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Current CBP Issues at the Pacific Northwest Border
By W. Scott Railton1
Prepared for the AILA NW 2019 Conference
1. North American Free Trade Agreement
A. Treaty Negotiations
The United States, Canada, and Mexico signed an agreement to supplant the longstanding North
American Free Trade Agreement (NAFTA) on December 1, 2018. The new agreement is
entitled the U.S.-Mexico-Canada Agreement (USMCA). For now, the immigration provisions of
the trade agreement remain largely unchanged. The pact needs to be ratified by each country’s
legislature, and so it should not go into effect until at least 2020.
The immigration provisions of the new Agreement are housed in Chapter 16 of the Agreement,
as was the case with NAFTA. Not a lot has changed. The USMCA’s Chapter 16 adopts much of
the old NAFTA language for “Business Visitors,” “Traders and Investors,” “Intra-Company
Transfers,” and “Professionals.” “Professionals” refers to the TN category.
Article 1602, Paragraph 3, of the USMCA includes language not in the NAFTA, leaving the door
open for future restrictions via regulation by any Party:
3. Nothing in this Agreement shall prevent a Party from applying measures to regulate
the entry of natural persons of another Party into, or their temporary stay in, its
territory, including those measures necessary to protect the integrity of, and to ensure
the orderly movement of natural persons across, its borders, provided that those
measures are not applied in a manner as to nullify or impair the benefits accruing to
any Party under this Chapter.
Side by side, the lists of Professionals in Appendix 1602.D.1 of the USMCA and Appendix 160-
3.D.1 of NAFTA are basically the same. The Appendix has been updated to include Plant
Pathologists as Biologists, and Actuaries as Mathematicians, reflecting changes from October,
2003.
The new Article 1606 covers a “Working Group,” which meets once per year to consider
administration of the Chapter. The Working Group was already in existence with NAFTA, but
the USMCA adds an additional review responsibility for the Group, concerning technologies:
1 Scott practices at Cascadia Cross-Border Law in Bellingham, Washington, and can be reached at [email protected]; 360-671-5945. Special thanks to my esteemed co-panelists Len Saunders and Cody Nunn for their helpful comments on this article. Copyright W. Scott Railton, 2019.
2019 NW Regional Immigration Law ConferenceBusiness Track Session 3: Current Issues at the Border
W. Scott Railton, Cody Nunn & Len Saunders
February 14-15, 2019 Page 1 of 14
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(e) Issues of common interest related to temporary entry of business persons, such as
the use of technologies related to processing of applications, that can be further
explored among the Parties in other fora.
Several Article headings are changed, but the changes are cosmetic; e.g. the Article 1601
heading changes from “General Principles” to “Definitions”.
Many thought the agreement, if reached, would include numeric restrictions for TNs. Not
present. In fact, the original restrictions on Mexico’s TNs are stricken from the Appendix 1603.
The countries are expected to collect and share data on entries, as per the Article 1605 Provision
of Information requirements.
The Agreement does not include significant revision of the TN list. Most seem to agree that
the list of eligible occupations needs to be updated. Many new professions have come into
existence over the last 25 years. The Information Technology sector is full of new occupations,
such as web developers, database administrators, architects, and software engineers. Medical
science and health care professions have similarly evolved. For instance, advanced practice
register nurses fill a vital role for hospitals, but sometimes are denied TNs for being more than a
Registered Nurse. Nonetheless, any attempt at re-doing the occupation codes may have led to a
more restrictive outcome, with less categories, numeric restrictions, and tighter qualifications.
The U.S. has been limiting immigration with “Buy American, Hire American” policies, and so
this could have happened here.
One question going forward is what do we call the TN now? TN is short for Treaty NAFTA,
but with the change of the treaty’s name, perhaps the work authorization category may change in
name too. The White House has been intent on doing away with NAFTA, and so perhaps the TN
name might do the same way, in time.
My impression is the negotiators had their reasons on each side to avoid a major rewrite on
Chapter 16. Other trade issues probably carried more weight, and fast advancing deadlines
set by the White House may have ended up leaving this chapter for later. The U.S. Office of
Trade Representative held hearings on the mobility issues, and so it is not like the issues were
overlooked.
My greatest concern for the next year is that the U.S. may continue to use regulation to alter the
TN category further. The Administration has been very effective at limiting immigration through
restrictive regulation and categorical interpretations. One possibility is that DHS may try to move
TN adjudications away from the border and to USCIS Service Centers.
AILA Resources
The United States-Mexico-Canada Agreement (USMCA): All Quiet on the Immigration
Front
AILA Doc. No. 18100432 | Dated October 3, 2018 | File Size: 514 K
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February 14-15, 2019 Page 2 of 14
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AILA Comments on Negotiating Objectives Regarding Modernization of NAFTA
AILA Doc. No. 17061333 | Dated June 12, 2017 |
U.S. Trade Representative Provides Text of Revised Trade Agreement with Canada and
Mexico
AILA Doc. No. 18100131 | Dated September 30, 2018 |
B. Adjudications
Here is a brief list of practice pointers on recent adjudication trends and issues:
Choice of forum matters all the more these days. You have to know the strengths and
weaknesses of the application ahead of time, as well as pragmatic needs of the client and
beneficiary. The options include USCIS and CBP. There are a long list of options with
CBP, as Class A Ports of Entry can field applications, as well as Preflight Inspection. The
Northwest ports of entry can be hard on a number of occupation classifications, as well
with regard to procedure. An unhappy client is one who drives all the way to Blaine, just
to receive a hard time. On the other hand, Blaine may be the most convenient and cost-
effective location for some beneficiaries, and can work just fine when there are no
obvious concerns.
The Buy American, Hire American Executive Orders may be enforced adversely,
despite no real change in legal authority to NAFTA. E.g.: “Don’t give away an American
job to that guy!,” as has been heard at local ports more than once. Clients need to be
prepared for the range of treatment they may see with an application. Canadians usually
understand the concept of “It depends on who you get..” as to their border experience,
and it doesn’t hurt to remind them of this.
CBP wants to see original documents. We recently confirmed that CBP still wants to
see original documents to support an application (e.g. diploma, proof of citizenship).
Middle of the day, middle of the week, is generally a better time to submit an
application at the local land ports of entry. Avoid shift changes (e.g. late afternoon hours,
breakfast morning hours). Applications submitted at odd hours increases the amount of
deviation an applicant may see from the normal adjudication. Sometimes it works out
great. Sometimes not.
Vancouver Airport is managed by a different Field Office than the Seattle Field Office.
A list of local contacts is included with the materials, but for ease of reference, the
Vancouver Supervisor on charge will usually respond at the following email address:
The local ports of entry permit an applicant to apply for a TN a short time in advance of
their need to be in the U.S., and then return to Canada. In the past, sometimes applicants
were told to come back when they needed to go to work. The current policy allows more
predictability for persons who need to be in the U.S. at a time certain, such as a
Management Consultant who has management consulting duties which require advance
scheduling for many persons.
2019 NW Regional Immigration Law ConferenceBusiness Track Session 3: Current Issues at the Border
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February 14-15, 2019 Page 3 of 14
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Advanced Practice Registered Nurses may be denied TNs locally as a Registered
Nurse, but practice isn’t consistent locally or nationally.
Do not apply for a TN for someone working in the cannabis industry in the U.S. This
comes up, as the industry needs scientists for testing, accountants for business operations,
and management consultants for industry expertise, et al. Additional information follows
in this article on marijuana and industry work.
CBP says they will review transcripts to determine if there is a reasonable nexus
between degree type and occupation category.
AILA Resources
USCIS Issues Guidance on NAFTA TN Status Eligibility for Economists
AILA Doc. No. 17122031 | Dated December 18, 2017 | File Size: 518 K
Friday FAM for March 24, 2017 -Consular Adjudication of TNs (AILA Rome District)
AILA Doc. No. 17032435 | Dated March 24, 2017 | File Size: 664 K
2019 NW Regional Immigration Law ConferenceBusiness Track Session 3: Current Issues at the Border
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February 14-15, 2019 Page 4 of 14
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2. Blaine L-1 Pilot Project
The Peace Arch and Pacific Highway Crossing in Blaine, Washington are implemented a “Pilot
Program” for L-1 Intracompany Transfer petitions on or about April 30th, 2018, initially for six
months. The Program has been a failure so far, but nonetheless was extended on November 1,
2018 for another six months.
A. Introduction of the Program
For decades, Canadian beneficiaries of L-1 petitions have submitted their applications at Class A
Port of Entries, and then received immediate adjudication. The Pilot Program, while introduced
with promises of efficiencies, threatens a long-standing benefit for Canadian businesses.
The program was introduced in March, 2018 with briefing hosted jointly by U.S. Customs and
Border Protection and U.S. Citizenship and Immigration Services, which was led principally by
USCIS Director L. Francis Cissna. Director Cissna said that the stated intention of the L Pilot
Program is to try to move Port of Entry adjudications out of CBP’s hands and into USCIS’s
hands. Director Cissna views this work as USCIS work, since it involves immigration benefits.
CBP doesn’t seem happy with the function (my observation), as they consider themselves an
enforcement agency first and foremost. There were indications that if the Pilot Program works,
perhaps TN adjudications can be handled on the same process.
Under the Pilot Program, the petitioning company sends the petition to USCIS with a special
cover sheet. USCIS then is supposed to adjudicate the applications with the cover sheet “super
fast…faster than premium processing,” in an effort to provide adjudication service similar to
what is now available at the Port of Entry for Canadians. Approvals and Requests for Evidence
will be sent to employers directly. CBP and USCIS say they can work together on the phone,
while the Beneficiary is present, to adjudicate the application. However, USCIS said it would be
best to wait for the approval, Applicants can go down to the Port of Entry with just a receipt
notice, and granted admission if the matter is adjudicated favorably. This was described as “good
organizational management.”
The Pilot Program is exclusive to Blaine, and so Canadian applicants who want immediate Port
of Entry adjudication may still go to other Port of Entries. The process will be mandatory for
Canadians at the Peace Arch and Pacific Highway. The process includes L blankets. The
California Service Center is the designated USCIS service center for adjudication.
Some interesting statistics were mentioned during the first meeting. AILA members were told
there are about 6200 Canadian L petitions submitted each year, which is about one-sixth of the
overall total. The Blaine POEs are not handling too many per week now. One person said about
half a dozen; another said about 50 per month. Issues raised by attorneys included the Request
for Evidence rate at the USCIS Service Centers, which is very high; as well as the benefit from
instant adjudication at the Port of Entry v. the issues in presenting a petition there sometimes.
2019 NW Regional Immigration Law ConferenceBusiness Track Session 3: Current Issues at the Border
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February 14-15, 2019 Page 5 of 14
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This could end up being a step back for Canadian businesses who may clearly qualify and benefit
from on-the-spot adjudication. There was a time when port of entry adjudication was a pretty
quick process, and this method of application really helped Canadian businesses quickly get the
people they need into the U.S. temporarily. USCIS has created a whole lot of red tape for
legitimate businesses in recent years, and this presents another opportunity for government
delays. A more favorable view of the program is that this allows pre-adjudication by USCIS of
petitions, at a rate faster than Premium Processing’s fee based 15 day guarantee.
B. Six Month Follow Up On Pilot Project:
Here is a brief summary of the six-month follow up meeting with stakeholders.
15 submissions in 6 months; 80 Percent RFE Rate
USCIS reported they received 15 total submissions over the past six months in the Pilot
Program. Ordinarily, they were getting at least that many a week at the Blaine crossings, and I
think many more. Conclusion: nobody is using the program. This must be a conscious
decision by Canadian businesses and their attorneys. Indeed, attorney comments during the
meeting said as much. "People are voting with their feet," one said.
USCIS reported that they issued 12 Requests for Additional Evidence (RFE) on the 15 cases. So
far, they’ve approved seven cases and denied three, with the other five pending. They “outright”
approved three cases, without RFEs.
RFEs are very common for USCIS right now. Even so, an 80 percent RFE rate is very high, even
for USCIS. RFEs mean substantial extra expense for employers (thousands of dollars
sometimes), as well as lengthy delays (months), with no certainty of eventual approval. Such is
immigration these days.
Pilot cases submitted to USCIS seem to be handled similarly to Premium Processing cases at the
Service Center. Premium Processing is the program where employers pay $1410 for 15 day
initial adjudication. In this case, petitioners did not have to pay this expense, but of course the
process is automatically slower than the same day adjudication some Canadian companies are
used to. Most of the cases have been receipted within days—the agency reported two or three
days. When an RFE is issued, typically the Petitioner is given three months or so to respond.
Attorneys seem universally opposed to the program. East Coast attorneys, calling in on the
phone, expressly said they would not like to see this program move their way. Representatives of
both agencies suggested they might try expanding the program to the Vancouver Airport or other
ports of entry, but no decision has been made.
The meeting itself was well organized, with video and phone lines open for all, and both
agencies seemed to genuinely want feedback, offering many opportunities for comment.
2019 NW Regional Immigration Law ConferenceBusiness Track Session 3: Current Issues at the Border
W. Scott Railton, Cody Nunn & Len Saunders
February 14-15, 2019 Page 6 of 14
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Concerns with Process, Concerns with Adjudication
From a process standpoint, Canadian businesses receive no benefit from taking away the option
of on-the-spot adjudication. There are times when this is very valuable, such as when an
important employee of a Canadian company needs to work in the U.S. fast (e.g. this weekend).
Also, there is a benefit to being able to make your case to a live officer, rather than have
everything done on paper. Frankly, USCIS has gotten too far into the weeds with adjudications,
abandoning the preponderance of evidence standard applicable to all nonimmigrant work
authorization petitions.
On the adjudication side, the agencies are pushing for “uniformity of adjudication.” They say
that USCIS has the expertise for adjudicating L-1 petitions, which is true at some level.
However, border adjudications are nothing new, and they have worked for Canadian/U.S.
businesses for decades. Uniformity is also a myth--USCIS adjudicators handle matters very
differently, from cubicle to cubicle.
Perhaps the biggest concern for Canadian businesses in this niche is USCIS's extensive use and
abuse of the RFE. Their templates are many pages long, and employers can spend the same
amount of time they might in preparing an environmental impact statement, just trying to explain
the technical aspects of one of their experts and why they are "specialized" or how they qualify
as a "manager". The RFEs are bogging down USCIS too, which has record wait times on many
very-ordinary types of cases.
Despite no visible support, the Pilot Program was extended another six months. Here is the press
release:
USCIS and CBP Extend Form I-129 Pilot Program for Canadian L-1 Nonimmigrants
U.S. Citizenship and Immigration Services and the U.S. Customs and Border Protection (CBP)
are extending the joint agency pilot program for Canadian citizens seeking L-1 nonimmigrant
status under the North American Free Trade Agreement (NAFTA) through April 30, 2019.
Earlier this year, the USCIS California Service Center (CSC) and the CBP Blaine, Washington,
port of entry (POE) announced this pilot program which was scheduled to run from April 30,
2018, through Oct. 31, 2018. This pilot program allows, but does not require, Canadian citizens
to request that USCIS remotely adjudicate their petitioning employer’s Form I-129 or I-129S
prior to their arrival or when they arrive at the Blaine POE. USCIS continues to encourage
these Canadian citizens and their petitioning employers to email
[email protected] with feedback on their experience with the pilot program.
Over the next six months, USCIS and CBP will continue to work together to determine the
efficiency of the program, identify shortcomings, and look for ways to improve it.
AILA Resources
USCIS and CBP to Implement Form I-129 Pilot Program for Canadian L-1
Nonimmigrants
2019 NW Regional Immigration Law ConferenceBusiness Track Session 3: Current Issues at the Border
W. Scott Railton, Cody Nunn & Len Saunders
February 14-15, 2019 Page 7 of 14
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AILA Doc. No. 18040260 | Dated March 30, 2018 | File Size: 523 K
USCIS and CBP Extends Form I-129 Pilot Program for Canadian L-1 Nonimmigrants
AILA Doc. No. 18110177 | Dated October 31, 2018 | File Size: 587 K
Practice Alert: CBP Using L-1 Checklist for NAFTA Adjudications at U.S.-Canada Ports
of Entry
AILA Doc. No. 15022565 | Dated February 24, 2015
2019 NW Regional Immigration Law ConferenceBusiness Track Session 3: Current Issues at the Border
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February 14-15, 2019 Page 8 of 14
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3. Canada’s Legalization of Marijuana
In 2018, Canada legalized recreational use of marijuana, and CBP reluctantly was forced to
somewhat address the continuing conflict of federal, state and now foreign law.
A. Canada Legalization
i.) Summary of Canadian Law
Full title: “An Act respecting cannabis and to amend the Controlled Drugs and
Substances Act, the Criminal Code and other Acts”. Also known as Bill C-45,
or The Cannabis Act.
Effective: October 17, 2018
Effect: Legalizes recreational use of cannabis nationally in Canada, through a set of laws
which govern use/possession, age limits, Federal licensing, Provincial controls
over sales and distribution, federal regulation, prohibited conduct, and taxation.
Notable: Canadian lawmakers relied on legalized systems of Colorado, Washington State,
and Uruguay as model for law. Prime Minister Trudeau was a major proponent,
and campaigned on the issue in 2015.
Summary:
The Cannabis Act allows adults, subject to provincial or territorial restrictions, to:
purchase fresh cannabis, dried cannabis, cannabis oil, cannabis seeds, or cannabis plants
from retailers authorized by the provinces and territories;
consume cannabis in locations authorized by local jurisdictions;
possess up to 30 grams of dried legal cannabis or equivalent in non-dried form in public;
share up to 30 grams of dried legal cannabis with other adults;
grow up to four cannabis plants per household (not per person) for personal use, from
licensed seeds or seedlings from a licensed supplier; and
make legal cannabis-containing products at home, such as food and drinks, provided that
dangerous organic solvents are not used in making them.
Provinces and territories will be able to purchase cannabis from federally licensed
producers, so that distributors and retailers can begin preparing retail access online or in
physical stores; however, they will not be able to sell cannabis products to adults of legal
age until the Cannabis Act comes into force.
The Cannabis Act creates a specific criminal offence for selling cannabis to a minor and
creates significant penalties for those who engage young Canadians in cannabis-related
offences.
Drug-impaired driving remains illegal in Canada. Law enforcement can currently detect
drug-impaired driving using Standard Field Sobriety Testing and Drug Recognition
2019 NW Regional Immigration Law ConferenceBusiness Track Session 3: Current Issues at the Border
W. Scott Railton, Cody Nunn & Len Saunders
February 14-15, 2019 Page 9 of 14
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Expert evaluation. Should Bill-C46 be passed by Parliament and receive Royal Assent,
additional drug-impaired driving offences will come into effect.
Drug screening devices are currently being evaluated to meet Canadian standards and
will provide law enforcement with an additional tool to detect drug-impaired driving
should Bill C-46 be passed by Parliament and receive Royal Assent.
It is illegal, and will remain illegal once the Cannabis Act has come into force, for
travelers to take cannabis out of Canada or to bring it back from other countries.
(Bold added).
(Summary Source: Health Canada, at https://www.canada.ca/en/health-
canada/news/2018/06/bill-c-45-the-cannabis-act-passed-in-senate.html
Additionally:
The Act includes related “indictable” and “summary” offenses for a broad range of
violations.
Prohibitions include black market activities, including for purpose of exporting.
Marketing, labeling, and promotion are restricted, with associated penalties for violations.
Purchases will be allowed in some provinces by electronic payment.
Public outreach in Canada includes highway signage, mailings, media, and public/private
partnerships.
Extensive media coverage in Canada
On U.S. side, Department of State has requested information sheet published by CBP.
Statements from CBP have generally been U.S. federal law remains the same.
Full text of C-45 at: http://www.parl.ca/DocumentViewer/en/42-1/bill/C-45/royal-assent
For the U.S. immigration attorney, there are several things to note:
The federal agencies and particularly CBP are saying “nothing’s changed.” Practically,
this means that persons may still be inadmissible related to marijuana for many reasons,
including:
o Health related reasons for Class A Medical Conditions related to marijuana.
o U.S. activity in the marijuana industry.
o Admission to past possession of marijuana before legalization.
o Violations of the Canadian Cannabis Act, as a violation of a controlled substance
law.
o Being a family member of someone engaged in illegal trafficking in the U.S.
o Marijuana in possession at the border.
Every week we are hearing of some new theme relating to inadmissibility and marijuana. Lately,
some of the issues have surrounded CBD, good moral character in naturalization, and family
members who are impacted by others working in the industry. We area also understand that
2019 NW Regional Immigration Law ConferenceBusiness Track Session 3: Current Issues at the Border
W. Scott Railton, Cody Nunn & Len Saunders
February 14-15, 2019 Page 10 of 14
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CBP is focused on issues like these in their musters, including most recently discussion of how
to handle returning lawful permanent residents who have ties to the marijuana industry.
ii.) Industry Travel to the U.S.
CBP published a statement on travel to the United States and Canada’s legalization. Here is the
statement:
CBP Statement on Canada’s Legalization of Marijuana and Crossing the Border
Release Date:
September 21, 2018
UPDATED: 10/09/2018
U.S. Customs and Border Protection enforces the laws of the United States and U.S. laws will
not change following Canada’s legalization of marijuana. Requirements for international
travelers wishing to enter the United States are governed by and conducted in accordance with
U.S. Federal Law, which supersedes state laws. Although medical and recreational marijuana
may be legal in some U.S. States and Canada, the sale, possession, production and distribution
of marijuana or the facilitation of the aforementioned remain illegal under U.S. Federal Law.
Consequently, crossing the border or arriving at a U.S. port of entry in violation of this law may
result in denied admission, seizure, fines, and apprehension.
CBP officers are thoroughly trained on admissibility factors and the Immigration and
Nationality Act, which broadly governs the admissibility of travelers into the United States.
Determinations about admissibility and whether any regulatory or criminal enforcement is
appropriate are made by a CBP officer based on the facts and circumstances known to the
officer at the time.
Generally, any arriving alien who is determined to be a drug abuser or addict, or who is
convicted of, admits having committed, or admits committing, acts which constitute the essential
elements of a violation of (or an attempt or conspiracy to violate) any law or regulation of a
State, the United States, or a foreign country relating to a controlled substance, is inadmissible
to the United States.
A Canadian citizen working in or facilitating the proliferation of the legal marijuana industry
in Canada, coming to the U.S. for reasons unrelated to the marijuana industry will generally
be admissible to the U.S. however, if a traveler is found to be coming to the U.S. for reason
related to the marijuana industry, they may be deemed inadmissible.
CBP officers are the nation’s first line of defense in preventing the illegal importation of
narcotics, including marijuana. U.S. federal law prohibits the importation of marijuana and
CBP officers will continue to enforce that law.
U.S. Customs and Border Protection is the unified border agency within the Department of
Homeland Security charged with the management, control and protection of our nation’s
2019 NW Regional Immigration Law ConferenceBusiness Track Session 3: Current Issues at the Border
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February 14-15, 2019 Page 11 of 14
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borders at and between the official ports of entry. CBP is charged with keeping terrorists and
terrorist weapons out of the country while enforcing hundreds of U.S. laws.
Last modified: October 9, 2018
Most notable from the statement perhaps is the agency’s statement that persons working in the
Canadian industry who are traveling to the U.S. for reasons unrelated to the marijuana industry
will be admitted. This was a modification on the agency’s original statement, likely after some
pressure from interested parties.
Since Canada legalized, most of the persons we hear of that are deemed inadmissible have
something to do with working in the industry. We heard that the agency was specifically on the
lookout for persons seeking to travel to an industry conference in Las Vegas, Nevada. We have
also seen indications that the agency or government is actively researching on-line resources
about marijuana investors.
Further, since October, we have not seen as many agency Q&As at the border where the goal is
to solicit an admission to illegal use of marijuana prior to October, 2018. While this has been
seen in a few cases, the focus of the agency seems to be more on industry related travel. This is
significant, as prior to legalization, there was a firestorm of media and legislative interest in
Canada that the cannabis users would routinely run into issue at the border, even causing wait
times across the board. This has not occurred.
The issues with marijuana legalization are fluid, and with new wrinkles related to immigration
law appearing regularly. For example, increasingly we are hearing of attorneys challenged in
advising family members who are the beneficiaries of persons working in the legalized industry.
Some naturalization applications are impacted. Questions are arising regarding CBD products,
and other products which contain “the attributes of marijuana.” Searches of mobile devices and
computers can lead to issues. AILA has published a Practice Pointer on legal marijuana,
referenced below. For reference, included after this section is a list of statutes which are relevant
to legalized marijuana issues and admissibility.
AILA Resources
Practice Pointer: Admissibility and the Changing Landscape of Legal Marijuana
AILA Doc. No. 18113033 | Dated November 30, 2018 | File Size: 637 K
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Cannabis-Related Bases for Inadmissiblity
I. Criminality Related Grounds
A. Personal:
a.) A past conviction related to cannabis [INA § 212(a)(2)(A)(II)];
b.) Admitting to committing a violation of any law or regulation of a foreign country related
to controlled substances [INA § 212(a)(2)(A)(II)];
c.) Admitting to committing acts which constitute the essential elements of any law or
regulation of a foreign country related to controlled substances [INA § 212(a)(2)(A)(II)];
Note: Cannabis on person/in car: this is a Customs violation, likely warranting a $500 fine and
further questions. Not typically referred for prosecution, though a violation of the Controlled
Substance Act. Waiver usually required thereafter. Also, note, cannabis may also be involved in
crimes involving moral turpitude, a separate basis of inadmissibility.
B. Illicit Trafficking (“Reason to Believe”: no conviction required)
d.) Where the U.S. Government knows or has “reason to believe” (no conviction required) is
an illicit trafficker, or who is or has been a knowing aider, abettor, assister, conspirator or
colluder with others who are in illicit trafficking [INA § 212(a)(2)(C)(i)];
e.) A spouse, son or daughter of an illicit trafficker, who has received financial or other
benefit from the illicit trafficking in the past five years, and knew or reasonably should
have known that the financial or other benefit was a product of such illicit activity. [INA
§ 212(a)(2)(C)(ii);
II. Health related grounds (“Drug abuser/Drug Addict”; “Physical/Mental Disorder”)
f.) A determination that a noncitizen is a drug abuser or drug addict, in accordance with
regulations prescribed by Health and Human Services [INA § 212(a)(1)(A)(iv)];
g.) A determination that a noncitizen has a physical or mental disorder and behavior/ history
of behavior posing threat to property, safety or welfare of others [INA §
212(a)(1)(A)(iii)(I and II)]
Panel physician – have to pay government certified physician for exam
CDC Technical Instructions requires 1 year of remission
III. National Security- (Unlawful purpose)
h.) Seeking entry principally or incidentally for an unlawful activity [INA § 212(a)(3)(ii)];
IV. Misrepresentation/Fraud
i.) Fraud or willfully misrepresenting a material fact in pursuit of an immigration benefit
[INA § 212(a)(6)(C)].
2019 NW Regional Immigration Law ConferenceBusiness Track Session 3: Current Issues at the Border
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4. CBP Releases Officer Reference Tool Documents
U.S. Customs and Border Protection currently used the “Officer’s Reference Tool” (ORT) as
guidance for officers. The ORT replaces CBP’s Inspector’s Field Manual, which has previously
been available through AILA Publications and elsewhere. AILA and the American Immigration
Council filed a Freedom of Information Act suit against CBP to compel release of the ORT.
Documents are being released and updated on AILA’s website at AILA Doc. No. 18112701.
The released documents are heavy with redactions, but worthy of perusal. The memorandums
and musters address a broad range of issues, including I-94 policies, inspections, specific non-
immigrant categories (e.g. Ls, Rs), processing of expedited removal cases, and so forth. The
guidance largely focuses on the mechanics of inspections, rather than the substance of
adjudications, but there is information of interest for practitioners who work with CBP.
AILA Resource
CBP Releases Officer's Reference Tool Documents
AILA Doc. No. 18112701 | Dated January 24, 2019
5. Federal Government Shutdown
By the time of our conference, hopefully the Federal Government shutdown has been resolved.
Hopefully it will also be the last shutdown. Nonetheless, as of the time of this writing, the
federal shutdown is the longest ever. The impact of the shutdown on CBP operations is as
follows:
The Ports of Entry are open and operating, of course. However, CBP Officers are not
receiving paychecks, which impacts morale and personal finances. In turn, this could
spill over into adjudications and other matters, but such reports are not common.
Nonimmigrant applications will be adjudicated as normal.
The NEXUS office is furloughed.
The Seattle Field Office operations for CBP are accepting I-192 waiver applications as
usual. However, the Admissibility Review Office in Virginia is on furlough, and so such
applications are not being adjudicated. Even after the shutdown, we anticipate that the
agency will need to work through the backlog, which will lead to lengthier wait times for
waivers.
CBP’s website will not be “actively managed” during the shutdown.
Copyright W. Scott Railton, 2019.
2019 NW Regional Immigration Law ConferenceBusiness Track Session 3: Current Issues at the Border
W. Scott Railton, Cody Nunn & Len Saunders
February 14-15, 2019 Page 14 of 14