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This week, tens of thousands of people will flock to the Nevada desert to attend the Burning Man festival—an annual international attraction, drawing visitors from all over the world looking to take in the desert environment, artistic expression, and spectacular costumes. Locally, however, the event is also known for being a venue where the drug use is as experimental as the performance art.
Among the attendees of Burning Man and similar events around the country are non-U.S. citizens who may be unaware of the potentially dire immigration consequences of engaging in drug-related activity, particularly while on federal land in a state where marijuana is legal. Using, possessing, purchasing, or selling a controlled substance may be grounds for inadmissibility, visa denial, or deportation, and evidence of a drug offense may prevent an applicant from obtaining a green card or citizenship. Conflicts between state and federal law have created confusion over whether marijuana is still considered an illegal drug. There’s a misperception that marijuana use is no longer prosecuted, now that a majority of states have legalized medicinal or recreational marijuana. Thirty-three states1 have legalized medical marijuana, and 11 states2 and the District of Columbia have legalized adult recreational marijuana.
Federal law is a different story. Under federal law, marijuana is classified on par with heroin and LSD, as a Schedule I drug. In the immigration context, it’s important to understand that individuals may be deemed to have violated federal drug laws even if they have not been arrested, charged or convicted. For example, an individual who admits to having worked for a cannabis start-up in Colorado or to using marijuana at home in Arizona to treat the effects of chemotherapy may have admitted to conduct that constitutes a violation of federal law, potentially triggering immigration consequences. This is true even if the conduct was legal under state laws.
The current administration has signaled its lack of tolerance for drug activity by immigrants. In June 2017, U.S. Citizenship and Immigration Services began asking green card applicants if they have violated state, federal or foreign drug laws at any time. In 2018, Attorney General Jeff Sessions revoked Obama-era policy memos that discouraged federal prosecutors from prosecuting marijuana violations that were legal under state laws. In April of this year, USCIS clarified that marijuana-related violations will generally prevent citizenship applicants from proving they have “good moral character,” a requirement to naturalize.
Noncitizens should be aware of the immigration consequences of drug-related activity. Carrying a medical cannabis card, keeping drug paraphernalia, or posting drug-related photos or discussions on publicly available social media could open up a line of questioning from law enforcement if found. While it is not necessary to be on federal land to violate federal law, Burning Man takes place on federal land and is policed by federal Bureau of Land Management officers, increasing chances of encountering federal law enforcement.
As Burners ignite an effigy of “The Man” on the last Saturday of the event, foreign nationals in the crowd would do well to remember that drug activity could sacrifice their immigration status.
Ryan Harris is an Associate in the San Francisco office of Berry Appleman & Leiden LLP.
Melanie Beckwith is a Staff Attorney in the San Francisco office of Berry Appleman & Leiden LLP.
The information contained here is meant to be informational, and while BAL has made every effort to ensure the accuracy of the information, it is not promised or guaranteed to be complete. Readers of this information should not act upon any information contained on this alert/blog without seeking professional counsel. This alert does not constitute legal advice or create an attorney-client relationship. Any reference to prior results, does not imply or guarantee similar future outcomes.
1 Alaska, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, District of Columbia, Florida, Hawaii, Illinois, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Missouri, Montana, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, Utah, Vermont, Washington, West Virginia.
2 Alaska, California, Colorado, Illinois (effective Jan. 1, 2020), Maine, Massachusetts, Michigan, Nevada, Oregon, Vermont, Washington.
U.S. Citizenship and Immigration Services (USCIS) recently issued policy guidance clarifying how officers will make decisions regarding employment authorization to foreign nationals who are paroled into the U.S.
Key points:
BAL Analysis: The guidance does not necessarily represent a new policy, as decisions to grant employment authorization to parolees have always been discretionary. However, the guidance, which is now part of the USCIS policy manual, clarifies that USCIS officers will not issue employment authorization to parolees as a category or right, but will make discretionary decisions by considering individual facts on a case-by-case basis.
This alert has been provided by the BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@bal.com.
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A group of business and immigration organizations have co-authored a letter to U.S. Citizenship and Immigration Services (USCIS) seeking information about the new H-1B electronic registration system. The letter to USCIS Acting Director Ken Cuccinelli was signed by 15 organizations, representing major U.S. companies, immigration practitioners and higher education institutions.
Background: USCIS finalized a regulation in January that introduces a new online registration system for the H-1B lottery. The regulation requires all petitioners to submit an online form for each prospective H-1B employee. USCIS will select registrations from that pool, and then will permit successful petitioners to file full H-1B petitions on behalf of each beneficiary named in a selected registration. The agency has not yet provided details about how the registration system will work for this coming cap season, but has taken steps in recent months indicating it is moving forward with the H-1B registration tool. A rule that will impose a fee for each H-1B registration is also expected to be proposed in coming weeks.
BAL Analysis: The H-1B registration requirement is expected to be in place for the April 2020 cap season, but the agency has yet to provide specific details and deadlines for the new process. The letter seeks business-critical information to plan for cap season and expresses concerns about technical issues that could arise if the electronic registration system is launched without adequate testing. BAL is closely monitoring these developments and will update clients as more information about the H-1B registration system becomes available.
Litigation challenging the legality of the Optional Practical Training (OPT) program for F-1 students remains pending in federal court. On Aug. 6, the judge established deadlines for the progress of the litigation, which covers both the 24-month extension for STEM students and the initial one-year OPT program.
Key dates:
Background: WashTech first filed suit against the government in 2014, challenging both the original 1992 OPT program and the 2008 rule introducing a 17-month extension for STEM students (STEM-OPT extension). The court dismissed the case, but ruled that the 2008 regulation was invalid because the Bush administration had failed to undergo the required notice-and-comment rulemaking process. However, the court allowed the Obama administration to issue the 2016 STEM-OPT regulation, which replaced the earlier rule and lengthened the STEM-OPT extension to 24 months. Soon after, WashTech challenged the 2016 regulation in court. Last month, the court ruled that WashTech could challenge the entire OPT program.
OPT participation has grown significantly over the years, with 1.4 million students on OPT between 2004 and 2016. Participation in the STEM-OPT extension increased by 400% between 2008 and 2016.
BAL Analysis: While the OPT and STEM-OPT litigation is being closely watched, it is important to note that the rules that allow eligible F-1 students to apply for work authorization under the OPT and STEM-OPT extension programs remain in place today. The judge has set a target date of March 6 to rule on the parties’ motions for summary judgment and decide whether the case will proceed to trial. If the judge grants summary judgment to one side, the losing party is likely to file an appeal. If the judge denies both motions, the case will proceed to trial. The judge could also grant partial summary judgment to either or both parties and issue a ruling on some issues, but leave others for trial. BAL continues to closely monitor the litigation and will provide updates on significant developments.
In two developments related to the Temporary Protected Status (TPS) program, a federal appeals court heard oral arguments on whether the administration should continue to be blocked from terminating TPS for four countries while the lawsuit proceeds, and U.S. Citizenship and Immigration Services has issued a policy memo regarding individuals holding TPS status and their eligibility to adjust status to permanent residence while in the U.S.
BAL Analysis: The TPS program remains in effect for El Salvador, Haiti, Nicaragua and Sudan at this time, though the Trump administration has argued for the Ninth Circuit to remove the injunction currently keeping the program in place. The court could issue a decision at any time.
The USCIS memo limits individuals holding TPS in seeking to adjust status (such as on the basis of a family-based or employment-based immigrant petition) if they were not admitted, inspected or paroled or if they did not continuously maintain lawful presence. Those individuals would be required to depart the U.S. to apply for a green card at a U.S. Consulate. Departing the U.S. could raise additional inadmissibility issues. The USCIS memo directs officers to follow Matter of H-G-G. It should be noted that the Sixth and Ninth Circuits have ruled that TPS does confer an admission, inspection or parole, so USCIS officers will respect those decisions in those jurisdictions only. However, when assessing whether a TPS holder has maintained lawful presence, USCIS officers will apply Matter of H-G-G in all jurisdictions.
When I prep employees for their green card interview, I give them a list of do’s and don’ts: dress businesslike, speak clearly, and look the interviewer in the eye; don’t overshare or attempt to answer before you understand the question.
A new warning now tops my list: be prepared for questions about social media accounts. Green card applicants should assume that U.S. Citizenship and Immigration Services officers have searched their public profiles for any red flags before their interview. What types of red flags? On professional networking sites, do the employee’s title, employer, and job description reflect the job they are currently performing, as well as the job on which their green card application is based? Does their work address match the worksite on their application? Is the work experience displayed on their profile or online resume consistent with descriptions elsewhere, such as their employer’s website?
Applicants should take a critical look at how government officials may perceive images and language. Photos or posts featuring alcohol, drugs, or political opinions could raise suspicion. Applicants in states where marijuana is legal should be aware that it remains a controlled substance under federal law and its use can render them inadmissible even without an arrest or conviction. Applicants’ associations and affiliations could also trigger questions: are they pictured in a relationship with someone other than their named spouse? Do their online comments or participation suggest membership in an organization, such as the Communist Party, that can be grounds for inadmissibility? Have they posted anything indicating that their intentions are at odds with the terms of their visa, such as working without authorization while on a student or tourist visa?
What was once an ad-hoc vetting measure is evolving into a standard procedure for U.S. authorities. In 2016, the Obama administration began asking visitors from the 38 visa-exempt countries to voluntarily provide their social media usernames when registering or renewing their online travel authorization (ESTA). After President Trump’s travel ban and “extreme vetting” directives in 2017, the State Department introduced a lengthy visa questionnaire, including social media questions, but only for applicants deemed to warrant scrutiny. The questionnaire may soon be required for all applicants. Meanwhile, the section requiring applicants to disclose all social media platforms and usernames they have used in the past five years was recently added to the nonimmigrant visa application. While social media questions are not (yet) mandatory for green card applicants, questions about their online profiles and activity are fair game during the green card interview. Applicants should be prepared to answer their interviewer’s questions if a search of their online presence turns up anything suspect.
Some employees have waited years for their green card interview. The stakes are too high for applicants not to perform a careful review of every photo, video, and post associated with them and be prepared to answer questions about any inconsistent, erroneous, or inappropriate content. When I tell clients to dress neatly and conduct themselves in a professional manner during their interview, I remind them that their social media profiles should be just as professional and tidy.
U.S. Citizenship and Immigration Services (USCIS) has announced that next month it will only accept employment-based adjustment-of-status applications based on the Final Action Dates chart that was published in the State Department’s September Visa Bulletin
The Dates for Filing chart will not apply. Employment-based immigrants must follow the Final Action Dates chart (below) to determine filing eligibility. Only applicants with priority dates earlier than the dates listed in the chart will be permitted to file their applications for adjustment of status in September.
Application Final Action Dates for Employment-Based Preference Cases:
USCIS also announced that family-based immigrants will be permitted to use the Dates for Filing chart for most categories in September.
BAL Analysis: As expected, the Final Action Dates will determine filing eligibility in September. Priority cutoff dates in key employment-based categories have retrogressed significantly, and the State Department said that additional “corrective action” is possible before the end of the fiscal year. The retrogression is most likely temporary, however. Officials said that “every effort will be made to return these final action dates to (at least) the dates which had originally been announced for August.”
U.S. Citizenship and Immigration Services announced today that it has returned all fiscal year 2020 H-1B cap-subject petitions that were not selected in this year’s computer-generated lottery.
Employers are reminded that it may take up to two weeks to receive all the returned petitions. USCIS received 201,011 cap-subject H-1B petitions during this year’s filing period. Data entry of all the H-1B cap petitions that were selected in the lottery was completed in May, and the agency subsequently started to return petitions that were not selected.
BAL Analysis: Employers who submitted H-1B cap petitions during the April filing period should receive either a receipt notice or a returned petition for their sponsored employees by Aug. 29. BAL has not yet received all returned petitions or receipts and is informing employers of returned petitions as they are received. In the meantime, BAL will continue to work with employers on possible alternatives for foreign workers who were not selected in the lottery.
The Office of Management and Budget completed its review this week of a plan to charge a fee for H-1B registrations, moving the proposal one step closer to implementation.
The fee is connected to the Department of Homeland Security’s plans to implement a mandatory online registration system for cap-subject H-1B petitions next year. In May, the agency asked OMB to review the plan, which would require a fee for each registration.
The government has not yet said what the fee amount will be, but DHS is now expected to publish a proposed regulation within weeks. The public will be invited to submit comments after the proposal is published in the Federal Register.
BAL Analysis: Both the new registration system and the fee are expected to be in place for the FY 2021 H-1B cap season. BAL will continue to track the proposed fee rule as it moves through the rulemaking process and will provide additional information about the new H-1B cap process as it becomes available.
Priority cutoff dates will retrogress significantly in key employment-based categories, according to the Final Action Dates chart published Thursday in the State Department’s September Visa Bulletin.
New cutoff dates in China EB-1, China EB-3, and India EB-3, all of which retrogressed, will take effect immediately. Visas in the India EB-1 category are unavailable for the remainder of the fiscal year. And India EB-2 will remain ahead of India EB-3 in September for the second straight month.
Key movements:
EB-1
EB-2
EB-3
Additional notes: Visas will be unavailable in the EB-4 category for religious workers (other than ministers). EB-5 categories will remain current for all countries other than China, India and Vietnam. China I5 and R5 and Vietnam I5 and R5 will have a final action date of Oct. 22, 2014. India I5 and R5 will have a final action date of Sept. 17, 2017.
The State Department also released its Dates for Filing chart for September. Applicants are reminded that the Dates for Filing chart does not take effect unless U.S. Citizenship and Immigration Services confirms that it does via a web posting in the coming days.
BAL Analysis: The State Department cited high demand for the retrogression in employment-based categories, and said “it is likely” that additional “corrective action will also be required” before the fiscal year ends on Sept. 30. The retrogression is most likely temporary, however. The State Department said that “every effort will be made to return these final action dates to (at least) the dates which had originally been announced for August.”