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The Department of Homeland Security (“DHS”) has posted a final rule regarding the H-1B cap selection process. The rule will be published in the Federal Register on January 31, 2019 and will go into effect on April 1, 2019.

The Final Rule

The posted rule is the final version of the proposed rule titled “Registration Requirement for Petitions Seeking to File H-1B Petitions on Behalf of Cap-Subject Aliens,” which was published for public comments on December 3, 2018.  During the 30-day comment period, the proposed rule received over 800 public comments. Continue Reading Department of Homeland Security Posts Final Rule Regarding H-1B Cap Filings

Every January, employers go into high gear to prepare H-1B cap-subject petitions for filing on the first business day of April.  This year, employers must also monitor for potential regulatory changes to the filing process.  On December 3, 2018, the Department of Homeland Security (DHS) published a notice of proposed rulemaking in the Federal Register titled “Registration Requirement for Petitioners Seeking To File H-1B Petitions on Behalf of Cap-Subject Aliens.”  The 30-day public comment period closed January 2, 2019, and employers remain in wait for the impact to this year’s cap-subject filings.  While President Trump tweeted about H-1B changes that “are soon coming,” it is not clear whether they relate to the proposed rule.

The proposed rule seeks to accomplish two goals: streamline the H-1B selection and filing process by creating a pre-registration system, and increase the chances of selection for H-1B petitions eligible for the advanced degree exemption by reversing the order in which the cap lotteries are run.

US Citizenship & Immigration Services (the agency responsible for immigration benefits within DHS) received over 800 comments on the proposed regulation, including comments from the US Chamber of Commerce, the American Medical Association, and the American Immigration Lawyers Association.  The public comments criticize the proposed timeline and logistics, identify impacts stretching beyond immigration law, and suggest that the proposed rule may face court challenges if implemented:

Continue Reading Impact of Proposed H-1B Rule on Annual Cap Filings

The federal government has entered its fourth week of a partial shutdown since December 22, 2018 because of a budget impasse between Congress and the White House.  This shutdown is the longest since 1995-1996, when the federal government was closed for 21 days, and now represents the longest lapse in federal funding in recent history.

Many agencies and departments continue operations through this shutdown because of previously approved funding bills or the essential nature of their personnel.  The information below summarizes the operating status of agencies responsible for immigration-related activities most relevant to employers. Continue Reading US Government Shutdown Impact on Immigration-Related Services

According to a Financial Post article, US Customs and Border Protection (“CBP”) permanently barred a Vancouver man with ties to the marijuana industry from entering the United States on November 14, 2018.  The individual, who invests in a Canadian cannabis business, was traveling from Vancouver to Las Vegas to attend a cannabis convention and tour a marijuana facility.  According to the article, when CBP learned that the individual “was going down to tour the marijuana facility and that he was an investor in marijuana, they gave him a lifetime ban.”

Under 8 U.S.C. § 1182(a)(2)(C) of the Immigration and Nationality Act, an individual is inadmissible to the United States if they are, or have been, “an illicit trafficker in any controlled substance…or is or has been a knowing aider, abettor, assister, conspirator, or colluder with others in the illicit trafficking in any such controlled or listed substance or chemical, or endeavored to do so.”  While investors in the Canadian marijuana industry are generally admissible to the United States according to a CBP statement revised in October 2018, an individual may be determined to be inadmissible if they are traveling to the United States for reasons related to the marijuana industry.  The Government of Canada’s website reiterates CBP’s inadmissibility warning.

The media has reported news of at least one other cannabis investor receiving the same bar earlier in 2018.