U.S. BUSINESS IMMIGRATION UPDATES
USCIS Now Issuing Five-Year Advance Parole Travel Documents to Individuals Eligible for Five-Year EADs
In September, USCIS updated its policy on employment authorization documents (EADs) for specific categories such as refugees, asylees, those with pending applications for asylum or adjustment of status, and those seeking suspension of deportation or cancellation of removal. This policy update increased the maximum validity period for initial and renewal EADs, which is being increased from 2 years to 5 years for certain categories, including refugees, asylees, and those with pending applications for asylum or adjustment of status. Furthermore, the validity period for noncitizens paroled as refugees was also increased from 1 year to up to 5 years.
Since the change, USCIS has also begun issuing advance parole documents with 5-year validity periods to coincide with the validity of EADs. Though the extended validity period for advance parole documents has not been officially announced by USCIS, this is a welcome development that will make the lives of green card applicants easier. We will continue to monitor developments regarding extended validity periods for employment authorization and advance parole documents.
USCIS Issues Policy Guidance Regarding the 2-Year Foreign Residence Requirement for the J Nonimmigrant Classification
On October 24, USCIS issued policy guidance regarding the 2-year
foreign residence requirement for the nonimmigrant exchange visitor
(J) visa classification to further clarify how USCIS determines
whether a benefit requestor has met the 2-year foreign residence
requirement. These clarifications will allow benefit requestors
greater certainty in understanding whether they are subject to a
continued foreign residency requirement.
The policy clarifies several points. First, effective immediately, USCIS will determine if an exchange visitor has fulfilled the 2-year foreign residence requirement based on the preponderance of evidence standard. Second, the memo explains USCIS policy that even a fraction of a day spent in the J-1 visitor's country of nationality or last residence counts towards fulfilling the 2-year requirement. Third, the memo states that USCIS will review situations where it is impossible for the benefit requestor to meet the requirement on a case-by-case basis, in consultation with the Department of State. Finally, it provides three exceptions to the requirement for foreign medical graduates seeking a waiver of the 2-year foreign residence requirement, specifically related to obtaining a contract from a health care facility in an underserved area.
Biden Administration Executive Order on Artificial Intelligence – Key Updates Below
On October 30, 2023, the Biden Administration issued an Executive Order titled "Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence." The Executive Order encompassed directives across several sectors and industries, including immigration. Generally, the immigration directives signal a positive shift and overall robust understanding of the essential expertise and economic impact that immigrants bring to the United States, particularly in terms of artificial intelligence. Some of the key pieces of the executive order include the following:
- Seek policy change to modernize immigration pathways for experts in AI (including O-1, EB-1, EB-2, entrepreneurs, H-1B workers, and even requesting input on identifying AI occupations for Schedule A I-140s);
- Seek to streamline visa processes (issuance, appointment availability, etc.) for individuals seeking to enter the U.S. to work, study, or research AI;
- Add those highly skilled in AI (including J-1 and F-1 holders in STEM) to the list of individuals eligible for state side visa renewal (upcoming 2024);
- Publish a comprehensive guide for AI experts to work in the
U.S. (in all languages);
Consider removing the 2-year home residency requirement for J-1 holders that work on AI or hold AI skills to avoid interrupting their work in the United States.
Moving forward, the Executive Order contains a series of deadlines for the federal agencies to meet and overall guidelines to begin following. These updates from the Biden Administration signal a positive shift and we will continue to monitor for directives from DHS regarding the updated processes mentioned above.
CBP Issues Guidance on Designation of Israel into the Visa Waiver Program
On October 19, 2023, US Customs and Border Protection ("CBP") issued guidance on the designation of Israel into the Visa Waiver Program ("VWP"), stating that the Electronic System for Travel Authorization ("ESTA") was updated to allow eligible citizens and nationals of Israel to apply online for authorization to travel to the United States for tourism or business purposes for up to 90 days without first obtaining a US visa. This designation was originally announced on September 26, 2023, by the Department of Homeland Security, making Israel the 41st country to become a member of the VWP.
Eligible Israeli citizens and nationals must have a full-validity, biometrically enabled passport book. Travelers who possess non-biometric, temporary, or emergency travel documents, or travel documents from a non-VWP designated country, are not eligible to travel under the VWP and may instead apply for a US visa. Israeli citizens traveling under VWP require a round-trip or onward ticket departing the United States.
Obtaining a US visa may still be the best option for some travelers, such as those who would like to stay in the United States longer than 90 days or those who think they may wish to extend their stay or change status while in the United States. Israeli citizens with valid B-1/B-2 visas may continue to use them for business and tourist travel to the United States. If an application for an ESTA is denied, the applicant must apply for a visa in order to travel to the United States.
DOS Expected to Begin Stateside Visa Renewal Pilot in Early 2024
On October 18, 2023, the American Immigration Lawyers
Association (AILA) announced the beginning of the pilot program to
resume renewal of H-1B nonimmigrant visas in the United States for
certain qualified noncitizens early next year. The program was
previously discontinued in 2004, making it mandatory for visa
applicants to apply for their initial visas or visa renewals at
consular locations abroad for reentry to the United States.
The stateside renewal program will start as a pilot program for H-1B specialty occupation workers only, and only for a limited test group of 20,000 applicants who seek visa reissuance in the same status, but the Department of State (DOS) has expressed its interest and intention in expanding this program after its initial rollout. As of now, DOS has sent a Federal Register notice, EO 12866, titled, "Pilot Program to Resume Renewal of H-1B Nonimmigrant Visas in the United States for Certain Qualified Noncitizens" to the Office of Information and Regulatory Affairs, which is pending regulatory review. A full list of eligibility criteria and scope of the program will be shared upon its publication in the Federal Register. We appreciate the DOS' plans to follow through on its intention to offer a much more efficient method of renewing visas without requiring international travel, and will continue to provide updates as they become available.
Higher Enforcement Measures Expected After DOL-EEOC Partnership
On September 14, 2023, the Department of Labor (DOL) and the
Equal Employment Opportunity Commission (EEOC) announced the formal partnership of DOL's
Wage and Hour Division and EEOC to enhance and maximize enforcement
of federal laws and regulations.
The division and the EEOC enforce the PUMP Act and the Pregnant Workers Fairness Act, both signed into law on Dec. 29, 2022, by President Biden. The agencies have combined their efforts on several events to raise public awareness of these new laws and will partner on future engagements to advance equal employment opportunity and fair pay as part of the new agreement.
As such, it is more important than ever for employers to self-audit their pay practices to ensure they are in compliance with all immigration and pay equity regulations. This information follows government announcements confirming stepped up enforcement of I-9 recordkeeping in the wage of COVID Pandemic flexibilities ending and is another reminder that proper record-keeping and decision-making is important in all HR matters. We will continue to monitor for updates and encourage our clients to reach out to their BIL attorneys to address any questions or concerns regarding compliance.
USCIS Clarifies How It Handles L-1 Petitions for Intracompany Transferees Filed by a Sole Proprietor and Blanket Petitions
USCIS released a policy guidance clarifying that a sole proprietorship may not file a petition on behalf of its owner. A sole proprietorship is a business in which an individual owns all the assets, owes all the liabilities, and operates the business in the individual's personal capacity. A sole proprietorship may not petition for its owner because the sole proprietorship is not a distinct legal entity separate and apart from the owner. A sole proprietorship is distinct from a self-incorporated petitioner such as a corporation or a limited liability company with a single owner because a self-incorporated petitioner is a separate and distinct legal entity from its owner. In the policy guidance, USCIS also clarified that failure to file an extension of the blanket L-1 petition does not trigger the 3-year waiting period before another blanket may be filed.
If you have any questions about filing an L-1 or a blanket L-1 petition, or questions regarding immigration options for entrepreneurs or sole proprietors, please contact us for a consultation.
White House Releases Report on the H-2B Worker Protection Task Force
On October 19, the White House released the H-2B Worker Protection Taskforce's report. The report announces more than a dozen action items to be taken by federal agencies. These action items include actions protecting workers engaged in labor disputes with employers, leveraging existing data to increase transparency and reduce vulnerability of workers, reducing workers' vulnerability to labor recruiters and employers' exploitation, improving access to information, and establishing a standing interagency working group. In the past, the H-2B program has been criticized for its lack of protection for foreign workers. The Taskforce's report represents actions to address threats to the program's integrity, workers' vulnerabilities, and impermissible use of the program.
Please contact us if you have any questions about the H-2B program.
Department of State Publishes Final FOIA Rule Update
The Department of State (DOS) via the Federal Register has recently published a final rule updating the Department's procedures in relation to the Freedom Of Information Act (FOIA). The new rule is set to take effect on November 17, 2023. Specifically, the new rule:
- Provided updated procedures and addresses for submitting FOIA requests, including procedures for requesting information about the requester and requests for visa information. (§ 171.4)
- Clarified the information that is to be provided as part of a request, the timing of responses to a request, responses to requests, and an additional provision for consultation with the Department of Justice's Office of Information Policy with respect to invocation of a FOIA exclusion. (§§ 171.10 through 171.17)
- Revised the timeline for submission of appeals to 90 days and provided information to be given to requesters about dispute resolution services at various stages of the processing of a request. (§ 171.15)
- Removed STATE-01 ("Email Archive Management Records") and STATE–78 ("Risk Analysis and Management") from the exempt list, meaning that the public can request information about "Email Archive Management Records" and "Risk Analysis and Management" which was previously exempted from disclosure to the public prior to this update. (§ 171.26)
- Added information about processing of requests for confidential financial disclosure reports. (§§ 171.30 through 171.32), and
- Made minor changes throughout, to conform more closely to the Department of Justice Office of Information Policy (OIP) Template for Agency FOIA Regulations, and to implement operational lessons learned since the last major revision of the Department's FOIA regulations in 2016.
Update: E-Verify and E-Verify NextGen Demonstration Project
On June 29, 2023, USCIS issued a request for comments regarding its E-Verify Program and the E-Verify NextGen demonstration project which lasted for a sixty-day period. During this period, USCIS received very few comments on the programs. USCIS then posted two additional 30-day notices to allow additional public comments. The new deadline for submission of comments is on or before November 24, 2023, and November 27, 2023, respectively. We provide the following notes over the project proposals for our stakeholders and encourage all interested parties to comment:
- E-Verify is a web-based system which allows employers to electronically confirm the employment eligibility of newly hired employees; and
- E-Verify NextGen, I–9NG, was developed as a demonstration project to further integrate Form I–9, Employment Eligibility Verification process with the E-Verify electronic employment eligibility confirmation process, hoping to create a more secure and less burdensome employment eligibility verification process overall for employees and employers.
We will continue to monitor the proposal for the new project from USCIS and its I-9 implications.
Feels like Groundhog Day as Possible Government Shutdown Looms
In recent weeks we've provided updates related to the possibility of a government shutdown. One was narrowly avoided in September as Congress voted for a stopgap measure to fund the government for an additional 45 days while the parties could reach an agreement. Nearly half of that period was spent finding and confirming a new Speaker of the House. While the Speaker is introducing a plan this week, the government runs out of money on Friday November 17th unless Congress either passes the required spending resolutions or continues government funding for an additional period of time. We'll continue to monitor this situation as it unfolds given the impact it can have on Department of Labor and Department of State processes should the government shut down.
December Visa Bulletin
The December Visa Bulletin has been released. For employment-based adjustment of status applicants, USCIS has confirmed that it will continue to accept applications current under the "Dates for Filing" chart. Generally, the visa bulletin remained substantially similar to the November visa bulletin, with little movement to report. This confirms the fact that demand for Immigrant Visas remains high, resulting in the imposition of backlogs in nearly all relevant Employment Based categories.
CANADIAN BUSINESS IMMIGRATION UPDATES
Canada's 2024-2026 Immigration Levels Plan Announced
On November 1, 2023, the Minister of Immigration, Refugees, and Citizenship Canada unveiled its 2024-2026 Immigration Levels Plan, emphasizing stable immigration targets to bolster sustainable growth. Key elements of the plan comprise:
- Sustaining consistent immigration admissions for the next three years, with a particular emphasis on economic immigrant categories.
- A heightened focus on attracting more French-speaking individuals to Canada.
- Continuing Canada's commitment to providing humanitarian aid and support for asylum seekers and refugees.
The plan sets ambitious targets: 485,000 new permanent residents in 2024, increasing to 500,000 in 2025, and maintaining this number in 2026. This plan focuses on economic growth, family reunification, and responding to humanitarian crises, recognizing the pivotal role immigrants play in filling labor market gaps across various sectors like health, technology, trades, transportation, and agriculture.
Ontario to Prohibit Employers from Requiring Canadian Work Experience
In Ontario, there are upcoming changes that will impact how employers recruit talent in the province. The government plans to introduce legislation that will ban employers from requesting Canadian work experience in job postings and application forms, as well as restricting over 30 professional licensing bodies from using Canadian work experience as a requirement for licensing.
The goal is to facilitate the integration of internationally
trained newcomers into their professions, potentially boosting the
province's GDP by up to $100 billion over the next five years.
The ban on Canadian work experience requirements is intended to
allow more qualified candidates to progress in the hiring process,
enabling newcomers to pursue rewarding careers that align with
their skills and tackle labor shortages.
The province, aiming to attract and retain skilled individuals, will expand its immigrant nominee program. This expansion will permit international students completing a one-year college graduate certificate program to qualify for permanent residence, offering a pathway for those with existing undergraduate degrees to further their education in Canada and potentially stay in the country.
Additionally, the legislation seeks to regulate how professional bodies evaluate international qualifications, aiming for a faster, fairer, and transparent process.
The province plans to expand the eligibility criteria under the Ontario Immigrant Nominee Program's International Student with a Job Offer Stream to include graduates of one-year college programs. This move aims to assist Ontario in retaining international students who possess an undergraduate degree and opt to further their education within Canada.
Officials said changes to the provincial immigrant nominee program will take effect in early 2024 but other changes may take a bit longer to allow employers and professional regulators time to comply.
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.
Over the last four weeks, Canada issued 5,448 Invitations to Apply (ITA) for permanent residence (PR) under Express Entry. Please see below for a high-level summary:
- IRCC held one targeted draw for individuals proficient in French, inviting 300 Express Entry candidates; the cut-off score was 486.
- IRCC held its first targeted draws for individuals in certain healthcare occupations, inviting 3,600 Express Entry candidates; the cut-off score was 431.
- IRCC also held a targeted draw for Provincial Nominees, inviting 1,548Express Entry candidates; the cut-off score was 776.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.