FEBRUARY 2019
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Immigration

Dilip Patel

By DILIP PATEL

H-1B Season

Applications for H-1B petitions which are subject to the annual quota can be filed on April 1, 2019 for an Oct. 1, 2019 start date when the 2019/2020 quota becomes available. As the quota is usually exhausted by the large volume of applications received in the first week of April, U.S. Citizenship and Immigration Services (USCIS) conducts a random selection to process from the volume received – hence the name “H-1B lottery.” The following two are recent updates.

USCIS Proposes H-1B Pre-Filing Registration Process

(a)In early December, the Department of Homeland Security (DHS) published a proposed rule to implement a pre-filing registration system for U.S. employers seeking to file cap-subject H-1B petitions. The new system would require that employers electronically pre-register their intent to petition for an H-1B beneficiary during a two-week registration period. There would be no fee for pre-registration, but the employer would need to provide basic information about the employer, the intended position, and the beneficiary. If the application is selected for the H-1B lottery, the employer could then file an H-1B petition.

The second major change proposed by DHS is to reverse the order by which the agency selects H-1B petitions under the H-1B cap and the advanced-degree exemption. Currently, in years when the H-1B cap and the advanced-degree exemption are both reached within the first five days in which H-1B cap petitions may be filed, the advanced-degree exemption beneficiaries are selected before the H-1B cap beneficiaries. The proposed rule would reverse the selection order and count all applicants toward the number projected as needed to reach the regular H-1B cap first. Once a sufficient number of applicants have been selected for the H-1B cap, USCIS would then select applicants toward the advanced-degree exemption. USCIS projects that this change in the process would result in a 16 percent increase in the number of selected beneficiaries with a master’s degree or higher from a U.S. institution of higher education.

The proposed new system would cut down on the expensive and time-consuming work performed by employers and their immigration attorneys on cases that are ultimately not selected for the lottery. On the other hand, because of the relative ease by which an employer can register a potential H-1B worker, employers may be incentivized to register many positions that might not ultimately qualify for an H-1B, or that might be abandoned.

While the government would like to implement the rule in time for the upcoming H-1B filing season, the likelihood of that happening is slim, given the tight timeframe by which the agency must complete the regulatory process.

Marijuana Use is No Laughing Matter to CBP

The legal landscape regarding the use and cultivation of marijuana is changing in the United States, Canada, and many other countries. Many questions are arising as to the impact of marijuana-related activities on one’s admissibility to the United States. As a matter of U.S. federal law, marijuana is still a controlled substance. However, as of the end of 2018, the use of marijuana for medicinal purposes has been legalized in 29 U.S. states and the District of Columbia, and recreational use has been legalized in nine U.S. states. In addition, as of October 17, 2018, Canada has legalized recreational marijuana use. Other countries, such as Uruguay, have also made the move to legalize recreational use while countries such as the Netherlands “tolerates” the sale of marijuana, subject to strict conditions. As the number of legal marijuana users increases on both sides of the border, it is important to consider how U.S. Customs and Border Protection (CBP) might focus its questioning or change enforcement tactics when determining admissibility of individuals who lawfully use or cultivate marijuana.

As there is no right to counsel at ports of entry, advising foreign nationals regarding issues that may arise in advance of travel is vital, as it is clear that the trend toward legalization, both inside and outside the United States, has increased the risks associated with travel to the United States. Conviction for possession of even a miniscule amount of marijuana renders a foreign national inadmissible. The only available waiver requires a showing of extreme hardship to a U.S. citizen or permanent resident parent, spouse, or child. Worst of all is that CBP can deny entry on medical-related grounds to someone who admits marijuana use.

Dilip Patel of Buchanan Ingersoll & Rooney PC, a board-certified expert on immigration law, can be reached at (813) 222-1120 or email dilip.patel@bipc.com

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