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.
We are wishing everyone safety in their travels and celebrations during this holiday season.
U.S. BUSINESS IMMIGRATION UPDATES
USCIS Releases Fiscal Year 2022 Progress Report
On December 7, 2022, USCIS released its “Fiscal Year 2022 Progress Report”. USCIS confirms that the agency still has “much work ahead to deliver timely decisions to all customers”, however, highlights some important progress points. Among these points are the following:
- A 62% reduction in the net backlog of N-400 (naturalization) applications;
- USCIS and the Department of State issued all available employment-based immigrant visas in FY 2022 – double the pre-pandemic number;
In addition, USCIS notes the following for its “New commitments for FY 2023”:
- Implementing premium processing for all employer petitions for immigrant workers (Form I-140) and certain EAD applications for students and exchange visitors (Form I-765).
- Removing the requirement to submit biometrics for applicants for change and extension of nonimmigrant status (Form I-539).
- Simplifying several major forms, including the applications for EADs (Form I-765), adjustment of status (Form I-485), and naturalization (Form N-400).
The agency ended its report, noting: “While we’ve made progress in FY 2022, we recognize there is more to do to eliminate unnecessary barriers, restore faith in the immigration system, and improve transparency, efficiency, and the customer experience. We remain committed to these goals and anticipate more progress, as outlined, in the coming year.”
Customs and Border Protection (CBP) Update on Simplified Arrival
In June 2022, CBP confirmed that it had expanded biometric facial comparison technology at all international airports in the United States, in an effort to streamline international travel. This was a part of CBP’s “Simplified Arrival” process, which “is an enhanced international arrival process that uses facial biometrics to automate the manual document checks that are already required for admission into the United States.” As confirmed by AILA, this now exists at the 238 arriving airports and 34 seaports. This also includes most land ports. CBP has expanded the Simplified Arrival expanded pilot program to reduce physical stamps in passports, which has been implemented at “airports of entry (POEs)…San Francisco (SFO), Chicago, Atlanta, Dallas, Boston, Montreal, Calgary, Toronto, New York/Newark, Houston, Washington Dulles, Seattle, Los Angeles (LAX), and Dublin. The land POEs are Seattle, Buffalo, El Paso, Detroit, Laredo, San Diego, and Tucson.”
Removing the Requirement for Original Signatures – Scanned/Photocopied Signatures
Near the beginning of the pandemic in March 2020, USCIS announced flexibility in their policy which required wet ink (original) signatures on documents submitted to the Service. During that time, the Service suspended the policy, allowing the submission of scanned/photocopies signatures in petitions filed with USICS. In July 2020, USCIS made this policy permanent, writing, “in an effort to take the lessons learned from our pandemic posture, USCIS has been evaluating which flexibilities can and should be extended permanently. As a result of this evaluation, the reproduced signature flexibility announced in March 2020, will become permanent policy on July 25, 2022.”
At the same time, U.S. Customs and Border Protection was instructed to accept scanned signatures in line with USCIS policy. This, however, has not been a consistent practice across the various ports of entry. At the recent AILA Liaison meeting with CBP, CBP headquarters “agreed to work on getting ports to accept scanned/photocopied signatures in line with USCIS policies.”
Please contact your BIL attorney immediately if you have an issue with an officer at the border refusing to accept scanned signatures. We are standing by to assist individuals applying for various visas at the POEs and will do all we can in the event that a CBP officer is pushing back on this specific issue (and others, of course).
Worldwide E-Visa Adjudication Delays
On November 18, 2022, AILA sent a letter to the Department of State regarding the global issues with the delay of E-visa adjudications. AILA members report that E-visa services have stopped in the following consular posts: Bogota, Columbia; Santiago, Chile; and Bridgetown, Barbados. The AILA letter continues: “Similarly, where posts are accepting E visa applications, many AILA members report considerable processing delays for initial applications. For example, the U.S. Embassy in Rome is currently taking 12-14 months from when an application is submitted to post until an applicant is invited to schedule an E visa interview. Members have reported that other posts, such as Amsterdam, Madrid, Sri Lanka, Istanbul, Trinidad & Tobago, and Santo Domingo are experiencing lengthy processing times.”
AILA’s letter confirms a trend that we have seen for our clients as well, and we hope it calls attention to the importance of expeditious adjudication for these E-visas (and others). Your BIL attorney is hard at work considering all options available for contacting the consular officers and moving your case along, but please reach out if you have specific questions, understanding the backlog of cases facing the Department of State in the status quo.
USCIS Updates Policy to Automatically Extend Green Cards for Naturalization Applicants
On December 9, 2022, USCIS released the following update: “USCIS is updating the USCIS Policy Manual to allow USCIS to automatically extend the validity of Permanent Resident Cards (commonly called Green Cards) for lawful permanent residents who have applied for naturalization…USCIS will update the language on Form N-400 receipt notices to extend Green Cards for up to 24 months for these applicants…The extension will apply to all applicants who file Form N-400 on or after Dec. 12, 2022. LPRs who filed for naturalization prior to Dec. 12 will not receive a Form N-400 receipt notice with the extension.”
We hope this commonsense approach from USCIS will allow the agency to continue to work through its backlog of cases. If you have any questions, please contact your BIL attorney.
Public Charge Rule – Effective December 23rd
On December 19, USCIS sent the following update: “On Dec. 23, 2022, the Department of Homeland Security’s (DHS) Public Charge Ground of Inadmissibility final rule will go into effect. This final rule, which was previously announced, provides clarity and consistency for noncitizens on how DHS will administer the public charge ground of inadmissibility.”
Along with this update, USCIS has published a new form I-485, Application to Register Permanent Residence or Adjust Status. Notably from the agency is the following about form edition dates:
- “We will reject the 07/15/22 edition of Form I-485 if it is postmarked on or after Dec. 23, 2022.
- We will reject the 12/23/22 edition of Form I-485 if it is postmarked on or before Dec. 22, 2022.”
Your BIL attorneys are hard at work ensuring the appropriate form types and editions are utilized for success in your case, including adjustments of status.
Lawsuit on Behalf of H-1B and L-1 Spouses
Due to the historic delays in processing extension petitions for employment authorization document applications for H-4 and L-2 nonimmigrant spouses, USCIS in conjunction with Wasden Banias, LLP filed a class action lawsuit against the Service challenging said delays. The case continues to work its way through the federal court process, with the most recent update being an order to supplement the administrative record for additional discovery.
At BIL, we have filed numerous mandamus and APA-related lawsuits against the government for their delays, many times with the government adjudicating the petition quickly after the lawsuit was filed. If you are interested in using this option, please consult with your BIL attorney for a case assessment.
The Department of State has today released the visa bulletin for January 2023. Notably, EB-1 for China and India has retrogressed, both countries to February 1, 2022 on the Final Action Chart. EB-2 for all countries apart from India and China is at November 1, 2022, with EB-2 China at June 8, 2019 and EB-2 India at October 8, 2011. For EB-3, worldwide remains currently, and EB-3 China is at August 1, 2018, with EB-3 India at June 15, 2012.
CANADIAN BUSINESS IMMIGRATION UPDATES
Big Express Entry Changes to Come in Q2 2023
Starting in Spring 2023, IRCC will make changes to the Express Entry system that will allow it to issue Invitations to Apply (ITAs) based on labour market needs. The expected changes were made possible by Bill C-19 which received Royal Assent on June 23. Under the Bill, the immigration minister has the authority to invite candidates with any in-demand skills or abilities, rather than their overall Express Entry CRS score alone.
We expect the Government will continue to have regular general draws inviting candidates with the highest CRS scores to apply, but the ability to invite candidates based on their occupation, education background etc. will increase the likelihood of lower scoring candidates in certain fields (e.g., STEM occupations) receiving ITAs. Ultimately, this change will likely impact the general predictability and anticipated timeline associated with candidates receiving their ITA.
Stay tuned for further updates!
New Learning Opportunities!
H-1B Cap Season Key Takeaways and Advance Planning Considerations
A new year brings a new H-1B lottery selection in early 2023! We want to ensure you are ready for the new year and that includes answering all of your H-1B Cap lottery questions so you are ready to navigate the H-1B cap season. This talk will cover who should be included, how the H-1B works, and Cap selection in particular. David Brown, Managing Partner, will also speak to what to expect in terms of deadlines and timing, and how H-1B selection is then worked into an H-1B petition and the timing of that submission. David will also discuss H-1B Cap gap and contingency planning for those who are not selected.
H-1B Contingency Planning – Think Canada, eh?
As the FY 2024 cap season nears, uncertainty looms over the heads of thousands of specialty workers while many businesses contemplate the very real risk that they will lose talented workers who are not selected. H-1B contingency planning is critical to successfully managing your foreign national workforce. For companies implementing contingency plans for foreign nationals in the US, Canada offers a plethora of untapped and innovative immigration programs that will allow companies to relocate their employees quickly and easily to Canada while minimizing disruptions to the workforce and client deliverables.
Join Managing Partner, David Brown, and our Canadian Practice Lead, Clinton Green for a discussion about how US and Canadian companies can leverage immigration options in Canada to provide continuity for those U.S. workers who run out of runway because of an unsuccessful H-1B cap season.
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.
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 **