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F-1 Visa Holders: SEVIS, Regulations, And Union Affiliationsby Sardar N. Durrani, Esq.
Introduction
Of course, aside from these academic restrictions, F-1 students also face strict restrictions on the type and amount of work they can do during their studies. The regulations provide several different employment scenarios, each of which has its own restrictions. Employment Restrictions For F-1 Visa Holders - 8 CFR 214.2(f)(9) Generally, students are free to pursue any type of work they wish while working towards their academic goals. F-1 students, however, do not enjoy such broad leeway. F-1 students may be employed, but their choices are limited. 8 CFR 214.2(f)(9) provides three different types of employment available to F-1 visa holders: on-campus employment, which is regulated the least, off-campus employment, which is regulated the most, and practical training. See generally 8 CFR 214.2(f)(9).
Significantly, the work must directly provide a student service. 8 CFR 214.2(f)(9)(i). Employment with a business not directly providing student services is not acceptable as on-campus employment. Examples of unacceptable on-campus employment include construction (building new campus facilities), or housekeeping of campus facilities. While these activities are service related, they do not directly provide a student service. "Off location" employment must be affiliated with the institution either through contractually funded research at the post-graduate level, or by means of the institution's established curriculum. Id. Also, whether on-campus or off-location, the employment must be "an integral part of the student's educational program." Id. An F-1 student may work at an acceptable on-campus job no more than 20 hours per week while school is in session. While school is not in session, a student may work full-time at an on-campus job. Id. Authorization is a two-step process involving the student, the DSO and the BCIS. The student must request a recommendation from the DSO, who must certify the recommendation in SEVIS. The student must also submit an economic hardship application on Form I-765 to the service center having jurisdiction over his or her place of residence. 8 CFR 214.2(f)(9)(ii)(D). The service center then makes the ultimate determination of whether or not severe economic hardship actually exists. 8 CFR 214.2(f)(9)(ii)(F). In the event that a student is granted authorization, the same "time limit" rules which apply to on-campus workers apply to off-campus workers. Students may work up to 20 hours per week while school is in session, and full-time during vacations, holidays, etc. Id. Up until now the discussion has focused on F-1 student academic and employment status. Now we shift our attention to the very gray area found in 8 CFR 214.2(f)(14). This regulation deals directly with strikes and labor disputes, but it is unfortunately not a well-crafted document, and is certainly open to multiple interpretations. The regulation states that any employment authorization is automatically suspended upon certification by the Secretary of Labor (or the Secretary's designee) that a strike or other work stoppage is in progress at the student's place of employment. 8 CFR 214.2(f)(14). This would seem to leave on-campus employees out of harm's way, since those students do not need to receive a "per se" authorization before beginning an on-campus job. One could also argue the opposite way for a strict interpretation of the regulation, arguing that if the authors sought to revoke work authorizations from on-campus employees, they would have so specified. Strangely though, such an outcome would necessitate some kind of punishment for on-campus employees, which they would have no chance at receiving-there would have to be, in effect, an injunction on the holding of jobs for on-campus students. Either way, there is a total lack of precedent on the subject which can only leave F-1 students faced with such a situation in a tenuous spot. The regulation is certainly a classic gray area. The regulation is clear enough when it comes to off-campus and practical training student workers. If there is a work stoppage, their authorization is automatically suspended. This is not to say that those students cannot walk the picket line with their co-workers, because the regulation does not bar these activities. The students will, however be unable to return to their jobs without reapplying for authorization at the end of the strike or work stoppage. This discussion seems to lead to an interesting question: What purpose does this regulation serve? On one hand, it may be enacted to keep F-1 visa holders-students-focused on their studies, and not on what the government would call "distracting" labor disputes. After all, the argument goes, these visa holders are student visa holders, not work visa holders. Their purpose in this country is to study. On the other hand, it is more likely in place to protect the jobs of U.S. citizens. Were workers at a student's employer to strike, he or she would have no choice but to join them under the current regulation-that is, they could not continue to work even if they wanted to-they would be forced to strike. Determining the true intent of the regulation is important, because of one case involving similar regulation. While no case law challenging the F-1 student visa regulation appears to exist; one case did strike down the parallel regulation for "H" visa holders. In WJA Reality v. Nelson, 708 F. Supp. 1268 (1989), striking Jai Alai [1] players in Florida had their work authorizations suspended by the INS following a strike by their players' association. The court struck down the regulation which granted the INS the power to remove the authorizations, which was at the time 8 CFR 214.2(h)(14), the parallel regulation to our "F" visa regulation. In its decision, the court noted that all employees are protected by the National Labor Relations Act, not merely those who are of a certain status. 708 F. Supp. at 1277. The court further noted "[s]uspending the work authorization of alien employees removes the rights they are entitled to as 'employees.'" Id. The regulation in question in WJA no longer exists. The reasoning behind the "F" visa regulation regarding strikes is very important because of the court's refusal to distinguish between non-citizen workers and citizen workers. As the court makes it clear, every employee is to be equally protected by the NLRA. Id. Whether or not the courts would apply the ruling in WJA is anyone's guess. There certainly are differences between "F" visa holders and "H" visa holders, but the language of the court was very clear, that an employee is just that-regardless of their status. For now, however, the actual outcome of such a case is unclear. Protected, Concerted Activity - 29 USCS § 157 Essentially, employees have the right to attempt to better their work experience. 29 USCS § 157 gives employees the right to join labor organizations, to bargain collectively, and to participate in concerted activity to better their work environments, pay, benefits, etc. The statute is open-ended and does not seek to strictly limit what is considered "concerted action," and therefore it does not seek to strictly limit protection for that action. Employees may join unions, but they need not, nor is joining a union necessary for there to be concerted action. NLRB v. Phoenix Mut. Life Ins. Co., 167 F2d 983 (7th Cir., 1948). "Concerted activities" are indeed given broad leeway. Protected activities include almost anything in which an employee (acting alone), or a group of employees could be found to have a legitimate interest. NLRG v. Kennametal, Inc., 182 F2d 817 (3rd Cir., 1950). And, nearly any activity done even by one employee on behalf of another employee is likely a concerted action, and therefore protected by the statute. Pacific Electricord Co. v. NLRB, 361 F2d 310 (9th Cir., 1966). Employees are given broad rights by Title 29. This is by no means a full representation of protected, concerted action, but is meant to be a simple introduction to the idea of concerted action. Employees cannot be persecuted for being union members, nor can they be persecuted for the concerted actions of unions or other groups. This is the essence of 29 USCS § 157. Conclusion There are many unknowns with regard to the material presented, how SEVIS will work in practice, and what additional steps lay ahead for F-1 visa holders. Without a court decision either in favor or against 8 CFR 214.2(f)(14), we cannot know for sure whether or not F-1 visa holders will enjoy the same protection as do all other employees. The regulation is narrow, and only provides for suspension of work authorization during time of strike. This presumably leaves the door open for other types of disputes and resolutions. This much is certain: F-1 visa holders are under a more watchful eye now than ever before. Because of SEVIS, students must always be cautious and remain current on his/her responsibilities and rights so they do not fall out of legal status. [1] Jai Alai is a court game in which players use a long hand-shaped basket strapped to the wrist to propel a ball against a wall. It is often associated with pari-mutuel betting in certain states, Florida being one of them. Copyright © 2003 Durrani Law Firm, Ltd.
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