Immigration Risks of Legalized Marijuana

Given the partial legalization of the use and possession of marijuana in several states, it may be helpful nevertheless to warn noncitizen employees and students of the serious immigration consequences which they still face for the use and/or possession of marijuana.

The Immigrant Legal Resource Center provides a practice advisory on the immigration risks of legalized marijuana. The very best strategy is to educate noncitizens ahead of time. The message is simple: Immigration law treats any marijuana-related activity as a crime, with harsh penalties, even if it is permitted under state law.

Changes to H-1B Lottery Process

In the Fall, Department of Homeland Security (DHS) proposed a Merit-Based Rule for More Effective and Efficient H-1B Visa Program, which would require petitioners seeking to file H-1B petitions subject to the regular cap, including those eligible for the advanced degree exemption, to first electronically register with USCIS during a designated registration period. The proposed rule would also reverse the order by which USCIS selects H-1B petitions under the H-1B cap and the advanced degree exemption, changing the process so that the 65,000 "Regular cap" lottery is run first, followed by the 20,000 "Master's cap" lottery.

DHS posted on January 30, 2019 for public inspection, a final rule amending regulations governing H-1B cap-subject petitions, including those that may be eligible for the advanced degree exemption.

  • The final rule reverses the order by which U.S. Citizenship and Immigration Services (USCIS) selects H-1B petitions under the H-1B regular cap and the advanced degree exemption. The rule will go into effect on April 1, 2019 for the fiscal year (FY) 2020 cap season.

  • The rule also introduces the electronic registration requirement for petitioners seeking to file H-1B cap-subject petitions. However, USCIS will be suspending the electronic registration requirement for this cap season to complete user testing and ensure the system and process are fully functional.

  • Once implemented, the electronic registration requirement will require petitioners seeking to file H-1B cap petitions, including those that may be eligible for the advanced degree exemption, to first electronically register with USCIS during a designated registration period. Only those whose registrations are selected will be eligible to file an H-1B cap-subject petition.

USCIS will begin accepting H-1B cap petitions for FY 2020 on April 1, 2019. Please feel free to contact the attorneys of Iandoli, Desai & Cronin with your questions this year’s H-1B lottery process.

REMINDER: H-1B Planning Season is Upon Us

H-1B sponsorship is offered by U. S. employers for Foreign Nationals working for those employers in Specialty Occupations which require at least a bachelor's degree (or the equivalent in education and experience).  Approved H-1B employees can work for the sponsoring employer for 3 years in the first instance.

All cap-subject H-1B petitions (those limited by the annual national quota) must be filed with the Immigration Service during the first five business days in April 2019. 

Now is the best time for employers to decide whether they will file H-1B petitions in April and for whom.  It is good to both start the internal discussions and to initiate the process early because normal preparation of the H-1B Petition can take 30 to 45 days during this busy season.

Please feel free to contact the attorneys of Iandoli, Desai & Cronin now with your questions and concerns.

The Federal Government Shutdown: Implications for Immigration

Iandoli Desai & Cronin, P.C. are actively following the ongoing government shutdown and its impact on various areas of U.S. immigration law. Generally, if the government shuts for budgetary reasons, all but "essential" personnel are furloughed and are not allowed to work.

When it comes to immigration, agencies that would be impacted by a government shutdown include the Department of Homeland Security and its immigration-related components, including:

  • U.S. Citizenship and Immigration Services (USCIS);

  • U.S. Customs and Border Protection (CBP); and

  • U.S. Immigration and Customs Enforcement (ICE).

A shutdown also affects immigration-related services normally provided by other federal agencies, including:

  • U.S. Department of Justice (EOIR);

  • U.S. Department of State (DOS); and

  • U.S. Department of Labor (DOL).

U.S. CITIZENSHIP AND IMMIGRATION SERVICES (USCIS)

The current lapse in annual appropriated funding for the U.S. government does not affect USCIS's fee-funded activities.

USCIS offices will remain open, and all individuals should attend interviews and appointments as scheduled.

USCIS will continue to accept petitions and applications for benefit requests, except as noted below. Some USCIS programs, however, will either expire or suspend operations, or otherwise affected, until they receive appropriated funds or are reauthorized by Congress. These include:

EB-5 Immigrant Investor Regional Center Program (not the EB-5 Program): Regional centers are a public or private economic unit in the U.S. that promotes economic growth. USCIS designates regional centers for participation in the Immigrant Investor Program. The EB-5 Program will continue to operate.

E-Verify: This free internet-based system allows businesses to determine the eligibility of their employees to work in the U.S.

Conrad 30 Waiver Program for J-1 Medical Doctors: This program allows J-1 doctors to apply for a waiver of the two-year residence requirement after completing the J-1 exchange visitor program. The expiration only affects the date by which the J-1 doctor must have entered the U.S.; it is not a shutdown of the Conrad 30 program entirely.

Non-Minister Religious Workers: This special immigrant category allows non-ministers in religious vocations and occupations to immigrate or adjust to permanent resident status in the U.S. to perform religious work in a full-time, compensated position.

U.S. CUSTOMS AND BORDER PROTECTION (CBP)

Inspection and law enforcement personnel are considered "essential." Ports of entry will be open; however, processing of applications filed at the border may be impacted.

U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT (ICE)

ICE enforcement and removal operations will continue, and ICE attorneys will typically focus on the detained docket during a shutdown. The ICE Student and Exchange Visitor Program (SEVP) offices are unaffected, since SEVP is funded by fees.

U.S. DEPARTMENT OF JUSTICE (EOIR)

Detained cases are being heard. Non-detained cases scheduled during the "shut down" period will be rescheduled. The acting EOIR Court Administrator in Boston, MA has been furloughed so there likely won't be any action on asylum clock letters.

U.S. DEPARTMENT OF LABOR (DOL)

The DOL will also not be impacted by a government shutdown. On September 28, 2018, President Trump signed a minibus appropriations bill funding DOL through the end of September 30, 2019.

H-1B Premium Processing is back

USCIS announced on October 3, 2017 it will resume accepting Premium Processing requests for all H-1B petitions. Premium Processing is an optional service available for certain non-immigrant and immigrant visa categories that guarantees initial adjudication of a petition within 15 calendar days for an additional $1,225 fee. In April 2017, USCIS suspended Premium Processing for all H-1B petitions, citing major delays in regular processing times and the agency's desire to catch up on backlogs of H-1B petitions. The suspension has had a significant impact on employers seeking change of status requests for foreign national employees and for foreign nationals needing approval notices in order to apply for new visas when returning to the U.S. after temporary travel abroad.

As the impact of the suspension acutely impacted hospitals, colleges, universities, and affiliated non-profits, USCIS resumed Premium Processing for medical doctors under the Conrad 30 Waiver Program in late June and for cap-exempt institutions such as colleges, universities, affiliated non-profits, and non-profit research organizations in late July. On September 18, 2017 USCIS announced it would accept Premium Processing upgrade requests for H-1B petitions filed the first week of April for the FY2018 cap. According to the agency's press release dated October 3, 2017, "Premium processing is now available for all types of H-1B petitions," so now all employers may take advantage of Premium Processing if needed. If you have a question about Premium Processing requests or upgrades, please contact the attorneys at Iandoli Desai & Cronin at info@iandoli.com.

USCIS provides details on its new policy to interview employment-based green card applicants

As we described in a prior update, USCIS announced it will begin to phase in interviews for employed-based adjustment of status ("green card") applicants effective October 1, 2017.  The USCIS press release left a lot of questions unanswered, including whether every applicant for a green card based on an employer's petition would be interviewed, whether this would apply for only applicants who file after October 1, 2017, and how USCIS would be managing these interviews in a timely manner based on current staffing levels.  Last week the Office of the Citizenship and Immigration Services Ombudsman hosted a stakeholder call and answered some questions about these new interview requirements.

The CIS Ombudsman's office clarified that cases filed before March 6, 2017 will be adjudicated by USCIS Service Centers under prior procedures, so while it is possible for those cases to receive interviews, applicants who filed before that date only have a 5-10% chance of being called for an interview, as was customary before the new interview policy took effect. For applicants who filed on or after March 6, 2017, USCIS notes it is taking an "incremental approach" to maximize the number of visas allocated this fiscal year. USCIS Field Operations Directorate Dan Renaud did not state each and every case would receive an interview, nor are any categorically exempt, as he noted both principals and derivatives will be required to appear, though USCIS will consider waiving interviews in cases where applicants are under age 14.

In the stakeholder call, the CIS Ombudsman's office described how it is undertaking training for field officers on Supplement J and how to coordinate with Department of State to manage visa numbers. The agency has instructed and trained officers not to adjudicate I-140 petitions but will assess validity of supporting documentation to ensure it was accurate, bona fide and credible. Applicants should expect to answer questions regarding admissibility and eligibility for a green card, including details about where they work, what they do, and educational background to ensure it matches information previously disclosed to USCIS. Dependents should expect questions regarding their relationship to the principal and should plan to bring evidence of the bona fide nature of their relationship to the interview, as USCIS states the purpose of these interviews is to ensure integrity of the immigration system.

Finally, the CIS Ombudsman's office touched on processing times, noting it expects employment-based adjudications to comprise approximately 17% of Field Operations workloads. In the short-term, USCIS stated it expects processing times will be affected with the greatest impact felt among family-based petitions and applications for naturalization, particularly for cases filed in the top ten busiest field offices: Atlanta, Chicago, Dallas, Houston, Los Angeles, New York, Newark, San Jose, San Francisco, and Seattle. 

New Form I-9 is now in effect

As of September 18, 2017, all employers must ensure they are using the most up-to-date version of Form I-9, Employment Eligibility Verification to verify the identity and work eligibility of new employees, or for reverification of expiring employment authorization of current employees (if applicable).  The updated version of the form notes a revision date of 07/17/17 in the lower left corner of the form. Failure to use the proper Form I-9 opens the employer up to all applicable penalties in the event of an audit by the U.S. Immigration and Customs Enforcement ("ICE"), a division of the U.S. Department of Homeland Security.

Many employers are unaware of the changes to the Form I-9 and the risk for penalties for non-compliance. If you have questions about I-9 compliance or about conducting an internal audit in order to ensure your company engages in best practices for I-9, please contact the attorneys at Iandoli Desai & Cronin at info@iandoli.com for more details. 

Termination of DACA

On September 5, 2017, Attorney General Jefferson Beauregard Sessions III announced the President's plan to terminate the Deferred Action for Childhood Arrivals ("DACA") program. Originally introduced in 2012, DACA provided relief from deportation and the ability to apply for work authorization for as many as 800,000 individuals who arrived in the U.S. before 2007, were children (under age 16) at the time they arrived, were 30 years or younger when the policy was enacted in 2012, and did not have criminal records. The President's order terminating DACA stated that, effective immediately, USCIS would no longer accept initial requests for DACA and would no longer approve advance parole (travel authorization) requests associated with DACA. The President directed USCIS to only accept DACA renewal requests and EAD requests until October 5, 2017, and only for individuals whose DACA benefits expire on or before March 5, 2018.

Accordingly, DACA beneficiaries with upcoming expirations have been scrambling to file their extension requests, a process that has been particularly onerous for DACA recipients in Florida and Texas impacted by Hurricanes Harvey and Irma. Although the Dream Act legislation has been introduced to protect these DACA recipients on a more permanent basis, to date Congress has not brought these bills up for debate or vote. We will continue to bring updates on DACA and any Dream Act legislation in our newsletters.

Trump Travel Ban 3.0

On the eve of the expiration of the second version of the Trump Administration's travel ban, the White House introduced an updated travel ban on September 24, 2017, which added certain foreign nationals from Chad, North Korea, and Venezuela to the list of countries singled out by the Administration as a threat to the security and interests of the U.S.  The country impacts of the latest travel ban are:

  • Chad - suspends entry of immigrants and temporary visitors on B-1/B-2 visas;
  • Iran - suspends entry of immigrants and all non-immigrants, except F, M, and J visas, though they will be subject to enhanced screening;
  • Libya - suspends entry of all immigrants and temporary visitors on B-1/B-2 visas;
  • North Korea - suspends entry of all immigrants and nonimmigrants;
  • Somalia - suspends the entry of immigrants, and requires enhanced screening of all non-immigrants;
  • Syria - suspends the entry of all immigrants and non-immigrants;
  • Venezuela - suspends the entry of certain government officials and their family members on B-1/B-2 visas; and.
  • Yemen - suspends the entry of immigrants and temporary visitors on B-1/B-2 visas.

Travel restrictions for nationals of Sudan (who were impacted by the two earlier versions of the travel ban) have been lifted, and nationals of Iraq will not be subject to an outright ban but will be subject to additional screening measures.

The effective date of Travel Ban 3.0 is varied. The new restrictions are effective immediately for nationals of Iran, Libya, Somalia, Syria and Yemen who do not have a bona-fide relationship with a U.S. person or entity. On October 18, 2017, the new restrictions will become effective for all persons subject to the proclamation, including the nationals of the aforementioned countries who do have bona-fide relationships with U.S. persons or entities, as well as the nationals of Chad, North Korea, and Venezuela as described above. There are also a number of notable exceptions to this latest travel ban, including:

  • Lawful permanent residents;
  • Foreign nationals admitted to the U.S. or paroled into the U.S. on or after the applicable effective dates, or in possession of a document other than a visa (such as a boarding foil, transportation letter, or advance parole document) valid on the applicable date or issued thereafter;
  • Dual nationals traveling on a passport issued by a non-designated country;
  • Foreign nationals traveling on a variety of diplomatic visas; and,
  • Foreign nationals granted asylum in the U.S., refugees admitted to the U.S., or individuals who have been granted withholding of removal, advance parole, or protection under the Convention Against Torture.

Waivers may be available if foreign nationals can demonstrate to consular officers or to Customs and Border Protection officials that denying entry would cause the foreign national undue hardship, entry would not pose a threat to national security or public safety and entry would be in the national interest.  The exact form of application for such a waiver is still to be determined. We will continue to bring you updates on this continuing travel ban saga, including federal litigation seeking to overturn this latest proclamation.

New cooperation between USCIS and the SSA: Form I-765 update

Earlier this week, USCIS announced the agency was engaging in a new information-sharing partnership with the Social Security Administration ("SSA"). As a result of this collaboration, foreign nationals in certain non-immigrant statuses may request issuance of a social security number ("SSN") as part of their applications for work authorization via Form I-765.  Previously, applicants needed to submit documentation and their Form I-765 for USCIS to produce an Employment Authorization Document ("EAD"), and then they would separately have to provide documentation in-person at their local SSA office to obtain an SSN.

The new version of the Form I-765, bearing an edition date of 07/17/17, includes the question "Do you want the SSA to issue you a Social Security Card?" and an additional box to check for consent to disclosure of information to the SSA for assigning an SSN and issuing a card.  Between now and December 3, 2017, USCIS is accepting this new version of the form and will also continue to accept the prior version of the form with the edition date 01/17/17.  On December 4, 2017, USCIS will only accept the most up-to-date version.