Immigration News – October 2024 - Work Visas

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.

We would like to extend our deepest condolences and sympathies to the many families and individuals affected by Hurricane Milton, Hurricane Helene, and other recent natural disasters. We thank the first responders on the ground carrying out rescue missions and wish a speedy recovery to all affected by the disasters. At Brown Immigration Law, we are committed to assisting you with your applications if you have encountered unforeseen circumstances during the recent natural disasters. The affected USCIS field offices have reopened and returned to regular case processing. The Department of Labor has also provided guidance on communications, deadlines, and timeframe flexibility in response to the recent hurricanes. If you or your business have been affected by the recent natural disasters and need assistance with your immigration matters, please reach out to your attorney at Brown Immigration Law.

U.S. BUSINESS IMMIGRATION UPDATES

Update on Keeping Families Together Initiative

As we previously reported in our September Newsletter, the Keeping Families Together (KFT) Initiative, first announced by the Biden-Harris Administration in June 2024, quickly became the subject of litigation when 16 Republican-led states sued to block the implementation of the program. On August 26, a federal judge for the U.S. District Court for the Eastern District of Texas issued an administrative stay of the program, effectively preventing USCIS from taking any action on any pending KFT parole applications (although applicants can still file for the KFT parole while the stay is in effect). Subsequently, a group of immigrants and their spouses who remain impacted by the pending litigation filed a Motion to Intervene in the litigation.

On October 4th, The Fifth Circuit Court of Appeals affirmed the lower court's Order Denying the Motion to Intervene. The action by the Fifth Circuit also temporarily lifted the administrative stay imposed on the KFT program by the lower court, but that relief was short-lived as the lower court issued another administrative stay mere hours later which is set to remain in effect until November 8. The lower court also established a bench trial date of November 5 to resolve any factual issues, if necessary.

Due to the most recent order from the lower court, the KFT program is set to remain on hold through the upcoming U.S. presidential election. We remain hopeful that the courts will recognize that the KFT program is a common-sense policy that supports family unity, which has remained an essential principle of U.S. immigration policy since the INA was enacted. We will continue to provide updates on the Keeping Families Together Initiative as they become available.

Updated Guidance for Medical Exams

The Polio vaccine is now required for all applicants (except infants under 2 months), where previously it was not required for adult applicants. Based on our firm's experience with previous medical exam changes, it is unlikely that all civil surgeons are aware of this change, and some may still note that the vaccine is "Not Age Appropriate" on the medical exam. If applicable, USCIS will issue a request for evidence asking for an updated medical form to reflect the updated Polio vaccine guidance. USCIS advises against interfiling a medical exam form until it is specifically requested, so we recommend our clients to wait until the RFE is issued to ensure USCIS does not misplace the updated examination.

In the meantime, any applicants that completed their medical exam after May 1, 2024, may request a copy of the exam from the civil surgeon who completed the exam to check if it was filled correctly. If the exam was not correctly filled, as noted, we anticipate that you will receive a request for evidence (RFE) requesting a new medical exam and that you be properly vaccinated for polio.

Please contact your Brown Immigration Law attorney with any questions about the updated guidance.

Updates to DOL's O*NET job occupations with implications for PERMs and H1Bs

On August 26, the Department of Labor (DOL) ONET Program implemented updates impacting 101 occupations, including changes to the Job Zones for some occupational categories. Notably, the Job Zone for Computer Systems Engineers/Architects – 15-1299.08 was downgraded from Job Zone 4 to Job Zone 3. A reduction from Job Zone 4 to 3 can have significant impacts on both PERM and H-1B cases, so we are monitoring these updates closely.

In the case of PERM applications, an employer requiring anything beyond a bachelor's degree for a Job Zone 3 occupation may prompt a "business necessity" justification with the filing. Importantly, the version of O*NET that was effective at the time that a prevailing wage determination (PWD) was issued is controlling, according to DOL's Office of Foreign Labor Certification, so PERMs with PWDs issued prior to the August 26 updates should not be impacted by the Job Zone adjustment.

An occupational category's change from Job Zone 4 to Job Zone 3 could also result in increased scrutiny from USCIS for H-1B petitions, as USCIS may take the position that O*NET's standard for Job Zone 3 does not meet the first threshold for classification as a H-1B specialty occupation; that "A baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry" into the occupation. Petitioners can refer to the DOL's Occupational Outlook Handbook (OOH) for additional guidance demonstrating that a bachelor's degree is typically required for entry into these professions, or otherwise seek to qualify the occupation under one of the other Specialty Occupation eligibility criteria.

We have already taken note of these changes in our practice and will continue to monitor for further updates to the O*Net system.

USCIS Issues New Guidance on EB-1 Eligibility Criteria for Individuals with Extraordinary Ability

On October 2, 2024, USCIS released new guidance on EB-1 Eligibility Criteria for Individuals with Extraordinary Ability. Specifically, this new guidance:

Confirms that USCIS may consider a person's receipt of Team Awards for the Lesser Nationally or Internationally Recognized Prizes or Awards criterion;
Clarifies that USCIS consider past memberships under the membership criterion;
Removes language suggesting published material must demonstrate the value of the person's work and contributions to satisfy the published material criterion; and
Explains that while the dictionary defines an "exhibition" as a public showing not limited to art, the relevant regulation expressly modifies that term with "artistic," such that USCIS will only consider non-artistic exhibitions as part of a properly supported claim of comparable evidence.

We welcome common sense updates and clarifying guidance from USCIS regarding the adjudication of Extraordinary Ability petitions which, notably, have some of the highest standards in immigration law.

Updates on the International Entrepreneur Rule

Under the International Entrepreneur Rule (IER), qualifying noncitizen entrepreneurs can enter the U.S. to conduct business if they can show that their stay in the U.S. would provide a significant public benefit through their business venture among other requirements. There are minimum investment thresholds to qualify for the IER Parole. Starting from October 1, 2024, the investment and revenue amounts will be automatically adjusted every three (3) years by the Consumer Price Index for All Urban Consumers (CPI-U) and posted on the USCIS website. As explained in the 2024 final rule:

If relying on an investment from a qualifying investor, the amount is increasing from $264,147 to $311,071.
If relying on a government award or grant, the amount increases from $105,659 to $124,429.
The revenue amount for consideration of re-parole is increasing from $528,293 to $622,142.
An individual or organization may be a qualified investor if they made investments in start-up entities comprising a total of no less than $746,571 (rather than $633,952).

USCIS Clarifies Guidance on Expedite Requests

On March 21, USCIS issued updated guidance in its Policy Manual to clarify how it considers expedite requests related to government interests, emergencies or urgent humanitarian situations, including travel-related requests. By way of background, individuals requesting immigration benefits may request to expedite the adjudication of their application, petition, request, appeal, or motion. USCIS considers all expedite requests on a case-by-case basis and generally requires documentation to support such requests. Although the decision to expedite is within the sole discretion of USCIS, the updated guidance clarifies, among other things, that:

USCIS may expedite cases identified as urgent by federal, state, tribal, territorial, or local governments of the United States because they involve public interest, public safety, national interest, or national security interests;
- Additionally, when an expedite request is made by a federal government agency or department based on government interests, USCIS generally defers to that agency or department's assessment;
USCIS may expedite adjudication of Form I-131, Application for Travel Documents, Parole Documents, and Arrival/Departure Records, for requestors inside the U.S. when they demonstrate a pressing or critical need to leave the U.S., whether the need for travel relates to a planned or unplanned event; and
USCIS may consider an expedite request based on clear USCIS error.

This guidance is effective immediately and is controlling and supersedes any related prior guidance. In the face of continuing delays in the adjudication of filings that cannot be upgraded to premium processing, the option to expedite and clarity on the parameters surrounding the Service's discretionary authority will go far in enabling individuals to make well-informed decisions around situations that may merit expediency. Please reach out to your BIL attorney for further information about expedite requests.

Successes of the New DACA D3 Waiver: Unlocking Opportunities for Dreamers in the Workforce

On June 18, the Biden Administration announced actions to allow individuals, including DACA (Deferred Action for Childhood Arrivals) recipients and other Dreamers, who have earned a degree at an accredited U.S. institution of higher education in the United States, and who have received an offer of employment from a U.S. employer in a field related to their degree, to more quickly receive work visas. However, securing such temporary work visas usually requires people to leave the United States and apply to re-enter. A catch-22 situation arises as a result since DACA recipients and Dreamers who have accrued more than 180 days of "unlawful presence" in the U.S. and/or who do not have an "initial lawful entry" to the U.S. are subject to a 3 or 10 year bar on re-entry into the U.S. unless they obtain what is known as a D-3 waiver, which can be a long and uncertain process in itself given very little written guidance on the subject.

The significance of the June 18 announcement lies in the clarifying guidance issued by the Department of State on July 15 to consular officers regarding when they should consider recommending that the Department of Homeland Security approve a D-3 waiver in addition to recommending expedited review of waiver requests. In the three months since the Biden Administration announcement, an innovative new clinic at Cornell Law School called Path2Papers has shared two examples of recent D-3 waiver approvals it was able to obtain its clients. Read their success stories here.

The new D-3 guidance is an important new tool for immigration lawyers to help Dreamers, as it offers clear criteria and the ability to expedite waiver requests. Please reach out to your BIL attorney for further assistance on the subject.

U.S. Government Adds Qatar to the Visa Waiver Program

In September, the U.S. Department of Homeland Security and Department of State designated Qatar into the Visa Waiver Program as its 42nd member. Starting December 1, 2024, eligible citizens, nationals, and passport holders from Qatar will be able to apply to travel to the United States for tourism or business purposes for up to 90 days without first obtaining a U.S. visa by submitting an Electronic System for Travel Authorization (ESTA) online application. If you would like to better understand requirements for traveling to the United States or your eligibility to travel to the United States without a visa, please contact your BIL attorney.

USCIS Makes Updates to Policy Guidance for the "Sought to Acquire Requirement Under the Child Status Protection Act

On September 25, 2024, USCIS announced that it would be updating its Policy Manual (Volume 7, Part A, Chapter 7) to clarify how to calculate the Child Status Protection Act (CSPA) age for noncitizens who demonstrate extraordinary circumstances. This guidance went immediately into effect on the date it was announced.

By way of background, the CSPA protects certain beneficiaries from losing eligibility for immigrant visas and adjustment of status due to their aging during the immigration process, which can lead to the beneficiary no longer qualifying as a child for immigration purposes (commonly referred to as 'aging out'). For the family, employment-based preference, or diversity immigrant categories, CSPA provides a method to calculate the noncitizen's age based on the date an immigrant visa becomes available. To benefit from the calculation, the noncitizen must seek to acquire lawful permanent resident (LPR) status within 1 year of immigrant visa availability.

"Extraordinary circumstances" may warrant the exercise of discretion to excuse an applicant who failed to seek to acquire LPR status within 1 year of immigrant visa availability. To establish extraordinary circumstances, the applicant must demonstrate that the circumstances were not created through the noncitizen's own actions or inactions; the circumstances directly affected the applicant's failure to seek to acquire LPR status within the 1-year period; and the delay was reasonable under the circumstances. If an applicant successfully establishes extraordinary circumstances, USCIS calculates their CSPA age using the date when the visa became available.

Under this updated guidance, the CSPA age calculation of an application who established extraordinary circumstances and is excused from the "sough to require" requirement uses the date that the immigrant visa first became available when the immigrant visa is continuously available for a 1-year period without any intervening visa unavailability.

Additionally, the update clarifies that under circumstances where the immigrant visa became available then unavailable, the CSPA age calculation may use the date an immigrant visa first became available if the applicant demonstrates extraordinary circumstances for not applying for adjustment of status before the immigrant visa became unavailable.

November 2024 Visa Bulletin

The Department of State released the Visa Bulletin for November 2024. There are very few updates in the November Visa Bulletin compared to the October 2024 Visa Bulletin. The only change of note was under the Final Action Dates for employment-based preference categories were for "Certain Religious Workers" under the 4th-preference employment based category, whose Final Action Dates changed from "Unauthorized" to January 1, 2021. There were no changes from October to November under the Dates for Filing for employment-based preference categories.

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. If your priority date is now current under the November Visa Bulletin or your priority date is soon to be current, please contact our office if you would like to begin preparation to file your adjustment of status application.

CANADIAN BUSINESS IMMIGRATION UPDATES

Further Updates to Canada's Temporary Foreign Worker Program

The Minister of Employment, Workforce Development and Official Languages, Randy Boissonnault, recently announced further reforms to Canada's Temporary Foreign Worker Program (TFW Program), which is responsible for processing Labour Market Impact Assessments (LMIAs). This follows significant changes made in August 2024 to the Low-Wage stream, which included:

A refusal to process applications where the unemployment rate is 6% or higher in the relevant census metropolitan area (with exceptions for seasonal and non-seasonal roles, as well as construction and healthcare sectors).
A reduction in the cap for hiring under the Low-Wage stream to 10% of an employer's total workforce through the TFW Program.
A reduction of the maximum duration of employment from two years to one year.

As a result, many employers are currently unable to hire temporary foreign workers under the Low-Wage stream in most major metropolitan areas across Canada.

Changes to the High-Wage Stream

New reforms to the High-Wage stream align with the Government of Canada's efforts to better meet labour market needs and curb misuse of the program.

Effective November 8th, 2024, employers will be required to offer an hourly wage 20% higher than the current median wage in the relevant province or territory. For example, in Ontario, employers could previously use the High-Wage stream if they offered an hourly wage of $28.39 CAD or higher. After the changes take effect, the minimum hourly wage will rise to $34.07 CAD or higher.

In addition, employers will no longer be able to submit attestation letters from chartered accountants or lawyers to demonstrate business legitimacy.

These changes are expected to increase the complexity of Labour Market Impact Assessment (LMIA) applications. Start-ups and businesses without positive revenue streams may face greater scrutiny when their business legitimacy is assessed.

Next Steps and Guidance

Currently, limited guidance has been provided on how these changes will affect applications already in process or recruitment efforts that have begun.

At Brown Immigration Law, we are closely monitoring these developments and will continue to provide updates and guidance as new information becomes available. If you have any questions about how these changes may impact your business or would like to schedule a consultation, please contact us.

Canada Announces 20% Reduction in Immigration Targets for 2025–2027

On October 24, 2024, the Canadian government revealed its 2025–2027 Immigration Levels Plan, aiming to reduce immigration targets for permanent residents to 395,000 in 2025, with further reductions to 365,000 by 2027.

Key Highlights of the Plan:

Reduction in Permanent Resident Targets: The plan aims to reduce permanent resident admissions in 2025 and the following years to achieve sustainable population growth and economic prosperity.
Prioritization of In-Canada Applicants: More than 40% of anticipated permanent resident admissions in 2025 will be from those who are already in Canada as temporary residents.
Focus on Economic Immigration: Economic immigration will be prioritized, with approximately 62% of total admissions dedicated to this category by 2027.
Family Reunification and Refugee Resettlement: The plan continues to prioritize family reunification and refugee resettlement.
Strengthening Francophone Communities: The plan aims to increase Francophone immigration outside of Quebec.
Temporary Resident Targets: Canada will reduce the number of temporary residents to 5% of the total population by the end of 2026.

Implications for Immigration Applicants:

The Immigration Levels Plan may impact your immigration application in several ways, including:

Increased Competition for Certain Categories: As the overall number of permanent resident admissions is reduced, competition for certain categories may increase.
Prioritization of In-Canada Applicants: If you are already in Canada as a temporary resident, you may have a better chance of obtaining permanent residency.
Prioritization of Certain in-Demand Occupations: The government may introduce additional changes to economic immigration programs to prioritize certain occupations or regions.

If you have any questions about how these changes may impact you or your employees or would like to schedule a consultation, please contact us.

Express Entry – Recent 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 last four weeks, Canada issued 9,961 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 4,900 Express Entry candidates; the cut-off scores were 509 and 539 respectively.
IRCC held two targeted draws for Provincial Nominee Program candidates, inviting 2,261 Express Entry candidates; the cut-off scores were 743 and 791 respectively.
IRCC held one targeted draw for French-speaking candidates, inviting 1,000 Express Entry candidates; the cut-off score was 444.
IRCC held one targeted draw for candidates working in specific Trade occupations, inviting 1,800 Express Entry candidates; the cut-off score was 433.

NEW LEARNING OPPORTUNITIES

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.

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.

Immigration News – October 2024

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