Immigration News – August 2024

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.

Brown Immigration Law is pleased to welcome Charlotte Andrews as Senior Counsel. Charlotte comes to the firm with nearly three decades of business immigration law experience, most recently serving clients as counsel at The Law Office of Carl Falstrom, a boutique business immigration law firm in north Austin, TX. When asked about joining BIL, Charlotte noted: "I've known and admired David Brown and Brown Immigration Law for many years, and I couldn't be happier to join them. Like me, BIL strives to provide the highest quality of representation and level of service to clients. I look forward to helping a great place become even greater!"

Charlotte obtained her bachelor's degree in philosophy from the University of Chicago and her Juris Doctor from the University of California, Hastings College of Law. Prior to joining Brown Immigration Law, Charlotte ran her own practice and held several prestigious leadership positions within the American Immigration Lawyers Association (AILA), including serving as the Chair of the Northern California chapter and as a member of the national Board of Governors. She has also served as a liaison with U.S. Citizenship and Immigration Services on behalf of AILA and its members. In addition to her roles as a practitioner and advisor, she has served as an Adjunct Professor of Immigration Law at both Golden Gate University and the University of San Francisco School of Law.

Founder and Managing Partner, David Brown, has this to say: "Having known Charlotte and her work for over twenty years, I'm thrilled to have her join the team. She is as equally gifted a communicator as she is a business immigration attorney, and her level of knowledge and client centered approach are a perfect fit for how we do business. We look forward to the value Charlotte will bring to the firm and our clients!"

Chief Operating Officer, Cheryl Anderson, added: "We're thrilled to welcome Charlotte to our team. Her exceptional experience and mindset will be instrumental as we continue to drive our firm's growth and success."

Founding Partner, Bailey Anderson, commented: "Charlotte has already accomplished so much in her decades-long career, with so much to offer as a lawyer and leader in the field. The fact that she has chosen Brown Immigration as her next step makes me incredibly proud."
We are excited about the addition of Charlotte to our team and know her skills will continue to propel us forward in facilitating growth and innovation on behalf of our clients. Welcome, Charlotte!

U.S. BUSINESS IMMIGRATION UPDATES

Biden-Harris Administration STEM Immigration Record: Why Your Vote in 2024 Matters

The Biden-Harris Administration has long held the belief that one of America's greatest strengths is our ability to attract global talent to strengthen our economy and technological competitiveness, and benefit working people and communities across the country – a belief that we at BIL hold dear. The Administration's record bears witness to its commitment to ensuring U.S. leadership in STEM and AI by investing in America's STEM and AI workforce.

Starting in January 2022, the Biden-Harris Administration along with the Department of State and Homeland Security led the efforts to remove barriers to legal immigration and to advance predictability and clarity for pathways for international STEM scholars, students, researchers, and experts to contribute to innovation and job creation efforts across America. Consequently, U.S. Citizenship and Immigration Services (USCIS) updated its policy guidance to clarify how certain professionals in the fields of science, technology, engineering, and mathematics (STEM) can demonstrate eligibility for the National Interest Waiver (NIW) in an employment-based immigrant status (EB-2), and nonimmigrant status for individuals of extraordinary ability (O-1A) (along with the O-1A analogous immigrant pathway, the EB-1A).

In October 2023, President Biden issued a landmark Executive Order to promote the safe, secure, and trustworthy deployment and use of AI. This Executive Order built on the voluntary commitments he and Vice President Harris received from 15 leading U.S. AI companies last year. Advancing a coordinated, Federal Government-wide approach to doing so, President Biden ordered the streamlining of processes and adjudication to ensure that the U.S. is able to attract and retain the top talent in AI and other critical emerging technologies. DHS has already advanced policy consistent with this Executive Order: in the same month, USCIS published a Notice of Proposed Rulemaking to modernize the H-1B specialty occupation worker program and enhance its integrity and usage, thereby continuing its work on rulemaking to enhance the process for noncitizens, including experts in AI and other critical and emerging technologies and their spouses, dependents, and children, to adjust their status to lawful permanent resident. In the month prior, September 2023, USCIS had also clarified guidance on evidence for EB-1 individuals of extraordinary ability or outstanding professors or researchers.

In May 2024, the Biden-Harris Administration and the White House Office of Science and Technology Policy (OSTP) announced new cross-sector actions to eliminate systemic barriers in science, technology, engineering, mathematics, and medicine (STEMM) and achieve greater equity across STEMM fields by 2050. These actions build on the historic actions announced in December 2022 where the White House initially unveiled a national initiative to coordinate public, private, and philanthropic efforts to expand opportunity and access across science and technology fields. At the inaugural White House Summit on Equity and Excellence in STEMM in December 2022, the STEMM Opportunity Alliance (SOA)—a first-of-its-kind national initiative to lead and coordinate cross-sector action for greater equity and excellence across STEMM fields—was launched with more than $1 billion in work and investments expanding opportunities in STEMM. Following the May 2023 announcement was the second White House Summit on STEMM Equity and Excellence: Propelling Progress and Prosperity by 2050 where the SOA's broad coalition now stands represented by more than 200 organizations and additional commitments towards STEMM equity bringing the total to $2 billion.

Last month, the Biden-Harris Administration announced that Apple had signed onto the voluntary commitments it first announced in the landmark Executive Order issued in October 2023, further cementing these commitments as cornerstones of responsible AI innovation.

A recent fact sheet released by USCIS highlighting data trends across STEM fields during Fiscal Year (FY) 2022 and FY 2023 compared with fiscal years prior to the policy guidance changes. These trends show an increase in the receipts of EB-2 petitions from FY 2022 to FY 2023 and increases in National Interest Waiver use and O-1A petition receipts. Specifically:

• EB-2 receipts increased overall following the policy guidance change, although receipts in the STEM category decreased;
• Increasing number of EB-2 petitioners are requesting an NIW; and
• Approvals of O-1A petitions in STEM fields increased by 33% from FY 2022 to FY 2023.

The October 2023 Executive Order and the several multi-agency collaborations brought forth by the Biden-Harris Administration stand sharply in contrast to the harsher stance on immigration taken under the Trump-Pence Administration. They hold immense potential to increase national competitiveness and allow international STEM talent to continue to make meaningful contributions to America's scholarly, research and development, and innovation communities. However, as Maya Wiley, president and CEO of The Leadership Conference on Civil and Human Rights, said in a statement, "We still need Congress to consider legislation that will regulate AI and ensure that innovation makes us more fair, just, and prosperous, rather than surveilled, silenced, and stereotyped."

We urge all our network members who hold the right to vote in the upcoming election to keep in mind the record of these administrations when entering the ballot box. While no administration has been perfect on immigration, the Trump Administration's impact on immigration was severely negative, with some impacts still being felt to this day.

OFLC Announces Upcoming Final Decommission of Permanent Online System

The Office of Foreign Labor Certification (OFLC) has announced that the legacy Permanent Online System, which provides public access to permanent labor certification applications and final determinations, will be fully decommissioned on December 1, 2024.

On that date, the legacy Permanent Online System will no longer be accessible to account holders and the general public will be redirected to the new Foreign Labor Application Gateway (FLAG) System. Those who require documents from their Permanent Online System accounts are strongly encouraged to access and download those documents well in advance of December 1, 2024. Permanent Online System account holders who need to upload documents or request a specific case action on an application submitted in the Permanent Online System (e.g., request reconsideration, withdraw applications, etc.) should do so by November 30, 204, at 7:00 PM EST.

We will continue to monitor for updated on the new PERM system in FLAG and report on its progress.

USCIS Errors Continue – Delays Expected

In recent months, our firm and many other immigration focused firms in the AILA community have experienced USCIS processing delays, improper rejections, and related issues, especially since the major changes to fees and filing address from USCIS in April 2024.

Among others, AILA attorneys have noticed the following USCIS errors on a repeated basis:

• No response or extremely delayed response from USCIS Lockboxes;
• Receipt delays for petitions filed during the H-1B cap filing period;
• Receipt delays of employment-based and family-Based adjustment of status applications including accompanying forms;
• Adjudication delays at the Dallas, Chicago, Elgin, and Phoenix Lockbox, as well as the Texas Service Center;
• Employment authorization issues related to receipt delays;
• Wrongfully issued RFEs for previously submitted birth certificates (due to a training error per USCIS);
• Inability to provide clients with accurate information regarding processing times; and
• Clients timely filing extensions of stay but left waiting on the receipt notice for proof of filing even after their status expiration.

The above-mentioned issues have already been raised to the attention of USCIS leadership and we are currently waiting for their response, but please note that continued delays in certain case types may be expected. We will continue to monitor and report on any progress made by the Service in the coming months.

USCIS Conducts Second Round of H-1B Lottery

As previously reported in our Breaking News Alert, USCIS released a notice on July 30, 2024, confirming the need to select additional H-1B registrations to reach the FY 2025 regular cap numerical allocation. USCIS stated that a second draw would not be held for the advanced degree exemption (master's cap), but previously submitted registrations that indicated eligibility for the master's cap would be included in the second round of the regular cap draw along with registrations that indicated eligibility for only the regular cap. Over the course of the following week, new selections were issued via the USCIS portal, and on August 5, 2024, USCIS released a subsequent notice confirming the completion of the second round of selections.

We have worked diligently to communicate the results of the second lottery draw, and all clients with new registration selections should now have notice of the results. The deadline for filing petitions for cases selected in the second round is November 7, 2024. We are working with our clients on contingency plans for those not selected in this year's lottery and will generally recommend registering those who were not selected for this year's draw in next year's lottery. Contact your BIL attorney with any questions about the next steps for you or your employees' immigration status.

DC Circuit Court Upholds H-4 Spousal Work Authorization

Despite a recent challenge to H-4 spousal work authorization, the U.S. Court of Appeals for the District of Columbia Circuit ruled that certain spouses of H-1B visa holders may continue working in the United States, holding that the Department of Homeland Security has the authority to grant employment authorization to certain immigrants. The decision maintained the status quo, and thousands of H-4 visa holders will continue to be able to work in the United States. If you have any questions about how this decision will impact you, please reach out to your BIL attorney.

September Visa Bulletin

The September Visa Bulletin has been published. For employment-based adjustment of status applicants, USCIS has confirmed it will continue to accept petitions current under the "Final Action Dates" chart. There has been a significant retrogression for the EB-3 category for All Chargeability Areas Except Those Listed which has retrogressed a full year from 12/1/2021 to 12/1/2020. This one-year retrogression also applies to EB-3 Mexico and Philippines as well. There has been a minor retrogression of one month for EB-3 Other Workers for All Chargeability Areas Except Those Listed and Mexico which has moved from 1/1/2021 to 12/1/2020. All other categories remain unchanged from the month of August to the month of September. We expect positive movement in the month of October with the start of the new fiscal year and will continue to monitor for updates.

Webinar Information

With Summer coming to an end, we're excited to share the latest and greatest new information in our fall webinar series. Please visit our website next week to see a full schedule of upcoming webinars.

CANADIAN BUSINESS IMMIGRATION UPDATES

New Policy Streamlines Path to Permanent Residency for Provincial Nominee Program Candidates

On August 27, 2024, Immigration Refugees & Citizenship Canada – in furtherance of its plan to transition a greater portion of current temporary residents to permanent residency – announced a new temporary public policy aimed at facilitating access to open work permits.

The Temporary public policy to facilitate work permits for prospective Provincial Nominee Program candidates grants exemptions from several requirements of the Regulations, allowing provincial nominee program (PNP) candidates with a job offer, a valid work permit (or recently had one), and a support letter from their province or territory, to obtain open work permits. The public policy is slated to remain in effect until December 27, 2024.

Eligibility Requirements:

• All applicants must meet the following requirements at the time of submitting a new work permit application:

1. Provide a support letter from the province or territory, stating that they are in a Provincial Nominee Program pool or application process.
2. Provide a letter of employment from their current employer.
3. Satisfy one of the following conditions:
   • Hold a valid work permit;
   • Held a valid work permit on May 7, 2024, which expired; and
   • Was authorized to work on May 7, 2024, under the maintained (implied) status provisions per paragraphs 186(u) of the Regulations and their in-Canada application to extend their work permit is pending or was approved.

Furthermore, the Minister outlines several Regulatory exemptions that adjudicating officers may grant to applicants, including an exemption from the requirement to apply for restoration within 90 days after losing temporary resident status.

Please contact your Canadian immigration attorney at Brown Immigration Law to learn more about how this policy might benefit you.

Changes to the Low-Wage Temporary Foreign Worker (LMIA) Program

The Government of Canada is tightening regulations on the Temporary Foreign Worker (TFW) Program to address its misuse and reduce reliance on foreign workers. Effective September 26, 2024, the following changes will be implemented:

• Labour Market Impact Assessments (LMIAs): Applications in the Low-Wage stream will be denied in metropolitan areas with an unemployment rate of 6% or higher, except for roles in food security, construction, and healthcare sectors;
• Hiring Cap: Employers can only hire up to 10% of their workforce through the TFW Program in the Low-Wage stream, further reducing the cap set earlier this year;
• Exceptions apply to food security, healthcare, and construction sectors; and
• Employment Duration: The maximum employment duration for Low-Wage stream workers will be reduced from two years to one year.

These measures are part of the government's efforts to encourage employers to invest in the local workforce, including young people, newcomers, and persons with disabilities. Minister of Employment, Workforce Development and Official Languages, Randy Boissonnault recently stated "I've been clear over the last year; abuse and misuse of the TFW program must end. The health and safety of temporary foreign workers in Canada is a responsibility I take very seriously. Bad actors are taking advantage of people and compromising the program for legitimate businesses. We are putting more reforms in place to stop misuse and fraud from entering the Temporary Foreign Worker Program."

Additional reviews and potential changes to the High-Wage Stream and other aspects of the Program may be announced within the next 90 days.

Interim Measure for Proof of Citizenship Applications Impacted by the First-Generation Limit to Citizenship by Descent

With the changes to the law respecting the first-generation limit (FGL) to citizenship by descent requirements of the Citizenship Act, the Canadian Government has introduced an interim measure to address applications addressed by the FGL that will remain in force until the changes to the Citizenship Act take effect. The FGL generally limits citizenship by descent to persons who are born to a Canadian parent abroad in the first generation (with some exceptions).

The measure applies to two scenarios:

1. Scenario 1: An applicant submits a proof of citizenship application that falls under the FGL and requests urgent processing; and
2. Scenario 2: An applicant with a pending proof application identified as impacted by the FGL requests urgent processing.

In both cases, Immigration, Refugees and Citizenship Canada (IRCC) will review the request for urgent processing and respond in writing. If the applicant is eligible, IRCC will inform them that the FGL is still in effect and offer the option to apply for a discretionary grant of citizenship under subsection 5(4) of the Citizenship Act, providing instructions for this process.

If the applicant is not eligible for urgent processing, their application will remain in regular processing, and they will be notified accordingly.

For most applicants, it is advisable to wait until the Citizenship Act is amended. However, if you would like to learn more about this interim measure, please reach out to your Canadian immigration attorney at Brown Immigration Law.

Employer Compliance Inspection Updates

In the last fiscal year, Employment and Social Development Canada (ESDC) conducted 2,122 inspections under the Temporary Foreign Worker (TFW) Program, with 94% of employers compliant. Non-compliant employers faced $2.1 million in Administrative Monetary Penalties (AMP), a 36% increase from the previous year's $1.54 million. Additionally, 12 employers were banned from the program, up from 7 the previous year. Non-compliant employers are publicly listed on a website managed by Immigration, Refugees and Citizenship Canada (IRCC).

On July 26, 2024, IRCC updated instructions on employer compliance inspections, clarifying conditions under the 2022 regulatory framework and incorporating provisions from section R209.2(3.1) of the Regulations. These updates reflect recent changes to the employer compliance regime.

Employer Conditions

An inspection under section R209.5 checks if employers, who offered employment under subparagraph R200(1)(c)(ii.1), met conditions specified in section R209.2. These conditions apply for the duration of the work permit but can be reviewed up to six years after issuance. Inspected conditions include:

1. Ongoing Business Operations: Employers must remain active in the business related to the employment offer [R209.2(1)(a)(i)].
2. Rights Information: Employers must provide the latest information on the foreign national's rights in Canada in both official languages before work begins and throughout employment [R209.2(1)(a.1) and R209.2(1)(a)(ii.1)].
3. Legal Compliance: Employers must follow federal and provincial employment and recruitment laws [R209.2(1)(a)(ii)].
4. Employment Terms: Employers must offer employment with wages and conditions substantially equivalent to those in the original offer [R209.2(1)(a)(iii)].
5. Workplace Safety: Employers must ensure a workplace free from various forms of abuse and reprisals [R209.2(1)(a)(iv) and R196.2(2)].
6. Health Care Access: Employers must provide health care access if the foreign national is injured or ill at work [R209.2(1)(a)(viii)].
7. Fee Prohibition: Employers must not charge foreign nationals compliance or recruitment fees, nor allow recruiters to do so [R209.2(1)(a)(ix) and R209.2(1)(a)(x)].
8. Documentation and Accuracy: Employers must keep accurate records related to the employment offer and compliance for six years [R209.2(1)(b)(i) and R209.2(1)(b)(ii)].

Justifications for Non-Compliance

Subsections R209.2(3) and R209.2(3.1) outline justifications for failing to meet conditions, including:

• Changes in laws or collective agreements;
• Economic conditions affecting all employees;
• Good faith errors with compensation;
• Unintentional administrative errors with compensation; and
• Force majeure events.

For questions about compliance requirements or preparing for an inspection, contact your Canadian immigration attorney at Brown Immigration Law.

Enhanced Criteria for Specialized Knowledge Workers: Key Changes to Know

Immigration officers assessing work permit applications Intra-Company Transferee (ICT) applying as Specialized Knowledge workers will now undertake a more rigorous assessment. Applicants must demonstrate a high standard of "specialized knowledge," including both advanced proprietary knowledge and advanced expertise.

Key Requirements for Specialized Knowledge:

• Specialized Knowledge Definition: As per Canada's commitment under the General Agreement on Trade in Services (GATS), applicants must show both "knowledge at an advanced level of expertise" and "advanced proprietary knowledge" of the company's products, services, or management. Both criteria must be met; either qualification alone is insufficient;
• Advanced Proprietary Knowledge: This involves:
  • Uncommon knowledge of the company's products or services and their application in international markets;
  • Advanced expertise in the company's processes, equipment, techniques, or management;
• Expertise Assessment: Officers will assess whether the applicant's knowledge is unusual and critical to the Canadian branch's operations, and whether it is not readily available in the Canadian labor market;
• Position Requirements: ICT positions must align with the applicant's previous role in terms of National Occupational Classification (NOC) TEER category. High TEER categories (0, 1, 2, or 3) are favorable, and positions with lower TEER categories (4 and 5) require detailed scrutiny;
• Wage Floor: Applicants must be offered a wage consistent with Canadian prevailing wage levels for specialists. Non-cash allowances (e.g., hotel, transportation) do not count towards this wage floor; and
• Supporting Evidence: Applicants should provide strong supporting evidence including but not limited to a detailed letter of support from the Canadian company, a detailed resume, and reference letters.

For further guidance on qualifying as a Specialized Knowledge worker or preparing for an ICT application, please contact your Canadian immigration attorney at Brown Immigration Law.

Updated IEC Requirements for Irish Citizens

Effective July 31, 2024, updated instructions on International Experience Canada (IEC) agreements clarify participation limits for Irish citizens:

• Working Holiday or Young Professionals Category: 1 participation of up to 24 months; and
• International Co-op (Internship) Category: 1 participation of up to 12 months.

If you are interested in learning more about your eligibility for the International Experience Canada Program, please contact your Canadian immigration attorney at Brown Immigration Law.

Update to International Experience Canada (IEC) Program for Luxembourg Citizens

Following the signing of an updated youth mobility agreement (YMA) between Canada and Luxembourg, the age range eligibility requirements of the program have been extended to age 18 – 35 years old. The updated agreement is in effect as of July 26, 2024, and will have the impact of opening the IEC program to additional eligible applicants. Prior to the updates, the age eligibility range for Canada's IEC program with Luxembourg was age 18 – 30 years old.

IRCC Issues Updates Regarding Immigration Medical Exam (IME) Requirements and Exemptions

Recent updates to immigration medical exam (IME) guidelines include:

1. Examination vs. Admissibility: New guidance clarifies the separation between IME requirements and admissibility assessments. It details when non-accompanying dependents may be exempt from IMEs, particularly under humanitarian and compassionate (H&C) grounds;
2. H&C Exemptions: Officers can waive IME requirements for non-accompanying family members if;
   o The family member is unavailable (e.g., their location is unknown);
   o Requiring an IME is unreasonable (e.g., refusal by a family member or legal guardian);
   o The applicant acknowledges potential future restrictions on sponsoring the family member;
3. Documentation: Exemptions must be recorded in the Global Case Management System (GCMS), including the reasons for the exemption and the applicant's acknowledgment of future sponsorship restrictions;
4. IME Requirement: All family members of permanent residence applicants must undergo an IME. If an IME expires, a reassessment from the regional medical office is needed to finalize the application; and
5. Inadmissibility: An inadmissible non-accompanying family member may impact the applicant's admissibility unless the applicant can demonstrate they have no custody or authority over the dependent.

These revisions aim to clarify procedures and improve the handling of IMEs and exemptions in the permanent residence application process.

New Measures Announced in Support of Francophone Immigration

On August 14, 2024, Minister of Immigration, Refugees and Citizenship Marc Miller announced two significant initiatives to bolster Francophone communities in Canada. The Francophone Minority Communities Student Pilot (FMCSP) Program, launching on August 26, 2024, aims to improve access for French-speaking international students from regions with historically low approval rates, such as Africa, the Middle East, and the Americas. Key aspects of the FMCSP include exemptions from demonstrating intent to leave Canada after studies and adjustments to the financial threshold. The program also provides a pathway to permanent residency for graduates and offers settlement support during their studies. It will accept up to 2,300 study permit applications initially, with future caps to be set by August 2025.

Reach out to your Canadian Immigration Law Attorney at Brown Immigration Law to learn more about these new measures.

Express Entry- Monthly Summary

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 past four weeks, Canada issued 15,384 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 Canadian Experience Class candidates, inviting 11,500 Express Entry candidates; the cut-off scores were 510, 509, and 507 respectively;
• IRCC held three targeted draws for Provincial Nominee Program candidates, inviting 1,884 Express Entry candidates; the cut-off scores were 686, 690 and 694 respectively; and
• IRCC held one targeted draw for French-speaking candidates, inviting 2,000 Express Entry candidates; the cut-off score was 394.

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.