USCIS Continues to make Marijuana Activity a “Conditional Bar” to Obtaining U.S. Citizenship Despite Local Decriminalization

Thirty-three US states, The District of Columbia, and at least 26 countries around the world have legalized the production and use of cannabis for medical, and, in some jurisdictions, for recreational use.  This wave of legalization has led to a growing and dynamic industry that employs thousands of individuals and has reduced the levels of criminalization of marijuana-related crimes. Despite this changing landscape however, United States Citizenship and Immigration (USCIS) has recently made it clear that virtually any involvement with cannabis, even in jurisdictions where it is now legal, can have serious negative consequences to becoming a United States citizen.

In an April 19 USCIS policy alert, USCIS indicated that it was issuing policy guidance confirming that cannabis-related activity, even when it occurs in a jurisdiction where the activity is legal, creates a conditional bar to demonstrating good moral character for the purposes of naturalization. While USCIS has long treated cannabis-related activity as a basis for withholding immigration benefits, this new pronouncement further highlights the complex and uncertain interaction between state and federal laws, and United States immigration law.

According to the USCIS policy, “marijuana remains illegal under federal law as a Schedule I controlled substance regardless of any actions to decriminalize its possession, use, or sale at the state and local level,” a USCIS spokesperson said in a statement. “Federal law does not recognize the decriminalization of marijuana for any purpose, even in places where state or local law does.”

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Canadian Citizens Will No Longer Be Permitted To Extend or Renew L-1 Status at the US Border

United States Customs and Border Protection (CBP) recently implemented a major policy change to the adjudication process of L-1 Intracompany Transferee petitions filed by Canadian citizens.  Beginning in March of 2019, CBP officers at all ports of entry and pre-clearance facilities ceased adjudicating L-1 petitions for extension or renewal, including L-1A blanket petitions. CBP continues to adjudicate all new L-1 petitions for Canadian citizens and L-1 petitions for intermittent/commuter Canadian citizen employees.

CBP made this policy change after determining that the authority to extend/renew L-1 petitions falls to United States Citizenship and Immigration Services (USCIS), rather than CBP. As a result, all L-1 petitions for extension/renewal must now be filed with USCIS by mail.

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Is Your Company Prepared for an I-9 Audit? What to Expect During and After a Visit from ICE or DHS

ICE auditWhile immigration enforcement and oversight have occurred under the purview of all past presidents, the Trump Administration has publicly made them a leading policy priority.  Immigration raids and detentions at the border are the most visible aspects of this policy, but administrative oversight of employment documentation has also increased and will likely have the greatest impact on the majority of employers. One area where this is especially true is with Department of Homeland Security (DHS)’s oversight of employer’s I-9 forms.

Worksite immigration enforcement rose drastically in the fiscal year 2018 compared to the previous year, following a commitment made by U.S. Immigration and Customs Enforcement (ICE) in late 2017 to step up its worksite enforcement efforts across the country.

All worksite enforcement categories surged by 300 to 750% over the previous fiscal year. Here are some surprising numbers:

• 6,848 worksite investigations in 2018 compared to 1,691 in 2017;
• 5,981 I-9 audits in 2018 compared to 1,360 in 2017;
• 779 criminal arrests compared to 139 in 2017 (including arrests and indictments of managers); and
• 1,525 administrative worksite-related arrests compared to 172 in 2017.

What is an I-9 Form?

i-9The I-9 Form is an instrumental part of the new employee on-boarding process, and should be completed within the first 3 days of hire.  This form is used to verify the identity and employment authorization of individuals hired for employment in the United States. All U.S. employers must ensure proper completion of Form I-9 for each individual they hire for employment in the United States, including both citizens and non-citizens. Failure to maintain proper I-9s can lead to a variety of monetary fines or even criminal penalties if an employer intentionally misrepresents I-9 information.

What Can Go Wrong? During an Audit

On its face, the I-9 form appears to be a fairly simple and straightforward document. However, many employers fail to accurately input all required documentation, fail to obtain proper employee documentation, or fail to properly store and maintain I-9 records. Any of these oversights can lead to potentially costly fines in the event of an audit. Our clients who have been officially audited told us that ICE reviewed every line of an I-9 form for accuracy and will issue fines for every entry that is inaccurate. Therefore, it is vital that employees responsible for handling I-9 documentation be fully trained with respect to I-9 procedures. For a detailed overview of the I-9 process, see our previous article, 6 Tips for Avoiding Costly I-9 Mistakes. Continue reading

USCIS Increases Premium Processing Fee by 15% on October 1, 2018

fee-increaseOn August 31, 2018, U.S. Citizenship and Immigration Services (USCIS) announced that it will adjust the premium processing fee for Form I-129, Petition for a Nonimmigrant Worker and Form I-140, Immigrant Petition for Alien Workers, beginning on October 1, 2018, to “more effectively adjudicate petitions and maintain effective service to petitioners. ” These forms are typically used for H-1B, H-2A, H-2B, H-3, L-1, O-1, O-2, P-1, P-1S, P-2, P-2S, P-3, P-3S, Q-1 or R-1 petitions.

The premium processing fee will increase to $1,410.00, a 14.92 percent increase (after rounding) from the current fee of $1,225.00. This increase, which is done in accordance with the Immigration and Nationality Act, represents the percentage change in inflation since the fee was last increased in 2010 based on the Consumer Price Index for all Urban Consumers. Continue reading

USCIS Temporarily Suspends Premium Processing for Fiscal Year 2019 H-1B Cap Petitions

enter-usa-h1b-visaAs of April 2, 2018, USCIS began accepting H-1B petitions subject to the Fiscal Year (FY) 2019 cap.  This cap was reached in just four days, by April 6, 2018.
USCIS has temporarily suspended premium processing for all FY 2019 cap-subject petitions, including petitions seeking an exemption for individuals with a U.S. master’s degree or higher. This suspension is expected to last until Sept. 10, 2018. During this time, USCIS will continue to accept premium processing requests for H-1B petitions that are not subject to the FY 2019 cap.
USCIS will notify the public before resuming premium processing for cap-subject H-1B petitions or making any other premium processing updates.

During this temporary suspension, USCIS will reject any Form I-907, Request for Premium Processing Service, filed with an FY 2019 cap-subject H-1B petition. If a petitioner submits one combined check for the fees for Form I-907 and Form I-129, Petition for a Nonimmigrant Worker, both forms will be rejected.

Once USCIS resumes premium processing, petitioners may file a Form I-907 for FY 2019 cap-subject H-1B petitions that remain pending.

Requesting Expedited Processing

While premium processing is suspended, a petitioner may submit a request to expedite an FY 2019 cap-subject H-1B petition if it meets the criteria on the Expedite Criteria webpage. It is the petitioner’s responsibility to demonstrate that they meet at least one of the expedite criteria, and USCIS encourages petitioners to submit documentary evidence to support their expedite request. USCIS reviews all expedite requests on a case-by-case basis and will grant requests at the discretion of its office leadership.

The Reason for Temporary Suspension of Premium Processing for H-1B Petitions

This temporary suspension will help USCIS reduce overall H-1B processing times. By temporarily suspending premium processing, USCIS will:

  • Process long-pending petitions, which it has currently been unable to process due to the high volume of incoming petitions and the significant surge in premium processing requests over the past few years; and
  • Prioritize adjudication of H-1B extension of status cases that are nearing the 240 day mark.

Look for USCIS’ updates on the H-1B FY 2019 Cap Season webpage.

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Clarification of STEM OPT Extension Reporting Responsibilities and Training Obligations

STEM guysCertain F-1 students who receive science, technology, engineering, and mathematics (STEM) degrees may apply for a 24-month extension of their post-completion optional practical training (OPT).  On August 17, 2018, USCIS updated the Optional Practical Training Extension for STEM Students (STEM OPT) page of its website to clarify the reporting responsibilities for participation in the STEM OPT program. Students and employers must report material changes to the Designated School Official (DSO) at the earliest opportunity by submitting a modified Form I-983. Employers must report the STEM OPT student’s termination of employment or departure to the DSO within five business days.  As previously indicated on the webpage, students must report certain changes, such as changes to their employer’s name and address, to their DSO within 10 business days. Prompt reporting ensures that Department of Homeland Security (DHS) is able to exercise effective oversight of the program.

Additionally, DHS is clarified that STEM OPT participants may engage in a training experience that takes place at a site other than the employer’s principal place of business, as long as all of the training obligations are met, including that the employer has and maintains a bona fide employer-employee relationship with the student. DHS will review on a cSTEM OPTase-by-case basis whether the student will be a bona fide employee of the employer signing the Training Plan, and verify that the employer that signs the Training Plan is the same entity that employs the student and provides the practical training experience. Continue reading

Conduct Your Own I-9 Audit Before ICE Does: 6 Tips for Avoiding Costly Mistakes

i-9

U.S. Immigration and Customs Enforcement’s (ICE) Homeland Security Investigations (HSI) conducted a two-phase nationwide operation in which I-9 audit notices were served to more than 5,200 businesses around the country since January 2018. A notice of inspection (NOI) informs business owners that ICE is going to audit their hiring records to determine whether they are complying with existing law.

During the second phase of the operation from July 16 to 20, 2018, HSI served 2,738 NOIs and made 32 arrests. During the first phase of the operation, Jan. 29 to March 30, HSI served 2,540 NOIs and made 61 arrests.

ICE 2While the agency routinely conducts worksite investigations to uphold federal law, HSI is currently carrying out its commitment to increase the number of I-9 audits in an effort to create a culture of compliance among employers, according to Derek N. Benner, Acting Executive Associate Director for HSI. The seriousness of these investigations is described by Mr. Benner: “This is not a victimless crime.  Unauthorized workers often use stolen identities of legal U.S. workers, which can significantly impact the identity theft victim’s credit, medical records and other aspects of their everyday life.

HSI uses a three-pronged approach to worksite enforcement: (1) compliance, from I-9 inspections, civil fines, and referrals for debarment; (2) enforcement, through the criminal arrest of employers and administrative arrest of unauthorized workers; and (3) outreach, through the ICE Mutual Agreement between Government and Employers, or IMAGE program, to instill a culture of compliance and accountability.

From Oct. 1, 2017, through July 20, 2018, HSI opened 6,093 worksite investigations and made 675 criminal and 984 administrative worksite-related arrests, respectively. In fiscal year 2017 (October 2016 to September 2017), HSI opened 1,716 worksite investigations; initiated 1,360 I-9 audits; and made 139 criminal arrests and 172 administrative arrests related to worksite enforcement.

What is the I-9 Form?

The I-9 Form is an instrumental part of the new employee on boarding process, and should be completed within the first 3 days of hire.  This form is used for verifying the identity and employment authorization of individuals hired for employment in the United States. All U.S. employers must ensure proper completion of Form I-9 for each individual they hire for employment in the United States, including both citizens and non-citizens.

To many employers and HR professionals, an I-9 form may appear to be a simple piece of hiring paperwork. However, the one page I-9 form comes with enough rules and regulations to fill a 69-page how-to manual, the M-274 Handbook for Employers.

In order to ensure compliance with the I-9 requirements, it is recommend that employers conduct and audit of their files to ensure that there is a signed I-9 form on file for each employee.  These forms should be stored together in a separate I-9 file, rather than each employee’s personnel file.  This way, in the event USCIS conducts an audit, the employer only has to turn over the I-9 file, as opposed to information about the employee that is outside the scope of the agency’s audit.  Read below for an explanation of the I-9 audits and tips to be prepared in the event you receive a visit from US Immigration and Customs Enforcement (ICE).
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Immigration As Usual? Moving Forward in Times of Uncertainty

by Anthony Mance, Esq. and Jennifer Grady, Esq.

Recent announcements by the Trump Administration declaring enhanced vetting of current immigration cases; talks in Congress about major proposed changes to the immigration laws; and constant media discourse regarding the future of DACA, the Travel Ban, employment-based visas, and increased waiting times, may have the effect of chilling immigration applications.  However, with the right information, and a plan that takes these changes into account, it is still possible to submit a successful immigration application.  We discuss the latest updates, and our recommended responses, below.

I. “Enhanced Vetting”

TRUMPOne of the major elements of President Trump’s Presidential Campaign was the promise that he would take a hard line on immigration.  Since he has become President of the United States, this promise has materialized into a policy that enforces existing immigration laws by applying stricter review of immigration applications. Commonly referred to as “enhanced” or “extreme” vetting, the practice requires that the United States Citizenship and Immigration Services (USCIS) spend more time reviewing immigration applications, conducting additional background security checks, adding in-person interviews. Continue reading

USCIS Will Now Require Interviews for Adjustment of Status to Permanent Residency Applications (I-485)

According to the USCIS website:

uscisWASHINGTON – U.S. Citizenship and Immigration Services (USCIS) will begin expanding in-person interviews for certain immigration benefit applicants whose benefit, if granted, would allow them to permanently reside in the United States. This change complies with Executive Order 13780, “Protecting the Nation From Foreign Terrorist Entry Into the United States,” and is part of the agency’s comprehensive strategy to further improve the detection and prevention of fraud and further enhance the integrity of the immigration system.

Effective Oct. 1, USCIS will begin to phase-in interviews for the following:

Adjustment of status applications based on employment (Form I-485, Application to Register Permanent Residence or Adjust Status).

Refugee/asylee relative petitions (Form I-730, Refugee/Asylee Relative Petition) for beneficiaries who are in the United States and are petitioning to join a principal asylee/refugee applicant.

Previously, applicants in these categories did not require an in-person interview with USCIS officers in order for their application for permanent residency to be adjudicated. Beyond these categories, USCIS is planning an incremental expansion of interviews to other benefit types.

attorney client“This change reflects the Administration’s commitment to upholding and strengthening the integrity of our nation’s immigration system,” said Acting USCIS Director James W. McCament. “USCIS and our federal partners are working collaboratively to develop more robust screening and vetting procedures for individuals seeking immigration benefits to reside in the United States.”

Conducting in-person interviews will provide USCIS officers with the opportunity to verify the information provided in an individual’s application, to discover new information that may be relevant to the adjudication process, and to determine the credibility of the individual seeking permanent residence in the United States.  USCIS will meet the additional interview requirement through enhancements in training and technology as well as transitions in some aspects of case management.

Additionally, individuals can report allegations of immigration fraud or abuse by completing ICE’s HSI Tip Form.

How Will This Affect Your Application?

This means that if you filed an application for a Green Card (Adjustment of Status with an I-1485 form) or for asylum, you may now have to attend an in-person interview. This may delay current applications, but the length of the delay remains to be seen.  We will know more after this policy goes into effect on October 1, 2017.

If you have any questions about your Green Card application, or would like to adjust your status to that of Permanent Resident, schedule a complimentary 15-minute consultation with The Grady Firm’s attorneys; call +1 (323) 450-9010; or fill out a Contact Request Form.

About The Grady Firm, P.C.

JGrady Firm-Logo-2016The Grady Firm, P.C. is dedicated to providing exceptional legal counsel to entrepreneurs and their families at all stages of the business life cycle. We deliver superior customer service and holistic strategies tailored to each client’s background and goals.  As a truly global practice, The Grady Firm attorneys provide the business, immigration, employment, intellectual property, and cultural counseling that U.S. and foreign entrepreneurs need to be successful in a new market. Our tech-savvy, multi-lingual attorneys are fluent in Spanish, Italian, German, and Farsi.  They are licensed in California, and can practice immigration and intellectual property in all 50 U.S. states.  With offices in Beverly Hills and San Diego, California, the firm serves clients from around the world.

*This article is for informational purposes only, and does not constitute legal advice or create an attorney-client relationship. This article does not make any guarantees as to the outcome of a particular matter, as each matter has its own set of circumstances and must be evaluated individually by a licensed attorney.

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USCIS Releases New I-9 Form to Be Used by September 2017

i-9USCIS released a revised version of Form I-9, Employment Eligibility Verification, on July 17, 2017. Download instructions are available on the Form I-9 page. Employers can use this revised version, or continue using Form I-9 with a revision date of 11/14/16 N through Sept. 17, 2017. However, on Sept. 18, employers must begin using the revised form with a revision date of 07/17/17 N. Employers must continue following existing storage and retention rules for any previously completed Form I-9.

Revisions to the Form I-9 instructions:

  • USCIS changed the name of the Office of Special Counsel for Immigration-Related Unfair Employment Practices to its new name, “Immigrant and Employee Rights Section.”
  • USCIS removed “the end of” from the phrase “the first day of employment.”

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Visa Options for Fashion Models (O-1B, H-1B3, and P-3 Visas)

NYFW 2Do you dream of walking down the runway at New York Fashion Week?  Are you interested in becoming a brand ambassador for a prestigious luxury brand?  Whether you’ve mastered the catwalk or discovered your niche in commercial modelling, several visa options are available depending on your level of achievement and reason for coming to the U.S.

Fashion models typically enter the U.S. in one of two ways— the O-1B visa (for Individuals with Extraordinary Ability or Achievement) or the H-1B visa (for Specialty Occupations, Department of Defense Cooperative Research and Development Project Workers, and Fashion Models).  The majority of fashion models will apply for the H-1B3 Fashion Model visa, while a third option for models is the P-3 visa (for Artists and Entertainers who are Participating in a Culturally Unique Program).

H-1B3 Visa for Fashion Models

Melbourne-Model-Casting-Call-3-EditTo qualify for the H-1B3 Fashion Model visa, you must be a fashion model of “prominence” and the model must possess distinguished merit or ability. Continue reading

O-1B Visa for Artists or Actors with Extraordinary Ability or Achievement in the Arts or Motion Pictures

filmmakerCalling all talented artists and actors!  Are you an actor trying to make a breakthrough in Hollywood?  Or perhaps you are a renowned violinist, famous choreographer, or an award-winning pastry chef?  If you excel in your field of arts or the motion picture industry, you may be eligible for the O-1B visa.  The O-1B visa is for individuals with an extraordinary ability in the arts or extraordinary achievement in motion picture or television industry who will perform in the U.S. in an event or project associated with this ability.

The O-1 visa can be an alternative to the highly competitive H-1B visa (for skilled workers in specialty fields), which in recent years has reached its annual cap of 65,000 visas within days after opening the program.  Unlike the H-1B visa, the O-1 visa has no annual limit on the number of visas available, it can be filed year-round, and the length of stay can be extended indefinitely based on the time required to complete a project or event.

Individuals who are essential to the O-1 applicant’s successful performance in the U.S. may apply for an O-2 visa in conjunction with the O-1 visa application. Continue reading

Q-1 Visa is an Opportunity to Share Your Culture through an Employer’s International Exchange Program

Q-1 visa

Photo courtesy of http://bit.ly/2ur8zu2

Are you interested in sharing your home country’s cultures and traditions while working in the U.S.?  Are you an employer interested in obtaining approval for an exchange program in your company so that you can hire international employees on a Q-1 visa?

If so, the Q-1 visa may be available to meet your company’s specific needs for international employees.  Known as the “Disney visa” because it was originally designed by Disney to meet their need for “cultural representatives” to work in Epcot World Showcase, the Q-1 visa is for individuals wishing to participate in an international exchange program administered by an employer.  It is most popularly utilized to obtain short-term employment with Disney and used by some hotel chains to temporarily employ chefs. Continue reading

Professional Athletes, Gamers, and Entertainers who are Internationally Recognized are Eligible for the P-1 Visa

gamers

Photo courtesy of http://lat.ms/2vEE8z5

The P-1 visa is a viable alternative for athletes and entertainers who may not meet the “extraordinary ability or achievement” requirement of the O-1 visas.  If you are an internationally recognized athlete coming to the U.S. to perform individually or as part of a team, you may be eligible for the P-1A visa. Professional athletes from a wide range of sports including soccer, taekwondo, and online gamers receive P-1A visas.

If you are an entertainer who is part of an internationally recognized entertainment group coming to the U.S. to perform with the group or are joining an internationally recognized entertainment group in the U.S., you may be eligible for the P-1B visa. Examples of a P-1B visa recipient are foreign artists who perform at a SXSW festival, a group of stage actors, and circus performers.

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Visa Options for Entrepreneurs and Recent Grads: H-1B Visa through Global Entrepreneur in Residence and J-1 Visa for International Student Entrepreneurs through University Exchange Programs

In the absence of an official “startup visa”, and in lieu of the International Entrepreneur Parole Rule, which has now been postponed until March 2018, organizations and programs exist that help entrepreneurs from around the world establish their businesses in the U.S.  These programs are generally geared towards assisting international students who have developed a technology or innovation with launching a start-up in the U.S. that creates high-paying jobs.

H-1B Visa through the Global Entrepreneur-in-Residence Program

GlobalEIR-logo-black-and-blue-1

Global Entrepreneur-in-Residence (Global EIR) is an organization that helps international entrepreneurs gain access to visas to come to the U.S. to build their businesses and create local jobs by partnering with universities.  A university will sponsor a foreign-born entrepreneur for a H-1B visa (which is not subject to the H-1B visa lottery and quota) to work on campus to provide mentoring to students, review business proposals, or teach classes.  This is a tremendous benefit, as an H-1B applicant had a one in four chance of making it through the lottery in 2017 before the application could be reviewed by USCIS on its merits. While working for the university, the entrepreneur continues to build his or her business in the U.S.  After 6-18 months, this option could lead to an O-1 visa and Green Card.

The Global EIR currently has a presence in 13 colleges and universities across four states, including the following schools: University of Alaska, Anchorage; Alaska Pacific University, Anchorage; Babson College, Boston; University of Massachusetts, Boston; University of Colorado, Boulder; University of Missouri, St. Louis; and San Jose State University.

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