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The TN Status and the New US-Mexico-Canada Agreement

Monday, October 1st, 2018 by W. Scott Railton

The United States, Canada, and Mexico have announced that they have reached an agreement to supplant the longstanding North American Free Trade Agreement (NAFTA).  The new agreement will be entitled the U.S.-Mexico-Canada Agreement (USMCA).  For now, the TN professional status will remain largely unchanged.

The immigration provisions of the new Agreement are housed in Chapter 16, as was the case with NAFTA.  For side by comparison, click on the links in the last sentence.

The USMCA’s Chapter 16 adopts much of the old NAFTA language for “Business Visitors,” “Traders and Investors,” “Intra-Company Transfers,” and “Professionals.” “Professionals” is what we commonly refer to as the TN category, and the issue I will highlight here.

Here’s one new thing:  Article 1602, Paragraph 3, of the USMCA includes language not in the NAFTA, leaving the door open for future restrictions via regulation by any Party:

3. Nothing in this Agreement shall prevent a Party from applying measures to regulate the entry of natural persons of another Party into, or their temporary stay in, its territory, including those measures necessary to protect the integrity of, and to ensure the orderly movement of natural persons across, its borders, provided that those measures are not applied in a manner as to nullify or impair the benefits accruing to any Party under this Chapter.

Side by side, the lists of Professionals in Appendix 1602.D.1 of the USMCA and Appendix 160-3.D.1 of NAFTA are basically the same.  However, it is not a complete copy and paste:

  • The USMCA Appendix includes an additional Footonote 7 to the Medical Laboratory Technologist/Medical Technologist category, which states that “A businessperson in this cateogry must be seeking temporary entry to perform in a laboratory chemical, biological, hematological, immunologic, microscopic, or bacteriological tests and analyses for the prevention of disease.”
  • The USMCA Appendix also includes an additional Footnote 8 to the Biologist category, which states, “In accordance with the NAFTA 1994 Commission decision of October 7, 2003, the term “Biologist” included the profession Plant Pathologist.” This Footnote obviously reflects the 2003 adjustment to the list.
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The new Article 1606 covers a “Working Group,” which meets once per year to consider administration of the Chapter. The Working Group was already in existence with NAFTA, but the USMCA adds an additional review responsibility for the Group, concerning technologies:
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(e) Issues of common interest related to temporary entry of business persons, such as the use of technologies related to processing of applications, that can be further explored among the Parties in other fora.
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Many thought any agreement would include numeric restrictions for TNs.  Not present. In fact, the original restrictions on Mexico’s TNs are stricken from the Appendix 1603. The countries are expected to collect and share data on entries, as per the Article 1605 Provision of Information requirements.
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The Agreement also does not include a revision of the TN list. Experts seem to agree that the list of eligible occupations needs to be updated. Many new professions have come into existence over the last 25 years.  The Information Technology sector is full of new occupations, such as web developers, database administrators, architects, and software engineers.  Medical science and health care professions have similarly evolved–nurse practitioners are filling a vital role for hospitals, and sometimes are denied TNs for being more than a Registered Nurse. Nonetheless, any attempt at re-doing the occupation codes may have led to a more restrictive outcome, with less categories, numeric restrictions, and tighter qualifications. The U.S. has been limiting immigration in all other areas, and such would’ve reasonably be expected here.
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One question going forward is what do we call the TN now?  TN is short for Treaty NAFTA, but with the change of name to the trilateral treaty, perhaps the work authorization category may change in name too. The White House has been intent on doing away with NAFTA, and so perhaps the TN name might do the same way, in time.
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My impression is the negotiators had their reasons on each side to avoid a major rewrite on Chapter 16.  Other trade issues probably carried more weight, and fast advancing deadlines set by the White House may have ended up leaving this chapter for later. The U.S. Office of Trade Representative held hearings on the mobility issues, and so it is not like the issues were overlooked.
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My greatest concern for the next year is that the U.S. may continue to use regulation to alter the TN category further. The Administration has been very effective at limiting immigration through restrictive regulation and categorical interpretations. One possibility is that DHS may try to move TN adjudications away from the border and to USCIS Service Centers. They are already testing this idea with L adjudications, but the process only seems to slow things down for businesses.  I attended a meeting at the Blaine Peace Arch earlier this year concerning the L-1 Pilot Program where the USCIS Director speculated on the possibility of TN adjudications at the Service Centers. Also, as with all immigration applications, I expect the cost of TN applications to rise for employers, as the government paperwork becomes more demanding.
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This is very fresh news, and so other developments and interpretations may arise.  We will continue to follow this closely.
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Canada’s Cannabis Act and U.S. Inadmissibility

Friday, September 21st, 2018 by W. Scott Railton

Canada’s Cannabis Act, otherwise called Bill C-45, legalizes cannabis nationally on October 17th. The starting point for all U.S. border issues is the U.S. Immigration and Nationality Act. With that in mind, I’ve put together a list below of the key provisions of the INA concerning marijuana and inadmissibility.

I. Criminality Related Grounds

A. Personal:

a.) A past conviction related to cannabis [INA § 212(a)(2)(A)(II)];
b.) Admitting to committing a violation of any law or regulation of a foreign country related to controlled substances [INA § 212(a)(2)(A)(II)];
c.) Admitting to committing acts which constitute the essential elements of any law or regulation of a foreign country related to controlled substances [INA § 212(a)(2)(A)(II)];

Note: Cannabis on person/in car: this is a Customs violation, likely warranting a fine and further questions. Not typically referred for prosecution, though a violation of the Controlled Substance Act. Waiver usually required thereafter. Also, note, cannabis may also be involved in crimes involving moral turpitude, a separate basis of inadmissibility.

B. Illicit Trafficking (“Reason to Believe”: no conviction required)

d.) Where the U.S. Government knows or has “reason to believe” (no conviction required) is an illicit trafficker, or who is or has been a knowing aider, abettor, assister, conspirator or colluder with others who are in illicit trafficking [INA § 212(a)(2)(C)(i)];

e.) A spouse, son or daughter of an illicit trafficker, who has received financial or other benefit from the illicit trafficking in the past five years, and knew or reasonably should have known that the financial or other benefit was a product of such illicit activity. [INA § 212(a)(2)(C)(ii)];

II. Health related grounds (“Drug abuser/Drug Addict”; “Physical/Mental Disorder”)

f.) A determination that a noncitizen is a drug abuser or drug addict, in accordance with regulations prescribed by Health and Human Services [INA § 212(a)(1)(A)(iv)];

g.) A determination that a noncitizen has a physical or mental disorder and behavior/ history of behavior posing threat to property, safety or welfare of others [INA § 212(a)(1)(A)(iii)(I and II)]

• Panel physician – have to pay government certified physician for exam
• CDC Technical Instructions requires 1 year of remission

III. National Security- (Unlawful purpose)

h.) Seeking entry principally or incidentally for an unlawful activity [INA § 212(a)(3)(ii)];

IV. Misrepresentation/Fraud

i.) Fraud or willfully misrepresenting a material fact in pursuit of an immigration benefit [INA § 212(a)(6)(C)].

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Canadian Senate Committee Issues Report on Border and Legalization

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

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

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

Report of the committee

Tuesday, May 1, 2018

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

SIXTEENTH REPORT

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

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

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

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

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

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

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

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

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

Respectfully submitted,

GWEN BONIFACE

Chair

 

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

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

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

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

Quick Facts

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

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

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

Quotes

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

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

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

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National Interest Waiver Receives New Adjudication Test

Wednesday, December 28th, 2016 by W. Scott Railton

The Administrative Appeals Office issued a landmark decision today, overturning the old standard of adjudication for national interest waiver petitions, and replacing it with a legal test that on first blush seems more permissive.  The decision is Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016), which expressly vacates the longstanding Matter of New York State Department of Transportation, 22 I&N Dec. 215 (Acting Assoc. Comm’r 1998). The Department of Homeland Security has designated the decision as a precedent, to be followed by adjudicators.

As per the Dhanasar decision, USCIS may now grant a national interest waiver if the petitioner demonstrates: (1) that the foreign national’s proposed endeavor has both substantial merit and national importance; (2) that he or she is well positioned to advance the proposed endeavor; and (3) that, on balance, it would be beneficial to the United States to waive the requirement of a job offer and thus of a labor certification.

The Administrative Appeals Office clearly wanted to move away from requiring petitioners to establish geographic national benefit. The decision notes that the old standard restated requirements, creating more confusion with each restatement, for petitioners and adjudicators alike. I have to agree, and it is refreshing to see the Administrative Appeals Office take such a candid review of its own decision. Over the years, we’ve had to evaluate the likelihood of success for these cases based on adjudication trends, which have varied quite a bit over time.

The new standard presents its own evidentiary challenges.  How will the agency decide if work will be of “substantial merit” and “national importance”? In the Dhanasar case, the petitioner works in research and development of air and space propulsion systems, which should benefit national defense.  Further, Dhanasar will work at a University, where they will be able to disseminate their research, and rather easily meet the second prong concerning being well positioned to advance the proposed endeavor.  The AAO chose a case which is easy to approve on the facts, based on the revised tests. We’ll have to see how adjudicators apply these new standards in less obvious cases.

The clear statement of the new adjudication test is an improvement, as is the decreased emphasis on geographic impact. It is also an improvement to not require proofs that the national interest will be harmed by requiring a labor certification, and by explicitly requiring a comparison of the petitioner to other workers in the field. The decision notes that the new test will be more accommodating for self-employed individuals and entrepreneurs.

Still, I don’t think the gates have opened wide. The key adjudication standards- “both substantial merit and national importance,” “well-positioned,” and “beneficial to the U.S. to waive the requirement” – leave much to interpretation, case-by-case. No doubt, this is intentional on the AAO’s part, who seem to focus on not excluding certain worthy candidates, which would happen with  NYSDOT‘s flawed construction. The key beneficiaries of this decision may be the self-employed, and those in higher educated professions with traditionally localized focuses, such as certain physicians, engineers, architects, and the like.

 

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Highly Anticipated PERM Modernization Rule Withdrawn

Monday, December 19th, 2016 by W. Scott Railton

The Department of Labor reports that it has withdrawn its Notice of Proposed Rulemaking and Schedule A Request for Information from OMB/OIRA review.

The PERM rules are in great need of revision and modernization. The most common complaint that we hear, and which was articulated in stakeholder meetings, is that the required job postings in Sunday newspapers of general circulation is not reflective of current recruiting practices. Newspapers in major metropolitan areas charge thousands of dollars for two well-written Sunday postings.

The final PERM rules were published on December 27, 2004, and PERM program was launched on March 28, 2005. Since that time, any kinks in the system have been worked out through the dissemination of FAQ memos, as well as BALCA decisions. The memos and decisions frequently focus on sections of the ETA-9089 form, and the ways to properly fill out the form.

In the decade that has passed since the implementation of the PERM rules, the world of business and recruiting has changed. Modernization of the PERM process is sorely needed, for fairness, to speed up the processes, and to lower the costs.

We will have to wait and see how things will change with the incoming Trump Administration and the PERM system. The implementation of any new rule will have to go through the full OMB review and rule-making process.

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New Rules Affecting Work Eligibility and Portability for High Skilled Workers

Friday, November 18th, 2016 by W. Scott Railton

The Department of Homeland Security published its final rule today for modernizing the employment based immigration. The rule will take effect 60 days from today, which should be right before the change in the administrations. This rule is a big deal for employment immigration. It is also just plain big, weighing in at 94 pages in the Federal Register.

It institutes many changes. Broadly speaking, the rule affects cap-exempt determinations for H-1Bs, creates grace periods for certain situations, revokes the 90 day EAD rule, and creates a compelling circumstances EAD. The rule will probably lead to more self-petitions from professionals, typically under the national interest waiver category. It will take some time to sort through all of it, but the general impression is the rule will make improvements upon the employment based immigration system.

Unless….of course, the Trump Administration takes steps to revoke the rule. The Trump Administration and the key people involved with immigration have loudly been anti-immigration, whether legal or illegal. There is some chance therefore that steps may be taken to roll back this and other rules.

Here’s USCIS’s announcement on the rule, with more particulars:

USCIS Publishes Final Rule For Certain Employment-Based Immigrant and Nonimmigrant Visa Programs

WASHINGTON— USCIS has published a final rule to modernize and improve several aspects of certain employment-based nonimmigrant and immigrant visa programs. USCIS has also amended regulations to better enable U.S. employers to hire and retain certain foreign workers who are beneficiaries of approved employment-based immigrant visa petitions and are waiting to become lawful permanent residents. This rule goes into effect on Jan. 17, 2017.
Among other things, DHS is amending its regulations to:
• Clarify and improve longstanding DHS policies and practices implementing sections of the American Competitiveness in the Twenty-First Century Act and the American Competitiveness and Workforce Improvement Act related to certain foreign workers, which will enhance USCIS’ consistency in adjudication.

• Better enable U.S. employers to employ and retain high-skilled workers who are beneficiaries of approved employment-based immigrant visa petitions (Form I-140 petitions) while also providing stability and job flexibility to these workers. The rule increases the ability of these workers to further their careers by accepting promotions, changing positions with current employers, changing employers and pursuing other employment opportunities.

• Improve job portability for certain beneficiaries of approved Form I-140 petitions by maintaining a petition’s validity under certain circumstances despite an employer’s withdrawal of the approved petition or the termination of the employer’s business.

• Clarify and expand when individuals may keep their priority date when applying for adjustment of status to lawful permanent residence.

• Allow certain high-skilled individuals in the United States with E-3, H-1B, H-1B1, L-1 or O-1 nonimmigrant status, including any applicable grace period, to apply for employment authorization for a limited period if:
1. They are the principal beneficiaries of an approved Form I-140 petition,
2. An immigrant visa is not authorized for issuance for their priority date, and
3. They can demonstrate compelling circumstances exist that justify DHS issuing an employment authorization document in its discretion.
Such employment authorization may only be renewed in limited circumstances and only in one year increments.

• Clarify various policies and procedures related to the adjudication of H-1B petitions, including, among other things, providing H-1B status beyond the six year authorized period of admission, determining cap exemptions and counting workers under the H-1B cap, H-1B portability, licensure requirements and protections for whistleblowers.

• Establish two grace periods of up to 10 days for individuals in the E-1, E-2, E-3, L-1, and TN nonimmigrant classifications to provide a reasonable amount of time for these individuals to prepare to begin employment in the country and to depart the United States or take other actions to extend, change, or otherwise maintain lawful status.

• Establish a grace period of up to 60 consecutive days during each authorized validity period for certain high-skilled nonimmigrant workers when their employment ends before the end of their authorized validity period, so they may more readily pursue new employment and an extension of their nonimmigrant status.

• Automatically extend the employment authorization and validity of Employment Authorization Documents (EADs or Form I-766s) for certain individuals who apply on time to renew their EADs.

• Eliminate the regulatory provision that requires USCIS to adjudicate the Form I-765, Application for Employment Authorization, within 90 days of filing and that authorizes interim EADs in cases where such adjudications are not conducted within the 90-day timeframe.

For more information, visit the Working in the U.S. page or read the rule in the Federal Register. USCIS plans to host a national stakeholder engagement regarding this final rule. Visit this page to sign up for an email alert to receive the invitation from the USCIS Public Engagement Division.

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

– USCIS -

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Temporary Protected Status Extended for Nepal

Thursday, October 27th, 2016 by W. Scott Railton

Department of Homeland Security Secretary Jeh Johnson announced this week that Temporary Protected Status (TPS) will be extended for citizens of Nepal through June 24th, 2018. The law allows a person to hold TPS and a nonimmigrant status at the same time. Nepalese citizens in the U.S. may benefit by obtaining an unrestricted Employment Authorization Document via TPS, while also holding a nonimmigrant status. The 60 day re-registration period runs from October 26th, 2016 to December 27, 2016.

Temporary Protected Status was first granted to Nepal due the terrible earthquake which devastated the country in April 2015.  Nepal is a place near and dear to my heart, as I’ve trekked and traveled there extensively. I have friends who visited the Langtang region in the past couple weeks. The effects of the earthquake are immediately apparent there, still, as whole villages remain buried. Nepal is one of several places in the world which needs aid, and the extension of temporary protected status is well called for.

The full USCIS Press Release reads:

Temporary Protected Status Extended for Nepal
Release

Date: October 26, 2016

Secretary of Homeland Security Jeh Johnson has extended Temporary Protected Status (TPS) for eligible nationals of Nepal (and those without nationality who last habitually resided in Nepal) for an additional 18 months, effective Dec. 25, 2016, through June 24, 2018.

Current TPS Nepal beneficiaries who want to extend their TPS must re-register during the 60-day re-registration period that runs from October 26, 2016 through December 27, 2016. U.S. Citizenship and Immigration Services (USCIS) encourages beneficiaries to re-register as soon as possible once the 60-day re-registration period begins.
Employment Authorization:

The 18-month extension allows TPS re-registrants to apply for a new Employment Authorization Document (EAD). Those who re-register during the 60-day period and request a new EAD will receive one with an expiration date of June 24, 2018.

USCIS recognizes that some re-registrants may not receive their new EAD until after their current work permits expire. Therefore, we are automatically extending current TPS Nepal EADs with a Dec. 24, 2016, expiration date for six months. These existing EADs are now valid through June 24, 2017.
Re-registering for TPS:

To re-register, current TPS beneficiaries must submit:

-Form I-821, Application for Temporary Protected Status (re-registrants do not need to pay the Form I-821 application fee);
Form I-765, Application for Employment Authorization, regardless of whether they want an EAD;
The Form I-765 application fee (or a fee waiver request) only if they want an EAD. If the re-registrant does not want an EAD, no application fee is required; and
The biometric services fee (or a fee waiver request) if they are 14 years old or older.

Additional information about TPS, including guidance on eligibility, the application process and where to file, is available at uscis.gov. The Federal Register notice published today contains further details about this TPS extension for Nepal.

USCIS will reject the application of any applicant who fails to submit the required filing fee or a properly documented fee-waiver request. Applicants may request that USCIS waive any fees based on an inability to pay by filing Form I-912, Request for Fee Waiver, or by submitting a written request. Fee-waiver requests must be accompanied by supporting documentation.

All USCIS forms are available for free. Download forms or order them by mail through the USCIS website at uscis.gov/forms or by calling USCIS Forms Request Line toll-free at 1-800-870-3676.

Applicants can check their case status at My Case Status Online or by calling the USCIS National Customer Service Center at 1-800-375-5283 (TDD for the deaf and hard of hearing: 1-800-767-1833).

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

Last Reviewed/Updated: 10/26/2016

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The President’s Executive Actions for Employers and Employees

Tuesday, December 9th, 2014 by W. Scott Railton

Businesses and professionals have asked us how the President’s executive actions may impact them. The language and memorandums are very promising.  However, we will have to wait and see how things play out. Many of the particulars still have to make it through the Federal Register publication process, which includes agency drafting of rules and required public comment periods.

Things to know:

1. Resources

Probably the best introductory resource is the Department of Homeland Security’s dedicated page, which references a number of different memorandums and actions.  For the DHS memo which addresses changes for employers and high skilled workers, visit here. The White House’s website and dedicated webpage is also a good resource.  The American Immigration Council has published a comprehensive summary of the President’s actions.

2. The Law and Politics of the Executive Action

Seventeen states, led by the Texas Attorney General, filed a lawsuit last week to stop the President’s actions, based on claims that his actions are unconstitutional, as an overreach of his authority. Our take, in a nutshell, is the President’s actions are constitutional, due to the existing broad delegation of authority in the Immigration and Nationality Act.  If Congress wants to change things, it will need to pass a law.  Some judges may disagree, at least in part, and some of the President’s actions are edgier than others, and so we’ll wait and see.

The House of Representatives passed a bill last week, by a small majority, voting on partisan lines, which found the actions unconstitutional. It is unlikely the bill will go anywhere. Even if it passed the Senate, the President presumably would veto the bill.

3. Timing

It is going to take a while for the actions to take effect. In many cases, federal regulations and processes have to be drafted, and published in the Federal Register first for comment. For less-specific orders, such as where the President ordered agencies to consult to streamline immigration processing measures, some activity may be seen after the turn of the year. Of course, it’s possible the litigation may slow things down.

Some of the proposals to help high skilled workers have been in the making for a while, such as H-4 work authorization for spouses of persons with approved I-140s. That should be coming soon, and would likely be of interest to some.

In 2012, the Deferred Action for Childhood Action program was announced in June, and the agency began accepting applications two months later. It will be interesting to see how fast the affirmative application processes can be implemented here.

4. Specific measures Impacting Businesses

a. Perhaps the most noteworthy possible change related to business is the possibility of “preregistration” for those who have an approved I-140 but don’t have a current priority date. This has been mentioned in stakeholder briefings from the White House, but hasn’t explicitly made it into the press releases or other announcements. This would allow a process to apply for an employment authorization/travel document. It is possible this will be written into the regulations, but we’ll have to wait and see. It’s also possible the proposal needs to be further vetted before release, as the statute on adjustment of status is relatively clear. Such an action could impact many persons who are stuck in long waits, and could reflect the White House statements concerning relief to 400,000 workers.

b. Guidance is likely to be issued that will allow a more liberal view of portability for position same or similar position changes, when persons switch positions with after having an immigrant visa petition. This would provide more confidence to employers and beneficiaries in taking promotions and other natural career changes.

c. The President has asked the agencies involved in issuing visas to come up with a plan to coordinate between them to streamline the application process (e.g. single data entry, background checks). The expectation is measures will also speed up the process.

d. The agencies have been directed to take measures to favor entrepreneurs, such as greater use of the National Interest Waiver provisions for job-creators.

e. The PERM labor certification system is supposed to be reevaluated and amended. This sounds promising, but it could take a long time to have impact, due to federal regulation and internal system processes. It has been asked that the process include harmless error provisions, which would at least cover clerical errors. Ideally, we’ll see an expanded use of Schedule A. For instance, we have lobbied for use of Schedule A with regard to physicians practicing in underserved areas.

f. There may be a number of revisions to Optional Practical Training (OPT) for foreign students. The DHS Secretary has directed the agency to expand the list of STEM degree programs eligible for automatic OPT extensions of 29 months for certain employers (which would include Providence). That period may be lengthened too, though no alternative length of time has been said. There also may need to be closer nexus between degree and training than which has been required to date. There are also indications of labor market protections being implemented related to OPT usage.

These are just some of the highlights. There are other reforms which may come in relation to the use of parole, military enlistment, and other areas. Of course, the centerpiece of the proposal is the Deferred Action programs for parents of U.S. citizens and lawful permanent residents, and the expansion of the rules for the Deferred Action for Childhood Arrivals. Experts say these latter two proposals could create work authorization for roughly 5 million persons.

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Executive Action Plan for U.S. Immigration Reform

Friday, November 21st, 2014 by W. Scott Railton

After much deliberation, press, and controversy, President Obama announced tonight that he will take executive action to improve the United States’ immigration system. His speech, and various briefing materials, can be found at the White House’s website.  Specifics on the action plan, including border security measures and applications processes, can be found here at the Department of Homeland Security’s website.

Note:  many of the affirmative relief measures will take some time to implement, as the government (and principally Department of Homeland Security) has to create forms, systems and processes for individual applications.  Where the issuance of a regulation is required–which is only true in some instances–there will be lag time to implementation.

The plan is politically controversial.  The President has legal authority to implement broad measures—the question is just how broad that authority goes? As he said in his speech, most of his predecessors have exercised executive action in the context of immigration. The Immigration and Nationality Act delegates broad discretionary powers to the President.  Further, prosecutorial discretion is fundamental to the responsible implementation and enforcement of immigration laws, which falls to the Executive Branch. The limits of these powers may be tested. The Department of Justice issued a legal memorandum, dated November 19th, 2014 (yesterday), which concludes the President can (1) prioritize removals as an act of prosecutorial discretion, and (2) can propose deferred action for relatives of U.S. citizens and lawful permanent residents; but (3) cannot authorize deferred action for parents of DACA recipients, as the President proposes.

The President’s Executive Action is presented as having three critical elements: (1) cracking down on illegal immigration at the border, (2) deporting felons, not families, and (3) accountability – criminal background checks and taxes. Most notably, the action may allow as many as 4 million (or more) persons to apply to come out of the shadows and obtain work authorization, and become part of the tax system.

Our business clients are likely to see significant benefits from the Action Plan, as presented. The Action Plan has language favoring enhanced opportunities for foreign entrepreneurs. The Plan intends to strengthen and extend on-the-job training for STEM graduates from U.S. universities. Portable work authorization shall be made available for high skilled workers awaiting lawful permanent resident status, as well as for their spouses.

The Action Plan also includes measures to improve border security and promote public safety, by focusing on persons who are threats to society. The Action Plan also will seek to promote citizenship public awareness. It has language which provides relief to spouses and children of U.S. citizens seeking to enlist in the military. The Plan also expand the already existing Deferred Action for Childhood Arrivals program to cover additional DREAMers.

Reforms are much needed. In some cases, these measures don’t go far enough, such as where discretionary relief is limited to those with U.S. citizen relatives, or with the range of possible reforms that could help business. There is much good news here for many. I suspect in time many of these measures will be widely accepted, as has seemed to be the case with DACA after two years.

The need for Congress to act on immigration remains. I was on Capitol Hill last week meeting with Congressional offices to discuss immigration matters. My impression, based on the news and these meetings, is that a comprehensive immigration bill is unlikely in the near future. The Action Plan therefore may serve the interests of the people, until Congress can pass a bill, whenever that shall be.

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Work Authorization Coming for Certain H-4 Dependents of H-1Bs

Wednesday, May 7th, 2014 by W. Scott Railton

The Department of Homeland Security announced today that it is opening for comment rules that will ultimately allow certain H-4 dependents to apply for work authorization.

As proposed, eligible individuals would include H-4 dependent spouses of principal H-1B workers who:

a.) Are the beneficiaries of an approved Form I-140, Immigrant Petition for Alien Worker; or

b.) Have been granted an extension of their authorized period of stay in the United States under the American Competitiveness in the Twenty-first Century Act of 2000 (AC21) as amended by the 21st Century Department of Justice Appropriations Authorization Act. AC21 permits H-1B workers seeking lawful permanent residence to work and remain in the United States beyond the six-year limit.

This is a move in the right direction, albeit to a limited group.  If the DHS’s goal is to attract and retain highly skilled workers, there’s a strong argument for opening up work authorization for **all** H-4 dependents. In today’s economy, many couples will not move somewhere unless both can work.

The Government also announced a proposed rules update for E-3 Australian and H-1B1 workers. These are professionals similar to the H-1B workers.  Perhaps most notably, the agency now intends to allow persons in that status the 240 day grace period of work authorization which is permitted for other nonimmigrant work categories.  The Government also proposes to modify its rules on evidence for EB-1 Outstanding Professors and Researchers.

For the full DHS announcement, visit here:

http://www.dhs.gov/news/2014/05/06/dhs-announces-proposals-attract-and-retain-highly-skilled-immigrants

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