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
USICS Provides FAQs for EB Adjustment of Status Applications (FY 2023)
In the middle of September, USCIS released FAQs covering a variety of topics. In their FAQs, USCIS explained the reasoning behind the retrogression in EB-2 India for the October 2022 visa bulletin, noting the following: “In setting the first Visa Bulletin of the fiscal year each October, DOS makes reasonable estimates of the available employment-based immigrant visas in each category. It then, in collaboration with USCIS, reviews the pending inventory of adjustment of status and immigrant visa applications, makes reasonable estimates of new applications, estimates how many of the pending and newly filed applications are likely to result in visa use during the fiscal year, and compares those values to the available visas.” Put another way, clearly USCIS has a large number of current cases still in process.
USCIS also further explained the procedure for submitting Form I-693, Report of Medical Examination and Vaccination Record. If possible, USCIS suggests that Form I-693 should be submitted with the initial adjustment application, however, if that is not possible, the form should not be submitted subsequently as it may be lost. Another update for Form I-693 is that USCIS has extended the waiver of the requirement that the civil surgeon’s signature on an otherwise valid Form I-693 be dated no more than 60 days before filed. This waiver has been extended through March 31, 2023.
Next Phase of Premium Processing for EB-1 and EB-2 Form I-140
If you filed an I-140 as a multinational manager or executive (received by USCIS on or before January 1, 2022) or filed an I-140 NIW petition (received by USCIS on or before February 1, 2022), then you may upgrade your petition to premium processing as of September 15, 2022. Your BIL attorney is tracking your case, but do check in with any questions about your specific case’s progress.
Social Security Administration (SSA) to Recognize Work Authorization Incident to Status for E and L Spouses
Recently, USCIS confirmed that the SSA is updating its system to recognize that E and L spouses are work authorized incident to status. Previously, individuals had reported issues with the SSA refusing to issue social security numbers to E and L spouses. If you have trouble in this area, please contact your BIL attorney for assistance.
Form I-90 Extension (From 12 months to 24)
Effective September 26, 2022, USCIS has automatically extended the validity of LPR cards from 12 months to 24 months after the filing of Form I-90. If you have filed Form I-90, you should receive an amended notice noting this update. This is yet another sign that as USCIS Continues to grapple with backlogs, certain case types are given less priority.
DACA Update
Earlier this month, an appellate court ruled that the DACA program was unlawful, concluding that the program violates federal immigration law. For those unfamiliar, DACA (Deferred Action for Childhood Arrivals) is a program, created by the Obama Administration in 2012, which provides administrative relief to eligible immigrants who came to the United States as children. Through DACA, eligible individuals are protected from deportation and may receive a work permit.
The ruling in federal court means that the government can no longer accept new applications for DACA but may continue to accept renewal applications for current DACA recipients. Importantly, the case has been sent back to a lower court to determine the further impact it could have on current DACA recipients, putting nearly 600,000 individuals protected by DACA at risk.
With this backdrop, the need for comprehensive and commonsense immigration reform is paramount. Without Congressional action, many will continue to feel the impact of current immigration law, which leaves many stuck in status limbos and extreme backlogs, undermining faith in the system. At BIL, we seek to find ways to navigate the complexity of current immigration law with a focus on innovative solutions for our clients, while at the same time advocating for comprehensive reform.
October 2022 Visa Bulletin and EB-5 Investors (Including Other EB-5 Updates)
The October Visa Bulletin showed a retrogression for EB-2 India of two years, but also had important updates for the EB-5 investor program. The two developments, as described by AILA, are the following:
(1) priority date retrogression of the 5th Unreserved Final Action Date (FAD) for China-mainland born from December 22, 2015, to March 22, 2015, and
(2) creation of a 5th Unreserved FAD for India of November 8, 2019. The FAD has remained current for all other countries in the EB-5 Unreserved categories, and for all countries in the EB-5 “Set-Aside” categories.
USCIS announced that it will allow the filing of AOS applications based on the Dates for Filing chart for October. Primary, this retrogression impacts individuals in the China-mainland category. AILA notes that “it is unlikely that DOS will advance the 5th Unreserved FAD for China-mainland in the foreseeable future unless DOS determines it can start using the otherwise unused Rest of World (ROW) numbers, which would occur in the second half of the fiscal year after determining ROW demand.”
Additionally, on October 11, 2022, USCIS released updated policy guidance based on the EB-5 Modernization Rule and the EB-5 Reform and Integrity Act of 2022. The guidance confirms, among other highlights, that applicants may file their applications to adjust status concurrently (or subsequent to) Form I-526 when a visa is immediately available. USCIS is also removing the word “Alien” from the name of Form I-526, now called “Immigrant Petition by Standalone Investor.”
Visa Bulletin
The Department of State has released the Visa Bulletin for November 2022. Apart from India and China, EB-1, EB-2, and EB-3 remain current worldwide.
The Final Action Dates and Date for Filing Charts for the EB-2 category have not changed and remain on April 01, 2012 and May 01, 2012, respectively, for India. Similarly for India in EB-3, Final Action Dates and Dates for Filing have not changed and remain on April 01, 2012, and July 01, 2012 respectively. The EB-2 dates for China remain at July 8, 2019 (Dates for Filing) and June 8, 2019 (Final Action), the same as the date for EB-3 China, remaining at July 15, 2018 (Dates for Filing) and June 15, 2018 (Final Action).
CANADIAN BUSINESS IMMIGRATION UPDATES
IRCC Announces a Temporary Policy to Facilitate Additional Off-Campus Work Hours for International Student During Academic Sessions
To assist Canadian employers in addressing ongoing labour shortages as the Canadian economy continues to recover, IRCC has announced that international students who are in Canada and who have off-campus work authorization on their study permits, will not be restricted by the 20 hour-per-week rule between November 15, 2022 and December 31, 2023. Effectively, international students will be eligible to work more than 20 hours/week during academic sessions from November 5, 2022, until December 31, 2023.
NOTE: While this is great news for Canadian employers, be reminded that the onus is on employers to confirm that international students satisfy all conditions required to work while holding a study permit. Please reach out to our Canadian team for advice regarding student work authorization.
Canada Removes the last remnants of COVID-10 Related Travel Restrictions
Effective October 1, 2022, Canada removed all requirements relating to COVID-19 testing, vaccine requirements, and the controversial ArriveCAN App, regardless of travel or nationality.
With this change, employers can more easily and predictably plan for the movement talent into Canada.
Amendments to the Immigration and Refugee Protection Regulations
The Government of Canada has amended the Immigration and Refugee Protection Regulations, to bolster temporary foreign worker protections and the integrity of both the ensure the Temporary Foreign Worker Program (TFWP) and the International Mobility Program (IMP).
Two critical changes that will require action from Canadian employers are as follows:
- Providing an Employment Agreement to the Temporary Foreign Worker
TFWP employers (employer’s applying for LMIA) must now commit to having an employment agreement with the temporary foreign worker. The employer must provide the temporary foreign worker with a signed copy of the employment agreement on or before the first day of work. A similar condition applies to employers who are hiring under the IMP when hiring a worker exempt from an LMIA.
In both programs, the employment agreement must match the offer of employment. The employment agreement must provide for employment in the same occupation, with the same wages and with the same working conditions as those set out in the offer of employment. The employment agreement must be drafted in the temporary foreign worker’s choice of English or French, and it must be signed by both the employer and the temporary foreign worker.
2. Providing Private Health Insurance for Emergency Medical Care for a temporary period
All TFWP employers (employers who obtained LMIA’s) must obtain and pay for private health insurance that covers emergency medical care during the period for which the temporary foreign worker is not covered by their provincial or territorial health insurance system.
To avoid immigration compliance pitfalls, we recommend that you schedule a meeting with our Canadian team to review your standard employment agreement and document retention policies to confirm compliance with Canadian immigration requirements.
Ontario is contemplating further restrictions to its Foreign Worker with a Job Offer Stream
Ontario’s Ministry of Citizenship is proposing minimum language requirements for the Foreign Worker with a Job Offer stream under the Ontario Immigrant Nominee Program – a useful program for foreign workers to obtain a provincial nomination and qualify for permanent residence when they are not eligible or competitive for permanent residence under standard programs. Specifically, the Ministry will requirement applicants under the OINP Foreign Worker with a Job Offer Stream to demonstrate competency at the Canadian Language Benchmark (CLB) 5 Level or above.
Workers in certain occupations that have been considered essential (e.g., cooks, retail supervisors, trades, mine labourers, labourers in food processing etc.) may not be able to meet the CLB 5 requirement but have integrated in Ontario and are making significant contributions to the labour market. Implementing a minimum language requirement may contribute to the loss of essential workers.
Employers should consider proactively registering current staff with the Ontario Immigrant Nominee Program such that they can increase the likelihood of obtaining a nomination from Ontario before the requirements are amended.
New Learning Opportunities!
Key New Covid Era Tricks, including AOS Portability for the Great Downgrade
During this session, Managing Partner, David Brown will highlight important changes in how we practice brought on by the Covid Pandemic and associated fallout. This includes discussing new approaches to visa policy and travel, as well as planning for green cards in the decentralized situation many employers find themselves in. Also chief among this is the significant volume of individuals who are still pending on their Adjustment of Status two years later because of the shift in visa bulletin to favor EB-2 India and what this means for companies that want to employ those who still wait for their green card. In addition to highlighting some of these important shifts and how employers can adapt, David will work through a few case examples and spend a generous amount of time at the end answering questions from HR and management.
Please Join Us This Fall:
as we explore several other important facets of employment-based immigration. Our schedule of further learning opportunities is included below – register today for our fall events.
* Key Business Immigration Updates in 2022
Register for November 3, 2022 or November 8, 2022
* Maximizing Your Immigration Policies
Register for November 17, 2022
* Top 10 Business Immigration Hacks
Register for December 1, 2022 or December 13, 2022
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.
Best Regards,
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 **
