1. Skip to navigation
  2. Skip to content
  3. Skip to sidebar

Cannabis in the United States and its implications in naturalization applications

In response to requests from state and local officials for clarification and adjustment of United States Citizenship and Immigration Services policies negatively impacting the legal immigration status of individuals who work or have worked in the legal cannabis industry, USCIS has updated its Policy Manual—but has not retreated from its position that cannabis-related activities will likely bar a lawful permanent resident of the US from naturalization, even if such activities take place in a state that has legalized cannabis. For a deep dive into the updated manual—including cannabis-related activities which, while not grounds for deportation may still be grounds for inadmissibility if the LPR travels abroad and attempts to re-enter the US—please click here.

, , ,

Cannabis in the United States and its implications in naturalization applications

Immigration consequences of Canadian criminal offences

Many Canadian criminal cases have potentially adverse consequences for immigration status. Accordingly, when a criminal lawyer in Canada represents a client who is not Canadian citizen, it is imperative that the lawyer consider the two distinct grounds of criminal inadmissibility described in the Immigration and Refugee Protection Act 1 (IRPA)—A36(1), which addresses “serious criminality” and applies to both foreign nationals and permanent residents, and A36(2), which addresses “criminality” and applies only to foreign nationals. For a discussion by Dentons Toronto immigration partner Henry Chang on their respective implications, as well as the impacts of federal, provincial and juvenile offenses, as well as conditional sentences, please click here.

, , ,

Immigration consequences of Canadian criminal offences

How US federal cannabis legalization would affect US immigration law

During the 115th US Congress, several bills were introduced to legalize marijuana at the federal level. Those receiving the most attention were: (1) the Strengthening the Tenth Amendment Through Entrusting States Act (STATES Act); (2) Marijuana Justice Act of 2017/Marijuana Justice Act of 2018 (Marijuana Justice Act); and (3) the Marijuana Freedom and Opportunity Act (Marijuana Freedom Act). While all three died when the Congress ended on January 3, 2019, they are likely to be reintroduced (without change) during the 116th Congress. For our analysis of how they might affect the ability of foreign nationals to enter the United States, click here.

, ,

How US federal cannabis legalization would affect US immigration law

An overview of Canada’s Start-Up Business Class

Many foreign nationals are now aware that US immigration policies are more restrictive than in years past. For example, to protect the economic interests of US workers, President Trump issued an executive order directing government agencies to rigorously enforce and administer immigration laws. Meanwhile Canada remains relatively open to accepting new immigrants and, according to a report published by Immigration, Refugees and Citizenship Canada, could accept as many as 1.1 million in total in the years 2019 through 2021. As a result, many foreign entrepreneurs who might otherwise have permanently settled in the US are instead considering Canada. Dentons partner, Henry Chang (who is based in our Toronto office) has provided a detailed discussion of Canada’s Start-Up Business Class, a permanent residence option for innovative foreign entrepreneurs. The full article appears here.

, , ,

An overview of Canada’s Start-Up Business Class

Proposed change to afford certain temporary foreign workers with increased mobility

A proposed amendment to Canada’s Immigration and Refugee Protection Regulations (IRPR) would provide increased employment mobility to certain foreign workers under the Canadian Temporary Foreign Worker Program. It still remains to be seen whether Immigration, Refugees and Citizenship Canada and Employment and Social Development Canada will move forward with the amendment, and whether there is any appetite to provide similar changes to programs used to employ more highly-skilled foreign workers. To view the article on this proposed amendment, written by a member of our Toronto Employment and Labor team, click here.

, , , ,

Proposed change to afford certain temporary foreign workers with increased mobility

New Zealand citizens may now pursue E1/E2 visas


Citizens of New Zealand and the United States making a business investment in the other country or engaging in trade between the two countries are now eligible for new immigration benefits. On June 10, 2019, US consular officials in New Zealand began processing E-1 treaty trader and E-2 treaty investor visa applications filed by New Zealand citizens. 

These visas are allowed under the Knowledgeable Innovators and Worthy Investors (KIWI) Act, which was signed into law by President Trump in August 2018.

To qualify for E-1 classification, the applicant must:

  • Be a citizen of New Zealand and the US business must be at least 50 percent owned by citizens of New Zealand;
  • Carry on “substantial trade,” as measured by a history of continuous flow of sizable international trade items involving numerous transactions over time;
  • Carry on “principal trade,” meaning at least 50 percent of the business’s international trade is between the US and New Zealand; and
  • Develop and direct the enterprise through either (i) at least 50 percent ownership of the enterprise or (ii) employment in a supervisory capacity or where the applicant brings essential skills. 

To qualify for E-2 classification, the applicant must:

  • Be a citizen of New Zealand and the US business must be at least 50 percent owned by citizens of New Zealand;
  • Invest substantial capital in an active, commercial enterprise in the US at a level that is above that which could merely support the applicant and his or her accompanying family members; and
  • Develop and direct the enterprise through either (i) at least 50 percent ownership of the enterprise or (ii) employment in a supervisory capacity or where the applicant brings essential skills. 

Successful applicants will be issued a multiple-entry visa, valid for up to five years and be allowed an initial stay of up to two years, with extensions available. There is no limit on the total time spent on E-visa status, but E- visa holders must be able to prove their intention to depart the US at the end of their authorized stay, whether through status expiration or termination. The applicant’s spouse and unmarried children under 21 are eligible for the same visa and period of stay. The spouse also may apply for an employment authorization document and family members may attend school.

Although the KIWI Act is not a bilateral treaty extending equivalent benefits to US citizens. For Americans interested in New Zealand, it should be noted that New Zealand already has an immigrant investor visa, an entrepreneur visa and a global impact visa that collectively offer broader benefits to citizens of the US and other countries than the KIWI Act provides New Zealanders.

The visa benefits for citizens of New Zealand and the US are a welcome addition that will benefit both countries. Please contact Dentons for more information.

, , ,

New Zealand citizens may now pursue E1/E2 visas

Verifying work authorization under USCIS’ OPT cap-gap rule

There are special rules that act to automatically extend the US employment eligibility of qualified F-1 foreign student visa holders beyond the period initially authorized. The rule that relates to F-1 visa holders seeking to change to H-1B work visa status is referred to as “cap-gap” because it is intended to fill the gap between the date the OPT (optional practical training) period would otherwise expire and the date that the new H-1B employment authorization starts.

The H-1B allows employers to temporarily employ a foreign national in a specialty occupation. The US Citizenship and Immigration Services (USCIS) grants H-1B status. There is a limit, or “cap,” on the number of individuals who can receive H-1B status, and H-1B employment generally begins on October 1, the start of the federal government’s fiscal year. 

OPT is an employment authorization for F-1 international students who have completed their studies. Typically, the OPT is granted for 12 months. STEM majors working for eligible employers may qualify for extensions totaling an additional 24 months. At the completion of the study program or the end of OPT, F-1 students have a 60-day grace period to take the steps necessary to either maintain their legal status or depart the US. For the non-STEM majors, that means their OPT status expires well before the October 1 start date of H-1B, hence the “cap-gap.”

To deal with this situation, USCIS’ OPT cap-gap rule automatically extends an eligible F-1 student’s status to bridge the gap between the end of F-1 status and start of H-1B status, thereby allowing the student to remain in the US during the “gap.”

The cap-gap extension applies if all three of the following conditions are met:

  • An employer timely files a Form I-129, Petition for Nonimmigrant Worker, with USCIS requesting a change of the student’s status to H-1B. Note: A petition requesting consular process does not qualify.
  • The H-1B petition asks for an October 1 start date.
  • The student’s status, including any applicable grace period, ends between April and September 30. 

How the OPT cap-gap protection is triggered by different events during the H-1B process

  • When an H-1B petition on behalf of the student has been filed with USCIS but not yet receipted, the student’s employment authorization automatically extends to June 1. While the extension is automatic, students can request from their school’s office of international students office an updated Form I-20 to serve as proof of legal status.
  • While the H-1B is pending with USCIS for processing, the student’s employment authorization automatically extends to September 30. Again, the student may, but is not required to, obtain an updated Form I-20 from the international students’ office. 

If USCIS denies the H-1B, or if the H-1B petition is returned as “not selected,” then there is no longer any cap-gap employment authorization. If the F-1 student’s OPT already expired, then the student has 60 days to depart the US or take other steps to maintain lawful status.

Employers are advised to request updated Form I-20s from their employees on OPT status as proof of valid work authorization, and to take note of the expiration dates.   

Note that if the student’s OPT expires before April 1 and the student is already in the 60-day grace period when the H-1B is filed, the cap-gap only extends the F-1 status, not OPT employment authorization. The student may remain in the US, but without OPT work authorization. 

Employers must verify the employment authorization for all employees in the US. Failure to do so may result in monetary penalties against the employer. Please contact Dentons for more information. 

, , , ,

Verifying work authorization under USCIS’ OPT cap-gap rule

New regulations set out work and residence permit procedure for UK nationals living in Spain post-Brexit

This article was originally published on Dentons’ UK Employment Hub blog.

New regulations have been enacted in Spain setting out what UK citizens working or living in Spain after Brexit will be required to do to maintain their right to live and work there.

The regulations apply to UK and Northern Irish citizens living in Spain before the exit date. Affected individuals must apply for a special work and residence permit within 21 months of Brexit. During this 21 month “transition period”, UK nationals will broadly maintain the same rights they currently have under EU law (except, for example, the right to vote and stand in elections to the European Parliament).

Dentons’ lawyers in Spain have put together a summary of the key points of the regulations, which can be found here.

As the largest law firm in the world Dentons is uniquely placed to provide high-quality counsel to clients both within and outside Europe. Our experts have put together a number of resources, including a series of webinars and a Brexit jargon buster, which can be found here. Dentons’ lawyers in Spain have put together a summary of the key points of the regulations, which can be found here.

As the countdown to exit day continues, please contact Jessica Pattinson (Head of Immigration, UK) at jessica.pattinson@dentons.com if you require any additional support on immigration matters.

, ,

New regulations set out work and residence permit procedure for UK nationals living in Spain post-Brexit

Significant changes in the work permit regulations in Uzbekistan

The Cabinet of Ministers of the Republic of Uzbekistan on March 25 approved a new procedure for employers to obtain a license and confirm foreign nationals. Changes to the framework including a broadening of the definition of “employer,” a more streamlined process, a significant increase in fees, and limiting three-year confirmations to certain categories of persons.

Read the complete Dentons article here.

, , , ,

Significant changes in the work permit regulations in Uzbekistan

DHS publishes final rule governing FY 2020 H-1B cap season. Now it’s time to prepare your cap-subject petitions

Last week, the Department of Homeland Security (DHS) published the final rule amending regulations governing H-1B cap-subject petitions. For a detailed discussion of the proposed rule, see our recent blog post here. The final rule, however, makes some changes different from those set out in the proposed rule.

No online registration for FY 2020 H-1B cap season

Though suggested in the proposed rule, the final rule clearly states that an online registration requirement will not be implemented for the FY 2020 cap season. The agency explains that before implementation, it wants to complete user testing and other evaluative tools to ensure the system and process are fully functional. Employers should be ready in 2020 for the FY 2021 H-1B cap season, when the process change will likely take place. US Citizenship and Immigration Services (USCIS) will announce the implementation in advance of the cap season in which it will implement the requirement.

Changing the order of the H-1B lottery selection for the FY 2020 H-1B cap season

Currently, H-1B cap-subject petitions filed under the advanced degree cap are selected first, and unselected petitions get a second bite at the apple—an opportunity to compete, along with the regular cap petitions, for one of the 65,000 visas available for workers holding bachelor’s degrees. The final rule reverses this order. Effective April 1, 2019, USCIS will first select 65,000 petitions from all submissions, including both regular and advanced degree petitions. USCIS will then run a second lottery to select enough qualifying petitions to meet the 20,000 cap exemption for individuals with advanced degrees from US institutions. DHS states that the change will increase the chances of H-1Bs being awarded to individuals with US master’s degrees or higher by up to 16%, or 5,340 workers. Time will tell. Why DHS thinks random holders of US master’s degrees will better serve American competitiveness than will holders of bachelors’ degrees in targeted fields of study, such as STEM, or who otherwise meet the goals articulated in President Trump’s April 2017 executive order directing an interdepartmental review of the H-1B visa program, was not addressed in the final rule.

Dentons analysis

Employers need to submit full H-1B cap-subject petitions during the first week of April. Please contact your lawyer now to be fully prepared.   

Meanwhile, Dentons will continue to closely monitor any changes to the regulations surrounding the H-1B program, particular regarding the pre-registration requirement, and update you as needed.

, , , , ,

DHS publishes final rule governing FY 2020 H-1B cap season. Now it’s time to prepare your cap-subject petitions