Scott Railton's Blog

« Older Entries

Immigration In A Time of Restrictions

Saturday, July 15th, 2017 by W. Scott Railton

Immigration restrictions are one of the defining characteristics of the Trump Administration, which is now about 6 months in. Each week it’s something new, but the overall picture is the Administration intends to restrict all immigration, however it can.

I know from talking with clients that there is a great deal of fear and concern. Know that despite all the restrictive activity, the agencies are still granting petitions and visas, at least outside of those directly subject to travel bans. There may be longer delays, and the likelihood of increased red tape has to be anticipated. Sometimes, caution is needed, and frankly, competent legal advice is sometimes very valuable. Understanding things ahead of time is more likely to lead to predictable outcomes. This is how we try to help.

Here are some of the latest developments:

  • The Supreme Court will take up the travel ban case this fall.  In the meantime, the Court permitted a revised, limited ban to go forward. Lawsuits immediately commenced, on just how to deal with the Court’s limitations, including whether grandparents could be exempt. As this drags on in Court, I can’t help but wonder if the emergency aspect of these orders is moot. So did SCOTUS, by the way, when they granted certorari. Meanwhile, consulates in certain countries aren’t issuing visas like they ordinarily have in the past. Consular officers have many ways to deny and/or delay visa applications, with or without an official travel ban. There is no judicial review of visa denials. Some consulates have always been tougher than others, but this is different. Recently, I’ve heard of some 35 Pakistani doctors who were unable to get visas for unexplained reasons. Long-time practitioners say they’ve never seen anything like it.
  • The U.S. Trade Representative notified Canada and Mexico that it wishes to renegotiate the terms of North American Free Trade Agreement (NAFTA). Public comments were accepted, and three days of hearings were held in Washington D.C. to gauge priorities. The focus of the discussion seems to be on trade (think Detroit/Toronto auto industry; softwood lumber), but trade in service and immigration was discussed. Some calls were made to update the list of NAFTA TN professions to include Software Designers, Financial Analysts, IT Consultants, Physician Assistants, and Nurse Practitioners. There is a need for an update, as the list is nearly 25 years old, but there is great fear that the list will be excessively limited. We will be monitoring NAFTA TN developments closely.
  • The Deferred Action for Childhood Arrivals (DACA) program continues for now. This program allows certain undocumented “Dreamers” to get temporary work authorization and avoid deportation. President Trump seems in favor of the program. However, several states have joined to challenge the program, and DHS Secretary Kelly says the program may need to end. Attorney General Sessions, historically an opponent when he was in the Senate, is equivocal on whether he will defend the program. Other Obama measures, such as relief for parents of U.S. citizens, have already been officially rescinded.
  • Temporary Protected Status (TPS) is a form of humanitarian relief provided to persons from certain designated countries, where great harms have occurred, or continuing dangers exist. For example, in recent years, citizens of Haiti and Nepal have been able to obtain TPS, due to earthquake and rebuilding. The Administration indicates it may soon cancel TPS statuses in a number of cases.
  • Sanctuary cities is another well-reported flashpoint. President Trump has issued an order to review defund designated as sanctuary cities, and AG Sessions has actively been speaking out on the subject.
  • The Pentagon is looking at canceling its Military Accessions Vital to the National Interest program, which provided a path to naturalization for persons who enlist and who are vital to the national interest. Examples include Iraqi interpreters and specialized medical workers for the military. Our colleague Margaret Stock has been a driving force in the success of this wonderful program. It would be a shame for the program to be pulled, since the troops get much needed support from certain persons with vital skill sets. It’s not hard to fathom that we should take care of interpreters who are helping us fight terrorism.
  • The President’s budget includes substantial funding for planning the wall, and for more boots on the ground for immigration enforcement. It includes $1.5 billion for added interior enforcement and $2.6 billion for Customs and Border Protection.  Expect a full-on debate on these figures soon in Congress.
  • Access to legal counsel is under attack, as the Department of Justice sent a cease and desist letter to NW Immigrant Rights Project, requiring that they file a Notice of Appearance if they are going provide counsel to persons in removal proceedings. NWIRP historically provides limited representation at the Detention Center. For example, they provide education sessions and initial case assessments. DOJ is trying to halt all that. NWIRP has filed suit in federal court.
  • The USCIS Field Offices and CBP Ports of Entry are asking many more questions about use and possession of legalized marijuana. Officers from each agency now have scripts, prepared by counsel, designed to extract disqualifying admissions (e.g. “Yes, I smoked pot, in Washington, where it’s legal.”). These admissions become the basis for denying admission, based on a violation of federal law. Persons with no criminal record denied visas, entry, green cards or naturalization–based only their admission to having used legalized pot at some point. Recently, a group of Congress representatives wrote the agencies for more information on these practices.
  • The Administration also recently suspended implementation of the International Entrepreneur Rule, which was designed to provide noncitizen entrepreneurs of Silicon Valley and elsewhere a pathway to stay in the U.S. and continue to develop their ideas and businesses. Basically, this was another bridge-gap administrative rule by the Obama Administration, to temporarily address a need, since Congress can’t get the job done. While I found the rule awkward, it’s not a bad idea, and would guarantee more American jobs. Its no secret that many, many of the tech companies in the United States have noncitizen founders. The American dream often starts in a garage somewhere. I fear that garage may end up in another country.
  • There has been a spike in persons entering Canada illegally, to claim asylum. This is well-reported, and happening right here in Whatcom County with some frequency. The Third Safe Country Agreement between the US and Canada prevents persons from claiming asylum at the ports of entry in most circumstances, as this would be deemed as forum shopping. However, if persons enter illegally, and arrive on Canadian soil via the U.S., they may claim asylum. There is a growing perception that Canada is more welcoming to refugees.

 

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

Ninth Circuit Rules on Travel Ban/Refugee Order in Hawaii v. Trump

Wednesday, June 14th, 2017 by W. Scott Railton

The Ninth Circuit Court of Appeals ruled this week that President Trump went too far with his modified travel bans. Here is the opening summary of the Court’s decision:

State of Hawaii v. Donald Trump (excerpted)

We are asked to delineate the statutory and constitutional limits to the President’s power to control immigration in this appeal of the district court’s order preliminarily enjoining two sections of Executive Order 13780 (“EO2” or “the Order”), “Protecting the Nation From Foreign Terrorist Entry Into the United States.” The Immigration and Nationality Act (“INA”) gives the President broad powers to control the entry of aliens, and to take actions to protect the American public. But immigration, even for the President, is not a one-person show. We conclude that the President, in issuing the Executive Order, exceeded the scope of the authority delegated to him by Congress. In suspending the entry of more than 180 million nationals from six countries, suspending the entry of all refugees, and reducing the cap on the admission of refugees from 110,000 to 50,000 for the 2017 fiscal year, the President did not meet the essential precondition to exercising his delegated authority: The President must make a sufficient finding that the entry of these classes of people would be “detrimental to the interests of the United States.” Further, the Order runs afoul of other provisions of the INA that prohibit nationality-based discrimination and require the President to follow a specific process when setting the annual cap on the admission of refugees. On these statutory bases, we affirm in large part the district court’s order preliminarily enjoining Sections 2 and 6 of the Executive Order.

The decision is an interesting read. The Court lays out the chronology of the President’s Executive Orders and the resulting suits by the States et al. The Court analyzes the alleged harms presented by Hawaii, with regard to standing: harm to proprietary interests and impairment of its sovereign interests. Ultimately, the Court cites the granddaddy of all cases on judicial review, Marbury v. Madison, and says it will not abdicate its obligation of judicial review.

From there, the discussion surrounds whether or not the President’s Order is clearly within the office’s congressionally delegated authority under 1182(f) of the Immigration and Nationality Act.

The Court examines then whether national security concerns are applied too broadly by exluding persons according to their nationality. The Court concludes, “the Order does not offer a sufficient justification to suspend entry of more than 180 million people on the basis of nationality.” (p.43). The Decision then looks at the Refugee program suspension, and finds the statute does not provide a mechanism for decreasing the statutorily mandated totals.

The Decision only upholds the District Court’s preliminary injunction, finding that lower Court did not abuse its discretion.

The back of the decision reads like screen credits from a movie, with seven pages of attorneys listed as counsel to the case. Many, many amicus briefs.

Of course, at some point, the Supreme Court will weigh in on the Executive Orders and travel bans. I can’t help but note several Constitutional Law 101 cases are cited in this decision. The Decision is grounded in the Immigration and Nationality Act and in an analysis of national security concerns.  The decision does not focus on intent to discriminate or President Trump’s campaign statements. The decision does find that there’s not sufficient legal justification to suspend the refugee program, and lower the number of refugee admissions.

I think the Ninth Circuit basically got it right. As this and other Circuit decisions come out, it becomes apparent that the Supreme Court can approach the issues in a number of ways.  They can look at the President’s bans in terms of Constitutional overreach, or as violating or not violating the First Amendment, or as actions within or not within the authorization of the Immigration and Nationality Act.  In the end, though, I think there needs to be some limit on how far the President can go when it comes to immigration.  In particular, I think the blanket travel bans and refugee suspensions went too far.

Tags: , , , ,
Posted in Scott Railton |

Social Media and Immigration

Thursday, June 1st, 2017 by W. Scott Railton

It is a common refrain: “Be careful what you put on social media!” The idea, of course, is something might come back to bite you later, such as in a job interview.

The immigration authorities–including the consulates abroad, the border officers, and the USCIS interview officers–are interested as well. Through a series of Federal Register notices, the federal agencies have requested authority to collect social media information on persons seeking entry into the United States.

The Department of State today requested emergency approval of a supplemental questionnaire to be used in select visa interviews. Of course, the facial reason for the request is to identify true terrorist threats, which everyone wants. The questionnaire seeks information going back 15 years, instead of the standard 5 years, and collects information on family relatives, employment history, and travel history (including source of funding). The questionnaire also asks for “all social media platforms and identifiers, also known as handles, used during the past five years.”

Similarly, the Department of Homeland Security’s border security agency, Customs and Border Protection, published notice of its intent to collect social media information platforms and handles in February. The announcement garnered the attention of the American Civil Liberties Union and the Electronic Frontier Foundation, as well as many media outlets. In 2016, the agency added an optional field to its visa waiver form so that applicants could volunteer their social media handles.

Immigration authorities have a great deal of discretion in seeking information to make determinations of admissibility. It seems that the agencies are quickly moving in the direction of requiring that social media handles be provided as part of the application process.

As with all expansions of government authority, there will be intended and unintended consequences. Terrorists and zealots use social media to find new recruits. Theoretically, social media might help identify someone who should not be issued a visa or admitted. Of course, this presumes that the bad-actor volunteers their information in the first place. While unlikely, developing a repository of such information could theoretically provide security dividends.

There are other considerations. The ACLU and EFF point to privacy interests. The digital age feels different, when it comes to search and seizure, with so much information retained on devices, in the cloud, and on social media platforms. Some of the privacy issues will inevitably be litigated. In general, I expect the courts to favor the national security interests inherent in border searches, though not without some measure of reason.

We increasingly observ officers walking over to a computer to conduct “Google” searches of applicants for admission. In fact, this does seem to be more common with the new Administration. I expect there will be even more digital searches, as agents peruse social media histories, to form an opinion on the person before them. Intrusive, yes, but also at times inefficient. These searches take time, and lead to more questions, which also takes time, and leads to frustrations. Most people are on several social media platforms. It’s not hard to picture someone being penalized for failing to volunteer their Instagram account, while yet disclosing Facebook, Twitter, and Linkedin. It’s also easy to imagine that nonsensical lines of questioning will be more common. Fishing expeditions.

The agencies are really only formalizing something they already do in select cases. Every week I hear of persons who were asked for passwords to their computers and phones, as well as social media handles. The question with these Federal Register notices is whether this is going to be routine for all travelers. How often and how deep will they choose to dig? Hopefully, these requests for social media information handles catch terrorists and other bad guys, and don’t become just another burden on travelers to the U.S.

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

NAFTA Renegotiations and the TN Professional

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

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

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

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

What do we know?

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

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

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

This Administration takes pride in disruption.

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

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

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

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

Marijuana and the Border

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

Today is April 20th, or 4-20, as marijuana legalization proponents like to say. More than half of the states have passed some form of legalization, usually by popular vote. Eight states have legalized recreational marijuana, again by popular vote. It is an astounding development in my lifetime, as the concept of legalization was quite radical little more than two decades ago.

I’ve been interested in how state legalization impacts noncitizens, since immigration is my area of law practice. Washington State and Colorado were the first to legalize recreational marijuana, back in 2012, and I knew this would present issues at the border, eventually. It seems now the issues are also coming up at U.S. Citizenship and Immigration Services and the Department of State’s consulates abroad.

I periodically speak and write on this topic.  I am very pleased to say that this month the American Bar Association published an article I wrote, entitled “Marijuana and Immigration,” in its Criminal Justice magazine. I also received a Freedom of Information Act request back this past week, from USCIS, on its policies concerning legalized marijuana. The pdf is over 1700 pages, but 1500 pages or so are redacted. We will appeal.

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

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

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

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

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

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

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

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

 

 

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

A Time for Advocacy

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

NDA 2017-Murray

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

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

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

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

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

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

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

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

Administrative Actions Making Immigration Harder

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

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

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

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

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

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

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

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

7. Contractors are lining up to build the wall.

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

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

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

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

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

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

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

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

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

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

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

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

Immigration and Nationality Act excerpt:

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

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

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

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

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

 

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

The Handbook for Employers:

Details how to properly complete the revised Form I-9

Captures policy and regulatory changes since 2013

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

Includes a streamlined questions and answers section

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

Explains guidance regarding automatic extensions for certain Employment Authorization Documents

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

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

 

Posted in General, Scott Railton |

Oregon’s J-1 Waiver Program for Physicians

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

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

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

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

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

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

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

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

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

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

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

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

Applications are mailed to:

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

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

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

Tags: , ,
Posted in General, Scott Railton |

« Older Entries