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 all our clients a happy holiday season!

U.S. BUSINESS IMMIGRATION UPDATES

H-1B Modernization Final Rule to Improve Program Integrity and Efficiency Announced

On December 17, 2024, the Department of Homeland Security announced a final rule with updates to the H-1B program. Per the USCIS update, this rule intends to modernize “the H-1B program by streamlining the approval process, increasing its flexibility to better allow employers to retain talented workers, and improving the integrity and oversight of the program.”

USCIS summarized the rule changes into the following:

• Modernizes the definition and criteria for specialty occupation positions as well as for nonprofit and governmental research organizations that are exempt from the annual statutory limit on H-1B visas.
• Extends certain flexibilities for students on an F-1 visa seeking to change their status to H-1B to avoid disruptions in lawful status and employment authorization.
• The final rule will allow USCIS to more quickly process applications for most individuals who had previously been approved for an H-1B visa.
• It will also allow H-1B beneficiaries with a controlling interest in the petitioning organization to be eligible for H-1B status, subject to reasonable conditions.
• Finally, the rule codifies USCIS’ authority to conduct inspections and impose penalties for failure to comply.
• The rule requires that the employer must establish that it has a bona fide position in a specialty occupation available for the worker as of the requested start date; clarifies that the Labor Condition Application must support and properly correspond with the H-1B petition; and requires that the petitioner have a legal presence and be subject to legal processes in court in the United States.

While many of these updates simply codify what has already been best practice for H-1B cases, many of these updates are welcome as they enhance flexibility in the program, supporting growth of the economy and global mobility. As we continue to review the new rule, we will monitor for news and further updates to the program.

Department of State Modernizes the J-1 Exchange Visitor Skills List

On December 9, 2024 the Department of State (DOS) announced an update to the J-1 Exchange Visitor Skills List. For context, the Skills List is a list of countries designated by the Secretary of State as clearly requiring the services of persons engaged in certain fields of specialized knowledge or skills. This list is used by DOS and the Department of Homeland Security to determine whether an individual who has been admitted into the United States as a ‘J’ nonimmigrant exchange visitor, or who acquired such status, is subject to the two-year foreign residence requirement under Section 212(e) of the Immigration and Nationality Act, as amended.

This revision marks the first update to the Skills List since 2009. As of December 9, 2024, many exchange visitors, including research scholars and other highly skilled workers, will not be required to fulfill the two-year foreign residence requirement when they complete their program. Additionally, and more importantly, the change is retroactive, meaning it removes this restriction on certain J-1 visa holders who were previously subject to the two-year foreign residence requirement.

More than 30 countries, including, India, China, Brazil, and South Korea have been removed from this list, thereby exempting their citizens from the two-year foreign residence requirement. The 45 countries remaining on the Skills List and therefore subject to the two-year foreign residence requirement have been carefully chosen by DOS using intelligible criteria to ensure that such countries with low levels of development as well as those with higher levels of development that have other extenuating circumstances that stymie the development of a skilled workforce remain on the Skills List to support the development of that country.

While the list of countries has undergone a noticeable change, the December 9 update did not alter the entire list of skills subject to the two-year foreign residence itself. Furthermore, those who receive funding from the United States government or their home country government or receive graduate medical education or training in the United States remain subject to the two-year foreign residence requirement.

The December 9 update to the Skills List marks a welcome change toward allowing top U.S.-trained individuals to continue contributing to the U.S. economy, ensuring lasting prosperity and innovation in the United States. Please reach out to your BIL attorney for further information about this update or any specific matter.

USCIS Reaches Fiscal Year 2025 H-1B Cap

On December 2, USCIS announced that it had received enough petitions to reach the mandated 65,000 H-1B visa regular cap and the 20,000 H-1B visa U.S. advanced degree exemption (master’s cap) for the fiscal year 2025.

USCIS has already begun sending non-selection notices to registrants through their online accounts. Once all non-selection notifications have been sent, the status for properly submitted registrations that were not selected for the FY 2025 H-1B numerical allocations will show: “Not Selected: Not selected – not eligible to file an H-1B cap petition based on this registration”.

USCIS will continue to accept and process petitions that are otherwise exempt from the cap. Petitions filed for current H-1B workers who have been counted previously against the cap, and who still retain their cap number, are exempt from the FY 2025 H-1B cap. USCIS will continue to accept and process petitions filed to extend the amount of time a current H-1B worker may remain in the US; change the terms of employment for current H-1B workers; allow current H-1B workers to change employers; and allow current H-1B workers to work concurrently in additional H-1B positions.

Registration for the FY 2026 H-1B Cap Lottery is expected to begin in March 2025. We will begin reaching out to our clients in early 2025 to begin to prepare for the H-1B cap. Please contact our office with any questions and review last year’s memo for general guidance.

Certain Applicants Now Must File Medical Exam and Vaccination Record with Adjustment Application

On December 2, 2024, USCIS announced that Adjustment of Status (“AOS”) applicants subject to medical examination and vaccination requirements must now submit completed Form I-693, Report of Immigration Medical Examination and Vaccination Record, with their Form I-485 to avoid a rejection of the case. USCIS explained that they made this new requirement to reduce the number of Requests for Evidence issued before adjudicating the I-485.

We recommend AOS applicants make a medical examination appointment with their local civil surgeon using this link in advance of their I-485 filing. Please contact your Brown Immigration attorney for further guidance on the medical examination requirement.

USCIS Issues Updated Guidance on Evidence for Applicants Under the International Entrepreneur Rule

On December 12, USCIS issued a policy alert noting updated policy guidance on the types of evidence that may support an application under the International Entrepreneur Rule.

By way of background, the International Entrepreneur Rule (see 8 FR 5238) provides the U.S. DHS a framework to use its parole authority to grant a period of authorized stay, on a case-by-case basis, to noncitizen entrepreneurs who would provide a significant public benefit through their startup entity’s potential for rapid growth and job creation. Entrepreneurs granted parole are authorized to work for their startup entity incident to their parole. Spouses of entrepreneurs who are also granted parole may apply for employment authorization to work in the US.

The new guidance, found in Volume 3 of the Policy Manual, covers evidence of the applicant’s central and active role in the startup entity and of the applicant’s position to substantially help the entity grow and succeed. It also expands on the types of evidence that can show qualified investments and qualified government awards or grants, and the types of alternative evidence that an applicant may submit. It also clarifies the types of evidence that can support a finding of significant public benefit.

The guidance is effective immediately and applies to requests pending or filed on or after December 12.

Additional H-2B Visas for FY 2025

The H-2B program allows U.S. employers to hire foreign nationals to fill temporary nonagricultural jobs.  It has a statutory cap of 66,000 H-2B visas per year, half of which are allocated for jobs starting in the first half of the fiscal year (April 1) and another half for the second half of the year (October 1). On December 2, 2024, the Department of Homeland Security (DHS) and the Department of Labor (DOL) jointly published a temporary final rule increasing the numerical limit (or cap) on H-2B nonimmigrant visas by up to 64,716 additional visas (on top of the 66,000 H-2B cap) for all of fiscal year 2025. 44,716 of the additional visas are available only for returning workers (who had H-2B visas in the last 3 fiscal years, and the remaining 20,000 visas are set aside for new hires from El Salvador, Guatemala, Honduras, Haiti, Colombia, Ecuador, and Costa Rica (country-specific allocation).

Final Rule Permanently Increases the Automatic Extension Period for Certain Employment Authorization Document Renewal Applicants

The Department of Homeland Security (DHS) announced a final rule on December 10, 2024, that permanently increases the automatic extension period of employment authorization and employment authorization documentation (EAD) from up to 180 days to up to 540 days, effective January 10, 2025. This means that applicants can file EAD extension applications before the expiration of their original EADs and gain an automatic extension of employment authorization for up to 540 days before the adjudication of their EAD applications. During these 540 days while the EAD application is pending at USCIS, applicants can show employment eligibility with a facially expired EAD and an I-797C receipt notice indicating a timely filed EAD renewal application. This rule is made to reduce the likelihood that eligible renewal EAD applicants will experience a lapse in employment authorization or employment authorization documentation while USCIS processes their renewal applications.

Update to Registration System for Danish E-1 and E-2 Visas

As of December 1, a new registration system for Danish companies has streamlined the process for E-1 and E-2 visa applicants. Treaty Trader (E-1) and Treaty Investor (E-2) visas are for citizens of countries with which the United States maintains treaties of commerce and navigation, such as Denmark. The new registration system eliminates the need to supply supporting documentation establishing that the corporation qualifies as a treaty trader or treaty investor for every application. Instead, the Danish company will be reviewed and issued a registration letter for the duration of either 12, 36, or 60 months. The validity period of the registration letter is assessed on factors such as the number of employees of the company, the period the company has operated, the company’s real estate holdings, the company’s history of compliance with U.S. immigration law, and the scale of the company’s operations throughout the world. While the company’s registration remains valid, employees may apply for their applicable visa at the U.S. Embassy in Copenhagen using (1) a copy of the registration letter and (2) a letter from the company. The company letter must be issued on letterhead, signed by the appropriate HR officer, and establish the applicant will act in a supervisory or executive capacity or possesses highly specialized knowledge essential to the company’s operation and business model. More information on this process can be found at the U.S. Department of State’s Bureau of Consular Affairs website.

January Visa Bulletin

The January Visa Bulletin has been released by the Department of State.  There are no changes from the December Visa Bulletin for employment-based categories for dates for filing, but there is some movement for Final action dates, specifically in EB-2 and EB-3 categories.  Notably, in the EB-2 category, India advances two months from August 1, 2012, to October 1, 2012; China advances one month from March 22, 2020, to April 22, 2020; and all other countries advance to April 1, 2023.  In the EB-3 Professionals and Skilled Workers Category, India advances three weeks from November 8, 2012, to December 1, 2012; China advances two months from April 1, 2020, to June 1, 2020; and all other countries advance to December 1, 2022.  In the EB-3 Other Workers Category, India advances from November 8, 2012, to December 1, 2012; China remains at January 1, 2017; and all other countries advance to December 8, 2020.

CANADIAN BUSINESS IMMIGRATION UPDATES

Developing News: Immigration Canada Announces Plan to Strengthen Border Security and Immigration System

On December 17, 2024, the Immigration Minister of Canada announced plans to strengthen border security and measures to reinforce Express Entry program integrity. To reduce border traffic, the Government of Canada will end “flagpoling,” eliminating the option for temporary residents to leave Canada and immediately return to a port of entry to obtain immigration services. To reduce Labor Market Impact Assessment (“LMIA”) fraud, Immigration Canada will also change the Express Entry Comprehensive Ranking System scoring by eliminating points awarded for LMIA-based arranged employment. As of December 18, 2024, these changes have not taken effect. We are monitoring further developments and provide updated guidance when available.

Quebec Introduces New Skilled Worker Selection Program

Quebec has recently introduced a new Skilled Worker Selection Program (SWSP), replacing the previous Regular Skilled Worker Program (RSWP). This updated program aims to attract skilled workers who can contribute to the province’s economic growth and address labour shortages in specific sectors.

Key Changes in the SWSP:

New Streams: The SWSP introduces new streams to cater to different skill levels and experience requirements. This allows for a more targeted approach in selecting skilled workers. The streams are as follows (1) Highly qualifies and specialized skills; (2) Intermediate and manual skills; (3) Regulates professions; and (4) Exceptional talent.

Eligibility Criteria: The program has revised eligibility criteria, including changes in work experience, education, and language proficiency requirements.

Focus on Quebec Experience: The SWSP places greater emphasis on work experience gained in Quebec. This reflects the province’s aim to retain skilled workers who have already established themselves in the local market.

It is important to note that invitations for permanent selection applications under the SWSP have been temporarily suspended until June 30, 2025. This suspension is in place while Quebec finalizes his new multi-year immigration plan.

International Experience Canada – 2025 Season is Now Open

The pools for the 2025 season are now open. If you’re eligible, you can create a profile.

The International Experience Canada (IEC) Program is a fantastic opportunity for young people from participating countries to work and travel in Canada. It allows you to gain valuable international work experience, improve your language skills, and explore the beautiful Canadian landscape.

The IEC program offers three main streams:

• Working Holiday: This is the most popular stream, allowing you to work for any employer in any location in Canada for up to two years.
• Young Professionals: This stream is for individuals with a job offer from a Canadian employer. You will receive an employer-specific work permit, allowing you to work for that specific employer in a specific location.
• International Co-op Internship: This stream is for students enrolled in a post-secondary institution in their home country. You will receive an employer-specific work permit to complete an internship with a Canadian company.

To be eligible for the IEC program, you must:

• Be a citizen of a participating country (check the list on the IEC website)
• Be between 18 and 35 years old (in some cases, 30)
• Meet the specific requirements of the stream you are applying for (e.g., education, work experience, language proficiency)

The IEC program is very popular, and the spots fill up quickly. It is important to apply as early as possible to increase your chances of being selected.

Current State of Express Entry and What to Expect in 2025

On December 16, 2024, Immigration, Refugees and Citizenship Canada (“IRCC”) held its most recent draw of Express Entry profiles. Provincial Nominee Program candidates with a minimum Comprehensive Ranking System (“CRS”) score of 727 received invitations to apply for permanent residence. As this may be the final Express Entry draw for 2024, we look back at previous rounds of invitation for some insights on what to expect in 2025. IRCC has been conducting more targeted draws of eligible candidates in specific programs such as Canadian Experience Class and Provincial Nominee Program. The 2025 Immigration Levels Plan targets over 80,000 spots for the “In-Canada Focus” category under the Express Entry system. We have also seen targeted draws of eligible candidates in healthcare, trade, and other special occupations. In 2025, we can expect:

• More targeted draws of specific programs and occupations
• The CRS score cut-off to be above 500 for Canadian Experience Class applicants
• The CRS score cut-off to be above 690 for Provincial Nominee Program applicants
• Regular low-CRS-score draws of applicants with French language proficiency
• More draws targeting candidates who are already living in Canada

If you are interested in increasing your CRS score, we recommend the following:

• Improve your official language scores
• Discuss obtaining a provincial nomination or closed work permit with your HR and Brown Immigration attorney
• Consider obtaining a post-secondary education in Canada

Please contact your Brown Immigration attorney if you are interested in learning more about the Express Entry program and your eligibility for obtaining Canadian permanent residence.

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NEW LEARNING OPPORTUNITIES

CALLING ALL BUSINESS IMMIGRATION CLIENTS – What to Expect During Trump’s Second Term

With less than two weeks until inauguration, many pressing questions remain about Trump’s return to office. Will there be mass deportations? Will a Muslim ban be implemented? What will happen to H-1Bs and other Non-immigrant Visas? Are we likely to see a change in Green Card policy? Or visa delays and travel disruptions?

Join Managing Partner and Founder, David Zaritzky Brown, as he addresses these critical concerns regarding Trump’s upcoming second inauguration and how these anticipated changes will affect our clients and their employees so that attendees can plan accordingly now! As always, David will take questions from attendees and ensure he has time to answer specific questions. Don’t miss this opportunity to gain critical insights and prepare effectively for the future of immigration in the United States.

*This webinar is offering SHRM Professional Development Credit.

H-1B Cap Insights: Preparing for the Upcoming Lottery

As we welcome 2025, it’s time to gear up for the new 2025 H-1B lottery selection! Join us for an informative webinar designed to answer all your H-1B Cap lottery questions and help you navigate the H-1B cap season with confidence. We’ll cover who should be included, how the H-1B process works, and specifics about the Cap selection. David Brown, our Managing Partner, will provide insights on deadlines, timing, and how the H-1B selection integrates into the petition process. Additionally, David will discuss strategies for dealing with the H-1B Cap gap and contingency planning for those not selected. As always David will stay on to answer any questions that arise related to planning for the Cap.

*This webinar is offering SHRM Professional Development Credit.

Contingency Planning for H-1B Cap Filing

This program will start with a quick recap on what to expect from the H-1B Cap lottery process and then move into the core program of contingency planning. Every year individuals who attempt the H-1B lottery are presented with the challenge of maintaining work eligibility if not selected. This session will delve into effective contingency planning for your foreign national workforce, including options for staying in the U.S. or temporarily relocating elsewhere. This webinar hosted by Managing Partner, David Zaritzky Brown, will discuss all contingency plans, including options in Canada.

*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 **