Legal Immunity for International Student Advisors: To Be Or Not To Be?

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Qualified immunity is a legal immunity which protects a government official from lawsuits alleging that the official violated a plaintiff's rights. It must be shown that the government only violated a “clearly established” statutory or constitutional right. Traditionally, courts have considered whether a “reasonable government official” would have known that the government official’s conduct violated the plaintiff’s rights.

It is important to note that qualified immunity only applies to suits against government officials as individuals. Qualified immunity applies mostly to executive branch officials, and thereby judges, prosecutors, legislators, and some other government officials are protected by other immunity doctrines.

As of this early March 2021, Henrique Faria filed a lawsuit against the UC Board of Regents/UC Berkeley due to a clerical error that resulted in his eventual removal from the United States. UC Berkeley has claimed that it is legally immune for the admitted administrative error(s) that resulted in Henrique Faria’s removal.

This lawsuit is just one of several recent lawsuits involving “administrative error(s)” made by PDSOs/DSOs in terms of advising F-1 students—specifically regarding EAD OPT applications. According to Henrique Faria’s complaint, he enrolled in an international L.L.M. program at UC Berkeley for the 2017-18 academic year. Ultimately, Henrique Faria had left a legal career, and lawyer position from his home country of Brazil, and upon graduation from the L.L.M. program of UC Berkeley had obtained a $100,000 plus position with Ernst & Young in New York City.

It is the accepted view amongst international student advisors that F-1 students are responsible to make sure that their EAD OPT applications are filed on time, and thereby comply with all applicable rules & regulations. Colleges, and universities educate F-1 students about the entire EAD OPT application process along with all other F-1 responsibilities such as I-20 travel endorsement & work, CPT, and OPT requirements via both powerpoints, and handouts.

The director of UC Berkeley’s international office acknowledged via an official letter that the administrative error(s) were created by their office. The letter states that “an erroneous slide on a powerpoint [ sic] presentation providing instructions to students on how to complete the application contributed to the denial of Henrique’s application for OPT.”

In January 2021, U.S. Senior District Judge C. Lynwood Smith Jr. ordered the USCIS to reopen an EAD OPT application after the F-1 student graduate Rodney Smith presented evidence that his EAD OPT application denial by the USCIS was attributable to an error on the part of the international student adviser at Alabama Agricultural and Mechanical University.

Overall, the current surface issue facing PDSOs/DSOs is whether or not they will be held liable for error(s) caused by themselves/their international student offices. This concern is merely reactive, and is not really addressing the real issue(s) such as the following: Have International Student Offices become too automatic? Should budgets be increased in order to have adequate review, and communication of F-1 processes, and policies in light of the ever-changing immigration law environment? Even if DHS does not require training & certification in F-1 rules, and regulations—perhaps colleges, and universities should create training/certification requirements to be satisfied by their international student advisors?

These questions are merely just a few that can be asked, and these liability concerns will not be answered by this article—and they will not be answered any time soon. However, the Henrique Faria matter—amongst similar others—does bring the following to take note of:

1) Program end dates for F-1 students should not only be communicated via a PowerPoint Presentation;

2) I-20s should not be issued without first reviewing the entirety of the I-20 information with the F-1 student for accuracy;

3) Uploaded videos, and presentations on the ISO website is never a substitute for an in-person discussion, or a Zoom discussion with the F-1 student;

4) The Active SEVIS F-1 Student profiles/data should not be reviewed only when information is inserted, but should be reviewed to verify processing of changes, updates, processing, etc….;

5) F-1 students should not leave the U.S. while an EAD OPT application is pending;

6) PDSOs/DSOs (who are not immigration attorneys) should not be making legal determinations on filing immigration forms, filing appeals, etc. without consulting with immigration attorneys;

7) F-1 students are viewing their relationships with ISOs—and PDSOs/DSOs—as contractual relationships, and relying on advice—and may argue that they are relying to their detriment; and

8) Can an error be argued to be harmless if that error fundamentally changes the F-1 student’s life forever?

This article will be the first post of upcoming blog by Terry Olsen on F-1 Students & J-1 Exchange Visitors.


About The Author

Terrence L. Olsen founder, Olsen Law Firm, created a law firm that built upon and expanded the practice he started at a local law firm in Chattanooga, TN. Terrence L. Olsen, Esq. has established an immigration law practice encompassing clients from United Kingdom, Germany, Canada, Italy, China, Japan, Colombia, Brazil, Guatemala, Argentina, Nigeria, Kenya, Australia, South Korea, Iran, Sudan, Yemen, Taiwan, and more. The Olsen Law Firm serves business start-ups, multinational companies, entrepreneurs, family businesses, and individuals for strategic cross-border business & family immigration planning with trade, tax, banking, and other relocation issues comprising the U.S. immigration law experience.


The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.