(703) 369-4738

11
May
2022

Uniting For Ukraine – Finally, a way to get Ukrainian Refugees out of danger and into the US:

Written By Lisa Shea, Esq.

The United States has announced a program to benefit Ukrainians still living abroad through its Uniting for Ukraine program.

This is a new parole allowing a U.S. supporter or sponsor, who 1) has lawful status in the US, 2) passes a security and background check, and 3) has sufficient financial resources to support the individual(s) being sponsored, to file a declaration of support for a Ukrainian who is outside the United States, including, spouses and unmarried children under 21 (note that a child under 18 must be traveling with a parent or legal guardian).  The beneficiary must possess a valid Ukraine passport, have a declaration of support filed on their behalf, and have clear biometric and security checks. 

Once the declaration of support is deemed sufficient by the United States Citizenship and Immigration Services, and background checks are completed, the beneficiary will receive a 90-day travel authorization.  There is no government filing fee for this process.

For Ukrainians already in the United States with continuous presence since April 11, 2022, the temporary protected status may be an option.

FOR MORE INFORMATION ON A SPECIFIC SITUATION, PLEASE CONTACT:

Lisa Shea is a shareholder at Vanderpool, Frostick & Nishanian, P.C. She is leading the firm’s Immigration practice, as well as Immigration Chair for the Prince William County Bar Association.  If you have additional questions or concerns contact Lisa Shea at or call us at 703-335-2009.

www.immigrantsfirst.com (for information about immigration solutions)
www.vfnlaw.com (for information about solutions in other areas of law)

This blog post is not intended to provide legal advice or substitute for the advice of legal counsel with respect to specific facts and situations. See disclaimer

11
May
2022

Special Immigrant Juvenile Status (SIJS)

Written By Lisa Shea, Esq.

Pictured is Marta and her beautiful two-year-old daughter.  Marta is an immigration success story after Lisa Shea, head of the immigration practice group at VFN, helped Marta obtain her green card in 2011 through special immigrant juvenile status adjustment.  Marta was born in El Salvador in 1991 and at the age of three months, she was left by her parents in the care of her grandmother who beat her relentlessly.  In 2008, thinking life would be better, Marta traveled by herself at the age of 16 to live with her alcoholic mother, but things only got worse.  Her mother was not prepared to raise her child and worked her for long hours, abused her, and tried to kill her by holding a loaded gun to her head and hitting her with a car.  Her mother finally abandoned her to distant relatives who kicked Marta out of their house within six months of her arrival, leaving her homeless and pregnant.  She went into foster care and the Manassas Department of Social Services reached out to Ms. Shea to take the case pro bono.  After two years of working on the immigration case, and several years of Marta remaining in foster care, Marta got her green card.  Now Marta has a family of her own and is a dental assistant.  She is happy in her life and is a contributing member of our community; she can see how far she has come from when she first came to the United States.

In order to qualify for special immigrant juvenile status (SIJS) a juvenile in Virginia must meet the following criteria.  First, be found to be dependent upon a juvenile court or in the custody of an agency, or department of the state.  In Virginia, a juvenile should have a custody determination issued by the juvenile court before the age of 18 years old.  Although the statute may allow the filing of the custody petition before 18 years old, with adjudication after 18 years old, some judges are still construing the law that the custody determination must occur before the age of 18 years old.  Second, at the time of custody determination and filing of the SIJS petition with USCIS, the juvenile must be unmarried and under the age of 21 years old.  Third, the juvenile must be present in the United States at the time the relief is granted.  Fourth, the juvenile must be eligible for long-term foster care due to abuse, neglect, or abandonment by one or both parents.  And, Fifth, the juvenile must prove that it is not in their best interest to be returned to their home country.

Marta came into our office recently, after 11 years, to see if we could help other family members legalize their status.  We had a joyous reunion after all this time and the opportunity to see each other again.  One of the many benefits of practicing immigration law is to see clients progress after attaining legal status, and that progress has been especially outstanding for Marta.  We handle many SIJS cases successfully from the custody determination phase to the application for SIJS, and lastly to adjustment of status, including for juveniles who are in removal proceedings.  Please contact us if you need assistance with an SIJS case.  We are more than happy to assist!

FOR MORE INFORMATION ON A SPECIFIC SITUATION, PLEASE CONTACT:

Lisa Shea is a shareholder at Vanderpool, Frostick & Nishanian, P.C. She is leading the firm’s Immigration practice, as well as Immigration Chair for the Prince William County Bar Association.  If you have additional questions or concerns contact Lisa Shea at or call us at 703-335-2009.

www.immigrantsfirst.com (for information about immigration solutions)
www.vfnlaw.com (for information about solutions in other areas of law)

This blog post is not intended to provide legal advice or substitute for the advice of legal counsel with respect to specific facts and situations. See disclaimer

20
Apr
2022

Cameroon TPS

By Lisa Shea, Esq.

The Department of Homeland Security (DHS) announced today the designation of Cameroon for Temporary Protected Status (TPS) for 18 months. Only individuals who are already residing in the United States as of April 14, 2022, will be eligible for TPS.

“The United States recognizes the ongoing armed conflict in Cameroon, and we will provide temporary protection to those in need,” said Secretary Alejandro N. Mayorkas. “Cameroonian nationals currently residing in the U.S. who cannot safely return due to the extreme violence perpetrated by government forces and armed separatists, and a rise in attacks led by Boko Haram, will be able to remain and work in the United States until conditions in their home country improve.”

A country may be designated for TPS when conditions in the country fall into one or more of the three statutory bases for designation: ongoing armed conflict, environmental disaster, or extraordinary and temporary conditions. This designation is based on both ongoing armed conflict and extraordinary and temporary conditions in Cameroon that prevent Cameroonian nationals, and those of no nationality who last habitually resided in Cameroon, from returning to Cameroon safely. The conditions result from the extreme violence between government forces and armed separatists and a significant rise in attacks from Boko Haram, the combination of which has triggered a humanitarian crisis. Extreme violence and the widespread destruction of civilian infrastructure have led to economic instability, food insecurity, and several hundred thousand displaced Cameroonians without access to schools, hospitals, and other critical services.

This marks the first time the Secretary of DHS will permit qualifying nationals of Cameroon to remain temporarily in the United States pursuant to a TPS designation of that country. Individuals eligible for TPS under this designation must have continuously resided in the United States since April 14, 2022. Individuals who attempt to travel to the United States after April 14, 2022, will not be eligible for TPS. Cameroon’s 18-month designation will go into effect on the publication date of the forthcoming Federal Register notice. The Federal Register notice will provide instructions for applying for TPS and an Employment Authorization Document (EAD). TPS applicants must meet all eligibility requirements and undergo security and background checks.

FOR MORE INFORMATION ON A SPECIFIC SITUATION, PLEASE CONTACT:

Lisa Shea is a shareholder at Vanderpool, Frostick & Nishanian, P.C. She is leading the firm’s Immigration practice, as well as Immigration Chair for the Prince William County Bar Association.  If you have additional questions or concerns contact Lisa Shea at or call us at 703-335-2009.

www.immigrantsfirst.com (for information about immigration solutions)
www.vfnlaw.com (for information about solutions in other areas of law)

This blog post is not intended to provide legal advice or substitute for the advice of legal counsel with respect to specific facts and situations. See disclaimer

19
Apr
2022

Dealing with Disputes

By Brett Callahan

People often want to know what the difference is between mediation and arbitration.  It all comes down to who makes the final decision on how to resolve the issue, you or someone else. “Traditional” litigation often presents the same two options: do you want to settle the case, giving you some control over how things come out or do you want to go before a judge or jury and let them decide?

            There are benefits and risks to each approach.  In situations like mediation and settlement negotiations, you have control over the outcome, but so does the opposing party, since they also have to agree.  You would not be in a dispute with the other side if both were 100% in agreement, so to come up with something you will both agree on, neither of you are going to get 100% of what you want.  Also, there are often times when coming up with a compromise does not seem to be an option.  Perhaps the other party isn’t willing to consider a compromise or is being nonresponsive.  Perhaps they say they are willing to compromise, but mostly they just seem to be asking you to compromise.  Perhaps there simply doesn’t appear to be any room to compromise, because there are only two options.

            If the parties cannot come up with a solution themselves, they have to turn to a third party to make the decision for them, which is where lawsuits and arbitration come in.  Because both parties do not have to agree with whatever decision the judge, jury, or arbitrator makes, there is a chance you might get everything you ask for.  However, there is also a chance you get nothing you ask for.  That is where the risk comes in for both sides.  There is no such thing as a “slam dunk” case, no matter how much the facts and law appear to be on your side and no matter how brilliant and qualified you and your litigation team may be.  Any experienced litigator will tell you there is always a risk for you when someone else makes the decisions.

            So if mediation and arbitration are the same as settlement or going to trial, why are they called “alternative dispute resolution”?  The goal of mediation and arbitration is to speed up and reduce the cost of reaching a resolution.  Additionally, you generally have to agree to participate in arbitration or mediation, unlike in litigation where you can find yourself a party before a court without wanting to be there.  You also usually have to pay the mediation/arbitration company and mediator or arbitrator hourly out of pocket yourself or split the costs between the parties.  Courts usually have some set fees, but they also receive governmental funds, and you aren’t directly paying the judge hourly for their time.  That variability in mediation and arbitration costs means that there are times when mediation and arbitration are not necessarily going to be a less expensive option than more traditional litigation.

            Deciding what path to take to resolve your dispute is complicated as there are usually a number of options in any case.  Additionally, as the matter evolves, that analysis can change, so it is important to be prepared to revisit these decisions regularly to make sure you are still on the best path to reach your goal outcome.  The exact wording and use can vary, but below is a very basic glossary of “dispute resolution” terminology, which will hopefully help you have those discussions with your attorney.

Arbitration – In arbitration, the parties present their dispute to an arbitrator, who decides the resolution.  The parties must agree to arbitrate before arbitration, but most often this agreement is found in a contract the parties entered into before the dispute arose.  Arbitration is generally faster and less formal than proceeding before the courts.  However, because arbitrators’ decisions are legally binding, there are also appeals processes, in the event, that one party wants to contest the outcome.

Demand Letter – A demand letter is often the first “formal” action in a dispute.  One party or their attorney will generally summarize in writing the dispute, from that party’s perspective, and make a “demand” of what they want the other party to do to resolve the matter.  A demand letter may be a legal prerequisite under a contract or statute to taking further legal action, in some cases.  If a demand letter is a legal prerequisite, there are usually other specific requirements of what the demand letter must contain or how the demand must be made to qualify as that legal prerequisite.  If the other party complies with whatever is demanded in the letter, that may be the end of the matter, or, if not, the parties may move into pre-litigation settlement negotiations, file a lawsuit, or seek arbitration or mediation. 

Dispositive Motion – Not all contested lawsuits go all the way to trial.  Sometimes there are legal reasons why the court can “dispose” of the case, or parts of the case, before a full trial.  Even if a portion of the case will have to go to a full trial, partial dispositive motions are used to streamline the case.  The outcome of a dispositive motion can have a big impact on the strength or weakness of a party to negotiate a settlement on favorable terms.

Judicial Settlement Conference – A judicial settlement conference is similar to a mediation.  However, unlike mediation, judicial settlement conferences are generally only available to parties when a lawsuit has already been filed.  Judicial settlement programs are run through the courts, so there is often not a significant additional cost to participate in one.  In a judicial settlement conference, the neutral third party attempting to negotiate a resolution between the parties is generally a judge, although not the same judge who would proceed over a trial in the case.  As with mediation, the parties must ultimately agree upon the terms of the resolution, which are written as a legally enforceable agreement between the parties.

Mediation – In mediation, a trained neutral third party is involved to facilitate a resolution, similar to arbitration or litigation. However, unlike in litigation and arbitration, it is still the parties, not the third party who decides the final outcome.  If mediation is successful, the agreement between the parties is written as a legally enforceable agreement.

Settlement Conference – A settlement conference can be an umbrella terms for a meeting between the parties to try to resolve the dispute.  A settlement conference need not be facilitated by a third party and may just consist of the parties and their counsel.  However, in other cases, the term settlement conference may be used in the context of a third-party facilitated negotiation.  As with the other forms of dispute resolution between parties, if successful, the terms of the settlement are written as a legally enforceable agreement between the parties.

If you find yourself in a legal dispute with another party and want to review your options and determine the best path forward to meet your goals, the attorneys of Vanderpool, Frostick & Nishanian, P.C. may be able to help.  Please contact our office to speak with someone to discuss if we can assist you.

FOR MORE INFORMATION ON A SPECIFIC SITUATION, PLEASE CONTACT:

Brett Callahan is a shareholder at Vanderpool, Frostick & Nishanian, P.C. She is leading the firm’s litigation department. If you have additional questions or concerns contact brett Callahan at  bcallahan@vfnlaw.com or call us at 703-369-4738.

This blog post is not intended to provide legal advice or substitute for the advice of legal counsel with respect to specific facts and situations. See disclaimer

24
Mar
2022

TPS FOR AFGHANISTAN ANNOUNCED

By Lisa Shea, Esq.

The Department of Homeland Security (DHS) has designated Temporary Protected Status for Afghanistan due to the ongoing dire situation in Afghanistan with the Taliban takeover. Any Afghan who has lived in the United States as of March 15, 2022, and continues to live in the U.S., may qualify to register for TPS. Soon, United States Citizenship and Immigration Services (USCIS) will have the application procedure on its website at www.uscis.gov.

TPS is a designation by the United States for citizens of a country that is experiencing, or has experienced, a significant humanitarian disaster such as war, earthquakes, hurricanes, and any other circumstance that prevents the country’s nationals from returning safely to their home country. TPS is usually designated for 6, 12 or 18 months and qualifies the recipient, who is present in the United States on the day of the designation, for an employment authorization document, a deferred status, giving relief from deportation, and the possibility of advance parole to travel outside the United States. It is not, however, by itself, a pathway to getting lawful permanent residency. The current Afghan TPS designation is for 18 months, after which there will likely be renewals, and if not, TPS designees will return to their prior immigration status.

Afghans may also qualify to extend their current immigration status, claim asylum, or adjust their status through work or a family member.

Reach out to us for a consultation if you have any questions about applying for TPS or any other form of relief. We successfully represent many Afghans in their immigration processes and are happy to assist.

FOR MORE INFORMATION ON A SPECIFIC SITUATION, PLEASE CONTACT:

Lisa Shea is a shareholder at Vanderpool, Frostick & Nishanian, P.C. She is leading the firm’s Immigration practice, as well as Immigration Chair for the Prince William County Bar Association.  If you have additional questions or concerns contact Lisa Shea at or call us at 703-335-2009.

www.immigrantsfirst.com (for information about immigration solutions)
www.vfnlaw.com (for information about solutions in other areas of law)

This blog post is not intended to provide legal advice or substitute for the advice of legal counsel with respect to specific facts and situations. See disclaimer

24
Mar
2022

BREAKTHROUGH NEWS FOR TPS HOLDERS WITH REMOVAL ORDERS AND PAROLE: CAN NOW ADJUST STATUS!

By Lisa Shea, Esq.

On March 21, 2022, CARECEN (The Central American Resource Center) and United States Citizenship and Immigration Services (USCIS) entered into a Stipulation (settlement agreement) whereby USCIS will generally exercise its prosecutorial discretion by agreeing to jointly re-open deportation orders, move to dismiss removal proceedings and allow certain persons with Temporary Protected Status (TPS) to apply for adjustment of status.

This is a breakthrough development because previously persons who had TPS with deportation orders, and who then left on advance parole in order to have an admission into the United States, were barred from adjusting with USCIS because they were technically in removal proceedings (according to USCIS – even though they left the United States) and, on the other hand, they were also not able to adjust status in court because the advance parole made them arriving aliens, a designation under the sole jurisdiction of USCIS. 

So, persons with this set of conditions have been stuck in limbo between two agencies:  the courts, which claimed to not have jurisdiction because the person had left on parole and came back as an arriving alien, and USCIS, which claimed to not have jurisdiction because the person was still in removal proceedings.    

BUT NOW, FROM THIS POINT UNTIL JANUARY 19, 2025, ANY TPS HOLDER WHO MEETS THE FOLLOWING CRITERIA CAN HAVE THEIR REMOVAL PROCEEDINGS DISMISSED TO ADJUST THEIR STATUS unless the person is an enforcement priority:

  1. Currently possesses Temporary Protected Status;
  2. Has a removal, deportation, or exclusion order issued by the Executive Office for Immigration Review or its predecessor agency, the U.S. Immigration and Naturalization Service;
  3. Has traveled on advance parole since that order was issued; AND
  4. Is otherwise prima facie eligible to file an application for adjustment of status with USCIS, including but not limited to those with a pending or approved I-130 “immediate relative” visa petition who meet the “inspected and admitted or paroled” requirement of Section 245(a) of the Immigration and Nationality Act, as amended (the “INA”) pursuant to USCIS policy if seeking to adjust under that provision.

If USCIS granted or renewed Temporary Protected Status despite some criminal history (e.g., a single DUI), ICE Office of the Principal Legal Advisor (OPLA) generally would not rely solely on that same criminal history to find someone a public safety priority for enforcement.

During the Relevant Period, ICE OPLA will consider, pursuant to the process set forth in above a request for a joint motion to reopen and a motion to dismiss so long as the request is submitted to ICE OPLA before January 19, 2025

Within 30 days of the entry of this Stipulation (this settlement agreement), USCIS will publish a notice about this process on its website with instructions on how to contact ICE OPLA when a joint motion to reopen and a motion to dismiss is necessary. ICE OPLA will aim to process these requests within 90 days but no longer than 120 days from the time the request is submitted using the appropriate prosecutorial discretion process in the local field office.

FOR MORE INFORMATION ON A SPECIFIC SITUATION, PLEASE CONTACT:

Lisa Shea is a shareholder at Vanderpool, Frostick & Nishanian, P.C. She is leading the firm’s Immigration practice, as well as Immigration Chair for the Prince William County Bar Association.  If you have additional questions or concerns contact Lisa Shea at or call us at 703-335-2009.

www.immigrantsfirst.com (for information about immigration solutions)
www.vfnlaw.com (for information about solutions in other areas of law)

This blog post is not intended to provide legal advice or substitute for the advice of legal counsel with respect to specific facts and situations. See disclaimer

2
Mar
2022

Immigration Options for Ukrainians

By Lisa Shea, Esq.

***UPDATE EFFECTIVE 03/01/2022 Very exciting update!  The Biden Administration has authorized Temporary Protected Status for Ukraine today for anyone who was present in the United States on March 1, 2022.  It will be for a period of 18 months.  Eligible persons, approximately 75,000 Ukrainians in the US, will be able to stay in the United States with a work permit who would otherwise be present without any status at all.

Not only is this valuable humanitarian relief, but it sends a message to the world about the gravity of human rights violations that are occurring with the Russian invasion. 

I hope this information is helpful to those of you who know Ukrainians in need of status in the US.  Even those with prior deportation orders can apply. ****

As the attack by Russia on Ukraine intensifies, our immigration practice group at Vanderpool Frostick & Nishanian, PC is getting a lot of calls about what kind of immigration relief is available to Ukrainians at the present time.  Despite the horror of the situation unfolding, the United States has yet to take immigration-related action to establish a specific protection program for Ukrainians inside or outside the United States and is currently only providing emergency aid.  However, there are existing possibilities of relief for Ukrainians in the United States.

POSSIBLE RELIEF FOR UKRAINIANS INSIDE THE UNITED STATES:

TEMPORARY PROTECTED STATUS (TPS) FOR UKRAINE (NOT DESIGNATED YET):  Watch the news carefully to see if the Department of Homeland Security Secretary announces TPS for Ukraine.  This option would make the most logical sense for Ukrainians who are in the United States without status or who are at risk of their current status expiring.  TPS is a designation by the United States for citizens of a country that is experiencing or has experienced a significant humanitarian disaster such as war, earthquakes, hurricanes, and any other circumstance that prevents the country’s nationals from returning safely to their home country.  TPS is usually designated for 6, 12, or 18 months and qualifies the recipient, who is present in the United States on the day of the designation, for an employment authorization document.

EXTENSION OF CURRENT STATUS If a Ukrainian is in the United States on a non-immigrant visa, such as a work, student, or tourist visa, he or she can file USCIS form I 539 to extend status.  It is critical to file this form before the current status expires.  While waiting for an extension of status, if the visa is about to expire, it may be valuable to go to the deferred inspection unit at Dulles Airport to request an extension of stay in the United States based on no or limited flight availability to Ukraine.

ASYLUM:  Asylum might seem like an obvious choice in a situation like what we see in Ukraine, and it could be, but with some cautionary notes.  To obtain asylum, a person must be outside his or her country of nationality and have suffered past persecution or have a well-founded fear of future persecution on account of one or more five protected grounds:  religion, race, nationality, political opinion, or membership in a particular social group.  The applicant must demonstrate that the government is unable or unwilling to control the persecution and that there is nowhere in the country that the person can safely reside.

The key to asylum is showing that the government itself is engaged in the persecution or that it is an individual or group that the government is unable or unwilling to control.  In the current conflict, it is not the Ukrainian government persecuting its own people, it is an outside group, and, as stated before, it is about generalized violence.  That said, if a Ukrainian is afraid of returning to Ukraine, then serious consideration should be given to filing an asylum claim with the caveat that if the case loses with the asylum office, the person will be placed into removal proceedings and the case referred to an immigration judge.  If a person fails to file asylum within one year of being in the United States, such person will be referred to an immigration judge.

Final notes on asylum:  Asylum applicants are eligible for employment authorization.  And, further, when considering filing asylum remember that there are many possible grounds other than those that maybe related to the current conflict, such as some other social group like LGBT+, a particular religion or race for which there was or could be future persecution.

ADJUSTING STATUS:  If a Ukrainian national is in the United States with a lawful entry, then he or she may qualify to adjust their status through an immediate family member who is a lawful permanent resident or United States, citizen.  Many factors influence whether a person can adjust status, including whether there is any accrual of unlawful presence or working without authorization, along with consideration of any criminal record.  If a person is in current legal status he or she may be able to apply for a work-related visa.

There are many other avenues of relief (not specific to Ukrainians) available to non-immigrants or those persons in the United States who are out of status.  Any Ukrainian in the United States who is out of status or at risk of losing status should immediately seek assistance from a qualified immigration lawyer.

INFORMATION FOR UKRAINIANS OUTSIDE THE UNITED STATES: 

As released by the Department of State on March 1, 2022, the U.S. Mission to Ukraine is not currently offering visa services to Ukrainians.  Immigrant visas (other than adoption) are being processed at the Consulate General Frankfurt, including diversity visas and fiancé (K-1) visas.  Nonimmigrant visas (such as tourist visas) can be processed wherever a Ukrainian national is physically located and an appointment can be scheduled.  Currently the United States has not waived visa requirements for Ukrainians, which will cause a delay in being able to come to the United States.  US embassy websites are available at https://www.usembassy.gov.

Over 800,000 Ukrainians have already left Ukraine as of March 2, 2022. Poland, Slovakia, Hungary, Moldova, and Romania have received the most refugees and Ireland has dropped its visa requirement for Ukrainians.  Ukrainians are eligible to travel to 140 countries without visas, including to the Schengen Zone, provided they have biometric passports.  UNHCR has established aid and support in neighboring countries.

Traffic lines are many kilometers long at border crossings and persons traveling should have phone batteries, food and water for at least two days, diapers and baby food, warm clothes and blankets, and most importantly hard copies of all important documents:  birth certificates, passports, marriage certificates, and other legal documentation.

FOR MORE INFORMATION ON A SPECIFIC SITUATION, PLEASE CONTACT:

Lisa Shea is a shareholder at Vanderpool, Frostick & Nishanian, P.C. She is leading the firm’s Immigration practice, as well as Immigration Chair for the Prince William County Bar Association.  If you have additional questions or concerns contact Lisa Shea at or call us at 703-335-2009.

www.immigrantsfirst.com (for information about immigration solutions)
www.vfnlaw.com (for information about solutions in other areas of law)

This blog post is not intended to provide legal advice or substitute for the advice of legal counsel with respect to specific facts and situations. See disclaimer

22
Feb
2022

What Happens When Criminal Laws Change?

By Bradley Marshall, Esq.

What happens if you have been charged with a crime, but the code section you are charged with or a related code section changes before your case gets finalized in court? 

That is a pressing question right now in Virginia as sweeping criminal justice reform measures took effect in 2021.  Cases have been slow to resolve themselves during the COVID pandemic, and many cases that were charged before those changes took effect are still trickling through the court system.  So, what happens when the law changes after you are charged but before your case is resolved?

Virginia was the first state in the nation to bar traffic stops for low-level offenses under the theory that such stops are pretexts that have a disproportionate impact on persons of color.

The new traffic stop laws were enacted last year after the police killing of George Floyd in Minneapolis and were designed to curb racial disparities in police conduct. The amendments that took effect in 2021 prohibit traffic stops for infractions such as broken taillights, tinted windows, and the smell of marijuana. Evidence from improper stops can be suppressed under these new laws under the well-entrenched United States Supreme Court legal doctrine called the “exclusionary rule,” which is designed to exclude evidence in cases that were gained through wrongful police conduct in order to deter such conduct.[1]

What happens when the law changes like this?  Statutes are normally not retroactive.  The legislature generally must intend that their changes to statutes be retroactive.  This can happen in one of two circumstances:

  • the text of the new or amended statute contains explicit terms demonstrating its retroactive effect; or
  • the statute’s amended terms affect “remedial” or “procedural” rights, rather than “substantive” or “vested” rights.

Whether the text of the new or amended statute explicitly states that the new law is retroactive is self-explanatory.  But what are “remedial” or “procedural” rights in this context that do in fact lead to retroactive application of the new laws?  While new statutes are generally to be prospective, not retroactive, procedural provisions of the statute in effect on the date of trial, not the date of charging, control the conduct of trial insofar as practicable.[2]

Where a statutory amendment affects a change in both substance and remedy (or procedure), a statute will not have a retroactive effect.[3]  In circumstances where a statutory amendment affects a change in both substance and remedy (or procedure), courts will not give the statute retroactive effect.  In order for a statutory change to apply retroactively, it must be procedural in nature and affect remedy only, disturbing no substantive or vested rights.[4]  So long as the amendments affected any change in substantive rights, courts could not apply the statute retroactively

But courts across the Commonwealth have reached differing conclusions as to which of these new laws are in fact retroactive.  For example, in June, Roanoke Circuit Judge Charles N. Dorsey suppressed a packet of meth found in a defendant’s car in a 2020 traffic stop based on a broken taillight and expired registration. He said the changes in the code were “procedural” and therefore retroactive.  But in August, Newport News Circuit Judge Gary A. Mills held the reform legislation lacked any express provision that the changes should be applied retroactively. That case concerned a traffic stop for a defective taillight in August of 2019.  Judge Mills declined to suppress evidence of drugs arising from a stop for window tinting and a license plate violation:

While the Court maintains doubts about the ‘procedural’ nature of these amendments, that issue becomes moot in light of the Court’s finding that whether these amendments are ‘procedural’ or ‘substantive,’ to apply these amendments and their statutorily created exclusionary rule to what was lawful conduct of the police when undertaken in 2019 would not serve the purpose of any exclusionary rule (to deter wrongful police conduct), would serve to punish the police for what was legal conduct at the time it was undertaken, and in sum, would ‘defy common sense,’ and would not be ‘practicable to do so’ as required by Virginia Code § 1-239.

Given this “circuit split,” where two or more circuit courts provide conflicting rulings on the same legal issue, Virginia’s appellate courts must resolve the issue.  Such cases are now pending in front of the newly expanded Virginia Court of Appeals.  Stay tuned to VF&N’s blog for updates!  Blog – Vanderpool, Frostick & Nishanian, PC (vfnlaw.com)

Brad Marshall is an associate at Vanderpool, Frostick & Nishanian, P.C. He is leading the firm’s Criminal, Traffic and White Collar Defense practice, assisting in expanding our Investigations practice, and working with our Civil Litigation and Municipal teams If you have additional questions or concerns contact Bradley Marshall at   or call us at 703-36-4738.

This blog post is not intended to provide legal advice or substitute for the advice of legal counsel with respect to specific facts and situations. See disclaimer


[1] See Mapp v. Ohio, 367 U.S. 643 (1961) (U.S. Reports: Mapp v. Ohio, 367 U.S. 643 (1961). (loc.gov))

[2] See Va. Code § 1-238. Reenacted (virginia.gov) and Va. Code  § 1-239. Repeal not to affect liabilities; mitigation of punishment (virginia.gov)

[3] See McCarthy v. Commonwealth, Va. Court of Appeals, November 9, 2021

[4] See Cohen v. Fairfax Hosp. Ass’n, 12 Va. App. 702, 705 (1991) (https://www.vacourts.gov/opinions/opncavtx/1298014.txt)[/vc_column_text][/vc_column][/vc_row]

6
Oct
2021

Part 5: Marijuana and Cannabis Laws: What became legal on July 1, 2021? What is still illegal? What will become legal in the future (and when)?

Marijuana became legal in Virginia for the first time in July 2021. 

But it is not entirely unregulated; there are still laws and regulations that govern its use, gifting, growing, sales, and more. In this blog – part of Vanderpool, Frostick, & Nishanian, P.C.’s series featuring our new cannabis practice area – we explore what is legal and illegal and what future changes are coming as well.  

Please keep in mind that this is a general legal summary for informational purposes only. If you have specific questions or would like to discuss a case, please contact us directly. Nothing in this blog should be considered legal advice.   

What is now Legal?

  • Adults 21 years and older may possess not more than one ounce of cannabis for personal use.
  • Generally, adults 21 years and older may use marijuana in private residences. However, nothing prohibits the owner of a private residence from restricting the use of marijuana on its premises.
  • Adults 21 and over may grow up to four plants per household (not per person), according to specified requirements (see below).
  • “Adult sharing” or transferring one ounce or less of marijuana between persons who are 21 years or older without remuneration is legal. “Adult sharing” does not include instances in which (i) marijuana is given away contemporaneously with another reciprocal transaction between the same parties; (ii) a gift of marijuana is offered or advertised in conjunction with an offer for the sale of goods or services, or (iii) a gift of marijuana is contingent upon a separate reciprocal transaction for goods or services. At its essence, you cannot barter marijuana for anything else of value.

What is still Illegal?

  • It remains illegal for anyone to possess more than one ounce of marijuana. Individuals found guilty of possessing more than one ounce but not more than one pound of marijuana are subject to a civil penalty of not more than $25. Individuals found guilty of possessing more than one pound are subject to a felony.
  • It remains illegal for anyone under the age of 21 to consume, purchase, or possess marijuana, or to attempt to consume, purchase or possess any amount of marijuana.
  • It remains illegal to distribute or sell marijuana and/or to possess any amount of marijuana with the intent to distribute or sell it. This prohibition applies equally to businesses, which will not be permitted to sell, “gift,” or in any other way distribute marijuana. For more information on how to obtain a license to sell marijuana in the future, please see below.
  • Existing safety measures remain in place, including prohibiting the use of marijuana while driving a motor vehicle or while being a passenger in a motor vehicle, possessing marijuana on school grounds, while operating a school bus, in a motor vehicle transporting passengers for hire, or in a commercial vehicle.
  • It remains illegal to consume marijuana or offer marijuana to another person in any public place.

When will sales of marijuana begin?

It will not be legal to sell marijuana in Virginia before January 1, 2024. The law will create a new, independent political subdivision to regulate the marijuana industry. While the Cannabis Control Authority (CCA) began its work in July 2021, it will take time for the authority to hire staff, write regulations, and implement equity and safety initiatives. Additionally, many of the regulatory sections of the marijuana legalization bill must be reenacted (approved again) by the 2022 General Assembly before becoming law. For more information on the commercial market, please see below.

Medical Cannabis

I have a medical condition. How do I get a medical card to buy cannabis products?

To purchase cannabis for medical purposes, a patient must have both (a) an unexpired written certification issued from a board-registered practitioner and (b) a current active patient registration issued by the Board of Pharmacy. You can find more information by visiting the Department of Health Professions: Board of Pharmacy’s website.

Can I get a license to sell medical cannabis?

Not as of July 20, 2021. Virginia’s medical cannabis pharmaceutical processor program is currently only authorized to permit five companies (one permit in each Virginia Department of Health Service Area) to cultivate, process, and dispense medical cannabis to registered patients. You can find more information about Virginia’s medical cannabis pharmaceutical processor program by visiting the Department of Health Professions: Board of Pharmacy.

Adult-Use Cannabis Commercial Sales

How will the cannabis industry be regulated?

On July 1, 2021, the law authorized the creation of the Cannabis Control Authority (CCA), a new, independent political subdivision to regulate the marijuana industry, including issuing licenses for businesses, creating health and safety guidelines, and promoting diversity within the industry. On July 19, 2021, Governor Northam appointed the Cannabis Control Authority’s Board of Directors members. The Board, along with a CEO, will lead the creation of an adult-use marketplace. However, the CCA will not complete marijuana regulations or begin accepting applications for businesses before 2023.

When can I apply for a marijuana business license?

It will not be legal to sell marijuana before 2024. Until then, it remains a crime to sell any amount of marijuana. However, if the licensing provisions of the bill are reenacted (approved again) in the 2022 General Assembly session, you will likely be able to apply for a marijuana business license in 2023. More instructions and guidance for people wanting to start a marijuana business will be released before the application period begins.

Are there any steps I need to take before applying for a license in 2023?

Not at this time. The Cannabis Control Authority will begin the regulatory process and start engaging more directly with interested stakeholders over the next two years.

Home Cultivation

Can I grow marijuana at home?

“Home Cultivation” became legal on July 1, 2021. Adults 21 and over may now grow up to four marijuana plants per household (not per person) for personal use. Plants can be grown only at your primary place of residence.
Someone who grows plants must:

  1. ensure that no plant is visible from the public;
  2. take precautions to prevent unauthorized access by persons younger than 21 years of age; and
  3. attach to each plant a legible tag that includes the person’s name, driver’s license, or ID number, and a notation that the marijuana plant is being grown for personal use as authorized by law.

It remains illegal to grow more than four plants, to sell or distribute marijuana grown at home, or to manufacture marijuana concentrate from home-cultivated marijuana. Individuals who choose to do so are subject to criminal penalties.

For four free plant tags that meet all of Virginia’s legal requirements, please Contact Us – Vanderpool, Frostick & Nishanian, P.C.

Where can I buy seeds to grow my own at home?

It remains illegal to sell marijuana seeds, clones, flower, or any other part of the marijuana plant in Virginia before 2024. Although there are some states that already have legalized marijuana sales, it remains federally illegal to move marijuana across state lines. You can, however, receive seeds and clones as a gift without remuneration of any kind.

Can I sell my home-grown marijuana to my friends?

No. The existing criminal penalties for selling or distributing marijuana or possessing marijuana with the intent to sell or distribute remain in effect. Individuals who sell marijuana or who possess it intending to sell it are subject to misdemeanor or felony charges, depending on the amount of marijuana involved. You may, however, gift marijuana to friends so long as all other requirements are met, i.e., that you receive no remuneration, that the person is an adult, that you gift them one ounce or less, etc.

If you would like more information or to find out how our team can help you or your business, please allow us to answer your business, employment, local government, land use, regulatory, and criminal law questions regarding cannabis and marijuana legalization. Please visit our Cannabis Laws website at Cannabis Laws – Vanderpool, Frostick & Nishanian, P.C. for more information.

31
Aug
2021

Part 1: Medical use of cannabis oil, what the new law says!

Virginia’s new law that prohibits employers from discharging, disciplining, or discriminating against an employee for the employee’s lawful use of cannabis oil.

Virginia recently enacted a new law that makes it unlawful for employers to discharge, discipline or discriminate against an employee for the employee’s lawful use of “cannabis oil.”  In order for the use to be lawful, it must be obtained pursuant to a valid written certification issued by a medical practitioner, who has registered to write such certifications with the Board of Pharmacy, for the treatment or to eliminate the symptoms of a person’s diagnosed conditions or disease. In addition, the patient with the certification must also register with the Board of Pharmacy as well as obtain the cannabis oil from one of the five registered medical cannabis pharmaceutical processor dispensaries in Virginia.  In the event that an employer has an employee that has a medical condition for which they have lawfully obtained cannabis oil pursuant to the above-described process, the employer may not discharge, discipline or discriminate against such employee for the employee’s lawful use of cannabis oil.  It is important to note that the new law does not protect those who are using cannabis products recreationally or who are using cannabis products for medicinal purposes but have not complied with the proper procedures required by the law.

CBD Oil Chemical markersThat leads us to the next question – what is Cannabis oil?

The new law defines cannabis oil as “any formulation of processed Cannabis plant extract, which may include industrial hemp extract acquired by a pharmaceutical processor … or a dilution of the resin of a Cannabis plant that contains at least five milligrams of cannabidiol (CBD) or tetrahydrocannabinolic acid (THC-A) and no more than 10 milligrams of delta-9-tetrahydrocannabinol (THC) per dose.” As the purpose of the Cannabis Oil under this law is to treat medical conditions, the law is very specific as to the content of cannabis products.

Cannabis oil should not be confused with CBD products available without a prescription and represented as having low amounts of THC. You can go to stores now where you may have CBD oils or cannabis products that are the kind that are not controlled and regulated by a medical cannabis pharmaceutical processor dispensary as part of a medicinal remedy. The use of these cannabis products are not what this law is intended to protect. If you have somebody who goes to a local store and buys some CBD product and then ends up in some circumstance where they test positive for marijuana, that’s not protected. It is the use related to medicinal use and only if the proper procedures are followed.

If an employee’s work is impaired by the use of medicinal cannabis, Employers may still take adverse action.

Employer’s still retain the ability to take adverse employment action against an employee with a medical certification if the employee’s work is impaired caused by the use of cannabis oil.  Employers may also prohibit possession of cannabis oil during work hours.

Please contact Kristina Keech Spitler, kspitler@vfnlaw.com or 703-618-3205 should you have any questions or need assistance[/vc_column_text][/vc_column][/vc_row]