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

On September 19, 2019, Congress tried and failed to eliminate the per-country limit for employment-based green cards. This latest effort, a bill known as the Fairness for High-Skilled Immigrants Act of 2019 (HR 1044) easily passed in the House 365-65, but stalled in the Senate where it has been blocked by Senator David Perdue (R-GA) who has placed a hold on the bill preventing a vote.

While there is consensus that the current per-country limit for the issuance of employment-based green cards is flawed, unfair and in need of an overhaul, how to achieve that is at the center of the Congressional debate. 

What is the Per-Country Limit?

The per-country limit means that each country in the world receives only up to 7% of the 140,000 employment-based green cards available per year, or about 10,000 green cards per country. A similar limit applies for family-based green cards. Individuals born in India and China, who make up the largest number of employment-based green card applicants, are disproportionately affected by the per-country limit on employment-based green cards. For the two countries, there are well over 10,000 people currently eligible for green cards as direct or derivative beneficiaries, so demand greatly exceeds the 7% allocation every year.

The Source of the Congressional Debate

The number of individuals already stuck in the backlog and the interests of different industries make it virtually impossible to pass legislation that satisfies all stakeholders.

One proposal is to eliminate per-country limits in favor of country-blind first come first serve green card allocation without a change in the total number of green cards available. This is the main idea behind HR 1044. Under this proposal, thousands of Indian- and Chinese-born skilled workers stuck in the employment-based green card backlog would see a shorter line to apply for green cards, while individuals born in the rest of the world would in turn experience the same backlogs that Congress is seeking to eliminate. Variations of this proposal would eliminate the per-country limits in part, but still reserve a portion of green cards for individuals born in countries other than India or China until the backlog is mostly eliminated. Under all variations, in the long-term, country-specific backlogs would be eliminated but an overall backlog would still exist. This solution is criticized by those who would like to see the backlog completely eliminated and green cards issued to all those who meet eligibility requirements without a numerical cap.

An alternative proposal is to increase the number of employment-based green cards available overall and allocate them specifically to individuals born in India and China. Variations of this proposal revolve around whether the cap should be raised, or whether it should be eliminated entirely. This solution is not favored by those who want to limit overall immigration to the United States.

For now, Congress has not fully embraced any proposal, and debate continues.

Bottom line

Do not let the speculation around the possible outcome of Congress’ efforts to eliminate the per-country limit discourage or guide your efforts to gain permanent residence in the United States. It is business as usual for now and it is never too late to secure your place in line (priority date) under existing legislation.

During the 2019 Women’s Soccer World Cup, those searching for immigration stories had to look to the sidelines. At the 2019 Rugby World Cup, happening right now in Japan, you find similar stories about itinerant coaches and countries bringing in top coaches from overseas to give them an edge. But at this event, the sidelines are not the only place where interesting immigration tales can be found.

Just look to the stands – and the scrum.

The Stands

When the Women’s Soccer World Cup kicked off in France earlier this year, many teams could expect loyal turnout from France’s large immigrant community. In Japan, which is currently hosting the Rugby World Cup, it is a different story. The local fans in the stands are much less diverse.

Japan is not known for welcoming immigrants. As summarized in a recent report by the Migration Policy Institute, until the early 1900s Japan had a policy of active isolationism. Later, during the post-war period, Japan effectively implemented a program of short-term work permits, discouraging long-term settlement. As recently as 2017, according to the United Nations, only 1.8 percent of the population of Japan was foreign born. By comparison, the same year, foreign-born residents made up 15.3% of the US population, 21.5% of the Canadian population, and 28.8% of the Australian population.

Japan does have one type of immigrant it loves though, rugby players, especially those who played their international rugby for New Zealand. The Kiwi team, known as the All Blacks, have dominated international rugby for decades and are the reigning Rugby World Cup champions. Currently 10 former All Blacks play professional rugby in Japan and the current All Black captain Kieran Read is set to join the Japanese team, Toyota Verbitz, after this World Cup.

The Scrum

Down on the field, where players compete in the head-to-head tussle for ball possession known as the scrum, another canonical immigration story is playing out in the ranks of the US national rugby team, the Eagles. This one follows a well-known trope – skilled young people leaving their home for opportunity abroad. Unlike the All Blacks who often play most of their careers for New Zealand professional teams, American rugby players go abroad early.

Take, for example, the Kiwi and American starting lineups for their first matches in this World Cup shown below. Every single Kiwi plays for a professional team in New Zealand, but only 5 of the 15 American starters play professional rugby at home. In fact, the number of American starters who play in the US is not only less than the number of American starters who play in England (5:7) it is even less than the number of starting All Blacks who play for the Christchurch Crusaders (5:8). The Kiwi team is more homegrown than the US team in other ways. For example, of the starting 15 for each team, 13 Kiwi players were born in New Zealand whereas only 9 of the American players were born in the US.

Despite their well-traveled personnel, the US team is not expected to do well in this World Cup. They lost their first match to England, 45-7, and at time of writing the Eagles are ranked 13th in the world behind rugby powerhouses Fiji (12th) and Georgia (11th). The All Blacks, from a country with about the same size and population as Colorado, are expected to win it all. The final is on November 2nd.

As Forbes has reported, US Immigration & Customs Enforcement has begun visiting the work sites of foreign students with employment authorization based on STEM degrees and employment with E-Verify employers (commonly known as “STEM OPT”).  While authority to conduct such site visits was part of regulations issued more than 3 years ago, during the Obama administration, this is the first time ICE has exercised its authority.

Although STEM OPT work permits do not require employer sponsorship, employers must develop a 2‑year training program that is kept on file with the student’s university, report changes in employment such as terminations or wage and hour reductions, and allow site visits by government inspectors.  Until now, there has been little government oversight of compliance with these requirements.

The regulations authorize ICE to visit work sites, including third-party work sites, with advance notice of 48 hours. The advance notice requirement is waived if ICE has received a specific complaint or has other reason to suspect noncompliance.

Employers who receive a site visit can expect that the ICE employee will ask if the company is still enrolled in E-Verify, has sufficient infrastructure to implement the training plan, properly supervises the student, and carries out the required periodic evaluations.  ICE may also seek evidence that students who are contracted to third‑party sites retain a true employee relationship with their contracting employer and may request information on how the student’s salary was determined and whether the student is replacing a US worker.

The STEM OPT work permit is popular with students and employers alike, as it provides work authorization for 3 years in total, and thus 3 opportunities for the student to be sponsored for an H-1B visa in the annual lottery.  With odds of success in the H-1B lottery now as low as 30 percent, employers who wish to retain talented foreign STEM students are looking for this sort of advantage.  The May 2016 STEM OPT regulations estimate that almost 9,000 employers would drop out of the E-Verify program if not for the fact that it allows them to hire a STEM OPT student.

Noncompliance puts both students and their employers at risk, but consequences fall more heavily on students.  The Department of Homeland Security may deny STEM OPT work permits to students who use a noncompliant employer’s E-Verify number on their applications.  Students also face consequences, such as denial or revocation of their work permits, for failing to report employer changes they may know nothing about, including a change in Employer Identification Number (EIN) as a result of corporate restructuring.

In light of this new trend in enforcement actions, US companies that employ STEM OPT students should ensure ongoing compliance by familiarizing the students’ managers with training plans and with reporting and evaluation requirements, and by thoroughly reviewing any changes to a STEM OPT student’s employment.

 

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 October Visa Bulletin, including Final Action Dates and changes from the previous month.

China: EB-1 advances more than two years to November 1, 2016; EB-2 retrogresses two years to January 1, 2015; and EB-3 advances twenty-two months to November 1, 2015

India: EB-1 returns to January 1, 2015; EB-2 creeps forward four days to May 12, 2009; and EB-3 leaps ahead over four year to January 1, 2009

Philippines: EB-1 returns to April 22, 2018; EB-2 becomes current; and EB-3 advances fifteen months to October 15, 2017

All Other Countries: EB-1 returns to April 22, 2018; EB-2 and EB-3 return to current

NOTE: USCIS will accept I-485 applications in October based on the Department of State’s Dates for Filing chart. The dates listed in the Dates for Filing chart are (in some cases) significantly later than the Final Action chart.