The Visa Bulletin is released monthly by the Department of State and is used to determine when a sponsored foreign national can submit the final step of the green card process, or if already pending, when the final step can be adjudicated.

Below is a summary of the February Visa Bulletin, including Final Action Dates and changes from the previous month.

China: EB-1 stalls at May 22, 2017; EB-2 advances two weeks to July 15, 2015; and EB-3 leaps ahead one month to January 1, 2016

India: EB-1 remains stalled at January 1, 2015; EB-2 creeps forward one day to May 19, 2009; and EB-3 advances one week to January 8, 2009

Philippines: EB-1 moves forward two months to December 1, 2018; EB-2 remains current; and EB-3 jumps forward two and a half months to June 1, 2018

All Other Countries: EB-1 advances two months to December 1, 2018; EB-2 and EB-3 remain current

NOTE:  USCIS has not yet announced if it will accept I-485 applications in February based on the Department of State’s Dates for Filing chart.

On January 13, 2020, the Trump administration filed an emergency appeal with the Supreme Court to lift a nationwide temporary injunction on the DHS “public charge” rule that was upheld by the Court of Appeals (2nd Circuit) last week.  The public charge rule, published in August 2019, expands the grounds on which the government can deny immigration benefits to various applicants seeking permanent residence (green card) status or work authorization to include those who have received certain public benefits, such as Medicaid, CHIP, and SNAP (see article, “DHS Reinterprets Public Charge”).  The rule gives the government broad discretion to deny an applicant if “at any time”, the applicant would “likely” become a public charge.  A medical condition alone could be enough for an immigration officer to exercise discretion to deny the application.

The emergency appeal remains pending at this time.  If it is granted, implementation of the public charge rule will affect more than 380,000 people annually, according to the Department of Homeland Security (DHS).  But DHS did not consider other effects of implementing this rule:  those requiring public assistance for themselves, their children, and/or their parents may avoid it in fear of harming their current and future immigration status.  This would cause a harmful ripple effect, as many would likely avoid assistance from programs that are not covered by the public charge rule.

Implementation of the public charge rule will directly affect US employers as well.  Employers may have a more difficult time extending work authorized visas for existing employees, and may have a more difficult time recruiting recent foreign student graduates of US colleges and universities.  Even in cases where the existing or prospective employees can meet the public charge burden, the additional costs to prepare the public charge forms and delays in processing them due to expected lengthy review will harm employers, not just the foreign nationals and their families.

We will update this blog as this story unfolds.

In 2019, the large policy and enforcement shifts signposted in 2017 and 2018 continued to play out with stricter immigration enforcement across the board. While we don’t expect to see seismic shifts in the coming year, there are a few issues to watch for in 2020.

(1) H-1B “Specialty Occupation” Definition Change Likely to Stall in Court

USCIS has indicated it will be announcing an official change to the definition of “specialty occupation.” While we have already seen a detrimental shift in the H-1B adjudication process, this would be an official regulatory change. We expect that any attempt to re-interpret the H-1B statute as narrowly as possible will face a lengthy court battle.

(2) H-1B Lottery Registration System

The government plans to use a new registration system originally announced in 2018 for the upcoming FY2021 H-1B Cap Season. According to USCIS, the initial registration window will be open from March 1 through March 20. However, the system has yet to be fully tested and USCIS has not yet issued registration instructions, so the implementation could still be delayed.

(3) H-4 EADs Still a Target

The government is likely to issue a regulation eliminating H-4 EADs. This change has been rumored for several years; however, we have learned that the draft regulation is making its way through the administrative process and is likely to be issued this year.  If it does take effect, we expect the government to stop accepting applications for new EADs and renewals, but to allow current EADs to remain valid until their expiration dates.

(4) L-1 Regulation Possible

The government may also make a shift in the L-1 regulations that could narrow the scope of specialized knowledge, and could modify the definition of what it means to be a manager or executive. While some clarity could be helpful, we believe the goal would be to narrow the usefulness of this visa category, and, like any changes to the H-1B regulations, L-1 changes would also likely stall in court.

(5) New Hurdles for Visa Issuance

We expect the trends in strict scrutiny by US consulates issuing visas to continue playing out through increases in administrative processing, “extreme vetting”, and visa denials. While in recent years, obtaining USCIS approval of a visa petition was the biggest hurdle, the visa application process at US consulates may be just as challenging.

(6) Fee Increases for USCIS and Visas

USCIS is expected to announce a set of fee increases in early 2020. This follows a proposal circulated in the fall. Visa reciprocity fees are also increasing for some countries.

(7) Stalemate on Capitol Hill

While immigration is making political headlines, there doesn’t seem to be much appetite for immigration legislation in the House or Senate, especially during an election year. A few proposals in 2019 to change elements of the immigration system have stalled. Expect to hear politicians speaking about immigration, but not acting on any substantive legislation.

(8) DACA at the Supreme Court

Following oral arguments last November, the Supreme Court is expected to issue its ruling on the future of Deferred Action for Childhood Arrivals (DACA) sometime in the spring. The court could end DACA, uphold DACA, or send it back to the lower courts for further review. Since DACA beneficiaries have work permits, a change to the program could have a major impact on these individuals, as well as on businesses in a variety of industries.

(9) Worksite Enforcement Across All Industries and Elements of Immigration

In a continuation of recent trends, expect to see all immigration-related agencies step-up their worksite enforcement activities. This includes not just the well-publicized ICE raids on employers of low-skilled workers, but also I-9 audits, no-match letters from Social Security, and a new focus on employers of foreign student graduates.

(10) Companies Exploring Options in Other Countries

As the US immigration process gets more complex, restrictive, and uncertain, companies may look to other countries for opportunities to grow their workforce. Countries like Canada, the United Kingdom, Ireland, Australia, and Singapore continue to provide good alternatives.

We will continue to provide updates throughout the year as these issues unfold.

The Visa Bulletin is released monthly by the Department of State and is used to determine when a sponsored foreign national can submit the final step of the green card process, or if already pending, when the final step can be adjudicated.

Below is a summary of the January Visa Bulletin, including Final Action Dates and changes from the previous month.

China: EB-1 moves ahead just one week to May 22, 2017; EB-2 creeps forward eight days to July 1, 2015; and EB-3 advances one month to December 1, 2015

India: EB-1 remains stalled at January 1, 2015; EB-2 crawls ahead three days to May 18, 2009; and EB-3 remains stalled at January 1, 2009

Philippines: EB-1 advances two and a half months to October 1, 2018; EB-2 remains current; and EB-3 advances two weeks to March 15, 2018

All Other Countries: EB-1 jumps ahead two and a half months to October 1, 2018; EB-2 and EB-3 remain current

 

NOTE:         USCIS has not yet announced if it will accept I-485 applications in January based on the Department of State’s Dates for Filing chart.

When traveling abroad for business, there are many things to remember – meeting schedules, presentation materials, business cards, dress clothes, etc. While immigration requirements can get lost in the shuffle, immigration documents should be on any business traveler’s pre-trip checklist. Forgetting required documentation can result in experiences that range from slightly inconvenient to potentially disastrous, including:

  • Missed flights;
  • Refusal of entry;
  • Long periods waiting in secondary inspection; and/or
  • Canceled trips.

Continue Reading The Business Traveler’s Checklist

The Visa Bulletin is released monthly by the Department of State and is used to determine when a sponsored foreign national can submit the final step of the green card process, or if already pending, when the final step can be adjudicated.

Below is a summary of the December Visa Bulletin, including Final Action Dates and changes from the previous month.  The December Visa Bulletin includes a warning that all employment-based second and third preference categories for all countries could retrogress in January.

China: EB-1 leaps forward three and a half months to May 15, 2017; EB-2 moves ahead three months to June 22, 2015; and EB-3 remains stalled at November 1, 2015

India: EB-1 remains stalled at January 1, 2015; EB-2 creeps forward two days May 15, 2009; and EB-3 freezes at January 1, 2009

Philippines: EB-1 advances 44 days to July 15, 2018; EB-2 remains current; and EB-3 moves forward one month to March 1, 2018

All Other Countries: EB-1 jumps ahead 44 days to July 15, 2018; EB-2 and EB-3 remain current

NOTE: USCIS has not yet announced if it will accept I-485 applications in December based on the Department of State’s Dates for Filing chart.

The Department of State (DOS) has updated its reciprocity schedule with shortened visa validity periods for French citizens. Specifically L-1/L-2 visas are now valid for 17 months and E-1/E-2 visas are now valid for 25 months.  Prior to this recent change, both visa categories were eligible for validity periods of 60 months.

Who is eligible for L-1/L-2 and E-1/E-2 visas?

  • The L-1 visa is used to transfer foreign employees who have been employed abroad by a company that is related to the US L-1 petitioner. It is available to multinational managers, executives, and employees with specialized or advanced knowledge of the petitioning organization’s products, services, and/or processes and procedures.  The L-2 visa is available to the spouse and children of L-1 transferees.
  • The E-1 (treaty trader) visa allows nationals of countries who have a treaty of commerce or navigation with the US to enter the United States to engage in substantial trade between the US and the treaty country.
  • The E-2 (treaty investor) visa allows nationals of countries that have treaties of commerce or navigation with the United States to enter the United States to invest a substantial amount of capital and develop and direct the investment enterprise. The E-2 visa is also available to nationals of the treaty country who are seeking the enter the US to engage in duties that are executive, supervisory, or require essential skills.

Why did DOS shorten visa validity for France?  The validity period of visas for nationals of different countries is determined by the treatment of US visitors to those countries and other factors, such security and immigration policies. The US Embassy in Paris stated that the changes were made to reciprocate the terms set for US citizens in France.

What does this mean? Foreign nationals who reside in the United States must have valid unexpired visas in their passports in order to be admitted to the United States following travel abroad.  Therefore, for those who travel frequently, this will means more visa applications will be required. Foreign nationals who do not need to travel may remain in the United States post-visa expiration, so long as their I-94s remain valid.

Note of Caution: Because I-94s determine a foreign national’s approved period of stay in the United States, it is incumbent upon foreign nationals to download copies of their I-94s after each international trip.  Errors are common and can negatively affect immigration status if not corrected immediately.    

While many of the most common Canadian business immigration options have close US equivalents, there are some options that are uniquely Canadian.

This is intended as informational only. If you have a question about a particular scenario, contact one of our immigration attorneys for guidance.

Francophone Mobility – Mobilité Francophone

To “promote Francophone immigration in Francophone minority communities”, Canada has a special immigration option for French speakers with job offers outside of Quebec. The offered position must be in a managerial, professional, technical, or skilled occupation and applicants must demonstrate French advanced intermediate or higher level abilities in French.

Open Work Permits for Spouses and Common-Law Partners

Like in the United States, Canada allows spouses of international students and skilled workers to accompany their partners. Unlike in the United States, these accompanying spouses are eligible for open work authorization immediately upon entry – no need for post-arrival applications. These work permits are called “open” as they are not job-specific and can be used for professional and non-professional positions. Another notable difference from the United States: unlike L-2 or H-4 EADs, this Canadian benefit is not limited to spouses or those whose relationship is legally recognized in their home countries. It is also available for unmarried partners who have cohabitated for at least one continuous year.

Short-Term Work Permit Exemption

Managers and professionals in occupations that call for a degree may, in some circumstances, qualify for a work permit exemption that allows the performance of hands-on work for up to 30 days. This exemption is narrow, bound by strict time limitations, cooling-off periods, and occupational criteria.

Reciprocal Employment

Canada has a special program for organizations that provide Canadians with employment opportunities abroad.  Employers with Canadian operations who frequently send Canadian employees to subsidiaries outside of Canada or whose non-Canadian offices host Canadian workers from other organizations as part of some kind of reciprocal exchange program can use this path to avoid some time-consuming steps of the standard work permit process. The key to using this path is showing there is a bi-lateral flow of workers in and out of Canada.

IEC Working Holiday

Canada, like many other countries in the world, has a special work permit program for young adults. The Canadian version is “International Experience Canada” and is available to citizens of about 30 countries who are between the ages of 18 and 30 or 35 (exact age limit varies by country). It is not a long term solution as permits are subject to a quota and are generally limited to a non-renewable period of 12 months, but might be a good option for some situations.

This is just an overview. If you have a question about a specific case or want to know more about we can help your team take advantage of Canadian immigration options, contact one of our immigration attorneys.

The government of Prime Minister Justin Trudeau remains in power following last week’s Canadian federal elections. Despite losing a clear majority, Trudeau’s Liberals are still the largest party in Parliament with enough seats to form a minority government. With what is largely a continuation of the status quo, immigration priorities are likely to remain unchanged, with Canada continuing a policy of encouraging employment-based immigration.

Similar to the US, Canada has entry and work authorization requirements that vary based on several factors including

  • the reason for travel,
  • the length of stay, and
  • the traveler’s citizenship.

The following is an overview of the most popular immigration categories. This is intended as informational only. If you have a question about a particular scenario, contact one of our immigration attorneys for guidance.

Business Travel

US Equivalent: ESTA and B-1/B-2

Those going to Canada for business meetings or to attend conferences can enter Canada as business visitors. Business visitors who are US citizens may travel to Canada without pre-authorization. Citizens of all other countries, even those who are US Lawful Permanent Residents, must obtain an approved Electronic Travel Authorization (“eTA”) or a visitor visa before traveling to Canada. These approvals do not authorize the performance of hands on work and should not be used in place of required work authorization.

Intra-Company Assignments

US Equivalent: L-1A/B

Employees temporarily assigned to the Canadian branch of their current employer can obtain work authorization as intra-company assignees. Like the US L-1, the employee must have worked for the company for at least 1 year before the transfer. Unlike the L-1, the employee must remain an employee until the time of transfer (no gap allowed).

NAFTA Professionals

US Equivalent: TN

As a NAFTA signatory, Canada has a work permit category specifically for US and Mexican citizens. This category uses the same profession list as the one that applies to the US TN, so while it is a great option for engineers and accountants, it is not suitable for all workers.

Post-Graduation Work Permit (PGWP)

US Equivalent: OPT

Graduates of many Canadian “learning institutions” are eligible for post-graduate work authorization very similar to OPT. The length of work authorization depends on the length of the program. Graduates of an eligible 2-4 year program are usually granted work authorization for up to 3 years.

Various additional immigration options exist for Canada. In the future, we will write more about the differences between US and Canadian immigration as well as some of the less common work permits, such as the Francophone Mobility program.

If you have a question about a specific case or want to know more about how we can help your team take advantage of Canadian immigration options, contact one of our immigration attorneys.

Most frequent business travelers and the teams that support them are familiar with the usual immigration options of visas, visa-free business travel, and work permits. These can be frustrating, time consuming, and not always a good fit for schedules or travel purposes. Thankfully for those headed to Asia, many countries have immigration options that lack the issues of more traditional routes.

Continue Reading Asian Alternatives – Special Immigration Options in Asia that Fit Many Needs