Posts Tagged ‘Scott Railton’

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USCIS Filing Fees on the Rise, Again

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

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

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

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

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

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

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

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

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

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

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Posted in General, Scott Railton |

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

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

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

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

The USCIS position is as follows:

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

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

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

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

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

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

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

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

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

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

Naturalize Neil!

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Posted in Marijuana and Immigration, Scott Railton |

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

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

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

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

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

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

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

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

Regulation promotes self-sufficiency and immigrant success

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

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

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

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

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

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

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

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

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

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

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

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Posted in General, Scott Railton |

Washington State Department of Licesning On Use of Facial Recognition Technology

Tuesday, July 9th, 2019 by W. Scott Railton

The Washington Post and New York Times recently ran stories concerning the use of facial technology to identify persons via the state driver’s license databases.  Washington State’s Department of Licensing has issued a press release, basically suggesting this is, dare I say, fake news. Here is what the Department of Licensing says:

DOL statement regarding facial recognition technology
July 8, 2019

July 8, 2019 For Immediate Release.

News Reports – ICE and the FBI using facial recognition technology to scan state driver’s license databases.

Statement from Department of Licensing Director Teresa Berntsen:

“National news reports about federal law enforcement and immigration officials’ use of state facial recognition databases has led to a high level of misunderstanding and confusion about how our state Department of Licensing protects this data. Our DOL has implemented strict standards to ensure data is not released to any law enforcement entity for immigration purposes or without a judicial court order or subpoena. There is no external access to the Facial Recognition System. System access is limited to very few specially trained DOL staff. We take very seriously our responsibility to protect the data and information of all Washingtonians.”

Background

The Washington Post reported ICE and the FBI using facial recognition technology to scan state driver’s license databases, including photos of legal residents and citizens. The Department of Licensing does not provide access to our Facial Recognition System to local, state, or federal law enforcement entities. They must provide the agency with a court order signed by a judge.

The New York Times states “agents authorized administrative subpoenas of the Department of Licensing to conduct a facial recognition scan of all photos of license applicants, though it was unclear whether the state carried out the searches.” The agency received 53 requests through court order or subpoena since 2013. Thirteen of those were federal requests. None have been received from 2017 to present. The remaining 40 were from local and state law enforcement entities.

Federal requests include:

One – U.S. Department of Justice
Two – Federal Bureau of Investigation
Four – Department of Homeland Security/Immigrations and Customs Enforcement
Six – U.S. Drug Enforcement Administration

If a match was found through any request during this time, DOL would provide limited identity information.

DOL’s Use of Facial Recognition Technology

KUOW ran the headline “ICE uses Washington driver’s licenses to hunt immigrants for deportation, researchers say.” This is incorrect. No entity has access to DOL’s facial recognition system. They would provide a photo and DOL would conduct the research.
Law enforcement entities have no access to “mine” DOL’s state driver’s license databases using facial recognition technology.
As of January 2018, all requests must be court ordered.

DOL’s Facial Recognition Process

After receiving a court-ordered subpoena, DOL performs a search by comparing the photo provided by a law enforcement entity with DOL’s database. If a match occurs between the photo provided by the entity with a photo in DOL’s database, DOL provides the individual’s first, middle, and last name, date of birth, and ID or driver license number.
The Department of Licensing does the research. There is no direct external access to the facial recognition system. System access is limited to very few specially trained DOL staff.

Immigration and Citizenship Status

The Department of Licensing does not collect information regarding a person’s immigration or citizenship status.
The Department of Licensing does not collect place of birth.
The Department of Licensing does not provide Social Security numbers.

Governor’s Executive Orders

The Department of Licensing is committed to following the Governor’s Executive Order 17-01 Reaffirming Washington’s commitment to Tolerance, Diversity and inclusiveness.
We fully comply with Executive Order 16-01, Privacy Protection and Transparency in State Government. We only collect information that is necessary to perform our agency duties to establish identification and driving privileges.

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Posted in 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 |

USCIS: Legalized Marijuana Use Will Disqualify Naturalization Applicants, for Lack of Good Moral Character

Friday, April 19th, 2019 by W. Scott Railton

U.S. Citizenship and Immigration Services announced today that it updated its Policy Manual to explicitly state that possession of marijuana, even in legalized states, will disqualify naturalization applicants. The Policy Manual is relied upon by adjudicator’s to make decisions on applications. The agency’s position is legal marijuana use violates the federal Controlled Substances Act, even though the U.S. government allows states to legalize. If an applicant admits to use, they will be found to not have “good moral character,” and their application will be denied.

The agency’s position seems to be that its hands are tied on this issue, in light of federal law. This strikes me as disingenuous, for several reasons.  First, marijuana use should not be tied to “good moral character” in any event.  Many people use marijuana for many different uses, and they don’t have bad moral character, whatever Washington D.C. is doing.  Second, federal agencies aren’t enforcing the Controlled Substance Act like this, and particularly the U.S. Department of Justice. Third, noncitizens, who are tested for basic English as part of the naturalization applications, are here expected to be experts on federal/state law distinctions. That is absurd. Marijuana stores are not hidden from sight.  They are common in states that have legalized, and by all appearances,  legitimate. Fourth, increasingly, there are CBD products on the market–even in grocery stores–that may have attributes of marijuana, and serve other purposes than getting high. Does the purchase of a CBD product, for medicinal purposes, have good moral implications?  Fifth, what if a doctor prescribes a marijuana product? Does a person have a good moral character issue for following a doctor’s orders?

We are also hearing periodically of naturalization applications which are denied because a person is working for a legalized marijuana related business. Such work can be working in the production of marijuana (farms, trimming, testing), working in a marijuana store, or holding an ownership interest in a marijuana-related business.

Naturalization applications cost $725 typically, and are taking the agency more than a year to adjudicate in most locations. A person typically applies for naturalization after residing in the United States for at least three years, if married to a U.S. citizen; or after five years of residence in most other cases. A denied application can be heart-breaking. Also, depending on the agency’s findings and the violations involved, the matter may be considered for a removal hearing.

The time is long past for federal legislators to step in, as policies like this will hurt U.S. families and businesses.

Here is what the announcement says:

USCIS Issues Policy Guidance Clarifying How Federal Controlled Substances Law Applies to Naturalization Determinations

USCIS is issuing policy guidance in the USCIS Policy Manual to clarify that violations of federal controlled substance law, including violations involving marijuana, are generally a bar to establishing good moral character for naturalization, even where that conduct would not be an offense under state law.  The policy guidance also clarifies that an applicant who is involved in certain marijuana-related activities may lack good moral character if found to have violated federal law, even if such activity has been decriminalized under applicable state laws.

Since 1996, some states and the District of Columbia have enacted laws to decriminalize the manufacture, possession, distribution, and use of both medical and non-medical (recreational) marijuana in their respective jurisdictions. However, federal law classifies marijuana as a “Schedule I” controlled substance whose manufacture (which includes production, such as planting, cultivation, growing, or harvesting), distribution, dispensing, or possession may lead to immigration consequences.

Please see the Policy Manual Update (PDF, 211 KB) for more information.

 Last Reviewed/Updated:

And here is what the updated Policy Manual says:

2. Conditional GMC Bar Applies Regardless of State Law Decriminalizing Marijuana

A number of states and the District of Columbia (D.C.) have enacted laws permitting “medical” [19] or “recreational” [20] use of marijuana. [21] Marijuana, however, remains classified as a “Schedule I” controlled substance under the federal CSA. [22] Schedule I substances have no accepted medical use pursuant to the CSA. [23] Classification of marijuana as a Schedule I controlled substance under federal law means that certain conduct involving marijuana, which is in violation of the CSA, continues to constitute a conditional bar to GMC for naturalization eligibility, even where such activity is not a criminal offense under state law. [24]

Such an offense under federal law may include, but is not limited to, possession, manufacture or production, or distribution or dispensing of marijuana. [25] For example, possession of marijuana for recreational or medical purposes or employment in the marijuana industry may constitute conduct that violates federal controlled substance laws. Depending on the specific facts of the case, these activities, whether established by a conviction or an admission by the applicant, may preclude a finding of GMC for the applicant during the statutory period. An admission must meet the long held requirements for a valid “admission” of an offense. [26] Note that even if an applicant does not have a conviction or make a valid admission to a marijuana-related offense, he or she may be unable to meet the burden of proof to show that he or she has not committed such an offense.

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Posted in General, Marijuana and Immigration, Scott Railton |

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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Posted in General, Scott Railton |

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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Posted in General, Scott Railton |

USCIS to Begin Implementing New Policy Memorandum on Notices to Appear on October 1st

Friday, September 28th, 2018 by W. Scott Railton

USCIS will begin to implement a new policy memorandum for issuing Notices to Appear on October 1st.  The memorandum outlines criteria for issuing Notices to Appear, which is the document for initiating immigration court proceedings. The agency will issue Notices to Appear after certain denials of many of the application types presented. These will include Adjustments of Status, Naturalization, and Temporary Protected Status applications, to name a few.  The importance of seeking counsel before filing applications is all the more heightened by this memo, particularly if there is any issue at all to consider.

The memo says that USCIS will issue Notices to Appear in many cases. The focus will be on a number of different serious criminal matters where persons are “under investigation for, has been arrested for (without disposition), or has been convicted.  The offenses include serious offenses like murder, rape, sexual abuse of a minor, and firearms offenses. The list also includes “human rights violators, known or suspected street gang members, or Interpol hits.”

Additionally, persons who make misrepresentations or “abused any program related to the receipt of public benefits” may be noted to appear.

Naturalization applicants who are denied on good moral character grounds, based on an underlying offense, “provided they are removable,” will be noted to appear.

The agency policy memo includes many other bases, many of which sound reasonable, but the language of the memo leaves much open for interpretation and negative discretionary actions by the agency.  Notably, the current immigration court case backlog is over 700,000 cases, and this will just add to that backlog.  Unless these measures are adequately funded, they threaten all normal immigration processing timelines, which are even now considerably delayed.

Here’s the agency’s press release:

U.S. Citizenship and Immigration Services (USCIS) will begin implementing the June 28 Updated Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Deportable Aliens Policy Memorandum (PM) (PDF, 140 KB) on Oct. 1, 2018. USCIS will take an incremental approach to implement this memo.

An NTA is a document that instructs an individual to appear before an immigration judge. This is the first step in starting removal proceedings. Starting Oct. 1, 2018, USCIS may issue NTAs on denied status-impacting applications, including but not limited to, Form I-485, Application to Register Permanent Residence or Adjust Status, and Form I-539, Application to Extend/Change Nonimmigrant Status.

USCIS will send denial letters for status-impacting applications that ensures benefit seekers are provided adequate notice when an application for a benefit is denied. If applicants are no longer in a period of authorized stay, and do not depart the United States, USCIS may issue an NTA. USCIS will provide details on how applicants can review information regarding their period of authorized stay, check travel compliance, or validate departure from the United States.

The June 2018 NTA Policy Memo will not be implemented with respect to employment-based petitions and humanitarian applications and petitions at this time. Existing guidance for these case types will remain in effect.

USCIS will continue to prioritize cases of individuals with criminal records, fraud, or national security concerns. There has been no change to the current processes for issuing NTAs on these case types, and USCIS will continue to use its discretion in issuing NTAs for these cases.

USCIS is holding a public teleconference on Thursday, Sept. 27 from 2 – 3 p.m. Eastern to provide an overview of the PM and respond to pre-submitted questions. The teleconference will conclude with a question and answer session, as time permits. Additional information is available on the Upcoming National Engagements page.

USCIS will provide updates and information on the implementation of this PM on the new Notice to Appear Policy Memorandum page.

 

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Posted in General, Scott Railton |

USCIS Processing Times Are Getting Longer

Tuesday, September 25th, 2018 by W. Scott Railton

Longer waits, longer applications, and higher fees are the unfortunate reality for persons and businesses seeking immigration benefits with U.S. Citizenship and Immigration Services.  Here in Washington State, the USCIS Field Office in Seattle says it is taking 15 to 16.5 months to adjudicte a naturalization application.  The application itself costs $725, has 18 pages of instructions, and 20 pages of application to complete.  USCIS Field Offices appear to be swamped with additional vetting responsibilities, with no additional funding, despite the high application costs.

Similarly, the Service Centers have long waits for many important benefits.  Work authorization documents are taking 4.5 to 6.5 months to issue out of the National Benefits Center.  It used to be that the agency was required to issue a work authorization document within 90 days by regulation, but since that regulation was stricken, wait times have increased. This can be really hard on adjustment application couples, who need their significant other to be earning income to pay the bills.

H-1B applications have really slowed down too, now taking 5.5 to 7.5 months, according to the California Service Center.  We’ve heard of longer adjudications. The agency has noted the issue as well, and has suspended much of its premium processing program in order to try to get a handle on things.  It seems likely that the increase in Requests for Evidence and Denials has added to the agency’s workload.  H-1B applications include thousands of dollars in filing fees, but that doesn’t seem to be relevant.

Last week I participated in a teleconference with Congressional staffers and discussed the issue of delays.  It is a universal concern in immigration law right now, and hopefully something can be done. As part of that call, I put together the following list of published adjudication timeframes:

Timeframes for initial adjudications:

Local Field Offices:

I-485s

(Seattle):             10 to 19.5 months

(Yakima)              9.5 to 21.5 months

(Spokane)           9.5 to 21.5 months

Application fee:                $1225

Form length:                      18 pages; 42 pages of instructions, not including parole and work authorization applications

N-400s

(Seattle):                              15 to 16.5 months

(Yakima)                              3.5 to 5.5 months

(Spokane)                           11.5 to 18 months

Application Fee:               $725

Form length:                      20 pages; 18 pages of instructions.

 

National Benefits Center:

I-765                      4.5 to 6.5 months for adjustments;   5 to 7 months at NBC for all others

I-131                      4.5 to 6.5 months at NBC

 

California Service Center (I-129s)

H-1B:                     5.5 to 7.5 months

Ls:                           4 to 6 months

Rs:                          4 to 7 months

 

Nebraska Service Center (I-140s)

Extraordinary ability (E11)                                         5 Months to 7 Months

Outstanding professor or researcher (E12)                 5 Months to 7 Months

Multinational executive or manager (E13)                  9.5 Months to 12 Months

Advanced degree or exceptional ability (E21)           5 Months to 7 Months

Skilled worker or professional (E31; E32)                  5 Months to 7 Months

Unskilled worker (EW3)                                             7 Months to 9.5 Months

Advanced degree/ (NIW)                                           5 Months to 7 Months

Schedule A Nurses                                                     8 Months to 10 Months

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