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.
Firm News – BIL Attends American Immigration Lawyers Association Conference 2023, Orlando, Florida
The American Immigration Lawyers Association is holding its annual conference this month. Each year, Brown Immigration Law sends a group of attorneys and case managers to the conference for its continuing education offering and its networking opportunities. This year, the conference is taking place in Orlando, Florida. We are wishing safe travels to the group from BIL attending this year’s conference!
U.S. BUSINESS IMMIGRATION UPDATES
USCIS Announces the Expansion of Premium Processing for Change of Status Applications for F, M, and J Statuses
On June 12, 2023, USCIS published the following announcement:
“U.S. Citizenship and Immigration Services today announced the expansion of premium processing for applicants filing Form I-539, Application to Extend/Change Nonimmigrant Status, and seeking a change of status to F-1, F-2, M-1, M-2, J-1, or J-2 nonimmigrant status. Online filing of Form I-907, Request for Premium Processing Service, will also be available for these applicants.
The premium processing expansion for certain Form I-539 applicants will occur in phases, and nonimmigrants requesting premium processing should not file before these dates:
- Beginning June 13, USCIS will accept Form I-907 requests, filed via paper form or online, for applicants seeking a change of status to F-1, F-2, M-1, M-2, J-1, or J-2 status, who have a pending Form I-539, Application to Extend/Change Nonimmigrant Status.
- Beginning June 26, USCIS will accept Form I-907 requests, filed either via paper form or online, for applicants seeking a change of status to F-1, F-2, M-1, M-2, J-1, or J-2 status, when filed together with Form I-539.
This phase of premium processing service is only available for change of status requests. Premium processing is not available for individuals seeking an extension of stay in M-1 or M-2 status.
We will reject premium processing requests for a pending Form I-539 if received before June 13. USCIS will reject premium processing requests when filed together with a Form I-539 if USCIS receives the request before June 26.”
DOS Delays Effective Date of Final Rule Raising Consular Services Fees
On Tuesday, March 28, 2023, The U.S. Department of State (DOS) published a final rule to increase the Fees for Consular Services for several nonimmigrant visa (NIV) application processing fees and the Border Crossing Card (BCC) for Mexican citizens age 15 and over. The fee increase was originally set to be effective on May 30, 2023, and it is now delayed until June 17, 2023 to take effect according to a final rule published by the Department of State on May 26, 2023 (88 FR 34084). In essence, if you are applying for a nonimmigrant visa at a U.S. Embassy or consulate abroad, the application fees will increase, starting on June 17, 2023, when the new rule takes effect. For detailed fee increase list, see our April 19, 2023 Newsletter here (paragraph 8).
DOS Provides Update on Administrative Processing
On May 19, 2023, the Department of State (“DOS”) issued a memo indicating that it has “recently adopted new technology and enhanced coordination to reduce the number of visa applications that require administrative processing on security grounds, while upholding strict national security protections.” After a visa application has been made, an applicant may be placed in “administrative processing” if the consular officer determines that additional information is necessary to determine whether the applicant is eligible for the visa. In recent years, administrative processing wait times have been highly unpredictable, creating confusion and frustration for many visa applicants.
In its May 19 memo, the DOS stated that “since October 2022, most cases that would have previously required additional administrative processing were resolved immediately without additional, time-consuming handling.” While national security remains a priority, the DOS commitment to increased efficiency in visa application processing is welcome news. We encourage the DOS to continue taking steps that will reduce uncertainty and increase visibility for visa applicants placed in administrative processing.”
Court Finds It Lacks Subject-Matter Jurisdiction to Review Status-Adjustment Decisions by USCIS
A U.S. federal appeals court published an opinion stating it does not have the authority to review USCIS’s adjustment of status decision under the given circumstances. Beneficiaries sued the U.S. government when USCIS rescinded Beneficiaries’ green cards for an USCIS error in approving Beneficiaries’ I-485 petition before I-140 petitions. The appeals court affirmed the lower court’s decision: federal courts do not have the authority to review a USCIS decision until Beneficiaries have exhausted all administrative remedies. Because Beneficiaries may still request adjustment of status at removal proceedings, the federal courts do not have the authority to review the case. While this obviously is bad news for this litigant, it’s a clear reminder that individuals must exhaust their administrative options before seeking redress in federal court, while also being a reminder that short-cuts in immigration processing are never helpful.
Reminder: Check Your Online I-94
We wish to remind everyone about the importance of reviewing and correcting one’s I-94. Foreign nationals are issued a new I-94 upon each entry into the United States. It is crucial to immediately verify that the information contained on the I-94 is correct as soon as it is issued. This is because it governs your legal status, duration of stay, and visa classification. Your legal status in the United States could be in jeopardy if there are any inaccuracies.
If you find any inaccuracies on the electronic I-94 issued by the U.S. Customs and Border Protection, you will need to contact CBP or visit the nearest CBP Port of Entry or Deferred Inspection Office. For instructions on verifying your I-94, and correcting a record if needed, please contact your BIL attorney.
Senate Passes Resolution to Repeal Biden Administration’s Public Charge Rule
On May 17, 2023, the United States Senate passed a joint resolution, S.J.Res.18, introduced by Senator Roger Marshall (R-KS) via the Congressional Review Act “disapproving of the rule submitted by the Department of Homeland Security relating to “Public Charge Ground of Inadmissibility”.” The Biden Administration’s 2022 Public Charge Rule details DHS’ procedures for determining when a noncitizen may be deemed “likely at any time to become a public charge” and thus, ineligible for admission or for adjustment of status to lawful permanent residence, as demonstrated by either the receipt of public cash assistance for income maintenance or long-term institutionalization at government expense.
For decades, DHS (and its predecessors) have interpreted this ground of inadmissibility to apply only to individuals who are likely to become primarily dependent on the government for subsistence. However, in 2019, the Trump Administration expanded the scope of “public charge” to include certain individuals who were deemed likely to receive a much broader array of benefits, including nutritional assistance for children for a brief period of time. This led to a profound chilling effect on the use of public benefits by those who are eligible for such benefits, including U.S. citizens in mixed-status families, continuing through the COVID-19 pandemic. The 2022 DHS rule, promulgated by the Biden Administration and which is the subject of S.J. Res. 18, generally adopted the policy that had been in place for decades.
S.J.Res.18 now moves to the House of Representatives, where Representative Troy Nehls (R-TX) has introduced a companion resolution, H.J.Res.41, providing a means for expediting passage as committee consideration occurs in both chambers simultaneously. President Biden has meanwhile released a statement strongly opposing S.J.Res.18 and stating that, “[i]f Congress were to pass this joint resolution, the President would veto it.”
For additional information on the 2022 rule, see this document from USCIS.
BIL encourages noncitizens to consult with our attorneys or other legal service providers when making decisions for themselves and their families. Many individuals may not be subject to the DHS public charge assessment and many benefits may not be implicated by the current public charge rules.
Visa Bulletin July 2023
DOS posted the July 2023 Visa Bulletin. There were notable retrogressions in the EB-3 category. Specifically, EB-3 India retrogressed nearly three years, from June 15, 2012 to January 1, 2009. In additional, EB-3 ROW retrogresses from June 1, 2022 to February 1, 2022. EB-1 and EB-2 final action dates remain the same.
CANADIAN BUSINESS IMMIGRATION UPDATES
Expansion of Canada’s Francophone Mobility Program
On June 15, 2023, the IRCC announced new measures to increase the breadth of the Francophone Mobility Program for a period of two years. Canadian employers may now make job offers to eligible candidates for all National Occupation Classifications (NOC), except agricultural workers. French language requirements for foreign national applicants have been updated to specify that the applicant possess a moderate French language proficiency, equivalent to a level 5 of the language requirements, and that the applicants must provide proof that they meet the language requirements.
Impact: More Canadian employers outside of Quebec will be able to employ French speakers without the being required to undertake a labour market impact assessment.
Biometrics Requirement Reintroduced for Certain Permanent Residence Applicants
As of June 14, 2023, a public policy which had previously negated the biometrics requirement for permanent residence applicants who have prior biometrics on file was removed. Going forward, foreign nationals applying for permanent residence will be required to submit biometrics, unless they qualify for another exemption.
Impact: The requirement to provide new biometrics for permanent residence applications may result in delays due to wait times varying widely at different biometrics collection sites.
Visa-free Air Travel Expanded to Include 13 Additional Countries
Effective June 6, 2023, the IRCC added the following 13 countries to the electronic travel authorization (eTA) program:
Antigua and Barbuda, Argentina, Costa Rica, Morocco, Panama, Philippines, St. Kitts and Nevis, St. Lucia, St. Vincent and the Grenadines, Seychelles, Thailand, Trinidad and Tobago, and Uruguay.
Citizens from the above countries who have either held a Canadian visa within the last 10 years or who currently hold a valid U.S. non-immigrant visa are eligible to apply for an eTA instead of a visa when travelling to Canada by air. Those intending work or study are still required to file their applications online.
Impact: The expansion of the eTA program should result in improved work permit processing time.
Launch of Category-Based Selection Invitations for Permanent Residence
The IRCC has announced the first-ever category-based selection for the Express Entry immigration system, with permanent residence invitations to be issued to prospective applicants with specific skills, training, or language ability. For 2023: category-based invitations will focus on candidates with work experience in the fields of healthcare, STEM (science, technology, engineering, mathematics) professions, trades (such as carpenters, plumbers, contractors), transport, or agriculture and agri-food, and candidates with a strong French language proficiency.
Impact: This policy will make it easier and faster for applicants with work experience and skills in the specified fields to become permanent residents.
Upcoming International Experience Canada (IEC) Program Changes
The IEC program provides opportunities for youth to work and travel between Canada and number of other countries. The following changes to the program are expected in January 2024:
South Korea and Canada will make the following improvements to their existing memorandum of understanding: increasing eligibility age from 18-30 to 18-35, adding two new streams – International Co-op (Internship) and Young Professionals, and providing most youth with the option to participate twice in the program for up to 24 months each time.
Finnish youth aged 18-35 will have the opportunity to work and travel in Canada under the IEC’s Working Holiday, International Co-op (Internship) and Young Professionals streams, and will be eligible to participate the program for up to 12 months per category.
Impact: Employers may now leverage the International Experience Canada (IEC) program to support work permit options for certain South Korean and Finnish nationals.
New Family Reunification Measures Announced
The IRCC is implementing new initiatives designed to support family reunification during the immigration process. These include faster temporary resident visa (TRV) processing times for spousal applicants, new and dedicated processing tools for spousal TRV applicants, a new open work permit for spousal and family applicants, and open work permit extensions for open work permit holders expiring between August 1 and the end of 2023.
Impact: Greater accessibility for accompanying family members during the immigration process, helping families to reunite more quickly and easily in Canada.
Canada-Finland Youth Mobility Agreement Signed
This agreement is expected to become effective in 2024.
Impact: Employers may now leverage the International Experience Canada (IEC) program to support work permit options for certain Finnish nationals.
New Learning Opportunities!
Employment Options for Those Seeking a Green Card
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. Managing Partner, David Zaritzky Brown, will walk through the most common approaches we take and how we identify the way forward in starting a Green Card process. As always, David will stay on for a generous Q&A time 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 **