by Debra P. Wilson

International visa issues are complex on a good day. Recently, visas, international students, international employees, undocumented students and families, and the Trump administration have created a Magic 8 Ball moment for independent schools. As of the writing of this piece, the second immigration executive order barring entry from several primarily Muslim countries has been stayed by a judge in Hawaii. With orders coming and going, what should independent schools be doing to hold the ship steady?

Overall, if there is one thing that independent schools can do, it is to be proactively prepared for the next set of orders, regulations, or enforcement protocols. Schools need to have a better idea of who within their communities—parents, students, or staff—could be affected by the next wave, and have a plan to manage some of the potential risks.

International Students

The last executive order barring international travel from certain countries expires mid-June, with the possibility that another version will be forthcoming. Visas may still be issued to citizens of these countries on a case-by-case basis if denying entry would cause “undue hardship,” if there is no security threat, and if the government determines it is in the national interest. However, this order was stayed (suspended) the day before its effective date.

For now, schools must watch for either the stay on this order to be lifted or for another executive order to be issued. If the latter occurs, there is the potential for the list to be expanded as one of the main challenges to the order is that the countries listed are primarily Muslim.

Schools must also keep an eye on the political tenor of the country when it comes to international students and staff. Recent news includes reports of American citizens angrily threatening or actually harming individuals from other countries. These activities go beyond the current political activity, but illustrate the potential concerns of parents sending their students to the United States.

Schools should be aware of the continuing changes to visa interviews and requirements, as well as general heightened security on flights from outside the United States. The Department of Homeland Security may soon announce that due to security concerns, laptops and other large electronic devices may need to be checked in luggage on direct flights from Europe.

There are pending changes to visa applicant questions as well, including a set of new and expanded questions for potential visa applicants. These questions and information requests include providing 15 years of travel, address, and employment history; five years of social media platforms and identifiers; five years of phone numbers and email addresses; and names and birth dates of siblings, children, spouses, or partners. The proposal does not identify which applicants or types of visas would be affected.

For now, here are some issues for schools to bear in mind:

++ For schools with students or staff from any of these countries, those individuals should not travel outside the country unless they have a current, valid, and documented visa, Green Card, or some other official status (dual citizenship with another country) that will allow them to travel back into the United States without delay.

++ Schools that are actively recruiting from the countries on the list or other countries that may be perceived as a threat should be aware that visas for these students may have a slightly different process, including longer wait times, in the months and years ahead.

++ Schools that have current international students, as well as those that are actively recruiting any international students, need to reiterate the school’s commitment to maintaining an open, welcoming, and diverse community. Further, parents need to know that the school will be actively looking out for their students while they are with the school and that students will not be unnecessarily exposed to potentially dangerous situations. In higher education, international student numbers are already trending downward, and started doing so immediately following the election. It is likely the same trend will appear for independent schools.

++ Be aware of the situations to which international students in the school’s care may be exposed and consider their safety before allowing off-campus trips and outings.

Undocumented Students and Families

Receiving slightly less attention are the executive orders and administration policies related to undocumented immigrants. Schools need to understand that although undocumented individuals are protected by due process and equal protection rights, those individuals who are not in the country legally can be deported. New guidance from the administration states that anyone who is in violation of immigration laws may be subject to proceedings and deportation.

In an effort to address the needs of younger adults, mostly students who came to the United States at a young age, in June 2012 the Secretary of Homeland Security provided a method by which individuals could request a deferral on any action related to their status for two years, and this term could be renewed. This process was called Deferred Action for Childhood Arrivals (DACA) and the students are often referred to as “Dreamers.” There are very specific guidelines in place for using this deferral. Because DACA is not a legislative issue, but rather an issue of prosecutorial discretion (more like a program or a policy for not deporting individuals who are in the country due to no fault or action of their own and now consider the United States their home), the Trump administration could end the program at any time. There is pending legislation called the BRIDGE (Bar Removal of Individuals Who Dream of Growing Our Economy) Act that was introduced by Senators Lindsey Graham (R-SC) and Dick Durbin (D-IL). If this legislation passes, then individuals protected under DACA would likely continue to be covered under this law. Executive orders would not be able to touch the students and others protected under the law. The idea behind this legislation is that it would protect the current structure of DACA, and keep the administration from repealing it by making it a law rather than a policy established by executive order.

Unlike the students, their parents or guardians are not likely to be eligible for DACA and could potentially be picked up in an ICE (Immigrations and Customs Enforcement) detention effort. Schools that suspect they have undocumented parents or guardians of students need to take appropriate steps to ensure that they know what will happen with the students in the event that their parents are detained.

On this front there are three main questions schools tend to ask:

1. Is a school obligated to ensure that families are in the country legally? Schools are not currently required to inquire into a student’s legal status as an immigrant, and most schools do not ask or require such information.

2. Can schools offer these students financial aid? There is nothing illegal about offering undocumented students financial aid, but your school’s internal policies may impact the availability of aid for these families.

3. What do we do if the parents of a student are picked up by ICE? Schools must have a plan for students whose parents are detained. Many parents who are undocumented are already taking steps as encouraged by local legal clinics for undocumented immigrants, but schools should proactively reach out to all families to discuss emergency plans that families may have if the parents are not available.

Schools can anticipate that more action will be seen from the administration, agencies, courts, and other Americans on this topic in the years to come. Visas will be under scrutiny. Worker visas, like the H-1B visa, are going to be revisited, as will the security measures for every type of visa and for individuals from every country. International parents are understandably concerned that the United States may not be as welcoming a place for their children as it has been historically, and there is a concern that should visa rules shift substantially, students may not be able to finish their education in the United States as originally planned. Undocumented parents and students pose a different set of issues, but this topic also continues to evolve and further enforcement efforts are likely to impact these families going forward. Independent schools must continue to track these issues and ensure they have the information they need in order to know how these issues may impact their communities as events unfold.

Debra P. Wilson is general counsel for the National Association of Independent Schools (NAIS)