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Impact of Changes to NAFTA on Immigration

Posted October 21, 2018Matthew MeltzerArticles

The North American Free Trade Agreement (NAFTA) is currently being renegotiated between the United States, Canada, and Mexico. NAFTA provides significant immigration benefits to Canadians and Mexican citizens in the form of:

- TN visas for individuals in certain occupations

- E-2 visas for investors, managers, and specialized employees of Canadian and Mexican owned companies

- L-1 visa processing for Canadian citizens directly at the US-Canada border

The new United States, Mexico, Canada Agreement (USMCA) is expected to maintain those immigration benefits. Canadian and Mexican nationals with existing TN, E-2 and L-1 visas are not expected to be affected. At this time, we expect the processes for applying for TN, E-2 and L-1 visas to remain the same.

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USCIS Proposes H-1B Cap Registration System

Posted October 21, 2018Matthew MeltzerH-1B

The US Citizenship and Immigration Services is expected to propose a regulation that would change the filing process for the H-1B cap. Currently, USCIS accepts complete petitions for the H-1B cap during the first five business days of April on years when the number of petitions submitted exceeds the 85,000 available visas allotted. USCIS only accepts complete petitions that are correctly completed.

USCIS director Cissna has stated that he hopes to make a change to the process effective for the H-1B cap in April 2019 for the Fiscal Year 2020 H-1B cap. Given standard regulatory time lines it may be difficult for USCIS to propose and put into place a new regulation regarding the H-1B cap process in time for April, 2019.

While the proposal has not been made official yet, we expect USCIS to create a two-step process for H-1B cap petitions. In the first stage USCIS would accept a limited registration petition for submission to the lottery. Those petitions that are selected in the lottery would then be requested to submit a complete petition.

Without a formal proposal we cannot know what the turnaround time for submission for the second stage would be. This turnaround period will be critical in determining how Meltzer Hellrung processes future H-1B cap petitions.

USCIS may also create a waiting list to select additional petitions if insufficient approvals are granted due to the number of denied or withdrawn petitions.

Meltzer Hellrung will continue to track this issue closely.

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Potential Immigration Impact of the Legalization of Cannabis in Canada

Posted October 18, 2018Articles

On October 17, 2018, Canada's new cannabis legalization law went into effect. The use, possession, and distribution of cannabis remain illegal under U.S. federal law, so it's important to keep that in mind from an immigration perspective.

While U.S. Customs and Border Protection does not intend to ask all visitors entering the U.S. about cannabis use, questions may arise in some instances such as if officers smell marijuana or if CBP dogs detect the drug. If asked, travelers should not lie about their drug use, however, they should be aware that illegal drug use can result in the traveler being found inadmissible to the U.S. Other potential consequences include, but are not limited to, denial of entry, denial of a visa, denial of the visa waiver program (ESTA), or losing trusted traveler privileges such as NEXUS.

Individuals who work in the legal marijuana industry in Canada will likely be admissible so long as the purpose of travel to the U.S. is not related to the marijuana industry. If the travel is related to the industry, CBP may deem the traveler inadmissible.

If you have an questions about inadmissibility please reach out to your designated Meltzer Hellrung LLC attorney.

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Update on Medical Exams for Adjustment of Status (Green Card) Applications

Posted October 17, 2018Karen GillespieGreen Card
The USCIS recently announced a policy change in its acceptance of the I-693 Medical Exam required for final issuance of Legal Permanent Residence (Green Card) status. Previously, the USCIS policy was that an I-693 Medical Exam was valid for only 12 months after its issuance by a Civil Surgeon. The new policy announced by the USCIS is to extend the validity length to 2 years after issuance by a Civil Surgeon. However, the USCIS also added a requirement that the medical exam will only be accepted if it was performed within 60 days of its filing or presentation to the USCIS. While the 1-year validity period was in effect, Meltzer Hellrung advised clients to omit the I-693 Medical Exam when submitting the green card application [Form I-485]. The reason for this omission is two-fold: 1) the USCIS does not consider it a required document at the time of filing so there is no negative impact on the application to wait; and 2) because the USCIS is often taking more than 1 year to schedule an interview and issue the green card, medical exams submitted with an initial filing are often expired before the case is ready for adjudication and the applicant would have to get a second exam completed. The second exam would result in unnecessary cost and inconvenience. Based on the new 2-year validity period, Meltzer Hellrung still advises clients that it is best to omit the medical exam with the initial filing. The USCIS will be able to continue adjudication of the case and applicants can simply bring their initial I-693 Medical Exam forms to their in-person interview. While some clients may prefer to complete the medical exam with the initial filing, they must be sure to promptly forward those results to the attorney to make sure the case is filed within the 60-day window. Similarly, individuals who opt to bring their exam results to their interview rather than file with their application should also be aware of the 60-day window and only get their medical exam performed when within 60 days of their scheduled in-person interview. If an interview has to be rescheduled for any reason, it is possible their medical exam may expire and a new one may need to be obtained. Our attorneys will work with clients on a case-by-case basis to determine what the best strategy is for your individual needs but, in general, advise waiting until the interview phase to complete and submit your I-693 Medical Exam. As always, contact your Meltzer Hellrung attorney for additional questions or discussion on this and any other immigration matter.

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The Department of Homeland Security Proposes New, Stricter Rule for Public Charge Determination

Posted October 15, 2018Cynthia S. CoulangeArticles

The Department of Homeland Security (DHS) has published in the Federal Register its proposed rule regarding what will be a broader determination of what constitutes a public charge for immigration purposes. The Department is currently accepting public comment on the rule until December 10, 2018. Currently, the government considers whether a foreign national is likely to require government assistance in the form of cash public benefits or long-term institutionalized care. The new rule would broaden this analysis to both cash and non-cash public benefits. The new test which will be a totality of the circumstances test will consider the following factors in making a public charge determination: Age Health of the Foreign National Family status Assets, Resources, and Financial status; and Education and Skill of the Foreign National. Upon review of all of the above-mentioned factors, DHS will determine whether an individual is likely to become a public charge. The proposed rule would apply to all adjustment of status applicants and most extension of stay and change of status applicants. These applicants will need to provide additional documentation to prove that they are not likely to become a public charge. Extension and change of status applicants would need to provide an attestation of self-sufficiency with their initial evidence and USCIS would be able to issue a request for evidence requesting proof of self-sufficiency at its discretion. Once DHS has received public comment on the issue, it will take several weeks if not months to issue a final rule. We will continue to monitor this rule and provide advice to our clients regarding any potential impact to their foreign national population. As always, if you have questions regarding benefits which could lead to a public charge determination, please reach out to your designated Meltzer Hellrung attorney.

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