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USCIS Clarifies Stance on Federal Controlled Substance Law

Posted April 23, 2019Articles

On April 19, 2019, USCIS issued a policy alert clarifying that any violation of federal controlled substance law is a conditional bar to establishing good moral character for naturalization. Naturalization applicants must show that they are a person of good moral character, generally during the five years immediately preceding the application (three years for applicants who received their green card through marriage to a U.S. citizen).

USCIS maintains that despite recent local laws decriminalizing marijuana, federal law classifies marijuana as a "Schedule I" controlled substance and anyone who manufactures, cultivates, possesses, or distributes the drug may face immigration consequences such as failing to meet to good moral character bar.

If you are currently a permanent resident in the naturalization process or are thinking about naturalizing and have questions about how this policy alert may affect you, please reach out to your designated Meltzer Hellrung LLC attorney.  

Please also see our recent blog post on the potential immigration impact of Canada's legalization of marijuana when travelling through a Customs and Border Protection checkpoint.

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L-1 Extensions at the US/Canadian Border Turned Away

Posted April 22, 2019Matthew MeltzerArticles

Canadian employees applying for L-1 visas are typically entitled to apply for a visa directly at a US port of entry, rather than applying through the US Citizenship and Immigration Services. Historically, this has applied to any L-1 petition.

We have received reports that the Customs and Border Protection, the agency that adjudicates petitions at these ports of entry, has ceased adjudicating petitions for L-1 extensions. CBP is still adjudicating initial petitions.

CBP appears to making a spurious argument, interpreting a regulation that requires extension of stay to go through USCIS, as meaning that L-1 petitions for extension are in fact an extension of stay. Since these petitions are for admission, they only provide petition validity, not an extension of existing status. The American Immigration Lawyers Association is in communication with the agency to fight this interpretation.

As of now, all L-1 extension petitions for Canadian employees must be filed through USCIS. This is unfortunate, as USCIS has a higher standard of review than CBP does at the border.

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Travel Tips

Posted April 17, 2019Stephanie WedelArticles

With summer approaching and foreign nationals planning to travel abroad, planning ahead to ensure you have the proper documents ready can lead to a smoother entry.

F-1 Students

F-1 students in OPT or STEM OPT with a valid EAD card, who DO NOT have an H-1B cap case filed with USCIS, should be able to depart the U.S. and re-enter, so long as there is a job/job offer. These travelers should carry:

  • A valid passport;
  • A valid F-1 visa stamp (unless Canadian). If your student visa has expired, you will need to apply for a new F-1 visa stamp to reenter the United States as a student;
  • A current signed I-20;
  • A valid EAD card; and
  • A letter from your OPT employer that verifies your employment, approving the travel, and stating the expected date of return.

F-1 students with a pending H-1B cap case filed as a change of status, should consult with an immigration attorney about travelling regardless of whether the case is still pending or has been approved. Departure from the U.S. may result in the termination of the cap-gap status, as well as the inability to return to the U.S. until October 1st at the earliest, after approval of the H-1B.

Other Pending Cases with USCIS

Those with a currently pending case with USCIS should consult with their or their employer’s immigration attorney to determine any travel risks.

Individuals with pending nonimmigrant cases for change of status or extension of status generally should not travel abroad until the case is adjudicated. Leaving the U.S. while the case is still pending may result in the case being approved for consular processing thus requiring the individual to leave the U.S. and re-enter in order to “activate” the new approval.

Those with pending adjustment of status cases may need to have a valid advanced parole document to re-enter the U.S. Individuals on dual intent visas such as H-1B, H-4, L-1, and L-2 can return to the U.S. with their valid visa.

Visa Stamps

In general, nonimmigrants with an expired visa stamp will need to obtain a new one before returning to the U.S. There is an exception for those with a valid I-94 travelling only to Canada or Mexico for fewer than 30 days, who meet certain criteria, through a process called automatic revalidation. Citizens from Iran, Sudan, or Syria with an expired visa, as well as those who have applied and are waiting for a visa stamp, or had a visa denied, will need to obtain a valid visa stamp regardless of the length of stay in Canada or Mexico.

Those travelling to other countries or who plan to stay in Canada or Mexico for more than 30 days, should plan to obtain a new visa stamp before returning to the U.S.

It is also important that the visa stamp be valid for the correct visa category.

Appointments for visa stamping should be made as early as possible as appointments maybe be limited due to local and U.S. holidays. Each U.S. Consulate lists its holiday closures on its website, and estimate visa appointment wait times can be found on the U.S. Department of State’s website.

Citizens of Canada generally do not need a visa stamp.

Passport validity

Passports should be valid for the period of intended stay. If entering with a passport that expires before end date on the I-797 approval notice, U.S. Customs and Border Protection may shorten the new I-94 to match the passport expiration date. Individuals from certain countries must have passports valid for at least six months beyond the period of the intended stay. Most countries are exempt from this requirement.

Re-entering the United States

When returning to the U.S. on a nonimmigrant status we suggest carrying the following documents:

  • Current passport
  • Current I-797 approval notice
  • Two most recent paychecks
  • Signed employment verification letter confirming current position, wage, etc.

Additionally, individuals should be ready to answer basic questions posed by U.S. customs and immigration officials, such as:

  • What is the name of your employer?
  • What is your job title?
  • Where do you work?
  • How long do you expect to stay in the United States?

Individuals who plans to enter the U.S. via a land border can plan ahead and apply and pay for an I-94 online up to seven days prior to entry.

Upon returning to the U.S., foreign nationals should take a moment to obtain their most recent I-94 so they are aware of their status expiration date. Each person should also review their I-94 record for consistency with other immigration records. If there is an inconsistency please contact your designated Meltzer Hellrung attorney immediately for advice on correcting the mistake.

As always, if you or your employees have any questions about travelling, reach out to your designated Meltzer Hellrung attorney.

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E1/E2 Visa Available for Israel Nationals and Residents

Posted April 17, 2019Articles, Entrepreneurship

The US and Israel have announced a treaty investor agreement (E2) which will become effective as of May 1, 2019. Israeli citizens will be able to apply for the E2 visa the US Embassy Branch Office in Tel Aviv. Israeli national who are currently in the U.S. can apply for a change of status through USCIS.

Application Procedure:

All Israel companies seeking E-visas for their owners or employees must apply at the Branch Office in Tel Aviv. For first time applicants and renewals, the company must submit all of the supporting documents, including the individual application for the employee, by mailCompanies can sponsor individuals who are lawfully present in the U.S. by filing a Form I-129, Petition for Nonimmigrant Worker with USCIS.

Processing Times

Applications filed with the U.S. Embassy: Preliminary review of corporate files is currently taking two to three weeks. After the preliminary review, the applicant is required to attend an in-person interview. Following an approved E-visa application, the applicant will receive their passport via Israel Post’s courier service within 10 days.

Applications filed with USCIS: Processing times with USCIS vary based on officer case loads. The premium processing service is available for E visa applications. Cases filed with premium processing are guaranteed to be processed within 15 calendar days.

Procedures for Dependents

Spouses, and unmarried children under 21 who wish to join the principal visa holder may apply for derivate E visas. Spouses who hold a derivative E visa may seek employment authorization.

Length of Authorized Stay

E-visa holders may reside in the US as long as they continue to maintain their status with the company.

Please contact your designated Meltzer Hellrung attorney for additional information regarding E1/E2 visas.

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USCIS Resumes Premium Processing for H-1B applications

Posted March 11, 2019Stephanie WedelArticles, H-1B

USCIS announced that it will resume premium processing on Tuesday, March 12, for all H-1B petitions. If you received a request for evidence (RFE) for a pending petition, you should include the RFE response with the premium processing request. When an H-1B petitioner properly requests the agency’s premium processing service, USCIS guarantees a 15-day processing time. If USCIS does not take action within the 15‑calendar day processing time, USCIS refunds the petitioner’s premium processing service fee and continues with expedited processing of the petition.   If you or your employee received a transfer notice for a pending H-1B petition, and you are requesting premium processing service, you must submit the premium processing request to the service center now handling the petition. You should also include a copy of the transfer notice with your premium processing request to avoid possible delays associated with the receipt of your premium processing request. If your petition was transferred and you send your premium processing request to the wrong center, USCIS will forward it to the petition’s current location. However, the premium processing clock will not start until the premium processing request has been received at the correct center.    If you have any further questions regarding the addition of premium processing, please reach out to your designated Meltzer Hellrung LLC attorney.

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