New Challenges in Immigration

Scott RailtonAttorney Scott Railton
Cascadia Cross-Border Law

1305 11th Street, Suite 301 Bellingham, WA 98225
Phone: 360-671-5945
Fax: 360-676-5459
www. Cascadia.com

Immigration is getting harder. The administrative changes are happening rapidly, and legislative changes may be on the horizon. Now is a time to exercise due care and planning for noncitizen clients. Here is a brief list of changes that may impact clients locally:

  1. The Administration is filling key appointments with people who have a history of supporting the restriction of U.S. immigration. Directors of immigration-related agencies are being sourced from anti-immigration groups, as well as from Congressional offices that have supported tough limitations on immigration. For example, CBP—the border agency—now has in its leadership a former executive from the Federation for American Immigration Reform (FAIR). The Southern Poverty Law Center says FAIR’s sole mission is to limit U.S. immigration, and has designated the organization as a hate group, due to its origins.
  2. Questions on marijuana use, at the border and at USCIS interviews, is becoming a bigger issue due to state legalization. The border is asking more frequently whether a person has ever smoked or used marijuana. If the person responds yes, during a sworn statement, the agency is then finding the person inadmissible and requiring them to get a waiver. The filing fee for a waiver is $585, and it take months to process. Waivers are needed for life, with renewals required every five years. Similar questions are reportedly coming up in naturalization interviews. I have an article coming out in the ABA’s Criminal Justice magazine this month on the immigration and marijuana.
  3. Searches of electronic media at the border have gone way up. The Guardian referred to these searches as “digital strip searches,” since so much private and confidential information is housed on our electronic devices these days. CBP asks for a password, and then takes a person’s phone or computer to another room, and comes back a while later, having reviewed photos, emails, and other confidential information. Sometimes they have followup questions about pictures (e.g. photos having something to do with marijuana). Often, they offer no reason for the search—they just claim the authority under the Border Search exception and proceed.
  4. USCIS recently issued a memo revoking old guidance on computer programmers, and encouraging adjudicators to take a longer look at whether computer programmer positions are actually specialty occupations. Information technology professionals cover about half of the annual quota for H-1Bs professionals.
  5. Some ports of entry are narrowing TN qualifications. For instance, the Peace Arch recently said that Advanced Nurse Practitioners do not qualify under NAFTA for TN status as Registered Nurses, despite having always qualified in the past. The Port’s argument is that Practitioners are overqualified for the category, since they prescribe medications sometimes. This means there is increased risk in traveling abroad for RNs who are ARNPs, as well as with renewals. East coast ports initially agreed with this, but have since backed off.
  6. Premium processing for H-1Bs–which guarantees 15 day adjudication for the price of $1225- is suspended as of April 3rd. USCIS has a considerable backlog on H-1Bs that they need to manage, but there is no confidence that they’ll be able to do this without this program, which, by the way, generates substantial revenues. In particular, physicians who complete their residencies and take on new fellowships on July 1st are particularly concerned. The suspension makes no sense, since this program is a cash cow for the agency. Millions of dollars will be lost.
  7. The Department of State issued cables to its consular officers requiring them to “improve visa applicant vetting” and to implement “the concepts undergirding the Presidential memorandum.” So, while the litigation on the bans continue, the agency has been ordered to implement the spirit of the ban. Also, a hiring freeze was ordered, which will eventually further backlog appointments.
  8. Contractors are lining up to build the wall. The debate is just getting started in Congress, but the concern is very much alive there.
  9. ICE is deporting persons who have had deferred action and persons who are showing up for USCIS appointments. These have included family members, DREAMers, and other non-criminals.
  10. The U.S. Attorney General announced this month new prosecution priorities and standards related to immigrants. Certain noncitizens caught entering unlawfully for a second time are to be charged with a felony. These include persons previously removed. Also, “prosecutors are directed to charge criminal aliens with document fraud and aggravated identity theft—the latter carrying a two year mandatory sentence.”

The list goes on. Anxiety is very high in the immigrant community. This includes the undocumented, as well as professionals and businesses. In terms of resources, the State Attorney General’s Office has published a helpful pamphlet on immigration enforcement, available at the Office’s website. NW Immigrant Rights Project and the Immigrant Legal Resource Center are also good sources for information. Feel free to contact me at srailton@cascadia.com if you’d like further information.