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Canadian Senate Committee Issues Report on Border and Legalization

Wednesday, June 6th, 2018 by W. Scott Railton

I had the honor of testifying before Canada’s Senate Committee on National Security and Defence in April, concerning the border and Canada’s bill to legalize cannabis nationally.

The Committee issued an interesting report, in which they recognize that legalization may lead to border issues. The Committee makes recommendations for diplomatic and legislative action. The Report mentions potential issues with Pre-Clearance, NEXUS, and with interrogations.  Below I’ve pasted the Committee’s report and related press release.

Report of the committee

Tuesday, May 1, 2018

The Standing Senate Committee on National Security and Defence has the honour to table its

SIXTEENTH REPORT

Your committee, which was authorized to examine the subject matter of Bill C-45, An Act respecting cannabis and to amend the Controlled Drugs and Substances Act, the Criminal Code and other Acts, insofar as it relates to Canada’s borders, has, in obedience to the order of reference of Thursday, February 15, 2018, examined the said subject-matter and now reports as follows:

At the Committee’s meetings of March 19, March 26 and April 16, 2018, thirteen witnesses appeared to present their views on the subject matter of Bill C-45. Your committee presents the following comments on the bill as it relates to Canada’s borders:

1) Your committee wishes to minimize any negative effects of Bill C-45 on the movement of travellers and goods across the Canada-U.S. border. First, your committee wishes to prevent, as much as possible, Canadian travellers from being further interrogated or searched by U.S. customs officers as a result of the legalization of cannabis in Canada. Your committee also wants to prevent, as much as possible, an increase in the number of Canadian and U.S. travellers being stopped at the border for possession of cannabis. Your committee heard from witnesses who believe that, after Bill C-45 comes into force, Canadians could face delays and more Canadian travellers could face legal proceedings and/or inadmissibility for life for a cannabis offence or for simply admitting previous cannabis use to U.S. customs and border protection officers.

2) To prevent the above-mentioned problems, your committee encourages the Canadian government to have formal discussions with the U.S. government to clarify the U.S. government’s position with respect to Canadian travellers who admit to previous cannabis use. Specifically, your committee encourages the Canadian government to have formal discussions at the political level in order to clarify whether Canadians who admit to having previously used cannabis will face inadmissibility to the United States if Bill C-45 is passed. If so, your committee encourages the Canadian government to make it clear to U.S. authorities that, in its view, following the coming into force of Bill C-45, Canadian travellers should not be prohibited entry into the United States for activities that are legal in Canada, such as using cannabis or working for a company that legally produces cannabis. Your committee encourages the government to continue its dialogue with the U.S. government and to clearly and firmly communicate Canada’s position in order to minimize the impact of Bill C-45 on Canadian travellers. This dialogue could also help find solutions to issues and problems that will arise at the border following the entry into force of Bill C-45.

3) In the context of this dialogue with the United States, your committee encourages the government to negotiate an agreement with the United States on the treatment of travellers at the border on issues related to cannabis, notably on the types of questions that border officers of both countries ask travellers in light of the fact that consuming cannabis will be legal in Canada following the entry into force of Bill C-45 and that it is already legal in several American states. This bilateral agreement could also protect workers of Canadian companies in the emerging cannabis sector in order to ensure that the workers of these companies are not banned from entry into the U.S. because they are “associated with drug trafficking,” as current U.S. law states.

4) In conjunction with diplomatic activities, your committee encourages the government to increase the scope of its awareness campaign to make it clear to Canadians that crossing the Canada-U.S. border while in possession of cannabis will remain illegal even if Bill C-45 comes into force. This awareness campaign should also make it clear to Canadians that they may be denied entry into the United States if they admit to previous cannabis use. Although Canadian officials who appeared before your committee stated that an awareness campaign would be launched soon, your committee believes that additional efforts should be made in the coming months to ensure that Canadians understand the seriousness of the consequences they will face if cannabis is found in their possession at the border or if they admit to previous cannabis use. Additional awareness campaigns, one specifically targeting youth and the other focused on those who hold or apply for trusted traveller programs (such as NEXUS and FAST), should be put in place due to the unique vulnerabilities of these groups.

5) Your committee encourages the Canadian government to install signs and posters at border crossings and pre-clearance sites clearly explaining to travellers that it is illegal to cross the Canada-U.S. border with cannabis. Witnesses from Public Safety told the committee that such signs would be installed at the border. Your committee encourages the Canadian government to accelerate the implementation of its awareness campaign and the installation of signs and posters before Bill C-45 comes into force so that travellers are aware of the consequences they face if they try to cross the Canada-U.S. border with cannabis.

6) Your committee encourages the government to modernise preclearance measures in light of Bill C-45. In accordance with An Act respecting the preclearance of persons and goods in Canada and the United States, which received Royal Assent on December 12, 2017, travellers are obliged to truthfully answer any question posed to them by U.S. border officers, which means that Canadians who submit to preclearance must truthfully answer any questions about their cannabis use. At regular border crossings, travellers who refuse to answer these types of questions can be denied entrance into the U.S., but do not face lifetime bans or prison terms. However, travellers who refuse to answer questions in preclearance areas could face sentences of up to two years in prison for “resisting or wilfully obstructing a preclearance officer.” Your committee therefore encourages the government to modernise the Act respecting the preclearance of persons and goods in Canada and the United States in light of Bill C-45.

7) Lastly, your committee requests that the government table before Parliament a plan to protect Canadian travellers at the border. This plan should outline the measures that the government intends to take to minimise the impact of Bill C-45 on the movement of travellers and goods across the Canada-U.S. border. This plan should also explain the approach that the government intends to take in its negotiations with the United States in order to ensure that Canadian travellers are not denied entry into the United States for previous cannabis use or for engaging in any other type of activity that would become legal following the entry into force of Bill C-45.

Respectfully submitted,

GWEN BONIFACE

Chair

 

News Release
The Standing Senate Committee on National Security and Defence
Legalized cannabis could lead to border-crossing woes
May 2, 2018
________________________________________
Ottawa – If recreational cannabis becomes legal in Canada, the federal government should continue official discussions with the United States about the treatment of Canadian travellers so that they remain able to cross the border with minimal inconvenience, the Senate Committee on National Security and Defence said Tuesday.

Committee members made a number of comments with regard to the legalization of cannabis after studying the issue as it relates to Canada’s borders.
Senators wish to minimize the effect of legalization on the movement of travellers and goods so that Canadians do not, for instance, face lengthy interrogation or increased searches by U.S. customs officials.

Witnesses have testified that Canadians travelling to the U.S. could be inadmissible for entry simply for admitting to previous cannabis use.

The committee requests that the government table before Parliament a plan to protect Canadian travellers at the border.

Quick Facts

• Pursuant to a motion adopted in the Senate on February 15, 2018, the Senate Committee on National Security and Defence was authorized to study Bill C-45, the Cannabis Act, as it relates to Canada’s borders.

• The motion also authorized the Senate committees on Aboriginal Peoples, Foreign Affairs and International Trade, and Legal and Constitutional Affairs to study aspects of Bill C-45.

• These committees’ reports will be reviewed by the Senate Committee on Social Affairs, Science and Technology during its study of the bill.

Quotes

“With legalization looming, Canada must be prepared for the consequences. Canadians must be confident that they will still be able to cross into the United States without fear that activities legal in Canada will be held against them. We urge the government to make the necessary diplomatic overtures.”
– Senator Gwen Boniface, Chair of the committee.

“If the legalization of cannabis is to take place with a minimum of harm, the government will need to address the issues our committee has raised. The mobility of people and goods across the U.S. border is crucial to Canada’s economy; we cannot afford to be unprepared.”
– Senator Jean-Guy Dagenais, Deputy Chair of the committee.

“Our actions, as legislators, have consequences. Sometimes they are difficult to foresee, but in this instance it is all too clear that Bill C-45 could adversely affect cross-border mobility. There is still time for the government to take steps to protect Canadian travellers.”
– Senator Mobina S.B. Jaffer, Deputy Chair of the committee.

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USCIS Narrows Meaning of a Specialty Occupation

Wednesday, May 23rd, 2018 by W. Scott Railton

USCIS is challenging employers on whether their positions fit the definition of a “specialty occupation.” It has become for the agency to issue “Requests for Additional Evidence” (RFEs) of employers, providing up to three months to respond. The Requests are overly broad, and a disguised tax on the company for filing the petition in the first place. It has been said that the agency anticipates denying as many as 25% of the applications submitted.  Applications were down this year, probably due to these bureaucratic challenges.  Many fear where this is going, with the best and the brightest opting for jobs elsewhere.

The requests can be several pages long.  In doing so, the agency is piling up the costs for businesses. This fits in with the Administration’s overall goal of making immigration harder. Or, as the Executive Order goes, “Buy American, Hire American.”

We are seeing businesses disrupted by this red tape, as new petitions and renewals for key personnel are challenged. The occupations most commonly challenged are managers and information technology professionals. Often, these professionals have many years of experience, and have seen past approvals from the agency.

In my experience, employers don’t typically want to sponsor H-1B professionals unless they have great cause to, due to the underlying costs. Employers don’t typically seek an attorney’s assistance to hire a professional, but that is standard for an H-1B.  There are just too many regulations and procedures to navigate. However, the U.S. has record unemployment and a shortage of qualified STEM professionals right now. So, the H-1B program has the potential to help businesses.

Here is the Request for Evidence template that many petitioners are receiving:

Specialty Occupation

A specialty occupation is one that requires the theoretical and practical application of a body of highly specialized knowledge and which requires the attainment of a bachelor’s or higher degree in a specific specialty, or its equivalent, as a minimum, for entry into the occupation in the United States.
USCIS does not use the job title, by itself, when determining whether a particular position qualifies as a specialty occupation. The specific duties of the proffered position, combined with the nature of the petitioning entity’s business operations, are factors that USCIS considers.

To qualify as a specialty occupation, the position must meet at least one of the following criteria:

1. Bachelor’s or higher degree or its equivalent is normally the minimum requirement for entry into the particular position;
2. The degree requirement is common to the industry in parallel positions among similar organizations or, in the alternative, an employer may show that its particular position is so complex or unique that it can be performed only by an individual with a degree;
3. The employer normally requires a degree or its equivalent for the position; or
4. The nature of the specific duties is so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a bachelor’s or higher degree.

USCIS interprets the term degree in the above criteria to mean not just any degree, but a degree in a specific field of study that is directly related to the proffered position.

To show that the position offered to the beneficiary qualifies as a specialty occupation, you submitted:

• A certified Labor Condition Application (LCA)
• Other evidence described, relating to occupation title

The Occupational Outlook Handbook (“OOH”) (a publication of the U.S. Department of Labor) indicates that a [occupation title] is an occupation that does not require a bachelor’s level of education or higher or its equivalent in a specific specialty as a normal, minimum for entry into the occupation.

You have not shown that the position offered to the beneficiary is a specialty occupation. You may submit additional evidence to satisfy this requirement.

Evidence may include, but is not limited to:
• A detailed statement to:
o explain the beneficiary’s proposed duties and responsibilities;
o indicate the percentage of time devoted to each duty; and
o state the educational requirements for these duties.
• A copy of a line-and-block organizational chart showing your hierarchy and staffing levels. The organizational chart should:
o list all divisions in the organization;
o identify the proffered position in the chart;
o show the names and job titles for those persons, if any, whose work will come under the control of the proposed position; and
o indicate who will direct the beneficiary, by name and job title.
• Job postings or advertisements showing a degree requirement is common to the industry in parallel positions among similar organizations.
• Letters from an industry-related professional association indicating that they have made a bachelor’s degree or higher in a specific specialty a requirement for entry into the field.
• Copies of letter or affidavits from firms or individuals in the industry that attest that similar organizations routinely employ and recruit only degreed individuals in a specific specialty. Any letter or affidavit should be supported by the following:
o The writer’s qualifications as an expert;
o How the conclusions were reached; and
o The basis for the conclusions supported by copies or citations of any materials used.
• Copies of your present and past job postings or announcements for the proffered position showing that you require applicants to have a minimum of a bachelor’s or higher degree in a specific specialty or its equivalent.
• Documentary evidence of your past employment practices for the position, including:
o Copies of employment or pay records; and
o Copies of degrees or transcripts to verify the level of education of each individual and the field of study for which the degree was earned.
• An explanation of what differentiates your product and services from other employers in the same industry and why a bachelor’s level of education in a specific field of study is a prerequisite for entry into the proffered position. Be specific and provide documentation to support any explanation of complexity.
• Copies of documentary examples of work product created by current or prior employees in a similar position, such as:
o Reports;
o Presentations;
o Evaluation;
o Designs; or
o Blueprints.
• Additional information about your organization, such as:
o Press releases;
o Business plans;

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Scott Railton Testifies Before Canadian Senate Committee on Border

Thursday, April 19th, 2018 by W. Scott Railton

I was honored to speak this week with Canada’s Standing Senate Committee on National Security and Defence concerning Bill C-45, the Cannabis Act, insofar as it relates to Canada’s borders. Legalization hasn’t happened at the U.S. federal level, and this begs many questions about border travel after legalization. Increasingly, I am asked, “What happens when Canada legalizes marijuana for all to use, like in Washington State?” Parliament is now taking up the query, as it studies moving forward with Bill C-45.

There are still many unanswered questions. The U.S. Immigration and Nationality Act and the U.S. Controlled Substances Act haven’t changed on marijuana, despite the sea change in legalization in many other jurisdictions, including Washington State and soon Canada. In our observation, this has led to issues for persons seeking admission or other immigration benefits, with some regularity.

The Senators had questions about how legalization might impact border traffic. My co-panelists were the Mayor of Windsor, Drew Dilkens, and Jonathan Blackham, Director of Policy and Public Affairs at the Canadian Trucking Association. Like me, they expressed concerns. These included possible slow-downs in inspections and increased wait-times; cannabis or cannabis residue being found increasingly in cars and trucks; trusted traveler and FAST interviews; and the queries made by U.S. officers.  The Mayor and I both emphasized the need to educate the public on the conflicts of laws, concerning immigration and cananbis.

I used my introductory remarks to lay out the bases for inadmissibility to the United States that involve cannabis. Even if Canada legalizes cannabis, there are several bases for inadmissibility that may still involve cannabis and affect persons seeking admission. These include admitting to past violations of a Controlled Substance law; health-related grounds related to being deemed a drug abuser or drug addict; national security grounds for inadmissibility relating to seeking entry for an illegal purpose (e.g. to purchase cannabis in a state where it is legalized); misrepresentation related to cannabis questions; involvement in cannabis-related businesses associated with the U.S. (e.g. aiding/abetting illicit trafficking); and customs violations for having cannabis in a vehicle or on a person.

The United States laws on admissibility are more complicated than many might imagine. We know, since this is what we do daily. As I told the Committee, cannabis continues to be listed as a Schedule 1 substance under the U.S. Controlled Substances Act, making it as a matter of law equal to cocaine, heroin, or L.S.D. A Schedule 1 substance is one which has no medical purpose and has a high propensity of abuse. I also acknowledged to the Committee that this is not the popular opinion of the majority of the States, based on voter initiatives. The conflict of federal and state laws will also likely present an issue at the border, should Canada legalize. I said I think there will be “growing pains” as the public and the border adjusts to such a significant change in Canadian law.

The hearing garnered significant attention in the Canadian media, with stories appearing in Global News, CBC, the Windsor Star, and many other outlets. I anticipate the border and legalization will continue to be a matter of public interest to both Canada and the United States, if Bill C-45 moves forward.

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USCIS Receives 190k H-1B Applications for 85k Spots

Thursday, April 12th, 2018 by W. Scott Railton

Demand continues to outpace supply for H-1B petitions. For this year’s cap lottery, U.S. Citizenship and Immigration Services received 190,098 applications for 85,000 spots. This is actually less applications than in some recent years. Of course, this is the full allocation of H-1B slots for the 2019 Fiscal Year, received in the first five days.

For those reading who do not know, H-1Bs are the United States’ professional temporary visa for high skilled workers. These include certain information technology workers, high skilled health care professionals, engineers, accountants, and the like. While there are other temporary and permanent work authorization categories, the H-1B is the typical work authorization category that foreign students might pursue upon completion of studies in the United States. Over half of the students in STEM graduate programs in the U.S. are foreign students.

We speak to many employers who want to hire these students, but run into issues with the H-1B cap. Increasingly, it seems that students who don’t get picked either look for other employers or go to other countries. In some cases, they can wait another year, and apply again, but eventually time runs out. There are other options, like continuing education, or finding employment with certain cap-exempt employers. Fundamentally, though, the current system has many flaws, based on our observations from working with employers and prospective employees.

Good luck to all who applied! Here is the excerpted announcement from USCIS:

On April 11, USCIS used a computer-generated random selection process to select enough H-1B petitions to meet the congressionally-mandated cap and the U.S. advanced degree exemption, known as the master’s cap, for fiscal year (FY) 2019.

USCIS received 190,098 H-1B petitions during the filing period, which began April 2, including petitions filed for the advanced degree exemption. USCIS announced on April 6, that it had received enough H-1B petitions to reach the statutory cap of 65,000 and the master’s cap of 20,000. USCIS will reject and return all unselected petitions with their filing fees unless the petition is a prohibited multiple filing.

USCIS conducted the selection process for the master’s cap first. All unselected master’s cap petitions then became part of the random selection process for the 65,000 cap.

USCIS will continue to accept and process petitions that are otherwise exempt from the cap. Petitions filed for current H-1B workers who have been counted previously against the cap, and who still retain their cap number, will also not be counted towards the FY 2019 H-1B cap.

USCIS will continue to accept and process petitions filed to:
• Extend the amount of time a current H-1B worker may remain in the United States;
• Change the terms of employment for current H-1B workers;
• Allow current H-1B workers to change employers; and
• Allow current H-1B workers to work concurrently in a second H-1B position.

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L-1 Pilot Program Coming to Peace Arch and Pacific Highway Crossings

Thursday, March 29th, 2018 by W. Scott Railton

The Peace Arch and Pacific Highway Crossing in Blaine, Washington are implementing a “Pilot Program” for L-1 Intracompany Transfer petitions, beginning on or about April 30th. L-1 Intracompany transfers are employees who are Executives, Managers, or employees with specialized knowledge who are transferred from a commonly owned foreign company to a U.S. company. For decades, Canadian beneficiaries of L-1 petitions have been permitted to submit their applications at Class A Port of Entries, and receive immediate adjudication. The Pilot Program, while introduced with promises of efficiencies, threatens a long-standing benefit for Canadian businesses.

On Monday, I attended a briefing session on a Form I-129 Pilot Program for Canadian L Nonimmigrants Pilot Program, held at the Peace Arch. The briefing was hosted jointly by U.S. Customs and Border Protection and U.S. Citizenship and Immigration Services, and was led principally by USCIS Director L. Francis Cissna. The meeting was attended by more than a dozen officials of CBP, USCIS, and about ten attorneys representing stakeholders. The meeting was open to phone participants as well.

Director Cissna said that the stated intention of the L Pilot Program is to try to move Port of Entry adjudications out of CBP’s hands and into USCIS’s hands. Director Cissna views this work as USCIS work, since it involves immigration benefits. CBP doesn’t seem happy with the function (my observation), as they consider themselves an enforcement agency first and foremost. There were indications that if the Pilot Program works, perhaps TN adjudications can be handled on the same process.

Under the Pilot Program, the petitioning company will send the petition to USCIS with a special cover sheet. USCIS will then try to adjudicate the applications with the cover sheet “super fast…faster than premium processing,” in an effort to provide adjudication service similar to what is now available at the Port of Entry for Canadians. Approvals and Requests for Evidence will be sent to employers directly. While USCIS says it would be best to wait for the approval, Applicants can go down to the Port of Entry with just a receipt notice, and granted admission if the matter is adjudicated favorably. This was all described as “good organizational management.”

The goal is to launch the program at the Peace Arch and the Pacific Highway by April 30th, and then test run the program for 6 months. If it works, they’ll look at expansion to other northern ports of entry, and may need to commence the public notice and comment processes required under the Administrative Procedures Act.

The Pilot Program is exclusive to Blaine, and so Canadian applicants who want immediate Port of Entry adjudication may still go to other Port of Entries. The process will be mandatory for Canadians at the Peace Arch and Pacific Highway. The process includes L blankets. The California Service Center is the designated USCIS service center for adjudication.

Some interesting statistics were mentioned during the meeting. We were told there are about 6200 Canadian L petitions submitted each year, which is about one-sixth of the overall total. The Blaine POEs are not handling too many per week now. One person said about half a dozen; another said about 50 per month. Issues raised by attorneys included the Request for Evidence rate at the USCIS Service Centers, which is very high; as well as the benefit from instant adjudication at the Port of Entry v. the issues in presenting a petition there sometimes.

This could end up being a step back for Canadian businesses who may clearly qualify and benefit from on-the-spot adjudication. There was a time when port of entry adjudication was a pretty quick process, and this method of application really helped Canadian businesses quickly get the people they need into the U.S. temporarily. USCIS has created a whole lot of red tape for legitimate businesses in recent years, and this presents another opportunity for government delays. A more favorable view of the program is that this allows pre-adjudication by USCIS of petitions, at a rate faster than Premium Processing’s fee based 15 day guarantee.

If its not obvious, I am skeptical about the Pilot Program. In the big picture, this Administration is taking every step it can to cut legal immigration, in addition to its focus on illegal immigration. There are some in the Administration who only want to “put a pause” on immigration, and seem to have decided that most if not all immigration is bad. The L visa is a poor target, as the visa is dedicated to executives and managers—people who typically create jobs, which leads to a healthier U.S. economy.

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Cascadia Attorneys Speak on NAFTA, the Border and Consular Processing

Saturday, March 17th, 2018 by W. Scott Railton

Greg Boos and I had the pleasure and honor of speaking again at the American Immigration Lawyers Association’s Annual Northwest Conference last week.  The American Immigration Lawyers Association is the professional association for immigration lawyers. Reportedly, this conference was exceptionally well-attended, as interest in immigration law seems to only be increasing.

Greg’s panel was entitled “NAFTA and Border Issues.” Issues affecting cross-border travel include NAFTA TN applications, intracompany transfers, admissibility and waivers, customs seizures, and NEXUS, to name a few. The North American Free Trade Agreement (NAFTA) is currently in renegotiation, which has the potential of impacting U.S. immigration. Inadmissibility at the border due to concerns related to work authorization, marijuana, and immigrant intent continue to be noteworthy. Greg has long been one of the leading experts on northern border issues in the United States and Canada.

My panel was the Consular Processing Update. Consular processing involves the issuance of visas at consulates around the world. Consular officers from Montreal and Vancouver discussed recent changes that impact visa applicants. The latest challenges in consular processing include the widely reported travel bans for persons from certain countries; extended delays and administrative processing due to vetting; E visa investor and trader changes; the expansion of definitions of misrepresentation; prudential revocations of visas for DUIs,; and major processing changes for certain visas. The Department of State is working hard to update its immigrant visa processing to an all-electronic system, and is taking many steps to more closely evaluate all candidates for visas.

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The Heightened Vetting of Legal Immigration Applicants

Saturday, March 3rd, 2018 by W. Scott Railton

The Administration is moving forward with its goal to increase vetting of all applicants for immigration benefits. We’re seeing this play out in a number of immigration settings. The most immediate effects we are seeing are longer delays for applications. Higher request for evidence and denial rates are also being reported. Immigration processing is not business as usual.

This month, the National Vetting Center was created by the White House. The National Vetting Center will be run out of the Department of Homeland Security, and will coordinate with other agencies like the Department of State and Federal Bureau of Investigation.

The announcement states, in part:

The NVC, which will be led by the Department of Homeland Security, will help fulfill the President’s requirement that departments and agencies improve their coordination and use of intelligence and other information in the vetting process.

The Federal Government’s current vetting efforts are ad hoc, which impedes our ability to keep up with today’s threats. The NVC will better coordinate these activities in a central location, enabling officials to further leverage critical intelligence and law enforcement information to identify terrorists, criminals, and other nefarious actors trying to enter and remain within our country. The NVC’s operations will adhere to America’s strong protections for individuals’ privacy, civil rights, and civil liberties. The Administration’s top priority is the safety and security of the public, and the NVC will empower our frontline defenders to better fulfill that obligation.

Other immigration-related agencies have also instituting increased vetting measures.

U.S. Citizenship and Immigration Services announced that it will interview all or most applicants who apply to remove the conditions on their permanent residence. This will be after one or more interviews previously to get the immigration benefit initially. In the past, a couple could mail in their application, with proof of marriage (e.g. shared home ownership or lease; kids had together; shared bills), and usually the agency would mail the green card after several months. Now, in addition to sending in these materials, the agency is calling people in for a second interview, and also in some cases conducting family home visits, even at odd hours if fraud is suspected. While combating green card is a necessary and vital part of USCIS’s mission, there has been no additional funding for all these interviews, which probably means lots of delays moving forward for all sorts of applications, as the agency reassigns resources.

USCIS has also said that it will move forward with interviewing beneficiaries of employment based immigration cases. While the agency has always had this authority, the practice has been to only interview where fraud concerns were triggered. Now, the agency is calling people in, and in some cases revisiting earlier I-140 approval adjudications. These are complicated applications, and the concern among some practitioners is that the field office adjudicators are not typically trained in the legalities, as are Service Center employees. Also, the added interview creates the potential for additional bias to be introduced in to the process, and again more delays.

USCIS also indicated this past year that it will no longer apply deference to renewals of approved petitions. This longstanding practice led to somewhat predictable results for employers with employees on occupational visas. We haven’t seen a rash of readjudications, but the guidance is now in place for adjudicators.

At the Consulates, there is reportedly an increase in the use of “administrative processing,” which the Department of State will not typically provide reason for. While cases usually are resolved in due time, it’s not unheard of for nonimmigrant visa renewals to suddenly take much longer (e.g. weeks), as they go through this process. This can be a real headache for visa renewal applicants, as well as for their families and employers who want them back.

At the border, it seems like there has been an increase in the use of expedited removals in the past year.  On the northern border, we most commonly see this with cases of misrepresentation, which occur after a lengthy interview. It was recently reported that searches of digital media are up by about 60% from 2016.

A safer America is a better America. However, finding the right balance between safety and practicality is also at issue. Applicants need to be aware that processes are slowing down. Changes are on-going, and we will continue to publish updates as circumstances and practices change.

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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
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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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Posted in General, Scott Railton |

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