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 wish everyone a happy holiday season!
U.S. BUSINESS IMMIGRATION UPDATES
Fiscal Year 2024 H-1B Cap Reached
USCIS reported on December 13, 2024 that the H-1B cap for fiscal year 2024 has been reached. As noted by the Service in its update, “USCIS has received a sufficient number of petitions needed to reach the congressionally mandated 65,000 H-1B visa regular cap and the 20,000 H-1B visa U.S. advanced degree exemption, known as the master’s cap, for fiscal year (FY) 2024.” As a review, this year, the H-1B lottery was conducted twice by USCIS to meet the cap – this update indicates that USCIS will not need to run a third lottery to meet the cap for FY 2024.
USCIS meeting the cap for FY 2024 was already widely speculated and USCIS had previously suggested such when it announced the second lottery selection – this move just provides official notice of the end of the lottery. At Brown Immigration Law, we have already begun initial internal planning and organization for next year’s H-1B lottery (FY 2025). Please reach out to your BIL attorney with any questions or join us for our upcoming webinars (see below).
Update on Government Shutdown
In mid-November, the U.S. House of Representatives and Senate passed a continuing resolution which continued the funding of certain agencies through January 19, and others until February 2, 2024, the later date including DHS, DOS, and the DOL. President Biden signed the continuing resolution, which prevents a government shutdown for the time being. As we have previously reported, a government shutdown would have many impacts on U.S. immigration, specifically applications with the Department of Labor and many other services. Since the passing of the continuing resolution Congress has yet to take up the funding bills required to avert possible shutdown in 2024. We will continue to monitor and hope that a commonsense solution is reached.
USCIS Reopening Incorrectly Issued Advance Parole Documents
Near the end of November, the American Immigration Lawyers Association (AILA) reported that USCIS was issuing Advance Parole documents with incorrect categories and annotations. For example, USCIS had issued many Advance Parole documents to applicants with pending I-485, Adjustment of Status Applications labeled with the category for a Temporary Protected Status applicant. The National Benefits Center indicated that it had been tracking the incorrectly issued case types and was comprehensively reviewing cases to re-issue the travel documents with the correct classification. The NBC updated AILA that it had taken all necessary corrective measures by November 17, 2023.
Your Brown Immigration Law attorney is monitoring this issue. If you have filed form I-485 along with form I-131 (Advance Parole), please contact your attorney for a review of the travel document when it is approved. To put the above notes in context, USCIS has erroneously issued “I-512T” travel documents in these cases, which is the code for the Temporary Protected Status (TPS) category, not the AOS category. Attempting to re-enter the United States with an I-512T travel document could lead to complications. Thus far, USCIS seems to be consistently recognizing its mistake and immediately re-opening the cases to issue the corrected travel document with the I-512L code, but we ask that our clients be mindful and contact your BIL attorney in advance of any travel related to your AP travel document.
Department of Homeland Security and the Department of Labor Provide Copy of Temporary Rule Authorizing 64,716 Additional H-2B Visas for FY2024
On November 17, 2023 via the Federal Register, DHS and DOL authorized the issuance of an additional 64,716 H-2B visas for fiscal year 2024. As reported by AILA, “These supplemental visas will be distributed in several allocations. 20,000 visas made available in this rule will be reserved for nationals of Guatemala, El Salvador, Honduras, Haiti, Colombia, Ecuador, or Costa Rica. 44,716 supplemental visas will be available to returning workers who received H-2B visas or were otherwise granted H-2B status during one of the last three fiscal years.” The Federal Register noted that this was an “exercise of time-limited authority to increase the numerical limitation for FY 2024 for the H–2B temporary nonagricultural worker program and portability flexibility for H–2B workers seeking to change employers.”
January Visa Bulletin
The Visa Bulletin for January 2024 has been released. For employment-based adjustment of status applicants, USCIS has confirmed that it will continue to accept applications current under the “Dates for Filing” chart.
The January 2024 Visa Bulletin shows movement in a couple of categories. Referring to the Final Action Chart, EB-1 China moves to July 1, 2022 and EB-1 India moves to September 1, 2020. For EB-2 ROW, the date moves to November 1, 2022. Finally, EB-2 for China and India move to January 1, 2020 and March 1, 2012, respectively. Please note: As initially released, there was discrepancy in the Dates for Filing chart for EB-2 China, but this has since been corrected, noting that the EB-2 China date for filing is June 1, 2020.
CANADIAN BUSINESS IMMIGRATION UPDATES
Employer’s Requirement for Proof of Canadian Citizenship or Permanent Residency Held to be Discrimination
In Imperial Oil Limited v Haseeb (2023 ONCA 364), the Ontario Court of Appeal affirmed the Human Rights Tribunal of Ontario’s ruling, finding Imperial Oil guilty of discriminating against a job applicant on the basis of citizenship. The discrimination arose from the employer’s demand for proof of Canadian citizenship or permanent residency after offering a position to a recent graduate.
Mr. Haseeb, an international student, applied for an entry-level project engineer role at Imperial Oil while holding a Post-Graduate Work Permit (PGWP). Imperial Oil extended a job offer contingent on proof of Canadian citizenship or permanent residency. However, the offer was revoked upon discovering he only held a temporary status. Mr. Haseeb then filed a human rights application, claiming discrimination based on citizenship, a violation of the Ontario Human Rights Code.
Initially, in 2018, the Tribunal declared it discriminatory for employers to request proof of Canadian citizenship or permanent residency. The employer was ordered to pay over $100,000 in damages. However, the Divisional Court of Ontario overturned this decision and Mr. Haseeb appealed to the Court of Appeal. The Court of Appeal found Imperial Oil’s insistence on proof of Canadian citizenship or permanent residency constituted discrimination based on citizenship, excluding legally entitled non-Canadian citizens from working anywhere in Canada.
Emphasizing the protection of “citizenship,” the Court clarified that it ensures equal treatment for individuals eligible to work in Canada under federal immigration law. Notably, the Code permits a Canadian citizenship requirement only when required or authorized by law (Section 16(1)).
Based on this development, employers are urged to review their hiring policies, mindful of potential claims of discrimination based on citizenship (including temporary status). Reach out to your BIL Lawyer for further guidance with respect to managing your immigration risks.
Certain Students Can Work Full-time until April 30, 2024
Immigration, Refugees, and Citizenship Canada (IRCC) have recently declared an extension to a policy benefitting specific international students, enabling them to engage in employment beyond the standard 20-hour-per-week limit for off-campus work during non-academic periods.
In light of the escalating labor shortages across Canada, the immigration department introduced a temporary measure in 2022, granting eligible international students the opportunity to pursue full-time employment off-campus, totaling 40 hours per week.
Originally slated to conclude on December 31, 2022, having commenced on November 15 of the same year, this temporary policy was subject to a recent announcement. The latest update extends the validity of this policy, ensuring its continuation until April 30, 2024.
IRCC to Increase Financial Requirements for Study Permit Applicants
IRCC acknowledges that the current financial requirement for international students in Canada has not kept pace with the rising cost of living, leading to challenges for students upon arrival. Effective January 1, 2024, there will be an annual adjustment to the cost-of-living requirement based on Statistics Canada’s low-income cut-off (LICO), ensuring it aligns with essential living expenses. For example, the 2024 cost-of-living requirement for a single study permit applicant will be CAD 20, 635, compared to the CAD 10,000 requirement that has been in place since the early 2000’s.
IRCC emphasizes that this adjustment aims to prevent student vulnerability and exploitation. While recognizing varying impacts on applicants, the department plans targeted pilots next year to support underrepresented groups of international students pursuing studies in Canada.
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 11,650 Invitations to Apply (ITA) for permanent residence (PR) under Express Entry. Please see below for a high-level summary:
- IRCC held one targeted draw for individuals in certain STEM occupations, inviting 5, 900 Express Entry candidates; the cut-off score was 481.
- IRCC held its first targeted draws for individuals proficient in French, inviting 1, 000 Express Entry candidates; the cut-off score was 470.
- IRCC also held general draw inviting 4, 750 Express Entry candidates; the cut-off score was 561.
If you have any questions about Express Entry, Permanent Residency, or any Canadian immigration programs, please contact us to schedule a consultation.
NEW LEARNING OPPORTUNITIES
Visa Primer and Mobility Overview
In opening the year, sometimes its good to get back to the basics! Managing Partner, David Zaritzky Brown, will quickly outline the different visa status options that we routinely use to support our clients. He’ll outline eligibility and length of status and provide real-world examples of when different visa status types are employed to facilitate hiring and employee transfers. Our team is ultimately agnostic when it comes to the visa type chosen – we’re committed to finding the most efficient, successful, and workable option while balancing the needs of the individual and the corporate mission. This program will provide HR experts with the foundational knowledge to ask all the right questions and be ready to support any visa classification you hire. As always there will be a generous Q&A period available to ask any visa question you may have.
H-1B Cap Primer – What to Expect This Year
A new year brings a new H-1B lottery selection in early 2024! And possibly new regulations to streamline the process and increase fairness in selections. We want to ensure you are ready for the H-1B Cap lottery, so you can field basic questions and are ready to navigate the H-1B cap season. This talk with cover who should be included, how the H-1B works, and Cap selection in particular. David Zaritzky 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 how we approach contingency planning for those who are not selected.
Biden’s AI Initiatives and Options for AI Related Visas
As the FY 2025 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. Often an initial review involves considering what options exist for individuals to remain in the U.S., however, 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.
Moderated by Managing Partner, David Zaritzky Brown, this program will highlight useful Canadian options supported by the Canadian practice, led by Clinton J. Green, Managing Attorney and Canadian Practice Lead, and his team.
H-1B Cap and Contingency Planning
As the FY 2025 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. Often an initial review involves considering what options exist for individuals to remain in the U.S. or go elsewhere. This program will both outline our approach to the H-1B cap season and also walk through the various contingency options available to individuals who are in the cap process. Managing Partner, David Zaritzky Brown will leverage his knowledge of twenty-five prior H-1B cap seasons to share his best options for a backup to Cap selection.
*This webinar is offering SHRM Professional Development Credit.
H-1B Cap Contingency – Think Canada
As a follow-up to our February 1st discussion concerning contingency planning for those not selected in the lottery, this talk will focus on the Canadian option. Whether a US and Canadian company or just a U.S. company, Managing Attorney, Clinton Green will highlight how clients 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. As a progressive skilled worker destination that shares time zones with the U.S. Canada has become a natural option for displaced U.S. workers who are stymied by the artificial H-1B Cap.
In addition to learning about the different immigration options for hiring workers in Canada and key recruitment strategies for starting operations or scaling existing operations in Canada quickly – we will highlight how Brown Immigration Law supports businesses to support Canadian permanent residence within two years of entry, or the alternative of finding a way back to the U.S. after a short stint in Canada.
*This webinar is offering SHRM Professional Development Credit.
Biden’s AI Initiatives and Options for AI Related Visas
This is a rebroadcast of our January 25th webinar with any updates sprinkled in! Much has been said about AI and its impact on the world of technology, and the world in general, and it is clear that AI is the new “race” between companies and countries. The Biden Administration, in realizing both the importance and promise of AI released an Executive Order on October 30, 2023 in support of U.S. based AI development that also featured possible immigration benefits for foreign founders in the AI field, or AI key engineering talent. Managing Partner, David Zaritzky Brown will highlight the specific AI visa allowances and changes that are likely to benefit the industry and also touch on some of the tools the firm is already using to support such applications. For companies that are in the AI space or developing AI aspects of their existing technology this is a must for understanding the important shift in visa policy to support the industry. Given the newness of these changes, David will hold an extended Q&A at the end of his talk to answer any questions relating to the new tools and their implementation.
H-1B Cap and Contingency Planning
As the FY 2025 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. Often an initial review involves considering what options exist for individuals to remain in the U.S. or go elsewhere. This program will both outline our approach to the H-1B cap season and also walk through the various contingency options available to individuals who are in the cap process. Managing Partner, David Zaritzky Brown will leverage his knowledge of twenty-five prior H-1B cap seasons to share his best options for a backup to Cap selection.
*This webinar is offering SHRM Professional Development Credit.
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 **
