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.
Have you registered to vote? With 42 days to go before the Presidential election in the United States, we encourage all who are eligible to vote in the upcoming election. If you have yet to register, you may visit: https://www.usa.gov/register-to-vote for instructions on voter registration. With many immigrants unable to vote, we urge you to be the voice for those who cannot express their own voice at the ballot box. Please visit our website to register for our webinars, including an upcoming episode where Managing Partner David Brown will shed light on the impact of the choice for President this year.
U.S. BUSINESS IMMIGRATION UPDATES
Update on Keeping Families Together Initiative
Announced first in June 2024 and implemented officially near the end of August, the Department of Homeland Security’s Keeping Families Together parole-in-place program “allows for humanitarian parole and a path to permanent residency for certain immigrant spouses of U.S. citizens without them having to leave the country” as reported by the American Immigration Lawyers Association (AILA). Unfortunately, quickly after its implementation, 16 Republican led states sued to block the program. On August 26, a federal judge issued an administrative stay of the program, preventing USCIS from awarding benefits to applicants; applicants can still file their paperwork while awaiting a decision.
Most recently, on September 11, a higher court froze the lower court proceedings to hear the appeal of a group of intervenors – a party of immigrants impacted by the lawsuit – and determine whether the group can become party to the case. During this subsequent freeze, USCIS may continue to accept parole-in-place applications under the program, but still may not grant the requested parole.
Despite the recent loss of Chevron deference to government agency decisions, we are hopeful the courts recognize this policy supports family unity, a cornerstone of immigration law since the INA was enacted. We will continue to monitor for updates.
USCIS Updates Guidance for F/M Nonimmigrant Student Classification
Near the end of the August 2024, USCIS released updated guidance in its policy manual regarding F-1 student eligibility for the STEM extension of their OPT, as well as clarifying guidance for “online study, school transfers, the grace period, and study abroad.” USCIS summarized the guidance in the following bullet points:
- Clarifies that students may count one class or three credits (or the equivalent) during each term or semester toward a full course of study if the class is taken online or through distance learning not requiring physical attendance for any purpose integral to completion of the class.
- Explains that students may transfer between SEVP-certified schools at the same educational level or move between educational levels.
- Explains that, during the 60-day grace period following an authorized period of post completion of OPT, students may change their education level, transfer to another SEVP certified school, or file an application or petition with USCIS to change to another nonimmigrant or immigrant status.
- Clarifies that students may be eligible for post-completion OPT after completion of an associate’s, bachelor’s, master’s, or doctoral degree program.
- Corrects the time period during which students may apply for STEM OPT extensions and makes other technical corrections.
- Clarifies that a student enrolled in an ICE SEVP-certified school during a study abroad program may remain active in SEVIS if the study abroad program lasts less than 5 months, but the student will need a new Form I-20 if the program lasts longer than 5 months.
Please contact your Brown Immigration Law attorney with any questions about the updated guidance.
Lawful Permanent Residents Filing a Form I-90 Extension Now Benefit from a 36 Month Extension of their Green Card (I-551)
As reported by USCIS on September 18, “Effective Sept. 10, 2024, U.S. Citizenship and Immigration Services automatically extended the validity of Permanent Resident Cards (also known as Green Cards) to 36 months for lawful permanent residents who file Form I-90, Application to Replace Permanent Resident Card.”
More information on the announcement can be found here.
Department of State Announces a New Visa Classification – Lightering
As reported by the DOS in early September, “Starting on September 5, 2024, the Department will begin implementing two new visa classifications for noncitizens seeking to transit the United States to join a vessel engaged in foreign trade and undertaking lightering activities for a period not to exceed 180 days. Lightering is the ship-to-ship transfer of liquid cargo. The new visa classification permitting transit to join a lightering vessel is the C-4 visa. The new visa classification permitting crewmembers to perform lightering activities is the D-3 visa. Additionally, applicants may be eligible for a combination C-4/D-3 visa. Unlike C-1 and C-1/D visa holders whose stay in the United States cannot exceed 29 days, C-4, D-3, and C-4/D-3 visa holders are allowed to stay in the United States for a period not to exceed 180 days.”
We welcome the expansion of any visa classifications and will continue to monitor for additional updates.
October Visa Bulletin
The October Visa Bulletin has been released. In a change from last month, USCIS has announced that it will accept the Dates for Filing Chart (also known as Chart B). The October bulletin did not move as favorably as anticipated by many, but the move from USCIS to accept Dates for Filing does open up some paths to filing. There is progression among the dates in the Dates for Filing chart, however, the Final Action chart sees very little movement in this update. Unfortunately, the Final Action date for EB-3 China retrogresses by 8 months, but the Final Action date for EB-3 Worldwide will advance by close to 2 years.
As a reminder, although the Dates for Filing chart permits the filing of an Adjustment of Status application with USCIS, the case cannot be approved until the individual applicant’s priority date is current under the Final Action Chart.
CANADIAN BUSINESS IMMIGRATION UPDATES
Additional Restrictions for International Students & Foreign Workers (and their Spouses)
On September 18, 2024, Immigration, Refugees, and Citizenship Canada (IRCC) announced a series of additional measures in its continued efforts to reduce the number of temporary residents in Canada. These changes aim to bring the temporary resident population down from 6.5% to 5% of the total population by 2026.
Key Changes:
- Masters and Doctoral Students Will be Subject to Annual Cap: While master’s and doctoral students currently don’t need a provincial attestation letter, this will change for the 2025-2026 intake. They’ll need to confirm their place within their province’s international student cap, with IRCC reserving 12% of spaces for them
- Changes to Post-Graduation Work Permits (PGWP) Eligibility Requirements: Previously, there were no language or occupational requirements for PGWPs. However, starting November 1st, applicants will need a minimum English or French proficiency level and may need to be in a specific field of study to qualify for a three-year PGWP.
- Further limiting Work Permit Eligibility for Spouses of International Students: By the end of 2024, open spousal work permits will be limited to spouses of master’s students in programs lasting at least 16 months. Spouses of undergraduate (and college) students lost eligibility for open work permits on March 19, 2024.
- Limiting Work Permit Eligibility for Spouses of Foreign Workers: Currently, most, if not all spouses of temporary foreign workers are eligible for open work permits. By the end of 2024, only spouses of temporary foreign workers in management or professional positions of who are employed in sections with labour shortage will be eligible to apply for open spousal work permits.
For businesses, these changes could significantly impact your company’s immigration program. For individual students, foreign workers, or the spouse of either, these changes may impact your immigration journey. Contact us to discuss how these changes may impact you! Our team can provide personalized guidance and assistance.
Federal Court: Immigration Officers Should Not Treat Non-Mandatory Requirements as Mandatory
In a recent decision in Singh v. Canada (Citizenship and Immigration), 2024 FC 1165, the Federal Court has overturned an immigration officer’s refusal of a work permit application. The Court found that the officer had erred in two key areas:
- Overlooking Optional NOC Requirements: The officer had insisted that the applicant meet a non-mandatory educational requirement listed in the National Occupational Classification (NOC) job description. The Court ruled that this was unreasonable and that the applicant was not required to provide proof of secondary school completion.
- Ignoring Evidence of English Proficiency: The officer had demanded standardized language tests to prove English fluency, despite the applicant providing ample evidence of their language skills, including education, work experience, and letters from employers.
This decision is significant for immigration applicants as it demonstrates that immigration officers must carefully interpret NOC requirements and consider a variety of evidence when assessing language proficiency. If you have experienced a work permit refusal or any other immigration issue, reach out to your BIL lawyer.
Important Update: Visitor Work Permit Changes
In 2020, as a response to the COVID-19 pandemic, Immigration Canada introduced a temporary policy that allowed visitors to apply for work permits while already in Canada. This policy was designed to help address labor shortages and support the economy during a challenging time.
Unfortunately, this temporary measure has now come to an end. As of August 28th, 2024, foreign nationals visiting Canada can no longer apply for work permits without leaving the country.
If you were planning to apply for a work permit while in Canada, it’s important to be aware of this change. Please contact your Brown Immigration Law attorney to discuss your options.
Express Entry – Recent Summary
Express Entry is the primary system for managing permanent 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. Since September 9, 2024, Canada issued 1,911 Invitations to Apply (ITA) for Permanent Residence (PR) under Express Entry. Please see below for a high-level summary:
- IRCC held three targeted draws for Provincial Nominee Program candidates, inviting 911 Express Entry candidates; the cut-off score was 732; and,
- IRCC held one targeted draw for French-speaking candidates, inviting 1000 Express Entry candidates; the cut-off score was 446.
If you have any questions about Express Entry, Permanent Residency, or any Canadian immigration programs, please contact your Brown Immigration Law attorney to schedule a consultation.
NEW LEARNING OPPORTUNITIES
Important Canadian Immigration Changes – An Update on the Rapid Evolution of the Canadian Immigration System
Canada’s immigration landscape is undergoing a significant transformation, with recent policy changes having profound implications for individuals and businesses alike. From restrictions on international students and foreign workers to potential adjustments to permanent resident levels and the Post-Graduation Work Permit (PGWP) program, immigrating to Canada will is steadily becoming increasingly complex.
Join Managing Attorney, Clinton Green, and Managing Partner, David Brown, as they delve into:
- Key changes to Canadian immigration policy and their impact on potential immigrants
- Strategies for navigating the new landscape and maximizing your chances of success
- Expert insights on upcoming policy developments and their potential implications
Whether you’re an international student, skilled worker, or business owner, this webinar will provide valuable information and guidance on navigating the evolving Canadian immigration system. Don’t miss this opportunity to stay informed and ahead of the curve.
Trump’s Immigration Plan – What We Expect if He Is Elected
For years there has been widespread consensus that our immigration system needs a serious fix. There is also widespread consensus that the prior Trump Administration presented many challenges to our immigration system not previously encountered. The former President is again running for President and it’s important to understand the impact a 2nd Trump Presidency would have. Is he going to deport everyone? Is he going to implement a Muslim ban? Will he shut down access to H-1Bs and other Non-immigrant Visa types? Join us as Managing Partner, David Zaritzky Brown highlights the procedural and policy and changes that occurred under the prior Trump Administration while comparing those to public statements former President Trump has made while campaigning for President this election season. David will also review the policy statements contained in Project 2025 insofar as they may shed a light on what’s to come. David will discuss how anticipated changes will impact our clients and their employees so that attendees can plan accordingly now. As always, David will take questions from attendees and ensure he has time to answer specific questions.
U.S. Visa Primer for Startups and HR professionals
Founder and Managing Partner, David Zaritzky Brown, will outline the key visa status options that we routinely use to support our clients. He’ll also explain some of the pros and cons and how the visa system operates so you have a better understanding of what to expect when your employees embark on a visa process. Our team is ultimately agnostic when it comes to the visa type chosen – we’re committed to finding the most efficient, successful, and workable option while balancing the needs of the individual and the corporate mission. For some this means the F-1 is the best option, for others the H-1, and for others still, the O-1. This discussion provides HR experts with the foundational knowledge to ask all the right questions and be ready to support any visa classification you hire. As always there will be a generous Q&A period available to ask any visa question you may have, including actual cases individuals are managing. This event is intended for HR and those involved in the hiring of foreign talent.
*This webinar is offering SHRM Professional Development Credit.
Speeding up your Green Card – Our Approach to Hack the System
This session is intended for individual foreign national workers and highlights the best ways to look to speed up an individual’s application for U.S. permanent residence. Founder and Managing Partner, David Zaritzky Brown, will highlight the available options for seeking permanent resident status and from there walk through common scenarios the firm encounters in an effort to speed up the green card process. We are aware of the length of time it takes to process when the applicant is not facing major backlogs, and the damage that can be done if things aren’t done right for those facing a significant backlog (which is increasingly everyone). David will also speak about our best practices and how we can help to hopefully shave years off your wait for permanent status. After addressing the most common situations people face David will spend time answering attendee questions.
Green Card Primer – Developing a Green Card Policy to Support Your Talent Needs
Join Founder and Managing Partner, David Zaritzky Brown, as he walks through the key options employers have for supporting their foreign-born talent in seeking permanent status in the U.S. He’ll walk through common policy issues that all employers consider when crafting their green card policy. In discussing available green card options he’ll also touch on best practices for developing the policy and approach that suits your need while also explaining how best to support your team. David will also provide an update on the visa bulletin and existing backlogs, underscoring why a proper green card policy is an important part of workforce planning. This event is intended for HR and those involved in the hiring of foreign talent.
*This webinar is offering SHRM Professional Development Credit.
U.S. Visa and Travel Primer
This webinar will cover the core elements of a successful visa application and how to plan ahead and ensure an employee’s visa process will be as seamless as possible. Still three years after the end of the Covid-19 Pandemic visa processing remains uneven across regions and consulates. In some offices, the Consular Section does a good job of prioritizing certain visas at the expense of others, while regional concerns trigger more aggressive screening. Join Managing Partner David Zaritzky Brown as he walks through the standard visa process, how travel works for foreign workers, and discusses common traps and situations that arise, all in an effort to ensure foreign nationals are better prepared, and that HR and Management know what to expect when someone leaves the U.S. to get their visa issued. David will also stay on after his presentation to answer questions from HR and foreign workers on specific visa or travel issues.
*This webinar is offering SHRM Professional Development Credit.
What is a Provincial Nomination and why does it matter now more than ever?
In this Canadian webinar Managing Partner, David Zaritzky Brown, and Managing Attorney, Clinton Green, will do a brief walk through of the current avenues for permanent residency in Canada while highlighting the trends in Canada’s Express Entry program. Given recent pronouncements and provincial changes, it’s become increasingly important to understand the opportunities created by the different Provincial Nomination streams to ensure applicants of all types can meet the necessary criteria to have a successful outcome. In highlighting the benefits of Provincial Nomination programs David and Clinton will walk attendees through several common examples and allow for ample time to answer questions of employers and employees in process alike.
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 **
