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CBD and Immigration

Friday, July 19th, 2019 by W. Scott Railton

I’ve had many questions in the past few months about cannabidiol (CBD) and immigration. For now, CBD needs to be treated the same as cannabis. At least, that seems to be the way the U.S. immigration authorities are dealing with it.

Suddenly, it seems CBD is everywhere. Local pharmacies sell it. Cannabis retailers sell it. Some grocery stores. It comes in many forms: oils, skincare products, chocolates, pills, drops, bath salts, creams–the list seems endless. The market is booming. I hear that elderly persons like these products for pain relief and sleep. I’ve spoken with physicians, who have no problem recommending its use. The science is playing catch up, as is the law. Its a very odd situation, from a legal standpoint.

The U.S. Food and Drug Administration says it “recognizes the significant public interest in cannabis and cannabis-derived compounds, particularly CBD.” However, the agency is still studying CBD, and other than one prescription product for epilepsy, it has not approved CBD products. In a recent statement, the FDA said, “We are aware that there may be some products on the market that add CBD to a food or label CBD as a dietary supplement. Under federal law, it is currently illegal to market CBD this way.”

The 2018 Farm Bill removed hemp from the definition of marijuana in the Controlled Substances Act. Hemp is defined as cannabis and cannabis derivatives with .3% or less concentrations of THC, the psychoactive component of cannabis.  The chemistry gets interesting here, as CBD is often a “hemp-oil” or hemp-derived product. It is possible that a manufacturer can produce CBD products from hemp–and it happens all the time. However, the FDA has not caught up the manufacturing sector to implement a regulatory system to do this in compliance with the Controlled Substances Act. The Drug Enforcement Agency has in the past found that CBD products do violate the CSA, and so until the FDA approves such products, CBD products are going to be considered illegal, if push ever comes to shove.

However, the Federal Government seems to look the other way. CBD sales are enabled by state legalization, and intrastate marketing of the products does not seem to run into any federal law issues. Of course, right now, more than half the states have some form of legalization. At least 15 states now have medical only legalization, which would include CBD.

Our interest here is immigration. I don’t have anything favorable to report. From what I’ve seen, immigration authorities are still treating CBD the same as marijuana. I’ve seen individuals lose their visas to come to the U.S. where they have products which have “the attributes of marijuana”.  I’ve seen persons denied trusted traveler status for admitting to using CBD.  I’ve inquired with the Department of State about foreign investment in CBD-related businesses, and the government will only say it takes each case on its merits.

I think it is risky to cross the border with a CBD product in a vehicle, or luggage, as applicable. Marijuana confiscation at the border typically leads to a $500 Customs fine. Admissions can be more problematic, as some admissions can lead to a life-time bar. Similarly, persons working in the U.S. industry are at serious risk for future admissibility.

In the face of adverse consequence, the best legal recourse will depend on the facts. Sometimes legal arguments can be presented. Sometimes waivers are available.

The point of this post is to stress that CBD is not a safe or legal substance for noncitizens, at least at this time. In time, I expect adequate regulation will come into existence for hemp-derived products, but right now it seems the immigration authorities are taking a dim view of CBD.

 

 

Posted in General, Marijuana and Immigration, Scott Railton |

Labor Certification and Permanent Residence

Wednesday, July 17th, 2019 by W. Scott Railton

Immigration is very challenging these days, for numerous reasons. One thing that seems to be working fairly well, with surprisingly favorable timelines, is the Department of Labor’s labor certification system. We are seeing labor certifications adjudicated in a matter of months.  With a labor certification approval, an employer can sponsor an individual for permanent residence. If the visa category is current, which is often the case, permanent residence can be procured in less than a year in some cases. While not overnight, that is relatively fast these days.

The labor certification process requires that the employer test the U.S. labor market to see if there is a minimally qualified, willing, and available U.S. worker for the position.  The recruitment process is largely mandated by regulation, typically involving two Sunday advertisements in a newspaper of general circulation, a state workforce posting for 30 days, a worksite posting, and three other options selected from a list of ten alternatives.  The process is highly regulated, and is fundamentally designed to protect the U.S. labor market. If a minimally qualified worker is identified through recruitment, and is willing and available to take the position, the labor certification process cannot go forward.  However, employers willing to consider this process usually know that this is unlikely, or they wouldn’t be considering this path in the first place.

The whole recruitment process can take three to five months.  These days, the timing is largely dependent on how fast the Department of Labor can provide a prevailing wage determination. (Employers must agree to pay at least the going rate for the position–another labor market protection).  Once filed, the labor certification may be adjudicated in two to three months.  If approved, the employer can then file with the Department of Homeland Security to sponsor the alien worker, and take advantage of the premium processing 15 day adjudication timeline. The final step in the process to green card will either be an adjustment of status application or a consular processing appointment.  Adjustments of status can take over a year right now, but it really varies on location.  Consular processing appointments vary too, but some are taking less than six months.

The labor certification route is something to be considered, for valuable noncitizen employees.  For example, this might be a good path for a STEM employee on optional practical training, where the H-1B lottery has not worked out.  It is also an alternative to some merits-based approaches to permanent residence, which are frequently challenged these days. I have been greatly impressed by how well labor certification works for employers these days, in some cases. It is no secret that there are many sectors experiencing labor shortages. The labor certification process is meant to assist employers when that is the case, while still protecting the U.S. labor market.

 

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Posted in General, Scott Railton |

Washington State Department of Licesning On Use of Facial Recognition Technology

Tuesday, July 9th, 2019 by W. Scott Railton

The Washington Post and New York Times recently ran stories concerning the use of facial technology to identify persons via the state driver’s license databases.  Washington State’s Department of Licensing has issued a press release, basically suggesting this is, dare I say, fake news. Here is what the Department of Licensing says:

DOL statement regarding facial recognition technology
July 8, 2019

July 8, 2019 For Immediate Release.

News Reports – ICE and the FBI using facial recognition technology to scan state driver’s license databases.

Statement from Department of Licensing Director Teresa Berntsen:

“National news reports about federal law enforcement and immigration officials’ use of state facial recognition databases has led to a high level of misunderstanding and confusion about how our state Department of Licensing protects this data. Our DOL has implemented strict standards to ensure data is not released to any law enforcement entity for immigration purposes or without a judicial court order or subpoena. There is no external access to the Facial Recognition System. System access is limited to very few specially trained DOL staff. We take very seriously our responsibility to protect the data and information of all Washingtonians.”

Background

The Washington Post reported ICE and the FBI using facial recognition technology to scan state driver’s license databases, including photos of legal residents and citizens. The Department of Licensing does not provide access to our Facial Recognition System to local, state, or federal law enforcement entities. They must provide the agency with a court order signed by a judge.

The New York Times states “agents authorized administrative subpoenas of the Department of Licensing to conduct a facial recognition scan of all photos of license applicants, though it was unclear whether the state carried out the searches.” The agency received 53 requests through court order or subpoena since 2013. Thirteen of those were federal requests. None have been received from 2017 to present. The remaining 40 were from local and state law enforcement entities.

Federal requests include:

One – U.S. Department of Justice
Two – Federal Bureau of Investigation
Four – Department of Homeland Security/Immigrations and Customs Enforcement
Six – U.S. Drug Enforcement Administration

If a match was found through any request during this time, DOL would provide limited identity information.

DOL’s Use of Facial Recognition Technology

KUOW ran the headline “ICE uses Washington driver’s licenses to hunt immigrants for deportation, researchers say.” This is incorrect. No entity has access to DOL’s facial recognition system. They would provide a photo and DOL would conduct the research.
Law enforcement entities have no access to “mine” DOL’s state driver’s license databases using facial recognition technology.
As of January 2018, all requests must be court ordered.

DOL’s Facial Recognition Process

After receiving a court-ordered subpoena, DOL performs a search by comparing the photo provided by a law enforcement entity with DOL’s database. If a match occurs between the photo provided by the entity with a photo in DOL’s database, DOL provides the individual’s first, middle, and last name, date of birth, and ID or driver license number.
The Department of Licensing does the research. There is no direct external access to the facial recognition system. System access is limited to very few specially trained DOL staff.

Immigration and Citizenship Status

The Department of Licensing does not collect information regarding a person’s immigration or citizenship status.
The Department of Licensing does not collect place of birth.
The Department of Licensing does not provide Social Security numbers.

Governor’s Executive Orders

The Department of Licensing is committed to following the Governor’s Executive Order 17-01 Reaffirming Washington’s commitment to Tolerance, Diversity and inclusiveness.
We fully comply with Executive Order 16-01, Privacy Protection and Transparency in State Government. We only collect information that is necessary to perform our agency duties to establish identification and driving privileges.

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Posted in Scott Railton |

DUI and Immigration Consequences

Friday, June 14th, 2019 by W. Scott Railton

A colleague recently contacted me to ask about a plea bargain deal for a driving under the influence charge. It is always best to consider this sort of thing before making the deal.  Indeed, the Supreme Court says defense attorneys are required to do so.  In the landmark case of Padilla v. Kentucky, 130 S. Ct. 1473 (2010), the Supreme Court said:

“Petitioner Jose Padilla, a native of Honduras, has been a lawful permanent resident of the United States for more than 40 years. Padilla served this Nation with honor as a member of the U.S. Armed Forces during the Vietnam War. He now faces deportation after pleading guilty to the transportation of a large amount of marijuana in his tractor-trailer in the Commonwealth of Kentucky.

In this postconviction proceeding, Padilla claims that his counsel not only failed to advise him of this consequence prior to his entering the plea, but also told him that he “`did not have to worry about immigration status since he had been in the country so long.'” 253 S.W.3d 482, 483 (Ky.2008). Padilla relied on his counsel’s erroneous advice when he pleaded guilty to the drug charges that made his deportation virtually mandatory. He alleges that he would have insisted on going to trial if he had not received incorrect advice from his attorney….. We agree with Padilla that constitutionally competent counsel would have advised him that his conviction for drug distribution made him subject to automatic deportation.”

Now, back to my colleague’s inquiry. I wanted to relay a quick response. Unfortunately, these aren’t always simple matters. Every case is different, on its facts, and the details can very much matter.

The first step in each case is to identify the immigration status and defense goals.  Here are some threshold questions to consider:

  • First, what is the jurisdiction? Laws and consequences differ state to state.
  • Are there any aggravating factors in the case, such as harms to person or property?
  • Is marijuana, legal or not, involved in the case in any way? While it may not be an issue at the State level, it could become a big issue in future immigration applications or proceedings.
  • Is there any other type of controlled substance that is involved in the case?
  • Was the driver licensed? Were they cited for anything beside DUI?
  • What is the driver’s status in the United States? Visa holders with DUI arrests are having their visas revoked automatically.
  • Were there passengers int he car?  Under 16?
  • Is there an alcohol or drug problem? Government guidance usually requires a panel physician examination.
  • Is there any evidence of a physical or mental disorder? This is potentially a separate basis for inadmissibility.
  • Does the individual have trusted traveler benefits, such as NEXUS and Global Entry?
  • Is there a desire to apply for naturalization in the near future, or even a pending application?

U.S. immigration has gotten harder. These are challenging times for even the best qualified applicants. All potential immigration consequences need to be carefully considered before a plea bargain is struck.

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Posted in General, Marijuana and Immigration, Scott Railton |

E Visas Now Available for New Zealand

Monday, June 10th, 2019 by W. Scott Railton

Good news for New Zealanders! As of today, the E-1 and E-2 visas are available options for travel and stays in the United States. These are visas based on substantial trade (E-1) and substantial investment (E-2). We routinely help business clients with these types of visas.

In 2018, Congress passed the “Knowledgeable Innovators and Worthy Investors Act,” otherwise known as the “Kiwi Act.”  Passage of this law allows Kiwis to apply for E-1 and E-2 visas, like over 80 other countries around the world. The gist of the E-1 (Trader) and E-2 (Investor) program is to facilitate trade and investment bilaterally between countries. The law is conditioned on New Zealand having a reciprocal program in place.

Here is USCIS’s announcement:

New Zealand Nationals Eligible for E-1 and E-2 Nonimmigrant Classifications

Certain New Zealand nationals can now request a change of status to the E-1 nonimmigrant trader classification and the E-2 nonimmigrant investor classification under Public Law 115-226. Beginning June 10, eligible New Zealand nationals already in the United States in a lawful nonimmigrant status can file Form I-129, Petition for a Nonimmigrant Worker, to request a change of status to E-1 or E-2 classification, or a qualifying employer can file Form I-129 on their behalf. Spouses and unmarried children under 21 years of age of E-1 and E-2 nonimmigrants, and employees who are already in the United States, may also seek to change status to E-1 or E-2 classification as dependents by filing Form I-539, Application to Extend/Change Nonimmigrant Status.

Any Form I-129 and Form I-539 for a New Zealand national requesting a change of status to E-1 or E-2 classification filed prior to June 10, 2019, will be rejected, but may be refiled, together with the required fee, on or after June 10.

The E-1 and E-2 nonimmigrant classifications are open to citizens of countries with which the United States has a treaty of commerce and navigation or similar agreement, and in certain other cases, such as here, where Congress has enacted legislation. E-1 status allows citizens of certain countries to be admitted to the United States solely to engage in international trade on their own behalf. E-1 status is also available to certain employees of such traders or qualifying organizations. E-2 status allows citizens of certain countries to be admitted to the United States when they are investing substantial capital in a U.S. business. E-2 status is also available to certain employees of such investors or qualifying organizations.

For more on the E-1 and E-2 classifications, see our E-1 Treaty Traders page and E-2 Treaty Investors page.

The Department of State’s Consulate in New Zealand has also posted information on this big change, including information videos.

If you’re interested in this visa, and doing more business in or with the United States, we’re happy to help as we can. In my experience, E visa applications can vary a great deal on their merits, depending on the nature of the business, investment, or trade. The visas are terrific, once acquired, but the government can be very demanding in regards to the necessary proofs.  Also, USCIS and the Department of State adjudicate cases differently. The administrative and procedural hurdles involved are another consideration. Consulates around the world vary quite a bit in their demands of applicants, as well as their timelines and procedures for processing applications.

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Posted in General, Scott Railton |

Department of State Now Requires Social Media Identifiers on Visa Applications

Tuesday, June 4th, 2019 by W. Scott Railton

The U.S. Department of State from now on requires that both immigrant and nonimmigrant visa applicants list their social media identifiers on visa applications. In its announcement, the agency says, “Collecting this additional information from visa applicants will strengthen our process for vetting these applicants and confirming their identity.”

Here is a Frequently Asked Questions report, prepared by the Department of State:

Frequently Asked Questions on Social Media Identifiers in the DS-160 and DS-260

What forms have been updated?

We have updated our nonimmigrant visa online application form (DS-160), the paper back-up version of the nonimmigrant visa application (DS-156), and the online immigrant visa application form (DS-260).

What specific changes have been made to the visa application forms? When did these changes go into effect?

The updated forms collect social media identifiers. These changes went into effect on May 31,2019. National security is our top priority when adjudicating visa applications, and every prospective traveler and immigrant to the United States undergoes extensive security screening. We are constantly working to find mechanisms to improve our screening processes to protect U.S.citizens, while supporting legitimate travel to the United States.

What is a social media handle/identifier?

A social media “handle” or “identifier” is any name used by the individual on social media platforms including, but not limited to, Facebook, Twitter, and Instagram. The updated visa application forms list the specific social media platforms for which identifiers are being requested.

Who will be affected?

All nonimmigrant and immigrant visa applicants will be required to answer these questions,except for diplomats and government officials. The exceptions are applicants applying for a diplomatic (A-1 or A-2) or diplomatic-type visa (of any classification), NATO 1-6 visas, C-2 visas for travel to the United Nations, or G-1, G-2, G-3, or G-4 visas.

Why were these changes implemented ?

We are constantly working to find mechanisms to improve our screening processes and to support legitimate travel and immigration to the United States while protecting U.S.citizens. This update implements the President’s March 6, 2017, Memorandum for the Secretary of State, the Attorney General, and the Secretary of Homeland Security and Section 5 of Executive Order 13780. Section 2 of the Memorandum directed certain Cabinet officials to,as permitted by law, “implement protocols and procedures as soon as practicable that in their judgment will enhance the screening and vetting of applications for visas and other immigration benefits, so as to increase the safety and security of the American people.” Section 5 of E.O. 13780 directs the Department of State and other agencies to implement a program, as part of the process for adjudicating applications for visas and other immigration benefits, to improve screening and vetting. Section 5 of E.O. 13780 refers to the implementation of uniform screening and vetting standards for all immigration programs. Section 5 includes a recommendation that agencies amend application forms to“include questions aimed at identifying fraudulent answers and malicious intent.”In coordination with the Attorney General, DHS,and the Director of National Intelligence, the Department of State has undertaken these efforts to update our application forms to protect national security.

What are you looking for, and what do you plan to do with my information?

We are looking solely for social media identifiers. Consular officers will not request user passwords. The information will be used, as all information provided during a visa interview and on the visa application, to determine if the applicant is eligible for a visa under existing U.S. law. Collecting this additional information from visa applicants will strengthen our process for vetting applicants and confirming their identity.

What if applicants participate in multiple online platforms?Are they being asked to list all of their handles, or only one?

Applicants must provide all identifiers used for all listed platforms.

What if the visa applicant doesn’t have a social media account?

A response to the questions related to social media will be required. Visa applicants who have never used social media will not be refused on the basis of failing to provide a social media identifier, and the form does allow the applicant to respond with “None.” Applicants should complete the application as fully and honestly as possible to avoid any delays in processing. Failure to provide accurate and truthful responses on a visa application or during a visa interview may result in denial of the visa by a consular officer. In the case of an applicant who has used any of th esocial media platforms listed on the visa application in the preceding five years, the associated social media identifier would be required on the visa application form.

Do these new social media requirements affect individuals who already hold a U.S. visa?

This update only applies to new visa applications. However, visa applicants are continuously screened – both at the time of their application and afterwards– to ensure they remain eligible to travel to the United States.

Does this social media screening also apply to participants in the Visa Waiver Program?
This Department update only applies to visa applicants, not to individuals traveling under the Visa Waiver Program. For questions about requirements under the Visa Waiver Program, please contact the Department of Homeland Security.
Is this just a way to profile individuals by their religion, political views, or race?
Consular officers cannot deny visas based on applicants’ race, religion, ethnicity, national origin, political views, gender, or sexual orientation. The collection of social media identifiers is consistent with this. This information will be used for identity resolution and to determine whether the applicant is eligible for a U.S. visa under U.S. law. Visa ineligibilities are set forth in U.S. law. Consular officers will not request user passwords and will not attempt to subvert any privacy controls applicants may have implemented on these platforms.
Could the collection of this information be considered an invasion of privacy?
No. The same safeguards and confidentiality provisions that already protect a visa applicant’s personal information also apply to social media identifiers and all other newly collected information related to a visa application or adjudication. Consular officers will not request user passwords nor will they have any ability to modify privacy controls applicants may have implemented on these platforms. Maintaining robust screening standards for visa applicants is a dynamic practice that must adapt to emerging threats.We already request limited contact information, travel history, family member information, and previous addresses from all visa applicants. Collecting this additional information from visa applicants will strengthen our process for vetting applicants and confirming their identity. Consular officers would only use this information to determine the applicant’s eligibility for a visa under existing U.S. law.
What safeguards are in place to protect applicants’ private information? What about U.S.citizens’ information that might appear on social media?
The Department limits its collection to information relevant to a visa adjudication. In accordance with U.S. law, information collected in the nonimmigrant or immigrant visa application or adjudication process is considered confidential and may be used only for certain purposes expressly authorized by law, including the formulation, amendment, administration, or enforcement of U.S. laws. The Department is also taking measures to ensure that information from U.S. persons that is inadvertently included in this collection is adequately protected in accordance with applicable privacy laws.

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CBP Pilot Program for Electronic Filing for Waivers for Canadians

Thursday, May 30th, 2019 by W. Scott Railton

U.S. Customs and Border Protection will institute a pilot program for electronic filing of I-192 Nonimmigrant Waiver and I-212 Application for Permission to Reapply for Admission applications. Currently, these applications are filed in person at the Port of Entries and Pre-Flight Inspections. This announcement impacts visa exempt countries, which means principally Canadian citizens.

My initial concern is whether the on-line filing system will adequately accept evidence in support of the application. I suppose that is the benefit of a pilot program; they can decide what works and doesn’t. There are many potential benefits, as outlined in the announcement. The agency is clearly trying to further limit how much it handles immigration benefits issues at ports of entries, which is concerning as an agency goal. The agency similarly extended its L-1 Pilot Program recently, despite heavy criticism from stakeholders.

Here is the agency announcement:

U.S. Customs and Border Protection (CBP) is pleased to announce the pilot of the Electronic Secured Adjudication Forms Environment (e-SAFE) mid-year 2019.  The new online system will allow for electronic filing of Form I-192, Application for Advance Permission to Enter as a Nonimmigrant, and Form I-212, Application for Permission to Reapply for Admission into the United States After Deportation or Removal.  Citizens of specified visa exempt countries—Canada, Palau, the Federated States of Micronesia and the Marshall Islands—who are nonimmigrants and have been found inadmissible will be able to apply for a waiver online.  Applicants will be able to view their application status, submit additional information if requested, and ultimately learn the outcome of their online waiver application through this system.

e-SAFE will streamline and reduce the processing time, and provide instruction on how to fill out the applications.  Applicants who submit and pay for electronic filing via e-SAFE must go to the following ports of entry to complete the biometrics portion (fingerprints and photograph) of the application:

 • Peace Bridge, New York • Lewiston Bridge, New York • Rainbow Bridge, New York • Peace Arch, Washington • Pacific Highway, Washington • Point Roberts, Washington • Toronto Pearson International Airport
 
These are the only ports of entry able to process electronic filing of Forms I-192 and I-212. Other locations will be added gradually and will be published on the e-SAFE public web page and on www.cbp.gov/travel/international-visitors/e-safe and e-SAFE.cbp.gov.  CBP will continue to accept paper filing at ports of entry, but as e-SAFE is added to more ports of entry, paper filing locations will become limited.

Authorized attorneys or accredited representatives will be able to create special managed accounts to assist their clients in completing the application, upload the required documents and pay the client’s application fee once a validated Form G-28 is on file.  However, applicants are responsible for the accuracy of all information submitted on their behalf.

Please review the attached frequently asked questions or visit www.cbp.gov/travel/international-visitors/e-safe for the most current information. 
A separate email notice will be sent when e-SAFE is available for electronic filing.

Sincerely,

Keri Brady, Director U.S. Customs and Border Protection Admissibility Review Office

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Posted in General, Marijuana and Immigration, Scott Railton |

Health Care Worker Certificate Requirement Presents Timing Issues

Wednesday, May 29th, 2019 by W. Scott Railton

Certain health care workers are required to have health care worker certificates in order to be admitted.  (Authority:  INA §212(a)(5)(c))  The certificate, often referred to by the trademarked name VisaScreen®, serves as an evaluation in regards to education, training, license, experience, and English proficiency.  The application process can take months unless expedited, and involves expense.  The certificate therefore presents a key timing issue for immigration purposes.

The occupations requiring certificates include:

  • Nurses (Licensed Practical Nurses, Licensed Vocational Nurses, and Registered Nurses )
  • Physical Therapists
  • Occupational Therapists
  • Speech-language Pathologists and Audiologists
  • Medical Technologists (also known as Clinical Laboratory Scientists)
  • Medical Technicians (also known as Clinical Laboratory Technicians)
  • Physician Assistants

Even if the health care worker trained in the U.S., they still must acquire the certificate. Also, NAFTA TN workers are required to obtain the certificate, as well as other nonimmigrant and immigrant applicants who are arriving for health care purposes. The certificate is not required, though, if a person is applying for permanent residence based on another purpose, such as an immediate relative spouse.

The Commission on Graduates of Foreign Nursing Schools (www.cgfns.org) is authorized to issue certifications to all 7 health care occupations.   Additionally, the National Board for Certification in Occupational Therapy (NBCOT) is authorized to issue certifications for occupational therapists, and the Foreign Credentialing Commission on Physical Therapy (FCCPT) is authorized to issue certifications for physical therapists.

The health care certificate serves as verification of education equivalency, licensing eligibility, and requisite English language skills. The Screen includes an English language proficiency examination. For registered nurses, the health care certificate also includes verification that the RN has passed either CGFNS’s qualifying exam, NCLEX-RN, or for select years and provinces its predecessor, the State Board Test Pool Examination.

For immigrant petitions, credentials will be reviewed by USCIS at the I-140 stage, but the actual certification is not required until the adjustment or consular processing stage. For nonimmigrants, the certificate must be available at time of visa issuance and admission.

There is an expedited procedure.  There are also certain exceptions, relating to English language proficiency (e.g. graduate of certain schools in Canada, Australia, Ireland, U.K., or U.S., as well as educational comparability in certain professions).

Certifications are issued for only five years, and must be used for admission, extension or change of status, or adjustment, within that period. See 8 CFR 212.15(n)(4). If not used, a new certification is required subsequent to expiration. If used, but now expired, a limited renewal must be obtained, to verify no adverse actions have occurred, and to confirm anew English competency. See 8 CFR 212.15(k)(4)(viii).

It is not uncommon for U.S. Customs and Border Protection to deny admission to a health care worker for lack of a certificate, or because a certificate is now expired. This can be a difficult situation, for employer and employee, which may be avoided through attention to the requirement and timing. Another issue that comes up from time to time is a denial of entry for certain radiation related professionals, who do not require the certificate, but are asked for one just the same. Training issues like this have to be handled on a case by case basis.

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State Statutes Modifying Marijuana Convictions Not Working for Immigrants

Monday, May 20th, 2019 by W. Scott Railton

Increasingly, states and municipalities are adding post-conviction relief for marijuana offenders, as part of marijuana law reform efforts. The basic idea is that someone with a past marijuana conviction can obtain some sort of post-conviction relief, such as a pardon, expungement, or reclassification of the conviction. One immigration issue for the Courts to decide is whether the purpose of a post-conviction relief measure is rehabilitative benefit for the offender, or due to a substantive fault in the prior law. Should it matter? I don’t know, but it does.

Washington State passed such a law this year, SB 5605, which takes effect July 27, 2019.  The new law requires Washington State judges to grant requests to vacate misdemeanor marijuana possession convictions that happened before legalization, if the individual was 21 or older.

Here is the key language:

5)Every person convicted of a misdemeanor marijuana offense, who was twenty-one years of age or older at the time of the offense, may apply to the sentencing court for a vacation of the applicant’s record of conviction for the offense. A misdemeanor marijuana offense includes, but is not limited to: Any offense under RCW 69.50.4014,from July 1, 2004, onward, and its predecessor statutes, including RCW 69.50.401(e), from March 21, 1979, to July 1, 2004, and RCW 69.50.401(d), from May 21, 1971, to March 21, 1979, and any offense under an equivalent municipal ordinance. If an applicant qualifies under this subsection, the court shall vacate the record of conviction.

Other jurisdictions have taken similar approaches.  For example, California’s Proposition 64, known as the Control, Regulate and Tax Adult Use of Marijuana Act, allows certain felony convictions to be “redesignated” as misdemeanors. Seattle, Washington, and Boulder, Colorado have taken affirmative steps to vacate old offenses. Canada is looking at instituting at a nation-wide pardon process.

Will these post-conviction relief measures help immigrants, facing deportation or in dealing with admissibility issues?

The law on post-conviction relief for non-citizens is complicated—really, really complicated sometimes—but a recent case from the Ninth Circuit Court of Appeals is not promising.

The case, Prado v Barr, No 17-72914 (9th Circ. 5/10/19), considered whether a felony conviction of possession of marijuana for sale still counts for immigration purposes, after being reclassified to a misdemeanor based on Proposition 64.

The Ninth said that “federal immigration law does not recognize a state’s policy decision to expunge (or recall or reclassify) a valid state conviction.” The Ninth said it will recognize the vacate of a conviction for a substantive or procedural defect, based on established law. However, rehabilitation, immigration hardship, and/or equitable relief are not suitable bases for vacating the immigration impacts of an original conviction.

The Court then determined that Proposition 64’s provisions were more rehabilitative than substantive in nature, and so not effective. The Court also held that reclassification—which happened in this case—was a limited expungement, rather than a full expungement, and therefore not a complete elimination of immigration impacts in any case.

The Ninth’s decision may still be appealed for en banc hearing, or to the Supreme Court.  The ruling is specific to Proposition 64, but I think it is indicative of how the question may be handled for other state statutes, such as with Washington State’s recently passed law.

Attorneys and their clients facing this circumstance should recognize first that they cannot rely on the state statute for later relief for non-citizens. Also, if seeking post-conviction relief before a state court, the request for relief needs to be carefully considered for it to meet the stringent standards required for relief under immigration law.

 

 

 

 

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Posted in General, Marijuana and Immigration, Scott Railton |

Social Security Administration Is Sending Employers Send “No-Match” Letters Once Again

Wednesday, April 24th, 2019 by W. Scott Railton

The Social Security Administration announced recently that is will recommence issuing “no-match” letters to employers and payroll companies.  No-match letters are issued when the agency receives payments or other information which is not associated with the correct social security number.

As the correspondence will indicate, the no-match could be indicative of a records issue:  perhaps the social security number was inputted incorrectly, or perhaps there is incorrect information on the individual for which there is not a match.  No-matches however also may be indication that an employee is not able to work lawfully in the country.

What is an employer to do?  It is usually not a good idea to ignore such information, as avoiding the issue may create issues if the government comes to audit I-9s or otherwise investigate unlawful employment issues.  In all likelihood, it may also be prudent to draft a letter to the employee, giving them opportunity to contact the Social Security Administration and correct the issue, followed up with periodic, documented inquiries on the status of such efforts.

It may be prudent to seek counsel on the matter, and we are happy to assist.  The Administration has ramped up efforts to enforce worksite compliance with immigration laws. The fines can be significant, and if an employer or even HR Representative has constructive knowledge that they are employing someone illegally, there is the possibility of criminal sanctions. Enforcement actions have hit a broad range of industries and regions.  An employer who is holding no-match letters may be deemed to have constructive knowledge of an issue, and so taking steps to address the issue is prudent.

 

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Posted in General, Scott Railton |

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