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
USCIS Announces New Guidance for Validity of Report of Immigration Medical Examination and Vaccination Record (I-693)
As a result of USCIS' collaboration with the U.S. Centers for Disease Control and Prevention (CDC), effective November 1, 2023, civil surgeons are required to share medical data from Form I-693, Report of Immigration Medical Examination and Vaccination Record directly with the CDC electronically and with local U.S. health departments.
In light of these developments, new USCIS policy guidance provides that such medical examinations for green card applications that are properly completed and signed by a civil surgeon on or after November 1, 2023 do not expire and are valid indefinitely as proof of applicant admissibility on health-related grounds. However, it is important to note that:
- For those Forms I-693 that are properly completed and signed by a civil surgeon on or after November 1, 2023, USCIS retains the discretion to request further evidence or an updated or new Form I-693 altogether if the Service has reason to believe that the Form I-693 originally submitted does not accurately reflect the applicant's medical condition.
- Forms I-693 that are properly completed and signed by a civil surgeon before November 1, 2023 continue to retain evidentiary value (i.e., are valid) for 2 years from the date of the civil surgeon's signature.
We applaud the Service's decision to lift limits on the validity period of Form I-693s and thereby avoid delays in processing of green card applications. We will continue to monitor developments and will provide updates as soon as more information becomes available.
Announcement of Temporary Final Rule Increasing Automatic Extensions of Work Permits for up to 540 Days
The Department of Homeland Security published a temporary final rule on April 8, 2024 that will temporarily increase the automatic extension period applicable to expiring Employment Authorization Documents (Forms I-766 or EADs) for certain renewal applicants who have filed Form I-765, Application for Employment Authorization, from 180 days up to 540 days from the expiration date stated on their EAD cards.
This temporary measure will apply to eligible applicants who timely and properly filed an EAD renewal application on or after October 27, 2023, if the application was still pending on or after April 8, 2024. The 360-day increase will also apply to eligible EAD renewal applicants who timely and properly file their form I-765 renewal application on or between the dates of April 8, 2024, and September 30, 2025.
If you submitted an EAD renewal application on or after October 27, 2023, you can present acceptable proof of the automatic extension by showing your I-797C receipt notice that refers to the 180-day extension (if filed before the April 2024 temporary final rule), along with your qualifying EAD (and also your unexpired Form I-94, if you are an H-4, E, or L-2 dependent spouse). This document combination is sufficient proof of an up to 540-day automatic extension, counting from the expiration date on your current EAD.
Note: Not all EAD categories benefit from this rule. Please contact your BIL attorney if you have questions about your eligibility for the automatic extension.
New J-1 Program for Japanese Culture and Language Specialists, up to 36 Months Permitted
On Friday April 19, 2024, the Department of State posted a new Federal Register notice regarding a new J-1 program for Japanese Culture and Language Specialists. As AILA reported, "During their program, exchange visitors from Japan will share their specialized knowledge of Japanese language and education in the United States. DOS is waiving 22 CFR §62.26(i), which limits participation in the Exchange Visitor program for Specialists to one year, to allow participants to conduct their programs for up to 36 months."
We will continue to monitor for updates from the DOS and our partner J-1 sponsor organizations. If you or your employer are interested in this new program, please contact your BIL attorney.
EB-5 Regional Center Audits
Per Section 203(b)(5)(E)(vii) of the Immigration and Nationality Act (INA), USCIS must audit each designated regional center (in a related EB-5 program) at least once every five years. USCIS recently announced that, starting on April 23, 2024, they will start generally using Generally Accepted Government Auditing Standards (GAGAS) for regional center audits. They claim that using GAGAS will enable the agency to plan and perform the audits more effectively, obtaining enough appropriate evidence to form a reasonable basis for its findings and conclusions.
Generally, utilizing the GAGAS standards will not remove the officer's discretion in considering the results of the audit in connection with making adjudicatory decisions, nor will it create any substantive or procedural right or benefit that is legally enforceable by any party against the United States or its agencies or officers or any other person.
AILA and the American Immigration Council Submit Amicus Brief to Supreme Court on "Consular Nonreviewability" Doctrine
We first reported Department of State v. Muñoz in our February newsletter. The U.S. Supreme Court will be hearing arguments on whether a consular officer's refusal of an immigrant visa to a U.S. citizen's spouse infringes on a protected interest of the citizen. At the center of the constitutional challenge is the doctrine of consular non-reviewability: courts' inability generally to review Consular Officers' decisions when decisions are "facially legitimate and bona fide."
The American Immigration Lawyers Association ("AILA") and the American Immigration Council ("Council") submitted an amicus, "friend of the court", brief to the U.S. Supreme Court. In that brief, AILA and the Council argued that the consular nonreviewability doctrine is contrary to the plain language of the Administrative Procedure Act and should be repudiated.
Courts' ability to review consular officers' decision is incredibly important in practice, as practitioners have limited tools available offering relief from the consular inaction or improper decision-making. As such, we will continue to monitor the case and provide updates as they become available.
USCIS Announces Employment Authorization Procedures for Palestinians Covered by Deferred Enforced Departure
Effective April 1, 2024, U.S. Citizenship and Immigration Services (USCIS) will provide naturalization applicants with the opportunity to request an original or replacement Social Security number (SSN) or card and update their immigration status when filing the Form N-400 Application for Naturalization, without needing to separately attend a Social Security Administration (SSA) field office. To be eligible for the new process, applicants will need to use the 04/01/24 edition of Form N-400. They may file online after creating an online account with USCIS. The new process will present a more efficient and convenient option for applicants to request social security updates.
May Visa Bulletin
The May 2024 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 "Final Action Dates" chart, and the dates for EB-1, EB-2, and EB-3 did not move from the release of the April 2024 Visa Bulletin.
CANADIAN BUSINESS IMMIGRATION UPDATES
Immigration, Refugees, and Citizenship Canada (IRCC) recently introduced a new work permit category: the Innovation Stream employer-specific work permit designed to attract top talent to Canada's tech sector. This work permit is for individuals who have received a job offer in a highly skilled occupation (i.e. in National Occupational Classification (NOC) Training, Education, Experience and Responsibilities (TEER) categories 0, 1, 2 or 3) from an employer who is participating in the Global Hypergrowth Project (GHP) Furthermore, it does not require a Labour Market Impact Assessment (LMIA), making it faster for companies to hire global talent.
Currently, GHP participants include Ada, AlayaCare, CellCarta, Clarius, Clio, Duchesnay Pharmaceutical Group (DPG), Lightspeed, and Vive Crop Protection.Why Should You Consider It?
Currently, there are no openings for additional organizations to apply for participation in the GHP. However, the program website encourages interested parties to "stay tuned for future opportunities."
It's possible that another category of the Innovation Stream work permit will be introduced in the near future, focusing on specific in-demand occupations. This aligns with the alternative type of work permit discussed in IRCC's June 2023 announcement.
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 9,275 Invitations to Apply (ITA) for permanent residence (PR) under Express Entry. Please see below for a high-level summary:
- IRCC held two general draws inviting 3,375 Express Entry candidates; the cut-off scores were 549 and 529 respectively.
- IRCC held one targeted draw for individuals in certain STEM occupations, inviting 4,500 Express Entry candidates; the cut-off score was 491.
- IRCC held one targeted draw for individuals with French language proficiency, inviting 1,400 Express Entry candidates; the cut-off score was 410.
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
Coming to Canada – Strategies for Canadian Status
In this webinar, Managing Attorney, Clinton Green, and Managing Partner, David Zaritzky Brown, will discuss the recent changes and trends in Canadian immigration and how they combine to make it easier for companies to hire and retain global talent. They will also highlight how companies can leverage Canada's immigration programs to implement regional talent hubs in Canada to support their global business needs.
This webinar will be useful for HR/Management looking for a refresher on Canadian business immigration options. It will also be helpful to those starting up Canadian operations, increasing their Canadian operations, or those who might be contemplating solutions for managing risk to their immigration programs in the U.S. Clinton and David will facilitate a Q&A session at the end of the webinar to provide answers to interested attendees.
U.S. Visa Applications and Business Travel Explained
Getting a visa can be a challenge, and of course knowing when you need work authorization vs when your trip is a legitimate business visit is also sometimes difficult to figure out. Join Managing Partner, David Zaritzky Brown, as he walks through the visa process and clarifies the necessary steps and what to expect when securing a visa to the U.S. In addition to demystifying the visa process he'll share clear guidance on when you know you are safe to enter as a business visitor or when you should take the extra step of getting a work authorized visa status. He'll also clarify who qualifies for ESTA and when it can be used.
As always David will spend extra time at the end to answer any questions from the audience to ensure attendees walk away with a clear understanding of visa processing and when to seek work authorization or travel as a business visitor. This session is a must attend if you travel to the U.S. routinely for business or if you manage individuals who visit the U.S.
Labour Market Impact Assessments: Avoiding Pitfalls and Improving Your Success Rates
Join us as we unpack the essentials of hiring foreign talent in Canada, focusing on LMIA procedures, available streams, and overcoming key challenges. In a discussion lead by Clinton Green, Canadian Practice Leader, here's what you can expect:
- Gain clarity on the purpose and impact of using LMIAs to support the hiring of global talent in Canada.
- Understand the different LMIA streams and associated re processing times, including expedited options like the Global Talent Stream.
- Explore strategies for navigating common LMIA obstacles, ensuring successful recruitment of foreign talent.
- Learn about LMIA compliance requirements, including the new mandatory annual wage rate review.
Clinton is happy to entertain real life questions on LMIAs you've filed or plan to file and help point the audience in the right direction.
PERM Best Practices – What You Need to Know to Have a Successful Outcome
We have continued to witness a lot of change in the PERM process, most significantly the time it takes to get a decision now that DOL has debuted a new format for the PERM form. Managing Partner, David Zaritzky Brown, will discuss how both the changed form and significant delays play into how you set up your PERM and approach filing challenges. David will dissect the PERM process and highlight some of the approaches we take to ensure success. He'll also walk you through the advertising process in the era of Employee Pay Transparency and the need to publicly state wages in certain markets, including California and New York. As always David will spend time answering specific questions on PERM issues facing attendees.
The North American Hiring Strategy – How to Flex Immigration to Create an Engaged Culture
This talk will borrow themes from Managing Partner, David Zaritzky Brown's MasterClass at the Collision Conference in Toronto where he talked about building worldclass North American teams by leveraging immigration programs to find key talent globally. David will compare and contrast elements of the Canadian system with the U.S. model and highlight how employers can create a dedicated funnel of opportunities to one or both countries and leverage the differences in each system to full advantage. For over a decade the U.S. and Canada have maintained the top two spots in global rankings for interest in immigration, and this session will highlight how to turn that interest into a strategic corporate advantage in hiring key talent. Whether it is employee directed intracompany transfer opportunities to Canada or the U.S. – or special opportunities specific to a country, now is the time to consider a North American immigration strategy to manage your staff and keep them fully engaged. These approaches support both large and small employers in different ways. After walking through a variety of scenarios and best practices David will throw it open to questions so you can better understand how these ideas may work for your recruiting needs.
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.
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