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Time To Determine H-1B Worker Needs

Friday, January 25th, 2019 by W. Scott Railton

Employers get a single bite at the apple each year to use the H-1B program.  On April 1st, U.S. Citizenship and Immigration Services will begin accepting applications for H-1B workers. The window for filing is only five business days.

After the window closes, the agency will hold its annual lottery of applications.  Twenty thousand slots are available for graduates with Master’s degrees or higher, from U.S. institutions. Another sixty-five thousand slots are reserved for persons with at least undergraduate degrees or the equivalent (e.g. equivalency through work experience).  Those selected will not be able to start any sooner than October 1st, 2019.  In practice, the agency has sometimes taken longer to adjudicate cases.

Last year, the agency also projected a 25% denial rate, based on increasingly stringent adjudication standards. Certain professions, particularly in the information technology sector, need to really focus on delivering evidence that the position indeed qualifies as a “specialty occupation.”

H-1B employers are required by law to pay at least the greater of the prevailing wage or actual wage for the position. These figures can be calculated a number of ways,  including through Department of Labor resources, collective bargaining agreements, or private wage studies.

H-1Bs are typically granted for three years, and renewable another three years.  In some cases, it is possible to renew them beyond six years, such as when someone has proceeded sufficiently  down the green card path.

Sometimes it makes sense for NAFTA TN workers to be switched to H-1B status, if possible. The Immigration and Nationality Act specifically permits H-1B holders to pursue permanent residence.  This is not the case with the TN status.

Some employers are not subject to the annual H-1B cap, and can petition for H-1B status any time during the year.  These include institutions of higher education, affiliated organizations, and non-profit research organizations. Determining whether an organization is cap-exempt can be a complicated affair in some cases, but this exemption is very valuable. We see many medical organizations that are cap exempt, based on their connection to institutions of higher education.

The H-1B application takes some lead time to prepare, due to the complexity, and particularly due to prerequisite Labor Condition Application that must be filed with the Department of Labor. The LCA usually takes at least a week to process. A pre-registration rule cleared the Office of Management and Budget on January 25th, and could end up adding an additional process, though a court challenge is also possible.

This post only touches the highlights of the process. The key point is April 1st is approaching quickly, and if there appears to be a need to file an H-1B, now is the time to take further steps to investigate and perhaps prepare the application.

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The Impact of the U.S. Federal Government Shutdown on Immigration

Wednesday, December 26th, 2018 by W. Scott Railton

The U.S. Federal Government is in shutdown mode, due to a budget fight over President Trump’s desire to build a wall on the southern border. Brinkmanship has become increasingly common in D.C., and the taxpayers usually pay the price. Shutdowns are expensive–agencies function like computers with malware installed, if at all; businesses and personnel are harmed; and there are inherent costs in shutting down and starting up anew agency work.  Thankfully, the term “shutdown” is a misnomer, as many “essential” services continue on.

Immigration involves several federal agencies and bureaus, and so impacts vary overall. Our clients are most concerned about applications for immigration benefits, which are principally handled by U.S. Citizenship and Immigration Services (USCIS) and the U.S. Department of State. Because these applications are supposed to be fee-supported, impacts of the shutdown tend to be collateral impacts. The government will continue to adjudicate most applications. Below, I’ve pasted a press release from USCIS on how they’ll handle things.

Due to a peculiarity in funding, the Department of Labor (DOL) will continue to adjudicate matters, including PERMs, prevailing wage requests, and labor condition applications.

The Immigration Courts were initially closed. The Executive Office of Immigration Review is moving forward with detained cases as scheduled, and are rescheduling non-detained cases.

The U.S. Customs and Border Protection, which runs the border, is considered “essential” business, and so they will carry on through the shutdown. However, the Nexus office is not processing new applications, to the misfortune of some.

Ironically, E-Verify and related programs are shut down, which unfortunately is causing headaches for some employers who are required by government contract to use E-Verify.

Department of Justice civil litigation is curtailed or postponed, to the extent possible. Litigation is deadline driven, and so as the shutdown continues, this creates issues for judges and private litigants.

Here’s a memo from USCIS on the shutdown:

Lapse in Federal Funding Does Not Impact Most USCIS Operations

The current lapse in annual appropriated funding for the U.S. government does not affect USCIS’s fee-funded activities. Our offices will remain open, and all individuals should attend interviews and appointments as scheduled. USCIS will continue to accept petitions and applications for benefit requests, except as noted below.

Some USCIS programs, however, will either expire or suspend operations, or be otherwise affected, until they receive appropriated funds or are reauthorized by Congress. These include:

  • EB-5 Immigrant Investor Regional Center Program (not the EB-5 Program). Regional centers are a public or private economic unit in the U.S. that promotes economic growth. USCIS designates regional centers for participation in the Immigrant Investor Program. The EB-5 Program will continue to operate.
  • E-Verify. This free internet-based system allows businesses to determine the eligibility of their employees to work in the U.S.
  • Conrad 30 Waiver Program for J-1 medical doctors. This program allows J-1 doctors to apply for a waiver of the two-year residence requirement after completing the J-1 exchange visitor program. The expiration only affects the date by which the J-1 doctor must have entered the U.S.; it is not a shutdown of the Conrad 30 program entirely.
  • Non-minister religious workers. This special immigrant category allows non-ministers in religious vocations and occupations to immigrate or adjust to permanent resident status in the U.S. to perform religious work in a full-time, compensated position.

 

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CBP Encourages ESTA Applicants to Apply 72 Hours In Advance

Thursday, December 13th, 2018 by W. Scott Railton

U.S. Customs and Border Protection issued the following reminder to apply early for Visa Waiver authorization, via the Electronic System for Travel Authorization.  Presumably the reminder is prompted by the surge of travel during the holidays.  In our experience, most electronic systems for immigration at some point or another slow down for processing. It makes sense to plan ahead.

Here is the full advisory from CBP:

Visa Waiver Program users are encouraged to apply early

WASHINGTON D.C. – U.S. Customs and Border Protection (CBP), consistent with existing requirements, reminds international travelers using the Electronic System for Travel Authorization (ESTA) for travel to the United States to apply as soon as possible but not less than 72 hours before their international flight is scheduled to depart.

Visa Waiver Program users are encouraged to apply early.

Due to changes in ESTA application processing, real-time approvals will no longer be available. Citizens of participating Visa Waiver Program (VWP) countries traveling to the United States are strongly encouraged to apply for an ESTA at the time of booking their trip and no later than 72 hours prior to departure. Applicants who apply on the same day of their flight’s departure risk not having an approved ESTA prior to their scheduled departure.  International travelers without an approved ESTA will not be authorized to board their flight.

ESTA is an automated system that assists in determining eligibility to travel to the United States under the Visa Waiver Program and whether such travel poses any law enforcement or security risks.  Upon completion of an ESTA application, travelers are notified of their eligibility to travel to the United States under the VWP.

“Since its implementation in 2007, ESTA has counterbalanced vulnerabilities inherent in visa-free travel by adding a layer of advance scrutiny that enables our officers to focus on the small population of potentially dangerous travelers,” said Todd Owen, CBP Executive Assistant Commissioner of the Office of Field Operations.

Recent enhancements to the ESTA process make querying application status much smoother.  Upon successful submission, the applicant is provide an email containing their application number and a link taking them directly to the ESTA web page.

The Visa Waiver Program (VWP) allows citizens of participating countries to travel to the United States without a visa for stays of 90 days or less for business or pleasure when they meet all requirements.  Electronic System for Travel Authorization (ESTA) is an automated system that determines the eligibility of visitors to travel to the U.S. under the VWP and is required for all VWP applicants in the air and sea environment.

ESTA was one of the measures under the Implementing Recommendations of the 9/11 Commission Act of 2007. The electronic travel authorization system was designed to enhance the security of the Visa Waiver Program by evaluating a traveler’s eligibility prior to their boarding a U.S. bound flight.

For detailed information on VWP/ESTA, please visit the CBP site at: cbp.gov/esta, or, the U.S. State Department travel site. To avoid third-party fees, CBP encourages travelers to apply use the official ESTA website.

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USCIS Issues Policy Memo on L-1 Employment Abroad Requirement

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

U.S. Citizenship and Immigration Services (USCIS) issued a policy memo this week to add clarification to the L-1 Intracompany Transfer status one year of employment abroad requirement. The memo states that:

  • The L-1 beneficiary must be physically outside the United States during the required one continuous year of employment, except for brief trips to the United States for business or pleasure; and
  • The petitioner and the beneficiary must meet all requirements, including the one year of foreign employment, at the time the petitioner files the initial L-1 petition.

The agency says the memo is a clarification of policy.  The memo describes the issue as:

 INA section 101(a)(15)(L) and 8 CFR 214.2(l)(1)(ii)(A) require that the  beneficiary work abroad for one continuous year within the three years preceding the “application for admission into the United States.” The statute is silent about those beneficiaries who have already been admitted to the United States in a different classification. However, 8 CFR 214.2(l)(3)(iii) uses a different reference point and states that the one year of foreign employment must have occurred “within the three years preceding the filing of the petition.” The difference in phrasing has led to questions about which point in time should be the appropriate reference point in determining whether the one-year foreign employment requirement has been satisfied.

 The memo instructs officers to:

Always look back three years from the date the initial L-1 petition was filed and then:

 Step 1: Determine the dates the beneficiary worked for the qualifying organization abroad.

 Step 2: Determine the lengths of any breaks in the beneficiary’s qualifying employment during the three years before the petitioner filed the L-1 petition. If the beneficiary has lawfully worked for a qualifying organization in the United States as a principal beneficiary of an employment-based nonimmigrant petition or application, adjust the three-year period accordingly.

 Step 3: Subtract the total length of all the breaks identified in Step 2 from the relevant three-year period. If the result is a continuous one-year period within the relevant three-year period, then the petitioner has met the one-year foreign employment requirement.

 Note:  The memo says that brief trips to the United States as a visitor will not stop the continuous period, but each day must be subtracted from the one year calculation.  This guidance penalizes persons based in Canada who visit the U.S. and return the same day, which is actually quite common for Canadian business owners and managers.

Note:  The memo says persons working in the U.S. for the related company in another status, such as H-1B or E-2, will be able to look back to the three years prior to their original date of admission. However, persons in F-1 Optional Practical Training or in spousal work authorization categories (e.g. L-2, E-2) will not be able to do so. In these latter cases, the three year “look back” period will run from the date of the filing of the petition.  So, an employee who starts with a U.S. company in E status two years ago would actually look back five years to determine whether the continuous period requirement is met.

As with all things USCIS these days, the memo will probably lead to even more burdensome requirements of proofs for companies that have trans-national employees and operations. We’ll keep an eye on it all, and advise companies in accordance with agency practice. Aspects of the memo may need to be challenged in court at some point, as the L is one key step towards lawful permanent residence for valued executives and managers.

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Pre-Registration for 2019 Cap-Subject H-1B In The Works

Monday, November 19th, 2018 by W. Scott Railton

The Department of Homeland Security released its list of rules that it plans to update, and the H-1B program made the list.  Specifically, DHS is actively considering whether to implement a pre-registration requirement for cap-subject H-1Bs.  Here’s the language from the DHS Fall 2018 Unified Agenda:

The Department of Homeland Security proposes to amend its regulations governing petitions filed on behalf of H-1B beneficiaries who may be counted under section 214(g)(1)(A) of the Immigration and Nationality Act (INA) (“H-1B regular cap”) or under section 214(g)(5)(C) of the INA (“H-1B master’s cap”). 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. employers has often exceeded the numerical limitation. This rule is intended to allow U.S. Citizenship and Immigration Services (USCIS) to more efficiently manage the intake and selection process for these H-1B petitions.

Time is getting tight for the U.S. Government to make this work for the April 1st, 2019 lottery.  A Notice of Rulemaking rule will first need to be published in the Federal Register, whereupon the public will be afforded a period of time to comment. The matter is currently pending review at the Office of Management and Budget.

I like the idea of pre-registration, but we’ll have to wait and see what this exactly looks like. Ideally, I think a system which allows employers to apply for a lottery spot before making an actual application can save businesses all sorts of money.  It is a waste of government and business expenditure to prepare full applications, only to have the government return about half of them due to not being selected in the lottery. The Government proposed a similar rule in 2011, but the rule was never implemented. Unfortunately, the Administration has consistently made the H-1B process harder for employers, without regard to cost or sometimes established precedent and law, and so any change to the H-1B program has to be anticipated with skepticism.

In any case, we are recommending that employers start the H-1B process earlier this year, to account for any changes the Administration may implement. We’ll stay up to date on this, and advise accordingly.

 

 

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DACA Continues For Some, As Litigation Proceeds

Wednesday, November 14th, 2018 by W. Scott Railton

“What is the status of DACA?,” I am asked. Here it is:

In brief, the Trump Administration took steps to cancel the program on September 5th, 2017, of its own volition and ostensibly due to pressure from certain states litigating the program’s legality. Several lawsuits immediately sought to enjoin (halt) the Administration, and have been successful to date.  The program continues during the litigation, under restricted terms. New applications are not accepted, but extensions and reinstatments may be filed. Full details farther below, from USCIS.

As to the on-going litigation:

The Ninth Circuit case–which is the jurisdiction of the West Coast–is called Regents of the University of California v. Department of Homeland Security.  On November 8th, 2018, the Ninth Circuit upheld the preliminary injunction of the Administration’s order to cancel the program, finding that the Plaintiffs are likely to prevail on the claim that the cancellation of the program is arbitrary and capricious. Similar cases are pending in the Second Circuit (Battala Vidal v. Nielsen) and the D.C. Circuit (NAACP v. Trump).

On November 6th, 2018, the U.S. Department of Justice made a formal request to the U.S. Supreme Court that it take all these cases on certiorari, and resolve the issues surrounding DACA.  Typically, the Supreme Court will take a case where there is a disagreement between the Circuits, but so far, the cases are still pending in the Circuits, albeit with the temporary injunction upheld. It is unusual for the DOJ to request an earlier hearing, and it would be unusual for the Supreme Court to do so, but the rules do allow it do so in exceptional circumstances.  The Supreme Court can be a bit mysterious in the way it decides as an institution to hear or case or not. However, it is likely they will consider the matter of hearing the cases early when the justice meet in the new year, and if they decide to do so, we will likely hear on January 7th, 2018.  If I had to guess, I think the Supreme Court will let the Circuits handle the matter in typical fashion.

In the meantime, persons who have been granted DACA may apply for extensions. This is not a guarantee that the extension will be granted, as each case is decided on its merits. Additionally, persons who have previously had DACA but have had it lapse may apply again. More information on applying is available at www.uscis.gov , and I’ve pasted USCIS’s advisory below. Various clinics are also available to assist with the applications, through organizations such as Northwest Rights Immigrant Project. Additional sources of information include the NWIRP, the National Immigration Law Center, and the Immigrant Legal Resource Center.

Below is USCIS’s statement regarding DACA, based on current litigation:

Feb. 14, 2018, Update:  USCIS is not accepting requests from individuals who have never before been granted deferred action under DACA. Due to federal court orders on Jan. 9, 2018 and Feb. 13, 2018, USCIS has resumed accepting requests to renew a grant of deferred action under DACA. The scope of the Feb. 13 preliminary injunction issued in the Eastern District of New York is the same as the Jan. 9 preliminary injunction issued in the Northern District of California. Unless otherwise provided in this guidance, the DACA policy will be operated on the terms in place before it was rescinded on Sept. 5, 2017, until further notice.

Individuals who were previously granted deferred action under DACA may request renewal by filing Form I-821D (PDF), Form I-765 (PDF), and Form I-765 Worksheet (PDF), with the appropriate fee or approved fee exemption request, at the USCIS designated filing location, and in accordance with the instructions to the Form I-821D (PDF) and Form I-765 (PDF). USCIS is not accepting requests from individuals who have never before been granted deferred action under DACA. USCIS will not accept or approve advance parole requests from DACA recipients.

If you previously received DACA and your DACA expired on or after Sept. 5, 2016, you may still file your DACA request as a renewal request. Please list the date your prior DACA ended in the appropriate box on Part 1 of the Form I-821D.

If you previously received DACA and your DACA expired before Sept. 5, 2016, or your most recent DACA grant was previously terminated, you cannot request DACA as a renewal (because renewal requests typically must be submitted within one year of the expiration date of your last period of deferred action approved under DACA), but you may nonetheless file a new initial DACA request in accordance with the Form I-821D and Form I-765 instructions. To assist USCIS with reviewing your DACA request for acceptance, if you are filing a new initial DACA request because your DACA expired before Sept. 5, 2016, or because it was terminated at any time, please list the date your prior DACA expired or was terminated on Part 1 of the Form I-821D, if available.

Deferred action is a discretionary determination to defer a removal action of an individual as an act of prosecutorial discretion. Further, deferred action under DACA does not confer legal status upon an individual and may be terminated at any time, with or without a Notice of Intent to Terminate, at DHS’s discretion. DACA requests will be adjudicated under the guidelines set forth in the June 15, 2012 DACA memo (PDF)

 

 

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Update On J-1 Waivers for Physicians In Washington State

Friday, November 9th, 2018 by W. Scott Railton

Historically, Washington State has been slower to fill its 30 allocated J-1 waiver physician spots than many other states.  As of this writing, the Washington State Health Department has published that it has received 17 applications for J waivers so far, with 9 applications fully approved.  The State has already received 10 specialist petitions, and 5 of those are fully approved.

What next?

  • We are presently in a timeframe where primary care applications for health professional shortage areas are the only ones which have a guaranteed spot.
  • On January 15th, the State will open up the application window for primary care FLEX spots—positions which are not in a health professional shortage area but which serve an underserved population.
  • On April 1st, the agency will approve additional Specialist applications. As the agency has not approved all 10 Specialist petitions received yet, it may still be worthwhile to inquire on handling of Specialist applications in the interim, in case one or more of those received so far is non-qualifying.

J-1 waiver applications require that the sponsor show that at least 15% of the total patient visits are for Medicaid or other low income patients.  Employers have to be able to document at least six months of unsuccessful recruitment in the last year for the position.  Employers also must have a sliding fee scale, which is posted for patients, and there are specific employer-physician contract requirements.

Facilities and physicians interested in seeking a Conrad J-1 wavier based on the Washington State program should not tarry.  It is hard to predict how fast the remaining spots will go.  Last year, a few spots remained until the very end of the year.  If recollection serves me, the year before, the agency received 34 applications for 30 slots, well in advance of the end of the year.  Oregon last year filled up long before the end of the year.

We have a great deal of experience helping facilities and physicians navigate the Conrad waiver process, all the way to permanent residence. It is meaningful and rewarding work, which we care greatly about. Feel free to contact us if you’d like to schedule a consultation.

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L-1 Pilot Program Follow-Up Meeting With USCIS and USCBP

Friday, October 12th, 2018 by W. Scott Railton

I attended a follow-up engagement meeting today with USCIS and CBP at the Blaine Peace Arch, concerning the L-1 Pilot Program.  Here is a brief summary of the meeting.

The L-1 Intracompany Transfer visa/status is a work authorization granted to certain Executives, Managers, and employees with “Specialized Knowledge.” It is an immigration tool used for multi-national businesses, to move key personnel around. The L-1 status is a part of Chapter 16 of NAFTA and the new USMCA agreement, and is also authorized by the Immigration and Nationality Act.

The L-1 Pilot Program was commenced on April 30, 2018, and terminates at the end of October. The basic goal of the program is to promote uniformity of adjudication of petitions by first routing them to USCIS’s California Service Center. Canadians have the option of choosing to submit these applications in person at a port of entry, or by mail/courier to USCIS.

15 submissions in 6 months; 80 Percent RFE Rate

At the meeting, USCIS reported they have had 15 submissions over the past six months. Ordinarily, they were getting at least that many a week at the Blaine crossings, and I think many more. Conclusion: nobody is using the program. This must be a conscious decision by Canadian businesses and their attorneys. Indeed, attorney comments during the meeting said as much. “People are voting with their feet,” one said.

USCIS reported that they issued 12 Requests for Additional Evidence (RFE) on the 15 cases. So far, they’ve approved seven cases and denied three, with the other five pending. They “outright” approved three cases, without RFEs.

RFEs are very common for USCIS right now. Even so, an 80 percent RFE rate is very high, even for USCIS. RFEs mean substantial extra expense for employers (thousands of dollars sometimes), as well as lengthy delays (months), with no certainty of eventual approval. Such is immigration these days.

Pilot cases submitted to USCIS seem to be handled similarly to Premium Processing cases at the Service Center. Premium Processing is the program where employers pay $1410 for 15 day initial adjudication. In this case, petitioners did not have to pay this expense, but of course the process is automatically slower than the same day adjudication some Canadian companies are used to. Most of the cases have been receipted within days—the agency reported two or three days. When an RFE is issued, typically the Petitioner is given three months or so to respond.

Attorneys seemed universally opposed to the program. East Coast attorneys, calling in on the phone, expressly said they would not like to see this program move their way. Representatives of both agencies suggested they might try expanding the program to the Vancouver Airport or other ports of entry, but no decision has been made.

The meeting itself was well organized, with video and phone lines open for all, and both agencies seemed to genuinely want feedback, offering many opportunities for comment.

Concerns with Process, Concerns with Adjudication

From my point of view, there are two larger issues at play here: process and adjudication.

From a process standpoint, Canadian businesses receive no benefit from taking away the option of on-the-spot adjudication. There are times when this is very valuable, such as when an important employee of a Canadian company needs to work in the U.S. fast (e.g. this weekend). Also, there is a benefit to being able to make your case to a live officer, rather than have everything done on paper. Frankly, USCIS has gotten too far into the weeds with adjudications, abandoning the preponderance of evidence standard applicable to all nonimmigrant work authorization petitions.

On the adjudication side, the agencies are pushing for “uniformity of adjudication.” They say that USCIS has the expertise for adjudicating L-1 petitions, which is true at some level. However, border adjudications are nothing new, and they have worked for Canadian/U.S. businesses for decades. Uniformity is also a myth–USCIS adjudicators handle matters very differently, from cubicle to cubicle.

Perhaps the biggest concern for Canadian businesses in this niche is USCIS’s extensive use and abuse of the RFE. Their templates are many pages long, and employers can spend the same amount of time they might in preparing an environmental impact statement, just trying to explain the technical aspects of one of their experts and why they are “specialized” or how they qualify as a “manager”. The RFEs are bogging down USCIS too, which has record wait times on many very-ordinary types of cases.

What Next?

Speakers at the meeting said they will take the feedback from the meeting, confer, and make next decisions.  They could close the program, but I think I suspect the Pilot Program is not done yet. I think CBP would like to punt adjudications to USCIS, and will keep looking for ways to do so.  I would like to see the agency embrace this responsibility as part of their northern border mission, because its good for business and U.S.-Canadian relations.  That may be wishful thinking, I’m afraid. My concern over the next few years is that the U.S. government may try to move all immigration benefits adjudication to USCIS, including TNs.  We’ll keep an eye on it.

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CBP Addresses Canada’s Legalization Of Marijuana And Crossing The U.S. Border

Wednesday, October 10th, 2018 by W. Scott Railton

U.S. Customs and Border Protection published a statement regarding Canada’s legalization of marijuana and crossing the border, which is available at its website.

Most notable:  CBP affirmatively says that persons working in the legalized industry in Canada, without attachment to the U.S. industry, will still be admissible.  See the paragraph I’ve highlighted in bold italics below. Prior public statements by CBP leadership strongly suggested this would not be the case, which seemed counter to the plain language of the Immigration and Nationality Act. I personally questioned such a policy in a story published last month by the Dow Jones’ publication, Market Watch.

I think CBP has it right now, as far as the Immigration and Nationality Act goes. There are many finer legal points though that come into play, when making actual inadmissibility decisions.

Perhaps most importantly, there still is a real need for Congress to take a longer look at the cannabis issue overall, since over half the states have a form of legalization. Until they do, the border will continue to be a hard line on cannabis, drawn between states and provinces which have legalized the substance.

Here is the CBP’s Statement in full, updated on 10/9/18:

CBP Statement on Canada’s Legalization of Marijuana and Crossing the Border
Release Date:
September 21, 2018

UPDATED: 10/09/2018

U.S. Customs and Border Protection enforces the laws of the United States and U.S. laws will not change following Canada’s legalization of marijuana. Requirements for international travelers wishing to enter the United States are governed by and conducted in accordance with U.S. Federal Law, which supersedes state laws. Although medical and recreational marijuana may be legal in some U.S. States and Canada, the sale, possession, production and distribution of marijuana or the facilitation of the aforementioned remain illegal under U.S. Federal Law. Consequently, crossing the border or arriving at a U.S. port of entry in violation of this law may result in denied admission, seizure, fines, and apprehension.

CBP officers are thoroughly trained on admissibility factors and the Immigration and Nationality Act, which broadly governs the admissibility of travelers into the United States. Determinations about admissibility and whether any regulatory or criminal enforcement is appropriate are made by a CBP officer based on the facts and circumstances known to the officer at the time.

Generally, any arriving alien who is determined to be a drug abuser or addict, or who is convicted of, admits having committed, or admits committing, acts which constitute the essential elements of a violation of (or an attempt or conspiracy to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance, is inadmissible to the United States.

A Canadian citizen working in or facilitating the proliferation of the legal marijuana industry in Canada, coming to the U.S. for reasons unrelated to the marijuana industry will generally be admissible to the U.S. however, if a traveler is found to be coming to the U.S. for reason related to the marijuana industry, they may be deemed inadmissible.

CBP officers are the nation’s first line of defense in preventing the illegal importation of narcotics, including marijuana. U.S. federal law prohibits the importation of marijuana and CBP officers will continue to enforce that law.

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 modified:
October 9, 2018

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The TN Status and the New US-Mexico-Canada Agreement

Monday, October 1st, 2018 by W. Scott Railton

The United States, Canada, and Mexico have announced that they have reached an agreement to supplant the longstanding North American Free Trade Agreement (NAFTA).  The new agreement will be entitled the U.S.-Mexico-Canada Agreement (USMCA).  For now, the TN professional status will remain largely unchanged.

The immigration provisions of the new Agreement are housed in Chapter 16, as was the case with NAFTA.  For side by comparison, click on the links in the last sentence.

The USMCA’s Chapter 16 adopts much of the old NAFTA language for “Business Visitors,” “Traders and Investors,” “Intra-Company Transfers,” and “Professionals.” “Professionals” is what we commonly refer to as the TN category, and the issue I will highlight here.

Here’s one new thing:  Article 1602, Paragraph 3, of the USMCA includes language not in the NAFTA, leaving the door open for future restrictions via regulation by any Party:

3. Nothing in this Agreement shall prevent a Party from applying measures to regulate the entry of natural persons of another Party into, or their temporary stay in, its territory, including those measures necessary to protect the integrity of, and to ensure the orderly movement of natural persons across, its borders, provided that those measures are not applied in a manner as to nullify or impair the benefits accruing to any Party under this Chapter.

Side by side, the lists of Professionals in Appendix 1602.D.1 of the USMCA and Appendix 160-3.D.1 of NAFTA are basically the same.  However, it is not a complete copy and paste:

  • The USMCA Appendix includes an additional Footonote 7 to the Medical Laboratory Technologist/Medical Technologist category, which states that “A businessperson in this cateogry must be seeking temporary entry to perform in a laboratory chemical, biological, hematological, immunologic, microscopic, or bacteriological tests and analyses for the prevention of disease.”
  • The USMCA Appendix also includes an additional Footnote 8 to the Biologist category, which states, “In accordance with the NAFTA 1994 Commission decision of October 7, 2003, the term “Biologist” included the profession Plant Pathologist.” This Footnote obviously reflects the 2003 adjustment to the list.
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The new Article 1606 covers a “Working Group,” which meets once per year to consider administration of the Chapter. The Working Group was already in existence with NAFTA, but the USMCA adds an additional review responsibility for the Group, concerning technologies:
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(e) Issues of common interest related to temporary entry of business persons, such as the use of technologies related to processing of applications, that can be further explored among the Parties in other fora.
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Many thought any agreement would include numeric restrictions for TNs.  Not present. In fact, the original restrictions on Mexico’s TNs are stricken from the Appendix 1603. The countries are expected to collect and share data on entries, as per the Article 1605 Provision of Information requirements.
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The Agreement also does not include a revision of the TN list. Experts seem to agree that the list of eligible occupations needs to be updated. Many new professions have come into existence over the last 25 years.  The Information Technology sector is full of new occupations, such as web developers, database administrators, architects, and software engineers.  Medical science and health care professions have similarly evolved–nurse practitioners are filling a vital role for hospitals, and sometimes are denied TNs for being more than a Registered Nurse. Nonetheless, any attempt at re-doing the occupation codes may have led to a more restrictive outcome, with less categories, numeric restrictions, and tighter qualifications. The U.S. has been limiting immigration in all other areas, and such would’ve reasonably be expected here.
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One question going forward is what do we call the TN now?  TN is short for Treaty NAFTA, but with the change of name to the trilateral treaty, perhaps the work authorization category may change in name too. The White House has been intent on doing away with NAFTA, and so perhaps the TN name might do the same way, in time.
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My impression is the negotiators had their reasons on each side to avoid a major rewrite on Chapter 16.  Other trade issues probably carried more weight, and fast advancing deadlines set by the White House may have ended up leaving this chapter for later. The U.S. Office of Trade Representative held hearings on the mobility issues, and so it is not like the issues were overlooked.
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My greatest concern for the next year is that the U.S. may continue to use regulation to alter the TN category further. The Administration has been very effective at limiting immigration through restrictive regulation and categorical interpretations. One possibility is that DHS may try to move TN adjudications away from the border and to USCIS Service Centers. They are already testing this idea with L adjudications, but the process only seems to slow things down for businesses.  I attended a meeting at the Blaine Peace Arch earlier this year concerning the L-1 Pilot Program where the USCIS Director speculated on the possibility of TN adjudications at the Service Centers. Also, as with all immigration applications, I expect the cost of TN applications to rise for employers, as the government paperwork becomes more demanding.
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This is very fresh news, and so other developments and interpretations may arise.  We will continue to follow this closely.
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