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

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

Does USCIS interpret its regulations consistently and correctly?

Non-immigration case before SCOTUS could change immigration law

In December of last year, the US Supreme Court agreed to review Kisor v. Wilkie, a case that could have a major impact on immigration law. At issue is the degree of deference a court must accord an agency’s interpretation of its own ambiguous regulation.

How much deference courts should afford agencies in interpreting their own regulations is a central question in administrative law. It determines how much an agency is allowed to stray from the original wording of a regulation it promulgates before it becomes necessary to issue a new regulation.  

It is dangerous to grant agencies unfettered discretion based on the assumption that their personnel will wisely and fairly carry out their duties. Changing presidential administrations often result in new agency directors and the likelihood that political beliefs will change how existing regulations are interpreted.  

If an agency seeking to revise a regulation follows the legal requirements of the Administrative Procedure Act (APA), there will be notice of proposed rulemaking and a comment period to identify any issues. There’s also a published regulatory history from which to glean meaning and intent. Too often, however, federal agencies, rather than comply with the APA, seek to regulate through policy interpretation memoranda.

On its face, Kisor v. Wilkie has nothing to do with immigration law. In 2006, James Kisor a Vietnam War veteran reopened a claim for disability benefits, citing new evidence that supported a diagnosis of PTSD. While the Department of Veterans Affairs (VA) agreed with the diagnosis and approved the 2006 claim, it declined to grant him retroactive benefits based on his initial 1983 claim, asserting that he had failed to present “relevant” service records required under VA regulations governing reconsideration of benefits claims. The Court of Appeals for the Federal Circuit deferred to the VA’s interpretation of its own regulation and found in the agency’s favor.

In the context of immigration, the US Citizenship and Immigration Services (USCIS), a branch of the Department of Homeland Security (DHS), is the federal agency that oversees lawful immigration to the United States. Under current case law, significant deference is granted to USCIS’ interpretation of its own regulations. This deference has allowed the agency to change certain visa programs over time, often without issuing new regulations but instead relying on policy memoranda to implement what increasingly seems to be an agenda driven by White House politics rather than good policy.

For example, President Donald Trump’s “Buy American, Hire American” 2017 executive order, which, among other things, directed DHS, in coordination with other agencies, to review immigration-related policies, led to USCIS modifying many of its immigration policies in 2017 and in 2018, oftentimes by the mere publication of a memo or a press release rather than by going through the APA’s required process. Dentons’ immigration team covered several of these:

  • In October 2017, USCIS issued a policy memorandum reversing the burden of proof and eliminating the prior practice of deferring to previous approvals in the adjudication of petitions to renew H, L and other non-immigrant visas. The idea was that USCIS would accept the original determination as correct and would not review all the visa requirements again. With the elimination of this practice, visa holders merely petitioning for an extension now have to prove every criteria applicable to their visa category, even though USCIS already decided that they met such criteria. Effectively, extensions now require the same level of documentation as the original petition. This change has led to extensions being denied, thus creating confusion among alien workers.
  • In April 2018, USCIS updated its webpage for Optional Practical Training Extension for STEM Students (STEM OPT), providing that the training experience of STEM OPT workers may not be conducted at the place of business or worksite of the employer’s clients or customers.
  • In May 2018, the USCIS changed the way it calculates the accrual of unlawful presence for nonimmigrant students and exchange visitors (F, J and M visas, including F-2, J-2 and M-2 dependents). The changes increased the likelihood that individuals in these nonimmigrant visa categories would have problems with future immigration benefits. (See our previous posting “Stricter unlawful presence rules for foreign students and exchange visitors”).
  • In May 2018, USCIS revised its Policy Manual, announcing it would no longer count the jobs created for US workers through tenant occupancy of EB5 properties, which effectively reduced the amount of immigrant investor funds available to create jobs for US workers. (See our previous posting “No more EB5 job creation through tenant-occupancy models: New USCIS policy reduces availability of immigrant investor funds to create jobs for American”).
  • In November 2018, USCIS published a new policy memorandum explaining how to calculate the 12 months of employment abroad, a key requirement under the L-1 intracompany transfer visa program. (See our previous posting “How to count to 12: USCIS clarifies L1A visa requirements”).
  • In November 2018, DHS published its mid-year regulatory agenda, which included a proposed rule to revoke the H-4 employment authorization final rule. If adopted, the proposed rule is expected to become effective in the first half of 2019 and would impact all of the more than 100,000 individuals currently holding an H-4 employment authorization document. (See our previous posting “Proposed end of H-4 employment authorization likely to affect over 100,000 families”).

While USCIS’ frequent and often far-reaching policy changes created lots of business for lawyers in 2018, the agency’s unpredictability and inconsistent application of the law has created a tremendous burden on US employers and their foreign-national employees and families, as well as for US business developers seeking foreign investment and foreign investors and families.  

Critics of the deference principle have argued that it effectively allows agencies such as the USCIS to write overbroad and substantively vague rules with the expectation that they can fill in any gaps later using interpretive rules, unchecked by notice and comments. They are urging the Supreme Court to reverse the current precedent favoring judicial deference, which would force USCIS to issue clearer and more detailed regulations, thus providing  more agency transparency and accountability. The Supreme Court will hear Kisor v. Wilkie in the spring—oral arguments have not yet been scheduled—and will likely make a ruling later this year.

, , , , ,

Does USCIS interpret its regulations consistently and correctly?

New H-1Bs for 2018 are gone



US employer demand once again greater than limited supply

United States Citizenship and Immigration Services (USCIS) once again received more H-1B visa petitions (for professional workers) from US employers than the limited supply allocated by Congress for fiscal year 2018.

The agency reported receiving 199,000 petitions during the first five business days of April—37,000 fewer than last year—the first time in years that the number of petitions has fallen.

The selection process was completed on April 11, but the agency did not announce by what date all accepted petition fee receipts would be issued, unselected cap-subject petitions returned with the uncashed filing fee checks, and approval notices for granted petitions sent.

As in years past, USCIS will reject and return filing fees for all unselected petitions that are not duplicate filings. Last year, most returns were received by June.

Congress authorizes USCIS to granted 65,000 H-1B visa petitions per fiscal year, plus an additional 20,000 petitions earmarked only for foreign nationals who earned a graduate degree from an American university. FY2018 starts October 1, 2017. For both of these quotas, the demand was greater than the supply, but USCIS has not provided a breakdown for each.

Certain H-1B visas remain available and USCIS will continue to accept and process petitions to:

  • Approve H-1B status to an individual coming to work for an employer that is exempt from quota limitations—generally the US government, American universities and certain related or nonprofit organization
  • Approve H-1B status to an individual counted previously against the cap and who is not subject to the FY2018 cap
  • Extend the amount of time a current H-1B worker may remain in the United States
  • Change the terms of employment for current H-1B workers
  • Allow current H-1B workers to change employers
  • Allow current H-1B workers to work concurrently in a second H-1B position

The full text of the agency’s press release can be found at the USCIS website.

, , , , , , ,

New H-1Bs for 2018 are gone

Information on recent amendments to Russian migration rules

Federal Law No 199-FZ on Amendments to Articles 18.10 and 18.15 of the Administrative Penal Code and the Federal Law on the Legal Status of Foreign Citizens in the Russian Federation of June 29.06.2015 (the “Amendment Law”) was published and entered into force on June 30, 2015.

The Amendment Law requires foreign employees who change their name or passports to apply to the migration authorities to enter the appropriate changes to their work permits (i.e. to indicate the new name or new passport details in the work permit):

  • within 7 days of such change (if the name was changed or the new passport was received in the Russian Federation); OR
  • within 7 days of entering Russia (if the name was changed or the new passport was received outside the Russian Federation).

, , , ,

Information on recent amendments to Russian migration rules

Changes to UK immigration rules in April 2015: The highlights

1. National Health Service surcharge

This will apply to most visa applications with effect from April 6, 2015 where the applicant is applying to stay in the UK for six months or more. The cost is £200 per applicant (£150 for Tier 4 students) per year of the visa and is payable at the time of making the initial application. For example, a five-year Tier 2 visa would have a National Health Surcharge of £1,000. If there are family members also coming in on the same visa it will be an additional £1,000 per family member. It is important to note that this surcharge will apply even if private medical care or insurance is in place.

The surcharge does not apply to anyone applying for a visitor visa. However, non-EEA visitors will continue to be fully liable for the costs of any NHS treatment at the point they receive it.

2. Increase in fees for immigration applications

A number of applications are subject to a fee increase from April 6, 2015. UKVI has published a list of Home Office Immigration & Nationality Charges 2015/16, which can be found here.

3. Changes to the clearance application process for overseas applicants applying for a visa for six months or more from outside the UK

Successful applicants will be issued a temporary 30-day visa running from their notified date of travel. On arrival in the UK they will have 10 days to collect, from a specified Post Office location, a Biometric Identity Document (BID) which contains their visa. It will be important for migrants to ensure they collect their BID within 10 days of arrival to avoid incurring a penalty charge of £125.

This change is being phased in over several months from March 2015.

4. Tier 2

a)  Updated minimum salary rates for Tier 2 applications from April 6, 2015:

Per-annum salary thresholds have been increased from between £300 and £1,800.

Criteria Current threshold New threshold
Jobs which qualify for Tier 2 (General). £20,500 £20,800
Jobs which are exempt from advertising in Jobcentre Plus (or JobCentre Online if the job is based in Northern Ireland). £71,600 £72,500
Jobs which are exempt from the annual limit, the 12-month cooling-off period and the   Resident Labour Market Test. £153,500 £155,300
Jobs which qualify for the Short-Term Staff, Skills Transfer or Graduate Trainee   categories (maximum stay either six months or one year). £24,500 £24,800

b)  With effect from April 6, 2015, removal of the 12-month cooling off period for Tier 2 visas issued for up to three months:

This is good news in that it will (i) enable interns to be sponsored and brought back to the UK for a permanent job within a one-year period; and (ii) benefit global businesses that need to send employees to the UK for short time periods.

5. Visitor visa routes reduced from 15 to four

UKVI has redesigned the visitor routes so that there are four: visitor (standard); visitor for marriage or civil partnerships; visitor for permitted paid engagements; and transit visitor.  The change applies to all applications made on or after April 24, 2015.

The visitor (standard) route consolidates the following existing routes: general, business, child, sport, entertainer, visitors for private medical treatment, visitors under the Approved Destination Status (ADS) Agreement with China, prospective entrepreneur, and visitors undertaking clinical attachments, the Professional and Linguistic Assessment Board (PLAB) test and the Objective Structured Clinical Examination (OSCE).

6. Removal of some test providers for language tests

There are now only two providers on the list. They replace the current providers from April 6, 2015.  The two new test providers are:

  • Trinity College London (for customers applying in the UK only).
  • IELTS SELT Consortia (for visa customers applying outside or inside the UK).

Tests taken on or before April 5, 2015 with old providers will remain valid until November 5, 2015. Tests taken with old providers from April 6 will not be acceptable with a visa application.

7. Amending the Shortage Occupation List

Changes are being made to the Shortage Occupation List, following a partial review by the independent Migration Advisory Committee. Jobs on the list are exempt from the Resident Labour Market Test and are given higher priority within the Tier 2 (General) annual limit. The new list is valid from April 6, 2015. The list amends the applicable graduate occupations in the health sector, makes changes to roles in the energy industry and reclassifies some existing entries.

, , ,

Changes to UK immigration rules in April 2015: The highlights

Upcoming changes to visas between US and PRC aim to facilitate travel and decrease need for renewals

Effective November 12, 2014, the US and the PRC will both increase the validity of business, tourist, student and exchange visitor visas issued to each other’s citizens.

Chinese business visitors and tourists may be issued multiple-entry B-1 and B-2 visas for up to 10 years. Students and exchange visitors and their accompanying family members will be eligible for F, M and J visas for multiple entry for up to 5 years or the length of their program.

US citizens going to China for short-term business and tourism will also receive multiple-entry F and L visas for up to 10 years, while American students may receive X student visa residence permits for up to 5 years, depending on the length of their program.

This change will facilitate business travel and decrease the time and cost that has been spent on more frequent visa renewals without any change in government processing fees. This change does not impact the length of authorized stay.  Visas only authorize travel to another country and the immigration officer at the port of entry/airport inspection unit will determine the length of authorized stay.

, , , , , , , , , ,

Upcoming changes to visas between US and PRC aim to facilitate travel and decrease need for renewals

US State Department visa and passport processing almost back to normal

The US State Department announced on August 4 that most of the worldwide backlog of nonimmigrant visa cases have been resolved.  The Department continues to prioritize immigration cases and are printing visas with very few delays, although system performance issues remain an issue and the Consular Consolidated Database is not yet back to full operational capacity.  Visa applicants are advised they might still experience delays of up to one week in addition to normal processing times.

In late July, the Department announced technical problems with the passport and visa system.  By July 27, immigrant visas were given high priority.  The story was widely reported in major media, including many stories of the hardship caused to foreign workers at American companies who were unable to obtain visas to come to the US for work and other problems.   On July 31, the government was still anticipating it would take weeks to resume full visa processing.

The current reports are welcome news, but come with the warning that visa delays are still happening, just that the delays are shorter.  Employers and foreign employees seeking visas should take this into account when planning travel.  It may be faster to delay scheduling an appointment at a consular post until the problem is fully resolved OR it may be important to schedule an appointment as early as possible to allow sufficient time for processing.

, , , , , , ,

US State Department visa and passport processing almost back to normal

You May Not Be That Specialized – New guidelines for assessing Intra-company Transfer – Specialized Knowledge work permits

On June 9, 2014, Citizenship and Immigration Canada (CIC) announced expanded guidelines for immigration and border service officers to follow when assessing work permit applications under the intra-company transfer – specialized knowledge category.  What’s Different?

  • Changes in interpreting what qualifies as “specialized knowledge”
  • Minimum wage requirement as set by Employment and Skills Development Canada (ESDC)

Specialized knowledge means that applicants must have both a high degree of proprietary knowledge and advanced expertise. This includes abilities that are unusual and uncommon in the industry and within the company, knowledge and skills that are difficult to transfer to another person but are required by the Canadian business, expertise that would be difficult to recruit for in the Canadian labour market and knowledge that only a small percentage of the company’s employees would hold.

To find the minimum mandatory wages please go to ESDC’s www.workingincanada.gc.ca site where low, median and high wages are listed for occupations using the Canadian National Occupation Classification (NOC). The mandatory minimum wages to be paid to intra-company transfers – specialized knowledge workers will be the median wages listed for each NOC occupation on this site. Please note that although the mandatory minimum wages do not apply to those applicants under NAFTA or other Free Trade Agreements with Canada, wages will be a factor that is considered by officers, as wages paid can be an important factor when assessing the expertise of a specialized knowledge worker.

Please note that the changes are effective immediately. CIC’s full Operational Bulletin can be found at: http://www.cic.gc.ca/english/resources/manuals/bulletins/2014/ob575.asp

As more pressure is placed on Canadian employers to look to the Canadian labour market before hiring foreign workers, we anticipate greater scrutiny and further changes to the temporary foreign worker program in the coming months.


, ,

You May Not Be That Specialized – New guidelines for assessing Intra-company Transfer – Specialized Knowledge work permits