current cbp issues at the pacific northwest border - 01...current cbp issues at the pacific...

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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 of 14

mailto:[email protected]


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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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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:

[email protected].

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.



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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



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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.



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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.



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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



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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



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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



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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



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https://www.canada.ca/en/health-canada/news/2018/06/bill-c-45-the-cannabis-act-passed-in-senate.html




http://www.parl.ca/DocumentViewer/en/42-1/bill/C-45/royal-assent

http://www.parl.ca/DocumentViewer/en/42-1/bill/C-45/royal-assent

11

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



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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)].



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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.



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