Posts Tagged ‘Cascadia Cross-Border Law’

« Older Entries

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

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

USCIS Encouraging On-Line Naturalization Applications

Monday, December 11th, 2017 by W. Scott Railton

U.S. Citizenship and Immigration Services is now encouraging individuals to file naturalization applications on-line. The agency has been struggling to modernize on-line application processes for many years now. Applicants should be aware that while filing on-line may provide some advantages, the laws surrounding naturalization have not changed. In fact, the actual process is slowing down administratively, as applications and processing times have gotten longer. Every question on an application form needs to be considered fully, as a simple “Yes” or “No” on the form can have far-reaching consequences in some cases.

The naturalization process is perhaps my favorite part of immigration law. Naturalization is a big deal for anyone. It represents the culmination of the lengthy and often-trying immigration process. It’s also the step where the government takes one last look at the immigrant, and so a certain measure of caution is prudent.

Here’s USCIS’s announcement sent out today regarding on-line applications:

Dear Stakeholder,

Applicants can file Form N-400, Application for Naturalization online through their USCIS online account. When they use the interactive Form N-400, applicants will see questions, alerts, and notifications specific to the answers they provide while completing the form. Applicants will also see prompts and reminders to upload required evidence. This means each person follows a personalized path for completing the form based on the information that they provide.

By using the online account, applicants will be able to:
• Update personal information online,
• Answer optional questions in the Naturalization Eligibility Tool to help determine their eligibility for naturalization,
• Create, edit, save, or delete a draft application,
• Upload evidence,
• Pay any fees and submit the application,
• View real-time case information and the history of their interactions with USCIS, and,
• Securely and directly communicate with USCIS about their case.
Currently, individuals can create a unique, online account and file their Form N-400 online, with only three exceptions. At this time, applicants must submit a paper Form N-400 if:
• They are applying for citizenship based on having served in the U.S armed forces or based on their current service,
• They want to apply from outside of the United States, or,
• They are requesting a fee waiver or reduced fee.

The Form N-400 online application was built based on input we received from community-based organizations and past applicants. Stakeholders from across the United States informed our development process by testing portions of the online form and providing feedback.

USCIS is also introducing an online naturalization eligibility tool that helps intending applicants determine if they may be eligible to apply for naturalization. This optional tool provides information about the most common eligibility requirements for naturalization.

We encourage you to share this option for an online and interactive filing experience with your clients who are ready to file Form N-400, Application for Naturalization.

Kind regards,

USCIS Public Engagement Division

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

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.

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

Global Entry Enrollment on Arrival Expands to Sea-Tac Airport

Wednesday, November 15th, 2017 by W. Scott Railton

U.S. Customs and Border Protection’s Global Entry trusted traveler program has expanded it’s Enrollment on Arrival to include Sea-Tac airport.  Conditionally approved enrollees can complete their process now by interviewing at the airport.

The Global Entry application fee for a 5 year approval is $100. The agency is not transparent on adjudication standards, but there is little to no tolerance for past criminality. Canadian citizens and residents enrolled in NEXUS may also use the Global Entry kiosks.  The pass can be very helpful in dealing with airport processing times.

Here’s the CBP press release:

Global Entry Enrollment on Arrival Expands to 11 Additional International Airports
Release Date: November 14, 2017

Program is now available in some of the busiest Global Entry enrollment areas and will continue to expand through the remainder of 2017 and into 2018

WASHINGTON—U.S. Customs and Border Protection announced today the expansion of Global Entry Enrollment on Arrival to 11 additional international airports. Enrollment on Arrival enables conditionally-approved Global Entry applicants to complete their interview, the final step of the Global Entry enrollment process, while clearing CBP processing. The program is currently available at nine new locations including Dallas/Fort Worth International Airport (DFW), Detroit Metropolitan Airport (DTW), Minneapolis-Saint Paul International Airport (MSP), Phoenix Sky Harbor International Airport (PHX), Salt Lake City International Airport (SLC), San Diego International Airport (SAN), Norman Y. Mineta San Jose International Airport (SJC), Seattle-Tacoma International Airport (SEA), and Toronto Pearson International Airport (YYZ), and will launch later this week at Denver International Airport (DEN) and Philadelphia International Airport (PHL).

“Global Entry continues to be one of CBP’s most successful and popular programs and we have made it a priority to improve the enrollment process for those looking to join the ranks of Trusted Traveler,” said Acting Commissioner Kevin McAleenan. “Last month, we launched a modernized, mobile-friendly application website making the initial step of the process more user friendly and now with these additional Enrollment on Arrival locations we have added greater flexibility for those looking to complete the enrollment process.”

Since the program’s launch in July, more than 5,200 conditionally-approved Global Entry applicants have completed the final step of the enrollment process at an Enrollment on Arrival location. Enrollment on Arrival is also available at George Bush Intercontinental Airport (IAH), William P. Hobby Airport (HOU), Austin-Bergstrom International Airport (AUS), San Francisco International Airport (SFO) and Vancouver International Airport (YVR).

Conditionally-approved applicants looking to utilize Enrollment on Arrival do not need to schedule an interview appointment ahead of time.

Once a traveler is conditionally-approved, instead of scheduling an interview at a Global Entry Enrollment Center, the traveler can complete the enrollment interview during CBP primary inspection at a participating airport. Upon arrival, travelers will be directed to a primary booth designated specifically for Enrollment on Arrival. A CBP officer will conduct both the primary processing and Global Entry interview and collect the traveler’s biometrics to complete the enrollment. The traveler will then be cleared for entry into the United States and, if approved, will be a Global Entry member.

Currently available at 54 U.S. airports and 15 Preclearance locations, Global Entry streamlines the international arrivals process at airports for trusted travelers. The more than 4.7 million Global Entry members bypass traditional CBP inspection lines and use an automated kiosk to complete their admission to the United States. As an added benefit, Global Entry members are also eligible to participate in the TSA Pre✓™ expedited screening program.

U.S. citizens, U.S nationals and U.S. Lawful Permanent Residents may apply for Global Entry as well as passport holders from Argentina, Colombia, Germany, India, Mexico, the Netherlands, Panama, the Republic of Korea, Singapore, Switzerland, Taiwan and the United Kingdom. Canadian citizens and residents enrolled in NEXUS may also use the Global Entry kiosks.

Interested travelers apply through the Trusted Traveler Programs website. The non-refundable application fee for a five-year Global Entry membership is $100 and applications must be submitted online. Once the applicant successfully passes a background check, a CBP officer will conduct an interview with the applicant at one of the more than 100 Global Entry Enrollment Centers located throughout the U.S., Canada, and Qatar or at an Enrollment on Arrival location and then make a final eligibility determination.

While the goal of Global Entry is to speed travelers through the process, members may be selected for further examination when entering the United States. Any violation of the program’s terms and conditions will result in appropriate enforcement action and may result in the revocation of the traveler’s membership privileges.

Visit CBP’s Global Entry website for more information on the Global Entry Program and the Enrollment on Arrival website for an updated list of available locations.

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:
November 15, 2017

Tags: , , , ,
Posted in Scott Railton |

Adjustment of Status Applications Get Tougher

Wednesday, August 23rd, 2017 by W. Scott Railton

Applicants for adjustments of status to permanent resident are encountering new issues of late.

The basic application form, the I-485, available at USCIS, has been revised, and it now includes a whole lot more questions which can trip someone up. The new form weighs in at a full 18 pages. It used to be 6 pages. And it has questions…lots of questions, like:

Have you EVER been denied admission to the United States?

Have you EVER been denied a visa to the United States?

Have you EVER worked in the United States without authorization?

Have you EVER committed a crime of any kind (even if you were not arrested, cited, charged with, or tried for that crime?)

Have you EVER violated (or attempted, or conspired to violate) any controlled substance law or regulation of a state, the United States, or a foreign country?

Applicants can expect that these questions will be read, out-loud, and asked during an adjustment of status interview. We have heard of cases where people admit to use of marijuana, and that doing so leads to further interview questions, and even denial of the petition. Working without authorization, or overstaying a period of authorized stay, can also create serious issues.

Another development for adjustments of status, not quite as recent, is applicants sometimes have to get new medical examinations, due to processing delays, adding costs to the process.

We also understand that USCIS is now sometimes denying travel authorization applications, filed with the adjustment of status applications, if a person travels internationally (e.g. on an H-1B) after the parole application is filed but before it is adjudicated. Adjudications usually take about four months. This is completely new, and hopefully is a development that doesn’t last.

We will continue to monitor what the agency is doing on adjustments of status and other immigration matters, and advocate for a fair, efficient and transparent process. We are available of course to discuss any issues of concern. It is best to resolve difficult issues as much as possible, before presenting the case to the agency.

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

Staying Admissible To The United States

Friday, July 28th, 2017 by W. Scott Railton

We frequently meet with Canadians and other nationals who are concerned about their admissibility to the United States. We also advise Canadian defense attorneys about the consequences of a plea or conviction on United States admissibility. Frequently, persons arrive at the border, seeking entry, only to learn that they are inadmissible (or so the government says), and that they will need a waiver.

Here are some tips on admissibility issues, from my perspective as an immigration attorney:

1. Foreign pardons and expungements do not typically help with U.S. immigration. A conviction vacated for substantive reasons might overcome inadmissibility.

2. The sealing of criminal records can present an obstacle for U.S. immigration purposes, as the burden of proof for admissibility is upon the applicant. The U.S. government will want to see those records, even if they’re under seal.

3. Temporary visitor waivers are available, but they are costly and take months to adjudicate, and must be renewed every five years. Permanent waivers for immigrants are more challenging, but are sometimes available, depending on the past offense.

4. The definition of a conviction under U.S. immigration law includes more than just convictions. Admissions of guilt in the record may count too.

5. Any conviction “related to” controlled substances is a basis for inadmissibility. U.S. immigration law is particularly hard on all controlled substances issues. Marijuana is still considered a controlled substance under federal (national) law, even though many states have legalized.

6. Drug abuse, drug addiction, and alcohol abuse are bases for inadmissibility without a conviction. When applicable, the U.S. Government may require an expert opinion from a U.S. authorized civil surgeon on whether a person is a drug or alcohol abuser prior to admission to the United States.

7. A person is inadmissible if the government has a “reason to believe” that she is or has been a drug trafficker.

8. In general, sentences of less than a year are better (e.g. 364 days or less) to avoid the possibility of having a conviction deemed an “aggravated felony” under U.S. immigration law.

9. Misrepresentation at the border is a basis for a lifetime ban from the U.S. They may search the phone or computer, interview friends and employers, and otherwise double-check to see if someone is lying. Lifetime ban if they make that determination, which in time can be overcome through the waiver process.

10. The U.S. law on inadmissibility is a complicated area of law even for U.S. lawyers, including U.S. immigration lawyers. If there are concerns, it is best to consult with us, or someone like us. If worse comes to worse, it may be better to stop answering questions, and ask to withdraw the application for admission.

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

Immigration In A Time of Restrictions

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

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

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

Here are some of the latest developments:

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

 

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

NAFTA Renegotiations and the TN Professional

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

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

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

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

What do we know?

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

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

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

This Administration takes pride in disruption.

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

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

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

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

Marijuana and the Border

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

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

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

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

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

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

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

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

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

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

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

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

 

 

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

Administrative Actions Making Immigration Harder

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

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

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

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

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

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

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

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

7. Contractors are lining up to build the wall.

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

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

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

« Older Entries