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. Please note we have increased our webinar learnings for December 2022 and January 2023 (it now includes Canadian content) – register at the end of this news alert.
U.S. BUSINESS IMMIGRATION UPDATES
AILA Reports Department of State (“DOS”) Making Progress toward Addressing Backlogs
In recent years, the Department of State (which includes U.S. consulates and embassies abroad), has faced historic backlogs in consular operations broadly, especially in terms of appointment availability, exacerbated by the global COVID-19 pandemic. As vaccines have become more available and countries have eased travel restrictions, the consulates face the task of combatting these backlogs. AILA notes that DOS has made significant progress in reducing these backlogs for both nonimmigrant and immigrant cases. Specifically, AILA confirms: “Since August 2021, the average issuance per month is 498,171. This represents a 185% increase from the pandemic monthly average of 174,766. Similar to immigrant visa issuance, DOS has made significant progress in its issuance rates for nonimmigrant visas; however, the monthly issuance rates are still far below pre-pandemic levels.”
In line with this update, DOS has also been encouraging NIV stamping applicants to look at third country national (TCN) appointments. The DOS publishes Global Visa Wait Times, noting “applicants scheduling visa appointments in a location different from their place of residence should check post websites for nonresident wait times”, here. The DOS notes: “we’ve doubled our hiring of U.S. foreign service personnel to do this important work, we are recovering faster than projected, and this year we will reach pre-pandemic processing levels.”
If you have questions about TCN appointments, options for requesting an expedited appointment, or other global mobility needs, please contact your BIL attorney for an assessment.
Venezuelan Parole Program
Near the end of October 2022, USCIS announced a program for Venezuelan parole, modeled in part after Unite for Ukraine. USCIS notes that the eligibility includes:
“To participate in this process, Venezuelan nationals must:
- Have a supporter in the United States;
- Undergo and clear robust security vetting;
- Meet other eligibility criteria; and
- Warrant a favorable exercise of discretion.”
This is a newly-developing program, meaning not all of the details are known yet. USCIS notes that each case will be handled on a case-by-case basis with the request made at the border. The temporary parole can be granted for up to two (2) years and may include work authorization. At this time, the program is limited to 24,000 Venezuelans. If you have questions about your specific situation and whether this may be an option for you, please contact your BIL attorney.
Prevailing Wage Processing Times
Processing times for Prevailing Wage Requests (PWRs) with the Department of Labor have continued to increase. AILA and other interested organizations have reached out to the Office of Foreign Labor Certification at the DOL to highlight the issue. In response, the OFLC has indicated that some applications can take longer than others depending on the facts of the case, however, their resources are continually stretched as the amount of PWR’s continues to increase. AILA reports the following on the matter:
“In light of the increased demand on their resources, OFLC has submitted a budget request for FY2023 for thirty (30) additional full-time employees. The hope is that these additional employees will help address the case volume that OFLC is experiencing. Please note that the DOL’s FY2023 budget is still pending in Congress. It has so far only passed one Committee in the House. The Senate has not yet considered the DOL’s budget. The DOL Liaison Committee encourages members to contact their congressional representatives in both the House and Senate to support an increase in resources to OFLC.
As a further reminder, members can track processing times and the volume of the different applications at www.FLAG.dol.gov . On the FLAG website, OFLC provides very detailed information about the number of prevailing wage requests received by month and the number of requests from each month that are still pending.”
More Time on the Clock for Responses to RFE’s and NOIDs (Again)
In March of 2020, USICS announced a blanket extension on the response deadlines for certain case types, extending due dates by 60 days. USCIS now extends this flexibility for requests or notices issued through January 24, 2023, meaning that a response is due no later than 60 days after the stated due date. The applicable list includes:
- Requests for Evidence;
- Continuations to Request Evidence (N-14);
- Notices of Intent to Deny;
- Notices of Intent to Revoke;
- Notices of Intent to Rescind;
- Notices of Intent to Terminate regional centers; and
- Motions to Reopen an N-400 Pursuant to 8 CFR 335.5, Receipt of Derogatory Information After Grant.
This flexibility allows crucial time to gather additional evidence, research applicable law, and make strategic decisions about many cases. If you are concerned about the deadline for a particular matter, please do contact your BIL attorney and we are happy to provide an assessment of your case.
Petitioners No Longer Required to Submit Duplicate Copies of Form I-129
USCIS updated its website with a reminder on October 11, 2022, that the agency no longer requires petitioners to submit duplicate copies of Form I-129. Noting, “Due to enhanced electronic scanning capabilities and data-sharing with the U.S. Department of State, duplicate copies are no longer needed to avoid delays in consular processing.”
Equal Pay Transparency Laws and the PERM Process
Several states have introduced Equal Pay Transparency (EPT) laws which can impact the PERM process. As you may know, a crucial part of the PERM process is a recruitment period, which advertises the offered role to test the labor market. EPT laws generally require a disclosed wage range on job advertising (among other requirements). Importantly, each set of EPT laws are different and nuanced, and generally include requirements outside of the immigration context. Currently, Colorado, Connecticut, Maryland, Nevada, New Jersey, New York and Ohio have versions of these EPT laws which may impact disclosures on PERM advertising. New York state’s EPT law was the most recent to go into effect, which occurred on November 1, 2022.
BIL attorneys have already been hard at work tracking the impact of these laws on PERM advertising and incorporating updates where necessary. Per DOL regulations, the sponsored employee should not have involvement with the recruitment period of the PERM process. To our HR partners, if you have questions about these laws, please reach out to your BIL attorney contact.
Delays in Petition Information Management Service (PIMS)
Recently, many have reported issues with the PIMS system, which is the online system DOS uses to view previously submitted materials to USCIS. For example, when an individual attends an H-1B visa stamping interview, the consular officer should be able to pull up the approval notice and submitted materials for review. However, recently USCIS has been delayed in scanning and uploading documents into the network, an issue which the agency is working on according to AILA.
If you face a delay or need confirmation on the list of documents to bring to your consular interview, please contact your BIL attorney.
U.S. Department of Education Announces It Will No Longer Recognize the Accrediting Council for Independent Colleges and Schools (ACICS)
We paste the below from the USCIS update on this issue. If you believe this may impact your case, please contact your BIL attorney ASAP.
“On Aug. 19, the U.S. Department of Education (ED) announced that it no longer recognizes the Accrediting Council for Independent Colleges and Schools (ACICS) as an accrediting agency. This determination immediately affects two immigration-related student programs:
- English language study programs, as the programs are required to be accredited under the Accreditation of English Language Training Programs Act; and
- F-1 students applying for a 24-month science, technology, engineering and mathematics (STEM) optional practical training (OPT) extension, as the regulations require them to use a degree from an accredited, Student and Exchange Visitor Program (SEVP) certified school for their STEM OPT extension. The school must be accredited at the time of the application; this is the date of the designated school official’s (DSO) recommendation on the Form I-20, Certificate of Eligibility for Nonimmigrant Student Status. M-1 students are not eligible for OPT.”
The Department of State has released the Visa Bulletin for December 2022. EB-1 remain current worldwide. For all chargeability categories, the Final Actions dates for EB-2 cases shows a final action date of November 1, 2022. EB-3 remains current for final action for all countries apart from China and India.
The following are China and India’s final action dates for EB-2 and EB-3:
- India’s EB-2 final action date: 10/08/2011
- India’s EB-3 final action date: 06/15/2012
- China’s EB-2 final action date: 06/08/2019
- China’s EB-3 final action date: 08/01/2018
As you can see in relation to October Bulletin, EB-2 India has retrogressed approximately six months which we see as an indication of the number of cases already filed and pending with USCIS.
CANADIAN BUSINESS IMMIGRATION UPDATES
The 2021 National Occupational Classification (NOC) System Is in Effect – Impacting Certain Permanent Residence and Work Permit Applications
On November 16, 2022, IRCC began implementing the 2021 version of the NOC system. NOC 2021 replaces the 2016 “skill type or level” system with a new 6-category Training, Education, Experience, and Responsibilities (“TEER”) system. The NOC is now a five-digit code instead of four. Furthermore, certain NOCs have been reclassified and the 16 following occupations are now Express Entry eligible:
- Payroll Administrators
- Dental Assistants and dental laboratory assistants
- Nurse aides, orderlies and patient service associates
- Pharmacy technical assistants and pharmacy assistants
- Elementary and secondary school teacher assistants
- Sheriffs and bailiffs
- Correctional service officers
- By-lay enforcement and other regulatory officers
- Estheticians, electrologists and related occupations
- Residential and commercial installers and servicers
- Pest controllers and fumigators
- Other repairers and servicers
- Transport truck drivers
- Bus drivers, subway operators and other transit operators
- Heavy equipment operators
- Aircraft assemblers and aircraft assembly inspectors
Generally, all candidates in the Express Entry pool must update their profiles with their new NOC codes. Candidates who submitted their applications or received their Invitations to Apply before November 16 do not need to worry about the changes, as their applications will be assessed under the previous NOC 2016. With respect to new work permit applications, applicants must use the updated NOCs.
We recommend that you schedule a meeting with our Canadian team to learn more about the NOC changes and how they can impact your employees.
IRCC Streamlines Immigration Medical Examination Requirements
IRCC announced a temporary public policy to exempt certain foreign nationals from submitting a new immigration medical examination (“IME”) when their previous IME expired. If you have either 1) a new or pending application made within Canada, or 2) completed an IME within the last 5 years and posed no risk to public health or safety, you do not need to submit a new IME.
New Work Permit Options for Italians Aged 18 to 35, as a Result of New Canada-Italy Agreement
The new Youth Mobility Agreement with Italy aims to create opportunities for Canadian and Italian youths to experience other cultures while developing life skills and improving their job prospects. The agreement allows Italian youth, between the ages of 18 and 35, to participate in the International Experience Canada program.
Eligible people can work and travel for up to 12 months in Canada under the one of the following three categories exempt from a labour market test: Working Holiday, Young Professionals, and International Co-op. Eligible youths can participate in the IEC program twice for a total of 24 months.
ESDC Updates Prevailing Wage
On or around November 16, 2022, Employment and Social Development Canada (“ESDC”) updated wage data for occupations across Canada, simultaneous to IRCC’s implementation of the 2021 TEER system.
For applications, including but not limited to Labour Market Impact Assessment (“LMIA”), C-12 Intra-Company Transferees, Comprehensive and Progressive Agreement for Trans-Pacific Partnership (“CPTPP”), and certain provincial nominations, employers and applicants should verify prevailing wage before filing. In some cases, they may be required to start their process over.
Our Canadian team is available to discuss these changes and more, should you have any questions. Please feel free to reach out to our Canadian team to get in touch.
New Learning Opportunities!
Top 10 Business Immigration Hacks
As a firm that focuses solely on supporting immigration we’ve developed some interesting hacks to ensure our clients have the most streamlined or successful path to a visa, work permit, or green card. Join Managing Partner David Brown as he walks through some of the best and most important hacks that Brown attorneys have used to speed up the process or ensure success. Our system immigration system is full of inefficiencies and in many cases we can’t change that as we are not the government. But knowing how the government works and manages its processes is sometimes key to figuring a better workaround. These hacks will help ensure success and in any event help speed up the process when they are available. Join us to learn more about this valuable hacks.
H-1B Cap Season Key Takeaways and Advance Planning Considerations
A new year brings a new H-1B lottery selection in early 2023! We want to ensure you are ready for the new year and that includes answering all of your H-1B Cap lottery questions so you 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 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 contingency planning for those who are not selected.
H-1B Contingency Planning – Think Canada, eh?
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. 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 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 **