By: Leon Rodriguez

Seyfarth Synopsis: While marijuana possession and use continue to become legal in many U.S. states, either for strictly medicinal purposes or for any purpose at all, it can still be a basis for denial of immigration benefits, such as temporary visas, legal permanent residency, and/or naturalization, or for revocation of existing immigration benefits.  This can even be true where the possession and/or use never resulted in either a criminal charge or conviction.

Notwithstanding contrary state laws, marijuana continues to be deemed a Schedule I narcotic as defined at 21 U.S.C. § 812((b)(1), meaning it has been found to have “a high potential for abuse”, “no currently accepted medical use in treatment” or a lack of “accepted safety for use of the drug or other substance under medical supervision.” 21 U.S.C. § 812((b)(1)(A)-(C). 21 U.S.C. § 844 makes illegal under federal law simple possession of any Schedule I substance.  Current Attorney General Jeff Sessions has rescinded prior Obama-era Department of Justice guidance accommodating State laws on marijuana, particularly those allowing its possession and use for medical purposes.  As such, the Department of Justice has returned to an aggressive posture  on narcotics enforcement with respect to marijuana.

While the agency has not issued any new guidance or disclosed any changes in adjudication policy, the Department of Justice’s approach is likely to be mirrored in the consideration of such conduct by U.S. Citizenship and Immigration Services (“USCIS”)

8 U.S.C. § 1182(a)(2)(A)(i)(II) makes inadmissible to the United States a foreign national:

“convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of . . . a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 802 of title 21)

At the risk of stating the obvious, lying on an immigration application is also a basis of inadmissibility, 8 U.S.C. § 1182(a)(c)(i), so it is neither here nor there if a violation was denied, where USCIS has in its possession evidence showing the existence of a crime.

8 U.S.C. § 1182(h)(1) does provide for a  narrowly available waiver, at the discretion of USCIS, of this inadmissibility in the case of simple possession. That waiver is available where the disqualifying conviction occurred more than fifteen years prior to the application,  the admission of the applicant “would not be contrary to the national welfare, safety or security of the United States”, and the applicant “has been rehabilitated.” 8 U.S.C. § 1182(h)(2) provides for a waiver where a showing is made that “denial of admission would result in extreme hardship to the United States citizen or lawfully resident spouse, parent, son, or daughter of such alien.”

Also 8 U.S.C. § 1182(a)(1)(A)(i) makes inadmissible someone determined to be a drug abuser or drug addict, a determination which would be made by a civil surgeon acting under designation by USCIS. See, USCIS Policy Manual, Volume 8 (Admissibility), Part B Health-Related Grounds of Inadmissibility, Drug Abuse or Drug Addiction (updated July 26, 2018).  This ground becomes waivable where a civil surgeon certifies that the applicant is rehabilitated.

While marijuana gains greater legal and cultural acceptance in the U.S., it still presents a considerable hazard for those seeking to obtain or maintain immigration benefits.  Given the Federal government’s turn away from Obama-era policies with respect to marijuana-related law enforcement, great care should be exercised in addressing marijuana possession and use issues when seeking immigration benefits.  For some, it may in fact turn out to be a disqualifier.

By: Angelo A. Paparelli

Seyfarth Synopsis: In passing AB 450, the Immigrant Worker Protection Act (IWPA), California lawmakers tried to make it more difficult for federal immigration enforcement agents from accessing nonpublic areas of employer worksites and private employee records.  The U.S. Justice Department filed a federal lawsuit against California attacking the IWPA as an unconstitutional interference with federal power over immigration.  DOJ persuaded the Court to issue a preliminary injunction last month against parts of the IWPA that bar employers from voluntarily providing immigration enforcement agents with access to nonpublic worksites and employee records unless federal authorities present a judicial warrant (to access nonpublic worksites) or an administrative or judicial subpoena (to access employee records).  Only one federal immigration agency routinely dispenses with the warrant or subpoena process.  The Fraud Detection and National Security Directorate (FDNS) – a unit of U.S. Citizenship and Immigration Services (USCIS) – regularly shows up unannounced at employer facilities in California and elsewhere.  Its agents present only a business card and demand the type of access prohibited under the IWPA.

Continue Reading California Can Revive the Immigrant Worker Protection Act by Challenging the Authority of U.S. Citizenship and Immigration Services’ “FDNS” Enforcement Officers

By: Randy Johnson and Walt Mullon

Rubio Introduces Paid Family Leave Bill. Earlier today, Senator Marco Rubio (R-FL) unveiled new legislation aiming to provide paid family leave for new parents. The Economic Security for New Parents Act would allow parents to draw up to six months of early payments from their Social Security benefits. In return for receiving Social Security payments early, parents would defer their retirement benefits for three to six months, or the amount of time necessary to offset the cost of their parental benefits. The proposed legislation includes a 3-year sunset provision, meaning the program would expire if Congress didn’t renew it. The bill has already come under fire from Democrats claiming that the legislation does not go far enough to help working families while also placing additional strain on the Social Security system.

Continue Reading Seyfarth Shaw Policy Matters Newsletter – August 2, 2018

By: Randy Johnson and Walt Mullon

OFCCP Director to Step Down. Earlier today, reports surfaced that the Director of the Office of Federal Contract Compliance Programs (OFCCP), Ondray Harris, would be stepping down from the role at the end of this week. Harris lasted less than 8 months on the job after being appointed to the position last December. Craig Leen, the deputy director at OFCCP, will serve as director on an acting basis. Leen is expected to continue the agency’s recent “business-friendly” approach when analyzing the pay practices of federal contractors as well as the office’s increased focus on apprenticeships.

Continue Reading Seyfarth Shaw Policy Matters Newsletter – July 26, 2018

On July 24, 2018, Immigration and Customs Enforcement (ICE) issued a press release confirming that its Homeland Security Investigations (HSI) division had completed the second phase of a nationwide operation from July 16-20. HSI served 2,738 I-9 Notices of Inspection (NOIs[1]) to US businesses around the country after serving 2450 during its first phase earlier this year. In sum, HSI has now issued almost 5200 NOIs since the beginning of October 2017. Not only this, but HSI also has made 675 criminal and 984 administrative worksite-related arrests. These numbers clearly indicate that ICE takes worksite enforcement very seriously and companies should prioritize a commitment to compliance. Fines for knowingly hiring or continuing to employ unauthorized workers start at $559 per employee and can be as high as $22,363 for repeated offenses. Paperwork violations range from $224 to $2236. Companies may also face additional fines, penalties and forfeitures, and government contractors may face debarment from federal contracts.

In ICE’s press release, HSI reminded employers about its “three-pronged approach to worksite enforcement: compliance, form I-9 inspections, civil fines and referrals for debarment; enforcement, through the criminal arrest of employers and administrative arrest of unauthorized workers; and outreach, through the ICE Mutual Agreement between Government and Employers, or IMAGE program, to instill a culture of compliance and accountability.”

These events have been expected and actually follow prior comments by HSI officials that we previously reported, confirming that 2018 will be a year of increased immigration enforcement.

Continue Reading Baby It’s Cold Outside: ICE I-9 Audits Increase Over 100 Percent

This blog was first published as a Seyfarth Shaw Management Alert on July 17, 2018

By Dawn M. Lurie and Alexander Madrak

Seyfarth Synopsis: Immigration and Customs Enforcement (ICE) increases worksite enforcement by more than 50%.  What should employers understand to prevent fines and minimize reputational risk?

Since the start of fiscal year 2018, ICE has increased worksite enforcement actions by over 50%.  Compared with fiscal year 2017, administrative arrests have increased nearly 400% while worksite investigations have risen from 1,716 to 3,510—with the last quarter of the fiscal year remaining for these numbers to increase.[1]  ICE appears to be making good on the remarks made by leadership to increase worksite enforcement “four to five times.”

Continue Reading ICE I-9 Audits on the Rise: Act Today to Prevent Issues Tomorrow

By: Randy Johnson and Walt Mullon

President Trump Signs Executive Order on Workforce Training. Earlier today, President Trump signed an executive order which aims to bolster vocational training, creates a national council for American workers, and establishes a workforce policy advisory board in a push to increase the number of skilled workers in the U.S. Alongside business executives, the President introduced the “Pledge to America’s Workers,” which commits employers to expanding on-the-job training and apprenticeships. The administration expects the pledge to lead to at least 500,000 new career opportunities for students and workers. Earlier this week, Ivanka Trump penned an op-ed in support of the new initiative, declaring that the administration hopes to “create a workforce culture that fosters and prioritizes life-long learning.”

Continue Reading Seyfarth Shaw Policy Matters Newsletter – July 19, 2018

By: Randy Johnson and Walt Mullon

Trump Taps Brett Kavanaugh for Supreme Court Vacancy. On Monday evening, President Trump nominated D.C. Circuit Judge Brett Kavanaugh to replace retiring Justice Anthony Kennedy on the Supreme Court. Judge Kavanaugh is considered a reliable member of the Republican legal establishment with a solid record on issues from free speech, to religious liberty, to the Second Amendment. His credentials include clerking with Justice Anthony Kennedy, working for Kenneth Starr’s Whitewater investigation, and spending six years in the George W. Bush White House as a lawyer and eventually staff secretary to the president.

In his 12 years on the D.C. Circuit, Kavanaugh has cast dozens of votes to roll back rules and regulations. He has often concluded that agencies stretched their power too far and frequently found himself at odds with the Obama administration, including in dissents he wrote opposing net-neutrality rules and greenhouse-gas restrictions.

Continue Reading Seyfarth Shaw Policy Matters Newsletter – July 12, 2018

By: Angelo A. Paparelli

The familiar lines were drawn. Combatants clashed in a war of words, competing governance philosophies, conflicting laws, and judicial challenges – all in an age-old constitutional battle of federal power versus states’ rights.

This time around, however, the roles were reversed. Version 2018 is unlike the 1960s when extreme-right southern conservatives, claiming to champion states’ rights, defied but ultimately failed to stop federal efforts to protect civil rights. This time, the state of California passed three statutes under its police powers with the avowed purpose of promoting public safety and protecting undocumented state residents against a determined army of newly-unshackled federal immigration enforcement officers. And this time, the state mostly won.

Continue Reading From the Jails to the Streets, Courthouses and Worksites: California Takes on the Federal Immigration Police

By Dawn M. Lurie

Seyfarth Synopsis. The Supreme Court affirmed President Trump’s authority to ban certain foreign nationals from entering the country, finding that such travel restrictions are justified based on national security concerns.

On June 26, a deeply divided Supreme Court issued a 5-4 ruling upholding the latest iteration of the “Travel Ban” or “Travel Ban 3.0.”  The Court held that the September 2017 order, which created the Ban and targeted individuals from mainly Muslim countries, was a lawful exercise of presidential authority (Trump vs. Hawaii).  Employers with employees from Iran, Libya, North Korea, Somalia, Syria, Venezuela and Yemen will now need to review travel-related risks in order to ensure continuity of business operations.  Individuals will also need to be familiar with the specific visa and entry permissions for each country while universities will need to consider foreign student-related issues.

Continue Reading The Anatomy of the Travel Ban