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
Key Business Immigration Takeaways from the AILA Conference 2023
As always, Brown Immigration Law sent a team of attorneys to the American Immigration Lawyer’s Association annual conference to monitor and report on any updates of interest to our clients. While we still don’t anticipate any major legislative changes this year, there are policy and process changes expected in the coming months. With all major government agencies represented that we work with, namely the Department of Labor, USCIS, and the Department of State, among others, it was also an opportunity to hear from them firsthand.
At AILA, USCIS informed the attendants they are contemplating implementing a prioritization process for applicants with urgent humanitarian concerns, citing the EAD process for individuals with compelling circumstances as one example. Relatedly, USCIS is expanding its online tools, such as self-scheduling biometrics, and focusing on updating and expanding their online filing systems to address the backlog in processing times.
USCIS also provided the following information:
- A new process is being established that will centralize Requests for Evidence related to medical exams or marriage-based bona fides with the National Benefits Center. USCIS agrees there should be a standard approach across all USCIS Service Centers and faxing of RFEs should be available.
- USCIS is interested in trying to solve the underlying issue with RFE content and quality, specifically the issuance of boilerplate RFEs. The agency’s goal is to issue an RFE in cases only where the RFE is specifically needed to reach a case decision.
The Department of Labor (DOL) informed attendees that they were working on several updates and improvements. The DOL discussed the release of the new PERM form on the FLAG system, and noted the various challenges and updates needed to the system. Recently, they have managed to automate the insertion of the necessary Prevailing Wage Determination. Unfortunately, they have not answered all questions that AILA attorneys have had regarding the new form and questions remain as to how DOL will review it after filing. After launching the form they realized with AILA’s feedback that a signature page is necessary for Form I-140 Schedule A and National Interest Waiver (NIW) filings which require a PERM app to be processed by USCIS and not through DOL.
There were many other updates from the conference among those listed above, and we thank all the agencies in attendance for their willingness to interface with stakeholders.
USCIS Launches Online Rescheduling of Biometrics Appointments
On June 28, USCIS launched a new self-service tool for rescheduling biometric services appointments. Individuals with a USCIS account may reschedule most appointments using this tool. Exceptions include appointments already been rescheduled two or more times, rescheduling within 12 hours of a previous request, and missed appointments. This new scheduling tool is part of USCIS’s plan to improve customer experience, and we can expect USCIS to roll out additional new tools to improve customer experience in the future.
Updates to the Foreign Affairs Manual for E-Visas 2023
As reported by AILA, recently “DOS updated four provisions of the FAM relating to E visas. The updates relate to E-2 substantiality; E company registration; E-3 intention to depart; and treatment of spouses and children of E visa applicants and can be found here.” In addition to these updates, in recent years DOS has been revising the validity date of E visas issued to limit the amount of time provided to E-1 and E-2 visa holders – where the prior standard was five years, many countries are now facing limits of 18, 24, or 36 months, etc. We are continuing to monitor for updates.
New Additions to Naturalization Test
For the past few months the Department of Homeland Security has been conducting nationwide trials for a redesigned Naturalization Test. The current test was last revised in 2008. Two major updates will be implemented in the new test, specifically, the Speaking part of the English Test, and the format of the Civic test.
New Speaking Test: To date, the applicants’ ability to speak and understand English has been determined by a USCIS officer during their eligibility interview on Form N-400, Application for Naturalization. The new test will require the test taker to verbally describe a few color pictures randomly selected by the USCIS officer from a bank of approximately 40 images, all of them correspond to an ordinary scenario, such as daily activities, the weather, or food, etc.
New Civic Test: To date, applicants have been asked 10 questions orally from a bank of 100 published test questions, with 6 correct responses required to pass. The new test will require test takers to read and respond to 10 multiple-choice civics questions and select the one best answer from four choices presented, and there will be an update on the test items after the trial test.
The five-month trial test period has recently concluded, and USCIS will announce the implementation of the new test at some time next year.
ICYMI – Physical Document Inspection for I-9 Required by August 30, 2023
As we previously reported, on May 4, 2023, the U.S. Department of Homeland Security (DHS) and U.S. Immigrations and Customs Enforcement (ICE) announced that although the COVID-19 flexibilities afforded to employers to reach Form I-9 compliance (under which they could remotely examine the employees’ documents and enter COVID-19 as the reason for the physical examination delay) will sunset on July 31, 2023, employers will now get a month’s reprieve, until August 30, 2023, to perform all required physical examination of identity and employment eligibility documents for those individuals hired on or after March 20, 2020, and who have only received a virtual or remote examination under the flexibilities. In addition, DHS is currently reviewing public comments and plans in response to its proposed rule to allow for optional alternative procedures for the examination of identity and employment eligibility documents, including the option of examining documents virtually for remote employees, and plans to issue a final rule later this year.
We had hoped that any new rule would have been issued prior to the re-implementation of physical review of I-9 documents for remote workers during the Covid emergency, and that employers may have been grandfathered in, but it is clearly the case the government is requiring employers to physically review supporting I-9 documents for those I-9s that were done virtually during the last 3+ years.
Visa Bulletin August 2023
The Visa Bulletin is a monthly report released by the Department of State that helps determine when foreign nationals who are sponsored for a green card can complete the final step of the process. The August Visa Bulletin has some important updates.
For India, the EB-1 category has gone back by more than 10 years to January 1, 2012. This setback is temporary, likely confirming a pause on the issuance of EB-1 category green cards through the end of the fiscal year. The EB-2 category remains at January 1, 2011, and the EB-3 and EB-3 Other Workers categories have not changed and are at January 1, 2009. For China, there have been small advancements in the EB-2 and EB-3 categories. EB-2 has moved by 1 month to July 8, 2019, and EB-3 has moved by 2 months to June 1, 2019. EB-1 remains the same at February 1, 2022, and EB-3 Other Workers remains at September 1, 2015. USCIS continues to accept I-485 applications if the applicant’s priority date is current according to the Final Action Dates chart, rather than the more favorable Dates for Filing chart.
CANADIAN BUSINESS IMMIGRATION UPDATES
Canada’s Open Work Permit Pathway for H-1B Visa Holders in the US is Now Open
As of yesterday, IRCC is now offering three-year open work permits to H-1B visa holders in the US. To be eligible, individuals must hold a valid H-1B specialty occupation visa and currently live in the US.
This temporary policy will last for 1 year or until IRCC receives 10,000 applications (whichever comes first).
Express Entry is the primary system for managing permanent immigration in Canada for those not qualifying based on a family relationship. 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 has issued 14, 400 Invitations to Apply (ITA) for permanent residence (PR) under Express Entry. Please see below for a high-level summary:
- IRCC held three general draws, inviting 5,800 Express Entry candidates; the cut-off score for each round of invitation was 486, 511, and 505, respectively.
- IRCC held two targeted draws for individuals proficient in French, inviting 6,100 Express Entry candidates; the cut-off scores for each round of invitation were 439 and 375 respectively.
- IRCC held two targeted draws for individuals in certain healthcare occupations, inviting 2,000 Express Entry candidates; the cut-off scores for each round of invitation were 476 and 463 respectively.
- IRCC held its first targeted draws for individuals in certain STEM occupations, inviting 500 Express Entry candidates; the cut-off score was 486.
If you have any questions about Express Entry, Permanent Residency, or any Canadian immigration programs, please contact us to schedule a consultation.
NEW LEARNING OPPORTUNITIES
Business Immigration Law Primer
In 45 minutes Managing Partner, David Zaritzky Brown, will walk participants through the most common non-immigrant visa types and explain how we manage cases and ensure clients are matched with the status that best meets their needs. He will highlight common issues employers and employees encounter when determining the best visa status and navigating the process. He will also outline the typical options available for permanent status and considerations for proper immigration policy. This presentation will be useful for both HR/management running such programs and individuals in the U.S. on a visa status (or those contemplating coming to the U.S.). David is happy to spend some of the Q&A time discussing specific case scenarios to show how we work through real-life situations.
Locking Down Your Investment in Human Capital through Green Card Filing
In this session Managing Partner, David Zaritzky Brown, will be joined by Managing Attorney, Mason Ellis as they discuss available Green Card options. Depending on the type of employee hired or job performed there could be a wide variety of options available in some circumstances. In most cases, the truly viable option is an I-140 based PERM. David and Mason will walk you through the most common approaches we take and how we identify the way forward in starting a Green Card process. As always, David and Mason will stay on for a generous Q&A time to provide answers to interested attendees.
Canada’s Innovative Immigration Programs Can Help Companies Drive Their Business Globally
In this session, Managing Attorney, Clinton Green, and Managing Partner, David Zaritzky Brown, discuss the recent changes and trends in Canadian immigration and how they combine to make it easier for companies to hire and retain global talent. They will also highlight how companies can leverage Canada’s immigration programs to implement regional talent hubs in Canada to support their global business needs.
This presentation will be useful for both HR/Management looking at starting up or increasing their Canadian operations or who are contemplating solutions to managing risk to their immigration programs in the US. Clinton and David will facilitate a Q&A session to provide answers to interested attendees.
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.
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 **