Immigration News – January 2023

News RoomJanuary 13, 20230

Immigration News – January 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. As always we are providing the most recent information on H-1B Cap Season through wide variety of free webinars.

We are wishing everyone a wonderful start to 2023!

U.S. BUSINESS IMMIGRATION UPDATES

USCIS Fee Increases Planned – Submit Your Comments Soon!

As reported by the National Law Review, USCIS issued a Proposed Rule to increase filing fees for many applications, especially employment-based filings. A summary of the proposed increases are below:

  • the H-1B lottery registration fee increasing from $10 to $215,
  • the intracompany transfer I-129 L filing fee more than tripling from $460 to $1,385,
  • the specialized knowledge worker I-129 H-1 filing fee increasing from $460 to $780,
  • the seasonal worker I-129 H-2B filing fee more than doubling from $460 to $1,080,
  • the extraordinary ability I-129 O filing fee also more than doubling from $460 to $1,055,
  • the nonimmigrant investor I-526 filing fee rising from $3,675 to $11,160,
  • the immigrant removal of conditions of investor I-829 filing fee increasing from $3,835 to $9,525, and
  • the I-485 Adjustment of Status (green card application) filed with the I-765 Employment Authorization Document and I-131 Advance Parole (travel authorization) filing fee increasing from $1,225 to $2,820.

Outside of the employment-based context, the proposed increases are the following:

  • the green card for a family member I-130 filing fee raising from $535 to $820,
  • the fiancé(e) I-129 application filing fee growing from $535 to $720,
  • the petition to remove conditions from green card status I-751 filing fee climbing from $595 to $1,195,
  • the stand-alone Employment Authorization Document I-765 filing fee increasing from $410 to $650 for paper filings,
  • the request to change or extend nonimmigrant status (without biometrics) I-539 filing fee increasing from $370 to $620 for paper filings, and
  • the genealogy records request online filing fee more than tripling from $65 to $240.

USCIS’s summary notes, “New measures include a proposal to incorporate biometrics costs into the main benefit fee and remove the separate biometric services fee; establish separate fees for each nonimmigrant classification covered by Form I-129, Petition for a Nonimmigrant Workers; change the premium processing timeframe from 15 calendar days to 15 business days; and institute lower fees for certain forms filed online. The proposed rule would not change fee waiver eligibility requirements. The projected revenues resulting from the proposed rule would allow USCIS to increase the number of adjudicators processing applications, implement technology improvements, and increase support provided to individuals seeking information and assistance from USCIS.”

The increases to filing fees for employment-based filings are slated to support the asylum process in the proposed rule. USCIS hopes that these filing fee increases allow the agency to hire more staff and reduce processing times; notably, however, the history of USCIS does not match that goal. Historically, USCIS will state a need for funding to increase staff and reduce backlogs, but the inefficiencies continue with the backlog continuing to grow. As such, our firm expects to join with AILA submit a comment against the fee increases.

If you are interested in submitting a public comment regarding this rule change, USCIS notes: “The 60-day public comment period starts following publication of the NPRM in the Federal Register. Fees will not change until the final rule goes into effect, after the public has had the opportunity to comment and USCIS finalizes the fee schedule in response to such comments. USCIS will host a public engagement session on the proposed fee rule on January 11, 2023.”

USCIS Updates Form I-485, Application to Register Permanent Residence or Adjust Status

As of December 23, 2022, USCIS is now requiring a renewed version of Form I-485, Application to Register Permanent Residence or Adjust Status. The new version of Form I-485 stays primarily the same, with a few additional questions regarding the public charge ground of inadmissibility.
 
Your BIL attorneys will be reaching out if any additional information is needed for your Form I-485. Anticipating this update, we have already created a streamlined questionnaire to assist with the process. We will continue to watch for updates to forms across the board of USCIS filings, and as always, please contact your BIL attorney if you have any questions about this update or others.

USCIS Premium Processing Expansion

As announced by the Service, “…beginning January 30, 2023, the agency will begin accepting premium processing requests for new and previously filed Form I-140 petitions under an E13 multinational executive and manager classification or E21 classification as a member of professions with advanced degrees or exceptional ability seeking a national interest waiver (NIW). In March, USCIS will expand premium processing to certain F-1 students seeking Optional Practical Training (OPT) and STEM OPT extensions who have a pending Form I-75. In April, USCIS will expand premium processing to F-1 students seeking OPT and STEM OPT extensions who are filing an initial Form I-765.”

Please contact your BIL attorney if you have questions about upgrading your case to premium processing. We are currently taking inventory of our pending cases to suggest premium where applicable. 

China Based U.S. Consulates Temporarily Suspend Visa Services due to COVID-19 Surge

AILA and the Department of State report, “due to operational impacts caused by the surge of COVID-19 infections across China, all routine visa services at the U.S. embassy and consulates in China are temporarily suspended.”
The U.S. Mission China announced on December 15, 2022, that due to operational impacts caused by the surge of COVID-19 infections across China, all routine visa services at the U.S. embassy and consulates in China are temporarily suspended. 

Specifically:

  • U.S. Embassy Beijing and U.S. Consulate General Shanghai are providing passport and emergency citizen services only. 
  • U.S. Consulates General Wuhan, Shenyang, and Guangzhou will only be providing emergency consular services until further notice.

The announcement stated that some visa appointments previously scheduled at U.S. Consulate General Shanghai will be preserved, but all other NIV and IV appointments at the embassy and consulates in China have been canceled. Applicants will be contacted if their visa appointment is impacted.

Per Mission China, they are advising NIV applicants to reschedule their appointments for a later date by following the instructions. Immigrant visa applicants with questions are advised to contact the IV unit through its online form found here.
There is no indication of when visa services will resume. The DOS Liaison Committee will monitor the U.S. Mission China websites and social media outlets for further information.”

In addition, the CDC announced that, beginning January 5, 2023, all travelers two years and older boarding flights to the United States from China, Hong Kong, and Macau must show a negative COVID-19 test or documentation of recovery – this requirement expires once you’ve been out of China for at least 10 days.

We are monitoring visa appointment availability in China and other requirements as they are updated by the Department of State. Please contact your BIL attorney with any questions.

Respect for Marriage Act

On December 13, 2022, President Biden signed the Respect for Marriage Act into law. The Act federally protects same-sex and interracial marriages, also further codifying the requirement that states must recognize another state’s legal marriage. AILA President Jeremy McKinney notes, “Many mixed-nationality couples in the United States have obtained life-altering immigration benefits due to the constitutional right to marriage equality, and now those rights are here to stay.”

We applaud the passage of this legislation. After the Supreme Court’s Windsor decision, our firm was one of the first in the state of Nebraska to handle an I-130 and Adjustment of Status case for a same-sex couple. We were happy to see the case through to its approval, with Managing Partner David Brown personally attending the couples’ adjustment of status interview. We are equally happy that with this legislation important basic human rights remain protected.

64,716 Additional H-2B Visas Available for FY2023

AILA reports, “DHS and DOL released an advance copy of a temporary rule authorizing the issuance of up to 64,716 additional H-2B visas during FY2023 and providing temporary portability flexibility by allowing H-2B workers who are already in the United States to begin work immediately after an H-2B petition is received by USCIS and before it is approved. Of these visas, 44,716 are reserved for returning workers, and 20,000 are reserved for nationals of Guatemala, El Salvador, Honduras, or Haiti. The rule will be published in the Federal Register on December 15, 2022.” With its recent publication the added numbers create additional flexibility for what are in-demand temporary jobs.

ICMYI: 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.”
 
By automatically extending the validity of expiring Green Cards USCIS is saving many applicants significant filing fee expenses while also reducing the need for USCIS’s help. We hope this commonsense approach from USCIS will allow the agency to continue to work on priority cases and in reducing its backlog of cases. If you have any questions, please contact your BIL attorney.

DHS Tests Redesigned Naturalization (N-400) Test

Per a DHS notice published mid-December, the agency will begin trial testing of planned changes to the naturalization test. The trial is set to update both the civics portion and the English-speaking portion.
 
USCIS’s press release notes, “President Biden’s Executive Order 14012, Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans, includes a directive to review the naturalization process. In response, USCIS subject matter experts conducted reviews of the naturalization test and recommended redesigning the speaking and civics test to improve testing standards. The proposed revisions are consistent with the feedback that USCIS has received from multiple external stakeholder groups…The updates to the naturalization test that will be assessed during this trial are based on feedback from stakeholders about the standardization and structure of the naturalization test. USCIS will conduct the trial with the help of volunteer community-based organizations (CBOs) who work with immigrant English language learners and lawful permanent residents preparing for naturalization. USCIS will seek approximately 1,500 individuals enrolled in adult education classes to take the trial test.”

Department of State Extends Interview Waiver Policy To End of 2023

Through the end of 2023, DOS will continue its policy of waiving in-person visa interviews for certain non-immigrant classifications (F, H-1, H-2, H-3, H-4, J, L, M, O, P, and Q). 

Visa Bulletin

The Department of State has released the visa bulletin for February 2023.

Notably, EB-1 for China and India remain at February 1, 2022 on the Final Action Chart. EB-2 for all countries apart from India and China are at November 1, 2022, with EB-2 China remaining at June 8, 2019 and EB-2 India at October 8, 2011. For EB-3, worldwide remains current, and EB-3 China remaining at August 1, 2018, with EB-3 India at June 15, 2012.

CANADIAN BUSINESS IMMIGRATION UPDATES

Global Talent Stream’s List of Occupations Expanded

Effective December 22, 2022, The Government of Canada updated the list of occupations eligible under its Global Talent Stream program to include the following additional occupations:

  • Civil Engineers
  • Electrical and electronics engineer
  • Mining engineers
  • Aerospace engineers
  • Electrical and electronics engineering technologists and technicians

The Global Talent Stream of the Temporary Foreign Worker Program gives employers in the science, technology, engineering, mathematics and information technology industries a streamlined route to attract foreign nationals in the listed occupations. Additions to the list generally occur when there is a high demand but low supply of workers in a profession, while removals occur when there is low demand or a high supply of workers in a profession.

The addition of these new jobs to the list of eligible occupations opens the door for more companies to access the streamlined Global Talent pathway to hire foreign workers to fill these in-demand, highly skilled positions.

COVID-19 Pre-Boarding Test Requirements for Air Travel from China, Hong Kong and Macao

As of January 5, 2023, travelers arriving in Canada from China, Hong Kong or Macao must provide evidence of a negative COVID-19 test to the airline prior to boarding. The passengers are required to take the test within two days of their departure.

The test could be either a negative molecular test (such as PCR), or a negative antigen test that has documentation to show that it has been monitored in person or in real time through remote audiovisual means by the accredited laboratory or testing provider who provided the test to you.
The new travel restrictions regarding the testing are temporary and will be in place for the next 30 days.

Canada’s Ban on Foreign Home Buyers in Force

Canada’s Purchase of Residential Property by Non-Canadians Act (Act) came into force on January 1, 2023. It prohibits the purchase of residential property in Canada by non-Canadians unless they are exempted by the Act or its regulations, or the purchase is made in certain circumstances specified in the regulations.

Currently, work permit holders are exempt from this prohibition after, among other things, they have worked in Canada for a minimum period of three years within the four years preceding their purchase.

Note: This new legislation will remain in force for two years and is part of the government of Canada’s response to soaring housing prices across the country.


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 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 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 Zaritzky 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.

The Best Practices to Follow When Structuring a Reduction in Force (RIF)

Please join Managing Partner, David Zaritzky Brown, on February 2nd at 1:00 PM CST for a new round of webinar learning (rebroadcast with updates) on the issue of RIFs. As we have witnessed changes in capital markets and financial forecasting and seen the decline in certain industries more of our clients have had to grapple with the unfortunate decision to reduce headcount. Having seen both good and bad markets, David has counselled clients extensively on the best practices to follow when structuring a reduction in force (RIF). In this webinar David will discuss the impact a lay-off has on status and green card processing. He will walk through the benefits you can offer employees in this unfortunate and unexpected situation. 

After he goes over the major RIF related issues in the first 30 minutes, David will stay on for a generous Q&A time to provide answers to interested HR/Management attendees.

H-1B Cap Season for Employers/HR Managers

As employers are finalizing lists for cap season and are worried about what they can expect, David Zaritzky Brown, Managing Partner, will walk through our expectations for Cap season and the likelihood of success in getting selected. David will highlight the firm’s approach to Cap season and how we sync with employers. David will also discuss contingency planning from an employer’s perspective and options that exist for individuals hitting their work authorized limit.

As always, David will ensure there is additional time to ask questions and leave with the answers you need to manage your program. 

H-1B Cap Season for Employees

With cap season a month away this session will cover in more detail the issues that affect foreign born employees going through the Cap process. 

With discussion lead by David Zaritzky Brown, Managing Partner, he’ll drill down into travel and timing issues, contingency planning and likelihood of success in the lottery. 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. And ultimately he’ll spend time answering specific questions from individuals who are concerned about what happens if selected and what happens if not selected in the lottery.

The Great Canadian Option, Eh

As a follow-up to our December and January discussions concerning 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, join us for a deeper dive into Canada’s immigration system and its benefits as a more progressive skilled worker destination.
 
Join Supervising Attorneys Mason Ellis and Clinton Green (Canadian Practice Lead) to learn about the different immigration options for hiring workers in Canada and key recruitment strategies for starting operations or scaling existing operations in Canada quickly. Furthermore, as most workers can transition to permanent resident status within two years of entering Canada – we will highlight how Brown Immigration Law supports businesses to achieve this goal.

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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