At BIL, 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.
On Sunday July 21, 2024, President Biden made a historic announcement to end his second campaign for a second term. President Biden has since endorsed Vice President Harris for the U.S. presidential nomination. Though we have yet to see true immigration reform in the U.S., the Biden Administration has implemented many initiatives that have positively impacted our clients over the past several years and we are confident Vice President Harris would continue that work, and more, as President. The upcoming election in the United States will undoubtably have far reaching implications for the rights of many, including immigrants, so we strongly encourage all eligible voters to cast their ballot in November. Follow us on LinkedIn for key updates and continued commentary on the potential impact of both candidates on immigration.
U.S. BUSINESS IMMIGRATION UPDATES
Immigration Impact of Loper Bright Enterprises (The Demise of the Chevron Doctrine)
On June 28, 2024, the U.S. Supreme Court overturned Chevron, U.S.A., Inc. v. Natural Resources Defense Council, a 1984 case out of which a heavily relied on doctrine known as Chevron was born. For the last four decades, Chevron required lower courts to defer to reasonable agency interpretations of ambiguous federal statutes as long as those interpretations were permissible or reasonable. In its decision, The Supreme Court indicated, "time and experience have proven this approach to be unwise, misguided, and unworkable." The new standard for courts to follow is known as Skidmore deference, based on the decision in Skidmore v. Swift & Co. From now on, the courts will need to evaluate each regulation based on the agency's ability to demonstrate persuasive reasoning and the following elements: the thoroughness of its consideration, the validity of its reasoning, and its consistency with earlier agency pronouncements.
The effects of this decision will be felt by every agency, including the agencies we work with on a daily basis, including: USCIS, DOL, DOS, ICE, and CBP. In practice, this decision transfers power from the agencies and places it in the hands of the judicial system. In theory, this could be beneficial for attorneys as it gives them a fighting chance against agencies and their interpretations of statutes. In an ideal world the best arguments win; however, in practice it may not be that simple. This decision could open up federal law to broadly inconsistent interpretation from lower courts based upon the whim of any given judge's political leanings. This decision could also clog up the courts and allow judges to functionally rewrite our laws. Alternatively, it could inspire Congress to be more concise in the regulations it imposes on agencies, however unlikely that may be. One thing is certain, the impact of this decision will be substantial, but obviously unknown at this time. On the positive side, this decision may give immigration attorneys more of a fighting chance when questioning agency decisions in court.
President Biden Affirmative Relief Announcement
On June 18, 2024, President Biden and Vice President Harris announced a series of immigration actions aimed to help certain undocumented individuals in the U.S. As part of this series, the Biden-Harris Administration announced that DACA recipients and DREAMers who are qualified for nonimmigrant status, such as an H-1B specialty occupation visa, may be eligible to apply for a temporary visa more easily if:
- They have a degree from an accredited U.S. institution of higher education; and
- They have an offer of employment from a US employer in a field related to their degree.
We welcome this change, which may expand employment-based options for many. These programs have not yet begun and details on how to apply are expected to be released by the end of the summer through a Federal Register notice. For more information about whether you apply for this benefit, or for updates on when you will be able to register, please contact our office.
Heartland Immigration Visa
The Heartland Visa, a bipartisan immigration proposal, has gained significant momentum and was recently endorsed by the U.S. Conference of Mayors. The proposed visa would focus on attracting skilled professionals and entrepreneurs to struggling urban areas. According to the Economic Innovation Group (IEG) the economic benefit of skilled immigration is primarily concentrated in coastal "superstar" metros in just 100 U.S. counties; the Heartland Visa seeks to bring innovation and entrepreneurship to eligible cities facing population decline or stagnation. The program would be a dual opt-in system where counties facing economic decline could opt in to the program and applicants select their destination. Applicants with high-wage job offers or earnings histories are prioritized, and visas will be given out based on regional needs every quarter, starting with a proposed initial period of three years, renewable for up to six years. In exchange for living in a participating community for the required duration, applicants will have an expedited path to a green card free from labor market testing. The Heartland Visa is a promising solution to reinvigorate declining U.S. cities while offering a new and faster path to citizenship, with less red tape. We will continue to monitor for additional updates.
Consular Nonreviewability post-U.S. Department of State et al., v. Muñoz
On June 21, 2024, the U.S. Supreme Court in U.S. Department of State et al., v. Muñoz directly referenced the doctrine of consular nonreviewability and rejected U.S. citizens' due process claims in the visa matters of their spouses. The Supreme Court found that a U.S. Citizen does not have a fundamental, constitutionally protected interest in their noncitizen spouse's admission into the country, and therefore is not constitutionally entitled to a judicial review of the denied visa nor, in many circumstances, access to the officer's reason for the denial. The doctrine of consular nonreviewabiltiy has long been a tenet of U.S. immigration law and has prevented many actions to overturn consular decisions; however, prior to this case, the doctrine was primarily a creature of footnotes in court decisions, rather than directly cited as strong authority, as was done in the Muñoz case.
Previously, the doctrine of consular nonreviewability would generally prevent courts from reviewing visa denials for noncitizens in many cases, with a potential and limited exception when the decision infringes the constitutional rights of a US citizen. Post-Muñoz, individuals may have fewer avenues for seeking review of consular denials in the federal court, even when a constitutionally protected right is impacted.
We will continue to monitor and hope that the Court, or Congress, provides further clarity and protections in the future.
2025 OEWS Prevailing Wages and the Sunsetting of the FLC Data Center on July 1, 2024
The Department of Labor (DOL) announced on June 27, 2024, that the FLCDataCenter.com website will be discontinued Effective July 1, 2024. The FLCDataCenter.com website was maintained by DOL's Office of Foreign Labor Certification (OFLC) to publish Occupational Employment And Wage Statistics (OEWS), which was historically used by employers and DOL to determine prevailing wages. Effective July 1, 2024, OFLC transitioned prevailing wage data to the Foreign Labor Application Gateway (FLAG) website in the "Wage Data" tab. With the sunsetting of the FLC Data Center, stakeholders must use the FLAG website to access OEWS prevailing wages.
Department of State Acts on Biden-Harris Administration's Commitment to Facilitate Employment Visa Process for U.S. College Graduates
On July 15, 2024, the DOS issued updated guidance in the Foreign Affairs Manual (FAM) to consular officers, clarifying when officers should consider recommending that Department of Homeland Security (DHS) grant waivers of visa ineligibility, as applicable. The relevant updates note that "In general...[the consular officer] should consider cases where the applicant has graduated with a degree from an institution of higher education in the United States, or has earned credentials to engage in skilled labor in the United States, and is seeking to travel to the United States to commence or continue employment with a U.S. employer in a field related to the education that the applicant attained in the United States, to have a positive effect on U.S. public interests" (9 FAM 305.4-3(C)(c)(3)), and that "with regard to recommending a waiver, there is a clear and significant U.S. public interest in asking CBP/ARO to expedite a waiver request if the applicant has graduated with a degree from an institution of higher education in the United States, or has earned credentials to engage in skilled labor in the United States, and is seeking to travel to the United States to commence or continue employment with a U.S. employer in a field that requires the education that the applicant attained in the United States." (9 FAM 305.4-3(F)(b)). As stated in the pertinent June 18, 2024, press release from the Biden-Harris Administration, "it is in our national interest to ensure that individuals who are educated in the U.S. are able to use their skills and education to benefit our country." The updated guidance from the DOS will likely streamline the visa process for eligible applicants, allowing them to begin employment in the U.S. more quickly.
International Entrepreneur Rule Update
The American Immigration Lawyers Association recently reported that USCIS has received only 94 applications under the International Entrepreneur Rule since FY2021. The Rule was announced near the end of the Obama Administration but has greatly suffered from incredible uncertainty in terms of processing times and a lack of information from USCIS on procedures for adjudication. Recently, USCIS updated its webpage about the Rule, with new information checklists and other FAQs, showing at least some positive movement for this program. In addition, USCIS sent an update on July 24, 2024, noting that the investment amounts for the program were increasing, effective October 1, 2024. More information about this announcement can be found here.
While our firm is proud to be among those 94 applications submitted thus far, the process has been inefficient and cumbersome so we are hopeful these tweaks to USCIS policy and better processing times will improve the International Entrepreneur Rule. If you are interested in an assessment for your immigration options, please contact us.
New Category Added to the DHS STEM Designated Degree Program List
An advanced copy of the Federal Register notice entitled "Update to the Department of Homeland Security STEM Designated Degree Program List" adds "Environment/Natural Resources Economics" (03.0204) to the DHS STEM Designated Degree Program List, meaning those with this degree field marked on your I-20 will be eligible for a STEM Extension. The Notice does not remove any fields of study from the current list. As the summary of the notice explains: "This notice announces that the Secretary of Homeland Security (Secretary) is amending the DHS STEM Designated Degree Program List by adding one qualifying field of study and a corresponding Department of Education Classification of Instructional Programs (CIP) code for that field. The list is used to determine whether a degree obtained by certain F-1 nonimmigrant students following the completion of a program of study qualifies as a science, technology, engineering, or mathematics (STEM) degree as determined by DHS, as required for the F-1 student to be eligible to apply for a 24-month extension of their post-completion optional practical training (OPT)."
August Visa Bulletin
The August Visa Bulletin has been published. USCIS will continue recognizing the Final Action Dates in July. Largely, there were no changes, with EB-2 and EB-3 India advancing one month to July 15, 2012 and October 22, 2012, respectively.
CANADIAN BUSINESS IMMIGRATION UPDATES
Canada Extends Special Immigration Measures for Israeli and Palestinian Nationals Until July 2025
Earlier this year, Canada introduced special temporary immigration measures in response to the ongoing humanitarian crisis in Gaza. These measures allow Israeli and Palestinian passport holders with valid temporary resident status in Canada to apply for fee-exempt study or open work permits, valid for up to three years. Similar provisions are available for immediate family members of Canadian citizens or permanent residents who left Israel or the Palestinian Territories on or after October 7, 2023.
Initially set to expire on June 12, 2024, Immigration, Refugees and Citizenship Canada has announced an extension of these measures until July 31, 2025. Applicants now have until this new deadline to submit their applications.
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 19,161 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 Canadian Experience Class candidates, inviting 6,300 Express Entry candidates; the cut-off score was 515.
- IRCC held two targeted draws for Provincial Nominee Program candidates, inviting 2,311 Express Entry candidates; the cut-off scores were 739 and 670 respectively.
- IRCC held two targeted draws for French-speaking candidates, inviting 5,000 Express Entry candidates; the cut-off scores were 420 and 400 respectively.
- IRCC held one targeted draw for certain Healthcare occupations, inviting 3,750 Express Entry candidates; the cut-off score was 445.
- IRCC held one targeted draw for certain Trade occupations, inviting 1,800 Express Entry candidates; the cut-off score was 436.
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.