At BIL, 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.
Monday, March 20, 2023 marks the deadline for this year’s H-1B lottery registration period. We should find out about the results of the lottery by or before April 1, 2023 and will reach out to our clients within 1-2 days of the selection notices. We thank our HR partners for their cooperation and assistance during this busy time!
U.S. BUSINESS IMMIGRATION UPDATES
USCIS Expands Premium Processing for Certain EADs
On March 6, 2023, USCIS announced the expansion of premium processing for certain I-765 (EAD) applicants, with applicable categories including F-1 OPT and STEM Extension cases. The premium processing fee for these case types is $1,500, with an accelerated adjudication processing of no more than 30 calendar days. As of March 6, 2023, applicants may upgrade currently pending EAD cases in those categories through the filing of Form I-907. As of April 6, 2023, new I-765 applications may be filed concurrently with the premium processing request.
We are continually monitoring cases for premium eligibility. If you have a question about adding premium to your new case, or upgrading your pending case, please contact your BIL attorney.
F and M Student Visas Can Be Issued Up to a Year In Advance (DOS)
On February 21, 2023, the Department of State announced “F and M student visas can now be issued up to 365 days in advance of the I-20 program start date, allowing more time for students to apply for a visa.” The change will provide students with additional time to plan their studies in the United States. However, “students are still not allowed to enter the U.S. on a student visa more than 30 days before their program start date.”
Prior to entering the U.S. on an F or M visa, students must first register for enrollment at a SEVP-approved school in the U.S., obtain a Form I-20 from their school, and complete an online visa application. Generally, interviews are required for student visa applicants. We are happy to see the Department of State begin to address visa processing delays and give students greater flexibility at a critical moment in their lives, at the same time, allowing advance applications up to a year prior to attendance suggests that DOS expects continuing problems with timely visa interviews.
DOS Provided a Report from The National Visa Center (NVC) Shows Significant Backlogs
The National Visa Center (NVC) Annual Immigrant Visa Waiting List submitted to the Department of State (DOS) on November 1, 2022 compares the number of immigrant visa applications on the NVC visa waiting list in the various preferences and subcategories subject to numerical limit as of November 1, 2021 with the totals as of November 1, 2022. While there was a negligible 1.4% overall decline in the waiting list, the figures only reflect petitions which the DOS has received, excluding the significant number of applications still held at USCIS offices. The pandemic continues to severely constrain DOS’ processing abilities as 388,908 eligible immigrant visa applicants still await the scheduling of an interview.
For those cases processing through an Adjustment of Status application while in the U.S., USCIS reiterates that it is making every effort to reduce processing times for employment authorization and advance parole applications. USCIS established new internal cycle time goals in March 2022 to guide its backlog reduction efforts, and will increase capacity, improve technology, and expand staffing to achieve these new goals by the end of FY 2023.
The figures only reflect petitions received by DOS.
USCIS Provides Update to O-1B Guidance
On March 3, 2023, USCIS updated Volume 2 of its Policy Manual partly in response to stakeholder comments calling for predictable and transparent application of the O-1B evidentiary requirements. Policy Alert, PA-2023-05, titled, “Evaluating Eligibility for O-1B Visa Clarification” clarifies how USCIS evaluates evidence to determine eligibility for the O-1B visa classification for nonimmigrants of extraordinary ability in the arts and nonimmigrants of extraordinary achievement in the motion picture or television (MPTV) industry. The updated policy guidance includes two notable updates: (i) it provides a new appendix “Satisfying the O-1B Evidentiary Requirements” that details the types of supporting documents that may be submitted under each of the six O-1B evidentiary criteria and the considerations relevant to the USCIS officers for the evaluation thereof; and (ii) it emphasizes that a petitioner is not required to show that a criterion is entirely inapplicable to be able to use comparable evidence. Instead, the petitioner must explain why a particular criterion is “not readily applicable” and why the submitted evidence is “comparable” to the criterion for the comparable evidence to be considered. This guidance is effective immediately and is “controlling and supersedes any related prior guidance on the topic.”
Proposed Rule for Asylum Seekers
The Biden Administration has announced a proposed rule that would make changes to the procedures and protocols for Asylum Seekers. The New Rule is in the 30-day public comment period now and will be implemented in early May, the same day Title 42 public health order ends. According to a report on Politico, Title 42 is currently being used to bar entry to most migrants at the southern border. If implemented, the New Rule will bar some migrants from applying for asylum in the U.S. if they cross the border illegally or fail to first apply for safe harbor in another country. The New Rule is considered one of the most restrictive border control measures to date and essentially will serve as a “asylum ban” or “transit ban” according to some immigrant advocates.
AILA: Considerations When Bundling H-4/L-2 Eads with H-1B/L-1 Petitions after the Edakunni Settlement
On January 19th, 2023, a settlement was reached in the case of Edkakunni, et al. v. Mayorkas, which was a class-action lawsuit filed to challenge H-4 and L-2 adjudication delays. Under this settlement, USCIS agreed to return to bundling, meaning the processing of multiple forms together as a package, the adjudication of Forms I-539 and I-765 for H-4 and L-2 derivatives along with the I-129 Forms of the main beneficiary when they are filed together. This should lead to faster processing times for H-4 and L-2 petitions when bundling is possible. For USCIS to process them together, all the forms and documentation must be filed at the same time and in the same location as a package. As such, all the forms that are intended to be bundled together should be placed in the same package or envelope, along with the documentation and fees required. This settlement is set to expire on January 19th, 2025.
USCIS Provides Guidance on Mobile Biometrics Services
For certain applicants or beneficiaries with qualifying disability or health-related reasons, USCIS may provide domestic mobile biometric services instead of the requirement to appear in person as an ASC. Typically, these determinations are within USCIS’ discretion.
Recently, USCIS issued policy guidance with the stated purpose of reducing “barriers for benefit requestors who are unable to attend appointments at Application Support Centers to provide biometrics, such as fingerprints, required for certain benefit requests.” Specifically, USCIS has provided guidance on individuals in remote locations and individuals in custody. For those in remote locations, USCIS notes that the agency may work with local law enforcement agencies or other DHS components to collect biometrics on its behalf. For persons in custody, USCIS notes that the agency “does not grant request to collect biometrics from persons in custody at correctional institutions… USCIS generally does not approve requests to reschedule a biometrics appointment for reason of detention or incarceration. The person must follow the procedures listed in the biometrics appointment notice to request their appointment be rescheduled.”
This guidance became effective March 7, 2023 and comments regarding the updated guidance of cooperation with local law enforcement and other DHS agency partners may be made until April 7, 2023.
USCIS Issues Comprehensive Guidance on Parole for International Entrepreneurs
On January 17, 2017, DHS published the International Entrepreneur Rule, which granted DHS discretionary authority to grant parole to entrepreneurs of start-up entities who could demonstrate “through evidence of substantial and demonstrated potential for rapid business growth and job creation that they would provide a significant public benefit to the United States.”
The International Entrepreneur Rule was fully implemented in 2021 and DHS reports received many applications since its implementation. To enhance the efficiency of the program, USCIS is publishing guidance, including the following information:
- “The criteria for consideration for the applicant, the start-up entity, and the qualified investment or government award or grant;
- Evidence and documentation;
- The discretionary nature of the entrepreneur parole adjudication;
- Conditions on parole and bases for termination;
- The criteria for consideration for an additional parole period; and
- Options available to the entrepreneur’s family to join the entrepreneur as parolees and, if eligible, to obtain employment authorization.”
Parole does not constitute an admission to the United States for immigration purposes, however, parolees may reside in the United States and may be authorized to work.
If you are interested in pursuing International Entrepreneurial Parole, please contact us at email@example.com for a case assessment.
USCIS Issues Guidance on its Analysis of Proving Ability to Pay
On March 15, 2023, USCIS issued a policy update discussing how the agency analyzes an employer’s ability to pay the proffered wage, a showing required for immigrant petitions in the EB-1, EB-2, and EB-3 categories. USCIS noted in its update: “The relevant regulation requires the employer to submit annual reports, federal tax returns, or audited financial statements for each available year from the priority date. If the employer has 100 or more workers, USCIS may instead accept a financial officer statement attesting to the employer’s ability to pay the proffered wage. The updated guidance also details various types of additional evidence employers may submit and explains how USCIS considers any evidence relevant to the employer’s financial strength and the significance of its business activities. Many employers satisfy the ability to pay requirement by submitting payroll records demonstrating that, during the relevant time period, they have been paying the employee at least the proffered wage.”
USCIS Requests Comments on Proposed Revision of Nonimmigrant Petition Based on Blanket L Petition
On February 21, 2023, USCIS published a 60-Day Notice and requested comments for its proposed revision of using a new I-129S Form for Blanket L Petitions. Under the proposed revision, the USCIS will use the new I-129S form to assess whether the employee meets the requirements for an L-1 intra-company transferee classification under a previously approved Blanket L petition. USCIS also noted submitting information through the form will be voluntary. Comments are due by April 24, 2023.
USCIS to Start Collecting Fee for EB-5 Integrity Fund
On March 1, USCIS announced each designated regional center in the EB-5 Regional Center Program will be required to pay an annual fee of $10,000 or $20,000 to fund the EB-5 Integrity Fund (“Fund”) for the administration of the Regional Center Program. The Fund will assist Department of Homeland Security with conducting investigations based outside of the U.S., detecting and investigating fraud, determining regional centers’ compliance with the law, conducting audits and site visits, and other purposes to maintain the integrity of the Regional Center Program. The standard annual fee is $20,000 and $10,000 for regional centers with 20 or fewer total investors in its new commercial enterprises.
CANADIAN BUSINESS IMMIGRATION UPDATES
Removal of Public Policy Exempting in-Canada temporary residence applicants from the requirement to provide biometrics
On February 23, 2023, the public policy exempting in-Canada temporary residence applicants from the biometrics requirement was revoked, restoring pre-pandemic procedures. Temporary residence applications submitted within Canada on or after February 23, 2023, will now require biometrics as per regular procedures, unless otherwise exempt.
Impact: In-Canada applicants who did not previously provide biometrics or whose biometrics have expired, may face delays in the processing of their in-Canada applications depending on biometrics centre capacity.
Extension of Public Policy Allowing Visitors to Apply for Work Permits from Within Canada
Until February 28, 2025, Foreign nationals who are in Canada as visitors will continue to be able to apply for and receive a work permit without having to leave the country. Visitors applying under this public policy who held a work permit within the last 12 months will also continue to be able to request interim work authorization to begin working for their new employer more quickly.
Impact: extending this policy makes visitors an option for employers in Canada, as many are facing significant labour shortages during this period of economic expansion.
Temporary Special Measures to Support Iranian Nationals
Effective March 1, 2023, IRCC is waiving certain processing fees for Iranian nationals in Canada in response to the systematic human rights violations being committed by the Iranian regime during its brutal crackdown on protestors. Furthermore, an open work permit pathway will be soon made available for Iranians already in Canada. Applications from Iranians in Canada will also be processed on a priority basis.
Impact: These measures will make it easier for Iranians who wish to extend or change their status in Canada.
New Learning Opportunities!
H-1B Contingency Planning – U.S. and Canadian Options
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. Often an initial review involves considering what options exist for individuals to remain in the U.S., and Managing Partner, David Brown, will walk through common options available as a back-up before considering international options.
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. To walk through the Canadian options, Clinton Green, Managing Attorney and Canadian Practice Lead will add his thoughts on the most straightforward options.
Back Up Options for Those Who Didn’t Make the Cap Registration – U.S. Options
Unfortunately every year we deal with multiple cases involving individuals who don’t get accepted into the H-1B Cap and it is important to have a back up plan for your lawful status. Managing Partner, David Brown, will speak in depth about the options available to individuals who have not been accepted. Don’t miss this important talk to better understand the options available to stay in the U.S.
[Spoiler – many of these options are options regardless of an individual’s situation and so can be used by many others who aren’t in this situation. Ultimately this is a good primer on visa options available to individuals who are running out of time/may need a new status to rely on.]
Back Up Options for Those Who Didn’t Make the Cap Registration – Canadian Options
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.
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 **