December 3, 2018

Important Immigration Proposals by the Trump Administration Impacting Transportation and Infrastructure Companies

Holland & Knight Transportation Blog
Tara L. Vance

I. H-1B Visa Changes

H-1B visas are arguably the most common U.S. work visa applicable to all industries. Every year, United States Citizenship and Immigration Services (USCIS) has a limited number of H-1B visas available for foreign nationals with a U.S. bachelor's degree or higher from a U.S. institution or the foreign equivalent and every year, the H-1B visa cap is exceeded in the first week of April when an employer can file a new H-1B visa petition. Currently, the U.S. Department of State can issue 65,000 H-1B visas to foreign nationals with a Bachelor's degree or higher from a U.S. college or university or the foreign equivalent, plus an additional 20,000 to foreign nationals with a Master's degree or higher from a U.S. university or college. However, USCIS has proposed a rule that will drastically change the procedures for cap-subject H-1B visa petitions that get filed every April 1.

Historically, H-1B visas are essentially first come first served, but subject to a random lottery when the number received in the first week of April exceeds the maximum number the Department of State can issue in the upcoming fiscal year. The new rule (i) proposes that employers wanting to file a cap-subject H-1B visa petition first electronically register with USCIS during a designated registration period; (ii) switches the allotment such that a larger number of H-1B visas will be available for foreign nationals with a Master's degree or higher from a U.S. institution; and (iii) institutes a more meritorious criteria requirement such that H-1B visas would likely be issued to the most skilled and highest paid beneficiaries. For most foreign nationals graduating from a U.S. institution, the H-1B visa is the only way in which a graduate can remain in the U.S. and work. It will be interesting to see how the new meritorious system works for new graduates who, for example, want to work for a start-up or newly established company, when new graduates going to large employers, such as Google, Facebook, PricewaterhouseCoopers, etc. will no doubt be higher paid.

II. Legalization of Marijuana in Canada

The recent legalization of recreational marijuana in Canada is causing issues for travelers and carriers. Even though Canada has legalized recreational marijuana use, nothing has changed in the United States or with the policies and procedures at U.S. borders. Additionally, some states in the U.S. have also legalized the recreational use of marijuana, including two that share a border with Canada (Maine and Washington), but marijuana remains a controlled substance under U.S. federal law and, as such, cannot be taken across the U.S.–Canada border. This issue affects transportation at various levels. An individual traveler driving from Canada to the U.S. must be aware of the restrictions of bringing marijuana into the U.S. but the airline traveler must also consider possible scenarios when flying; if their plane is scheduled to fly directly to a Canadian location and for whatever reason is unexpectedly rerouted to a location in the United States, it will be illegal for that traveler to arrive into the U.S. with marijuana, and such travelers can be prosecuted. It remains to be seen how strict the authorities will be, but we can expect the U.S. side to be quite stringent.

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