Posts Tagged ‘CBP’

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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 |

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 |

Expanded Use of Expedited Removal

Tuesday, July 30th, 2019 by W. Scott Railton

Last week the Administration announced it is expanding the use of expedited removal. Expedited removal is a form of deportation which does not require an administrative hearing or other judicial review. Authorized by section 235 of the Immigration and Nationality Act, expedited removal allows CBP and ICE agents to deport persons who enter or seek to enter the United States without proper documents or by fraud. The “expedited” part of the removal basically means that low-level officers in the government can make a decision on removal, without review by a judge.

Expedited removal has been available in certain cases since 1997. This most recent expansion of policy applies to noncitizens, anywhere in the United States, if they cannot prove continuous physical presence for the past two years. Previously, the time frame was 14 days and the geographic area was limited to within 100 miles of the Canadian and Mexican borders. Unaccompanied minors are not impacted by the new rule, and persons can still claim relief if they can articulate a credible fear of return to their home country.

Most of the news about this policy has focused on undocumented who are inside the United States. Many are advising that undocumented persons gather up evidence to prove they’ve been in the United States for more than two years, in case they encounter an ICE agent. Such preparations may be sufficient to satisfy an officer, on the spot, that expedited removal is not available.

Most of our expedited removal cases arise at the U.S.-Canada border, where there are misrepresentations while seeking entry. We expect to see expedited removal to be used more frequently locally, in light of the Administration’s announcement. The typical case is one where someone says they are seeking entry for one purpose, when in fact they are seeking entry for another purpose, or several unrelated purposes.

The application of a fraud finding can be complicated sometimes, because there are sins of commission and omission. I expect the border will be taking a more expansive view of what constitutes fraud, in the exercise of its expedited removal powers. The trouble with this is there is no administrative or judicial review of such a decision.

If a person is placed in expedited removal, they are barred from seeking re-entry for at least five years, unless they obtain the consent of the U.S. government to seek entry again. There are nonimmigrant waivers available, but the likelihood of success of an application will depend on the merits of the application. There are substantial fees and a processing times to consider as well.

Sometimes it is possible to challenge the actual expedited removal order, through communications with agency leadership. Make no mistake—that is usually a tough road—but I supervisors will reconsider a matter, if a decision is clearly erroneous.

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Posted in General, Marijuana and Immigration, Scott Railton |

CBP Pilot Program for Electronic Filing for Waivers for Canadians

Thursday, May 30th, 2019 by W. Scott Railton

U.S. Customs and Border Protection will institute a pilot program for electronic filing of I-192 Nonimmigrant Waiver and I-212 Application for Permission to Reapply for Admission applications. Currently, these applications are filed in person at the Port of Entries and Pre-Flight Inspections. This announcement impacts visa exempt countries, which means principally Canadian citizens.

My initial concern is whether the on-line filing system will adequately accept evidence in support of the application. I suppose that is the benefit of a pilot program; they can decide what works and doesn’t. There are many potential benefits, as outlined in the announcement. The agency is clearly trying to further limit how much it handles immigration benefits issues at ports of entries, which is concerning as an agency goal. The agency similarly extended its L-1 Pilot Program recently, despite heavy criticism from stakeholders.

Here is the agency announcement:

U.S. Customs and Border Protection (CBP) is pleased to announce the pilot of the Electronic Secured Adjudication Forms Environment (e-SAFE) mid-year 2019.  The new online system will allow for electronic filing of Form I-192, Application for Advance Permission to Enter as a Nonimmigrant, and Form I-212, Application for Permission to Reapply for Admission into the United States After Deportation or Removal.  Citizens of specified visa exempt countries—Canada, Palau, the Federated States of Micronesia and the Marshall Islands—who are nonimmigrants and have been found inadmissible will be able to apply for a waiver online.  Applicants will be able to view their application status, submit additional information if requested, and ultimately learn the outcome of their online waiver application through this system.

e-SAFE will streamline and reduce the processing time, and provide instruction on how to fill out the applications.  Applicants who submit and pay for electronic filing via e-SAFE must go to the following ports of entry to complete the biometrics portion (fingerprints and photograph) of the application:

 • Peace Bridge, New York • Lewiston Bridge, New York • Rainbow Bridge, New York • Peace Arch, Washington • Pacific Highway, Washington • Point Roberts, Washington • Toronto Pearson International Airport
 
These are the only ports of entry able to process electronic filing of Forms I-192 and I-212. Other locations will be added gradually and will be published on the e-SAFE public web page and on www.cbp.gov/travel/international-visitors/e-safe and e-SAFE.cbp.gov.  CBP will continue to accept paper filing at ports of entry, but as e-SAFE is added to more ports of entry, paper filing locations will become limited.

Authorized attorneys or accredited representatives will be able to create special managed accounts to assist their clients in completing the application, upload the required documents and pay the client’s application fee once a validated Form G-28 is on file.  However, applicants are responsible for the accuracy of all information submitted on their behalf.

Please review the attached frequently asked questions or visit www.cbp.gov/travel/international-visitors/e-safe for the most current information. 
A separate email notice will be sent when e-SAFE is available for electronic filing.

Sincerely,

Keri Brady, Director U.S. Customs and Border Protection Admissibility Review Office

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Posted in General, Marijuana and Immigration, Scott Railton |

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 |

CBP Halts L-1 Extensions and Renewals at Ports of Entry

Friday, April 12th, 2019 by W. Scott Railton

I doubt you’ll find this written on any government website, but U.S. Customs and Border Protection (CBP) has decided to stop adjudicating extensions and renewals of L-1 status for Canadians at Ports of Entry and Pre-Flight Inspection.  The agency’s position is these applications must be filed at U.S. Citizenship and Immigration Services (USCIS). “L-1 status” refers to intracompany work and stay authorization for executives, managers, and employees with specialized knowledge.

We first heard this news via attorney meetings with the agency. Specifically:

QUESTION:  How are Canadian L-1 extensions treated at the border? Must intermittent L-1 applicants also apply for an L-1 extension with USCIS?

 ANSWER: CBP officers shall not approve any requests for extension of stay or renew petitions for L-1 nonimmigrants; those requests will be reviewed and approved by USCIS exclusively for all nationalities.

This important policy change is nowhere to be found on the agency’s website, unsurprisingly. We hear though that the policy is being implemented. One officer is said to have told an individual, “Spread the word.” By all appearances, CBP wants to stop adjudicating immigration benefits, and U.S. Citizenship and Immigration Services wants to take this responsibility over.

This is bad news, even if it hasn’t actually made the news. For decades, Canadian businesses have been able to present applications at the border, and receive on-the-spot adjudications. A lot of Canadian executives and managers travel back and forth, and live in Canada.  USCIS is painfully slow in adjudicating applications, although it is possible to pay for “premium processing” and receive initial adjudication in 15 days, for $1410 USD.  Of course, that’s not as good as on-the-spot adjudication, for the base application fee, which Canadian businesses now can receive. L-1 extensions for Canadians will only be adjudicated so fast now, and USCIS has become justifiably notorious for issuing lengthy requests for evidence, which bury employers in paperwork.

The United States government seems committed to making immigration harder, when it should be going for smarter.  L-1 holders are typically job creators, adding value to the U.S. economy. By definition, an executive or manager is presiding over many more workers. The U.S. should be making it easier for Canadian businesses and their executive management teams to do business stateside.

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

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

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

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

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

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

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

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

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

Here’s a memo from USCIS on the shutdown:

Lapse in Federal Funding Does Not Impact Most USCIS Operations

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

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

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

 

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CBP Encourages ESTA Applicants to Apply 72 Hours In Advance

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

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

Here is the full advisory from CBP:

Visa Waiver Program users are encouraged to apply early

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

Visa Waiver Program users are encouraged to apply early.

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

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

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

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

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

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

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

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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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L-1 Pilot Program Coming to Peace Arch and Pacific Highway Crossings

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

The Peace Arch and Pacific Highway Crossing in Blaine, Washington are implementing a “Pilot Program” for L-1 Intracompany Transfer petitions, beginning on or about April 30th. L-1 Intracompany transfers are employees who are Executives, Managers, or employees with specialized knowledge who are transferred from a commonly owned foreign company to a U.S. company. For decades, Canadian beneficiaries of L-1 petitions have been permitted to submit their applications at Class A Port of Entries, and receive immediate adjudication. The Pilot Program, while introduced with promises of efficiencies, threatens a long-standing benefit for Canadian businesses.

On Monday, I attended a briefing session on a Form I-129 Pilot Program for Canadian L Nonimmigrants Pilot Program, held at the Peace Arch. The briefing was hosted jointly by U.S. Customs and Border Protection and U.S. Citizenship and Immigration Services, and was led principally by USCIS Director L. Francis Cissna. The meeting was attended by more than a dozen officials of CBP, USCIS, and about ten attorneys representing stakeholders. The meeting was open to phone participants as well.

Director Cissna said that the stated intention of the L Pilot Program is to try to move Port of Entry adjudications out of CBP’s hands and into USCIS’s hands. Director Cissna views this work as USCIS work, since it involves immigration benefits. CBP doesn’t seem happy with the function (my observation), as they consider themselves an enforcement agency first and foremost. There were indications that if the Pilot Program works, perhaps TN adjudications can be handled on the same process.

Under the Pilot Program, the petitioning company will send the petition to USCIS with a special cover sheet. USCIS will then try to adjudicate the applications with the cover sheet “super fast…faster than premium processing,” in an effort to provide adjudication service similar to what is now available at the Port of Entry for Canadians. Approvals and Requests for Evidence will be sent to employers directly. While USCIS says it would be best to wait for the approval, Applicants can go down to the Port of Entry with just a receipt notice, and granted admission if the matter is adjudicated favorably. This was all described as “good organizational management.”

The goal is to launch the program at the Peace Arch and the Pacific Highway by April 30th, and then test run the program for 6 months. If it works, they’ll look at expansion to other northern ports of entry, and may need to commence the public notice and comment processes required under the Administrative Procedures Act.

The Pilot Program is exclusive to Blaine, and so Canadian applicants who want immediate Port of Entry adjudication may still go to other Port of Entries. The process will be mandatory for Canadians at the Peace Arch and Pacific Highway. The process includes L blankets. The California Service Center is the designated USCIS service center for adjudication.

Some interesting statistics were mentioned during the meeting. We were told there are about 6200 Canadian L petitions submitted each year, which is about one-sixth of the overall total. The Blaine POEs are not handling too many per week now. One person said about half a dozen; another said about 50 per month. Issues raised by attorneys included the Request for Evidence rate at the USCIS Service Centers, which is very high; as well as the benefit from instant adjudication at the Port of Entry v. the issues in presenting a petition there sometimes.

This could end up being a step back for Canadian businesses who may clearly qualify and benefit from on-the-spot adjudication. There was a time when port of entry adjudication was a pretty quick process, and this method of application really helped Canadian businesses quickly get the people they need into the U.S. temporarily. USCIS has created a whole lot of red tape for legitimate businesses in recent years, and this presents another opportunity for government delays. A more favorable view of the program is that this allows pre-adjudication by USCIS of petitions, at a rate faster than Premium Processing’s fee based 15 day guarantee.

If its not obvious, I am skeptical about the Pilot Program. In the big picture, this Administration is taking every step it can to cut legal immigration, in addition to its focus on illegal immigration. There are some in the Administration who only want to “put a pause” on immigration, and seem to have decided that most if not all immigration is bad. The L visa is a poor target, as the visa is dedicated to executives and managers—people who typically create jobs, which leads to a healthier U.S. economy.

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