Canadian cannabis workers targeted by U.S. border guards for lifetime bans

As tensions between Canada and the U.S. have risen in recent months, a quieter, slower-burning conflict has been developing along the border: Canadians associated with the cannabis industry — even if they have never used the drug — can be banned for life from America.

Despite Washington State legalizing cannabis within state boundaries, the border is under federal jurisdiction. And since cannabis, along with drugs such as heroin and cocaine, is a Schedule I substance, past or current association with the drug is considered a federal crime in the U.S. Canadians involved in the cannabis economy are finding themselves hit with lifetime bans on entry to the U.S. for violating federal drug law. Immigration lawyers and policy experts say there is little hope of the situation improving.  (ELAINE THOMPSON / THE ASSOCIATED PRESS)

Jay Evans, CEO of Keirton Inc., an equipment manufacturer, was recently given a lifetime ban on entering the United States when border guards discovered some of his machines are used by cannabis producers. Experts say an increasing number of Canadians involved in the cannabis economy are learning the same lesson the hard way. Canadians involved in the cannabis economy are finding themselves hit with lifetime bans on entry to the U.S. for violating federal drug law. Immigration lawyers and policy experts say there is little hope of the situation improving.  

In addition to those who have used marijuana, Canadians who are involved with the cannabis economy have been labelled “inadmissible” because they are considered to be living off the profits of the drug trade. Once banned for life, they must seek legal waivers from an immigration lawyer — good for between one and five years — for the rest of their lives when they wish to cross the border. A Bureau of International Narcotics and Law Enforcement Affairs press officer for the U.S. State Department told The Star via email that “admission requirements into the United States will not change due to Canada’s legalization of cannabis.”

Blaine, Wash.-based immigration lawyer Len Saunders said he hears from Canadians seeking waivers for inadmissibility because of cannabis at least once or twice a week — up from one or two cases per year 15 years ago.

Jay Evans, CEO of agricultural equipment manufacturer Keirton Inc., was crossing into the U.S. in early April along with two employees, both engineers with Nexus passes and spotless criminal records. They’d intended to meet with an American company to begin design work on a new machine that would streamline labour costs for cannabis producers.“We had not yet designed the product, we had not yet marketed the product and we’d not yet sold the product,” Evans said in an interview.

During routine questioning, one of the three men mentioned their design would eventually be used in the Canadian cannabis industry, and they were immediately taken into the secondary inspection facility for further scrutiny. Keirton is not involved with the production, distribution or sale of cannabis. But because its equipment is explicitly intended to be used by people who are, Evans and his colleagues were told after a six-hour interview they were “drug traffickers” according to U.S. federal law.

“The border guard supervisor told me he felt really bad, and felt it wasn’t right, and had a lot of empathy toward us,” Evans said. Nevertheless, Evans and his coworkers now have lifetime bans on entering the United States, and must obtain waivers allowing them temporary entry into the country.

With cannabis legalization set to take effect in October, the industry could generate more than $7 billion in its first year, according to a recent report from Deloitte, with tens of thousands of Canadian jobs expected to be created as the cannabis market continues to grow. “My prediction is, come Oct. 17, it’s going to be a tidal wave of cases,” Saunders said.

Sanho Tree, director of the Drug Policy Project at the Institute for Policy Studies in Washington, D.C., agrees with Evans’ and Saunders’ analysis. Tree said this “new wave of intensity” of border enforcement may be another symptom of increasingly “draconian” federal attitudes toward immigration and drugs under the current administration.

The border guards have the right to search travellers’ electronic devices, and download their content, but have also taken to searching their social media looking for clues as to who might be involved — even indirectly — in the drug trade.

But Bernstein said he’s under the impression the issue of Canadian inadmissibility is currently on the back-burner for the federal government. Canadian venture capitalists have seized on this opening, offering investments from Canada where such transactions are legal. But when crossing over into the U.S., many are surprised to find they’re now considered to be living off the avails of crime in the eyes of U.S. federal law.

“It’s going to happen even more, and especially now that they’re going after business travellers, it’s going to be the Wild West at the border,” he said. “It’s going to be crazy.”

Can a family member translate for a family member being interviewed by an immigration office?

USCIS Policy Manual: 

The interpreter must be impartial and able to interpret without bias. An impartial and unbiased individual is one who does not have a predisposition or preconceived opinion about a matter. A predisposition or preconceived opinion may prevent the individual from interpreting information accurately, literally and fully or making a reliable interpreter declaration.  

Officers must consider potential conflicts of interest between an interviewee and his or her proposed interpreter, as well as any other circumstances that might interfere with the interpreter's ability to provide an accurate, literal, and full interpretation. Interpreters and the interviewees must disclose any relationship, predisposition, or preconceived opinion that could affect the interpreter's objectivity and consequently his or her ability to provide impartial and objective interpretation during the interview. For example, some friends, family members, or persons with financial connections to the interviewee (e.g. business partners) could have either actual conflicts of interest with the interviewee or have a strong personal interest in the interviewee obtaining the immigration benefit at issue such that the proposed interpreter is not able to provide impartial and unbiased interpretation services.9 As such, family members will generally be disfavored as interpreters if there is another qualified interpreter available to the customer. Upon disclosure, the officer must use his or her discretion in making a determination as to whether the circumstances will interfere with the interpreter's ability to interpret objectively and provide an accurate and truthful interpretation of the information conveyed during the interview. If the officer determines that despite the relationships or other circumstances disclosed, the interpreter can still provide competent, impartial and unbiased interpretation, then the interpreter may normally be accepted.10   


Where the proposed interpreter is a derivative (e.g., spouse or child) of the interviewee and could obtain an immigration benefit if the interviewee's application or petition is granted, the officer should be particularly vigilant in making his or her determination as to whether the derivative may, nevertheless, be able to meet the impartiality and unbiased requirement. The officer should continue such vigilance throughout the interview for any signs that the interpreter is violating the interpreter's Declaration.11 However, the officer must not predetermine that a derivative beneficiary is disqualified from serving as an interpreter, due to a conflict of interest, solely because he or she is a derivative beneficiary.  

Interpreters who are witnesses in the case-at-hand constitute a special subset of individuals who are likely to be inherently partial and biased, and, therefore, may be less likely to be able to provide accurate, literal and full interpretation. For this reason, witnesses are restricted from serving as interpreters. However, exceptions may be made at the discretion of the officer if there is good cause. See section (c), Restricted Individuals, and, Section (d), "Exceptions for Good Cause." As with any interpreter, a witness who is permitted to serve as an interpreter must demonstrate fluency, competency, and impartiality before and throughout the course of the interview.  


Please note that some family derivatives may be witnesses, but not all derivatives are witnesses. Similarly, witnesses may also be non-derivatives. An exception for good cause is only required if the family derivative is also a witness in the case and the interviewee wishes to have his or her derivative interpret at the interview. However, officers must carefully consider whether the derivative is capable of interpreting impartially and without bias.  

Changes to definition of public charge

The Trump Administration is aiming to broaden the definition of who is likely to become a public charge.  One who is likely to become a public charge can be refused a visa to enter the United States or denied adjustment of status to permanent residence within the United States.  This proposal is still in draft format and has not yet become a rule. However, when it becomes a rule, foreign nationals who rely on government benefits will be found inadmissible under the public charge ground. Current policy allows officials to consider only two types of public benefits that would result in a negative public charge determination: cash assistance for income maintenance and institutionalization for long-term care at government expense.

While the proposed regulatory change is under review, the State Department’s Foreign Affairs Manual (FAM) has already made it easier to find visa applicants inadmissible under the public charge ground.  Under INA 212(a)(4), a foreign national seeking to be admitted to the United States as either a nonimmigrant or an immigrant will be found inadmissible if he or she is likely to become a public charge at any time. The law allows officials to look at a foreign national’s age, health, family status, assets, resources and financial status; and education and skills. Pursuant to INA 213A, a properly executed affidavit of support by a US sponsor, Form I-864, may overcome a public charge determination in all family immigration and in some employment-based cases. An I-864 clearly constitutes a contract between the sponsor and the government.


The State Department FAM (amended on 1/3/2018) broadened the ability of a consular officer to make a public charge determination, rendering it easier to refuse an immigrant visa. Specifically, new FAM provides: “In General: In making a determination whether an applicant is inadmissible under INA 212(a)(4)(B), in every case you must consider at a minimum the applicant’s: Age; Health; Family status; Assets, resources, and financial status; and Education and skills. These factors, and any other reasonable factors considered relevant by an officer in a specific case, will make up the “totality of the circumstances” that you must consider when making a public charge determination. Value of the Affidavit of Support: A properly filed, non-fraudulent Form I-864 in those cases where it is required, is a positive factor in the totality of circumstances. The applicant must still meet the INA 212(a)(4) requirements and satisfy the “totality of circumstances” analysis, which requires the consideration of the factors listed in paragraph (1) above.”  Under the new FAM guidance, a properly executed Form I-864 will only be considered “a positive factor in the totality of circumstances” even though it is a binding enforceable contract that allows the government agency to claim reimbursement of the cost of the benefit that was provided to the foreign national. Compare the new language with the January 19, 2017 version of the public charge definition in the FAM, which stated: “a properly filed, non-fraudulent Form I-864 in those cases where it is required, should normally be considered sufficient to meet the INA 212(a)(4) requirements and satisfy the “totality of the circumstances” analysis.  Nevertheless, the factors cited above could be given consideration in an unusual case in which a Form I-864 has been submitted and should be considered in cases where Form I-864 is not required.” Under the new FAM guidance, a non-fraudulent I-864 will no longer be considered sufficient to overcome the public charge requirements under INA 212(a)(4). A DOS official confirmed that the I-864 is now just one part of the holistic determination, which includes family ties, work history, health issues and other factors. DOS will look behind the affidavit of support if the consular officer believes that the sponsor is not likely to comply with his or her obligations.

Applicants should no longer assume when they process their green card at a US consulate that an I-864 will be deemed to overcome a public charge finding. The green card applicant must also demonstrate his or her own history of employment, or ability to obtain employment, along with prior tax filings. The visa applicant must also be ready to demonstrate a meaningful relationship with a co-sponsor, if there is one.  Finally, the I-864 must be accompanied by the required corroborating documentation pertaining to the sponsor such as tax returns, employment documents and evidence of assets, if applicable.

Regulatory Relief Bill Passes Congress – Is Mortgage Lending Freedom Ahead?

Change is coming to the mortgage industry in the form of lessened restrictions for many community banks, along with greater consumer protections. The Economic Growth, Regulatory Relief and Consumer Protection Act—a bill that looks to roll back many Dodd-Frank Wall Street Reform and Consumer Protection Act regulations imposed in 2008 following the financial crisis—is currently on its way to President Donald Trump’s desk to be signed into law.
Industry professionals are largely in support of the bill, as it would prove beneficial to real estate lending, particularly for smaller banks that provide mortgages to homebuyers. The hope is that the bill will allow smaller lenders to be more community engaged, hopefully providing greater access for mortgage credit to consumers. 
The National Association of REALTORS® (NAR) has long supported the bill and ahead of the vote sent a letter to the House of Representatives in support of the bill and on behalf of all members. The letter cited the following benefits:
• Removes undue regulatory burdens for community banks and credit unions that stand in the way of affordable credit for businesses and consumers
• Proposes Fannie Mae and Freddie Mac framework for considering alternatives to credit scores, taking into account other financial factors for mortgage eligibility
• Provides the Bureau of Consumer Financial Protection access to regulate Property Assessed Clean Energy (PACE) lenders, enforcing vetting of homeowners’ ability to repay loans levied as tax assessments on their homes
• Amends the Federal Deposit Insurance Act, clarifying requirements for acquisition, development or construction (ADC) loans
• Prohibits manufactured housing retailers and sellers from being defined as loan originators if they do not receive compensation or gain for taking loan applications for residential mortgages
NAR believes that the bill is very good news for homebuilders because they need to get funding from small sized banks and not from Wall Street. This will permit more construction loans, creating more inventory. Various other housing institutions have been vocal since the bill’s passing, as well. The National Association of Home Builders (NAHB) followed suit and also sent a letter in support of the bill, claiming that the Act contains critical reform elements that would help to alleviate the tight credit conditions that are keeping more buyers on the sidelines even as the housing market strengthens. 
In addition, the Mortgage Bankers Association (MBA) applauded the House for its passing vote, claiming this bill will protect consumers and provide greater access to mortgage credit. Which, as we know, a hard balance to achieve. Many market participants, from real estate professionals, to investors, to regular citizens, became very concerned. “Apparently we have not learned from the mistakes of the past. Lessening regulations will certainly put all of us at risk for another market crash” stated one seasonal real estate professional. 
Community banks, who stand to benefit the most from the bill’s passing, are celebrating the win. “This hard-fought, long-awaited community bank regulatory relief legislation will put community banks in an enhanced position to foster local economic growth and prosperity. By unraveling some of the suffocating regulatory burdens community banks face, they are better able to unleash their full economic potential to the benefit of their customers and communities,” Independent Community Bankers of America® (ICBA) President and CEO Rebeca Romero Rainey said in a statement. 
However, that sentiment is not shared by all participants. “I am personally concerned that the people in Congress have had a case of amnesia and forget the recession and what happened in its aftermath. It is not going to help to change anything for small community banks since most of them don't have the assets to provide loans to begin with and they are usually just fronts for selling off those loans to the large banks anyway. All it does is provide the local bank a chance to add charges on top of another loan for the cost of originating it. They rarely service those loans so that money doesn't go into their local economy. Lessening the standards also will mean that those mortgage-backed securities will become riskier, as they did before the recession, and with this "amnesia' likely also affecting the banks - who, by the way, have made all their lawsuit DOJ paid funds back already - and riskier loan products will be given out. Get ready for the next 3-5 years to be another roller coaster.” This opinion also shared by many market participants. Only time will tell.

Jeff Sessions issued sweeping decision banning administrative closures of immigration cases by immigration judges. 

Attorney General Jeff Sessions issued a directive on Thursday that places limits on a tool commonly used by immigration judges and could put hundreds of thousands of deportation cases that are essentially closed back on federal court dockets.

The move, issued in an interim decision, is unlikely to reopen all the cases. But Mr. Sessions said that immigration courts could not put such cases on indefinite hold by using a practice known as administrative closure, which temporarily removes a case from a judge’s calendar and delays a proceeding that could remove an immigrant from the country.

Immigration judges “do not have the general authority to suspend indefinitely immigration proceedings by administrative closure,” he wrote in the decision, and the practice “effectively resulted in illegal aliens remaining indefinitely in the United States without any formal legal status.”

The move injects fresh uncertainty into the lives of undocumented immigrants living in the United States, and some critics say the decision could lead to their deportation before they could gain legal status.


“Sessions is using his authority as attorney general to turn the immigration courts into a deportation assembly line, with ICE officers waiting at the exits with open handcuffs in hand,” said David W. Leopold, who oversees the immigration law group at Ulmer & Berne, referring to United States Immigration and Customs Enforcement.

Mr. Sessions, an immigration hard-liner, said that the directive paved the way for such court cases that had been “put ‘out of sight, out of mind’” to return to dockets in courts across the country. From October 2011 to last September, 215,285 cases were administratively closed.

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But doing so could inundate the court system. “Requiring recalendaring of all of these cases immediately, however, would likely overwhelm the immigration courts and undercut the efficient administration of immigration law,” Mr. Sessions wrote.

Given the logistical problems that could follow, the cases could remain closed “unless D.H.S. or the respondent requests recalendaring,” he said, referring to the Department of Homeland Security.

Critics also expressed concern over the number of cases that could be reopened, saying that the decision eliminated a critical tool that helped ensure the court system would not be bogged down with a huge backlog of cases.


Mr. Sessions dismissed the inherent authority of judges to manage immigration court proceedings “with the stroke of a pen,” said Annaluisa Padilla, the president of the American Immigration Lawyers Association.

To address such a backlog, the Justice Department has enacted a plan that includes streamlining its hiring process for judges, increasingly using video teleconferencing to let judges adjudicate cases from around the country and a new electronic filing system.

The Justice Department said Mr. Sessions’s opinion eliminated the “unfettered use” of administrative closures and better aligned the immigration system with the rule of law.

But Benjamin Johnson, the executive director of the immigration lawyers association, said the directive chipped away at due process.

“Due process demands that we maintain an immigration court system with independent judges who have the authority and flexibility to make decisions,” Mr. Johnson said.

Immigration advocates also said the practice of administrative closure often offered flexibility. The process is frequently used when an immigrant facing deportation could obtain legal status through another agency, including, for example, whether a person could become eligible for a green card by marrying a United States citizen. The judge may use administrative closure to shelve the case while the Citizenship and Immigration Services evaluates whether the marriage is legitimate.

“Administrative closure gives immigration judges critical flexibility and discretion to make fair, due process-based decisions in deportation cases,” said Mr. Leopold.


A new bill in California is to bar the disclosure of the immigration status of alleged crime victims and witnesses

California Senate on Thursday sent Gov. Jerry Brown a bill that would bar the disclosure of the immigration status of alleged crime victims and witnesses in open court unless a judge rules the information is relevant to the case.

Sen. Scott Wiener (D-San Francisco) introduced the bill after the state’s top judge expressed concerns over reports of immigration agents following immigrants in California courthouses. The efforts were seen as part of President Trump’s call for increased enforcement by U.S. Immigration and Customs Enforcement (ICE). The proposal is the latest in a series of measures aimed at protecting immigrants in the country illegally. The state previously has restricted the ability of local law enforcement and businesses to cooperate with federal immigration agents.
California Chief Justice Tani Cantil-Sakauye, a supporter of the new legislation, has said there are no data on how many or how often immigrants have been detained. But at courthouses, she said, federal immigration agents have reportedly picked up domestic violence victims, and at probation offices, they have demanded to see the daily list of people due to appear "to check all the foreign-sounding names."

The bill would prohibit a person’s immigration status from being revealed in open court unless a judge finds in a videotaped hearing that it is admissible evidence. The new law would protect witnesses, victims and defendants and apply in all criminal cases and most civil cases, except those involving personal injury or wrongful death.

“SB 785 is a bill that will allow immigrants to testify in court without fear that their immigration status will be used on the stand to harass them and really to dissuade immigrants from even coming to court to testify,” Wiener said before the bipartisan 31-6 vote to approve the bill.
The measure was opposed by the California News Publishers Assn., which found the measure interfered with the public’s right to monitor the courts and the judicial system. The publishers said a videotaped hearing banned people from attending meetings that would occur in private chambers. Jim Ewert, CNPA general counsel, said the proposed law “chips away at the integrity of the system.” “The courts are presumptively open and that has been a constitutional and historical standard for centuries in this country,” he said. 

As an urgency measure, the bill was previously approved by a two-thirds vote of the state Assembly, and would take effect immediately if and when Brown signs it. The proposed law is co-written by Assemblywoman Lorena Gonzalez Fletcher (D-San Diego) and supported by San Francisco Dist. Atty. George Gascòn and the Coalition for Humane Immigrant Rights. 

 A game-changer decision on a major labor dispute just passed in California

A game-changer decision on a major labor dispute just passed in California

Workers won a major victory over employers this week in the California Supreme Court. The ruling could force Inc., Uber Technologies Inc., Lyft Inc. and other purveyors of the gig economy to rethink their relationships with workers in America’s most populous state. Whether it’s Amazon Prime Now delivery workers, Uber or Lyft drivers, or food delivery couriers working for DoorDash or Postmates, these companies have insisted that their workers are independent contractors. That designation has deprived those people of minimum wage guarantees, some Social Security benefits, workers compensation provisions, mandated breaks and other protections to which employees are entitled. The companies argue that an independent contractor designation gives people the flexibility to work for multiple companies at once, set their own hours and schedules, and to work the way they want.

In a game-changing ruling, California expanded protections for workers, placing the burden on employers to prove that workers are independent contractors, not employees. The court wrote that minimum requirements for employees are meant to “‘prevent the type of race to the bottom’ that occurs when businesses implement new structures or polices that result in substandard wages and unhealthy conditions for works.” The 82-page ruling in Dynamex Operations West Inc. v. Superior Court of Los Angeles is worth a read if you want a look at the evolution of labor protections in California. Here’s the gist: Dynamex oversees a fleet of workers who make deliveries for companies like Home Depot and Office Depot. In 2004, Dynamex—after years of designating its delivery workers as employees—decided to start calling them independent contractors. The next year, a former Dynamex deliveryman named Charles Lee filed a lawsuit arguing that the workers were being denied protections to which they were entitled. The case has been winding its way through the courts since then as the delivery drviers have fought to take the class action to trial.

On Monday, the state Supreme Court effectively expanded protections for workers, handing down a ruling that implements what’s called an “ABC” test. A similar model has been embraced by other states, including Massachusetts, creating a three-part standard to decide whether a worker is an independent contractor. If any one of the components isn’t met, then the worker is considered an employee by law. The three conditions in California are as follows:

(a) that the worker is free from the control and direction of the hirer in connection with the performance of the work, both under the contract for the performance of the work and in fact; and

(b) that the worker performs work that is outside the usual course of the hiring entity’s business; and

(c) that the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as that involved in the work performed

In the Dynamex case, the court found that the company failed to meet either provision (b) or (c). That Dynamex is itself a transportation company should be particularly worrying for delivery and ride-hailing services. If you think that Uber and Lyft are primarily transportation companies, then the work their drivers perform seems pretty core to their businesses, raising the specter that they could run afoul of provision (b). These are not plumbers and electricians dropping by the office—they’re core to the service. “I think this is huge deal for Uber,” said Michael Chasalow, a professor at the University of Southern California’s law school. Uber could react swiftly to the ruling, he said. “I would be surprised if Uber has not already anticipated this, at least as a contingency and has considered different legal ways to address this,” Chasalow said.

While this ruling only affects California, it’s a state that casts a long legal shadow. Other courts or legislatures could follow its lead. And as the home state for many of the world’s largest technology companies, it could force them to rethink how they label their workers, potentially raising the cost to provide their services. The case is a clear sign for ride-hailing companies that the employment status of their drivers hasn’t been resolved, even if it’s out of the headlines. These court cases—as we see in Dynamex, which began in 2005—can take years to come to a resolution. I have to expect that when Uber and Lyft file to go public as early as next year, the dubious legal status of their drivers will rank among the companies’ risk factors—unless they act before then.


The number of H1-B visas in tech has tremendously decreased

A new study shows that U.S. tech companies are relying more on skilled foreign workers using H-1B visas, while Indian outsourcing firms are losing their previous stronghold in the area. According to the study, four U.S. tech companies — AmazonMicrosoftIntel and Google — were among the top 10 employers for approved H-1B applications in fiscal year 2017, which ended Sept. 30, and they all saw increases of more than 10 percent from the previous year. Amazon saw a nearly 80 percent increase in approved H-1B visa applications from the year before, reflecting its growth in the U.S. Facebook saw an increase of 53 percent, and Apple saw a 7 percent increase.

But the overall number of applications is going down, thanks in part to a decrease in applications from Indian outsourcing firms. Immigration attorneys who work with tech companies to file H-1B visa petitions on their behalf say there's also been increased regulation and scrutiny since the Trump administration took over, making the application process more arduous, costing more time and money. Overall, U.S. Citizenship and Immigration Services received 190,098 applications for the fiscal year that begins in October 2018 (FY 2019) versus 199,000 last year and 236,000 in FY 2017. USCIS gives 85,000 new H-1B visas each year, with 20,000 of those set aside for those with advanced degrees.

The top seven Indian technology companies were given a total of 8,468 H-1B visas in FY 2017 versus 9,356 in FY 2016, a 9.5 percent drop. This follows a massive drop from FY 2015, when these companies got 14,792 H-1B visas. One of the largest Indian outsourcing firms, Infosys, saw a 49 percent drop between FY 2016 and FY 2017.

NASSCOM, a trade association that represents India-based IT companies, said that in recent years these companies have increased hiring in the U.S. and reduced the number of H-1B visa applications they submit. NASSCOM adds the increased uncertainty from regulators makes it more difficult to hire foreign workers and "companies will face a choice between shifting more IT work to offshore locations, where larger talent pools are available on better terms; or delaying innovation because of the lack of local talent in the US. Cutting off access to talent will not generate more American growth, innovation, or jobs."

Immigration lawyers say that the number of applications he submitted on behalf of his clients this year and last year was pretty steady. However, he added that the increased scrutiny has made employees more nervous.

Others echoed that sentiment and says the slight decrease could be due to immigration-related rhetoric following Trump's election. "Since that time, there have been significant policy changes that are discouraging U.S. companies from proceeding with H-1B cases," she added.

This includes increased questioning from USCIS about whether certain types of jobs, such as a computer systems analyst, qualify as "specialty occupations" eligible to apply for an H-1B visa. USCIS also questioned the wages of these occupations. the decrease is not surprising given the "unpredictable" new policies and regulations.

"These factors, which contribute to the administration's 'invisible wall' on immigration, have forced some employers out of the process, including many new and emerging companies that need specific talent to develop innovations and grow, but who can't afford to gamble time and money on the 'maybe' of an H-1B visa," Johnson said.


The 90 Day Misrepresentation Provision in the Foreign Affairs Manual

State Department amended the Foreign Affairs Manual in September 2017 to provide consular officers with broader grounds to find that foreign nationals misrepresented their intentions when they came to the United States on nonimmigrant visas. A finding of fraud or misrepresentation under INA § 212(a)(6)(C)(i) can result in a permanent ground of inadmissibility.

To reiterate, the updated FAM provision at 9 FAM 302.9-4(B)(3)(g)(2) covers instances of conduct that may be inconsistent with representations that visa applicants made to consular officers when applying for nonimmigrant visas or to DHS officers at US ports of entry at the time of admission. The inconsistent conduct must have occurred within 90 days of entry, and the FAM instructs consular officers to presume that the applicant’s representations about engaging in status compliant activity were willful misrepresentations of his or her intention to seek a visa or entry into the United States. If the foreign national engaged in conduct inconsistent with his or her nonimmigrant status more than 90 days after entry, no presumption of willful misrepresentation arises, although consular officers may still find facts that provide a reasonable belief that the foreign national misrepresented his or her purpose of travel at the time of applying for a visa or admission into the US. Although this provision is popularly known as the “90 Day Misrepresentation Rule ”, the FAM is not  codified law or regulation, but merely sub-regulatory guidance for consular  officials abroad.

The FAM cites the following examples of inconsistent conduct that can result in a presumption of willful misrepresentation:

Engaging in unauthorized employment;

Enrolling in a course of academic study, if such study is not authorized for that nonimmigrant classification (e.g. B status);

A nonimmigrant in B or F status, or any other status prohibiting immigrant intent, marrying a United States citizen or lawful permanent resident and taking up residence in the United States; or

Undertaking any other activity for which a change of status or an adjustment of status would be required, without the benefit of such a change or adjustment.

A literal reading of the four criteria seem to suggest that the inconsistent activity resulting in a presumption of misrepresentation must have occurred in the absence of filing an application for change of status or adjustment of status that would otherwise authorize such an activity.  The way the FAM provision literally reads is contrary to how this has previously been understood, which is that if a foreign national filed an adjustment or change of status application within 90 days of entry, it created a rebuttable presumption that the person misrepresented his or her intentions upon initial entry. Prior to the introduction of the new FAM provision, it was similarly understood that filing a change of status or adjustment of status application within 30 days created a rebuttable presumption of fraud or willful misrepresentation. If such an application was filed more than 60 days later, there would be no such presumption.

Let’s carefully start our analysis with the fourth criterion under 9 FAM 302.9-4(B)(3)(g)(2)(b)(iv): Undertaking any other activity for which a change of status or an adjustment of status would be required, without the benefit of such a change or adjustment.


Assume that a person is admitted into the United States in B-2 status for purposes of tourism but who is also an exceptional violinist. Suppose this person begins to get paid for violin performances within 30 days of admission. Such an activity would likely be inconsistent with the purpose of the B-2 visa and she would probably be presumed to have misrepresented her intentions under the 90 day guidance. On the other hand, if this person’s employer first files a change of status from B-2 to O-1B (a visa for people who can show extraordinary ability in the arts or extraordinary achievement in the motion pictures or television industry) on the 30th day, and she only begins to concertize as a violinist after the O-1B petition and request for change of status from B-2 to O-1B is approved, a literal reading of the fourth criterion suggests that the 90 day rule has not been implicated. This person undertook the work activity “for which a change of status would be required” and should not be presumed to have misrepresented under INA § 212(a)(6)(C)(i) even though the change of status application was filed within 90 days.

It should be noted that this interpretation must be viewed from the State Department’s perspective that resulted in this guidance in the FAM. The USCIS, which adjudicates visa petitions within the US, will not be bound and the DOS is not trying to ask other agencies to follow this interpretation. Thus, what the DOS is really saying is that if the USCIS approves such a change of status petition that was filed within 90 days, a consular official will not find a person inadmissible for misrepresentation, if the USCIS already approved it. According to the way 9 FAM 302.9-4(B)(3)(g)(2)(b)(iv) literally reads, which a DOS official confirmed recently at a conference,  the 90 day guidance is not implicated if the foreign national files a change of status or adjustment of status application even within 90 days and then seeks to engage in conduct consistent with the new status. The guidance is implicated, rather, if the foreign national engages in conduct that is inconsistent with their present status such as working while in B-2 status without first filing and obtaining a change of status that would authorize such work activity. In other words, filing a change or adjustment of status application within 90 days of entry ought not create a presumption of willful misrepresentation for a consular officer especially if it was approved by the USCIS.

This interpretation, while at first blush appears not to square with the third criterion,  9 FAM 302.9-4(B)(3)(g)(2)(b)(iii) (“A nonimmigrant in B or F status, or any other status prohibiting immigrant intent, marrying a United States citizen or lawful permanent resident and taking up residence in the United States”)  may be harmonized if it is read in conjunction with the fourth criterion at 9 FAM 302.9-4(B)(3)(g)(2)(b)(iv)(“Undertaking any other activity for which a change of status or an adjustment of status would be required, without the benefit of such a change or adjustment”).

This nuanced reading may run contrary to the way the presumption of misrepresentation has always been understood, which has meant that a nonimmigrant who entered on a B-2 visa, married a US citizen and applied for adjustment of status within 90 days would presumptively be found to have made a misrepresentation at the time of entry. Such a reading may not be universally accepted and obviously should not be relied upon until it gains more acceptance by all the agencies. It may never gain acceptance since the same language in current 9 FAM 302.9-4(B)(3)(g)(2)(b)(iv) existed under the old version of the 30-60 day rule too and was never interpreted in this way previously.   The USCIS has questioned adjustment applicants regarding their intention at the time of admission when they filed soon after entry into the US. Also, when one files a change of status from B-2 to F-1, the USCIS often questions when the applicant contacted the school from the time of admission in order to gage the applicant’s true intention and whether it was contrary to the purpose under the B-2 visa. Still, the literal reading ought to be invoked as a defense to those who have been accused of misrepresentation, but never engaged in inconsistent activity prior to filing an application for change of status or adjustment of status.

This reading also makes perfect policy sense. It makes little sense to penalize a student who has been living lawfully for years in F-1 status, and who after travelling abroad on a brief vacation marries his fiancée and files an adjustment of status application within 90 days. Under a literal reading of the FAM guidance, the presumption of fraud or misrepresentation is not implicated, although under the way it has been traditionally understood, it would be because the student unfortunately took this vacation abroad prior to his marriage and the filing of the adjustment application within 90 days. Moreover, the literal reading does not totally eviscerate the presumption of fraud or misrepresentation. The 90 day guidance would still apply to those who violate immigration laws. Thus, a person who enters as a tourist and starts working within 90 days without filing for a change of status to a nonimmigrant work visa status would implicate the rule when she next visits the US Consulate for a new visa. The prior activity would have resulted in a rebuttable presumption of fraud or misrepresentation, and she may be found inadmissible under INA § 212(a)(6)(C)(i). However, if this same person, like the violinist in our prior example, followed the law and started working only after the O-1B request for a change of status was approved, the 90 day rule ought not be implicated.

Furthermore, a person would not be able to get away when there is obvious evidence of a misrepresentation at the time of applying for a visa or upon admission. For example, if a person applies for a business visa supported by documentation to further a business purpose in the US, and upon entry, does not conduct any business activities whatsoever but instead seeks admission at a school and applies for change of status to F-1, that person would most likely be found inadmissible for misrepresenting that there was a business purpose to visit the US when there was none. A literal reading would only likely eliminate a presumption of misrepresentation where the person otherwise came to the US pursuant to the stated purpose and then applied for a change of status to perform another activity within 90 days.

The literal reading of the 90-day provision in the FAM also supports the dual intent doctrine. Notwithstanding the codification of dual intent in statute and regulation, there is a recognition of inherent dual intent in all nonimmigrant visa categories. In Matter of Hosseinpour, 15 I&N Dec. 191 (BIA 1975), the Board of Immigration Appeals following earlier precedents held that “a desire to remain in this country permanently in accordance with the law, should the opportunity to do so present itself, is not necessarily inconsistent with lawful nonimmigrant status.” Thus, conflating a desire to remain in the United States upon the occurrence of certain conditions is not inconsistent with any nonimmigrant visa classification at the time of applying for the visa or admission. See e.g. Garavito v. INS, 901 F.2d 173 (1st Cir. 1990) (the filing of an immigrant visa petition on behalf of a foreign national does not negate nonimmigrant intent). Even the most recent change in the F-1 nonimmigrant standard implicitly allows dual intent, specifically stating that “the hypothetical possibility that the applicant may apply to change or adjust status in the United States in the future is not a basis to refuse a visa application.” 9 FAM 402.505(E)(1). Thus, persons should not be penalized if they wish to enter the US to engage in activities that may be inconsistent with their initial visa provided they pursued activities consistent with the initial purpose and then successfully file change of status or adjustment of status applications that would permit them to pursue those other activities.

America needs more workers. Trump’s war on immigration won’t help.

PRESIDENT TRUMP makes no secret of his distaste for immigrants, nor of his support for measures to slash both legal and illegal immigration. Even as his crusade to close borders intensifies, however, American employers in an array of industries — manufacturing, agriculture, trucking, home building, energy, food service, retail and others — are warning that a long-brewing labor shortage is reaching crisis proportions.

The causes of America’s worker shortfall include an aging population and a birthrate that recently hit a historic low. With the jobless rate bumping along at just above 4 percent, companies desperate to fill orders and meet demand are pumping up their recruiting budgets and in some cases turning to ex-convicts to fill jobs.

If the employee deficit seems bad now, signs indicate it will get worse — even as Mr. Trump orders stepped-up deportation efforts and pushes legislation to slash annual legal immigration, currently about 1 millionby half. In a Barron’s article titled “The Great Labor Crunch,” a Wall Street strategist, Thomas J. Lee, projects a nationwide shortage of 8.2 million workers in the coming decade.

The Wall Street Journal reports that if every last jobless citizen in the 12 Midwestern states filled an open job in the region, 180,000 positions would still be left unfilled. Wisconsin is so starved of workers that it has launched a $1 million marketing campaign aimed at luring millennial job applicants from Chicago — where the jobless rate is just above 5 percent.

The argument that sufficient numbers of workers would materialize if employers raised wages is crumbling in the face of demographic reality. By 2030, the Census Bureau reports, the U.S. working-age population is projected to grow by 3 percent even as the total population balloons at three times that rate — an imbalance owing mainly to aging. Five years later, the number of Americans age 65 or older will outstrip those under 18for the first time ever. Although more people are delaying retirement, economists say an aging population will depress productivity growth, which has already slowed alarmingly.

Mr. Trump says that the U.S. immigration system should tilt toward favoring more skilled and English-proficient workers; in fact, the legislation he backs would freeze the number of such immigrants at current levels while drastically reducing unskilled ones. The trouble is that employers in food processing, retail, landscaping and other industries that rely on low-skilled labor are already desperate for workers. If they can’t hire immigrants, who will fill those jobs? In Canada, which Mr. Trump extols for favoring more educated immigrants, companies report soaring worker shortages.

There’s a model for what Mr. Trump advocates — an unsuccessful one. It’s Japan, whose own fading economic prospects are a direct result of an aging population and an array of barriers to immigration. Nativism has paid political dividends for Mr. Trump; it is highly unlikely to pay economic ones. By driving away legal and illegal immigrants even as unemployment flatlines and baby boomers retire, he deprives businesses of oxygen in the form of labor. That’s not a recipe for making America great.

Fearlessly Challenging H-1B Visa Denials Through Litigation

As we have blogged about extensively in the past, President Trump’s “Buy American and Hire American” Executive Order No. 13788 has had the most negative impact on the H-1B visa program. Following this pattern, the recent trend by the U.S. Citizenship and Immigration Services (USCIS) heading into the Fiscal Year (FY) 2019 H-1B Cap filing season has been to rely on the Department of Labor’s (DOL) Occupational Outlook Handbook (OOH) to arbitrarily deny H-1B visa petitions for Information Technology (IT) positions, such as computer systems analysts. In RFEs and denial decisions, USCIS states that they recognize the OOH as an “authoritative source on the duties and educational requirements” of a variety of occupations, and has used the OOH’s general statements on such requirements to deny H-1B petitions for failing to establish that a bachelor’s degree in a specific specialty is the normal minimum requirement for entry into the position, despite statements in the OOH to the contrary. In addition, USCIS recently put out a statement entitled Combatting Fraud and Abuse in the H-1B Visa Program expressing an intent to continue to target H-1B dependent employers in the IT industry who assign H-1B workers at client sites.

One should expect the same sort of H-1B carnage like last year. No matter how well one responds to the request for evidence or argues the case before the Administrative Appeals Office (AAO), the outcome could still be a preordained denial – as if Trump’s wall is already up. The key issue is whether there may be a different and effective strategy for overcoming next year’s H-1B cap denials, such as suing the USCIS in federal court.

USCIS has typically based these types of denials on claims that the proffered positions fail to qualify under any of the specialty occupation criteria listed in 8 CFR § 214.2(h)(4)(iii)(A). The USCIS has also challenged H-1Bs based on allegedly inappropriate wage levels, but the main concern is the USCIS entirely reading out acknowledged specialty occupations from the law.

As background, in order for a petitioner to hire a foreign worker in a specialty occupation under the H-1B visa program, the proffered position must meet the regulatory definition as one that “requires the attainment of a bachelor’s degree or higher in a specific specialty, or its equivalent, as a minimum for entry into the occupation in the United States.” 8 CFR § 214.2(h)(4)(ii). This definition is met by satisfying at least one of the following criteria:

1.   A baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the particular position;

2.   The degree requirement is common to the industry in parallel positions among similar organizations or, in the alternative, an employer may show that its particular position is so complex or unique that it can be performed only by an individual with a degree;

3.   The employer normally requires a degree or its equivalent for the position; or

4.   The nature of the specific duties are so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree.

What Are H-1B Visas, and Do They Hurt American Workers

It is H-1B visa season, and US companies seeking high-skilled foreign workers have been rushing to submit applications for visas since the government started accepting them on Monday. The petitions arrived by the truckload to government processing centers. Hailed by proponents as vital to US innovation, the programme has also been criticised for displacing American workers with cheaper foreign labour. Critics also want to end special work permits issued to some spouses of workers on H-1B visas.

What is the H-1B visa?

It is a temporary visa that employers use to hire foreigners in “speciality occupations” for which there are not enough skilled American workers to fill available jobs. The workers must have at least a bachelor’s degree. It enables those employed to legally work in the United States for three years, with the possibility of extensions.

How does a worker get a visa?

Companies identify a worker they wish to hire and submit a petition on the candidate’s behalf. The typical petition is a collection of forms and documents describing the job and the unique qualifications of the person chosen to fill it.


Are all H-1B recipients in the technology sector?

Many are software engineers, computer programmers and other workers in the technology sector. However, H-1B recipients work in a variety of jobs. They can be architects, scientists, models and tattoo artists. Some are math and science teachers in rural school districts that have trouble recruiting American instructors.


How many visas are issued each year?

Congress established that 65,000 H-1B visas are available each year for workers with bachelor’s degrees, and 20,000 more are earmarked for those with master’s degrees or higher. Universities and research organisations are exempt from the cap.


Why is there a lottery to choose petitions?

In the past several years, the US Citizenship and Immigration Services has received more petitions than there are visas. If the maximum number of applications is reached during the first five business days of April, the agency holds a lottery to randomly select which petitions it will process.


Can the visas lead to permanent residence?

Very often they do. Companies can choose to sponsor an H-1B worker for permanent residence. The green card applications are often approved, though they can take years to be issued.


Where are most foreign workers from?

India is the country of origin for more than 80 per cent of H-1B recipients, with China a distant second. Next in line during the 2016 fiscal year were the Philippines, South Korea and Canada.


Do H-1B workers compete with Americans?

Supporters of the visa programme say they fill a critical need for talent that is not available in the United States, especially when the economy is strong and the labour market is tight. Employers must attest that an H-1B worker will not adversely impact the wages and working conditions of American workers.

Critics say that employers often hire H-1B workers for lower salaries than they would pay Americans to do the same job. They point to Americans who have been displaced when companies have outsourced areas like technology maintenance to a company that brings in H-1B workers.


Who’s right?

As usual with immigration policy, it’s complicated. More than 40,500 companies sponsored workers for H-1B visas in the 2017 fiscal year. Many employers specifically target a worker with hard-to-find expertise whom they wish to hire to do specialised work because they could not find someone in the United States to do the job. In many cases, H-1B workers have gone on to create start-ups and develop cutting-edge technology that keeps America competitive.

But there are questions about who’s benefiting, collectively. About 20 companies accounted for 32 per cent of approved H-1B petitions, according to an analysis by the Migration Policy Institute. Many of the employers are global outsourcing companies from India that supply entry-level workers to retailers, insurance companies and banks. Not all. Among them are also US firms who appear to be using the programme to create a pool of cheap labour.

“Big household-name American companies are just as culpable as the outsourcing companies of abusing the programme,” said Norman Matloff, a professor at the University of California, Davis, who studies the H-1B programme.


So there has been some misuse?

Almost everybody agrees that there has, though it is probably not as widespread as critics claim. Abuses rarely result in penalties for the companies, experts say. In one highly publicised case in 2015, some Disney employees said they were told to train their foreign replacements if they wanted severance payments. Workers filed suit, but the judge dismissed the case; new litigation is pending in state court. Workers at other companies, including Toys “R” Us and New York Life Insurance Co., also said they lost their jobs to imported workers.

Last May, the former acting director of US Citizenship and Immigration Services said the agency had started “multiple investigations” into “possible misuse” of the H-1B visa programme and would turn the findings over for enforcement as warranted.

Ultimately, though, it is up to Congress to change laws that govern the programme, since in most cases, practices that workers may claim as abusive are not necessarily illegal as the law is written.


What changes did the Trump administration start?

At campaign rallies, President Donald Trump introduced laid-off Americans who had been asked to train their foreign successors, saying, “We won’t let this happen anymore.”

Once in office, he ordered a review of the H-1B and other visa programs. In April 2017, he signed a “Buy American, Hire American” executive order, which has served to justify several recent changes.

For one thing, US Citizen and Immigration Services, the federal agency that reviews the petitions, has tightened its oversight. Between January and August of last year, it issued 45 per cent more challenges or requests for more evidence. That has delayed the issuance of visas, and some immigration lawyers report an increase in denials.

The agency has also stepped up the number of surprise visits by fraud teams to sites where large numbers of H-1B workers are employed. And in a policy memo earlier this year, it expanded its review of H1-B workers who are employed at third-party work sites. Now, it is requiring more details about what work will be performed, why a foreigner is needed to do it, and what wages are being paid.


What more does the administration plan to do?

The administration says it will end an Obama-era programme that has allowed spouses of H-1B visa holders to work, as long as they had been approved and were waiting for a green card. Those work permits have been issued under a programme known as H-4EAD.

Federal authorities have also suggested they may change the selection process for H-1B visas to ensure that they are granted to the “most skilled or highest-paid” job candidates.

Finally, Trump says he would like to scrap the lottery.


What about the role of Congress?

More sweeping changes can occur only if Congress passes new laws or overhauls the immigration system. The Trump administration’s call to end the lottery and raise wages for H-1B visa candidates as a means of recruiting qualified American workers has support among some Democrats and Republicans.