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.

In our first edition of our News Alert for 2024 we send wishes for a wonderful 2024! With the start of a new year one of the first orders of business for U.S. companies hiring foreign talent is the H-1B lottery, and in addition to the below updates and information we will share over the coming weeks, be sure to join our webinars tailored to HR/Management, and employees alike – the first of which is tomorrow (Thursday January 18th at 1pm CST). Details are found HERE.

U.S. BUSINESS IMMIGRATION UPDATES

USCIS to Launch Organizational Accounts for Non-Cap Filings and the Fiscal Year (FY) 2025 H-1B Cap Season

On Friday, January 12, 2024, USCIS published an announcement confirming its plans to launch organizational accounts for non-cap filings and the upcoming FY 2025 cap season. With an expected launch in February 2024, USCIS notes that “the introduction of organizational accounts will allow multiple individuals within an organization, such as a company or other business entity, and their legal representatives to collaborate on and prepare H-1B registrations.” After the February launch, USCIS anticipates it will commence online filing for forms I-129 and I-907.

While the potential of online filing is an exciting prospect USCIS has released limited information on the workings of the program, and promises updates later this month for both law firms and employers. Unfortunately at this time it appears the system does not yet integrate with any of the publicly available technology that law firms utilize to manage this workflow, thus all drafting would need to be completed on the USCIS system. We will of course  attend USCIS’s learning sessions and provide updates as they become available. We welcome technological advances to streamline and modernize the U.S. immigration system and hope that these updates from USCIS will ultimately lead to enhanced efficiency, further streamlining the H-1B and other processes as applicable.

ICYMI: State Side Visa Renewal Program Begins January 29, 2024 for Certain H-1B Holders – Important Details Below

In a notice published in the Federal Register December 21, 2023, the Department of State announced the beginning of the state-side visa renewal pilot program for a limited pool of H-1B holders. The pilot program will run from January 29, 2024 to April 1, 2024 with a total of 20,000 slots available for the pilot program.
 
To qualify for the pilot program, very specific criteria must be met:

• Applicant is seeking an H-1B visa
  • H4’s are not included in the pilot phase, limited to only H-1Bs.
• Must hold a previous H-1B visa from Mission Canada or Mission India with specific dates:
  • Prior H-1B visa that is being renewed was issued by Mission Canada with an issuance date from January 1, 2020, through April 1, 2023;
  • or by Mission India with an issuance date of February 1, 2021, through September 30, 2021
• Not subject to nonimmigrant visa issuance fee (reciprocity fee; information here)
• Eligible for waiver of in-person interview requirement (information here)
• Previously submitted ten fingerprints to the DOS in connection with a previous visa application.
• No “clearance received” annotation on a prior visa stamp.
• No waiver required for issuance of visa due to inadmissibility or other limiting factor.
• Hold an approved and unexpired H-1B petition.
• Most recently admitted to the U.S. in H-1B status.
• Period of authorized admission in H-1B status has not expired.
• Intend to re-enter the United States in H-1B status after a temporary period abroad; and
• Must reside in the United States.

The Department of State has indicated that their pilot program is limited to Canada and India because they believe this population will be representative to determine whether the program will work. Participation in this program is voluntary and applicants may continue to pursue overseas visa applications if urgent travel arises, but fees paid will not be refunded. Additionally, the DOS reserves the right to request additional information during the state side visa issuance process.
 
On the below noted dates, the Department of State will open up this website HERE for entries into the pilot program. Each week, the department of state will accept a total of 4,000 – 2,000 from Mission India and 2,000 from Mission Canada. The Dates are as follows:

• 01/29/2024
• 02/05/2024
• 02/12/2024
• 02/19/2024
• 02/26/2024

To verify the information on your most recent H-1B visa, please review the below example. In the top left corner, under ‘Issuing Post Name’ the visa sticker will list the location which last issued your visa. The issuance date is also highlighted below. To qualify, this must be a location in India or Canada, issued within the above noted dates.

If you believe you may qualify for this program, please contact your BIL attorney as soon as possible for an assessment and further detailed instructions. The website will lock each week after the requisite number of slots (4,000) have been filed.
 
We welcome this program from the Department of State and hope that the pilot is successful to permit expanded visa types in the program for the future. We will continue to monitor and provide updates as they become available.

USCIS Confirms F-1 Students May Pursue Labor Certification (PERM) in Policy Update

This month, USCIS updated its policy guidance to merge and confirm many aspects of maintenance of status and overall benefit eligibility for nonimmigrant F and M students. Primarily, the updates were two-fold. First, the guidance clarifies the regulations for an individual working with a start-up company on STEM OPT. The update confirms that as long as a company can guarantee at least 20 hours of weekly work and following the other regulations, such as E-Verify enrollment, its existence as a start-up company alone is not prohibitive for the purposes of a worker pursuing employment with the company under the STEM OPT extension.

Second, the policy guidance confirms that F and M individuals can undergo the PERM labor certification process, in addition to an immigrant visa petition. There has always existed some measure of doubt or concern about an F-1 students’ ability to undergo the PERM labor certification process; this update eliminates that doubt and aligns with what our practice at BIL has always been. The F-1 student must continue to maintain their ties to their home country (including maintaining an address abroad), however, the nature of the F-1 being a temporary intent classification does not prohibit an F-1 student from being sponsored for the PERM labor certification process in addition to being the Beneficiary of an immigrant visa petition.

Practically speaking, this update confirms that an individual in F or M status undergoing the PERM labor certification process may continue to extend their visas abroad throughout the PERM process. Finally, it is important to note that for an F-1 or M student who has reached the point in the process where they are able to file their I-485 and adjust their status, the filing of the I-485 is a formal expression of immigrant intent inconsistent with F and M status, and the student will be unable to extend their F or M status after filing the I-485, however at that point in the process the end result is U.S. permanent residence and future F or M visas are no longer a concern.

If you are interested in pursuing a PERM process for an F or M student, or currently hold F or M status and would like to seek more understanding about this update, please contact your BIL attorney. Notably, all consular officers and CBP officials have different levels of understanding and training under the regulations, and as such, being prepared to answer the questions that may come up during the interview or upon re-entry to the United States is very important. Your BIL attorney can assist you in this preparation in addition to the PERM and immigrant visa processes themselves.

DOS Indefinitely Extends Nonimmigrant Visa Interview Waivers

On December 21, 2023, the Department o f State announced that its discretionary nonimmigrant visa waiver program would continue indefinitely beginning January 1, 2024, with an annual review process. If an individual applicant has been previously issued a nonimmigrant visa (non-B1B2), is applying for renewal within 48 months of their most recent visa’s expiration, applying in their home country, with no previous refusals nor other potential ineligibility, then the waiver of the interview should apply to their visa application. The new policy excludes using a previous visitor visa for waiver eligibility in addition to solidifying the 48-month cutoff date. Additionally, the waiver remains discretionary, meaning the consulate can require an interview if it deems an appointment necessary. You can find more here about the DOS announcement.
 
The interview waiver has been a definite time saver for consular staff and has helped Department of State to make inroads in reducing backlogs for visa interviews, so the program has been working as intended. The only negative comment is that in many cases, mailing in or dropping off visa application materials typically involves a longer processing time-frame vs. in-person appointments, so an obvious hope is that as Department of State further refines their process, they find a way to speed up the interview waived applicant processing so it is on par with interviewed applicants. As legislators begin to introduce new measures to codify this policy and others to decrease visa appointment backlogs, we will continue to monitor and report on updates.

Premium Processing Fee Increase – We Encourage Filing before February 26, 2024 to Avoid this Increase!

Near the end of December, USCIS published an update that the agency plans to increase the fee for its premium processing service, effect February 26, 2024. Please see the below chart highlighting the fee increases for the premium processing service. We encourage our clients to file their cases before this increase to take advantage of the lower fees while possible.

In addition to these changes to Premium Processing fees know that USCIS is seeking additional increases in all other filing types later this year. We will continue to monitor and update with any fee changes from USCIS.

DOL seeks to revise Schedule A of the permanent labor certification (PERM) process

The Department of Labor is considering revisions to Schedule A of the PERM process to include STEM and other non-STEM occupations. For certain occupations, DOL has predetermined there are not sufficient U.S. workers who are able, willing, qualified, and available. These occupations are referred to as Schedule A occupations. The DOL has published a Request for Information on December 21, 2023, for the public to provide input and comment so that DOL may establish a reliable, objective, and transparent methodology for revising Schedule A. Once implemented, employers looking to fill STEM and non-STEM occupations in the expanded Schedule A will not be required to conduct any recruitment. This revision represents the administration’s effort to allow more highly skilled immigrants to stay and work in the U.S. and could reduce the need for foreign nationals to seek other immigrant petition options such as a National Interest Waiver.

This is a very positive first step in helping to streamline the permanent resident process for highly skilled workers who support our critical knowledge industries. We will continue to update our readers as this progresses through policy development to reality.

Please Remember to Check Your I-94 Record Every Time You Return to the U.S. From International Travel

Form I-94 is a foreign national’s lawful record of admission. Every time a foreign national enters the U.S., their online Form I-94 record is updated to reflect their admitted status and the duration of admission. In recent months, clients have reported an uptick of errors on their I-94 record made by Customs & Border Protection. We remind clients to check their I-94 records online HERE as soon as they enter the U.S. and seek to rectify any mistakes at the CBP deferred inspection sites at all major international airports.
 
If you notice an error on your I-94 record, please contact your BIL attorney ASAP for instructions on updating the record, which may include contacting CBP deferred inspection.

Reminder on Address Changes

If you or your employee is a foreign national living in the U.S. under a valid non-immigrant status, please contact your BIL attorney if there is a planned move in either work site or residential address. This is very important as many non-immigrant statuses are location specific, and changing your residential address (or work site address) may require an amendment of your current status before you move to maintain lawful status – this is an area where USCIS has increasingly focused and the most recent regulatory proposals seek to codify advance notice as key to maintenance of status. In addition, all noncitizens (except A and G visa holders and visa waiver visitors) in the U.S. must report changes in residential address to the USCIS within 10 days of moving.

There are two ways you can report a residential address change: 1. you can change your address with USCIS through your online account, or 2. by filing a paper AR-11 (Alien’s Change of Address Card). The filing address can be found in the AR-11 form. We strongly recommend that you file your address through your USCIS online account. Please find the instructions on How to Create a USCIS Online Account HERE if you have not already obtained one.

Contact your Brown Immigration Law attorney with any questions.

CANADIAN BUSINESS IMMIGRATION UPDATES

Support for Israelis, Palestinians, and Family Members of Canadians and Permanent Residents from the Region

In recent years, Canada has implemented several temporary immigration initiatives to aid those affected by global humanitarian crises, including the conflicts in Ukraine, Iran’s political situation, and earthquakes in Turkey and Syria.

Notably, last week, Canada introduced additional immigration measures to support individuals impacted by the crisis in Gaza.

As part of its commitment to assist immediate family members of Canadian citizens and permanent residents from the region,

as well as Israelis and Palestinians already in Canada, Canada has introduced three distinct programs:

1. Israeli and Palestinian passport holders currently in Canada with valid temporary resident status can now apply for fee-exempt study or open work permits, valid for up to three years. The application deadline is June 12, 2024.
2. Immediate family members (spouse, common-law partner, dependent children, or dependent grandchildren) of Canadian citizens or permanent residents who left Israel or the Palestinian Territories on or after October 7, 2023, and are in Canada with valid temporary resident status, can apply for fee-exempt study or open work permits. The permits are valid for up to three years, with an application deadline of June 12, 2024.
3. From January 9, 2024, foreign nationals in Gaza, who are extended family members of Canadian citizens and permanent residents, can apply for Temporary Resident Visas to come to Canada. There is a cap of 1,000 applications, and individuals need to meet admissibility and eligibility requirements.

Furthermore, the processing of all existing and new permanent residence applications for Palestinians within family-based streams will be given priority.

Immigration Pathway for People Affected by the Conflict in Sudan

In addition to the humanitarian efforts related to Gaza, the government also announced efforts related to support those impacted by the armed conflict in Sudan. To continue supporting those affected by the conflict since April 15, 2023, Canada will launch a family-based humanitarian permanent residence program starting February 27, 2024. Sudanese and non-Sudanese nationals who meet specific criteria, including being close relatives of Canadian citizens or permanent residents, can apply for permanent residence in Canada. The program will end either one year after its inception or after processing 3,250 applications (principal applicants), whichever comes first. Temporary measures for Sudanese nationals in Canada seeking study permits or open work permits have also been extended to October 27, 2024.

For a personalized discussion on eligibility for any of these programs, please contact your Brow Immigration Law attorney.

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.

Over the last four weeks, Canada issued 4,905 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 Trade occupations, inviting 1,000 Express Entry candidates; the cut-off score was 425.
• IRCC held its first targeted draws for individuals in certain Transport occupations, inviting 670 Express Entry candidates; the cut-off score was 435.
• IRCC held its first targeted draws for individuals in certain Agriculture and Agri-Food occupations, inviting 400 Express Entry candidates; the cut-off score was 386.
• IRCC also held two general draws inviting 2,835 Express Entry candidates; the cut-off scores were 542 and 546 respectively.

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

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NEW LEARNING OPPORTUNITIES

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 **