Posts Tagged ‘Scott Railton’

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Health Care Worker Certificate Requirement Presents Timing Issues

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

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

The occupations requiring certificates include:

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

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

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

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

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

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

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

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

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Posted in General, Scott Railton |

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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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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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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Premium Processing Price Hike, Suspension

Thursday, September 6th, 2018 by W. Scott Railton

USCIS will raise the price for Premium Processing on October 1st, from $1225 to the odd number of $1410. Premium processing allows petitioners for certain types of applications to be guaranteed initial adjudication within 15 days, by paying the additional fee. Employers often choose to pay this fee, since the agency often takes months upon months to adjudicate applications through regular processing. The process works a lot of the time, though sometimes attorneys feel that the Premium Processing Unit may adjudicate the petition differently than regular processing. Long-time immigration attorneys probably have seen a few Day 15 Requests for Additional Evidence, which seem issued just to comply with the 15 day adjudication window.

Many Petitioners won’t be able to pay this new, higher fee, because a few days earlier USCIS announced that it is extending and expanding the suspension of premium processing for most types of petitions, in order to get a better handle on the non-premium processing workload. This is an agency which is struggling to manage increasing vetting obligations while delivering adjudications in reasonable timeframes. Employers are best advised to be aware of these bureaucratic challenges, as they can have a real impact on noncitizen worker availability.

Here are the two press releases from USCIS announcing these changes to the Premium Processing service:

USCIS Adjusting Premium Processing Fee (8/31/18)

Fee Increase Consistent with the Consumer Price Index

WASHINGTON – U.S. Citizenship and Immigration Services (USCIS) announced today it is adjusting the premium processing fee for Form I-129, Petition for a Nonimmigrant Worker and Form I-140, Immigrant Petition for Alien Workers beginning on Oct. 1, 2018 to more effectively adjudicate petitions and maintain effective service to petitioners.

The premium processing fee will increase to $1,410, a 14.92 percent increase (after rounding) from the current fee of $1,225. This increase, which is done in accordance with the Immigration and Nationality Act, represents the percentage change in inflation since the fee was last increased in 2010 based on the Consumer Price Index for all Urban Consumers.

“Because premium processing fees have not been adjusted since 2010, our ability to improve the adjudications and service processes for all petitioners has been hindered as we’ve experienced significantly higher demand for immigration benefits. Ultimately, adjusting the premium processing fee will allow us to continue making necessary investments in staff and technology to administer various immigration benefit requests more effectively and efficiently,” said Chief Financial Officer Joseph Moore. “USCIS will continue adjudicating all petitions on a case-by-case basis to determine if they meet all standards required under applicable law, policies, and regulations.”

Premium processing is an optional service that is currently authorized for certain petitioners filing Forms I-129 or I-140. The system allows petitioners to request 15-day processing of certain employment-based immigration benefit requests if they pay an extra fee. The premium processing fee is paid in addition to the base filing fee and any other applicable fees, which cannot be waived.

USCIS intends to hire additional staff and make investments in information technology systems with the premium funds that are generated by the fee increase. This will allow the agency to provide premium processing service with less disruption while improving adjudications and operational processes.

For more information on USCIS and its programs, please visit uscis.gov or follow us on Twitter (@uscis), Instagram (/uscis), YouTube (/uscis), and Facebook (/uscis).

USCIS Extends and Expands Suspension of Premium Processing for H-1B Petitions to Reduce Delays (8/28/18)

USCIS is extending the previously announced temporary suspension of premium processing for cap-subject H-1B petitions and, beginning Sept. 11, 2018, will be expanding this temporary suspension to include certain additional H-1B petitions. We expect these suspensions will last until Feb. 19, 2019, and will notify the public via uscis.gov before resuming premium processing for these petitions.

While H-1B premium processing is suspended, we will reject any Form I-907, Request for Premium Processing Service filed with an affected Form I-129, Petition for a Nonimmigrant Worker. If a petitioner submits one combined check for the Form I-907 and Form I‑129 H-1B fees, both forms will be rejected.
Who Is Affected

The expanded temporary suspension applies to all H-1B petitions filed at the Vermont and California Service Centers (excluding cap-exempt filings as noted below).

The previously announced suspension of premium processing for fiscal year 2019 cap-subject H-1B petitions was originally slated to last until Sept. 10, 2018, but that suspension is being extended through an estimated date of Feb. 19, 2019.

We will continue premium processing of Form I-129 H-1B petitions that are not currently suspended if the petitioner properly filed an associated Form I-907 before Sept. 11, 2018. Therefore, we will refund the premium processing fee if:

The petitioner filed the Form I-907 for an H-1B petition before Sept. 11, 2018; and
We did not take adjudicative action on the case within the 15-calendar-day processing period.

Premium Processing Remains Available for Certain H-1B Petitions

The suspension does not apply to:

Cap-exempt petitions that are filed exclusively at the California Service Center because the employer is cap exempt or because the beneficiary will be employed at a qualifying cap exempt institution, entity, or organization; or
Those petitions filed exclusively at the Nebraska Service Center by an employer requesting a “Continuation of previously approved employment without change with the same employer” (Box b. on Part 2, Question 2, Page 2 of the current Form I-129) with a concurrent request to:
Notify the office in Part 4 so each beneficiary can obtain a visa or be admitted. (Box on Part 2, Question 4, Page 2 of the current Form I-129); or
Extend the stay of each beneficiary because the beneficiary now holds this status. (Box c. on Part 2, Question 4, Page 2 of the current Form I-129).

This temporary suspension of premium processing does not apply to any other nonimmigrant classifications filed on Form I-129.
Requesting Expedited Processing

While premium processing is suspended, petitioners may submit a request to expedite an H-1B petition if they meet the criteria on the Expedite Criteria webpage. The petitioner must demonstrate that they meet at least one of the expedite criteria, and petitioners should be prepared to submit documentary evidence to support their expedite request.

We review all expedite requests on a case-by-case basis and requests are granted at the discretion of the office leadership.
Why We Are Temporarily Suspending Premium Processing for H-1B Petitions

This temporary suspension will help us to reduce overall H-1B processing times by allowing us to:

Process long-pending petitions, which we have been unable to process due to the high volume of incoming petitions and premium processing requests over the past few months;
Be responsive to petitions with time-sensitive start dates; and
Prioritize adjudication of H-1B extension of status cases that are nearing the 240-day mark.

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USCIS Narrows Meaning of a Specialty Occupation

Wednesday, May 23rd, 2018 by W. Scott Railton

USCIS is challenging employers on whether their positions fit the definition of a “specialty occupation.” It has become for the agency to issue “Requests for Additional Evidence” (RFEs) of employers, providing up to three months to respond. The Requests are overly broad, and a disguised tax on the company for filing the petition in the first place. It has been said that the agency anticipates denying as many as 25% of the applications submitted.  Applications were down this year, probably due to these bureaucratic challenges.  Many fear where this is going, with the best and the brightest opting for jobs elsewhere.

The requests can be several pages long.  In doing so, the agency is piling up the costs for businesses. This fits in with the Administration’s overall goal of making immigration harder. Or, as the Executive Order goes, “Buy American, Hire American.”

We are seeing businesses disrupted by this red tape, as new petitions and renewals for key personnel are challenged. The occupations most commonly challenged are managers and information technology professionals. Often, these professionals have many years of experience, and have seen past approvals from the agency.

In my experience, employers don’t typically want to sponsor H-1B professionals unless they have great cause to, due to the underlying costs. Employers don’t typically seek an attorney’s assistance to hire a professional, but that is standard for an H-1B.  There are just too many regulations and procedures to navigate. However, the U.S. has record unemployment and a shortage of qualified STEM professionals right now. So, the H-1B program has the potential to help businesses.

Here is the Request for Evidence template that many petitioners are receiving:

Specialty Occupation

A specialty occupation is one that requires the theoretical and practical application of a body of highly specialized knowledge and which requires the attainment of a bachelor’s or higher degree in a specific specialty, or its equivalent, as a minimum, for entry into the occupation in the United States.
USCIS does not use the job title, by itself, when determining whether a particular position qualifies as a specialty occupation. The specific duties of the proffered position, combined with the nature of the petitioning entity’s business operations, are factors that USCIS considers.

To qualify as a specialty occupation, the position must meet at least one of the following criteria:

1. Bachelor’s or higher degree or its equivalent is normally the minimum requirement for entry into the particular position;
2. The degree requirement is common to the industry in parallel positions among similar organizations or, in the alternative, an employer may show that its particular position is so complex or unique that it can be performed only by an individual with a degree;
3. The employer normally requires a degree or its equivalent for the position; or
4. The nature of the specific duties is so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a bachelor’s or higher degree.

USCIS interprets the term degree in the above criteria to mean not just any degree, but a degree in a specific field of study that is directly related to the proffered position.

To show that the position offered to the beneficiary qualifies as a specialty occupation, you submitted:

• A certified Labor Condition Application (LCA)
• Other evidence described, relating to occupation title

The Occupational Outlook Handbook (“OOH”) (a publication of the U.S. Department of Labor) indicates that a [occupation title] is an occupation that does not require a bachelor’s level of education or higher or its equivalent in a specific specialty as a normal, minimum for entry into the occupation.

You have not shown that the position offered to the beneficiary is a specialty occupation. You may submit additional evidence to satisfy this requirement.

Evidence may include, but is not limited to:
• A detailed statement to:
o explain the beneficiary’s proposed duties and responsibilities;
o indicate the percentage of time devoted to each duty; and
o state the educational requirements for these duties.
• A copy of a line-and-block organizational chart showing your hierarchy and staffing levels. The organizational chart should:
o list all divisions in the organization;
o identify the proffered position in the chart;
o show the names and job titles for those persons, if any, whose work will come under the control of the proposed position; and
o indicate who will direct the beneficiary, by name and job title.
• Job postings or advertisements showing a degree requirement is common to the industry in parallel positions among similar organizations.
• Letters from an industry-related professional association indicating that they have made a bachelor’s degree or higher in a specific specialty a requirement for entry into the field.
• Copies of letter or affidavits from firms or individuals in the industry that attest that similar organizations routinely employ and recruit only degreed individuals in a specific specialty. Any letter or affidavit should be supported by the following:
o The writer’s qualifications as an expert;
o How the conclusions were reached; and
o The basis for the conclusions supported by copies or citations of any materials used.
• Copies of your present and past job postings or announcements for the proffered position showing that you require applicants to have a minimum of a bachelor’s or higher degree in a specific specialty or its equivalent.
• Documentary evidence of your past employment practices for the position, including:
o Copies of employment or pay records; and
o Copies of degrees or transcripts to verify the level of education of each individual and the field of study for which the degree was earned.
• An explanation of what differentiates your product and services from other employers in the same industry and why a bachelor’s level of education in a specific field of study is a prerequisite for entry into the proffered position. Be specific and provide documentation to support any explanation of complexity.
• Copies of documentary examples of work product created by current or prior employees in a similar position, such as:
o Reports;
o Presentations;
o Evaluation;
o Designs; or
o Blueprints.
• Additional information about your organization, such as:
o Press releases;
o Business plans;

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Scott Railton Testifies Before Canadian Senate Committee on Border

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

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

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

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

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

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

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

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USCIS Receives 190k H-1B Applications for 85k Spots

Thursday, April 12th, 2018 by W. Scott Railton

Demand continues to outpace supply for H-1B petitions. For this year’s cap lottery, U.S. Citizenship and Immigration Services received 190,098 applications for 85,000 spots. This is actually less applications than in some recent years. Of course, this is the full allocation of H-1B slots for the 2019 Fiscal Year, received in the first five days.

For those reading who do not know, H-1Bs are the United States’ professional temporary visa for high skilled workers. These include certain information technology workers, high skilled health care professionals, engineers, accountants, and the like. While there are other temporary and permanent work authorization categories, the H-1B is the typical work authorization category that foreign students might pursue upon completion of studies in the United States. Over half of the students in STEM graduate programs in the U.S. are foreign students.

We speak to many employers who want to hire these students, but run into issues with the H-1B cap. Increasingly, it seems that students who don’t get picked either look for other employers or go to other countries. In some cases, they can wait another year, and apply again, but eventually time runs out. There are other options, like continuing education, or finding employment with certain cap-exempt employers. Fundamentally, though, the current system has many flaws, based on our observations from working with employers and prospective employees.

Good luck to all who applied! Here is the excerpted announcement from USCIS:

On April 11, USCIS used a computer-generated random selection process to select enough H-1B petitions to meet the congressionally-mandated cap and the U.S. advanced degree exemption, known as the master’s cap, for fiscal year (FY) 2019.

USCIS received 190,098 H-1B petitions during the filing period, which began April 2, including petitions filed for the advanced degree exemption. USCIS announced on April 6, that it had received enough H-1B petitions to reach the statutory cap of 65,000 and the master’s cap of 20,000. USCIS will reject and return all unselected petitions with their filing fees unless the petition is a prohibited multiple filing.

USCIS conducted the selection process for the master’s cap first. All unselected master’s cap petitions then became part of the random selection process for the 65,000 cap.

USCIS will continue to accept and process petitions that are otherwise exempt from the cap. Petitions filed for current H-1B workers who have been counted previously against the cap, and who still retain their cap number, will also not be counted towards the FY 2019 H-1B cap.

USCIS will continue to accept and process petitions filed to:
• Extend the amount of time a current H-1B worker may remain in the United States;
• Change the terms of employment for current H-1B workers;
• Allow current H-1B workers to change employers; and
• Allow current H-1B workers to work concurrently in a second H-1B position.

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