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USCIS Filing Fees on the Rise, Again

Tuesday, November 26th, 2019 by W. Scott Railton

As we approach the holidays, most items are on discount. Not so when it comes to immigration fees, unfortunately. USCIS has been busy this past month announcing a series of increases.

DHS proposed on November 14th to increase filing fees for USCIS by a weighted average of 21 percent, while adding other fees and lengthening adjudication processes. 84 Fed. Register 62280, 11/14/19.
DHS proposes to adjust USCIS fees by a weighted average increase of 21 percent, add new fees, and make other changes, including form changes and the introduction of several new forms. Comments are due 12/16/19. (84 FR 62280, 11/14/19). The proposed rule generally forces USCIS customers (meaning U.S. businesses and U.S. family members) to often pay more, without any commitment to better service. Some of the proposals actually lengthen processing times.

Many fee waivers are stricken by the rule, virtually pricing persons out of various processes. I often find people are dissuaded from filing applications, including naturalization and H-1B applications, just because of the exorbitant costs, and this is without regard to attorney fees.

The rule also proposes to shift $200 million in received fees to enhance ICE’s work. Given the restrictive climate, this strikes me as a big piece of the agency’s intention. This Administration cannot get enough enforcement, and as was seen with the southern border, is willing to appropriate money from other sources to pay for it.

In my experience, these fee increases are rolled out every few years. I can’t remember a correlation between higher fees and better service, except perhaps with the initial implementation of premium processing, years ago. This is an agency which is still struggling to move from paper to on-line applications. Both CBP and Department of State are ahead of USCIS on this score.

Bottom line: expect filing fees to increase by 21% sometime in 2020, unless the agency is stalled by litigation. The time to comment is now, up until December 16, 2019.

Sooner…..the price for premium processing is going up to $1440, for applications postmarked on December 2, 2019. For years, this 15 day adjudication service was $1000. Many attorneys feel the agency purposes administers things so that petitioners have little choice but to file with the extra fee. H-1Bs with regular processing now take more than half a year. I-140 petitions can take a year. The processing times have gotten ridiculous, and the agency largely seems unconcerned.

We also may have an H-1B pre-lottery this year, if the agency can roll out its proposed program far enough in advance of the April 1st filing date. USCIS says that it will charge applicants $10 for the opportunity to participate in the lottery. If selected, prospective employers can then submit a full H-1B application.

The agency says it is testing its system, and is not yet sure whether they’ll be able to implement for the upcoming fiscal year. I give it a 50/50 shot. It would be a good thing for employers, if they give employers enough time to prepare the actual application if selected. USCIS sometimes overlooks the on-the-ground concerns of employers. The upside though is companies not selected will not have to pay for H-1B preparation that is for naught, due to losing out in the lottery.

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Posted in General, Scott Railton |

Neil Young’s Naturalization Application Tied Up Over Truthful Admissions Related to Cannabis Activities

Monday, November 11th, 2019 by W. Scott Railton

The Rock and Roll Hall of Famer Neil Young, one of my personal favorites, reports that his U.S. naturalization application has run into issues due to his truthful admissions related to cannabis activities. Neil was born in Canada, and is one of Canada’s greatest rock stars. He has often taken very public positions on U.S. policy, and is basically a living legend, for his music and his activism.

DHS’s U.S. Citizenship and Immigration Services declared in a public policy statement in April 2019 that it would deny naturalization applications for a wide range of marijuana activities. I am just back from the American Immigration Lawyers Association California Chapter’s Conference, where I spoke on this very topic (“Cannabis and Immigration”).

The USCIS position is as follows:

2. Conditional Good Moral Character Bar Applies Regardless of State Law Decriminalizing Marijuana

A number of states and the District of Columbia (D.C.) have enacted laws permitting “medical” or “recreational” use of marijuana. Marijuana, however, remains classified as a “Schedule I” controlled substance under the federal CSA. Schedule I substances have no accepted medical use pursuant to the CSA. Classification of marijuana as a Schedule I controlled substance under federal law means that certain conduct involving marijuana, which is in violation of the CSA, continues to constitute a conditional bar to GMC for naturalization eligibility, even where such activity is not a criminal offense under state law.

Such an offense under federal law may include, but is not limited to, possession, manufacture or production, or distribution or dispensing of marijuana. For example, possession of marijuana for recreational or medical purposes or employment in the marijuana industry may constitute conduct that violates federal controlled substance laws. Depending on the specific facts of the case, these activities, whether established by a conviction or an admission by the applicant, may preclude a finding of GMC for the applicant during the statutory period. An admission must meet the long held requirements for a valid “admission” of an offense. Note that even if an applicant does not have a conviction or make a valid admission to a marijuana-related offense, he or she may be unable to meet the burden of proof to show that he or she has not committed such an offense. (footnotes omitted; emphasis/underlining added).

This position, and Neil’s situation, is exactly why I am interested and writing about this topic. It is disingenuous for the Federal Government to turn cannabis use or legal employment into a good moral character issue, while the Federal Government openly permits States to operate legal marijuana industries. This is a justice issue.

In my view, the government’s policy here is nothing less than another unconscionable attack against immigrants, their families, and their employers. The issue has not received enough attention in the U.S. Anyone who has been paying attention knows that this Administration has been incredibly hard on immigrants, and this is just one more example.

Seriously. Everyone in legalized states knows elderly persons who are going to dispensaries to purchase marijuana products. It is headline news. In Washington State, where I am at, legal cannabis shops are highly visible in almost every town, and advertised via road signs and media. Cannabis is big business, and people are looking to invest. Professionals legally help these businesses. And then there’s the AARP, which just ran a cover story in their monthly periodical, discussing at length the pros and cons of marijuana use.  This being Veteran’s Day, I’ll also mention the returning veteran who purchases such products to help with their post-traumatic stress. Over half the States have moved towards legalization in one way or another. Canada legalized nationally last year. Activities related to legalization are not good moral character issues.

I am not saying everyone should go out and use marijuana. That is a very personal decision. What I am saying is wrong—absolutely wrong –is to label marijuana possession and other state-legal activities as good moral character defects, in such a permissive environment. I would never call my friends and relatives who have purchased such products legally persons of bad moral character. Most of the people I know who have are actually over the age of 50, and are more interested in purchasing cannabis products to help with sleep or pain.

The Government should strike this guidance, because it is just too broad, and not really all that helpful to adjudicators for assessing good moral character. Perhaps the Courts will do so, as so many things on immigration end up there these days, due to rushed and reckless policy positions taken up by the government.

Neil’s situation reminds me of way back in the 1970s, when he released “Southern Man,” and Lynyrd Skynrd issued its famous retort, “Sweet Home Alabama”, where the late Ronnie Van Zant sings, “Well, I hope Neil Young will remember, A southern man don’t need him around anyhow.”

Times change. So they have with cannabis. I think the United States should be glad to have Neil Young around, and I’m glad to see he’s publicly calling attention to his immigration issue.

Naturalize Neil!

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Posted in Marijuana and Immigration, Scott Railton |

Conrad 30 Physician J-Waiver Update for Washington State, Oregon, Idaho, Montana, and Alaska

Thursday, October 17th, 2019 by W. Scott Railton

The demand for Conrad 30 J-1 Physician waivers has risen substantially in the past few years for Washington State and Oregon. Both states received more applications than they used to when this fiscal year began on October 1st. This is probably attributable to a number of factors, including desirability of the living in these beautiful states (including in some amazing semi-rural locations), increasing employer familiarity with the J-1 program, and growing demand for qualified physicians. In particular, demand for certain specialists has grown dramatically, to some extent reflecting both growth and aging populations.

As of October 15th, Washington State reports that it has received 15 specialists applications and two primary care applications. State regulations only permit the approval of 10 specialist applications, prior to April 1st in the fiscal year. Seven specialist applications are pending approval, as in one primary care application. In all likelihood, the remaining applications may have issues which require further attention, though probably some of these concerns are quickly addressed. FLEX spots, which are for non-health professional shortage areas, become available on January 15th, provided slots remain.

As of this writing, 22 of 30 spots are reported reserved for 2020 for Oregon. The past few years, Oregon has filled up with increasing speed.
Alaska, Idaho, and Montana usually do not fill up their 30 spots.

In my experience, applications do not come together over night, as there are several components that require consideration and preparation. The starting point is coming to agreement on a contract which satisfies physician and employer, while meeting all state requirements for the waiver. Beyond that, there is much paperwork, which several discrete requirements that require differing amounts of attention. All this is to say, time is of the essence for anyone seeking spots for this fiscal year in Oregon or Washington. For 2021, it will be best to plan far ahead of the October 1st open window date, as there are some time sensitive requirements that must be met in advance of filing.

All is not lost, necessarily, if all the spots fill up. Sometimes other temporary and permanent solutions exist. Some physicians can successfully obtain O-1 Alien of Extraordinary Ability work authorizations, based on their accomplishments. Canadians physicians can sometimes obtain H-1B status, due to the fact that Canadians are “visa exempt”. It is also sometimes possible to commute from Canada to work in the U.S., and thus fulfill the two year residency requirement while working in the U.S. The U.S. Department of Health & Human Services also operates a J waiver program that can work for primary care and mental health practitioners sometimes. Other federal agencies can also act as sponsors, such as the Department of Defense has previously done via its Military Accessions Vital to the National Interest program (MAVNI). That program however is not currently operating, though DOD has authority to sponsor.

Several bills have been introduced over the years to improve the Conrad 30 program. The Conrad State 30 and Physician Access Reauthorization Act (H.R. 2895) would expand the program, and help address physician shortage needs. As a member of the International Medical Graduate Task Force, I try to stay up on the latest legislative efforts, and always willing to help connect physicians with legislators in an effort to improve access to care and physician opportunity.

I am happy to schedule consultations with physicians and/or potential employers to further discuss these and other immigration-related matters.

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Posted in General, Scott Railton |

Canada’s Legalization and The Border, One Year Later

Thursday, October 17th, 2019 by W. Scott Railton

Canada’s Cannabis Act went into effect on October 17th, 2018, after years of politics, hearings, and preparations. We had a small part to play in the run-up, as concerns materialized about how legalization might impact cross-border travel. I received many inquries from the Canadian and U.S. media, and even testified before Parliament on the subject. There were some who said legalization would lead to long lines at the border, and a surge in lifetime bans related to admissions.

So, one year later, where do things stand?

For the months following legalization, I felt there were less questions at the border about marijuana, generally. I don’t think officers were under special instruction, but the U.S. Customs and Border Protection (CBP) said things were basically the same as always, since the U.S. hadn’t changed its laws. Nonetheless, I saw and heard of less cases where people were denied entry and/or banned for marijuana related activities.

The focus of the agency seemed to be more on industry workers and travel, than on marijuana use. I did hear of cases where persons in the Canadian industry were denied travel to the U.S. to participate or attend marijuana business conferences, which there are many of. CBP had already said someone would not be barred for working in the legal Canadian industry, but the cross-border piece seemed to create hang-ups.

I also have seen many cases of denied trusted traveler applications (NEXUS and Global Entry programs), as well revocations in cases where individuals are either investors or workers in the industry, or family members of the same.

For those who travel on the visa waiver program (ESTA) and are denied, acquiring a visitor visa has been challenging after the fact, and the revocation of ESTA a serious hardship.

The rise and prevalence of cannabidiol has also become an issue in cross-border travel, as we are seeing some cases where persons are denied entry for having drops, pills, and other related CBD products. The passage of the 2018 Farm Bill was passed in the U.S., legalizing hemp-based products with no more than 0.3% tetrahydrocannabinol (THC). This has led to various questions from both investors and consumers.

In the past few months, we have seen a surge in the use of expedited removal at local ports of entry. Expedited removal is an administrative deportation at a port of entry. Typically, a five year ban is applied, although it is a lifetime ban if the basis is misrepresentation. Waivers are available for future temporary admissions, via an expensive and burdensome waiver process. Expedited removals aren’t applied for criminal convictions or admissions, but the agency can make such a finding and then determine a person isn’t in possession of appropriate immigration documentation.

Generally speaking, nonimmigrant waiver and permission to re-enter adjudication timelines have improved, possibly due to the new on-line filing system. However, the agency seems to have gotten tougher in granting some waivers, such as those for persons denied admission related to illicit trafficking.

It is now apparent that other types of issues may loom large as future cross-border concerns. The underground market in cannabis continues in Canada, which can lead to activities which form sufficient basis to violate Canada’s Criminal Act.

There are many other ways to violate Canada’s Cananbis Act, and in doing so create other bases for inadmissibility. Privacy concerns abound regarding the electronic aspects of marijuana business, as well as electronic searches and seizures at the border. Because the many issues surrounding legalized cannabis can be confusing, training of officers and education of the public persist as concerns.

By and large, though, I will say that many of the cross-border issues that were concerns prior to legalization, such as long lines at the border or random Q&As on past use, have not materialized on a large scale.

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Posted in General, Marijuana and Immigration, Scott Railton |

H-1B Processing Changes Arriving Soon

Friday, September 6th, 2019 by W. Scott Railton

The U.S. Government seems focused on making this be the year it changes how things go with H-1B petitions. Overall, the changes are likely positive, but H-1B filers need to keep on top of these changes, as the timing and method of filings shall both be impacted.

1.  Proposed H-1B Lottery Registration Fee

U.S. Citizenship and Immigration Services is planning on conducting a lottery before April 1st, where employers vie for ticket to file each H-1B.  If chosen, the employer will then be permitted to file an application on April 1st, 2020, for positions starting no sooner than October 1st, 2020. The agency has proposed a fee of $10 for employers to register for the lottery. The introduction of the lottery will save money for all those who end up losing out in a lottery. It remains to be seen though how it will work timing-wise. It is not too early to be thinking about potentially sponsoring H-1B workers, particularly those who are current working in their optional practical training subsequent to their academic program.

Here is USCIS’s announcement on the lottery registration:

The Department of Homeland Security (DHS) today announced a notice of proposed rulemaking that would require petitioners seeking to file H-1B cap-subject petitions to pay a $10 fee for each electronic registration they submit to USCIS.

Because USCIS must expend resources to implement and maintain the H-1B registration system, and because USCIS operations are funded by fees collected for adjudication and naturalization services, DHS is proposing an appropriate, nominal fee for submitting H-1B registrations to recover those costs.

On Jan. 31, DHS published a final rule requiring petitioners seeking to file H-1B cap-subject petitions, including those eligible for the advanced degree exemption, to first electronically register with USCIS during a designated registration period, unless we suspend that requirement. We also stated in that final rule that we were suspending the registration requirement for the fiscal year (FY) 2020 cap season, to complete required user testing of the new H-1B registration system and otherwise ensure the system and process work correctly.

In that final rule, DHS also reordered the cap selection process to increase the chance of selecting petitioners with a master’s degree or higher from a U.S. institution of higher education. Preliminary data shows that the number of petitions for U.S. advanced degree holders selected toward the FY 2020 numerical allocations increased by more than 11% over the year before.

H-1B visas allow skilled workers in certain specialty occupations to temporarily live and work in the United States.

Additional information on the proposed rule is available in the Federal Register. Public comments will be accepted from Sept. 4 (when the proposed rule publishes in the Federal Register) through Oct. 4.

 

2.  Department of Labor Changing Its On-Line Portals

The Department of Labor’s Office of Foreign Labor Certification is rolling out big changes for some its filings, including H-1Bs. Employers have long used the Department’s iCERT system to file the required labor condition application, which supports the H-1B petition. This month, the Foreign Labor Application Gateway will replace iCERT.  This makes me feel old, as I remember when iCERT was brand new.  These application used to be submitted by fax.  Here’s the Department of Labor’s announcement:

OFLC Announces Schedule for Electronic Filing of Labor Condition Applications in the Foreign Labor Application Gateway (FLAG) System

As part of the Department’s technology modernization initiative, the FLAG System has been developed to replace the legacy iCERT System, improve customer service, and modernize the administration of foreign labor certification programs through the Employment and Training Administration’s Office of Foreign Labor Certification (OFLC).

OFLC is making this public service announcement to alert employers and other interested stakeholders about implementation of its new FLAG System for the Labor Condition Application (LCA) programs covering the H-1B, H-1B1, and E-3 visa classifications.

Electronic Filing of Form ETA-9035E, Labor Condition Application for Nonimmigrant Workers

• Beginning September 16, 2019, the FLAG System’s LCA Program Module will be enabled and stakeholders will be able to begin preparing H-1B, H-1B1, and E-3 applications using the Form ETA-9035E. However, the FLAG System will not permit the submission of LCA applications until 12:00 p.m. Eastern Time on October 1, 2019.
• OFLC will continue to accept online submissions of the Form ETA-9035E through the iCERT System until 11:59 a.m. Eastern Time on October 1, 2019. The ability to submit LCA applications using the iCERT System will be deactivated at 12:00 p.m. Eastern Time on that date.
• OFLC will process all LCA applications submitted through the iCERT System, and stakeholders will be able to access their iCERT System accounts to check the status of applications submitted through the iCERT System

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Posted in General, Scott Railton |

Labor Certification and the Ten Certifications

Wednesday, September 4th, 2019 by W. Scott Railton

Labor certification is the process by which an employer recruits for a position, to determine if there are any available, willing, minimally qualified persons for the position. Fundamentally, the Department of Labor’s labor certification irotects the U.S. workforce first. It then secondly enables U.S. employers to petition for foreign workers, where no U.S. workers are available.

There are some occupations that the Department of Labor has long-determined there is a shortage of workers for, such as professional nurses and physical therapists. For these occupations, employers can forego most of the recruitment process. There are other occupations and areas where it is widely known that there is a shortage of available workers, such as is the case with physicians who are willing to working in a designated health professional shortage area.

Sometimes, a position is hard to fill because it requires very specific training or a large measure of industry-specific experience. The U.S. labor force and the employment needs to the U.S. are diverse, encompassing many factors.

The labor certification process is working well for employers. It takes an investment in time and money to pursue a labor certification and permanent residence for an employee, but this is one area of immigration where processing times are relatively good.

Each employer has to make ten attestations with a labor certification application. These attestations capture much of what is required of employers and the factors that need to be considered in pursuing an application. Here they are:

By virtue of my signature below, I HEREBY CERTIFY the following conditions of employment:

1. The offered wage equals or exceeds the prevailing wage and I will pay at least the prevailing wage.

2. The wage is not based on commissions, bonuses or other incentives, unless I guarantees a wage paid on a weekly, bi-weekly, or monthly basis that equals or exceeds the prevailing wage.

3. I have enough funds available to pay the wage or salary offered the alien.

4. I will be able to place the alien on the payroll on or before the date of the alien’s proposed entrance int o the United States.

5. The job opportunity does not involve unlawful discrimination by race, creed, color, national origin, age, sex, religion, handicap, or citizenship.

6. The job opportunity is not: a. Vacant because the former occupant is on strike or is being locked out in the course of a labor dispute involving a work stoppage; or b. At issue in a labor dispute involving a work stoppage.

7. The job opportunity’s terms, conditions, and occupational environment are not contrary to Federal, state or local law.

8. The job opportunity has been and is clearly open to any U.S. worker.

9. The U.S. workers who applied for the job opportunity were rejected for lawful job-related reasons.

10.The job opportunity is for full-time, permanent employment for an employer other than the alien.

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J-1 Waiver Season for Physicians Is Here

Monday, August 26th, 2019 by W. Scott Railton

J-1 Conrad waiver slots for physicians open up on October 1st. Health Departments around the country will begin accepting J-1 waiver applications under the Conrad program. Each state is allotted 30 spots, with the majority going to primary care physicians, who agree to work for three years in a health professional shortage area. In turn, their two year foreign residency requirement is waived. We routinely prepare these applications.

Rules vary state to state, although the federal government has minimum requirements. Washington State, where we are located, historically takes between six and twelve months to fill all of its spots. In recent years, Oregon has been filling its 30 spots faster. Alaska, Idaho, and Montana make limited use of the program, and so spots tend to remain open through the year. Some states though receive more than 30 applications on the first day the window opens.

Here are a few of the key rules for Washington State:

– Up to ten sponsorships are available for Specialists between October 1st to March 31st. Additional spots may be available after March 31st.

– Washington State also allows 10 non-designated FLEX waivers per year, with these slots opening on January 15th. FLEX spots allow certain physicians to work in areas that are not designated as health professional shortage areas, provided they are assisting populations that are underserved. For example, a Seattle specialist physician that sees patients from all over Washington (or multiple states) might qualify for a FLEX waiver.

– Washington State limits employers to three waivers each, prior to June 1st of the fiscal year.

– Applicants, including integrated health care systems in a single HPSA, are limited to a.) two sponsorships per practice location; b.) one hospitalist sponsorship per hospital; c.) no more than three sponsorships total across all practice locations in the HPSA between October 1st and May 31st; d.) and no more than three FLEX spots by a an applicant for a single county.

– Sponsors must show at least 15% of total patient visits are for Medicaid or other low income patients. This is up from the former 10% figure.

– Washington State requires that sponsors show at least six months of qualifying recruitment in the past 12 months in Washington State. This sometimes can be an obstacle to filing, and so it is important to evaluate what forms of recruitment have taken place, and for how long, for prospective waiver applicants.

We are available to consult with physicians and medical facilities, to discuss this process as well as other potential options for physicians. For better or worse, there are many rules in immigration specific to physicians, such as the Conrad and other J-1 waiver programs, H-1B requirements, and admission requirements. The processes also can involve multiple state and federal agencies. We know the way, and are happy to assist.

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U.S.-Canada Preclearance Agreement In Effect

Friday, August 16th, 2019 by W. Scott Railton

The Department of Homeland Security announced this week that a preclearance agreement is now in effect with Canada. This basically means that major Canadian airports will be on equal footing with land port of entries, legally speaking.

Expedited removal is now a tool airport CBP inspectors can use to find Canadians inadmissible and banned for five years, in cases of fraud and unlawful immigrant intent. Previously, this type of removal –basically a legal fiction with real impacts for someone not in the U.S.—only occured to someone presenting themselves for admission at a land port of entry, or when illegally seeking entry outside a port.

There is very limited recourse for an expedited removal order. In clear cases of error, sometimes they can be overturned. There is also a waiver process, but this usually works best after some time has passed. The criticism of expedited removal is it leaves no real route for appeal: CBP can be judge, jury, and executioner, so to speak, when they apply this measure. Sometimes agents have been known to be a bit too zealous in lowering this boom.

When I testified in the Canadian Senate in 2018 on marijuana legalization, some Senators had new reservations about their passage of the preclearance bill. There have been situations, particularly where someone has already been denied entry once, where I’ve felt better having them seek entry anew at an airport than at a land port of entry, just so expedited removal is not a consideration.

The preclearance rule will also possibly lead to joint operations at smaller ports of entry, such as can be found in rural border crossings. This can save money and lead to efficiencies, though one has to wonder about the sharing of information.

Here is the full announcement:

United States and Canada Implement Preclearance Agreement
Release Date:
August 15, 2019

WASHINGTON, D.C. – The U.S. Department of Homeland Security announced today, in partnership with the Public Safety and Emergency Preparedness Canada, the implementation of an agreement to improve mutual security and expedite lawful travel through preclearance for travelers and their accompanying baggage on certain transports. The collaboration is articulated in the Agreement on Land, Rail, Marine, and Air (LRMA) Transport Preclearance between the Government of the United States of America and the Government of Canada, which supersedes the previous 2001 U.S.-Canada Agreement on Air Transport Preclearance, and expands upon the two countries’ partnership.

Preclearance is the process by which officers stationed abroad inspect and make admissibility decisions about travelers and their accompanying baggage before they leave a foreign port, simultaneously increasing efficiency and security. The LRMA provides the legal framework and reciprocal authorities necessary for U.S. Customs and Border Protection (CBP) and the Canada Border Services Agency to carry out security, facilitation, and inspection processes in the other country.

“Preclearance strengthens economic competitiveness and mutual security, and benefits travelers by expediting their clearance into the U.S. before they ever leave Canada,” said Acting Secretary Kevin K. McAleenan. “This agreement provides the opportunity for CBP to build on six decades of successful operations and, for the first time, to conduct full preclearance in the rail, ferry, and cruise ship environments. This achievement is important for the Department’s security objectives and is another example of just how close the U.S. – Canada relationship stands.”

CBP currently conducts preclearance operations at eight Canadian airports: Calgary, Edmonton, Halifax, Montreal, Ottawa, Toronto, Vancouver, and Winnipeg. CBP officers also conduct immigration pre-inspection at multiple locations in British Columbia in the rail and marine modes; these locations will have the opportunity to convert to full preclearance, per the terms of the Agreement.

“The new Canada–U.S. Preclearance Agreement is now in force, creating new opportunities in all modes of transportation in both Canada and the United States,” said the Honourable Ralph Goodale, Minister of Public Safety and Emergency Preparedness. “Expanding preclearance makes travel faster and bolsters trade, while better protecting our rights.”

As the Agreement is fully reciprocal, in addition to the potential expansion of CBP preclearance operations in Canada, the Agreement permits Canada to pursue preclearance operations in the United States. This agreement also enables exploration of co-location at small and remote ports of entry and includes additional tools and authorities to help enforce immigration, customs, and agriculture laws, facilitate lawful travel, and ensure officer protection and accountability.

The LRMA was signed by the U.S. Secretary of Homeland Security and Canadian Minister of Public Safety and Emergency Preparedness on March 16, 2015, fulfilling a commitment of the Beyond the Border Action Plan (Beyond the Border Action Plan). The U.S. Congress passed the necessary supporting legislation in December 2016 and Canada’s Parliament did so in December 2017. Canada published their required implementing regulations in June 2019, paving the way for entry into force following an exchange of Diplomatic Notes today.

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Posted in General, Marijuana and Immigration, Scott Railton |

USCIS Announces Final Rule Enforcing Long-Standing Public Charge Inadmissibility Law

Monday, August 12th, 2019 by W. Scott Railton

USCIS announced today the upcoming publication of a final rule on public charge requirements for immigration purposes. “Rule” really misstates things, as the proposed rule change will weigh in at over 800 pages. What does this mean?

In a few words, immigration and naturalization are getting harder. For some, it will be because they can’t reach the new heightened standards for proving that their immigration will not become a burden on U.S. taxpayers. For all, it will mean the application process will become that much more burdensome, as applicants have to overcome red tape requirements to prove their eligibility to immigrate or naturalize.

When a new rule with this level of complexity rolls out, there is a learning curve for the government decision-makers as well as for the applicants and their advisors.  Rarely do things become more clear; usually, the rules beget further questions and administrative burdens.

Restricting immigration has proudly been the cornerstone of this Administration’s agenda. This new rule will give officers at USCIS, and perhaps CBP and the State Department, greater ability to refuse immigration benefits. Immigrant advocates are also saying this rule will deter noncitizens from seeking all manner of benefits, in fear of hurting their chances to immigrate. I anticipate the rule or some part of it will soon be challenged in federal court. There will be other unintended consequences, surely, due to the breadth of its potential impact.

This is headline news, and much more will be written and said on this. For now, here’s the announcement from USCIS:

USCIS Announces Final Rule Enforcing Long-Standing Public Charge Inadmissibility Law

Regulation promotes self-sufficiency and immigrant success

WASHINGTON — Today, the U.S. Department of Homeland Security (DHS) announced a final rule that clearly defines long-standing law to better ensure that aliens seeking to enter and remain in the United States — either temporarily or permanently — are self-sufficient and rely on their own capabilities and the resources of family members, sponsors, and private organizations rather than on public resources.

This final rule amends DHS regulations by prescribing how DHS will determine whether an alien is inadmissible to the United States based on his or her likelihood of becoming a public charge at any time in the future, as set forth in the Immigration and Nationality Act. The final rule addresses U.S. Citizenship and Immigration Services (USCIS) authority to permit an alien to submit a public charge bond in the context of adjustment of status applications. The rule also makes nonimmigrant aliens who have received certain public benefits above a specific threshold generally ineligible for extension of stay and change of status.

“For over a century, the public charge ground of inadmissibility has been part of our nation’s immigration laws. President Trump has delivered on his promise to the American people to enforce long-standing immigration law by defining the public charge inadmissibility ground that has been on the books for years,” said USCIS Acting Director Ken Cuccinelli. “Throughout our history, self-sufficiency has been a core tenet of the American dream. Self-reliance, industriousness, and perseverance laid the foundation of our nation and have defined generations of hardworking immigrants seeking opportunity in the United States ever since. Through the enforcement of the public charge inadmissibility law, we will promote these long-standing ideals and immigrant success.”

DHS has revised the definition of “public charge” to incorporate consideration of more kinds of public benefits received, which the Department believes will better ensure that applicants subject to the public charge inadmissibility ground are self-sufficient. The rule defines the term “public charge” to mean an individual who receives one or more designated public benefits for more than 12 months, in the aggregate, within any 36-month period (such that, for instance, receipt of two benefits in one month counts as two months). The rule further defines the term “public benefit” to include any cash benefits for income maintenance, Supplemental Security Income (SSI), Temporary Assistance to Needy Families (TANF), Supplemental Nutritional Assistance Program (SNAP), most forms of Medicaid, and certain housing programs.

The regulation also excludes from the public benefits definition: public benefits received by individuals who are serving in active duty or in the Ready Reserve component of the U.S. armed forces, and their spouses and children; public benefits received by certain international adoptees and children acquiring U.S. citizenship; Medicaid for aliens under 21 and pregnant women; Medicaid for school-based services (including services provided under the Individuals with Disabilities Education Act); and Medicaid benefits for emergency medical services.

This rule also makes certain nonimmigrant aliens in the United States who have received designated public benefits above the designated threshold ineligible for change of status and extension of stay if they received the benefits after obtaining the nonimmigrant status they seek to extend or from which they seek to change.

Importantly, this regulation does not apply to humanitarian-based immigration programs for refugees, asylees, Special Immigrant Juveniles (SIJs), certain trafficking victims (T nonimmigrants), victims of qualifying criminal activity (U nonimmigrants), or victims of domestic violence (VAWA self-petitioners), among others.

This rule also explains how USCIS will exercise its discretionary authority, in limited circumstances, to offer an alien inadmissible only on the public charge ground the opportunity to post a public charge bond. The final rule sets the minimum bond amount at $8,100; the actual bond amount will be dependent on the individual’s circumstances.

This final rule supersedes the 1999 Interim Field Guidance on Deportability and Inadmissibility on Public Charge Grounds and goes into effect at 12:00 a.m. Eastern on Oct. 15, 60 days from the date of publication in the Federal Register. USCIS will apply the public charge inadmissibility final rule only to applications and petitions postmarked (or, if applicable, submitted electronically) on or after the effective date. Applications and petitions already pending with USCIS on the effective date of the rule (postmarked and accepted by USCIS) will be adjudicated based on the 1999 Interim Guidance.

USCIS will provide information and additional details to the public as part of public outreach related to the implementation of this rule. In the coming weeks, USCIS will conduct engagement sessions for the public and other interested groups to ensure the public understands which benefits are included in the public charge inadmissibility rule and which are not.

For more information on USCIS and its programs, visit our website at uscis.gov or follow us on Twitter, Instagram, YouTube, Facebook and LinkedIn.

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I-9 Workshop on August 20th

Wednesday, July 31st, 2019 by W. Scott Railton

The attorneys at Cascadia, in coordination with the Bellingham Chamber of Commerce, will be presenting an I-9 Workshop on August 20th. The workshop is free for anyone to attend. It will take place at the Bellingham Regional Chamber of Commerce, at 119 N. Commercial St., Ste 110, Bellingham. The workshop will be from 8:00 to 9:30 AM.  Here is a link to the Chamber’s announcement.

The purpose of the workshop is to assist businesses and their HR teams with worksite compliance for immigration issues, with a focus on I-9 completion and management, social security no-match letters, and ICE enforcement actions.

In the past year, we’ve seen an uptick in the number of businesses that receive Notices of Inspections for their I-9s. ICE can demand to see a company to produce all their I-9 records within 3 business days, which can surprise businesses sometimes. As it is said, an ounce of prevention is worth a pound of cure.

We expect that attendees will be able to walk away from the workshop better prepared to address workplace compliance issues at their businesses.

We are also available to discuss worksite compliance concerns with businesses, by appointment.

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