Scott Railton's Blog

« Older Entries

NAFTA Renegotiations and the TN Professional

Thursday, May 25th, 2017 by W. Scott Railton

On May 18, 2017, the U.S. Trade Representative informed Congress that President Trump intends to commence negotiations with Canada and Mexico with respect to the North American Free Trade Agreement. On May 23rd, the Office of the United States Trade Representative published notice in the Federal Register, requesting comments on negotiating objectives regarding modernization of NAFTA.

The summary of the notice states that “NAFTA was negotiated more than 25 years ago, and while our economy and U.S. businesses have changed considerably over that period, NAFTA has not. The United States seeks to support higher-paying jobs in the United States and to grow the U.S. economy by improving U.S. opportunities under NAFTA.”

The Notice seeks written comments by June 12, 2017. A hearing will be held on Tuesday, June 27, 2017 in Washington D.C. Any intent to testify must be submitted by June 12th, 2017.

What do we know?

Trump originally said that he would pull the United States out of NAFTA, wholesale, but it appears advisors have prevailed upon him to renegotiate. America is quite ingrained in trade of all sorts with Canada and Mexico, and an abrupt cessation would be harmful.

Trump is serious about curtailing immigration, legal and illegal, by all indications. He’s also serious about trying to protect the U.S. worker. These facts do not bode well for the TN category as a whole.
The occupation schedule for TNs is roughly 25 years old, and way out of date. There is need for modernizing the schedule, provided such efforts are made in good faith.

Many sectors are impacted by the TN visa. Hospitals rely on the TN to employ nurses, physicians (research/teaching), recreational therapists, physical therapists, pharmacists, medical laboratory technologists, and others. Institutions of higher education use the TN to employ professors. Municipalities use the category to employ urban planners. Several professions in agriculture are represented, including soil scientists, sylviculturists, animal breeders, animal scientists, and horticulturists.

This Administration takes pride in disruption.

Ultimately, I expect many employers will push back on limitations, but there could be much debate. Unions and workers may have much to say. NAFTA involves all sorts of trade issues, and immigration may be pushed to the side, or not given sufficient discussion. There has been a tendency in recent years to limit immigration in trade agreements.

This is an important time for businesses and business organizations to be vocal on this point. Employees in TN status need to pay attention, as the prospective unavailability of a TN needs to at least be considered. Persons with paths to immigrate will need to consider the TNs nonimmigrant requirement, before making any application or traveling abroad.

We’ll keep monitoring developments with NAFTA and the TN professions, and are available to discuss.

Tags: , , , , , , ,
Posted in Scott Railton |

Marijuana and the Border

Friday, April 21st, 2017 by W. Scott Railton

Today is April 20th, or 4-20, as marijuana legalization proponents like to say. More than half of the states have passed–mostly by voter initiative–some form of legalization. Eight states have legalized recreational marijuana, again by popular vote. It is an astounding development, as the dialogue on legalization has shifted dramatically over the last twenty years.

I’ve been interested has been in how these changes in state laws impact noncitizens, since immigration is my area of law practice. Washington State legalized recreational marijuana in 2012, and it was apparent to me that this would create issues at the border, eventually.

I am pleased to say that the American Bar Association published an article I wrote this month, entitled “Marijuana and Immigration,” in its Criminal Justice magazine. Links aren’t available yet, but I’m happy to provide a copy for anyone interested. I also received a Freedom of Information Act request back this past week, from USCIS, on its policies concerning legalized marijuana. The pdf is over 1700 pages, but 1500 pages or so are redacted.

The issues continue to develop, and, unfortunately, most of the news is not good for noncitizens. DHS Secretary Kelly and Attorney General Sessions say they want to crack down on marijuana. The specifics are lacking, but I am hearing some tough reports. These include:

-Adjustment of status applications being denied for spouses of U.S. citizens, because they worked for marijuana dispensary in a marijuana-legal state.

-Naturalization application denied to a permanent resident of over 10 years, because they worked in the marijuana industry in Colorado, a fully legalized state

-Denial of entry in many cases to the U.S., for admitting to having used marijuana at some undisclosed point in the past, in a foreign or U.S. jurisdiction where it was known to be illegal. No conviction is required–just a voluntary admission to a border officer, medical examiner, consular official, or other government worker. A lot of people, including former presidents, have admitted to as much in the past, and publicly. Once denied admission, a waiver must be obtained from CBP’s Admissibility Review Office, for life. Canadians have a $585 filing fee. The waiver takes months to adjudicate.

-More bad news: reportedly, they are not necessarily going to grant the waiver. We’ve just started to hear of denials for these types of circumstances.

-The word on the west coast is the local ports of entry will not admit anyone working in the industry. Of course, this means accountants, who may also have other non-marijuana clients; scientists who need to test products; architects for greenhouses; and the list of professionals can go on. This is of course a multi-million dollar industry, which indeed, pays taxes, even if the standard deductions aren’t available.

-I don’t expect Consulates to issue investor visas for the industry.

The federal government is anything but transparent on these issues. The state governments need to get vocal, and force the issues, so that travel and business can be predictable. Legislators in legalized states need to fight for these businesses and opportunities, because right now at the administrative level, things are not going well for the industry or noncitizens. There is a basic lack of justice and fairness, as persons think they are ok by being truthful and are in compliance with state laws, but the federal government is playing “gotcha” with good people.

 

 

Tags: , , , , , , , , ,
Posted in General, Scott Railton |

A Time for Advocacy

Thursday, April 13th, 2017 by W. Scott Railton

NDA 2017-Murray

I visited Washington D.C. last week, to take part in the American Immigration Lawyer Association’s National Day of Advocacy. This is an annual event, where my lawyer organization encourages members to meet with Senators and Representatives to discuss immigration issues.

And there are issues. Many issues. Immigration continues to be headline news. Real policy and law-making requires consideration of details and implications. As far as I can tell, Congress is getting nowhere.

This is pretty much acknowledged by staffers. By now, they know the sad stories, such as the Dreamers and the emphasis on deportation. They are aware of the flawed system with H-1Bs and other worker authorizations. They know about the backlogs. Stalemate and non-cooperation leave these challenges for another day, again and again.

I had the opportunity to meet with staffers from the offices of Senator Murray, Representative Larsen, Representative Del Bene, and Representative McMorris Rodgers. Senator Murray and Representative Larsen were able to meet briefly as well. I and my colleagues greatly appreciated the meetings, and we had some good discussions.

Our office stays in close contact with our elected officials.  Last week, my comments focused on things I’m seeing in practice lately, which might not be getting the attention they deserve. CBP officers are taking statements from applicants for admission on past marijuana use, and then barring them for life after people answer truthfully that they did, in fact, inhale. They are also doing extensive searches of people’s phones and computers, without reasonable suspicion. USCIS is issuing requests for evidence on cases without justification, at ever increasing rates. Physicians are getting caught up in the administrative dysfunction, with the suspension of premium processing and rotations turning over mid-summer. Also, the Conrad program for physicians who serve underserved communities is caught in the undertow of the more controversial EB-5 renewal. And of course, our national security has been harmed by some of the thoughtless policies that have been proposed. I also see that clients are just plain concerned.

It is a time for advocacy. I believe that America is still a nation of immigrants. America has gone through phases before. I also believe our Bill of Rights protects people from injustice, including noncitizens and immigrants. So, it’s a good idea to keep calling on our elected officials, and be engaged. That’s what we’re doing.

(Photo taken by our colleague Erin Zipfel, with Senator Murray and other colleagues)

Tags: , , , , , ,
Posted in General, Scott Railton |

Administrative Actions Making Immigration Harder

Wednesday, April 5th, 2017 by W. Scott Railton

I am often asked whether the Trump Administration is impacting immigration law. The headline news concerns travel bans from certain countries and refugees, and this indeed is impacting noncitizens. I routinely hear from professionals who are concerned about their eligibility for benefits under the new administration. Their anxiety is real. Human Resource Departments feel the stress too, as key employees send emails and phone busy staff, with palpable concern. The undocumented communities are very anxious about police coordinating with ICE, as the Administration makes overtures towards “sanctuary” cities and enforcement policies.

Here are a few things that have occurred recently that may not be getting as much press coverage:
1. USCIS recently issued a memo revoking old guidance on computer programmers, and encouraging adjudicators to take a longer look at whether computer programmer positions are actually specialty occupations. Information technology professionals cover about half of the annual quota for H-1Bs professionals.

2. Recently, some ports of entry began to say that Advanced Nurse Practitioners do not qualify for TN status as registered nurses, despite historic practice. This means there is increased risk in traveling abroad for RNs who are ARNPs, as well as with renewals. It does not appear this is a universal interpretation.

3. Premium processing for H-1Bs–which guarantees 15 day adjudication for the price of $1225- is suspended as of April 3rd. USCIS has a considerable backlog on H-1Bs that they need to manage, but there is no confidence that they’ll be able to do this without this program, which, by the way, generates substantial revenues. In particular, physicians who complete their residencies and take on new fellowships on July 1st are particularly concerned.

4. Searches of electronic media at the border have gone up considerably. The Guardian referred to this as a digital strip search. CBP asks for a password, and then takes a person’s phone or computer to another room, and comes back a while later, having scanned photos, emails, and other confidential information. Often, they offer no reason for the search—they just claim the authority and proceed.

5. The border is also asking more frequently whether a person has ever smoked or used marijuana. If the person responds yes, during a sworn statement, the agency is then finding the person inadmissible and requiring them to get a waiver. Waivers cost $585 for Canadians, and take months to process.

6. The Department of State has issued cables to its consular officers requiring them to “improve visa applicant vetting” and to implement “the concepts undergirding the Presidential memorandum.” Also, a hiring freeze was ordered, which will eventually further backlog appointments.

7. Contractors are lining up to build the wall.

8. ICE is deporting persons who have had deferred action and persons who are showing up for USCIS appointments. These have included family members, DREAMers, and other non-criminals.

Make no mistake—the Administration is not just focused on illegal immigration. The Administration is focused on limiting all immigration, and is implementing immigration procedures which effectively do this, even before pursuing a legislative agenda. These measures add complexity and require added time for all immigration processes.

Tags: , , , , , , , , , ,
Posted in General, Scott Railton |

Pittsburgh Pirates Jung Ho Kang’s Denied Visa for DUI Arrests

Friday, March 24th, 2017 by W. Scott Railton

The news is reporting that Jung Ho Kang, the Pittsburgh Pirate’s starting third baseman from South Korea, was denied a visa to play ball this year in the United States due to his past DUIs. The news reports that he has been sentenced to 8 months in jail, which has been suspended, for a December 2016 DUI arrest. Additionally, it is reported that he has two past DUI arrests. Mr. Kang is not a client of ours, and so all comments here are based the hearsay of reported news. His high profile case is illustrative for all persons facing DUI issues, and so I thought I’d type out a few comments.

A single Driving under the influence conviction is not typically a basis for inadmissibility. A single offense may create an admissibility issue if there are aggravating factors. However, the Immigration and Nationality Act renders inadmissible anyone who is deemed a “habitual drunkard”. The habitual drunkard standard does not mean anyone who has ever been arrested for DUI or who, say, is a member of Alcoholics Anonymous. Inadmissibility is established on health-related grounds, and out of concern that a person may be a threat to the “property, safety, or welfare of the alien or others.”

Here’s how it plays out.  A person goes into a visa interview at a foreign consulate, and on the forms acknowledges the past arrests and/or convictions. The Consular Officer then evaluates the whole of the visa application, and probably would refer the person to a Panel Physician, to evaluate whether there is a “habitual drunkard” or other threatening health condition. Panel Physicians are government approved physicians, who are trained to conduct medical examinations related to admissibility issues. They make determinations based on Technical Instructions issued by the Center for Disease Control.

The Department of State has been cracking down in the last year or so on DUI issues. They have implemented a policy of “prudentially revoking” visas for persons who have been arrested for DUIs, and have required that such persons re-apply for visas before seeking to re-enter the U.S.

Nonimmigrant waivers may be available, as need be. A person in Mr. Kang’s situation would first need to obtain a recommendation for a nonimmigrant waiver, if required. This recommendation is forwarded to U.S. Customs and Border Protection’s Admissibility Review Office for further review. CBP will apply a balancing test weighing the need for entry, rehabilitation, and the threat of harm to the U.S. Waivers are easier to obtain after the passage of time from the underlying event(s).

Department of State’s 9 FAM 403.11-5(B) (U) on Prudential Revocations

c. (U) Prudential Revocation for Driving Under the Influence: Either Post or the Department has the authority to prudentially revoke a visa on the basis of a potential INA 212(a)(1)(A) ineligibility when a Watchlist Promote Hit appears for an arrest or conviction of driving under the influence, driving while intoxicated, or similar arrests/convictions (DUI) that occurred within the previous five years. This does not apply when the arrest has already been addressed within the context of a visa application; i.e., the individual has been through the panel physician’s assessment due to the arrest. This does not apply to other alcohol related arrests such as public intoxication that do not involve the operation of a vehicle. Unlike other prudential revocations, consular officers do not need to refer the case to the Department, but can prudentially revoke on their own authority. Post should process the revocation from the Spoil tab NIV and add P1A3 and VRVK lookouts from the Refusal window.

Immigration and Nationality Act excerpt:

Sec. 212. [8 U.S.C. 1182]
(a) Classes of Aliens Ineligible for Visas or Admission.-Except as otherwise provided in this Act, aliens who are inadmissible under the following paragraphs are ineligible to receive visas and ineligible to be admitted to the United States:
(1) Health-related grounds.-
(A) In general.-Any alien-
(i) who is determined (in accordance with regulations prescribed by the Secretary of Health and Human Services) to have a communicable disease of public health significance; 1b
(ii) 1except as provided in subparagraph (C) 1a who seeks admission as an immigrant, or who seeks adjustment of status to the status of an alien lawfully admitted for permanent residence, and who has failed to present documentation of having received vaccination against vaccine-preventable diseases, which shall include at least the following diseases: mumps, measles, rubella, polio, tetanus and diphtheria toxoids, pertussis, influenza type B and hepatitis B, and any other vaccinations against vaccine-preventable diseases recommended by the Advisory Committee for Immunization Practices,
(iii) who is determined (in accordance with regulations prescribed by the Secretary of Health and Human Services in consultation with the Attorney General)-
(I) to have a physical or mental disorder and behavior associated with the disorder that may pose, or has posed, a threat to the property, safety, or welfare of the alien or others, or
(II) to have had a physical or mental disorder and a history of behavior associated with the disorder, which behavior has posed a threat to the property, safety, or welfare of the alien or others and which behavior is likely to recur or to lead to other harmful behavior, or
(iv) who is determined (in accordance with regulations prescribed by the Secretary of Health and Human Services) to be a drug abuser or addict, is inadmissible.
(B) Waiver authorized.-For provision authorizing waiver of certain clauses of subparagraph (A), see subsection (g).

Tags: , , , , , , , ,
Posted in Scott Railton |

USCIS Updates M-274 Handbook for Employer Covering New I-9 Form

Tuesday, February 28th, 2017 by W. Scott Railton

USCIS announced today that is has published an updated version of the M-274, Handbook for Employers: Guidance for Completing Form I-9 (PDF, 5.36 MB).  As per USCIS:

 

The Handbook for Employers provides employers with detailed guidance for completing Form I-9, Employment Eligibility Verification. This version dated Jan. 22, 2017, replaces the previous version. It reflects revisions to Form I-9, which was revised on Nov. 14, 2016.

The Handbook for Employers:

Details how to properly complete the revised Form I-9

Captures policy and regulatory changes since 2013

Is written in plain language, so that it is easier to understand

Includes a streamlined questions and answers section

Features updated tables, new figures, and more current sample documents

Explains guidance regarding automatic extensions for certain Employment Authorization Documents

Review the updated Handbook for Employers or see the Table of Changes for Revised M-274 (PDF, 495 KB) for highlights of the changes.

We anticipate that I-9 audits of employers will be on the rise in the coming year.  Now is a good time employers to review I-9 practices and procedures.  This review should start with a careful read of the M-274 Handbook, followed by a self-audit of I-9 records and practices. Last year, the government raised the minimum level for fines by nearly double, and so a bit of due diligence may go a long way.

 

Posted in General, Scott Railton |

Oregon’s J-1 Waiver Program for Physicians

Tuesday, February 14th, 2017 by W. Scott Railton

The Oregon J-1 Waiver Program for physicians traditionally is slower than many states to fill its statutorily allotted 30 Conrad recommendations. In 2016, Oregon used all 30 of its slots. Indications are that the slots will all be used again by the end of the current fiscal year. In comparison, Washington State has filled its slots the last few years, typically by around mid-year. Alaska, Montana, and Idaho have used the program sparingly.

The Oregon program has a $2000 application fee, which helps the State administer the program. The recommendations are managed by the Oregon Primary Care Office, which is part of the Oregon Health Authority’s Office for Health Policy and Research. The signatory to the recommendations is currently Director Marc Overbeck. The Program Coordinator is Dia Shuhart (503-373-0364). Oregon keeps track of applications as they are being prepared, and so it is a good idea to contact Ms. Shuhart before proceeding with an application. Certain rules have changed, and such communication is encouraged.

The Oregon regulations for their J-1 program can be found at OAR-409-035. Some points of note:

• Applications are adjudicated on first come, first served basis. The State regulations say the case will be handled within 15 days. Usually it is faster, if everything is in place.

• Oregon will grant FLEX spots. None were granted in 2015, and four in 2016. The applications should be vetted with the State ahead of time.

• Placement priority is with primary care, including Family Medicine, General Internal Medicine, Pediatrics, OB/GYN and General Psychiatrists.

• If a health care facility is located in a Medically Underserved Area (MUA) or Medically Underserved Population (MUP) that is not a Health Professional Shortage Area (HPSA) or if the request is for a flex option, then the facility must obtain prior approval from the Authority and provide documentation substantiating the area’s need for a physician.

• At least 40 percent of patients must be Medicaid, Medicare or other low income patients. At least 26% of the 40% must be Medicaid eligible, either through the Oregon Health Plan or through low income Medicare dual eligibility. Low income, uninsured is defined as 200% or less of the current Federal Poverty Guidelines. Note: The 26% requirement is subject to change at the start of each program year, depending on the statewide percentage of Medicaid enrollees.

• Medicaid patients must represent a share of the overall facility’s patient population equal to or greater than the statewide percentage of the population eligible for Medicaid at the beginning of each program year as determined by the Authority. If this is not the case, a plan must be presented.

• Document attempts to actively recruit an American doctor for at least six months prior to submission of the application.

• Eighty percent of the slots allotted for each federal fiscal year are reserved for primary care physicians as defined in OAR 409-035-0010. Applications from community health centers with HPSA scores below 7 and from mental health facilities shall receive priority. The rules also state a preference for geographic distribution of the slots, and a cap of six per employer. The rules leave latitude for the program to adjust priorities according to changing needs.

Applications are mailed to:

Physician Visa Waiver Program
OHA-Health Policy & Analytics
500 Summer Street NE, E-65
Salem, OR 97301

Program details are subject to change. We are happy to assist, as need be. Oregon’s program website is here:

https://www.oregon.gov/oha/OHPR/PCO/Pages/J1.aspx

Tags: , ,
Posted in General, Scott Railton |

President Trump’s Executive Orders

Saturday, February 4th, 2017 by W. Scott Railton

As widely reported, three Executive Orders affecting immigration have been issued by President Trump’s new administration. Additional draft memos, heavy on enforcement, have also been leaked. We are following these administrative developments on a daily basis, and are available to discuss. While we of course want national security, we stand with immigrants and our proud national heritage of being a welcoming country. America is not just a nation of immigrants; America is THE nation of immigrants. We hope this continues, and will fight to make it so. Immigration is our strength as a nation.

Executive Orders are not statutes. They are orders to the administration on how to implement existing law, though Presidents may effectively make law with some orders. The Republicans were highly critical of the Obama Administration for its executive orders and actions regarding immigration. Texas and a number of other states challenged the constitutional validity of Obama’s actions, ending with a 4-4 split in the Supreme Court.

Now the shoe is on the other foot. President Trump’s executive actions are completely different, but courts are already restraining parts of them. Today, Judge James Robart of the Western District of Washington issued a temporary restraining order on the temporary ban placed upon nationals of Syria, Iraq, Iran, Somalia, Yemen, Sudan and Libya. Washington State, joined by Minnesota, alleged violations of the First Amendment (Establishment Clause), the Fifth Amendment’s Equal Protection and Due Process clauses, the Immigration and Nationality Act, the Administrative Procedures Act, the Convention Against Torture, et al. The judge determined the States are likely to prevail, and there is risk of irreparable harm to citizens of the State. These risks included immediate harm to families, the high tech industry, and education, amongst others. The Order is effective nationwide, on a temporary basis, and the matter is now before the Ninth Circuit Court of Appeals.

Meanwhile, in Boston, a federal judge today refused to extend the temporary restraining order which was issued last week. Litigation has ensued in other jurisdictions, such as Chicago. And so it goes, elsewhere around the country.

The order imposing certain travel and refugee bans was not properly vetted, and the rollout has been described as amateurish.  By most reports, agencies struggled with aspects of the orders, such as whether the bans applied to permanent residents and dual nationals.  No consideration was given for special immigrants, who have acted as interpreters in the fight against terrorism. The complete ban has caught students, including doctors in the middle of their residencies, unawares. Some of the issues are getting addressed, but smart policy requires careful review, and some of the mistakes were clearly avoidable.

Where Obama was accused of creating a blanket amnesty, Trump is instituting blanket bans of immigrants classes (refugees for 120 days, Syrian refugees indefinitely, et al.), and effectively those of the Muslim religion from specified countries. The orders are justifiably criticized for omitting several countries which have originated terrorists. Clearly, President Trump is pushing forward with fulfilling his campaign promises, and is intent on showing he will be a President of action. Campaign politics and sound government policy are two very different things sometimes.

So far, the State Department revoked somewhere between 60,000 and 100,000 visas from the seven countries, depending on the report. After Judge Robart’s decision, the Department of State is reporting that these are reinstated, unless physically revoked. Persons departing the country on a revoked visa will have to interview again for a new visa. Travel is therefore inadvisable in most affected cases. In light of last weekend’s events, it may be advisable to consult with an immigration attorney before traveling abroad, at least in the short term until things settle down.

Trump said he’d build a wall and Mexico would pay for it. He said we are going to get control of the border. His executive order on border security calls for an increase in 5000 Customs and Border Patrol agents. CBP is already the largest law enforcement agency in the U.S. The agency’s union endorsed him, a fact he proudly touted. Perhaps this is because his election would be good for them, as it seems is the case.

There will be a large effort to  build detention facilities along the border, if Congress appropriates the funds. The growth in the detention business over the past 10 yeas has already been exponential. The Obama Administration deported over 400,000 persons per year. These numbers may reflect “catch and release” actions—a practice Trump has now stricken. There will be a lot of jobs and construction related to this burgeoning detention business. Immigration enforcement, whether it be detention or walls, is big business for contractors.

Locally, know that the Trump Transition Team asked CBP for information about building a wall on the U.S.-Canada side. Nothing definite, and it seems unlikely. It appears they were just looking to identify what studies have been done. The border security order also calls, once again, for the implementation of an entry-exit system, to better keep track of arriavals and departures in the air, land, sea, and in between. The government has been working on this since at least 1996. Some progress has been made as technology has improved, and the work continues, apparently.

The complete ban on refugees to the U.S. is horrific, given the U.S.’s means to accommodate, and its role as a leader in the world. The world is in the midst of the greatest refugee crisis since World War II. The U.S. has a role to play with its allies in accommodating refugees, and that role is being shirked. National security concerns are understandable, but over 2/3 of the refugees are women and children. There are better ways. The refugee program involves two to three years of vetting and waiting—it is not the likely path of entry for a terrorist.

The “Enhancing Public Safety in the Interior of the U.S.” Executive Order calls for 10,000 more Immigration and Customs Enforcement (ICE) agents. ICE is the agency that handles interior enforcement. The enforcement priorities have been elevated from serious crimes to now anyone who has been arrested. This is a significant change in immigration policy, albeit not unexpected with Trump’s election. Adding boots on the ground, a wall, and detention facilities will require significant Congressional appropriations. The intent may be there from the White House, but actual implementation will take some time. In the meantime, there is concern that the agency will begin to conduct worksite raids and be generally more emboldened. It is important that undocumented and persons otherwise out of status know your rights.

The Trump administration wants to reinvigorate the 287(g) program, which makes local law enforcement immigration enforcement. In Washington State, I’ve mainly heard great resistance to this. In Whatcom County, sitting on the border, the perennial question on these programs, right or wrong, is where’s the funding?

Trump is also going after the “sanctuary cities”, by threatening their federal funding. This will be harder than it sounds, and there will be some wait and see. The issues include precisely what it means to “inhibit” a federal effort, and also there is Supreme Court law which says limitations of this sort need to be focused on related programs, rather than wholesale funding cuts.  Federal immigration holds, strictly for immigration purposes, has been held to violate the 4th Amendment, which potentially makes municipalities liable it tort for holding a person too long.

Still to come: possible renegotiation of NAFTA, which has the potential to have great impact on locally, with regard to workers and cross-border business travel. Also, we’re still waiting to hear what the Administration will do about the Deferred Action for Childhood Arrival program. It seems this is on hold for the moment. And, there’s a leaked White House memo calling for evaluation of all business class nonimmigrant statuses, and the enforcement of certain employer compliance measures. We are also watching for changes to trusted traveler programs such as Global Entry and NEXUS, as we understand some statuses have been revoked.

Tags: , , , , , , , , , ,
Posted in General, Scott Railton |

Bridge Act for DREAMers Receiving Bipartisan Support

Tuesday, January 17th, 2017 by W. Scott Railton

The Bar Removal of Immigrants who Dream and Grow the Economy (BRIDGE) Act has been introduced in the Senate, with an increased showing of bipartisan support. The incoming Trump Administration has said it will end the Deferred Action for Childhood Arrival (DACA) program, which Republicans deem to be an overreach of presidential authority. The Supreme Court split 4-4 on this question, in last term’s U.S. v. Texas et al.

So, now comes the BRIDGE Act, cosponsored by Senators Lisa Murkowski (R-AK), Dianne Feinstein (D-CA), Jeff Flake (R-AZ), Kamala Harris (D-CA), and Chuck Schumer (D-NY). A companion bill has been introduced in the House.

The BRIDGE Act does not legalize status, but it would allow qualifying undocumented young people to apply for work authorization for three years, just like DACA. Further, it provides that information submitted will not be used against the applicants, with some exceptions, such as national security. Approximately 750,000 people have applied for benefits under the DACA program since 2012.

Tags: , , , ,
Posted in General, Scott Railton |

Matter of T-O-S-U- : Precedent H-1B Decision for Physicians of National or International Renown

Saturday, January 7th, 2017 by W. Scott Railton

USCIS has announced new evidentiary standards for determining whether a physician is one of national or international renown for H-1B purposes, through the adoption of Matter of T-O-S-U- (AAO Jan. 4, 2017), as a precedent decision of the Administration Appeals Office.

8 CFR § 214.2(h)(4)(viii) requires that international graduates of medical schools meet certain criteria for H-1B classification, in addition to those which are required of all specialty occupation nonimmigrants. In particular, the law requires that physicians have passed Steps 1, 2, and 3 of the USMLEs, or the predecessor Federation Licensing Examination. Exception is made for “physicians of national or international renown,” but there was very limited guidance prior to Matter of T-O-S-U- as to what this phrase exactly means.
Matter of T-O-S-U- lays out criteria, which while not exclusive, is highly instructive.

Specifically, the case suggests that petitioners provide the following, as excerpted:

B. Evidence

The regulations do not currently provide a list of the specific types of evidence for demonstrating that an alien is a physician of national or international renown under 8 C.F.R. §214.2(h)(4)(viii)(C). We therefore reviewed and took into account the types of documentation that are often persuasive in establishing eligibility for these cases, as well as the categories of probative evidence that are described in the regulations for other classifications involving national or international renown, recognition, or acclaim, including H-1B distinguished merit and ability (models), O-1 extraordinary ability, P-1 internationally recognized, and labor certification under Schedule A, Group II Aliens of Exceptional Ability in Sciences or Arts. See 8 C.F.R. §§ 204.5(h)(3), 214.2(h)(4)(vii)(C), (o)(3)(iii)-(v), (p)(4)(ii)(B), (p)(4)(iii)(B)(3). The following is a non-exhaustive list of evidence that, depending on the qualitative nature of the evidence, may establish eligibility for the exemption at 8 C.F.R. § 214.2(h)(4)(viii)(C):

Documentation of the beneficiary’s receipt of nationally or internationally recognized prizes or awards in the field of medicine;
• Evidence of the beneficiary’s authorship of scientific or scholarly articles in the field of medicine published in professional journals, major trade publications, or other major media;
• Published material about the beneficiary’s work in the medical field that appears in professional journals, major trade publications, or other major media (which includes the title, date, and author of such material);
• Evidence that the beneficiary has been employed in a critical, leading, or essential capacity for organizations or establishments that have distinguished reputations in the field of medicine;
• Evidence of the beneficiary serving as a speaker or panelist at medical conferences;
• Evidence of the beneficiary’s participation as a judge of the work of others in the medical field;
• Documentation of the beneficiary’s membership in medical associations, which require significant achievements of their members, as judged by recognized experts in the field of medicine;
• Evidence that the beneficiary has received recognition for his/her achievements or contributions from recognized authorities in the field of medicine; and
• Any other evidence demonstrating the beneficiary’s achievements, contributions, and/or acclaim in the medical field.

This criteria still leaves much for interpretation. In the confusing world of merits-based immigration, it can be difficult to discern the difference between one who is “extraordinary,” “exceptional,” “outstanding,” “renowned” and other similar characterizations of accomplishment. In Footnote 11 of the decision, the T-O-T-S-U- Court expressly says that “national or international renown” standard is not the same as required to demonstrate extraordinary ability. Footnote 11 also recognizes the standard is not the same as for determining that an “alien is of exceptional ability in the sciences.”  I found it also noteworthy that one criteria is having served as a panelist or speaker at a medical conference. In likelihood, having spoken a few times will not be enough to establish national or international renown, but a pattern of speaking, combined with other supporting material, may make a compelling case.

My initial conclusion:  the T-O-S-U- standards seem akin to the extraordinary alien standards, without quite the same rigor of showing three or more category qualifications. In the case at hand, which was approved, the Court gives a great deal of weight to one particular article, “which garnered numerous independent ciations by peers in professional journals, major trade publications, and other major media.”

The criteria leaves much to interpretation, and the agency will probably remain somewhat inconsistent on minimum showings for these types of petitions. The decision is helpful as a starting point for determining eligibility, where guidance has formerly been almost completely absent.

Link to decision:  Matter of T-O-S-U-, with January 4, 2017 Policy Memorandum

Tags: , , , ,
Posted in General, Scott Railton |

« Older Entries