Serotte Reich Managing Attorney joins AILA's TN panel of experts

Zabrina V. Reich, Managing Attorney at Serotte Reich, is included on AILA’s panel of experts for an upcoming seminar on TNs. The American Immigration Lawyers Association (AILA) will present “TN Visas Under the Current Administration” on Tuesday, March 5 at 2 p.m. EST. During the web seminar, panelists will discuss NAFTA and the United States-Mexico-Canada Agreement (USMCA), tricky TN categories, trends they’re seeing at ports of entry and consulates, and how the Buy American and Hire American Executive Order has affected the way TNs are adjudicated. The experts will also advise on communicating with CBP and how to resolve common issues that arise when applying for TNs.

Also participating on the panel are AILA Past President Kathleen Campbell Walker of El Paso, TX and immigration attorney Lauren K. Ross of San Francisco, CA. To register for the seminar or order a recording of the conference, go to https://agora.aila.org/Conference/Detail/1534.

Controversial “Pre-Clearance Act” Expands Power of American Border Guards on Canadian Soil

A controversial Canadian bill that expands the powers of U.S. border officers working in pre-clearance zones on Canadian soil was recently given Royal Assent and is set to become law. Championed by Canada’s centrist Liberal Party, Bill C-23—commonly referred to as the Pre-Clearance Act—has been criticized as overly broad, with the potential to open the door to human rights violations.

In May 2017, a national coalition of 43 Canadian civil society organizations called the International Civil Liberties Monitoring Group voiced their concerns about Bill C-23 to Parliament. They questioned the purpose of the bill, noting that no evidence has been presented to the public that security measures need to be increased. The ICLMG’s brief and recommendations can be found here.

Broadly speaking, C-23 increases the powers afforded to American border officers working in Canadian pre-clearance zones and eliminates crucial existing restrictions. Key concerns raised by Canadian immigration attorneys include:

• U.S. border guards will be authorized to conduct strip searches and internal cavity searches when Canadian officers are “unable or unwilling” to do so. The broad language used appears to authorize U.S. border officials to conduct these searches even when Canadian officers deem them unnecessary or inappropriate.
• U.S. border guards will be allowed to carry firearms. They have not been permitted to do so in pre-clearance zones under previous legislation.
• Should a Canadian traveler attempt to enter the U.S. but change their mind for any reason, including feelings of discomfort or concern about their interactions with border officials, U.S. officials will be permitted to detain and interrogate them. Previously, the traveler would have been able to withdraw and return to Canada at any time. C-23 also eliminates a provision that barred U.S. border officials from using a citizen’s withdrawal from pre-clearance procedures as “reasonable grounds for suspicion” to detain them or work with Canadian officials to take steps like arresting the traveler.

The above issues are particularly concerning because, although the bill states that U.S. officials must still act in accordance with Canadian laws, it provides no clear legal remedy to travelers whose rights have been violated. Instead, according to the Canadian Muslim Lawyers Association, the bill “provides explicit blanket immunity” to pre-clearance officers, and only allows travelers to hold the U.S. government responsible in cases of property damage, injury, or death. Notably, there is no legal mechanism through which Canadians can hold U.S. officers responsible for discrimination, despite a recent rise in allegations of discrimination at the border. Under Bill C-23, U.S. officers in pre-clearance zones would be “virtually unaccountable,” said Vance Langford, chair of the National Immigration Law Section of the Canadian Bar Association.

The full text of the finalized bill is available on the Canadian Parliament’s website.

If you have questions about the provisions or implications of Bill C-23, including how it may affect your ability to enter the U.S. temporarily or permanently, please reach out to us. We look forward to assisting you with your immigration matter.

Pilot program may have lasting effect on L-1 process for Canadians

Will applying for an L-1 visa at the border soon become a thing of the past? If the pilot program starting on April 30, 2018 is any indication, change may be on the horizon.

U.S. Citizen and Immigration Services (USCIS) and Customs and Border Protection (CBP) have joined forces to launch a pilot program at the port of entry in Blaine, Washington, estimated to last six months. Currently, a Canadian L-1 applicant may present their petition at any U.S. border crossing for immediate adjudication by a CBP officer. This will no longer be an option at the Blaine, Washington, port of entry for the duration of the pilot program.

Instead, applicants in the Blaine Washington State area will need to submit their L-1 applications (Form I-129 and supporting evidence) for processing at the USCIS California Service Center before CBP can admit them into the U.S. Applicants cannot seek admission in L-1 status until they receive USCIS’s approval. According to USCIS, expedited service will be provided to L-1 applicants affected by the pilot program. The specifics of the process are still being solidified but is projected that a decision -- an approval or Request for Evidence (RFE) -- will be issued within 2-3 business days of receipt. In an effort to accelerate the process, USCIS is expected to have an email address devoted to the processing of these L-1 applications to provide case updates, and it could be possible for admission to be sought upon an email confirmation of approval.

Through the preliminary pilot program, the goal is to develop a strategy that will lessen lengthy process delays and make adjudication for L-1 applications more consistent. Additionally, through the change in process, CBP officers can give their full attention to inspections and admissibility issues instead of dedicating time to on-the-spot adjudications.

Things you should know about the pilot program:

• It is currently for L-1 applications only.
• CBP will continue to allow Canadian L-1 applicants to apply for “on the spot” adjudications at all other ports of entry.

What has yet to be determined:

• Clarification regarding potential changes to the RFE process and response time. Will it decrease the number of superfluous RFEs (as intended)?
• If the pilot program is deemed successful, will this new process be nationally implemented – and how quickly will it happen?
• Will the processes for other types of applications eventually be affected?

Updates will be made as new developments arise and Serotte Reich will be keeping you posted. Questions or concerns? Contact us at 716-854-7525 or http://srwlawyers.com/contact

CBP finds Canadian Citizen Inadmissible to the U.S. for Unlawful Presence

Dear SRW Border Lawyers,

Question: I am a Canadian citizen who lives in Toronto, Ontario with my husband (who is also a Canadian citizen). I was born in Russia, but I acquired my Canadian citizenship several years ago. Both my mother and brother live in the U.S. and I try to visit them as much as I can. During my last stay in the U.S., I was admitted as a visitor and I stayed for one year; however, CBP did not stamp a date in my passport in which I had to leave. I returned to Canada briefly and then tried to re-enter the U.S. several weeks later. During that entry, Customs and Border Protection (CBP) saw that I was in the U.S. for a year and denied me admission. CBP told me that I was only authorized to say in the U.S. for six (6) months and found me inadmissible for three (3) years. As a Canadian, I thought I could stay in the U.S. as long as I wanted. Is there anything I can do remove my (3) three-year bar? How can I enter the U.S. to visit my family? I do not have any desire to be a U.S. LPR or U.S. citizen; I just want to enter the U.S. to see my family as much as possible.

Answer: Thank you for your question. We frequently encounter Canadians in situations similar to yours. On one hand, you are not given a date certain to leave the U.S., but when you remain in the U.S. past a certain period of time, CBP determines that you have accrued unlawful presence and as such, are subject to an unlawful presence bar under INA §212(a)(9)(B)(i). 

Generally, when a foreign national enters the U.S. on a nonimmigrant visa, they are given an authorized time period in which they may remain. Once that time period has ended, if they have not otherwise sought to extend/change their status, they must depart the U.S.  If they do not depart the U.S., any periods of unlawful overstay could result in an "unlawful presence" bar which may prevent them from re-entering the U.S. for a given time period.   As a Canadian citizen, while exempt from the requirement to obtain a non-immigrant visa to visit the U.S., you could become subject to this unlawful presence bar in certain circumstances.

Based on the facts that you have provided, CBP has found you inadmissible to the U.S. under INA §212(a)(9)(B)(i)(I), which means that you cannot re-enter the U.S. for a three (3) year period without first obtaining a waiver of such inadmissibility.  For information about how Canadians can apply for a non-immigrant waiver of inadmissibility (Form I-192), please click here.  This three (3) year bar applies to individuals who have been unlawfully present in the U.S. for a period of more than 180 days but less than one year, and have voluntarily departed the U.S. prior to commencement of removal proceedings.

However, from the brief information you have provided, it seems that when you were last admitted to the U.S., you were not given a exact date to depart by.  As a Canadian citizen who was not given a date certain to leave the U.S., you would not begin to accrue unlawful presence until one of the following takes place: (1) United States Citizenship and Immigration Services “USCIS” makes a finding that youl have violated your status; or (2) an Immigration Judge makes a determination that there was a status violation. Since it seems neither happened in your situation, I would question whether you are truly subject to a unlawful presence bar.  

In order to determine the next steps for you moving forward, whether it be a non-immigrant waiver to restore your ability to travel to the U.S. or to request that CBP update their records to reflect that you are not subject to an unlawful presence bar, we would need to speak with you to learn more about your particular case facts and review any documents you may have received from CBP when you were denied entry.  If our legal analysis determines that you should not be subject to an unlawful presence bar, then we can prepare a detailed packet to submit to CBP explaining how you could not have legally accrued a period of unlawful presence that would in effect subject you to a unlawful presence bar.

I encourage you to call our office to set up a consultation, so that we can discuss your case in greater detail. We look forward to assisting you with your immigration needs.