U.S. Border Protection Agency Warns: Lifetime Ban Possible for Cannabis Industry Links

Ahead of Canada’s new law legalizing restricted recreational use of cannabis (marijuana), U.S. Customs and Border Protection spokesperson Stephanie Malin stated:

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. . .

The Canadian law goes into effect on October 17, 2018, and retail sales of cannabis will be permitted, including online or in physical stores. Essentially, the Canadian market will be open to the world.  Because cannabis has been legalized in Washington, Oregon, California, and Nevada, the West Coast of North America will become a contiguous region where marijuana is legal. That does not change the fact that the use and sale of cannabis is not legal under federal law and cross-border movement of cannabis is illegal. A white paper released by the Border Policy Research Institute of Western Washington University noted that “this will result in a situation in which the border is the sole jurisdiction where enforcement occurs.”

Malin’s use of “facilitation” is significant. Facilitation has been broadly defined to include investment in U.S. public companies that trade in marijuana. Indeed, Canadians reportedly have already been denied entry or subjected to lifetime bans for investing in marijuana enterprises in the United States:

  • An individual was banned for life after admitting he was an executive in company that had a subsidiary involved in studying medical marijuana;
  • A chief executive of an agricultural equipment manufacturer was banned for life for attempting to enter the U.S. to discuss designing equipment for a cannabis producer in the U.S.;
  • Another individual received a lifetime ban for investing in marijuana companies in the U.S.

Congressman Luis Correa (D-CA) has asked Secretary of Homeland Security, Kirstjen Nielsen to clarify DHS policy regarding marijuana investments. His concern is that Congress never intended to enforce federal marijuana laws against Canadians involved in a business that is lawful in Canada. He had been seeking information by October 1, 2018, about DHS guidance on this subject, such as how the agency determines who to send to secondary questioning and how it decides that a permanent ban is appropriate.

It is not clear how often non-U.S. citizens are questioned about investments or marijuana use at the border. While it is possible to obtain waivers to enter the United States after being “banned,” that can be a long and detailed process and one that is best avoided, if possible. If you have questions about how to deal with this risk, please reach out to your Jackson Lewis attorney.

DHS Closer to Issuing ‘Public Charge’ Rule

The DHS is getting closer to changing and hardening the standard for determining who is or might become a “public charge” for immigration purposes. The agency “pre-released” a new rule, “Inadmissibility on Public Charge Grounds,” that it plans to officially publish in the Federal Register soon in order to start the 60-day Notice and Comment Period.

Who Will Be Covered by the New Standard?

  • Those applying for immigrant or nonimmigrant status abroad
  • Those seeking admission as an immigrant or nonimmigrant
  • Those applying for Adjustment of Status
  • Nonimmigrants seeking a change of status or extension of status

Who Will Not Be Covered by the New Standard?

  • Most LPRs (Green Card Holders), even when applying to naturalize
  • Generally, refugees, asylees, those on active military duty, and children adopted by U.S.

What is the New Standard of Review?

  • Decisions will be made based upon the totality of circumstances
  • There are thresholds regarding the length and value of the benefits received
  • Officers may consider prior use of benefits, as well as likelihood of future use of benefits
  • Officers will look to the applicant’s age, health, family status, assets, resources, education and skills, and employment history

What Benefits May Subject an Individual to a Public Charge Determination?

  • Cash assistance for income maintenance
  • Most Medicaid participation
  • Medicare Part D Low Income Subsidy for Elderly (prescription drugs)
  • SNAP (Supplemental Nutrition Assistance Program), e., food stamps
  • Long-term care at government expense
  • Section 8 Housing Choice Vouchers
  • Section 8 Project Based Rental Assistance
  • Public Housing

What are Some Benefits that Would Not be Considered?

  • Emergency Medical Assistance
  • Disaster Relief
  • National School Lunch Program
  • Head Start Program
  • Receipt of benefits by dependents alone

The 447-page rule is a complex web of regulations. Critics believe that many low-income immigrants will forego programs they or their children may be entitled to out of fear that accepting those benefits will bar them from eventually becoming green card holders – even if those benefits are not covered by the new rule. Others, such as New York State legislators and Governor Jay Inslee of Washington, have argued that the new rule will have a substantial financial impact on some states and that “the proposal disrupts settled law by making unprecedented changes to longstanding immigration policies. . . .” Still others are considering challenging the new rule in court on various grounds, including under the Administrative Procedure Act and under the equal protection clause of the Constitution. These are avenues that have been pursued with regard to the travel ban, TPS, and DACA.

Undocumented individuals are not eligible for most public benefits. Therefore, the rule will affect only those immigrants who are legally in the U.S. or who wish to come to the U.S. legally.

Because of the complex nature of the new rule, the above is meant only to provide general guidance. If you have questions about the effects of the rule, please reach out to counsel. Jackson Lewis will provide additional updates on the new rule.


Diversity Lottery Registration to Open

USCIS has announced that the 2020 Diversity Lottery will open for registration at noon EST on October 3, 2018 and run until noon EST on November 6, 2018.  Fifty thousand green cards will be available.

Eligibility requirements are set out in the Federal Register. This year, individuals from the following countries are not eligible:  Bangladesh, Brazil, Canada, China (mainland-born), Colombia, Dominican Republic, El Salvador, Haiti, India, Jamaica, Mexico, Nigeria, Pakistan, Peru, Philippines, South Korea, UK (except Northern Ireland) and its dependent territories, and Vietnam.

Eligible individuals may apply at dvlottery.state.gov.

Litigation Over H-4 EAD Rule Rescission Continues

The uncertainty regarding the rescission of the H-4 EAD Rule continues to drag on and the plaintiffs in Save Jobs USA v. United States Department of Homeland Security are getting tired of waiting.

Save Jobs, a group of technology workers who claim to have been displaced by foreign nationals, initially challenged the H-4 EAD Rule in 2015 after it was instituted by the Obama Administration. The H-4 EAD Rule provides work authorization for spouses of certain H-1B workers who are in the Green Card process. Although Save Jobs lost in the U.S. District Court, it appealed to the Court of Appeals for the D.C. Circuit just before President Donald Trump was inaugurated. Since then, the government has been stalling and requesting that the case be held in abeyance because DHS is working on rescinding the Rule. If DHS rescinds the Rule, the case becomes moot.

Oral argument on the case was originally set for March 31, 2017. The government has asked for five continuances since March 2017:

  • A 60-day pause until April 3, 2017
  • A 180-day pause until September 27, 2017
  • A pause until January 2, 2018
  • A pause until February 2018
  • A pause until June 2018

On August 20, 2018, DHS filed another status report in the case, stating that “[a]s represented to the Court in prior status reports, DHS’s intention to proceed with publication of an NPRM [a new rule] concerning the H-4 visa rule at issue in this case remains unchanged.”

Save Jobs’ attorney, John Miano, noted that the DHS update “gives no time table and no explanation for the delay. . . . At this point it was clear that any proposed rule has just been sitting on someone’s desk for months.”

Close to 100,000 individuals hold EADs based upon the H-4 EAD Rule. They have been in limbo, unable to make decisions about how to move forward with their lives in the U.S. ever since the Trump Administration announced its intention to rescind the Rule. Employers have had to decide whether to try to make “back-up” immigration plans, where possible, for employees on H-4 EADs. The Business Roundtable sent a letter to DHS Secretary Kirstjen Nielsen expressing concern “about changes in immigration policy that are causing considerable anxiety for many thousands of our employees while threatening to disrupt company operations.” On the impending revocation of H-4 EAD status, the letter noted that “[o]ther countries allow these valuable professionals [spouses of H-1B beneficiaries] to work, so revoking their U.S. work authorization will likely cause high-skilled immigrants to take their skills to competitors outside the United States.”

We will continue to follow this litigation and any announcements regarding the NPRM. Meanwhile, individuals in H-4 EAD status should continue to apply for and renew H-4 EADs as early as possible. If you have any questions about how to apply and possible back-up strategies, please reach out to your Jackson Lewis attorney.

E-Verify Subject to Collective Bargaining

While I-9 compliance is important, companies cannot forget about other labor and employment laws. In May 2018, a meatpacking company in Illinois was caught between ICE and the National Labor Relations Board.

ICE conducted an audit of the company’s I-9s. Upon notice of the audit, the company began implementing E-Verify. An NLRB judge ruled that the company violated the National Labor Relations Act by:

  • Transferring work to temporary staffing agency workers without first notifying the union;
  • Dealing directly with the terminated employees regarding severance;
  • Failing to provide the requested documents to the union; and, importantly,
  • Unilaterally changing the terms and conditions of employment by instituting E-Verify without bargaining.

On August 27, 2018, a three-member NLRB panel upheld this decision (even though the union eventually agreed to the use of E-Verify through collective bargaining). The panel stated:

The [company’s] unilateral action compromised the Union’s ability, and the [company’s] incentive, to engage in that give-and-take process with respect to E-Verify by changing the starting point for bargaining. Once the [company] enrolled in the program, it had the greater leverage. The Union was placed in the position of offering concessions to persuade the [company] to restore the status quo and quit the program.

If you have questions about signing up for E-Verify or any other immigration issues in a union environment, please reach out to your Jackson Lewis attorney.

USCIS Explains New Policy on Discretionary Application Denials

Beginning September 11, 2018, USCIS immigration officers will have more discretion to issue petition and application denials without first issuing Requests for Evidence (RFEs) or Notices of Intent to Deny (NOIDs).

On September 6, 2018, the Ombudsman’s Office provided further details on the new policy change. The following was noted:

  • The new policy takes effect on September 11, 2018, and will apply to applications received by USCIS on or after September 12, 2018.
  • Adjudicators have full discretion to issue denials where the initial evidence submitted does not establish eligibility or there is no possibility of approval based on the evidence submitted.
  • The new policy is not meant to penalize those who make innocent mistakes or who misunderstand the requirements establishing eligibility, but is intended to promote complete filings so resources can be allocated to timely adjudicate petitions.
  • If the initial required evidence is missing, adjudicators will determine whether this was due to mistake or misunderstanding and to what extent the applicant tried to comply with the instructions and regulatory requirements. If it is determined that the “error” was due to a mistake or misunderstanding, an RFE would be issued instead of an outright denial. USCIS declined to clarify the factors for making a determination, but it provided, as an example, missing pages from an applicant’s passport.
  • USCIS will publish optional checklists outlining the initial required evidence for each visa classification. These checklists are intended for information purposes and are not meant to replace or change the regulatory or statutory requirements.
  • The new policy does not affect or change appeal rights.

The checklists were issued on September 11, 2018, and are available at USCIS.gov.

USCIS is in the process of training officers regarding the new policy memo, and the Field Adjudicators Manual has been updated with guidance on the subject. While USCIS has stated its intention not to penalize “innocent mistakes,” it is unclear how this will play out in practice. For instance, how will USCIS actually determine whether the error was just a mistake on the part of the petitioner or even on the part of the USCIS? Did the petitioner forget to include a transcript or was the copy of the transcript lost by USCIS after the filing arrived at the Service Center?

Jackson Lewis will be following the results of the new policy and will provide updates.

USCIS Raises Premium Processing Fee: Effective October 1, 2018

On October 1, 2018 the premium processing fee for all Forms I-129 (Non-Immigrant Worker) and Forms I-140 (Immigrant Petition for Alien Worker) will be raised from $1,225 to $1,410.  USCIS announced this almost 15% increase on August 31, 2018.

According to USCIS, this is the first adjustment in premium processing fees since 2010.  The agency noted that there has been a significant increase in demand for premium processing and that this has hindered its ability to process all petitions and applications.  It appears that USCIS believes that the increase in fees may reduce the demand.  Moreover, the agency notes the increase in fees will allow it to make needed investments in staff and technology.

While raising the fees USCIS is continuing and expanding its suspension of premium processing for most H-1B petitions into 2019. This expansion of the suspension is also meant to provide better service overall by allowing USCIS to catch up on its backlog.

H-1B Premium Processing Suspension Extended, USCIS Announces

While the hope was that the temporary suspension of premium processing for cap-subject H-1B petitions would end on September 11, 2018, USCIS announced on August 28, 2018, that the suspension will continue and be expanded to include other H-1B petitions.

As of September 11, 2018, the suspension will apply to the following H-1B petitions:

  • All H-1B petitions filed at the Vermont and California Service Centers.
  • Any H-1B petitions filed with premium processing before September 11, 2018, will continue to be processed but, if the USCIS does not take action within the 15-calendar-day period, the premium processing fee will be refunded. This suggests that USCIS actually may suspend premium processing prior to September 11, 2018.

Premium processing will still be available for the following H-1B petitions:

  • Cap-exempt petitions filed by cap-exempt institutions and organizations that are filed exclusively at the California Service Center.
  • “Continuation of previously approved employment without change with the same employer” petitions filed exclusively at the Nebraska Service Center requesting consular processing or an extension of stay.

USCIS has noted that this expanded suspension will allow the agency to:

  • Process long-pending petitions;
  • Prioritize cases reaching the 240-day mark; and
  • Prioritize other time-sensitive cases.

According to USCIS, the new temporary suspension is expected to last until February 19, 2019.

If you have any questions about this or other developments, please contact Jackson Lewis.

New Foreign-Student Work Restriction Has Outsourcing and Staffing Firm Suing

The Trump Administration is continuing its assault on outsourcing and staffing firms. The latest Administration focus is on the STEM OPT program.

In April 2018, without notice, USCIS made certain changes to its website. It declared, among other things, that a STEM OPT employer “may not assign, or otherwise delegate, its training responsibilities to a non-employer third party (e.g., a client/customer of the employer, employees of the client/customer, or contractors of the client/customer).”  The surprise change sent shockwaves through the foreign-student community and the IT industry. The Small and Medium Enterprise Consortium filed suit in New Jersey federal court seeking a temporary restraining order against the enforcement of the new requirement.

Now, another group has filed suit in federal court in Texas, ITSERVE Alliance v. Nielsen, No. 18-cv-1823 (N.D. Tex. July 14, 2018), also seeking an injunction. The Alliance alleges that USCIS violated the Administrative Procedures Act (APA) by instituting the new requirement without a proper Notice-and-Comment Period. Moreover, ITSERVE alleges that USCIS is violating the law by enforcing the new requirement retroactively and denying immigration benefits to students who worked at third-party worksites while in STEM OPT. For instance, a STEM OPT student seeking a change of status to H might be denied such a change if he or she is unable to prove proper supervision during past work at a third-party location even before the publication of the new requirement on the website. When combined with other recent changes such as the new “unlawful presence” standard for students and the new guidance on initiating deportation proceedings when a case denial leaves an individual “out of status,” STEM OPT students are more at risk for deportation and bars on returning to the United States. The harm done is far-reaching. ITSERVE notes the fear that USCIS might start penalizing employers and even DSOs retroactively extinguishes the predictability that is necessary in today’s business environment.

Both cases are still pending. Jackson Lewis will continue to follow this litigation and provide updates. Please contact Jackson Lewis with any questions.

Trump Administration Largely Phasing Out TPS, But Legal Challenges Are Ongoing

Temporary Protected Status (TPS) may be an endangered species.  Having terminated TPS for Guinea, Liberia and Sierra Leone during the past year, the Trump Administration has turned its attention elsewhere.  There are currently ten remaining countries whose citizens are eligible for TPS.  Of those, six will be terminated over the next 18 months. The Trump Administration has announced the termination of TPS status for Haiti, Nicaragua, El Salvador, Nepal, Honduras and Sudan.  Somalia, South Sudan, Syria and Yemen for now remain in the protected category.

USCIS grants TPS to nationals of certain countries who are in the U.S. (legally or illegally) when conditions in that country “temporarily prevent the country’s nationals from returning safely, or in certain circumstances, where the country is unable to handle the return of its nationals adequately.”  Common grounds for granting TPS include highly destructive natural disasters or massive civil conflicts, or both, in certain countries.

There have been protests in response to almost every termination, and there has been litigation initiated to prevent the terminations (at least for now).  In one such case, on July 25, 2018, a U.S. District Judge in Boston ruled, over the government’s objection, that a case filed on behalf of TPS beneficiaries from Haiti, El Salvador and Honduras, Centro Presente v. Trump, may proceed.  Referencing discriminatory statements made by President Donald Trump, the standard applied by Department of Homeland Security, and a report about country conditions in Haiti, El Salvador and Honduras, the complaint alleges that the termination of TPS was based on racial animus.  In response, the government argued based on the Supreme Court’s decision in the Travel Ban 3.0 case that the executive had broad discretion to act in this area and thus was not subject to such a challenge.  The Court rejected that argument and held that the plaintiffs alleged viable constitutional claims.

The State Department in late 2017 warned the Administration about the unintended consequences of terminating TPS for El Salvador, Honduras and Nicaragua, stating that this “could worsen efforts to combat illicit drug trade and gang violence.”  Senator Robert Menendez (D-NJ) also warned that the termination of TPS would mean that the U.S. citizen children of TPS beneficiaries would be placed in danger by removal to countries where violence is rampant.

It is estimated that more than 300,000 immigrants and their families are currently living in the U.S. in TPS – most are from Haiti, El Salvador and Honduras.

Many TPS beneficiaries have  employment authorization documents (EAD) that may have expired and have been automatically renewed.  To determine expiration and renewal and what the next steps should be, employers can use this tool.