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 d effective immigration and global mobility support. Please find this month’s business immigration news below.

U.S. BUSINESS IMMIGRATION UPDATES

FY 2025 H-1B Cap Lottery – Registration and Important Reminders

As we have previously reported, USCIS announced that the initial registration period for the FY 2025 H-1B cap will “open at noon Eastern on March 6, 2024, and run through noon Eastern on March 22, 2024.” Notably, the registration fee during the registration period starting in March 2024 will remain $10 but increase to $215 starting next year’s lottery in 2025 for FY 2026. Because of this dramatic increase in cost, we recommend our clients register as many employees as possible into this year’s lottery to take advantage of the $10 fee while applicable.

Until the close of the current FY 2025 H-1B cap registration period on March 22, 2024 (noon EST), our team will be evaluating each case to ensure eligibility to participate in the H-1B cap lottery. As such, we recommend clients to notify their BIL attorney of H-1B cap registrants as soon as possible to ensure qualification and timely registration into the H-1B cap lottery. For more information on the H-1B Cap Season, we encourage you to review our H-1B Cap Memo for a detailed understanding of the lottery system and what to expect going forward. We will continue to monitor developments and will be updating our Resources page with latest news alerts and upcoming webinars on the topic as updates materialize.

USCIS Fee Increase – Updates Included!

As we reported previously, USCIS released a final rule for fee increases, effective April 1, 2024. We reported on an initial list of the fees available, and we now provide an update on the finalized list of fees. There are notable updates below and we provide the following overall changes as well:

• Starting April 1, the timeline for premium processing will change from calendar days to business days.
• USCIS will release new editions of form I-129 and I-140, required for all filings received on/after April 1 (no grace period applicable).
• There are no changes to the ACWIA (aka Education and Training fee) or Fraud Fee amounts; these fees still apply for certain H-1B and L-1 filings, as noted below.
• Notable Updates to the Previously Reported Fees:
  • Asylum Program Fee: All petitioners (except non-profits) will be required to pay this fee for I-129 and I-140 petitions.
  • Updated fees for EAD/AP applications (with the same applying to renewals). Note that applicants who file I-485 before April 1, 2024 may continue to renew their EAD/AP at no cost while the AOS remains pending.
  • Reduced filing fees for small companies and nonprofits.
    • A small company is defined as companies with 25 of fewer full-time employees in the United States, including affiliates and subsidiaries.
  • Slightly reduced fees for online filing; however, please note: it remains advantageous to file by paper, as the online platform provided by USCIS for digital filing has yet to introduce any APIs or other features to ensure a seamless process. We have also been made aware of the platform experiencing many issues and bugs, such as not being able to retrieve previously submitting filings.

Please see the table of relevant fee changes below:

A full schedule of the fees may be found at the Federal Register update, HERE.

We will continue to monitor for any updates to the fee schedule as they become available.

USCIS Updates Policy Manual Guidance Regarding Untimely Filed Extensions

On January 24, 2024, USCIS announced an update to its Policy Manual providing the agency, in their discretion and under certain conditions, may excuse a nonimmigrant’s failure to timely file an extension of stay or change of status request if the delay was due to “extraordinary circumstances” beyond the control of the applicant or petitioner. The update goes on to clarify that “extraordinary circumstances” may include but are not limited to a delay caused by a slowdown or stoppage of work involving a strike, lockout, or other labor dispute; or the primary reason for the late filing was due to a lapse in government funding supporting those adjudications.

In general, USCIS does not approve an extension of stay or change of status for a person who failed to maintain the previously accorded status or where such status expired before the filing date of the application or petition. If certain conditions are met, however, USCIS, in its discretion, may excuse the failure to file before the period of authorized stay expired.

This guidance, contained in Volume 2 of the Policy Manual, became effective January 24, 2024, and applies prospectively to applications or petitions filed on or after that date. For more information about this update, please see USCIS’s Policy Alert and/or Volume 2, Part A, Chapter 4 of the USCIS Policy Manual.

Mayorkas Impeachment Update

On February 13, 2024, the U.S. House of Representatives voted to impeach Homeland Security Secretary Alejandro Mayorkas by a vote of 214-213. Secretary Mayorkas faced two articles of impeachment for allegedly willfully and systematically refusing to enforce existing immigration laws and allegedly breaching the public trust. Secretary Mayorkas is the first sitting Cabinet secretary to be impeached by Congress. The Articles of Impeachment will now be sent to the U.S. Senate for a trial. Senate Majority Leader Chuck Schumer has stated the trial will begin after senators return to Washington, D.C. on February 26, but the rules and procedures of the trial remain to be an open question. Unfortunately this political theater detracts from the real issues of the day, including meaningful immigration reform.

We will continue to monitor for updates.

Supreme Court to Hear Case Involving Consular Non-reviewability – Department of State v. Muñoz

On January 12, 2024, the United States Supreme Court granted the U.S. federal government’s petition for a writ of certiorari in case number 23-334, Department of State (DOS) v. Muñoz. The questions presented in the case focus on whether a consular officer’s refusal of an immigrant visa to a U.S. citizen’s spouse impinges upon a constitutionally protected interest of the citizen. Please see below for a high-level summary of the case:

• Immigrant visa application denied for spouse of U.S. citizen.
• Applicant and spouse sought judicial review of government’s decision and challenged the doctrine of consular non-reviewability as unconstitutionally vague.
• District court granted summary judgment for the government – concluding that they were entitled to invoke the doctrine of consular non-reviewability to shield its decision for judicial review.
• Court of Appeals reversed, holding that the government failed to provide the constitutionally required notice within a reasonable time period following the visa application denial.
• U.S. Supreme Court granted writ of certiorari on the following questions:
  • 1) whether a consular officer’s refusal of an immigrant visa to a U.S. citizen’s noncitizen spouse impinges upon a constitutionally protected interest of the citizen; and
  • 2) Whether, if such a constitutional interest exists, notifying an immigrant visa applicant that he was deemed inadmissible under 8 U.S.C. 1182(a)(3)(A)(ii) suffices to provide that any process that is due.

The doctrine of consular non-reviewability means that courts cannot ordinarily review decisions made by Consular Officers, as long as the decision was “facially legitimate and bona fide” See Kleindienst v. Mandel, 408 U.S. 753, 770, 92 S.Ct. 2576, 33 L.Ed.2d 683 (1972); Kerry v. Din, 576 U.S. 86, 105, 135 S.Ct. 2128, 192 L.Ed.2d 183 (2015); Khachatryan v. Blinken, 4 F.4th 841, 849 (9th Cir. 2021)). Under the Immigration and Nationality Act (INA), the decision to grant or deny a visa application rests with a consular officer at the Department of State (see INA, 8 U.S.C. 1101). Under 8 U.S.C. 1182(a)(3)(A)(ii), any noncitizen whom a consular officer “knows, or has reasonable ground to believe, seeks to enter the United States to engage solely, principally, or incidentally in *** unlawful activity” is ineligible to receive a visa or be admitted to the United States.

These issues are incredibly important in practice, as many times, practitioners have limited tools available to contact the consulate if a case is delayed or otherwise denied. As such, we will continue to monitor the case and provide updates as they become available.

March Visa Bulletin

The March Visa Bulletin has been released. For employment-based adjustment of status applicants, USCIS has confirmed that it will only accept applications current under the “Final Action Dates” chart, which is a notable change from the previous months, where USCIS accepted the “Dates for Filing” chart. Generally, the visa bulletin remained substantially similar to the February visa bulletin, with little movement to report (final action dates for EB-1 dates candidates from India and China moved forward for a month to Oct. 1, 2020, and two weeks to Jul. 15, 2022, respectively, and dates for EB-2 and EB-3 candidates from Mexico, Philippines, and all other countries moved forward for 7 days).

CANADIAN BUSINESS IMMIGRATION UPDATES

Changes to Canada’s International Student Program

Over the past few months, IRCC has implemented several significant changes to the International Student Program. Most notably, the 2024 cap for the program is expected to result in approximately 360,000 approved study permits, which is a decrease of 35% from 2023. Individual provincial and territorial student caps have also been established, weighted by population. The IRCC has offered the following additional details and clarifications on the changes:

• Provincial Attestation Letter Requirement: most applicants for post-secondary study permits and for non-degree granting graduate programs (e.g., certificate programs and graduate diplomas) will be required to provide a provincial attestation letter (PAL) with their study permit application to ensure that they have been accounted for under a specific provincial or territorial allocation within the national cap. Exceptions to the PAL requirement include primary and secondary school students, master’s or doctoral degree students, visiting or exchange students, in-Canada study permit and work permit holders, and in-Canada family members of study permit or work permit holders.
• Longer Post-Graduation Work Permit (PGWP) available for graduates of master’s programs: As of February 15, 2024, graduates of a master’s degree program that is less than 2 years, and who meet all other PGWP eligibility criteria, will be eligible for a longer, 3-year PGWP. The length of PGWPs available for programs other than master’s degrees will remain consistent, aligning with the length of the specific study program for up to a maximum of 3 years.
• Changes to Open Work Permit eligibility for spouses: spouses and common law partners of international students in undergraduate and college programs will no longer be eligible for an open work permit by virtue of this stream unless they already hold such an open work permit. Only spouses and common-law partners of students in graduate and professional degree-granting programs will be eligible for the Open Spousal Work Permit under this stream.
• End of PGWP eligibility for Public-Private college partnership arrangements: In these public-private college partnerships, students physically attend a private college but receive a diploma from the public partner college upon graduation. Going forward, new students enrolling in these partnership programs will not be eligible for a post-graduation work permit. International students who are currently enrolled in such a program will remain eligible for a PGWP so long as they satisfy other PGWP requirements.

The impact of these changes will be to restrict the availability of pathways for study permits and post graduate work permits, while also offering some beneficial adjustments to the PGWPs available for graduates of master’s degree programs and their spouses or common law partners.

Express Entry- Monthly Summary

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.

Since January 23, Canada issued 13,910 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 Agriculture and agri-food occupations, inviting 150 Express Entry candidates; the cut-off score was 437.
• IRCC held one targeted draw for individuals in certain Healthcare occupations, inviting 3,500 Express Entry candidates; the cut-off score was 422.
• IRCC held one targeted draws for individuals with French language proficiency, inviting 7,000 Express Entry candidates; the cut-off score was 365.
• IRCC also held three general draws inviting 3,260 Express Entry candidates; the cut-off scores were 535, 541, and 543 respectively.

If you have any questions about Express Entry, Permanent Residency, or any Canadian immigration programs, please contact your Brown Immigration Law attorney to schedule a consultation.

Developments Respecting Canadian Citizenship Act’s Second-Generation Cut-Off (Bjorkquist et al. v. Attorney General of Canada)

In late 2023, the Ontario Superior Court decided in Bjorkquist et al. v. Attorney General of Canada that the second-generation cut-off rule for Canadian citizenship is unconstitutional and will not take effect. The second-generation cut-off rule prohibited foreign born Canadians who acquired citizenship by birth from passing their citizenship on if their children are also born abroad. The Canadian federal government has not appealed the Ontario Superior Court’s filing, meaning eligibility for Canadian citizenship has reverted back to the long-standing provision of citizenship by descent. Any person born outside Canada, who at the time of birth has a Canadian parent, other than an adoptive parent, is a Canadian citizen. If you have any questions about your eligibility for Canadian citizenship, please contact your Brown Immigration Law attorney to schedule a consultation.

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NEW LEARNING OPPORTUNITIES

H-1B Cap Season for Employees – What to Expect

This webinar covers in more detail the issues that affect foreign born employees going through the Cap registration process. During this discussion David will walk H-1B Cap registering employees through the process. He will also drill down into spring/summer travel and timing issues related to Cap filing, contingency planning and likelihood of success in the lottery. To make this process more relatable, David will walk through a variety of common scenarios we encounter every year to help individuals with more complex issues to better understand their processing options. In addition to the planned topic, David will spend time answering specific questions from individuals who are both concerned about what happens if selected and what happens if not selected in the Cap registration lottery.

Key Immigration Updates

In an area of continuous change, Managing Partner, David Zaritzky Brown, will bring you up to speed on recent shifts in immigration policy and practice. He will also highlight some of the things we still expect to see this year so you can plan accordingly. David will explain how those shifts have shaped current practice and how employers can take better advantage of new ways to manage the U.S. immigration process. This session captures the essence of the famous business phrase, “change or die”, as David reflects on some of the adjustments made in internal USCIS policy. Attending this webinar will help ground you in the key changes that affect business immigration processing. It will also prepare you to better plan your policies and think about the future in workforce planning. As always, David will provide ample time to ask questions about what’s next on the horizon.

Back Up Options for Those Who Don’t Make the Cap Registration – U.S. Options

Unfortunately every year we deal with multiple cases involving individuals who don’t get accepted into the H-1B Cap and it is important to have a back up plan for your lawful status. David will speak in depth about the options available to individuals who have not been accepted. Don’t miss this important talk to better understand the options available to stay in the U.S.

[Spoiler – many of these options are options regardless of an individual’s situation and so can be used by many others who aren’t in this situation. Ultimately this is a good primer on visa options available to individuals who are running out of time/may need a new status to rely on.]

Coming to America – a Quick Visa Primer

This session is intended for companies considering a move into the U.S. market (and can also be helpful to visa novices who want to better understand certain visa classifications).

Join us as David leverages his 25+ years of experience with thousands of such cases to highlight the options available for companies seeking to open operations in the U.S. David will cover common visa types such as the L-1, E-1, E-2, E-3, TN, IEP, and O-1 as he explains the various utilities for these visas in the context of new U.S. operations. In addition to outlining the various options, David will provide a few case studies to highlight how he typically works through the process of helping determine the best visa option for the initial management team. He’ll also touch on L-1 Blanket approvals and future green card aspirations for newly formed U.S. companies. As always, David is open for a question and answer period following the presentation. Come join David for this session and you’ll already be well ahead of the curve when you commit to starting U.S. operations.

*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 **