On July 6, 2020, the U.S. Department of Homeland Security issued a new rule that bars foreign students from using F-1 and M-1 visas to participate in programs that are being conducted remotely as a result of the coronavirus outbreak.  The new rule as it relates primarily to qualifying enrollment and immigration consequences is discussed more fully in this alert from Pullman & Comley.  Universities employing such students, however, need to consider an additional consequence.  If a student goes out of lawful visa status because his or her program has gone fully remote, then the student is not authorized to work for the university any more than he or she is authorized to remain in the U.S. to study.  Crucially, this is true even if the student has job responsibilities that are themselves curricular – serving as a teaching assistant or lecturer for undergraduates, for example, while pursuing his or her own post-graduate studies.  In that example, it is the enrollment in the qualifying post-graduate program, not the teaching responsibilities, that underlies the visa, and when the program ceases to be qualifying, the teaching responsibilities cannot independently support continued lawful visa status.

It may be easy for the institution to overlook the lost authorization, because the I-9 that the human resources department completed for the student when placing him or her on the payroll likely will list an expiration of work authorization tied to the planned end of the program, not to the sudden and unexpected end of visa status brought about by the change to a remote curriculum.  Students who lose their lawful status in this way and who overstay may not inform the department or office where they are employed, much less HR, that they are out of status, and that fact may not be obvious to those with whom they work.  And students who pursue a change to another visa status to remain lawfully in the U.S. after losing the F-1 status may not understand, nor may their supervisors, that the new status, or the temporary reprieve that accompanies the pending change, does not authorize the students to continue to work.  Nonetheless, an I-9/payroll audit by the Department of Labor would find continued employment in those situations to be a violation by the university.  Thus a degree of proactivity in identifying student employees whose visas have been affected by a change to remote learning, and taking steps to ensure that they do not remain on the payroll beyond their lawful status, will be important to a good-faith effort to ensure I-9 compliance.

The new policy is an emerging and fast-changing issue that is already the subject of litigation.  Stay tuned to this blog for developments.

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