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
Government Negotiations and Possible Shutdown: Congressional Update
Various news sources have confirmed that Congress may trigger a government shutdown on October 1, 2023 because, as many have reported, Congress is not expected to pass the funding appropriation bills necessary to fund the government before the new fiscal year begins.
Government shutdowns can halt work in many agencies, lead to general delays, and a lack of responsiveness as many government employees will be asked not to appear for work if the shutdown occurs. Typically, there are contingency plans in place for essential services, and many agencies have reserve funding, however, the impact is generally far reaching.
From an immigration perspective, during the previous shutdowns (four total that have lasted more than one day), USCIS has continued to operate because it is a fee-generating agency that does not wholly rely on government funding; however, it has operated at reduced staffing numbers which has caused delays, particularly in adjudications. The Department of State is similar, relying partially on revenue from visa application and related fees, but has suspended nonemergency services during shutdowns previously.
The Department of Labor has faced the greatest impact during shutdowns, including a halt on LCA services, and services related to the labor certification process (prevailing wage determinations, PERMs, etc.). Clearly, this can be incredibly disruptive to many processes that we support, which may cause overall delays in agencies that are already facing historic backlogs.
Given the potential for a high-level impact on immigration, we will continue to monitor Congress’ negotiations and hope that the appropriations bills are passed to ensure the government continues running. If the shutdown occurs, we will inform our clients of our expectations and advice.
USCIS Updates Policy Guidance for the Types of Evidence Evaluated in Extraordinary Ability and Outstanding Professor/Researcher (EB-1) Cases
On September 12, 2023, USCIS sent out an alert noting that the agency was “issuing policy guidance in our Policy Manual to clarify the types of evidence that we may evaluate to determine eligibility for extraordinary ability (E11) and outstanding professor or researcher (E12) EB-1 immigrant visa classifications.” The update from USCIS is meant to focus on evidence for beneficiaries in STEM fields.
Generally, the updates do not dramatically change an individual’s qualification for the EB-1 benefit, but they do clarify, among other notes, that invitations to speak at conferences, intra-organizational high awards, STEM trade show presentations, and being among a team of individuals highlighted in the media can be evidence supporting qualification for the benefit. The updated guidance also notes that publications should be for “learned persons in the field”, that job title may be a factor when determining critical roles, and more of an emphasis on being the leading author for a publication. For more information, please visit the USCIS policy manual here.
If you have questions about your EB-1 case or your eligibility for an EB-1, please do not hesitate to contact your BIL attorney.
USCIS Updates Policy Guidance for the “Sought to Acquire” Requirement Under the Child Status Protection Act
On August 24, 2023, USCIS issued policy guidance to clarify extraordinary circumstances that may excuse the “sought to acquire” requirement under the Child Status Protection Act (CSPA). The CSPA was enacted in 2002 to provide a remedy for applicants who have otherwise aged out (turned 21) and lost the possibility of gaining an immigration benefit because of USCIS processing delays. To benefit from the CSPA, applicants’ “CSPA age” must be under 21 years old and they must “seek to acquire” lawful permanent resident status in the United States within 1 year of when an immigrant visa becomes available. Additionally, the CSPA age is determined based on how long the applicant’s underlying petition was pending and the applicant’s age when a visa became available to the applicant or the petition is approved, whichever is later.
A policy update issued on February 14, 2023 clarified that USCIS considers a visa available for purposes of CSPA age calculations at the same time USCIS considers a visa available for accepting and processing the adjustment of status application, and that the 1-year period during which a noncitizen must seek to acquire lawful permanent residence for CSPA starts when a visa becomes available for accepting and processing a potential adjustment of status application. However, it mentioned that USCIS may, in its discretion, take into account certain extraordinary circumstances for failure to seek to acquire lawful permanent residence within 1 year of visa availability.
Under policy guidance in effect before February 14, 2023, an immigrant visa was not always available to calculate CSPA age at the same time a visa was available to file an adjustment of status application. As a result, USCIS could not yet calculate the noncitizen’s CSPA age because a visa had not yet become available under the prior policy or USCIS would have calculated the noncitizen’s CSPA age to be over 21 years old. Some noncitizens may not have filed an adjustment of status application as a result of these circumstances. Furthermore, some applicants, who met the “sought to acquire” requirement when they filed their adjustment applications under the policy guidance in effect before February 14, 2023, may no longer meet the requirement under the new policy. The latest policy guidance therefore clarifies that USCIS may excuse an applicant’s failure to satisfy the “sought to acquire” requirement in cases where the applicant did not file their adjustment application because USCIS could not calculate their CSPA age or would have calculated their CSPA age to be over 21 years old under the prior policy, but they are now eligible for CSPA age-out protection under the new policy. Additionally, it provides that USCIS considers applicants whose adjustment of status applications were pending on February 14, 2023, to have satisfied the “sought to acquire” requirement if the applicant had applied for adjustment of status within 1 year of visa availability under the policy guidance in effect at the time of filing.
ICYMI: Practice Alert: Automatic 540-Day Extension of Certain EAD Renewals Will Expire on October 26USCIS Updates Policy Guidance for the “Sought to Acquire” Requirement Under the Child Status Protection Act
On May 4, 2022, the Department of Homeland Security (“DHS”) issued a temporary final rule that increased the Employment Authorization Document (“EDA”) automatic extension period for eligible renewal applicants from 180 days up to 540 days to address historically long processing times for the Form I-765.
As part of this temporary rule, however, the USCIS announced that the 540 day extension for EAD renewals will expire on October 26, 2023, back to the original 180-day automatic extension period. This means that these eligible renewal applications filed on or after October 27, 2023, will only qualify for an automatic extension of up to 180 days.
For context, to account for long processing delays, the USCIS has permitted automatic EAD extensions for certain eligibility categories per Form I-765. This extension allows certain individuals filing in these specific eligibility categories to continue to work in the United States while their extension application is pending, even if their EAD card has expired. The eligible categories include the following:
| (a)(3) | Refugee |
| (a)(5) | Asylee |
| (a)(7) | N-8 or N-9 |
| (a)(8) | Citizen of Micronesia, Marshall Islands, or Palau |
| (a)(10) | Withholding of Deportation or Removal Granted |
| (a)(12) | Temporary Protected Status (“TPS”) Granted |
| (a)(17) | Spouse of principal E nonimmigrant with an unexpired I-94 showing E (Including E-1S, E-2S and E-3S) nonimmigrant status |
| (a)(18) | Spouse of principal L-1 Nonimmigrant with an unexpired I-94 showing L-2 (including L-2S) nonimmigrant status |
| (c)(8) | Asylum Application Pending; |
| (c)(9) | Pending Adjustment of Status under Section 245 of the Act |
| (c)(10) | Suspension of Deportation Applicants (filed before April 1, 1997), Cancellation of Removal Applicants, and Special Rule Cancellation of Removal Applicants Under NACARA |
| (c)(16) | Creation of Record (Adjustment Based on Continuous Residence Since January 1, 1972) |
| (c)(19) | Pending initial application for TPS where the USCIS determines applicant is prima facie eligible for TPS and can receive an EAD as a “temporary treatment benefit” |
| (c)(20) | Section 210 Legalization (pending I-700) |
| (c)(22) | Section 245A Legalization (pending I-687) |
| (c)(24) | LIFE Legalization |
| (c)(26) | Spouses of certain H-1B principal nonimmigrants with an unexpired I-94 showing H-4 nonimmigrant status |
| (c)(31) | VAWA Self-Petitioners |
Eligible applicants may continue to qualify for the 540-day extension if their application is filed on or before October 26, 2023, and they meet the following criteria:
- Applicant has properly filed Form I-765, Application for Employment Authorization, for a renewal of their employment authorization before their current employment authorization expires;
- The renewal application is under one of the eligible categories above; and
- Form I-765 is filed requesting an extension of employment authorization based on the same category (unless the category is based on Temporary Status, in which case categories (a)(12) or (c)(19) can be used interchangeably).
This reversion will affect applicants under common EAD categories, such as individuals with a pending Adjustment of Status application, Refugees, and Asylees. Historically, this rule also would have affected spouses of E-2 and L-1 principal foreign nationals. However, E-2 and L-2 spouses are now eligible to work incident to their status with a spousal designation on their I-94.
If you have filed an EAD renewal application in an eligible category between May 4, 2022, and October 26, 2023, and the application is still pending, the USCIS has created a calculator to help applicants determine their new EAD Expiration Date, which can be found here. Please note that this automatic extension will end immediately if the EAD renewal application is denied.
USCIS Policy Manual Update and Completing Form I-485 Questions Related to Public Charge Issues
On July 20, 2023, the USCIS updated its policy manual to help applications for adjustment of status adjustment of status more easily identify whether they are subject to the public charge ground of inadmissibility under section 212(a)(4) of the Immigration and Nationality Act (“INA”).
Under the INA, an applicant for a visa, admission, or adjustment of status who is “likely at any time to become a public charge,” is inadmissible. A public charge determination is based on an individual’s likelihood of becoming primarily dependent of the United States government for subsistence, typically through public cash assistance or long-term institutionalization at the government’s expense. In determining the inadmissibility of an applicant under the public charge ground, the DHS considers the applicant’s age, health, family status, assets, resources, and financial status, and education and skills.
While the USCIS policy update does not change this policy, the new guidance is designed to enable applicants to respond accurately to questions on the public charge ground of inadmissibility on Form I-485, Application to Register Permanent Residence or Status. Under the new guidance, USCIS confirms that the following applicants for adjustment of status are subject to the public charge ground of inadmissibility:
| Employment-Based Adjustment of Status Applicants: |
| Priority workers |
| Professionals with advanced degrees or noncitizens of exceptional ability |
| Skilled workers, professionals, and other workers |
| Investors |
| Family-Based Adjustment of Status Applicants: |
| Spouses, children, and parents of U.S. citizens |
| Unmarried children of U.S. citizens and their children |
| Spouses, children, and unmarried sons and daughters of Legal Permanent Residents |
| Married children of U.S. citizens and their spouses and children |
| Siblings of U.S. citizens |
| Fiancé(e)s of U.S. citizens |
| Amerasians based on preference category, born on or after Dec. 31, 1950, and before Oct. 22, 1982 |
| Spouses, widows, or widowers of U.S. citizens |
In addition, special immigrants such as religious workers, U.S. armed forces personnel, foreign medical school graduates, retired employees of international organizations, and others are also subject to the public charge ground of inadmissibility.
F-1 Student Lawsuit
A group of approximately 70 former F-1 students from India filed lawsuit against the U.S. government for denying their visas based on the allegation that the students engaged in fraudulent employment. The said group claims that DHS unlawfully made a blanket finding of inadmissibility against them because, while on a student visa under the OPT program, they worked for one of the four companies who were found fraudulent by DHS: Andwill Technologies, AzTech Technologies LLC, Integra Technologies LLC, and WireClass Technologies LLC. The students claim that they were unfairly punished as victims of the fraud themselves, and it was their employers who defrauded the government, schools, and the students.
The students’ main argument is that the agency violated the Administrative Procedure Act (APA) by exceeding its authority and deeming the plaintiffs as inadmissible without a full record of the evidence, and that the agency’s actions were also procedurally deficient because the agency did not notify the visa applicants of the action against them, according to the lawsuit. The students are asking the court to set aside the DHS’s decision on denying their visas and order the agency to allow them respond to any fraud allegations before making the determination of their inadmissibility.
If you previously worked for any of the companies mentioned above, please contact your BIL attorney as soon as possible.
USCIS Launches Online Form for Requesting In-person Appointments
In an attempt to streamline the process of requesting an in-person appointment at a local field office, USCIS has recently launched a new online form for individuals, attorneys, and accredited representatives to request in-person appointments without the need to call the USCIS Contact Center. With the introduction of this online appointment request form, individuals or legal representatives can now request an in-person appointment at a field office for various purposes, including ADIT stamps, Emergency Advance Parole, Immigration Judge Grants, and more. This initiative aligns with USCIS’ commitment to improving customer experience and service delivery. The online appointment request form is accessible here.
Please note this is not a self-scheduling tool, and USCIS will review the submitted forms along with the availability of in-person appointments at specific field offices. While you can request a specific date and time for your appointment, USCIS does not guarantee your requested appointment will be scheduled. If needed, USCIS may reach out to you via phone or email, depending on the urgency and purpose of your appointment request. Additionally, the USCIS Contact Center phone number (1-800-375-5283) remains active for addressing other issues.
USCIS believes that the online appointment request form will enhance the overall customer experience by collecting necessary information upfront and potentially scheduling your requested appointment without any further engagement with the USCIS Contact Center. By offering and promoting this option, USCIS aims to reduce traffic on the 1-800 phone line, thereby providing a more convenient process for all customers.
Update on the Progress of the Afghan Adjustment Act
A bipartisan bill for providing a path to permanent resident status to Afghan nationals evacuated after the fall of Kabul was introduced in the U.S. Senate in August and House of Representative in July. The vast majority of Afghan evacuees were granted temporary humanitarian parole status due to expire in 2023. While the Biden administration has authorized re-parole as an avenue, the Afghan Adjustment Act, if passed, will provide Afghan evacuees who passed a strict vetting requirement a pathway to permanent resident status. The Afghan Adjustment Act will also expand Special Immigrant Visa eligibility to additional groups of Aghan nationals to support individuals outside of the U.S. Despite bipartisan support, lawmakers were not able to bring the Act to a vote as part of the National Defense Authorization Act, leaving the Act still in limbo when Congress returns from recess.
We will continue to monitor for updates on this and other immigration bills introduced to Congress.
Documents Reveal that DHS is Using Fake Social Media Accounts Created for Immigration Agencies
According to the Brennan Center for Justice at New York University School of Law, documents obtained through Freedom of Information Act (FOIA) requests show that Department of Homeland Security immigration agencies including Immigration and Customs Enforcement (ICE), Customs and Border Protection (CBP), and USCIS have been using social media to collect potentially sensitive personal information of individuals for various purposes. Some common practices include creating fake social media accounts to obscure users’ government affiliation and to identify potential fraud by individuals applying for immigration benefits.
We would like to remind clients that information posted online may have a direct impact on your eligibility of immigration benefits and to be mindful of the accuracy of information available online.
Visa Bulletin October 2023
We are pleased to bring you the latest updates from the Department of State’s October 2023 visa bulletin. This month’s bulletin brings significant advancements in several visa categories, providing filing opportunities for many currently going through the green card process.
The EB-1 category is now current for nationals of all countries, except for countries listed separately (also known as “rest of world”). This means that individuals with extraordinary abilities, outstanding professors and researchers, and multinational executives or managers can proceed with their immigration process with no priority date restrictions, significantly expediting the path to permanent residency. There has also been a significant advancement in the EB-1 category for Indian nationals. The priority date has progressed from January 1, 2012, to January 1, 2017, offering more individuals the opportunity to apply for green cards in this category.
In this month’s bulletin, there is positive news for nationals from all countries in the EB-2 category. The priority date for Chinese nationals has moved to October 1, 2019, while for Indian nationals, it has advanced by one year from the previous bulletin, now set at January 1, 2012. Finally, the EB-3 category has seen remarkable advancements this month. Indian nationals now have a priority date of May 1, 2012, representing a progression of over three years from the previous bulletin. Likewise, Chinese nationals have seen their priority date advance to January 1, 2020.
We understand the importance of staying informed about the visa bulletin as it directly impacts your immigration journey. Please note that the Visa Bulletin is updated on a monthly basis, and the priority dates mentioned in this newsletter are subject to change in future bulletins. We strongly encourage you to contact our team for personalized guidance and to discuss the best course of action for your specific case.
CANADIAN BUSINESS IMMIGRATION UPDATES
Canada to Reduce the Temporary foreign Worker Program Red Tape for Trusted Employers
To ensure that the Express Entry system is responsive to Canada’s changing economic and labour market needs, section 11.2 of the Immigration and Refugee Protection Act (IRPA) was amended to grant the authority to the minister of Immigration, Refugees and Citizenship to issue Express Entry invitations to apply for permanent residence on the basis of eligibility for a category (category-based selection).
The Express Entry program delivery instructions have been updated to reflect the changes to section 11.2 and to instruct officers on how to assess Express Entry category-based selection applications where the principal applicant was invited by virtue of their membership in a category.
Critically, IRCC has clarified that the eligibility requirements to be awarded CRS points for additional factors for education are generally aligned with the requirements for post-graduation work permit (PGWP) eligible programs and institutions. As a result, institutions or programs that are not eligible for a PGWP (at the time of e-APR) should not be awarded CRS points for additional factors (they can, however, be awarded points for core human capital factors and skill transferability if the institution is a DLI).
IRCC has also expanded their instructions on when an electronic application for permanent residence (e-APR) can be refused due to a change in circumstances. An application under section A11.2, a processing office must consider the information in an applicant’s profile at the time of the round of invitations and the information provided when the applicant submits their e-APR. After an e-APR is submitted, an application cannot be refused due to a change in circumstance unless:
- the officer determines that the change occurred before the applicant submitted their e-APR and that the change would have caused the applicant to be refused under section A11.2; therefore, the application should be refused under section A11.2 or
- the change in circumstance means the applicant no longer meets the minimum requirements of the category (CEC vs FSW vs to which they are applying.
As the Express Entry landscape continues to shift, it is important that applicants appreciate the nuance and complexity behind some of the requirements as well as the policies in place to protect against officer errors. Please reach out to your BIL Attorney if you have any questions about an Express Entry application or wish to learn more about the program.
Express Entry
Express Entry is the primary system for managing immigration in Canada. 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.
Canada issued zero (0) Invitations to Apply (ITA) for permanent residence (PR) under Express Entry over the last few weeks. We expect there will be increased activity as the year ends.
If you have any questions about Express Entry, Permanent Residency, or any Canadian immigration programs, please contact us to schedule a consultation.
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
2023 in Our Rear View Mirror – What to Expect in 2024
Join us for a session that highlights some of the changes we have seen in the last year and tapped into in supporting our clients navigate the immigration bureaucracy. In closing the books on 2023 Managing Partner, David Zaritzky Brown, will also talk about the future. He will specifically update on key changes we have seen so far, and changes that are coming down the pipeline. Attending this webinar will help you be grounded in the key changes that affect business immigration processing to better plan your policies and think about the future in workforce planning. As always, David will provide ample time to ask questions about what’s next on the horizon.
Best Practices in US Business Immigration Law
One could call this a Hack-a-thon for US Business immigration services where Managing Partner, David Zaritzky Brown, along with Managing Attorney, Caterina Saggio, will walk through some of the tricks we have developed or tools we have used to both ensure success and deliver results for our clients. David and Caterina will highlight 10 things that all companies hiring foreign workers will benefit from as our firm best practice.
In addition to walking through specific scenarios and examples, David and Caterina will stay on after the presentation to “talk shop” and answer any questions.
This webinar will walk through all of the most important topical information and provide time for questions. As this topic relates to hiring related paperwork it is intended for HR partners and managers involved in the hiring process.
H-1B Cap and Change of Employer Primer
Hosted by David Zaritzky Brown, Managing Partner, this session is geared towards a better understanding of what is H-1B status. David will spend time explaining how an H-1B change of employer works for employers seeking to hire someone in H-1 status, while also discussing the H-1B cap process so employers can prepare for the Cap registration coming in March 2024. For those employers who wish to plan ahead for the upcoming Cap lottery this will ensure all HR have a good understanding of what to expect and when.
Whether a Change of Employer filing, or New Cap Registration H-1B, David will answer all questions.
Think Canada – Contingency Planning for H-1B Cap Season
As the FY 2025 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., 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.
Moderated by Managing Partner, David Zaritzky Brown, this program will highlight useful Canadian options supported by the Canadian practice, led by Clinton J. Green, Managing Attorney and Canadian Practice Lead, and his team.
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 **
