
4.
Ask the following questions:
a. Will this decision set a precedent that others will ask for, and will that be a problem or not?
b. If this path is taken, what are any risks to the individuals involved, the F or J program, and the school?
c. If there is a risk, how likely will the risk become reality?
4
Introduction of the Topic
Poorly worded, ambiguous
regs are par for the course:
Developing policies when
F & J regs aren't clear
Alisa Eland: University of Minnesota
Mary Idzior: Princeton University
Eric Kroetsch: University of Minnesota
William Stock: Klasko, Rulon, Stock & Seltzer, LLP
Introduction of the Topic, continued
• The issue: How to develop policies when F & J
regulations are not clear
• The importance: The interpretation of a ambiguous
regulation will effect not only the student or
exchange visitor (EV), but also one’s organization
or institution.
Logistics of the Session
• Session Objective: To discuss the process
used to make decisions when interpreting
ambiguous regulations
1. A framework for analyzing ambiguous
regulations
• Caveat: The opinions expressed here are just
that—opinions. Governmental organizations
might or might not agree with the opinions
expressed here.
2. 3 cases to demonstrate use of the
framework
3. Q and A with the audience
1
A Framework for
Analyzing Ambiguous Regulations
A Framework, continued
1. Read the regulation and any interpretive notes
in the NAFSA manual.
6. Questions to ask for the case
2. Search for other helpful publications.
7. Discuss the issue within the office to make sure
there is consensus on the approach.
3. What is “the spirit of the law?”
8. Make some kind of written record regarding the
policy for a given situation.
4. Know your institution’s general attitude.
9. Be willing to re-examine policy
5. Institution’s general attitude toward regs.
Case #1: Reduced Course Load Due to
Temporary Illness or Medical Condition
Case #1, continued
5. Institution’s general attitude toward the regs.
1. Read the regulation and any interpretive
notes in the NAFSA manual
6. Questions to ask for this case
2. Where is the ambiguity?
7. Discuss the issue within the office to make
sure there is consensus on the approach.
3. Search for other helpful publications
4. What is “the spirit of the law?”
8. Make some kind of written record regarding
the policy for a given situation.
2
Case #2: CPT
Case #2, continued
5. Institution’s general attitude toward the regs.
• Read the regulation and any interpretive
notes in the NAFSA manual
• Where is the ambiguity?
• Search for other helpful publications
• What is “the spirit of the law”
6. Questions to ask for this case
7. Discuss the issue within the office to make
sure there is consensus on the approach.
8. Make some kind of written record regarding
the policy for a given situation.
Case #3: Academic Training
Case #3, continued
Question:
1. Read the regulation and any interpretive
notes in the NAFSA manual
If all academic training eligibility criteria are
met, would you approve academic training for a
tenure track position at a university?
2. Where is the ambiguity?
3. Search for other helpful publications
4. What is “the spirit of the law”
3
Case #3, continued
5. Institution’s general attitude toward the regs.
6. Questions to ask for this case
In Summary…
7. Discuss the issue within the office to make
sure there is consensus on the approach.
8. Make some kind of written record regarding
the policy for a given situation.
Time for questions…
Thank you for attending
our session.
Please complete a
session evaluation.
4