IMMIGRATION ISSUES FOR FINANCIAL AID OFFICERS

Presented to NYSFAAA 42BERARDI IMMIGRATION LAW

Rosanna Berardi, Esq.

OCTOBER 19, 2010

Rosanna Berardi, Esq.

•INS Inspector at Peace Bridge, Lewiston Bridge and Rainbow Bridge•INS Trial Attorney in New York City•Immigration Attorney at SUNY Buffalo•Senior Associate at large corporate firm•Current Founder and Managing Partner of Berardi

Immigration Law•2010 “40 Under 40” & “Who’s Who in Law”

Experience:

Today’s Agenda

Documented Students

•F-1 Status•J-1 Status•Title IV, HEA Tuition Assistance for battered immigrants

Undocumented Students

•DREAM Act Quick Facts•In-state tuition policies for NY State

Q &

A

DOCUMENTED STUDENTS

F-1 Status• Must have sufficient funds to be

self-supporting• School must be approved by USCIS • Must be proficient in English (or taking courses to lead to proficiency)

• Must take 12 credit hours per semester• Must have I-20 signed annually• Must complete studies by “date of completion” OR obtain an extension• Must maintain residence abroad

Can Students Work F-1?

RULE:No employment during 1st academic year except for “on-campus” employment which can begin immediately.

On-Campus Employment

•Can work on school premises or at off-campus location if “educationally affiliated” with school•20 hours per week during school session

•40 hours per week during semester/summer session•Does NOT require CIS authorization

Off-Campus Employment

•OPT is permission to work in a job related to your areas of study•Must be in valid F-1 status and complete TWO full-time academic semesters•OPT application must be approved by CIS•OPT can be used for part-time employment or full-time employment during semester breaks

Optional Practical Training Rules

Off-Campus Employment

OPT Deadlines• OPT application must be received by CIS before

the “date of course completion” stated in Part 5 of your Form I-20

• Application should be made at least 90 days prior to your employment start date

Off-Campus Employment

•CPT is employment related to an internship, co-op or field placement that is “integral” to your field of study

•CPT does NOT require CIS approval; rather, approval from the College or University

Curricular Practical Training Rules

STEM

• http://www.ice.gov/sevis/stemlist.htm• Must have received a degree in the STEM Designated Degree Program List• 17-month extension• Must currently be in

post-completion OPT based on a STEM degree

STEM

• Computer Science Applications• Actuarial Science• Engineering / Engineering Technologies• Science Technologies• Biological and Biomedical Sciences• Mathematics and Statistics• Military Technologies• Physical Sciences• Medical Scientist

J Visa

The J1 visa is a nonimmigrant visa which allows foreign nationals to enter the U.S. to participate in exchange programs to promote the sharing of knowledge and skills in education, arts and sciences.

J Visa Examples

Private sector programs:•Alien Physician•Au Pair•Camp Counselor [Summer camp]•Intern•Student, Secondary School•Work/Travel•Teacher•Trainee

Government and academic programs:•Government Visitor•International Visitor•Professor and Research Scholar•Short-Term Scholar•Specialist•Student, College/University

2-Year Home Return Rule

Participants in J visa program are required to return to their home country for two years at the end of the exchange visitor program if:

• The program was financed in whole or in part directly or indirectly by the U.S. government or the government of the exchange visitor's nationality or last residence;

• The exchange visitor entered the U.S. to receive graduate medical education or training;

• The exchange visitor is a national or permanent resident of a country which has deemed the field of specialized knowledge or skill necessary to the development of the country, as shown on the Exchange Visitor Skills List.

2-Year Home Return Rule

If the exchange visitor is subject to the two-year home-country physical

presence) requirement, he cannot change his status to that of H, L, K, or immigrant lawful permanent resident (LPR) until he has returned to his home country for at least two-years or received a waiver of

that requirement.

Title IV

Immigrant domestic violence survivors and their children with:(1)an approved I-130 relative petition filed by a spouse or a parent, (2)an I-360 self-petition under the Violence Against Women Act (VAWA) that is either approved or sets forth a prima facie case, or (3)an approved application for suspension of deportation or withholding of removal under VAWA should now be able to obtain federal financial aid, assuming that they meet the other eligibility criteria. 

UNDOCUMENTED STUDENTS

Urban Institute estimates 65,000 undocumented students (children born abroad who are not U.S. citizens or green card holders) graduate from U.S. high schools each year

These children are guaranteed an education in U.S. public schools through grade 12.

No federal or state law currently prohibits admission of undocumented immigrants to U.S. colleges and universities but institution policies vary.

DREAM Act

NOT the Law of the Land

Development, Relief and Education of Alien Minors Act

Seeks to help those individuals who meet certain requirements, have an opportunity to enlist in the military or go to college and have a path to citizenship which they do not currently have.

NY State Tuition Policies•There is a conflict between Federal and State law regarding the eligibility of undocumented students for in-state tuition rates.

•Federal law passed in 1996 prohibits illegal aliens from receiving in-state tuition rates at public institutions of higher education. Specifically, Title 8, Chapter 14, Sec. 1623(a) states: "an alien who is not lawfully present in the United States shall not be eligible on the basis of residence within a State (or a political subdivision) for any postsecondary education benefit unless a citizen or national of the United States is eligible for such a benefit (in no less an amount, duration, and scope) without regard to whether the citizen or national is such a resident."

•Several states -- Texas, California, New York, Utah, Illinois, Washington, Nebraska, New Mexico, Oklahoma and Kansas -- have passed state laws providing in-state tuition benefits to illegal aliens who have attended high school in the state for three or more years

NY State Tuition Policies

Undocumented students qualify for in-state tuition if:

- Attended for at least 2 years an approved NYS high school/GED program - Graduated form the High School/received a GED issued in NYS- Applied to SUNY, CUNY, state-operated or community college within five years of receiving high school diploma or GED

-Filed an affidavit that s/he has filed or will file application for permanent residence-Showed proof of domicile (rent checks, high school records, etc)

Undocumented students CANNOT apply for state or financial aid but CAN apply for private scholarships

Federal Tuition Assistance

Federal Student Aid If the student is a US Citizen but one or more parents are undocumented, the student is eligible for federal student aid.

However, if the parents supply a fake or stolen social security number (SSN) on the form, the student's FAFSA will be rejected when the parent's social security number fails to match. The FAFSA may also be rejected when the parents submit a SSN or Taxpayer Identification Number (TIN) that is valid for work purposes only. If the parents do not have a social security number or the social security number fails the match, they should use 000-00-0000 as their social security number on the FAFSA form.

Contact us

Berardi Immigration Law 2314 Wehrle DriveBuffalo, NY 14221Ph: 716.634.1010Fax: 716.634.1074

www.berardiimmigrationlaw.com

rberardi@usimmlawyer.com