Teleconference: Layoffs – Options for Employees
Options for those whose employment has unexpectedly ended are discussed by Murthy Law Firm attorneys in this teleconference. The strategies discussed include change of employer in H1B status, change of status to B, and filing a compelling circumstances EAD. (Please note that the topic originally scheduled for December has been moved to January, due to the timeliness of this topic.)
Employers and their representatives are invited to participate in the teleconference scheduled for December 07, 2022 – another in our series designed especially for them. Find out how to register here.
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Teleconference: Year-End Planning – Immigration Compliance
Year-end planning, such as retention of records for H1B petitions (Public Access Files) and labor certification cases (compliance files) will be discussed by Murthy Law Firm Attorneys in this teleconference.
Employers and their representatives are invited to participate in the teleconference scheduled for December 07, 2022 – another in our series designed especially for them. Find out how to register here.
Copyright © 2022, MURTHY LAW FIRM. All Rights Reserved
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Serious Immigration Consequences for Marijuana, Despite State Law Changes
Legalization or decriminalization of marijuana at the state level can mislead noncitizens into thinking using marijuana in accordance with state law is legal. Marijuana, however, is a controlled substance under federal law. Therefore, the use, sale, purchase, or even the mere possession of marijuana, in violation of the federal Controlled Substance Act, can lead to severe immigration consequences for noncitizens, regardless of how a particular state classifies the drug.
Who Needs to Be Careful About Controlled Substance Records and Admissions?Anybody who is not a U.S. citizen may suffer serious immigration consequences from criminal records and even written or verbal admissions made in connection with controlled substances. Noncitizens is a broad category of individuals ranging from lawful permanent residents (commonly referred to as “green card holders”) to nonimmigrants in the United States for a temporary period, including tourists, students, and foreign national workers. While some categories of noncitizens have more legal protections, a drug offense can result in serious immigration consequences for any noncitizen.
Marijuana is a “Controlled” Substance Under Federal LawMarijuana and its derivatives are classified as Schedule I substances under the Controlled Substances Act, a federal act that regulates the manufacture, import, possession, use, and distribution of certain substances. This puts marijuana on par with drugs such as heroin and lysergic acid diethylamide (LSD) under federal law, which deems these drugs as having “no currently accepted medical use and a high potential for abuse.” While many states have liberalized their laws on marijuana for medical use, and some even for recreational use, the federal prohibition against marijuana remains in effect all across the U.S.
Inadmissibility and Removability Based on Marijuana-Related OffenseUnder immigration law, a foreign national who is convicted of an offense related to a controlled substance, including marijuana, generally becomes removable (i.e., deportable) and can be put in removal proceedings. A foreign national who is either convicted of or admitted to having committed the essential elements of such an offense is inadmissible to the United States. An individual who is “inadmissible” cannot obtain a visa foil (commonly referred to as a visa “stamp”) at a U.S. consular post abroad, be granted admission to the U.S., or adjust status to the status of lawful permanent resident (i.e., receive a green card). In addition, a conviction of or admission to committing a controlled substance offense may result in a denial of extension of status or naturalization.
What Constitutes a “Conviction” for Immigration Purposes?It should be noted that, for immigration law purposes, an individual may be considered to have been “convicted” of a crime under a broad set of circumstances. As discussed in the MurthyDotCom NewsBrief, Criminal Violations and Arrests in the Immigration Context (30.Nov.2020), even many pretrial agreements, deferred judgments, and first offender programs that result in dismissal of charges under state law still could be considered criminal convictions under immigration law.
What Constitutes an “Admission” for Immigration Purposes?Even without any type of conviction, if there is an admission to having committed the essential elements of a controlled substance offense under state or federal law – or of a foreign country’s laws, if the activity occurred while the individual was in that country – that foreign national could be deemed inadmissible. So, if an admission of a drug offense is made, for example, during an interview for an immigration benefit, or even during a discussion with a civil surgeon or panel physician, this could result an immigration official making a finding that the foreign national is inadmissible.
Involvement in Marijuana Related Activities may be Bar to Establishing Good Moral ConductOne of the requirements for becoming a U.S. citizen is that the applicant must establish good moral character. The U.S. Citizenship and Immigration Services (USCIS) issued a policy alert on April 19, 2019, clarifying that involvement in the marijuana industry in violation of federal law may prevent an individual from establishing good moral character, even if the activity is legal under state or foreign laws.
Limited Options to Obtain Inadmissibility Waivers in Immigrant Filing ContextInadmissibility based upon a controlled substance offense is permanent. In the green card context, there is a limited option for requesting a waiver, or forgiveness, in order to allow adjustment of status or issuance of an immigrant visa. The waiver, however, applies only to violations involving personal possession of 30 grams or less of marijuana. This type of waiver requires establishing that failure to allow the foreign national permanent admission to the United States will result in extreme hardship to that person’s U.S. citizen or permanent resident child/ren, spouse, or parent/s. This is a high standard to meet, and is not even an option for one who does not have a qualifying relative.
Inadmissibility Waivers for NonimmigrantsIndividuals applying for nonimmigrant visas may be able to apply for a nonimmigrant waiver based on INA § 212(d)(3). These standards are more flexible, and do not require showing hardship to qualifying relatives. Such a waiver request, however, is discretionary, and, even if approved, would not allow one to become eligible to later apply for a green card. As of the time of this writing, nonimmigrant waiver applications typically take at least six months to process. More information on this type of waiver is available in the MurthyDotCom NewsBrief, Obtaining a Waiver for a Nonimmigrant (29.Oct.2014).
ConclusionForeign nationals are subject to federal immigration laws that prescribe serious consequences for offenses that may not be considered to be criminal under state laws. Individuals with questions or concerns on this topic should consult with an experienced attorney. If you do not have an attorney, you may consult with an attorney at the Murthy Law Firm, as we have successfully filed waivers in both the nonimmigrant and immigrant contexts.
While some aspects of immigration have changed in significant ways in the years since MurthyDotCom began publishing articles in 1994, there is much that is still the same. From time to time, clients of the Murthy Law Firm are referred to articles, like this one, which remains relevant and has been updated for our readers.
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MurthyAudio: Money Matters – Ability to Pay and Affidavit of Support
The ability to pay for I-140 petitions based on labor certifications and the I-864 Affidavit of Support for family-based green cards is discussed by Murthy Law Firm attorneys in this 02.Nov.2022 podcast.
The MP3 is available here and will soon appear in the archive of our teleconferences and podcasts on iTunes.
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My H1B extension was approved, but my wife’s H-4 extension is still pending. We are getting ready to file our I-485 applications. Does she have to wait for her H-4 extension to be approved before applying?
The general requirement is that a foreign national must be in valid status at the time an I-485 application is filed. If an H-4 dependent timely applies for an extension of status, once the I-94 expires, she remains in a period of authorized stay while the I-539 is pending. This, however, is technically not valid “status.”
That being said, if the I-485 is filed during this period of authorized stay and the I-539 application eventually is approved, this typically does not create any issues with the I-485. But, if the I-539 is denied, this could jeopardize the pending I-485. (10.Nov.2022)
Sheela Murthy and other senior attorneys provide guidance that clarifies the law. For information on our FREE online services, click here. Access more FAQs here.
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Over the past year, I have worked for three different H1B employers. There were a few reasons for these job changes, but it mainly came down to finding better opportunities for better pay. Are there any immigration risks with multiple job changes while...
As a general rule, there is no direct, inherent risk in moving between multiple H1B employers. In fact, there have been numerous changes implemented to the H1B program over the years specifically to better ensure that H1B workers are able to change employers as needed. (10.Nov.2022)
Sheela Murthy and other senior attorneys provide guidance that clarifies the law. For information on our FREE online services, click here. Access more FAQs here.
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My employer filed my H1B petition as a Level 1 software developer. However, I have a master’s degree and four years of IT experience. Will this cause my H1B to be denied?
When filing an LCA for an H1B position, the wage level is determined based on the minimum requirements for the position. So, it typically is possible to file an H1B petition for an entry level position, even if the beneficiary has more education and/or experience than is required. (10.Nov.2022)
Sheela Murthy and other senior attorneys provide guidance that clarifies the law. For information on our FREE online services, click here. Access more FAQs here.
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The post My employer filed my H1B petition as a Level 1 software developer. However, I have a master’s degree and four years of IT experience. Will this cause my H1B to be denied? appeared first on Murthy Law Firm | U.S Immigration Law.
Revised Form N-648 to Help Naturalization Applicants with Disabilities
The U.S. Citizenship and Immigration Services (USCIS) recently announced an updated policy regarding medical certification for disability exceptions (form N-648) to make the naturalization process more accessible for applicants with disabilities. The USCIS policy manual clarifies the manner in which medical professionals can properly complete the new, simplified version of form N-648, and request oath waivers based on a physical or developmental disability or mental impairment.
BackgroundAs part of the process for naturalizing to U.S. citizenship, the applicant typically is required to pass a two-part test to prove English language proficiency and knowledge of U.S. civics. However, it is possible to be exempted from both the English and civics tests based on a qualifying physical or developmental disability, or a mental impairment. To receive an exemption, the individual must have a licensed medical professional complete and certify form N-648, and then file the form with the USCIS.
Revisions to Form N-648Based on feedback from the public, the following revisions have been made to the N-648 form to help ease the filing process for applicants and medical providers:
- USCIS is now authorized to accept an applicant’s form N-648 after the application for naturalization (form N-400) has already been filed
- Elimination of redundant or irreverent questions
- Elimination of dates of diagnosis and description of the severity of the disability
- Elimination of the medical professional’s prior relationship with applicant
- Updated guidance for telehealth medical examinations
- Option to include an oath waiver request
The revisions to form N-648 should help reduce barriers for lawful permanent residents with disabilities who wish to become U.S. citizens. We trust that the USCIS will continue to work towards improving all facets of the U.S. immigration system.
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Additional H2B Visas to be Made Available this Fiscal Year
The U.S. Department of Homeland Security (DHS) has announced that approximately 65,000 additional H2B visas will be made available for the current fiscal year. In addition, the White House is creating an H2B Worker Protection Taskforce designed to protect the integrity of the program and root out abuse by certain employers who employ H2B workers.
Overview of H2B ProgramThe H2B visa category is designed to help a U.S. employer in an industry with peak load, seasonal, or intermittent needs to augment its existing labor force with temporary workers. In addition, a U.S. employer may use the H2B program if there is a one-time occurrence that necessitates a temporary increase in workers. The H2B visa category is used by several different industries but is especially prevalent in the construction and food services industries.
Additional H2BsPer this new regulation, the DHS is making 64,716 additional H2B visas available for fiscal year 2023, which runs through September 30, 2023. The regulation explains that 20,000 of these new H2Bs are reserved exclusively for workers from Haiti, Honduras, Guatemala, and El Salvador. The remaining 44,716 visas then will be made available to those who are classified as “returning” workers. This means that the worker has held valid H2B status at some point in the last three fiscal years. The returning worker visas also will be spread out over the course of the fiscal year to account for different periods when seasonal workers are needed.
Increased Protections for U.S. and H2B WorkersThe H2B Worker Protection Taskforce will focus on three areas of concern related to the H2B program. First, the taskforce will examine any threats to the integrity of the H2B program. Second, the taskforce will examine means of protecting H2B workers, such as the ability to leave an abusive employer without risking one’s lawful immigration status. Finally, the taskforce will work to ensure that U.S. employers are not utilizing the program to avoid hiring U.S. workers.
ConclusionThe H2B program is a key component of how the U.S. immigration system helps U.S. employers fill temporary positions and bolster the U.S. economy. Temporarily increasing the availability of H2B workers should alleviate some of the economic pressures created by the pandemic, while the work of the taskforce should help prevent abuse in this category.
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