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This week, tens of thousands of people will flock to the Nevada desert to attend the Burning Man festival—an annual international attraction, drawing visitors from all over the world looking to take in the desert environment, artistic expression, and spectacular costumes. Locally, however, the event is also known for being a venue where the drug use is as experimental as the performance art.
Among the attendees of Burning Man and similar events around the country are non-U.S. citizens who may be unaware of the potentially dire immigration consequences of engaging in drug-related activity, particularly while on federal land in a state where marijuana is legal. Using, possessing, purchasing, or selling a controlled substance may be grounds for inadmissibility, visa denial, or deportation, and evidence of a drug offense may prevent an applicant from obtaining a green card or citizenship. Conflicts between state and federal law have created confusion over whether marijuana is still considered an illegal drug. There’s a misperception that marijuana use is no longer prosecuted, now that a majority of states have legalized medicinal or recreational marijuana. Thirty-three states1 have legalized medical marijuana, and 11 states2 and the District of Columbia have legalized adult recreational marijuana.
Federal law is a different story. Under federal law, marijuana is classified on par with heroin and LSD, as a Schedule I drug. In the immigration context, it’s important to understand that individuals may be deemed to have violated federal drug laws even if they have not been arrested, charged or convicted. For example, an individual who admits to having worked for a cannabis start-up in Colorado or to using marijuana at home in Arizona to treat the effects of chemotherapy may have admitted to conduct that constitutes a violation of federal law, potentially triggering immigration consequences. This is true even if the conduct was legal under state laws.
The current administration has signaled its lack of tolerance for drug activity by immigrants. In June 2017, U.S. Citizenship and Immigration Services began asking green card applicants if they have violated state, federal or foreign drug laws at any time. In 2018, Attorney General Jeff Sessions revoked Obama-era policy memos that discouraged federal prosecutors from prosecuting marijuana violations that were legal under state laws. In April of this year, USCIS clarified that marijuana-related violations will generally prevent citizenship applicants from proving they have “good moral character,” a requirement to naturalize.
Noncitizens should be aware of the immigration consequences of drug-related activity. Carrying a medical cannabis card, keeping drug paraphernalia, or posting drug-related photos or discussions on publicly available social media could open up a line of questioning from law enforcement if found. While it is not necessary to be on federal land to violate federal law, Burning Man takes place on federal land and is policed by federal Bureau of Land Management officers, increasing chances of encountering federal law enforcement.
As Burners ignite an effigy of “The Man” on the last Saturday of the event, foreign nationals in the crowd would do well to remember that drug activity could sacrifice their immigration status.
Ryan Harris is an Associate in the San Francisco office of Berry Appleman & Leiden LLP.
Melanie Beckwith is a Staff Attorney in the San Francisco office of Berry Appleman & Leiden LLP.
The information contained here is meant to be informational, and while BAL has made every effort to ensure the accuracy of the information, it is not promised or guaranteed to be complete. Readers of this information should not act upon any information contained on this alert/blog without seeking professional counsel. This alert does not constitute legal advice or create an attorney-client relationship. Any reference to prior results, does not imply or guarantee similar future outcomes.
1 Alaska, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, District of Columbia, Florida, Hawaii, Illinois, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Missouri, Montana, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, Utah, Vermont, Washington, West Virginia.
2 Alaska, California, Colorado, Illinois (effective Jan. 1, 2020), Maine, Massachusetts, Michigan, Nevada, Oregon, Vermont, Washington.
Just as barbecue and baseball are sure signs of summer, in the immigration world, decisions on H-1B cap cases are hallmarks of the summer months. While most companies will receive either an approval or rejection, a great many employers will also receive another type of notice: a request for evidence, or RFE. RFEs have surged since 2017 when the Trump administration directed government agencies to increase scrutiny of visa categories, particularly H-1Bs, as part of its long game to transform high-skilled immigration by shifting how policies are administered.
Pre-Trump, about one in five H-1B petitions received an RFE, but in fiscal year 2018 the odds of receiving an RFE increased to 38%, and in the six months ending March 2019, nearly half (48%) of H-1B petitions were hit with RFEs.1 In addition to issuing more RFEs, USCIS has introduced new RFE types, often focusing on certain job roles or eligibility criteria. For example, in 2017, RFEs focused heavily on computer programmers, and in 2018, all entry-level positions were under particular scrutiny. Common RFE grounds include proving the employer-employee relationship, establishing the employee’s qualifications for the job, and showing that the H-1B worker has properly maintained his or her immigration status.
What kind of RFEs are in the government’s lineup for 2019? USCIS provided some important insights in a stakeholders call in March. USCIS officers discussed their approach to RFEs, the type of information they are looking for, and examples of common pitfalls when responding to RFEs. Notably, during their discussion of H-1B eligibility, they did not mention “business” among eligible H-1B occupations. This omission suggested that H-1B candidates in business roles are likely to face enhanced scrutiny this season, and, indeed, the latest RFEs suggest that business-related degrees may be in the government’s strike zone. Such roles might include marketing professionals, analysts, and product managers—jobs that straddle technology and business but are not strictly related to STEM fields.
As in recent seasons, the government is requiring much greater detail about the H-1B candidate’s job duties, wages, qualifications, and how the role fits within the company’s business. Companies should plan for longer timelines to respond to RFEs, and managers and employees should be prepared to play a hands-on role in providing information to their legal teams. For example, counsel may need to ask an expert in the industry, such as a university professor, to write an opinion letter stating the educational qualifications required for the H-1B job and whether it qualifies as a specialty occupation. In cases where the acceptable degree for a job includes a general term, such as “engineering” or “business administration,” managers should be prepared to explain whether any degree under that general description would suffice, or whether only degrees with certain specializations (such as computer engineering, software engineering, and electronics engineering) would be acceptable.
At a time when RFEs play such a critical role in the adjudication process, BAL is continuing to innovate strategies to respond to them. In addition to working closely with managers and employees, we also leverage our own analytic tools to track trends in RFE types, responses and outcomes. Companies should be ready to respond and adjust to the new reality in which RFEs increasingly represent the keys to the game, as cap season enters the home stretch. Good preparation will make the H-1B process a little less stressful and the barbecue and baseball a bit more enjoyable.
Brittany L. Delbridge is a Staff Attorney in the San Francisco and Walnut Creek offices of Berry Appleman & Leiden LLP.
Employers in today’s workplace regularly review a potential candidate’s online profiles when making a hiring decision. Much like the modern job seeker, visa applicants should now expect the same screening from the U.S. government. Thanks to a new section the State Department has quietly added to the online visa application form (DS-160), the U.S. government is now able to access troves of additional information about visa applicants. The DS-160 now requires visa applicants to select all the social media platforms they have used in the previous five years and disclose all usernames, screen names and handles. The drop-down list contains 20 of the most popular social media and online platforms.
While the social media questions may be a surprise to visa applicants, the State Department has been in the process of implementing this change for some time. As part of the “extreme vetting” of visa applicants pursuant to President Trump’s 2017 travel ban and “Buy American and Hire American” executive orders, the department introduced a supplemental questionnaire for some applicants that requested extensive family, travel and employment histories, as well as all social media activity in the previous five years. The department has been weighing whether to require all visa applicants to fill out the supplemental form, and the addition of the social media question as a required question may be the first step.
For visa applicants, disclosing their social media usernames carries broad implications. Visa applicants should now assume that the State Department, as well as U.S. Citizenship and Immigration Services (USCIS) and U.S. Customs & Border Protection (CBP), have access to any information that is publicly available on their social media accounts, such as where they live and work, where they have traveled, where they worship, who their friends and coworkers are, their affiliations, and anything else that could be gleaned from their online musings. Something as forgettable as a “liked” photo of a friend’s dog may end up in a government database.
Though the DS-160 form only applies to new visa applicants, existing visa holders are continuously screened to verify that they remain eligible to travel to the U.S. Recently, there have been reports of individuals having their employment-based visas revoked when returning from travel outside the U.S. after CBP officers pulled up their professional profile online and found inconsistencies with the type of work allowed by their visa. CBP searches of electronic devices have surged, and under a 2018 policy, officers who determine that an advanced search is required can conduct a forensics search of a phone, laptop or other mobile device that accesses and downloads information beyond what is publicly available.
Individuals should be prepared during their visa or green card interview to answer questions about information on their social media accounts and address any potential inconsistencies. Employees should review their social media presence and make sure that their professional qualifications, educational background, employment histories, and job description are accurate and do not conflict with the terms of their visas. Additionally, employees may want to update their profile settings to make their online presence private.
HR departments should also consider putting in place policies warning employees that their social media activity may be requested and screened when applying for visas or other immigration benefits.
Matthew D. Gross is a Senior Associate in the Dallas office of Berry Appleman & Leiden LLP.
Companies placing workers internationally are not simply sending employees abroad—they are also sending their families. Global mobility managers have seen that family issues frequently cause assignments to fail and, as a result, are beginning to recognize the connection between a happy family and a successful overseas assignment. It is imperative that companies and mobility teams consider how immigration regulations impact families to ensure the success of international assignments. As an HR professional responsible for supporting these employees, you want them to succeed and thrive. How can you and your company address employees’ concerns and best support their family units? What are industry best practices? How far should your company go in assuming responsibility for an employee’s family dependents during the assignment and in a time of crisis? Does your company’s duty of care toward its employees extend to your employees’ dependents?
BAL has produced a white paper that delves into the issues for family dependents of expatriate employees. Read the full white paper by completing the form below.