Russian police and National Guard (Rosgvardia) servicemen patrol Red Square in central Moscow on ... [+]
Russian Fulbright scholars could be at risk if forced to return to Russia, say advocates asking for decisive action from the Biden administration. Russian Fulbright scholars were teaching or researching at U.S. universities when Russia declared three U.S. organizations, including the Institute of International Education, an implementing partner for the Fulbright Program, “undesirable organizations.” There are approximately 150 Russian Fulbright scholars or recent alumni in the United States that could be affected by the Russian government’s declaration, according to Russian scholars.
On March 18, 2024, the Prosecutor General’s Office of Russia declared the Institute of International Education an undesirable organization. According to Alexey Pryanishnikov, an attorney affiliated with Mikhail Khodorkovsky’s Open Russia Foundation, “The arbitrary actions of law enforcement officials in Russia (the prosecutor’s office, the FSB, the Investigative Committee and the courts) in interpreting laws on so-called ‘undesirable’ organizations, as well as the low standards of proof in this category of cases, allow us to judge the serious risks of bringing to criminal liability persons participating in educational programs of the Institute of International Education.”
The attorney notes in a memo that the criminal penalties, including under a new article of the Criminal Code, can include fines or imprisonment from one to eight years. He believes “it is likely” the new article of the code “will be applied to participants in the educational programs of the Institute of International Education.” (See here for one Russian Fulbright scholar’s perspective.)
To better understand the Fulbright Program and possible solutions for Russian scholars, I interviewed immigration attorney Greg Siskind, who replied in writing. Siskind, founding partner of Siskind Susser, PC, is advising Russian Fulbright scholars on their legal options.
Stuart Anderson: What is the Fulbright Program?
Greg Siskind: The Fulbright Program, established in 1946, is a prestigious international exchange program run by the State Department. Its stated aim is to promote mutual understanding and cultural exchange between the United States and other countries through educational and cultural exchange.
The program is available to students, scholars, professionals and artists to study, teach, conduct research and exchange ideas in various countries worldwide. Fulbright awards typically cover expenses such as travel, living stipends, and, in some cases, tuition fees for individuals selected to participate in the program.
Foreign Fulbright Program participants enter the U.S. on a J-1 visa, and the Fulbright Program is the exchange program sponsor.
Anderson: What are the rules for the program?
Siskind: Fulbright scholarship recipients are subject to Section 212(e) of the Immigration and Nationality Act, which requires individuals entering the U.S. on J-1 visas who received government funds to return to their home countries for two years before they can receive certain immigration benefits such as access to work visas and a green card.
Fulbright recipients can seek a waiver of this requirement based on obtaining the support of an interested U.S. government agency, hardship to a U.S. citizen or permanent resident spouse or child or being subject to persecution if they return to the home country. However, the Fulbright Program is consulted in these cases, and their objection is given special weight such that a negative opinion from Fulbright almost always results in a denial of a waiver case. Unfortunately, Fulbright almost never supports granting a waiver. That means most waiver applications for Fulbright recipients are denied. The State Department and Fulbright justify their strict policy by stating that fostering international exchange is a key foreign policy objective of the United States.
Anderson: Why are Russian participants in the Fulbright Program concerned?
Siskind: Russian Fulbright recipients are in a tough spot. First and foremost, they’re in danger if they return to Russia. The Fulbright Program was shut down in Russia in 2022, as were many other nongovernmental organizations. More recently, they’ve been labeled an “undesirable organization” and Fulbright participants are now subject to suspicion in a country that has a sorry track record for jailing people who disagree with the government. Many Russian Fulbright recipients have already been vocally opposing the Putin regime’s war and domestic policies and returning to Russia is just not a good option.
They have been subject to sanctions since early 2022, so many of them have no financial help from family anymore. They’re in a precarious financial situation until they can obtain the ability to work. For many, this is a Catch-22 situation of not being eligible for a work visa, not being able to return home, and not being able to get a waiver of the home residence requirement (for the reasons noted above).
If they try to apply for a waiver or potentially political asylum, they need to find the funds to pay a lawyer for a waiver—one of the more complicated and expensive immigration law processes with legal fees typically costing in the five figures. Absent that, they can go the do-it-yourself route and navigate one of the world’s most complicated immigration systems on their own. Immigration lawyers sometimes offer help on a pro bono basis, but with a flood of humanitarian immigrants in recent years, finding that assistance is a challenge.
Finally, the waiver and asylum processes are incredibly slow. A J-1 waiver applicant seeking a hardship or persecution waiver can expect a two-plus-year process, and an asylum applicant will probably wait a decade for a hearing. Neither is a great solution.
Anderson: What action do you recommend the Biden administration take?
Siskind: The Biden administration has a range of options available if they’re interested in helping this population. First, the State Department could decide to be an “interested government agency” and support a J-1 waiver for all Russian Fulbright scholars. As the Fulbright Program is part of the State Department, the Biden administration can simply order the Fulbright Program not to issue opinions in these cases.
Another option is already available, thanks to recent policy guidance issued by U.S. Citizenship and Immigration Services. USCIS is ultimately the arbiter of whether a person is subject to the home residence requirement (the State Department makes waiver recommendations that USCIS routinely follows). The USCIS guidance states that a person is not subject to the home residence requirement if it would be impossible to return home (a conflict in the home country is given as an example).
USCIS did not explain the process for how a person might claim this, and they indicated that the State Department needs to be consulted. But it would be quite easy for the two agencies simply to say that the guidance applies, the State Department agrees that conditions in Russia are covered and Russian Fulbright recipients (and others subject to 212(e) from Russia) are eligible for the same immigration benefits as others not subject to a home residence requirement.
Another option the Biden administration could consider would be Temporary Protected Status. We have TPS for nationals of other countries with conflicts where the US has bad relations with the home country (including Afghanistan and Syria). TPS would give Russian J-1s a safe status in the U.S., and the ability to work legally until the war is over.
Congress could also fix this problem by granting immigration relief as they did in the past for students after the 1979 Iran Revolution and the 1989 Tiananmen Square uprising.
Anderson: What are the objections you’ve heard?
Siskind: The State Department was requested to help early on after the war started. After months of pressing the department, State ultimately said the Russian Fulbright scholars would get no special accommodation. No reason was offered for this.
USCIS was more sympathetic, as indicated by the guidance the agency released. However, repeated requests for clarification on how to actually apply the policy guidance have gone unanswered. No one seems to have specific objections they will enunciate. In fact, as you reported in May 2022, the Biden administration was quite vocal in encouraging bright Russians to come to America. Yet here is a population that’s already demonstrated they’re the best and brightest and already here but aren’t being welcomed.
Anderson: What are the consequences if the Biden administration does not take action to help Russian participants in the Fulbright Program?
Siskind: Obviously, if people have to choose between being illegally in the United States versus returning to Russia, they may end up going back and facing danger. I lose sleep thinking about that possibility. A lot of the young men I have advised would be drafted and sent to fight in Ukraine, or they would be pressed to apply their science skills to aiding the Russian military effort. I can’t think of a more undesirable outcome for the U.S., Ukraine and these individuals.
The Biden administration also is sending contradictory signals that do not indicate a cohesive policy. Are they honestly saying that fostering international exchange with Russia is paramount even as Russia outlaws the Fulbright exchange program? Are they committed to aiding Ukraine when they’re willing to transfer the knowledge of the Fulbright scientists back to Putin and potentially even send Putin new soldiers? Are they committed to attracting Russian scientists even as they seek to remove many of the brightest who are already here? Hopefully, the Biden administration will fix this immediately since ignoring this problem for two years has not helped Russian Fulbright scholars or America’s national security.
