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H-1Bs Are Now In Season

Tuesday, February 6th, 2018 by W. Scott Railton

H-1B season is officially upon us.

H-1Bs are the nonimmigrant work authorization for persons in specialty occupations. Specialty occupations are meant to be professional positions, but in the past year U.S. Citizenship & Immigration Services has gone to great lengths to narrow the class of professionals eligible for H-1Bs. In particular, the agency has made obtaining an H-1B much more challenging for information technology professionals.

The H-1B category requires that the employer pay the greater of the prevailing or actual wage for the position. Prevailing and actual wage calculations can sometimes be complicated matters, depending on the position. Employers are required to obtain a certified labor condition application from the Department of Labor prior to filing. This process can take a few weeks in some cases, if the employer is not already registered to file.

On April 1st, the annual cap will be open, and for five days employers will submit applications. We have every reason to expect that the agency will receive more than the maximum number of applications under the H-1B quotas. In total, there are about nearly 85,000 spots. In recent years, the agency has received more than 200,000 applications.

H-1Bs are often used as a bridge status for employers who have initially hired foreign students to work for them based on pre-approved optional practical training.

Filing fees vary depending on the employer, but there is a $460 I-129 form fee, a $500 fraud fee, and a $750 or $1500 training fee.

In light of the recent challenges employers have faced with this category, careful evaluation and planning is best. Job descriptions with particularized duties need to be provided, in order to withstand up to agency scrutiny, This can be challenging for some employers, where they know they have a professional position, but have never had to precisely articulate professional duties.

We can help.

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CBP Electronic Searches Up 50%, New Standards Announced

Monday, January 8th, 2018 by W. Scott Railton

U.S. Customs and Border Protection, the agency that manages the border, published new officer standards for searching electronic devices. We have noticed in recent months an increase in these types of searches (phones, computers, cameras, etc.), and related Question and Answer sessions.

Now, with its recent announcement, it appears that reported searches by the agency are up by about 50% for the fiscal year. The agency’s announcement focuses on the limited number of searches that are conducted. We hear of cases all the time where officers hold on to the phone for 15 minutes in another room. Given the confidential nature of information on phones, whether personal or business, it can be a significant invasion of privacy.

The new guidance limits searches from reaching into the cloud on devices. It also provides some lipservice to the protection of confidential information. However, the agency stands firm in its belief that it can conduct such searches. In the past, Senator Cantwell and others have proposed legislation to limit this authority to a more reasonable level, but the courts have largely upheld the authority under current law.

Here’s the announcement, which includes a link to the guidance to officers:

CBP Releases Updated Border Search of Electronic Device Directive and FY17 Statistics

Release Date:
January 5, 2018

CBP searches the electronic devices of fewer than one-hundredth of 1 percent of all arriving international travelers

WASHINGTON—U.S. Customs and Border Protection released today an update to the agency’s Directive governing Border Searches of Electronic Devices. This Directive, which supersedes the previous directive released in August 2009, enhances the transparency, accountability and oversight of electronic device border searches performed by CBP.

“In this digital age, border searches of electronic devices are essential to enforcing the law at the U.S. border and to protecting the American people,” said Deputy Executive Assistant Commissioner, Office of Field Operations, John Wagner. “CBP is committed to preserving the civil rights and civil liberties of those we encounter, including the small number of travelers whose devices are searched, which is why the updated Directive includes provisions above and beyond prevailing constitutional and legal requirements. CBP’s authority for the border search of electronic devices is and will continue to be exercised judiciously, responsibly, and consistent with the public trust.”

Noting the evolution of the operating environment since the 2009 directive was issued, advances in technology and continuing developments, along with the requirements of the Trade Facilitation and Trade Enforcement Act of 2015, codified at 6 U.S.C. § 211(k), Acting Commissioner Kevin McAleenan directed the review and update of the Directive.

In FY17, CBP conducted 30,200 border searches, both inbound and outbound, of electronic devices. Approximately 0.007 percent of arriving international travelers processed by CBP officers (more than 397 million) had their electronic devices searched (more than 29,200). In FY16, 0.005 percent of arriving international travelers (more than 390 million) had their electronic devices searched (more than 18,400).

The need for border searches of electronic devices is driven by CBP’s mission to protect the American people and enforce the nation’s laws in this digital age. As the world of information technology evolves, techniques used by CBP and other law enforcement agencies must also evolve to identify, investigate, and prosecute individuals who use new technologies to commit crimes. CBP border searches of electronic devices have resulted in evidence helpful in combating terrorist activity, child pornography, violations of export controls, intellectual property rights violations, and visa fraud.

Below is a month-to-month comparison for FY16 and FY17.

International Travelers (Inbound and Outbound) Processed with Electronic Device Search
FY 2016 FY 2017
October 857 2,561
November 1,208 2,379
December 1,486 2,404
January 1,656 2,760
February 1,484 2,303
March 1,709 2,605
April 1,578 2,275
May 1,626 2,537
June 1,487 2,304
July 1,656 2,359
August 2,385 3,133
September 1,919 2,580
Total 19,051 30,200

CBP is responsible for securing our nation’s borders, to include, among other things, ensuring the interdiction of persons and goods illegally entering or exiting the United States; enforcing the customs and trade laws of the United States; detecting, responding to, and interdicting terrorists, drug smugglers and traffickers, human smugglers and traffickers, and other persons who may undermine the security of the United States; and safeguarding the border of the United States to protect against the entry of dangerous goods. In furtherance of these critical responsibilities, CBP exercises its border search authority judiciously and in a manner that preserves the public trust.

U.S. Customs and Border Protection is the unified border agency within the Department of Homeland Security charged with the management, control and protection of our nation’s borders at and between the official ports of entry. CBP is charged with keeping terrorists and terrorist weapons out of the country while enforcing hundreds of U.S. laws.

Last published:
January 5, 2018
Tags:
Border Security

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Posted in General, Scott Railton |

California, Legalization, and Immigration

Wednesday, December 27th, 2017 by W. Scott Railton

On January 1st, California will join Washington State, Colorado, and others in legalizing the recreational use of marijuana. Proposition 64 was passed by the voters of California in November, legalizing possession of up to one dry ounce of marijuana. Federal government officials are already saying that they will continue to enforce the Controlled Substances Act, which treats cannabis the same as heroin and LSD. As with other legalized states, the federal/state conflict of laws will persist, uneasily.

One group caught square in the middle are the noncitizens.  Noncitizens include lawful permanent residents, temporary visitors, undocumented aliens and all others who are not U.S. citizens.  Noncitizens routinely have to deal with the Federal Government: immigration court proceedings, applications for immigration benefits (e.g. naturalization, work authorization, permanent residence, green card renewal), seeking entry to the U.S.; CBP checkpoints; visiting national parks; and so on.

Immigration law can be very harsh for the noncitizen when it comes to marijuana. We have seen people denied entry, denied green cards, and denied naturalization, all in relation to legalized marijuana. This year, I wrote extensively on Marijuana and Immigration for the American Bar Association’s Criminal Justice magazine.

In a nutshell, the federal government does not need a conviction to find a person inadmissible to the United States. Inadmissibility can be established with an admission to the essential elements of a controlled substance offense; a “reason to believe” a person is engaged in drug trafficking, or a family beneficiary of its proceeds; misrepresentation; a determination that a person is a drug abuser or drug addict; or for being inadmissible at time of entry. Employment in the budding industry can also have unintended consequences. The laws for removability are different but similar. The legalities can get real complicated, fast, but the point is marijuana and immigration do not mix well.

USCIS officers will  sometimes ask questions about the legal use of marijuana, and this may lead to the denial of adjustments of status and naturalization applications. CBP officers will also ask, and deny admission based on admissions. CBP checkpoints are another point of contact where the issue may arise.  Other things will trigger immigration questions, such as finding marijuana on a person or in their car based on a stop on federal land (e.g. National Park), admission to past illegal use, or marijuana involved in a non-removable offense, such as a DUI.  The agencies are inconsistent in their application of the law.

Legalization will be terrific for immigration in some regards. Minor marijuana convictions in the past have created a basis for removability. These prosecutions in state court will not continue, and thus, they will no longer form the basis for removability. This alone could lead to keeping more families together, decreasing court dockets, and increasing government focus on other concerns.

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New Rules Restricting H-1Bs and H-4 Work Authorization May Be Coming Soon

Friday, December 22nd, 2017 by W. Scott Railton

The Office of Management and Budget recently published its Agency Rule List for Department of Homeland Security for Fall 2017. The list signals upcoming changes to the H-1B and H-4 categories. Also listed are rules concerning ESTA at land port of entries and increased collection of biometrics on entries and exits.

Specifically, the Department of Homeland Security anticipates that it will remove regulations which allow certain H-4 spouses to have work authorization. We don’t know if this will come about, but it is consistent with the Administration’s approach to restricting legal immigration. For this to happen, the Department of Homeland Security will publish a rule in the Federal Register, and receive public comment on the removal of the rule. Subsequently, it will propose final action. In all likelihood, there will not be a revocation of current work authorizations, but at some point affected persons will be unable to apply to renew. It is possible that in the interim legislation will be passed affecting this proposal. It is also possible the Administration may refrain from publishing the rule, though this seems unlikely. It is likely that there will be litigation involving this matter, which could delay things further.

The list also includes notice of the intent of the Department of Homeland Security’s to revise the definition of a specialty occupation, which will affect H-1Bs, and presumably H-1B1s, and E-3s. The proposal says that the agency will focus the process on “obtaining the best and the brightest foreign nationals via the H-1B program.” The notice states that the agency will revise the definition of employment and the employer-employee relationship, and will look at measures regarding compensation to H-1B workers.

The Rule List also says that the agency will propose another rule, requiring electronic registration beforehand for the H-1B lottery. This has the potential to be a good thing, since so many employers spend time and money on H-1B applications which are never selected in the H-1B lottery. However, if this is a means to pre-adjudicate applications, that could turn problematic.

Additionally, the Rule List contains a final rule on collecting biometrics on exit and departures, and registering for ESTA in advance at land borders.

Here are excerpts of the proposed rules from the list:

DHS/USCIS RIN: 1615-AC15 Publication ID: Fall 2017

Title: ●Removing H-4 Dependent Spouses from the Class of Aliens Eligible for Employment Authorization

Abstract:

On February 25, 2015, DHS published a final rule extending eligibility for employment authorization to certain H-4 dependent spouses of H-1B nonimmigrants who are seeking employment-based lawful permanent resident (LPR) status. DHS is publishing this notice of proposed rulemaking to amend that 2015 final rule. DHS is proposing to remove from its regulations certain H-4 spouses of H-1B nonimmigrants as a class of aliens eligible for employment authorization.

Agency: Department of Homeland Security(DHS) Priority: Economically Significant
RIN Status: First time published in the Unified Agenda Agenda Stage of Rulemaking: Proposed Rule Stage
Major: Yes Unfunded Mandates: Undetermined
EO 13771 Designation: Other
CFR Citation: 8 CFR 214 8 CFR 274a (To search for a specific CFR, visit the Code of Federal Regulations.)

Legal Authority: 6 U.S.C. 112 8 U.S.C. 1103(a) 8 U.S.C. 1184(a)(1) 8 U.S.C. 1324a(H)(3)(B)

Legal Deadline: None
Statement of Need:

DHS is reviewing the 2015 final rule in light of issuance of Executive Order 13788, Buy American and Hire American.

Summary of the Legal Basis:

The Secretary of Homeland Security (Secretary) has the authority to amend this regulation under section 102 of the Homeland Security Act of 2002, Public Law 107-296, 116 Stat. 2135, 6 U.S.C. 112, and section 103(a) of the Immigration and Nationality Act (INA), 8 U.S.C. 1103(a), which authorize the Secretary to administer and enforce the immigration and nationality laws. In addition, section 214(a)(1) of the INA, 8 U.S.C. 1184(a)(1), provides the Secretary with authority to prescribe the time and conditions of nonimmigrants’ admissions to the United States. Also, section 274A(h)(3)(B) of the INA, 8 U.S.C. 1324a(h)(3)(B), recognizes the Secretary’s discretionary authority to extend employment authorization.
Alternatives:

Anticipated Costs and Benefits:
DHS anticipates that there would be two primary impacts that DHS can estimate: the cost-savings accruing to forgone future filings by H-4 spouses, and labor turnover costs that employers of H-4 workers could incur.

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DHS/USCIS RIN: 1615-AC13 Publication ID: Fall 2017
Title: ●Strengthening the H-1B Nonimmigrant Visa Classification Program
Abstract:
The Department of Homeland Security (DHS) will propose to revise the definition of specialty occupation to increase focus on obtaining the best and the brightest foreign nationals via the H-1B program, and revise the definition of employment and employer-employee relationship to better protect U.S. workers and wages. In addition, DHS will propose additional requirements designed to ensure employers pay appropriate wages to H-1B visa holders.

Agency: Department of Homeland Security(DHS) Priority: Other Significant
RIN Status: First time published in the Unified Agenda Agenda Stage of Rulemaking: Proposed Rule Stage
Major: Undetermined Unfunded Mandates: Undetermined
EO 13771 Designation: Other
CFR Citation: 8 CFR 214.2(h)(4)

Legal Authority: 8 U.S.C. 1184

Legal Deadline: None
Statement of Need:
The purpose of these changes is to ensure that H-1B visas are awarded only to individuals who will be working in a job which meets the statutory definition of specialty occupation. In addition, these changes are intended to ensure that the H-1B program supplements the U.S. workforce and strengthens U.S. worker protections.
Summary of the Legal Basis:
Alternatives:
Anticipated Costs and Benefits:
DHS is still considering the cost and benefit impacts of the proposed provisions. In general, DHS anticipates that there may be some filing fees and opportunity costs of time in preparing and filing forms for the eligible population. DHS also anticipates benefits in the form of reduced fraud and abuses of the current H-1B program.

Risks:
Timetable:
Action Date FR Cite
NPRM 10/00/2018

Regulatory Flexibility Analysis Required: Undetermined Government Levels Affected: Undetermined
Federalism: Undetermined
Included in the Regulatory Plan: Yes
RIN Information URL: www.regulations.gov
Public Comment URL: www.regulations.gov

RIN Data Printed in the FR: No
Agency Contact:
Kevin Cummings
Division Chief, Business and Foreign Workers Division
Department of Homeland Security
U.S. Citizenship and Immigration Services
Office of Policy and Strategy, 20 Massachusetts Avenue, NW.,
Washington, DC 20529
Phone:202 272-8377
Fax:202 272-1480
Email: kevin.j.cummings@uscis.dhs.gov

———————————————————————————————————-

DHS/USCIS RIN: 1615-AB71 Publication ID: Fall 2017
Title: Registration Requirement for Petitioners Seeking To File H-1B Petitions on Behalf of Aliens Subject to Numerical Limitations
Abstract:
The Department of Homeland Security proposes to amend its regulations governing petitions filed on behalf of alien workers subject to annual numerical limitations. This rule proposes to establish an electronic registration program for petitions subject to numerical limitations for the H-1B nonimmigrant classification. This action is being considered because the demand for H-1B specialty occupation workers by U.S. companies has often exceeded the numerical limitation. This rule is intended to allow USCIS to more efficiently manage the intake and lottery process for these H-1B petitions. The Department published a proposed rule on this topic in 2011. The Department intends to publish an additional proposed rule in 2018. The proposal may include a modified selection process, as outlined in section 5(b) of Executive Order 13788, Buy American and Hire American.

Agency: Department of Homeland Security(DHS) Priority: Other Significant
RIN Status: Previously published in the Unified Agenda Agenda Stage of Rulemaking: Proposed Rule Stage
Major: No Unfunded Mandates: No
EO 13771 Designation: Other
CFR Citation: 8 CFR 214

Legal Authority: 8 U.S.C. 1184(g)

Legal Deadline: None
Statement of Need:
This regulation would help to streamline the process for administering the H-1B cap process and to ensure that H-1B visas are awarded to the most skilled or highest-paid petition beneficiaries.
Summary of the Legal Basis:
Alternatives:
DHS is currently in the process of considering policies that align with our overarching goals of ensuring the allocation of H-1B cap numbers are provided to the best and brightest foreign national beneficiaries, and ensuring that the operational process is as efficient as possible.
Anticipated Costs and Benefits:
While DHS is currently in the process of assessing the costs and benefits of the policy changes under consideration, DHS believes that in aggregate the proposed changes would result in better resource management and predictability for both USCIS and petitioning employers. DHS anticipates that implementing a pre-registration process could benefit the regulated public by potentially reducing the cost and time involved in petitioning for H-1B nonimmigrants, through an up-front cap selection process where only those employers who have obtained a cap number would be required to submit the entire Petition for a Nonimmigrant Worker, Form I-129.
Risks:
Timetable:
Action Date FR Cite
NPRM 03/03/2011 76 FR 11686

NPRM Comment Period End 05/02/2011
NPRM 02/00/2018

Additional Information: USCIS 2443-08. Includes Retrospective Review under E.O. 13563.
Regulatory Flexibility Analysis Required: Yes Government Levels Affected: None
Small Entities Affected: Businesses Federalism: No
Included in the Regulatory Plan: Yes
RIN Information URL: www.regulations.gov
Public Comment URL: www.regulations.gov

RIN Data Printed in the FR: Yes
Agency Contact:
Kevin Cummings
Division Chief, Business and Foreign Workers Division
Department of Homeland Security
U.S. Citizenship and Immigration Services
Office of Policy and Strategy, 20 Massachusetts Avenue, NW.,
Washington, DC 20529
Phone:202 272-8377
Fax:202 272-1480
Email: kevin.j.cummings@uscis.dhs.gov

—————————————————————–

 

DHS/USCBP RIN: 1651-AB12 Publication ID: Fall 2017
Title: Collection of Biometric Data Upon Entry to and Exit From the United States
Abstract:The Department of Homeland Security (DHS) is required by statute to develop and implement an integrated, automated entry and exit data system to match records, including biographic data and biometric identifiers, of aliens entering and departing the United States. In addition, Executive Order 13780, Protecting the Nation from Foreign Terrorist Entry into the United States, published in the Federal Register at 82 FR 13209, states that DHS is to expedite the completion and implementation of a biometric entry-exit tracking system.  Although the current regulations provide that DHS may require certain aliens to provide biometrics when entering and departing the United States, they only authorize DHS to collect biometrics from certain aliens upon departure under pilot programs at land ports and at up to 15 airports and seaports.  To provide the legal framework for CBP to begin a comprehensive biometric entry-exit system, DHS is amending the regulations to remove the references to pilot programs and the port limitation.  In addition, to facilitate the implementation of a seamless biometric entry-exit system that uses facial recognition, DHS is amending the regulations as they pertain to the provision of photographs upon entry and exit.
Agency: Department of Homeland Security(DHS) Priority: Other Significant
RIN Status: Previously published in the Unified Agenda Agenda Stage of Rulemaking: Final Rule Stage
Major: No Unfunded Mandates: Undetermined
EO 13771 Designation: Other
CFR Citation: 19 CFR 215.8    19 CFR 235.1
Legal Authority: 8 U.S.C. 1365a    8 U.S.C. 1365b
Legal Deadline:  None
Statement of Need:This rule is necessary to provide the legal framework for DHS to begin implementing a comprehensive biometric entry-exit system.  Collecting biometrics at departure will allow CBP and DHS to know with better accuracy whether aliens are departing the country when they are required to depart, reduce visa fraud, and improve CBP’s ability to identify criminals and known or suspected terrorists before they depart the United States.
Summary of the Legal Basis:Numerous Federal statutes require DHS to create an integrated, automated biometric entry and exit system that records the arrival and departure of aliens, compares the biometric data of aliens to verify their identity, and authenticates travel documents presented by such aliens through the comparison of biometric identifiers.  See, e.g. , Immigration and Naturalization Service Data Management Improvement Act of 2002, the Intelligence Reform and Terrorism Prevention Act of 2004, and the 2016 Consolidated Appropriations Act.  In addition, Executive Order 13780, Protecting the Nation from Foreign Terrorist Entry into the United States, states that DHS is to expedite the completion and implementation of a biometric entry-exit tracking system.
Alternatives:
Anticipated Costs and Benefits:This rule will allow CBP to know with greater certainty whether foreign visa holders depart the country when required. It will also prevent visa fraud and allow CBP to more easily identify criminals or terrorists when they attempt to leave the country. The technology used to implement this rule could also eventually be used to modify entry and exit procedures to reduce processing and wait times. This rule imposes opportunity and technology acquisition and maintenance costs on CBP and opportunity costs on the traveling public.
Risks:
Timetable:

Action Date FR Cite
Interim Final Rule 04/00/2018
Regulatory Flexibility Analysis Required: Undetermined Government Levels Affected: Undetermined
Federalism: Undetermined
Included in the Regulatory Plan: Yes
RIN Data Printed in the FR: No
Agency Contact:
Michael Hardin
Deputy Director
Department of Homeland Security
U.S. Customs and Border Protection
Customs and Border Protection, Entry/Exit Policy and Planning, 1300 Pennsylvania Avenue, NW, Office of Field Operations, 5th Floor,
Washington, DC 20229
Phone:202 325-1053
Email: michael.hardin@cbp.dhs.gov

———————————————————————————————————

DHS/USCBP RIN: 1651-AB14 Publication ID: Fall 2017
Title: Implementation of the Electronic System for Travel Authorization (ESTA) at U.S. Land Borders–Automation of CBP Form I-94W
Abstract:This rule amends Department of Homeland Security (DHS) regulations to implement the Electronic System for Travel Authorization (ESTA) requirements under section 711 of the Implementing Recommendations of the 9/11 Commission Act of 2007, for aliens who intend to enter the United States under the Visa Waiver Program (VWP) at land ports of entry.  Currently, aliens from VWP countries must provide certain biographic information to U.S. Customs and Border Protection (CBP) officers at land ports of entry on a paper I-94W Nonimmigrant Visa Waiver Arrival/Departure Record (Form I-94W).  Under this rule, these VWP travelers will instead provide this information to CBP electronically through ESTA prior to application for admission to the United States.  DHS has already implemented the ESTA requirements for aliens who intend to enter the United States under the VWP at air or sea ports of entry. 
Agency: Department of Homeland Security(DHS) Priority: Other Significant
RIN Status: Previously published in the Unified Agenda Agenda Stage of Rulemaking: Final Rule Stage
Major: No Unfunded Mandates: No
EO 13771 Designation: Other
CFR Citation: 8 CFR 212.1    8 CFR 217.2    8 CFR 217.3    8 CFR 217.5    8 CFR 286.9
Legal Authority: Pub. L. 110-53
Legal Deadline:  None
Statement of Need:This rule is necessary to implement the Electronic System for Travel Authorization (ESTA) under section 711 of the Implementing Recommendations of the 9/11 Commission Act of 2007 for aliens who intend to enter the United States under the Visa Waiver Program at land ports of entry.  ESTA was implemented at air and sea ports of entry in 2008.  At that time, however, CBP did not have the ability to implement the program at land ports of entry.  This rule will ensure that ESTA is now implemented at all ports of entry.
Summary of the Legal Basis:
Alternatives:
Anticipated Costs and Benefits:In addition to fulfilling a statutory mandate, the ESTA Land rule will strengthen national security through enhanced traveler vetting, streamline entry processing through Form I-94W automation, reduce inadmissible traveler arrivals, and produce a consistent, modern VWP admission policy in all U.S. travel environments, which will benefit VWP travelers, CBP, and the public.  The rule will also introduce time and fee costs to VWP travelers required to complete an ESTA application.
Risks:
Timetable:

Action Date FR Cite
Interim Final Rule 04/00/2018
Regulatory Flexibility Analysis Required: No Government Levels Affected: None
Federalism: No
Included in the Regulatory Plan: Yes
RIN Data Printed in the FR: No
Agency Contact:
Suzanne Shepherd
Director, Electronic System for Travel Authorization
Department of Homeland Security
U.S. Customs and Border Protection
1300 Pennsylvania Avenue NW.,
Washington, DC 20229
Phone:202 344-2073
Email: suzanne.m.shepherd@cbp.dhs.gov

 

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USCIS Narrows Economist TN Category

Monday, December 18th, 2017 by W. Scott Railton

U.S. Citizenship and Immigration and Services (USCIS) continues to finds to limit legal immigration to the U.S. Today’s announcement concerned NAFTA–specifically, the Economist category. The press release is posted below.

NAFTA’s schedule of TN professions is out of date. It was created in the early 1990s, before so many changes brought on by new technologies. The new guidance specifically excludes Financial Analysts, Marketing Analysts, and Market Research Analysts. Undoubtedly, many person filling these roles with companies are trained in economics, and are providing valuable advice to their employers related to economics. Nevertheless, this is the current state of immigration reform at USCIS. So many of these reforms will simply drive valuable professionals to Canada and Mexico. The Administration’s premise that American companies are looking abroad for employees first is fundamentally flawed.

We’ve been asked what to expect with NAFTA. This announcement is one of the clearest yet that the Administration is looking at individual TN categories. Employers should not wait until the last minute consider renewals of TNs.

Here’s the announcement:

WASHINGTON —U.S. Citizenship and Immigration Services (USCIS) announced today that it is clarifying policy guidance on the specific work activities its officers should consider when determining whether an individual qualifies for TN nonimmigrant status as an economist.

The North American Free Trade Agreement (NAFTA) TN nonimmigrant status allows qualified Canadian and Mexican citizens to temporarily enter the U.S. to engage in specific professional activities, including the occupation of economist. The agreement, however, does not define the term economist, resulting in inconsistent decisions on whether certain analysts and financial professionals qualify for TN status as economists.

TN nonimmigrant status is intended to allow a limited number of professionals and specialists to work temporarily in certain specifically identified occupations in the United States. This updated guidance provides USCIS officers with a specific definition of one such category – economists – allowing them to adjudicate applications in a way that complies with the intent of the agreement.

This policy update clarifies that professional economists requesting TN status must engage primarily in activities consistent with the profession of an economist. Individuals who work primarily in other occupations related to the field of economics — such as financial analysts, marketing analysts, and market research analysts — are not eligible for classification as a TN economist.

This policy update is consistent with the Department of Labor’s (DOL’s) Standard Occupational Classification system. DOL defines economists as people who conduct research, prepare reports, or formulate plans to address economic problems related to the production and distribution of goods and services or monetary and fiscal policy. Economists may collect and process economic and statistical data using sampling techniques and econometric methods. The definition specifically excludes market research and marketing analyst occupations.

Interim and final policy memos are official USCIS policy documents and go into effect on the date the memos are issued.

USCIS is committed to carrying out the directives of the President’s Buy American and Hire American Executive Order to better protect the interests of U.S. workers. Ensuring the integrity of guest worker programs is consistent with our Buy American, Hire American initiatives.

For more information on USCIS and its programs, please visit uscis.gov or follow us on Twitter (@uscis), YouTube (/uscis), Facebook(/uscis), and Instagram (@USCIS).

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Mission Canada Makes Administrative Changes to E Visa Process

Saturday, December 16th, 2017 by W. Scott Railton

Every so often, Consulates change their administrative procedures for handling E-1 Trader and E-2 Investor Visas. Mission Canada recently announced certain changes, effective December 5th, 2017. Most notably, initial applications will be reviewed during a ten business day period, after which an interview may be scheduled. It is possible that this change may slow down the actual processing timeline, but time will tell.

Here’s the message from Mission Canada:

We are pleased to inform you that our unit has implemented a new, streamlined E-visa application process for first time E visa applicants and applicants renewing their E visas. Our new online appointment system, processing change will allow us to receive and review E-visa applications before the applicant schedules an in-person interview (as opposed to the old system, which permitted applicants to schedule an appointment before submitting an application or supporting documentation). We anticipate that the new system will speed up processing time and help us provide better customer service to you and your clients.

Under the new system, E-visa applications will be sorted into two processing streams based on the time needed to review the required documentation.

• New Cases and Renewals – First-time applicants and those wishing to renew the registration status of their E-visa company will be offered a “deferred interview” appointment. While applicants will still need to first create an appointment profile and pay the required visa application fee online at https://ais.usvisa-info.com, the interview will be deferred until applicants have electronically submitted their application and supporting documents to the U.S. Consulate in Toronto via evisacanada@state.gov. Once their application has been reviewed, which requires at least 10 business days, we will send applicants instructions on how to make an appointment for an in-person interview. Applicants will be unable to schedule an appointment until then. Only applications in the queue for “New Cases and Renewals” will be considered for company registration or re-registration.

• Employees of Registered Companies and Dependents – Employees of currently registered E-visa companies, and qualifying family members of current E-visa holders, may schedule the next available appointment in Calgary, Montreal, Ottawa, Vancouver or Toronto.

For more information please visit our website listed below:

https://ca.usembassy.gov/visas/treaty-trader-and-investor-visas/

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USCIS Encouraging On-Line Naturalization Applications

Monday, December 11th, 2017 by W. Scott Railton

U.S. Citizenship and Immigration Services is now encouraging individuals to file naturalization applications on-line. The agency has been struggling to modernize on-line application processes for many years now. Applicants should be aware that while filing on-line may provide some advantages, the laws surrounding naturalization have not changed. In fact, the actual process is slowing down administratively, as applications and processing times have gotten longer. Every question on an application form needs to be considered fully, as a simple “Yes” or “No” on the form can have far-reaching consequences in some cases.

The naturalization process is perhaps my favorite part of immigration law. Naturalization is a big deal for anyone. It represents the culmination of the lengthy and often-trying immigration process. It’s also the step where the government takes one last look at the immigrant, and so a certain measure of caution is prudent.

Here’s USCIS’s announcement sent out today regarding on-line applications:

Dear Stakeholder,

Applicants can file Form N-400, Application for Naturalization online through their USCIS online account. When they use the interactive Form N-400, applicants will see questions, alerts, and notifications specific to the answers they provide while completing the form. Applicants will also see prompts and reminders to upload required evidence. This means each person follows a personalized path for completing the form based on the information that they provide.

By using the online account, applicants will be able to:
• Update personal information online,
• Answer optional questions in the Naturalization Eligibility Tool to help determine their eligibility for naturalization,
• Create, edit, save, or delete a draft application,
• Upload evidence,
• Pay any fees and submit the application,
• View real-time case information and the history of their interactions with USCIS, and,
• Securely and directly communicate with USCIS about their case.
Currently, individuals can create a unique, online account and file their Form N-400 online, with only three exceptions. At this time, applicants must submit a paper Form N-400 if:
• They are applying for citizenship based on having served in the U.S armed forces or based on their current service,
• They want to apply from outside of the United States, or,
• They are requesting a fee waiver or reduced fee.

The Form N-400 online application was built based on input we received from community-based organizations and past applicants. Stakeholders from across the United States informed our development process by testing portions of the online form and providing feedback.

USCIS is also introducing an online naturalization eligibility tool that helps intending applicants determine if they may be eligible to apply for naturalization. This optional tool provides information about the most common eligibility requirements for naturalization.

We encourage you to share this option for an online and interactive filing experience with your clients who are ready to file Form N-400, Application for Naturalization.

Kind regards,

USCIS Public Engagement Division

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Increase in Expedited Removals at the Northern Border

Friday, December 8th, 2017 by W. Scott Railton

We are seeing an increase in expedited removals at the border in recent months. This is to be expected, based on the Trump Administration’s Executive Orders on immigration and the subsequent memos issued by the Department of Homeland Security on implementing these orders.

Expedited removal is authorized under section 235 of the Immigration and Nationality Act. If an officer determines a person has made a material misrepresentation, claimed citizenship falsely, or doesn’t have the appropriate documentation to enter the U.S., an expedited removal may be effectuated. Typically, we’re seeing a five year ban applied

Expedited removal usually occurs after a lengthy interview with multiple officers in secondary inspection. We’ve heard of persons interviewed on and off for four to eight hours, though eight would be unusual.

Electronic searches of phones and computers are increasingly a part of the inspection. Officers will ask questions and look for contradictions. Often, we see statements where people admit to misrepresentations, offered originally in hopes of more easily gaining entry.

Sometimes expedited removals are issued because the agency finds the applicant for admission to be an immigrant without an immigrant visa. This type of determination often happens when they learn someone has been working without authorization in the United States, or the person is seeking admission so that they can live with their spouse, perhaps with the expressed intent of “squaring away” their immigration papers later.

Expedited removal orders are tough to overturn.

The statute expressly makes the determinations beyond judicial review—that means you cannot go to court and get a judge to change the decision. Sometimes, if the order in manifestly incorrect or unfair, it is possible to take the issue up with a supervisor after the fact. Otherwise, the best available path is waivers.

The waiver process varies based on several factors, and can be complicated, lengthy, and expensive. In a nutshell, the availability of waivers depends on if permanent residence is sought, or something less permanent. Procedurally, there are differences in process for Canadians and non-Canadians. Anyone with an expedited removal order should not approach the border without legal advice and obtaining consent to reapply for admission first, as there is risk of criminal penalty.

Recovering from an expedited removal order can take time. Each case is different. We are of course available to advise on expedited removals and similar border issues, and have been doing so for many years.

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Global Entry Enrollment on Arrival Expands to Sea-Tac Airport

Wednesday, November 15th, 2017 by W. Scott Railton

U.S. Customs and Border Protection’s Global Entry trusted traveler program has expanded it’s Enrollment on Arrival to include Sea-Tac airport.  Conditionally approved enrollees can complete their process now by interviewing at the airport.

The Global Entry application fee for a 5 year approval is $100. The agency is not transparent on adjudication standards, but there is little to no tolerance for past criminality. Canadian citizens and residents enrolled in NEXUS may also use the Global Entry kiosks.  The pass can be very helpful in dealing with airport processing times.

Here’s the CBP press release:

Global Entry Enrollment on Arrival Expands to 11 Additional International Airports
Release Date: November 14, 2017

Program is now available in some of the busiest Global Entry enrollment areas and will continue to expand through the remainder of 2017 and into 2018

WASHINGTON—U.S. Customs and Border Protection announced today the expansion of Global Entry Enrollment on Arrival to 11 additional international airports. Enrollment on Arrival enables conditionally-approved Global Entry applicants to complete their interview, the final step of the Global Entry enrollment process, while clearing CBP processing. The program is currently available at nine new locations including Dallas/Fort Worth International Airport (DFW), Detroit Metropolitan Airport (DTW), Minneapolis-Saint Paul International Airport (MSP), Phoenix Sky Harbor International Airport (PHX), Salt Lake City International Airport (SLC), San Diego International Airport (SAN), Norman Y. Mineta San Jose International Airport (SJC), Seattle-Tacoma International Airport (SEA), and Toronto Pearson International Airport (YYZ), and will launch later this week at Denver International Airport (DEN) and Philadelphia International Airport (PHL).

“Global Entry continues to be one of CBP’s most successful and popular programs and we have made it a priority to improve the enrollment process for those looking to join the ranks of Trusted Traveler,” said Acting Commissioner Kevin McAleenan. “Last month, we launched a modernized, mobile-friendly application website making the initial step of the process more user friendly and now with these additional Enrollment on Arrival locations we have added greater flexibility for those looking to complete the enrollment process.”

Since the program’s launch in July, more than 5,200 conditionally-approved Global Entry applicants have completed the final step of the enrollment process at an Enrollment on Arrival location. Enrollment on Arrival is also available at George Bush Intercontinental Airport (IAH), William P. Hobby Airport (HOU), Austin-Bergstrom International Airport (AUS), San Francisco International Airport (SFO) and Vancouver International Airport (YVR).

Conditionally-approved applicants looking to utilize Enrollment on Arrival do not need to schedule an interview appointment ahead of time.

Once a traveler is conditionally-approved, instead of scheduling an interview at a Global Entry Enrollment Center, the traveler can complete the enrollment interview during CBP primary inspection at a participating airport. Upon arrival, travelers will be directed to a primary booth designated specifically for Enrollment on Arrival. A CBP officer will conduct both the primary processing and Global Entry interview and collect the traveler’s biometrics to complete the enrollment. The traveler will then be cleared for entry into the United States and, if approved, will be a Global Entry member.

Currently available at 54 U.S. airports and 15 Preclearance locations, Global Entry streamlines the international arrivals process at airports for trusted travelers. The more than 4.7 million Global Entry members bypass traditional CBP inspection lines and use an automated kiosk to complete their admission to the United States. As an added benefit, Global Entry members are also eligible to participate in the TSA Pre✓™ expedited screening program.

U.S. citizens, U.S nationals and U.S. Lawful Permanent Residents may apply for Global Entry as well as passport holders from Argentina, Colombia, Germany, India, Mexico, the Netherlands, Panama, the Republic of Korea, Singapore, Switzerland, Taiwan and the United Kingdom. Canadian citizens and residents enrolled in NEXUS may also use the Global Entry kiosks.

Interested travelers apply through the Trusted Traveler Programs website. The non-refundable application fee for a five-year Global Entry membership is $100 and applications must be submitted online. Once the applicant successfully passes a background check, a CBP officer will conduct an interview with the applicant at one of the more than 100 Global Entry Enrollment Centers located throughout the U.S., Canada, and Qatar or at an Enrollment on Arrival location and then make a final eligibility determination.

While the goal of Global Entry is to speed travelers through the process, members may be selected for further examination when entering the United States. Any violation of the program’s terms and conditions will result in appropriate enforcement action and may result in the revocation of the traveler’s membership privileges.

Visit CBP’s Global Entry website for more information on the Global Entry Program and the Enrollment on Arrival website for an updated list of available locations.

U.S. Customs and Border Protection is the unified border agency within the Department of Homeland Security charged with the management, control and protection of our nation’s borders at and between the official ports of entry. CBP is charged with keeping terrorists and terrorist weapons out of the country while enforcing hundreds of U.S. laws.

Last published:
November 15, 2017

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Posted in Scott Railton |

Military Naturalizations Halted

Wednesday, October 18th, 2017 by W. Scott Railton

Our colleague Margaret Stock is the leading authority on military and immigration. Unfortunately, she reports that the Department of Defense has put a hold on all military naturalizations. Here is her practice alert she sent out to the immigration bar:

Practice Alert!

On Friday, October 13, 2017, the US Department of Defense halted ALL military naturalizations for all currently serving members of the US Armed Forces (Army, Navy, Air Force, Marine Corps, Coast Guard, and their Reserve Components, including the National Guard). More details to follow. It is not clear when naturalizations will resume since every immigrant seeking to naturalize now needs the signature of a Service Secretary on Form N426 in order to file an N400. There is no procedure in place to get that signature.

https://www.defense.gov/News/News-Releases/News-Release-View/Article/1342317/

Please warn your clients seeking to enlist in the US Armed Forces that such enlistment will NOT allow them to naturalize for several years (estimated time for DOD to follow the new procedures). If they are a green card holder and they enlist, they will not be able to naturalize under the civilian statutes once they enlist, because they can’t naturalize while the new DOD background checks are pending.

 

COPYRIGHT Cascadia Cross-Border Law, 2017. All rights reserved.

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