By Dan Berger, Stephen Yale-Loehr and Jonah Vorspan-Stein

Student:  “I have been stuck in administrative processing abroad for four weeks now. I am going to miss the first week of classes. I’m still paying for my apartment and tuition in the United States.  I have talked to my professor, and she is going to ask the Provost to write a letter to the Embassy, to contact both senator’s offices, and to put out a story in the city newspaper to gain support.”

We want to do our best for our students, but how do we ensure that our efforts are effective? And how can we decide when an extra effort will be worthwhile? This blog post discusses the value of letters, congressional contacts, media, liaison, and litigation in the immigration process.

There has been an uptick in students from certain countries being “turned around” at airports, either for not having “temporary intent” or by “expedited removal.”  Unfortunately it is extremely difficult to convince Customs and Border Protection (CBP) to back down once an officer has decided that an individual is “inadmissible,” which may result in the student being stuck abroad for many months. These cases must be challenged one by one through personalized legal strategies. This trend will likely continue, especially given the policy change in 2017 concerning temporary intent for students.

Because our ability to intervene is limited once a student is turned around, our first job is careful advising on international travel. While we may feel we are not helping if we say “I don’t know” or “I’m not sure,”  this is sometimes the best answer. International travel involves risks – a security delay can happen in any case, and seems to be especially likely for nationals of Iran and other countries included in the President’s “travel ban.” Advisers provide the best service when they are well trained to offer clear, up to date information to help students make informed decisions. For students who decide to travel, we should share resources so they are prepared. [1] And if the student’s supervisors, professors, coaches, etc. know ahead about security delays, it is easier to react if that happens. [2]

When our students are stuck in a security delay or experience visa issues, it is our responsibility to evaluate all options to help, and act strategically.

I. Letters

Do letters from advisers, high-level school officials, or government officials help?  

Students may ask for letters to support a visa application abroad to try to speed up security delays, to invite family members to visit, etc. In our experience, generic support letters are not given much weight.  These letters are relatively common, and tend to be templates.  Moreover, the writer does not necessarily know about the substance of the case. For example, a congressperson will not know whether a student’s parents are likely to overstay a tourist visa or if a particular line of research falls under the Technology Alert List.

In our experience, letters may help if they are substantive, short, and detailed, such as:

  • An academic adviser describing the type of research the student would be conducting, and explaining the hardship s/he is suffering as a result of the student’s absence;
  • A foreign student adviser explaining a confusing visa history;
  • A university official asking for discretion, with specific details (such as what qualities led the student to be offered admission when requesting a travel ban waiver, any hardship the department is suffering as a result of the student’s absence, etc.)

II. Congressional Contacts 

Does it help to have a congressperson or senator contact federal agencies directly? 

This may help in specific situations. USCIS and DOS officers get regular congressional inquiries, and will not change a decision based on congressional interest alone.  To make the best use of congressional offices, we recommend networking with staff and immigration caseworkers, and congratulating them when their assistance is successful. The stronger your relationship with your local office, the more likely they will be responsive  in the future. Even though the student will make the direct request to the congressional office, the school may be helpful in clarifying the issue.

Congressional offices can be quite useful in:

  • Checking in on a delayed case.  The congressional office may not speed up the case, but the inquiry can confirm the case is in line and on track.  This is particularly helpful since international advisers now have fewer opportunities for individual case liaison, and the USCIS Contact Center tends to send template responses. A check in on a delayed case can also provide evidence of good faith effort if there is litigation later on. Schools should set up guidelines for when to make inquiries based on experience and communication with the congressional office staff – some wait three-four months, others longer or shorter.
  • Helping two government agencies talk to each other.  Sometimes it’s not clear where a file is, such as when a student files a green card then moves to a new state.  The congressional office can track down the file,and get it routed to the right place.  This is also helpful when a work card or green card is misdelivered and there is no tracking data from USPS.
  • Addressing bigger picture issues on a policy basis.  For this, data is key.  Be sure to have clear examples to show there is a trend or problem. Setting up a meeting with an individual who was or may be negatively affected by a policy helps personalize the situation.  Many of your students have powerful stories to tell.

Congressional offices may help (but make a backup plan- don’t count on it):

  • Adding information to the file before the application gets through the mailroom. For example: F-1 OPT is cancelled on October 1 after an employer had filed an H-1B petition. If the employee leaves the company and the withdrawal has not processed yet, the congressional office may be able to help to ensure the OPT is not cancelled
  • Advocating for discretionary decision, such as retroactive change of status.  We see this being much less likely to help than in previous years.

III. Liaison

Does it help to network with government agencies?  Will they really talk to us?

This is probably one of the best use of resources.  Good communication and working relationships with government officials can help avoid some problems before they start.  Officers can share warnings and advice.  Sometimes it is possible to alert CBP officials at the airport about a student traveling with an unusual situation.  You can also learn more about how to best advise students to react in a difficult situation. [3]

IV. Litigation

Should we consider going to court?

In many areas of federal law, lawsuits are the way that disputes are settled.  For example, the EPA and Department of Interior are involved in constant litigation.  Going to court may feel extreme or uncomfortable, but it can be a valuable tool to compel action on a delayed case (mandamus action) or to reverse an unreasonable decision under the Administrative Procedure Act (APA). See also a separate blog post on litigation.

V. Media

Is it helpful for the university press office to publicize a tough case? For example, if a student is stuck abroad in a security delay?  

In our experience, media attention is unlikely to influence an individual case. Media can influence public opinion and policy in the long-term, and can also serve as a deterrent for future misapplications of the law, but is unlikely to affect an individual’s case. Media attention can be an important element of a broader legal strategy, such as congressional contact or litigation. If a student wants to pursue this option, it is important to collaborate with an organization that has experience in public advocacy or the media relations office at your school.  Talking to a reporter is a skill, and sometimes the spin of an article is not what was intended.  Moreover, only certain officials are authorized to speak on behalf of the institution, and must direct press inquiries or comments through the centralized university communications office. Some schools will be more comfortable using media than others.

VI. Conclusion – Look to others who have been there before, and plan ahead

It can be a challenge to support your international population when tensions are rising and policies seem to change daily.  If you are unsure how to move forward with a particular case, seek out mentors and colleagues to brainstorm.  The key is being clear about the risks students face and the limitations of our tools. Establishing institutional protocols and having a well trained international office staff before an incident takes place is critical.

 

[1]  For example, rights at the airport and how to address a security delay abroad.

[2] A suggested model practice is to develop a template guidance document that provides common resources, encourages students to notify faculty, coaches,etc., and includes a legal disclaimer.

[3] Link.