Essay explores immigration issues for traveling faculty members
As colleges and universities continue to sprout satellite campuses overseas, partner with foreign institutions and offer programs and trips abroad, institutions and their faculty who perform services abroad need to be aware and cautious of the very real immigration pitfalls of these arrangements. It is important to note that immigration issues may apply to faculty members regardless of the duration of the program or the physical presence of the institution within the particular jurisdiction.
A comparison of some of the various jurisdictions demonstrates how very different the immigration laws can be. We surveyed higher education lawyers from the Employment Law Alliance's Higher Education Council with expertise in immigration to get a flavor of the various types of requirements around the world – including those seeking to teach short-term in the United States.
Faculty members traveling to Canada on business should be careful on the status they seek upon entry, as this will regulate the activities they are allowed to do while on Canadian territory. Simply entering as a tourist for a short-term stay can have long-reaching consequences. Nadine Landry of the Canadian law firm of Lavery, de Billy L.L.P., cautioned that misrepresentations could lead to the person being inadmissible to Canada, not just for the particular trip, but also for the future.
In addition to obtaining the proper visa, work in Canada, as defined under applicable legislation, requires a work permit. Remaining on the foreign payroll or not receiving remuneration in Canada does not cancel the need for a valid permit. Nor does the fact that it is a short-term trip necessarily excuse compliance with the permit requirement. Both the employer and the foreigner could be subject to penalties and fines for failure to comply with permit requirements.
Generally, in Canada, in order to apply for a work permit, one must first obtain a Labour Market Opinion (LMO). Landry explained that there are several LMO exemptions. Most commonly used for U.S. faculty members is the professionals category under the North American Free Trade Agreement (NAFTA) for university teachers, available for American and Mexican citizens only. Other LMO exemptions applicable to all foreigners include examiners and evaluators, i.e. foreign professors and researchers who direct the studies and review the work done by university students that are under their tutelage or who evaluate academic university programs or research proposals.
In Canada, reciprocal employment provisions are used for guest lecturers and visiting professors. Faculty members invited to give a series of lectures and occupy a temporary position of a non-continuing nature for a period of less than one semester may benefit from this LMO exemption. Visiting professors, working for no more than two years by taking a position with a postsecondary institution and retain their position abroad, also fall into that category. Finally, work related to a research and for educational or training program may also fall under a LMO exemption. Therefore, many LMO exemptions category are available for faculty members traveling to Canada for work related purposes, making Canadian work permits accessible.
The European Union
Heading across the pond, Sasha Stepanova of the Czech Republic firm of Kocian Solc Balastik notes that E.U./EEA citizens have the right to freely move between and work in other EU/EEA countries, whereas any non E.U./EEA citizens (e.g., U.S. citizens) must in the vast majority of cases apply for both a work permit and a residency visa.
The good news for short-term visiting faculty is that there are certain limited exceptions – for example academics or researchers who will be visiting an institution for a period of shorter than three months will in some countries be exempted from the need for a work permit. An additional exception from work permits in some countries is available when teachers are teaching in foreign languages within the framework of an international educational program.
Stepanova also cautions that institutions should not confuse work permit requirements with visa requirements. For some non E.U./EEA citizens, there is a visa entry requirement for simply entering into certain E.U./EEA countries. This will still apply even if there is no need for a work permit. For example, the Schengen visa allows for six months stay in the E.U./EEA zone. If you are a U.S. citizen and wish to stay more than three months in the Schengen Zone, you will require a Schengen visa.
According to Stepanova, the most important issue for any non-E.U./EEA academic preparing to come to Europe is to ensure sufficient time for the visa and work permit application processes. As a rule, the applications are generally required to be made from your home country (i.e. not after your arrival in the destination) and commonly take 2-4 months to process. Entering and staying on the territory in breach of these conditions and working without a permit where one is required may result in substantial fines or deportation. Despite what may seem to be onerous provisions, there is regular traffic of academic exchange in European universities, the key is to prepare in advance and ensure sufficient time for your application and availability of all documentation, which may often need to be apostilled (not just photocopied).
Continuing east, we also spoke with Emma Higham (Qatar) and Sara Khoja (Dubai) of the law firm of Clyde & Co. Khoja explained that any individual working in an Arabian Gulf Cooperation Council (AGCC) country (of which there are currently six member states: Sultanate of Oman, Kingdom of Saudi Arabia (KSA), Kingdom of Bahrain, Emirate of Qatar, United Arab Emirates (UAE), and Emirate of Kuwait) must have a locally based sponsor for work permit and residency visa purposes. This sponsor would also be the locally based employer, and an integral part of the sponsorship process is the registration of an employment contract with the relevant authorities evidencing the minimum employment terms and conditions. Higham explained that in Qatar some of the education facilities located at Education City or associated with Qatar Foundation have been granted a formal waiver from this requirement.
Such sponsorship is employer-specific and also location-specific. It enables the holder to work exclusively for the sponsoring entity and in the specified location on the visa. In limited circumstances it may be possible to obtain authorization to second an employee from one entity to another, other than the one providing sponsorship.
Within this framework, obtaining short-term visas can be problematic. Business visas are obtainable but they do not permit a holder to work, merely to attend meetings, establish and develop business contacts. In the UAE, employers registered with the Ministry of Labour can obtain what are known as mission visas, which are 14 days, three months, or six months in duration, and which are designed to enable an employer to resource short-term projects requiring skilled professionals. Once an employee has completed the mission visa period, he or she must depart the UAE and cannot change immigration status to a long-term work permit and residency visa. The employer can apply for a full-term work permit and residency visa once the employee has returned to his home country. It is also worth noting that the KSA labor law specifically excludes individuals working in KSA on temporary assignment for two months.
Institutions must also be cognizant of the immigration requirements that pertain to visiting faculty in the United States. As Leigh Cole, an immigration expert from the U.S. law firm of Dinse, McKnapp & Andrew notes, “teachers” may enter the United States as visitors for customary academic activities or for scientific, educational or professional conventions, conferences and seminars, independent research, to observe business, professional or vocational activity and similar activities. However, she quickly noted that there is a separate rule for foreign visiting faculty who are merely participating in a short-term program here in the U.S. Visitors for customary academic activities such as lecturing or research may accept honoraria payments and incidental expenses for up to nine days of activities with no more than five institutions or organizations within any six-month period.
In the U.S., visitors may need a B-1/B-2 visitor visa in their passport or their country of citizenship may qualify for the Visa Waiver Program. For short-term teaching assignments, colleges and universities that are designated J-1 sponsors may issue J-1 documentation for professors (five years) and specialists (one year) and short-term scholars (six months) who will engage in teaching. For longer-term teaching positions, institutions may obtain H-1B temporary status for professors, visiting faculty and lecturers. H-1B status is available for up to six years and the annual limit on H-1B approvals (the “H-1B cap”) doesn’t apply to colleges and universities. College and university teachers who are citizens of Mexico and Canada (TN) and Australia (E-3) qualify for certain “temporary” status categories (TN and E-3) that may be renewed indefinitely.
With institutions of higher education moving full speed ahead to keep up with the pace of global programs, it is critical that faculty be positioned to move between campuses or conduct traveling programs without getting slowed by immigration snags. A thorough review of your institution's projected global presence and the local procedures required as a result of that presence can ensure that your institution's foreign programs are not delayed or denied due to immigration-related issues.