Immigration News – August 2023

News RoomOctober 17, 20230

Immigration News – August 2023

At Brown Immigration Law, we strive to be your company’s partner in growth and innovation, on a global scale. We continue our commitment to demystifying the complex immigration laws of the United States and Canada to provide efficient and effective immigration and global mobility support. Please find this month’s business immigration news below.


ICYMI – USCIS Runs Second Lottery Draw for H-1B Cap FY2024

Many have anxiously awaited word as to whether USCIS will conduct a second draw for the H-1B lottery this year, given the low selection numbers. As we reported on July 27 2023, USCIS confirmed that it would run a second selection process in the near future without committing to a date. Soon thereafter on Saturday, July 29th and Sunday, July 30th, USCIS updated their H-1B registration platform with new selections. On Monday, no new selections were reported and at the end of the day USCIS confirmed that the second round of selections was complete. Additionally, they confirmed that no further selections would be made for this fiscal year’s cap.  

As USCIS has completed the issuance of selection notices for the second round, we have now reached out to those selected and commenced drafting the H-1B cap filings. For cases selected in this second round, the deadline for case submission is October 31, 2023. For those that remain unselected, we will look to reregister unsuccessful registrants in next year’s lottery.

ICYMI – USCIS Announces Update to Form I-9 Starting August 1, 2023 with Remote Verification of Document Instructions Included

On August 1, 2023, USCIS published a revised version of Form I-9, Employment Eligibility Verification, which must be used by all employers starting November 1, 2023. Among the revisions is a checkbox employers enrolled in E-Verify can use to indicate remote examination of identity and employment authorization documents under the DHS-authorized alternative procedure announced earlier on July 21, 2023.
To be eligible to remotely examine Form I-9 documents under this new alternative procedure, employers must be enrolled in E-Verify, examine, and retain copies of all documents, conduct a live video interaction with the employee, and create an E-Verify case if the employee is a new hire.
Please note that employers who were participating in E-Verify and created a case for employees whose documents were examined during COVID-19 flexibilities (March 20, 2020 to July 31, 2023), may choose to use the new alternative procedure starting August 1, 2023 to satisfy the physical document examination requirement by the previously announced August 30, 2023 deadline. However, employers who were not enrolled in E-Verify during the COVID-19 flexibilities must complete an in-person physical examination by the August 30, 2023 deadline.
Managing Partner, David Zaritzky Brown, held recent webinars to walk participating HR partners and hiring managers through the new form, the virtual verification process and the need to re-verify I-9s completed virtually during the COVID-19 emergency. You are welcome to listen to one of our recordings on our website here.  If you have follow up questions we invite you to reach out to the Brown Immigration Law immigration attorney assigned to you for further assistance.

Updated Visa Availability Approach for EB-5

USCIS has recently adopted an updated Visa Availability Approach for adjudicating Form I-526 (EB-5) petitions. EB-5 petitions were traditionally adjudicated on a First In First Out (FIFO) basis. USCIS recognized the inventory of EB-5 petitions were extremely backlogged and adopted a Visa Availability Approach to attempt to streamline the backlog. In simple terms, the idea behind the Visa Availability Approach was that USCIS would prioritize cases where a visa was immediately available to the applicant, creating two queues, one where a visa was immediately available, and another where it was not, and adjudicating both in a FIFO manner.
Despite the hope that the Visa Availability Approach would lead to efficient processing, USCIS continues to face an extreme backlog of cases, with USCIS itself quoting a 57 month processing time for cases where a visa is immediately available. Given their extreme delays, USCIS has announced efforts to attempt to further streamline their process. The latest update to that rule added a third queue to prioritize EB-5 petitions that have an available (or soon to be available) visa with projects reviewed by IPO (Immigrant Investor Program Office) or single investor standalone project. The IPO will further group petitions filed on or before Nov. 30, 2019 within the third queue by NCE (New Commercial Entity) and adjudicate them using FIFO methodology. The update is designed to further increase adjudicators’ efficiency because many petitions were filed shortly before November, 2019, and many of which are associated with the same NCE. Despite this new attempt to streamline processing, the process remains unacceptably slow for all applicants involved with no true relief in sight.

CBP Issued Notice on Green Card Extension for Certain Conditional Permanent Residents

On August 1, 2023, U.S. Customs and Border Protection (CBP) issued a notice informing airlines that USCIS is issuing receipt notices with updated language that grants up to 48 months of extension beyond the green card’s expiration dates for certain eligible conditional permanent residents who timely filed petitions to remove conditions on their permanent residency (Form I-751). These receipt notices can be presented with an expired Green Card as evidence of continued status and are valid for travel.

We hope this information from CBP helps to ensure smooth travel for many of our clients who have waited years for the adjudication of their I-751 cases. 

Temporary Final Rule Extending Certain Employment Authorization Cards by Up to 540 Days Will Expire on October 26

The Temporary Increase of the Automatic Extension Period of Employment Authorization and Documentation for Certain Renewal Applicants, set to expire on October 26, has been a crucial provision for many individuals seeking employment opportunities in the United States. This rule, implemented by USCIS in 2022, aimed to mitigate the challenges faced by certain visa holders while awaiting lengthy adjudications on their visa status by providing an automatic 540-day extension to the employment authorization of eligible renewal applicants. To take advantage of this rule, individuals must have had an employment authorization document (EAD) with a specified expiration date and timely file their request for an extension before the expiration of their employment authorization.

The expiration of this temporary final rule on October 26 will have significant implications for individuals affected by the rule. Those whose EADs were extended based on this rule will no longer enjoy the automatic 540-day extension of their employment authorization, and the normal 180-day automatic extension period will apply. Failure to secure a new EAD or extension within the required timeframe may result in a gap in employment.

If you have questions about this rule change, please contact your Brown Immigration Law attorney.

USCIS Updates Receipt Process for L-1s and Form I-129S Filed with USCIS

On August 3, 2023, USCIS announced changes to the way it issues receipts for L-1 intracompany transferees under a previously approved blanket L petition when filing with USCIS as a change of status or extension of stay and submitting an I-129S along with the I-129. Before the announcement, petitioners received a stamped and signed Form I-129S along with the Form I-129 approval. Going forward, petitioners will receive two notices: the receipt notice and the approval notice (if approved).
The new and distinct approval notice for Form I-129S will constitute the regulatorily mandated endorsement of Form I-129S as well as serve as evidence that USCIS has determined that the beneficiary is eligible for L-1 status based on an approved blanket L petition. Additionally, a copy of the approval notice will also be provided to the beneficiary to be included with their visa and/or admission papers.
By halting its previous practice of printing, stamping, signing, and annotating the paper form, USCIS aims to provide petitioners with quicker, more organized, and more secure processing services for Form I-129S. 

Visa Bulletin September 2023

USCIS has released the visa bulletin for September 2023. This update includes some changes, however, overall the September visa bulletin remained similar to August. Here is a summary of the key highlights:

  • The EB-1 category remains backlogged for all countries, with no movement for any country of chargeability.
  • In the EB-2 category, most countries experienced minor advancements, with the exception of China and India, which did not move.
  • The most notable advancement is in the EB-3 category for China progressed by 3 months, bringing the priority date to September 1, 2019. This advancement is a significant opportunity for individuals seeking employment-based immigration from China.

It is important to remember that the Visa Bulletin is subject to change, and advancements may result in increased demand and potential retrogression in the future. More significant changes in the visa bulletin are expected in October 2023. Should you have any questions or require further information, please do not hesitate to reach out for personalized guidance. We remain committed to providing you with the highest quality of service throughout your immigration process.


Canada to Reduce the Temporary foreign Worker Program Red Tape for Trusted Employers

On August 8, 2023, the Ministry of Employment, Workforce Development and Official Languages, launched the Recognized Employer Pilot (REP) under the Temporary Foreign Worker (TFW) Program. REP is a three-year initiative that will help to address labour shortages and reduce the administrative burden for repeat employers participating in the program who demonstrate a history of complying with program requirements.

Alongside a commitment of $29.3 million over three years, REP was first announced in Budget 2022 as the “trusted employer model.” Under REP, eligible employers will gain access to Labour Market Impact Assessments (LMIAs) that are valid for up to 36 months, while also benefitting from a simplified LMIA application, should they need to hire additional workers from the same occupation during the Pilot.

To participate in REP, employers must have a minimum of three positive LMIAs for the same occupation over the past five years from a list of occupations that have been designated as in-shortage based on Canadian Occupational Projection System data. These employers will be subject to a more rigorous upfront assessment process based on their history and track record with the program, ensuring that REP targets employers with the best recruitment practices.

REP will be rolled out in two phases: first, primary agriculture employers will be able to apply starting in September 2023, while all other employers will be eligible to apply in January 2024. Employer applications for REP will close in September 2024.

Click here to consult the list of occupations to be included under both Phase 1 and Phase two of the REP.

Express Entry

Express Entry is the primary system for managing immigration in Canada. Individuals (Express Entry candidates) become eligible based on three federal immigration programs: the Federal Skilled Worker Program (FSWP); Canadian Experience Class (CEC); and Federal Skilled Trades Program (FSWP). Once they are eligible and their Express Entry profile is created, individuals are entered into a pool of candidates.

In addition to being eligible for Express Entry, candidates must be competitive to receive an Invitation to Apply (ITA) for permanent residence. Express Entry candidates are assigned Comprehensive Ranking Score (CRS) points based on criteria such as their age, education, work experience etc. Generally, the Government periodically reviews the pool of Express Entry candidates and invites the highest-ranking individuals to apply.

Over the last four weeks, Canada issued 8, 600 Invitations to Apply (ITA) for permanent residence (PR) under Express Entry. Please see below for a high-level summary:

  • IRCC held two general draws, inviting 6,300 Express Entry candidates; the cut-off score for each round of invitation was 517 and 496 respectively.
  • IRCC held one targeted draw for individuals proficient in French, inviting 800 Express Entry candidates; the cut-off score was 435.
  • IRCC held its first targeted draws for individuals in certain trade occupations, inviting 1, 500 Express Entry candidates; the cut-off score was 388.

If you have any questions about Express Entry, Permanent Residency, or any Canadian immigration programs, please contact us to schedule a consultation. 


Locking Down Your Investment in Human Capital through Green Card Filing

In this session Managing Partner, David Zaritzky Brown, will be joined by Managing Attorney, Mason Ellis as they discuss available Green Card options. Depending on the type of employee hired or job performed there could be a wide variety of options available in some circumstances. In most cases, the truly viable option is an I-140 based PERM. David and Mason will walk you through the most common approaches we take and how we identify the way forward in starting a Green Card process. As always, David and Mason will stay on for a generous Q&A time to provide answers to interested attendees.

Canada’s Innovative Immigration Programs Can Help Companies Drive Their Business Globally

In this session, Managing Attorney, Clinton Green, and Managing Partner, David Zaritzky Brown, discuss the recent changes and trends in Canadian immigration and how they combine to make it easier for companies to hire and retain global talent. They will also highlight how companies can leverage Canada’s immigration programs to implement regional talent hubs in Canada to support their global business needs.

This presentation will be useful for both HR/Management looking at starting up or increasing their Canadian operations or who are contemplating solutions to managing risk to their immigration programs in the US. Clinton and David will facilitate a Q&A session to provide answers to interested attendees.

Once registered, you will receive an email with a link to use to join the video chat on the day of the event. Please note: This link should not be shared with others; it is unique to you. If you ever misplace the invitation link, simply visit the webinar schedule on our website

If you have colleagues who may benefit from our talks, you are welcome to invite them to join by sharing our webinar schedule where they can subscribe for further information.

Don’t miss these opportunities to increase your knowledge on important immigration issues!

Thank you and we look forward to having you at the event.

Best Regards,
The Team at Brown Immigration Law

** This newsletter/memo is provided for informational and discussion purposes only. It does not act as a substitute for direct legal contact on an individual basis **


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