Immigration Law Update

November 2018

Explaining the Changes in the Asylum Process and the Tumult at the U.S./Mexican Border

This past week alarming images of U.S. Customs & Border Protection personnel teargassing large numbers of Central American migrants have dominated the news media. This was preceded a month ago of many stories of a caravan of thousands of such migrants steadily making their way to the United States from Central America. In response, President Trump ordered thousands of troops to the border to confront what he described as an “invasion.”

How did this situation become a crisis?

Although overall illegal immigration has decreased substantially over the past decade, over the past five years Central Americans in increasing numbers have made the journey to the United States fleeing violence and gender-based persecution to seek asylum. The trend of increased numbers of asylum seekers coming to our Southern border has disturbed the Trump administration with its focus on border security.

In response, the Trump administration has taken aggressive steps to stem the tide of Central American asylum seekers, which have all come under legal challenge. The first effort in this regard was the implementation of the family separation policy earlier this year. This was followed by administrative decisions by Attorney General Sessions, restricting the legal grounds for asylum in ways that would limit claims from Central Americans. The latest effort has come through executive orders issued by President Trump, forcing asylum applicants to make their claims from outside the United States. This last element coincides with a policy of “metering,” in which the flow of asylum claims has been restricted.

This has led to the situation in which applicants waiting for their claims to be heard are facing indefinite waits in Tijuana and other border towns. The legal right to seek asylum for those fleeing persecution has effectively been restricted, and the procedures for asserting these rights have been changed without much explanation. This combined with the militarization at the border has created a dangerous brew leading to the current conflict.

For further information on this, we recommend the following:

Long H-1B Processing Times and Restriction on Premium Processing Creates Holiday Travel Issues

H-1B processing times continue to grow longer and longer. Historically these petitions have taken 90-120 days to be processed with an option for premium processing for an additional filing fee, which would result in an adjudication within fifteen days.

In the past year, however, processing times now approach eight months or longer at some USCIS Service Centers. Additionally, premium processing has been restricted on most H-1B petitions. This has created a multitude of issues. Particularly at this time of year, those with pending H-1B petitions may find themselves unable to travel internationally. Long processing times may also raise issues for driver’s license renewal, as the expiration dates on these licenses typically match up with H-1B expiration dates.

If you or your employee has a long pending H-1B petition and is contemplating international travel or has a driver’s license renewal issue, please do not hesitate to contact Karen Moss or Brad Ortman (via email or telephone at 216-621-7227) for appropriate legal guidance on how to handle the situation.

Legalization of Marijuana in Canada Creates New Issues When Crossing Borders

The ongoing trend of the legalization of marijuana gained strength recently as Canada became the first North American country to legalize medical and recreational use of the drug. Canada joined many U.S. states that have decriminalized marijuana whether just for medical use or for recreational use as well. These developments conflict with U.S. Federal Law, which still regards the sale, possession, production and distribution of marijuana as illegal.

U.S. Customs & Border Protection (CBP) recently clarified its position on marijuana and admissibility issues in light of these political developments. The agency affirmed that crossing the border in violation of U.S. Federal Law may result in “denial of admission, fines, seizures, and apprehension.” In this regard the agency noted that a foreign national deemed to be a drug abuser or addict or who is convicted of or admits to acts that violate U.S. Federal law, state law or the law of their country with respect to illegal drugs may be found to be inadmissible.

What about Canadians working in the legal marijuana industry in Canada? Can they travel to the U.S.? The answer is “yes” as long as they are traveling to the U.S. “for reasons unrelated to the marijuana industry.”

Updated NAFTA Agreement Keeps Immigration Provisions Intact

The United States, Canada, and Mexico negotiated an updated NAFTA treaty on September 30, 2018. The new agreement is now called the United States-Mexico-Canada Agreement (USMCA).

Despite the name change and a great deal of political drama and rhetoric questioning NAFTA’s future, the new agreement maintains all of the substantive provisions of the prior agreement. This means that those holding TN, L-1, E, and B-1 status can still make use of the legacy NAFTA procedures to maintain these different immigration statuses into the future.

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If you have questions or would like to learn more about the items discussed above, please contact Karen Moss or Brad Ortman of the Immigration Law Group at Nicola, Gudbranson & Cooper via email or at (216) 621-7227.

Bradley L. Ortman and Karen Gabriel Moss
Nicola, Gudbranson & Cooper LLC

_{This Immigration Law Update contains general information that should not be considered legal advice or legal opinion concerning individual situations. Legal counsel should be consulted for specific advice.}