News RoomJanuary 21, 20250

Immigration News – January 2025

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.

U.S. BUSINESS IMMIGRATION UPDATES

Trump Administration Takes Immediate Action on Immigration and Other Issues By Executive Order

President Trump and his representatives had promised over a hundred executive actions on day 1, and a review of the Whitehouse.gov website confirms nearly 50 such orders confirmed as of early this morning. As a law firm created and managed with a fidelity and reverence for the rule of law it was striking to find that he pardoned or commuted the sentences of individuals who committed acts of violence against police and federal officials while attempting to prevent the Congress from discharging its duty on January 6, 2021 to recognize the lawful election of Joe Biden. Such actions do not demonstrate respect for the rule of law or a society based on such rules, and it underscores the concerns we have about how the prior Trump Administration conducted its immigration policy. We will be paying close attention to any new policies and will vigorously support and advocate for our clients.

In addition to that shameful executive order, there were a number of executive orders related to immigration policies. We have not yet seen a “Muslim Ban”, but he has declared an “invasion” at the southern border as a pretext to mobilize the National Guard and armed forces as needed to prevent further entry. He has put a pause on refugee admissions and ended the CBP one app that was credited with reducing the number of asylum applicants at the southern border. One order cancelled 78 of President Biden’s executive orders, including several on immigration, most notably for our clients was the end of the executive order on AI, and the support of foreign workers in critical and emerging technologies. A hiring freeze has been declared for the next 90 days, as was a required complete stop on introducing new regulations in process with all government agencies. There is a directive to remove criminal aliens, and a directive to return to the process of registering foreign nationals under legacy law. That particular section of the U.S. Code is written to be interpreted and applied by the Department of Homeland Security and as a result we have to wait until DHS provides further clarity on who the order pertains to. If such an order is meant for all individuals in the U.S. in a Non-immigrant, temporary, or permanent status the immigration bureaucracy cannot feasibly handle such volume. The advent of registration is an obvious effort to criminalize undocumented populations as those in the U.S. lacking status will not register and will be charged criminally.

We do expect that many of the announced changes will be challenged in court, especially those with the most impact and limited constitutional support such as the attempt to end birthright citizenship (reportedly the ACLU along with a number of other groups has already filed suit). Here is a list of the immigration related executive orders and they are available for your review on the Presidential Actions page.

Declaring a National Emergency at the Southern Border
Deploying U.S. Troops to the Border
Designating Certain International Cartels as Terrorist Organizations
Reinstating the “Remain in Mexico” Policy
Ending Birthright Citizenship for Certain Children
Suspending the U.S Refugee Admissions Program
Declaring and Stopping What the Administration Calls an Invasion
Cancelling 78 of President Biden’s Executive Orders, including 7 with an Immigration Impact

Key takeaways that impact our clients are limited at this time. There are no travel restrictions specified, or restrictions to the visa categories we file daily, nor have there been any policy changes related to green card processing. While the Biden Administration’s Executive Order related to AI has been rescinded, any work done in support of the order remains. Its rescission suggests no more positive movement in this area. While we are concerned about the chilling effect of these orders and the harm they will bring to immigrant communities, we do not have any information that immediately changes how we advocate for our existing clientele.

We’ll continue to monitor and report on any changes that impact our clients. We will also be holding a Webinar on February 20, 2025, to explain the impact of all new immigration orders on our clients

2025 H-1B (FY 2026) Cap Season Overview

We are quickly approaching the start of the FY 2026 H-1B Cap season, with the H-1B cap lottery registration period set to likely open in the first few weeks of March (not yet officially confirmed). As we get closer to the registration period, we recommend that employers review their current and prospective employees’ immigration statuses to determine whether it would be beneficial to include them in the H-1B cap lottery, and to notify us of any H-1B cap registrants as soon as possible to ensure timely registration. Our teams will be reaching out shortly to begin the discussions for this year’s cap.

Detailed information regarding the H-1B Cap season can be found in the H-1B Lottery 2025 (FY26) memo located on our website. You can also visit our Resources page to find the latest News Alerts and any upcoming webinars on this topic.

USCIS Updates EB-2 National Interest Waiver Guidance

On January 15, 2025, U.S. Citizenship and Immigration Services (USCIS) issued updated guidance on the adjudication of EB-2 National Interest Waiver (NIW) petitions, providing greater clarity on how officers evaluate these cases. The new guidance reviews the framework established by the Matter of Dhanasar, emphasizing the criteria for determining whether a proposed endeavor is of “substantial merit” and “national importance.” USCIS also elaborated on the evidence required to show that an applicant is “well-positioned” to advance their proposed endeavor, such as detailed business plans, letters of recommendation, and documentation of prior accomplishments. The updated guidance also includes a request from USCIS for Petitioner’s to use more accessible language, with USCIS writing in a footnote: “USCIS recognizes that many national interest waiver petitioners are involved in highly technical occupations and proposed endeavors. However, it would be helpful to describe those in a way that an average person could understand.”

Importantly, this guidance introduces new examples illustrating endeavors that may qualify under the national interest standard, including those in emerging industries, scientific research, and efforts addressing significant societal challenges. Effective immediately, the policy applies to all NIW petitions currently pending or filed on or after January 15, 2025, offering applicants and practitioners enhanced transparency in navigating these petitions.

Expiration of the Edakunni Settlement (H4 and H4 EADs No Longer Bundled on H-1B Adjudication Timeline)

On January 18, 2025, the settlement requiring USCIS to adjudicate H-4 I-539s and I-765s on the same timeline as the principal H-1B petition, when filed together, expired. As the American Immigration Lawyers’ Association reports: “AILA members should advise their clients to file their I-129 H-1B petitions and related I-539 and I-765, as early as possible and to caution their clients that spouse EAD cards may be delayed. It is possible that USCIS will continue to adjudicate concurrently as a matter of policy, but will not be obligated to do so.”

We will continue to monitor USCIS adjudication trends and advise our clients accordingly. Additionally, if any cases are wrongfully delayed, the option of a mandamus lawsuit is available. Please contact your Brown Immigration Law attorney if you have any questions about your pending case or pursuing the litigation option.

Appeals Court Strikes Down DACA – Program in Place for Now

On Friday January 17, 2025 the Fifth Circuit Court of Appeals in a unanimous decision concluded the regulations surrounding the Deferred Action for Childhood Arrivals (“DACA”) program to be unconstitutional. This paves the way for the program to be ended. At the same time, the Appeals Court permitted the program to remain in effect pending appeal to the Supreme Court by President Trump’s Administration. Now all eyes are on the new Administration to see whether it takes steps to fight for the DACA program. Trump in 2017 previously attempted the end the program, but most recently has suggested publicly that there should be a path forward for Dreamers. Despite the ruling’s release on Friday, there was no executive action in relation to DACA in the initial round of signed orders. We will continue to monitor and update on the outcome of DACA, but importantly individuals holding DACA can still apply for renewal or remain in the U.S. while the stay is pending.

Reminder: USCIS Pandemic Signature Policy is Now Permanent

On March 20, 2020, it was announced USCIS would accept electronically reproduced copies of original signatures in response to the COVID-19 National Emergency. This policy is now permanent and USCIS will continue to accept copies of original signatures on all benefit forms and documents, even if the form instructions require an original (“wet”) signature. This means that a document may be scanned, faxed, photocopied, or similarly reproduced provided that the copy must be of an original document containing an original handwritten signature, unless otherwise specified. The reproduced signature flexibility policy is designed to streamline and expedite petition preparations.

The Fine Matrix for Form I-9 Violations has been Updated

The Department of Homeland Security through its Investigations Directorate (HSI) has the power to audit employers’ Forms I-9 which is generally done through Immigration and Customs Enforcement (ICE) agents. After an audit, if violations are found, the employer may be responsible for various fines under the enforcement regulations. The fine matrix was recently updated (see below).

If you are interested in a review of your company’s I-9 forms to stay ahead of any issues, please contact your BIL attorney for an attorney audit. Given the increased scrutiny of employers promised by the Trump Administration, we are holding a webinar on March 6, 2025, to provide clarification on current I-9 and immigration compliance related policies of importance (SHRM Credit provided).

USCIS Provides Immigration Relief in Emergencies or Unforeseen Circumstances

As a reminder, USCIS offers immigration services that may help people affected by unforeseen circumstances, including the recent wildfires outside of Los Angeles. USCIS provides immigration relief for unforeseen circumstances, such as natural disasters, that might affect the processing of USCIS applications, petitions, or immigration requests.

We would also like to extend our deepest condolences and sympathies to the many families and individuals affected by the fires. We thank the first responders on the ground and those combating the fires by air, and wish a speedy recovery to all affected by the disasters. At Brown Immigration Law, we are committed to assisting you with your applications if you have encountered unforeseen circumstances during the recent natural disasters. If you or your business have been affected by the recent natural disasters and need assistance with your immigration matters, please reach out to your Brown Immigration Law attorney.

DHS Publishes Rule Updating Notification Procedure for Visa Waiver Program (VWP) Designated Countries

On December 27, 2024, the Department of Homeland Security (DHS) published a final rule which updates the agency’s practice for notifying the public of designated countries for the VWP. Under the new rule, DHS will update designated countries on the DHS VWP website (https://www.dhs.gov/visa-waiver-program) but will no longer publish an amendment in the Federal Register for each new designation. The new rule will provide for quicker updates to the list of designated countries participating in the VWP on the DHS VWP website, as well as mitigating against any risk of confusion potentially caused by the time lag between when the Secretary of State designated a country for the VWP and when the technical amendment was published in the Federal Register.

USCIS Updates Guidance on Confidentiality Protections

On January 7, USCIS updated its Policy Manual to clarify customer service options available to certain noncitizens whose applications or processes are subject to confidentiality protections, such as applicants for asylum and withholding of removal (Form I-589), suspension of deportation or special rule cancellation of removal (Form I-881), and noncitizens in credible fear, reasonable fear, and Safe Third Country Agreement screening processes. The update provides that USCIS Contact Center personnel may respond to inquiries regarding Form I-589 and Form I-881 applications and protection screenings after identity verification and authorization verification is completed. This guidance is effective immediately and applies to requests pending or filed on or after the publication date. The guidance contained in the Policy Manual is controlling and supersedes any related prior guidance.

USCIS Clarifies Evidentiary Requirements for O-1 Nonimmigrants of Extraordinary Ability

On January 8, USCIS updated its Policy Manual to clarify how USCIS evaluates evidence to determine eligibility for O-1A nonimmigrants of extraordinary ability, including adding examples of evidence for individuals in critical and Emerging technologies. Highlights from the updated guidance are provided below:

Explains that a separate legal entity owned by the beneficiary, such as a corporation or limited liability company, may file a petition on behalf of the beneficiary;
Provides guidance regarding evidentiary criteria for O-1A and O-1B nonimmigrants;
Adds examples of relevant evidence that may be submitted by an interested U.S. government agency;
Provides an example of an occupational change within a technological field; and
Clarifies the circumstances under which USCIS limits an extension of stay to one year.

This updated guidance is effective immediately and applies to requests pending or filed on or after the publication date. The guidance contained in the Policy Manual is controlling and supersedes any related prior guidance. Please contact your Brown Immigration Law attorney for an assessment of eligibility for the O-1 visa or if you have any questions about your O-1 matter.

USCIS to Publish Revised Form I-129, Petition for a Nonimmigrant Worker

On January 17, 2025, USCIS will publish a new edition of Form I-129, Petition for a Nonimmigrant Worker. The Form I-129 is used for H-1B, H-2, L-1, and other nonimmigrant petitions and has been revised to align with the H-1B Modernization Final Rule and the H-2 Modernization Final Rule. Effective January 17, 2025, USCIS no longer accepts the previous edition of the Form I-129, and the January 17^th edition of the Form I-129 must be used. Please contact your attorney at Brown Immigration Law if you have any questions about your nonimmigrant filings.

Visa Bulletin Update: February 2025

The February 2025 Visa Bulletin has been released by the Department of State. The biggest change to note is that USCIS will now only accept the Final Action Dates in February 2025 for all employment-based Adjustment of Status filings. Other than a two-week advance for Indian nationals in EB-2 (to October 15, 2012), EB-3, and Other Workers’ categories (to December 15, 2012) and a one-month advance for Chinese nationals in the EB-3 category (to July 1, 2020), the Final Action Dates chart in the February Visa Bulletin did not see substantial movement. However, a shift from Date for Filing to Final Action Dates generally represents a decent jump backwards in almost all categories, ranging from one month to over six months, depending on countries and categories. Please refer to the following chart for more details:

CANADIAN BUSINESS IMMIGRATION UPDATES

Express Entry Draws in 2025

Express Entry is the primary system for managing immigration in Canada. Individuals (Express Entry candidates) must establish eligibility under one of three federal immigration programs – the Federal Skilled Worker Program (FSWP); Canadian Experience Class (CEC); and Federal Skilled Trades Program (FSWP). Once candidates are eligible under one of the programs, they can create their Express Entry profile and submit their profile into a pool of eligible candidates.

To receive an Invitation to Apply (ITA) for permanent residence, candidates must achieve a competitive Comprehensive Ranking Score (CRS), which is based on certain criteria including age, education, work experience, etc.

Beyond the three federal programs for Express Entry, some provincial nominee programs (PNPs) offer application streams that work in concert with Express Entry. To be eligible for these programs, candidates must first qualify for Express Entry under one of the three federal programs and submit a valid profile into the Express Entry profile. Subsequently, they will complete the PNP application process, and if approved, receive a nomination from the province that will add additional points to their CRS score.

Canada has held two Express Entry draws in the first two weeks of the 2025, issuing 1,821 invitations to apply for Permanent Residence:

January 7, 2025 – Targeted Draw for Provincial Nominee Program (PNP) candidates. 471 invitations issued, with a CRS score cutoff of 793.
January 8, 2025 – Targeted Draw for Canadian Experience Class (CEC) candidates. 1,350 invitations issued, with a CRS score cutoff of 542.

Canada Eliminating CRS Points for Having a Job Offer Under Express Entry

On December 17, 2024, Minister of Immigration, Refugees, and Citizenship (IRCC) Marc Miller announced that candidates for Permanent Residency under the Express Entry system will no longer receive additional Comprehensive Ranking System (CRS) points for holding a valid Labour Market Impact Assessment (LMIA)-based job offer. Under the current CRS criteria, candidates with a job offer could be eligible for an additional 50 CRS points (or 200 points for certain senior management level occupations). A subsequent news release from IRCC on December 23, 2024, confirmed that the changes will be implemented in spring 2025, with a specific effective date yet to be determined. According to the news release, this is a temporary measure designed to combat fraud in Canada’s immigration system by removing any incentive to illegally buy or sell LMIAs to increase a candidate’s competitive score under Express Entry. We expect to see a reduction in the minimum CRS scores invited to apply for permanent residence under IRCC’s Express Entry draws following the implementation of these new measures, and we will continue to monitor the situation closely to share any relevant updates.

Canadian PR Applications Under the Agri-Food Pilot Capped at 1,010 Spaces

Since 2020, experienced agri-food workers have been able to apply for Canadian permanent residence through the Agri-Food Pilot. IRCC announced at the beginning of the year that they will now cap the intake of applications under the Agri-Food Pilot at 1,010 due to high demand. Applications can be submitted until the pilot expires on May 14, 2025, or until 1,010 applications have been received—whichever comes first. If you think you may be eligible for Canadian permanent residence through the Agri-Food Pilot, please reach out to your attorney at Brown Immigration Law!

Flagpoling for Work and Study Permits at the Border

Effective December 23, 2024, the Canadian Border Services Agency no longer provide immigration services to people flagpoling for work or study permits. Previously, foreign nationals with temporary resident status may leave Canada, and after a brief visit to the United States or St. Pierre and Miquelon, re-enter to access immigration services at a port of entry. As part of Canada’s Border Plan, work and study permits will no longer be provided to flagpolers, except for a few exemptions. Please contact your Canadian attorney at Brown Immigration Law if you have any questions or concerns!

Important Changes to Open Work Permit for Family Members of Temporary Residents

Immigration, Refugees and Citizenship Canada (IRCC) is changing open work permit (OWP) eligibility for family members of international students and foreign workers. Effective January 21, 2025, only spouses of certain international students and foreign workers will be able to apply for a family OWP.

Family OWPs will be limited to spouses of international students who are enrolled in:

Master’s programs that are 16 months or longer, or
Doctoral programs, or
Participating in an eligible pilot program, or
Select professional and eligible programs

Family OWPs will also be limited to spouses of foreign workers who are employed in:

TEER 0 or 1 occupations, or
Select TEER 2 or 3 occupations in sectors with labour shortages or linked to government priorities

In addition, the foreign worker must also have at least 16 months remaining on their work permit at the time when their spouse applies for the OWP. Dependent children of foreign workers will no longer be eligible. OWPs that were approved under the previous measures and have not expired will remain valid.

It is important to note that spouses of workers covered by free-trade agreements and those transitioning to permanent residence will not be impacted by these changes. Please contact your Canadian attorney at Brown Immigration Law if you have any questions or concerns regarding your spouse’s eligibility for an OWP!

NEW LEARNING OPPORTUNITIES

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.