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Health Care Worker Certificate Requirement Presents Timing Issues

Wednesday, May 29th, 2019 by W. Scott Railton

Certain health care workers are required to have health care worker certificates in order to be admitted.  (Authority:  INA §212(a)(5)(c))  The certificate, often referred to by the trademarked name VisaScreen®, serves as an evaluation in regards to education, training, license, experience, and English proficiency.  The application process can take months unless expedited, and involves expense.  The certificate therefore presents a key timing issue for immigration purposes.

The occupations requiring certificates include:

  • Nurses (Licensed Practical Nurses, Licensed Vocational Nurses, and Registered Nurses )
  • Physical Therapists
  • Occupational Therapists
  • Speech-language Pathologists and Audiologists
  • Medical Technologists (also known as Clinical Laboratory Scientists)
  • Medical Technicians (also known as Clinical Laboratory Technicians)
  • Physician Assistants

Even if the health care worker trained in the U.S., they still must acquire the certificate. Also, NAFTA TN workers are required to obtain the certificate, as well as other nonimmigrant and immigrant applicants who are arriving for health care purposes. The certificate is not required, though, if a person is applying for permanent residence based on another purpose, such as an immediate relative spouse.

The Commission on Graduates of Foreign Nursing Schools (www.cgfns.org) is authorized to issue certifications to all 7 health care occupations.   Additionally, the National Board for Certification in Occupational Therapy (NBCOT) is authorized to issue certifications for occupational therapists, and the Foreign Credentialing Commission on Physical Therapy (FCCPT) is authorized to issue certifications for physical therapists.

The health care certificate serves as verification of education equivalency, licensing eligibility, and requisite English language skills. The Screen includes an English language proficiency examination. For registered nurses, the health care certificate also includes verification that the RN has passed either CGFNS’s qualifying exam, NCLEX-RN, or for select years and provinces its predecessor, the State Board Test Pool Examination.

For immigrant petitions, credentials will be reviewed by USCIS at the I-140 stage, but the actual certification is not required until the adjustment or consular processing stage. For nonimmigrants, the certificate must be available at time of visa issuance and admission.

There is an expedited procedure.  There are also certain exceptions, relating to English language proficiency (e.g. graduate of certain schools in Canada, Australia, Ireland, U.K., or U.S., as well as educational comparability in certain professions).

Certifications are issued for only five years, and must be used for admission, extension or change of status, or adjustment, within that period. See 8 CFR 212.15(n)(4). If not used, a new certification is required subsequent to expiration. If used, but now expired, a limited renewal must be obtained, to verify no adverse actions have occurred, and to confirm anew English competency. See 8 CFR 212.15(k)(4)(viii).

It is not uncommon for U.S. Customs and Border Protection to deny admission to a health care worker for lack of a certificate, or because a certificate is now expired. This can be a difficult situation, for employer and employee, which may be avoided through attention to the requirement and timing. Another issue that comes up from time to time is a denial of entry for certain radiation related professionals, who do not require the certificate, but are asked for one just the same. Training issues like this have to be handled on a case by case basis.

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Posted in General, Scott Railton |

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 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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Canadian Senate Committee Issues Report on Border and Legalization

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

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

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

Report of the committee

Tuesday, May 1, 2018

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

SIXTEENTH REPORT

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

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

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

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

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

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

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

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

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

Respectfully submitted,

GWEN BONIFACE

Chair

 

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

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

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

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

Quick Facts

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

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

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

Quotes

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

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

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

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Scott Railton Testifies Before Canadian Senate Committee on Border

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

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

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

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

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

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

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

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Cascadia Attorneys Speak on NAFTA, the Border and Consular Processing

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

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

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

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

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CBP Electronic Searches Up 50%, New Standards Announced

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

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

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

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

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

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

Release Date:
January 5, 2018

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

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

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

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

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

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

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

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

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

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

Last published:
January 5, 2018
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Border Security

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Increase in Expedited Removals at the Northern Border

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

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

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

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

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

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

Expedited removal orders are tough to overturn.

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

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

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

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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.

 

 

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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.

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