US: Government Shutdown 2018

Posted by Immigration Law Team|US Immigration
Feb 18
7


In brief

On January 22th, 2018, the U.S. government reopened after shutting down on January 20th, due to funding issues.  Congress passed a spending bill that will keep the government funded until February 8th, 2018.  Currently, Congress is in negotiations to reach a long term budget that will keep the federal government funded until 2020. One of the issues that is currently being discussed as part of these negotiations concern legislation involving the future of Deferred Action for Childhood Arrivals (DACA). This alert will discuss recent development concerning DACA, and in the event there is another shutdown in February, this alert will discuss how a potential future government closure will affect immigration-related services.

Discussion

On January 20, 2018, the U.S. government shut down after the Senate was unable to pass a funding bill. This led to the closure of all non-essential and non-fee-based functions. On January 22, 2018, the Senate Democrats and Republicans re-entered into negotiations and came to an agreement that a vote should be held to temporarily reopen the government. In that afternoon, a vote was held and a funding bill was passed that would keep the government functioning until February 8, 2018. This vote gives all parties time to negotiate a new funding bill while the government continues its operations.

DACA

Recently, a federal district court judge ordered the Department of Homeland Security on January 9, 2018 to partially resume the DACA program. (see previous alert) Since then, the United States Citizenship and Immigration Services (USCIS) has issued guidance on renewal of DACA-based Employment Authorization Document (EAD). USCIS will mostly follow the same procedures to process DACA-based EAD renewal applications that were in place before DACA was rescinded. Only individuals who were previously granted DACA may request renewal of their DACA-based EAD. USCIS will not accept requests from individuals who have never been granted deferred action under DACA. USCIS will also not accept or approve advance parole requests from DACA recipients. (please see here for additional details on USCIS guidance)

A group of bipartisan Senators and President Trump have both expressed interest in finding a legislative solution that would provide DACA-recipients protection from removal by the Department of Homeland Security (DHS) and offer them lawful permanent residency with a pathway to citizenship currently not available under DACA. However, there are significant differences that need to be resolved before an agreement can be made. Under President Trump’s proposal, it would provide legal status along with a 10 to 12 year path to citizenship to 1.8 million DACA recipients and DACA eligible first-time registrants. In exchange, the proposal calls for creation of a $25 billion trust fund for border security improvements including a border wall system, restriction of family-based immigration to only the spouse and minor children of citizens and lawful permanent residents, and elimination of the diversity visa lottery. In comparison, the Senate bipartisan Graham-Durbin proposal would also provide legal status and a path to citizenship for DACA recipients and DACA eligible first-time registrants. In contrast with President Trump’s proposal, the Graham-Durbin proposal would add only $2.7 billion in border security spending, continue to allow citizens to sponsor their parents, siblings and unmarried adult children under family-based immigration, and grant renewable work authorization to parents of DACA recipients and DACA eligible first-time registrants.

There are still significant uncertainties with regards to the future of DACA, and PwC Law will continue to monitor and provide additional information as they become available. For current DACA recipients, please contact a member of our team to discuss how the recent USCIS guidance may impact you.

Impact

In the event that a new budget is not agreed upon by February 8th,  the U.S. government will shutdown again. From an immigration perspective, there are several government agencies and departments that will be impacted should this occur.

It is anticipated that the USCIS will continue operations since it is almost exclusively a fee-based agency.  Therefore, USCIS should continue to receive and process work permit petitions, such as H-1Bs and L-1s. United States Customs and Border Protection (CBP) will also remain open since it is considered an essential agency with jurisdiction over the entry through the US border. As such, all ports of entry will remain open. The United States Immigration and Customs Enforcement (ICE) will also continue to enforce immigration laws during any future shutdown.

E-Verify services, which allows employers to determine the eligibility of their employees to work in the US, are likely to become unavailable.  Employers will still be expected to complete Form I-9 no later than the third business day after an employee starts work for pay, and comply with all other Form I-9 requirements.

Department of Labor (DOL) services, which is not an exclusively fee-based department, will will be affected. Specifically, the DOL will not allow for the filing and processing of all PERM labor certifications and visa categories that have a Labor Condition Application (LCA) component, including H-1Bs, H1B1s, and E-3 petitions.

The Department of State (DOS) will continue to operate the overseas consulates in a limited capacity.   Passport operations will be unaffected however, the consulates may stop issuing visas, unless they are diplomatic visas, or visas required to enter the U.S. for emergent reasons.

The Social Security Administration (SSA) will limit its activities due to the government shutdown. From an immigration perspective, the SSA will not issue new or replacement social security cards.

In the event that another shutdown occurs in February, our office will continue to monitor and provide additional information.

For further details regarding Government shutdown or any other immigration matters, please contact a member of our team at PwC Law LLP.


Posted by Immigration Law Team »

Canadian Immigration Alert: Ontario Immigrant Nominee Program Re-Opens

Jan 18
18


In brief:
The Ontario Immigrant Nominee Program (“OINP”) announced today, January 18, 2018, that the federal government has increased Ontario’s 2018 allocation to a total of 6,600 nominations, and is once again accepting applications in most streams.

Discussion:
The increase of 600 nominations for a total of 6,600 nominations for 2018 follows the federal government’s recognition of the OINP’s past success, and its present and future importance to Ontario’s and Canada’s economy.

The OINP is currently accepting applications in the following streams:

  • Employer Job Offer: Foreign Worker Stream, International Student Stream, and In-Demand Skills Stream;
  • Ontario’s Express Entry: Human Capital Priorities Stream, French-Speaking Skilled Worker Stream, and Skilled Trades Stream;
  • Corporate Stream; and
  • Entrepreneur Stream.

The OINP advises all potential applicants to carefully review the recently updated OINP – Application Guides as processes may have changed since the coming into force of the new Ontario Immigration Act, 2015 (Bill 49).

The OINP will be monitoring the intake of applications for 2018, and once the intake limits have been reached, the OINP will provide an update. Programs are expected to pause and reopen until the nomination quota is reached, as was done in 2017. The OINP will also provide an update as soon as it begins accepting applications for the Masters Graduate and PhD Graduate Streams, respectively.

Impact:
The reopening of the online application system, and the allocation increase of 600 nominations for a total of 6,600 for 2018, are both positive developments. This will help individuals and employers alike, as well as Ontario and the country as a whole, to advance our economy forward.

For more information on Immigration to Ontario or any other immigration matter, please contact PwC LLP.


Posted by Immigration Law Team »

US: Federal District Court orders DHS to partially resume the DACA program

Jan 18
12


In brief

On January 9, 2018, a federal district court judge issued an order directing the Department of Homeland Security (DHS) to resume accepting renewal applications from Deferred Action for Childhood Arrivals (DACA) beneficiaries. This order does not apply to new applicants who have never applied for DACA and all DACA-related Advance Parole applications.

Background

On September 5, 2017, the Trump Administration announced its plans to terminate the DACA program on March 5, 2018. United States Citizenship and Immigration Services (USCIS) would reject any initial DACA requests received after September 5, 2017 and would only process renewal DACA applications received on or before October 5, 2017 for DACA recipients whose benefits would expire between September 5, 2017 and March 5, 2018. (see prior alert)

Despite repeated efforts, Congress has yet to reach a deal on the continuation of DACA. On January 9, 2018, a federal district court judge issued an order directing DHS to partially resume the DACA program. As part of the order, the DHS is required to “maintain the DACA program on a nationwide basis on the same terms and conditions as were in effect before the rescission on September 5, 2017” except with regards to applicants who have never applied for DACA and all applications for Advance Parole based on DACA. The DHS does not have to process applications relating to those two exceptions.

As part of the district court’s order, the DHS is required to post “reasonable public notice that it will resume receiving DACA renewal applications” and “prescribe a process” for accepting renewal applications. As of January 11, 2018, there have not been any further updates from DHS beyond noting that “more information is forthcoming”.

The Trump Administration has announced its intentions to appeal the ruling and could ask an appellate court to issue an emergency stay of the district court’s order. If a stay is granted, the DHS would not have to abide by the district court’s order.

Recommendations

In light of uncertainties on when and how the DHS will resume accepting renewal DACA applications, we recommend waiting to file DACA-based EAD extension applications until there is clearer guidance from the DHS.

For current DACA recipients, we recommend that they avoid international travel even with valid Advance Parole document. While the DHS has indicated they will honor the validity period for previously approved Advance Parole documents, Customs and Border Protection (CBP) has indicated Advance Parole does not guarantee admission into the US. Also, the DHS may revoke or terminate a grant of Advance Parole at any time.

PwC continues to monitor this matter and will be sure to update you as changes occur.

For further details regarding DACA or any other immigration matters, please contact a member of our team at PwC Law LLP.


Posted by Immigration Law Team »

Canada: Parents and Grandparents Program reopening in 2018

Posted by Immigration Law Team|Canada Immigration
Dec 17
22


In brief:

On December 22, 2017, Immigration, Refugees and Citizenship Canada (IRCC) announced the reopening of the Parents and Grandparents Sponsorship Program in 2018.

Discussion:

In 2017, IRCC introduced updates to the application intake process for the Parents and Grandparents Sponsorship Program. Under this new process, individuals who want to sponsor their parents and grandparents to reside in Canada have to first complete an “Interest to Sponsor” form and join a pool of applicants from which they may be randomly selected.

Today, the Honourable Ahmed Hussen, Minister responsible for IRCC, announced that the “Interest to Sponsor” form will once again be available at noon EST on January 2, 2018, until noon EST on February 1, 2018.

Those who wish to be eligible to apply to sponsor their parents and grandparents in 2018 must complete the online form as a preliminary step in the application process. In an effort to ensure efficiency, additional questions have been added to the 2018 version of the “Interest to Sponsor” form to help potential sponsors more accurately determine whether they are eligible to sponsor.

Impact:

The Parent and Grandparent Sponsorship Program should help keep families together, enable a more successful integration, and to assist in building stronger ties in Canada.

For more information on sponsorship applications under the Parent and Grandparent Program, or any other immigration related matter, please contact a member of our team at PwC Law LLP.


Posted by Immigration Law Team »

US: Department of Homeland Security to Terminate H4 EAD program

Posted by Immigration Law Team|US Immigration
Dec 17
18


In brief

Earlier last week, The US Department of Homeland Security (DHS) announced several regulatory proposals it intends to impose for 2018. Among which, the most impactful changes to employers include termination of H4 EAD program allowing certain spouses of H-1B holders to seek employment, possible restrictions of F-1 OPT program and revising H-1B eligibilities and wages. While the announcement is not specific with regards to dates and details of how these rules will be implemented, we do anticipate that the change with regards to the termination of the H4 EAD program will be implemented in early 2018.

Background

The H-4/EAD Program

In February 2015, the DHS published a final rule extending eligibility for employment authorization to certain H-4 dependent spouses of H-1B nonimmigrants who have approved I-140s (Immigrant Petitions).  The rule allowed for eligible H-4 dependent spouses to apply for an Employment Authorization Document (EAD) that would allow them to work.  Prior to this, H-4 dependent spouses from visa retrogressed countries who do not have a visa number available to file their adjustment of status/immigrant visa applications were not legally authorized to seek employment. For Indian-born foreign nationals, this could mean a wait time of around 10 years for a H-4 dependent spouse to seek employment from the time that the H-1B holder obtained an approved I-140.

Since its inception, this rule has been subject to numerous legal challenges. Currently, there is a case pending appeal in the U.S Court of Appeals on this issue. In February 2017, the Trump administration requested the U.S. Court of Appeals to place the case on hold while it reviews the regulation and considers its position. The DHS announcement last week is the clearest indication that it intends to terminate the H-4 EAD program. However, we do not have any details with regards to the time frame or how DHS intends to implement the program’s termination.  

F-1 OPT

Currently, a foreign national attending US schools under F-1 status have the ability to receive Optional Practical Training (OPT), a temporary employment that is directly related to a F-1 student’s major area of study. Eligible students can apply to receive up to 12 months of OPT employment authorization before completing their academic studies and/or after completing their academic studies. In cases where students earned degrees in certain science, technology, engineering and math (STEM) fields, students can apply for an additional 24 months of post-completion OPT on top of the 12 months afforded to non-STEM students. The DHS announcement is vague as to the specifics of how F-1 OPT will be affected by the new regulatory changes beyond increased oversight of schools and students to ensure compliance with requirement of the program.

H-1B eligibility

The DHS announcement proposes revising the definition of “specialty occupation” for H-1B eligibility to “increase the focus on truly obtaining the best and brightest” foreign nationals, and revising the definition of employment and employer-employee relationship to better protect US workers and wages. While it is unclear how the new regulatory language will be revised, this announcement fits the pattern of higher scrutiny on H-1B petitions that we have been experiencing since the Trump administration came into office. Specifically, we are seeing a higher than usual number of Request for Evidence (RFE) issued by USCIS for standard H-1B applications which were rarely seen in previous years.   

Recommendations

With regards to employees working on H4 EAD, we recommend employers put these employees into alternative employment-based visa categories in anticipation of the H4 EAD program terminating in early 2018. Without an alternative employment-based visa, these employees will lose their work authorization following the formal termination of the H4 EAD program subject to any grace period. For foreign nationals working on H4 EAD that do not qualify to for L-1, TN, E-3, H-1B1 and O-1 visas, they should be placed in the FY 2019 H-1B cap lottery in hopes that they may be selected for the cap lottery to allow them to work sometime after October 1st, 2018.

With regards to employees currently working on F-1 OPT and H-1B, we do not currently have sufficient information to provide a detailed recommendation. We will closely monitor any new release from the US government and will issue a more detailed recommendation when we have further information.

For more information on the H-4 EAD, F-1 OPT and H-1B program, or any other immigration matters, please contact a member of our team.


Posted by Immigration Law Team »

Canada: Work permit pilot extended to 2019 for spouses and common-law partners applying for permanent residence from within Canada

Posted by Immigration Law Team|Canada Immigration
Dec 17
15


In brief

Immigration, Refugees and Citizenship Canada (IRCC) announced today, December 15, 2017, that the Government of Canada is extending the open work permit pilot for spouses and common-law partners applying for permanent residence (PR) under the the Spouse or Common-Law Partner in Canada (SCLPC) class, until January 31, 2019.

Discussion

This initiative was initially launched by the Government of Canada on December 22, 2014, as a one-year pilot project with the key objective being to prioritize family reunification while applications under the SCLPC class are being processed. This initiative would allow families to live and work together in Canada, while improving the outcomes of successful integration into Canadian society once they obtain PR.

On December 17, 2015, the pilot project was extended for another year, until December 21, 2016, and on December 7, 2016, the Government of Canada announced that the pilot program would be extended again until December 21, 2017.

Impact

Sponsored spouses and common-law partners, who are inside Canada and living at the same Canadian address as their sponsor, may be able to apply for and obtain an open work permit that will authorize them to work anywhere in Canada while their PR application is being processed.

For more information on obtaining permanent residence or any other immigration matter, please contact a member of our team at PwC Law LLP.


Posted by Immigration Law Team »

US: US Supreme Court allows enforcement of travel ban

Posted by Immigration Law Team|US Immigration
Dec 17
4


In brief

On Monday, December 4, 2017, the US Supreme Court issued orders allowing the third version of President Trump’s travel ban (see prior alert) to take effect until the appeals process has been completed. The orders stayed the prior October preliminary injunctions, which temporarily blocked the implementation of the travel ban.

Discussion

On September 24, 2017, President Trump signed a Proclamation imposing indefinite travel restrictions on citizens of Chad, Iran, Libya, Somalia, Syria, Yemen, and North Korea, and barring entry into the US by certain Venezuelan government officials and their immediate families. In October, Federal District Courts in Hawaii and Maryland issued nationwide orders against enforcement of the Presidential Proclamation. Today’s Supreme Court orders stayed the preliminary injunctions, thereby allowing the travel ban to be enforced.

The orders do not address the merits of the legal challenges to the travel ban, which will be addressed when two US Courts of Appeals hear arguments later this week. Specifically, the US Court of Appeals for the Ninth Circuit will hear oral arguments on December 6, 2017 and the US Court of Appeals for the Fourth Circuit will hear oral arguments on December 8, 2017.

Impact and Recommendations

Citizens of impacted countries who are already present in the US and are in valid immigrant or nonimmigrant status are advised to seek US immigration counsel prior to departing the US, since there may be restrictions from re-entering the US.

The country specific restrictions listed in the September 24 Presidential Proclamation are as follows:

 

            Country Nonimmigrant Visas    Immigrant and Diversity  Visas
            Chad No B-1, B-2, and B-1/B-2 visas    No immigrant or diversity visas
            Iran No nonimmigrant visas except F, M, and J student visas    No immigrant or diversity visas
            Libya No B-1, B-2, and B-1/B-2 visas    No immigrant or diversity visas
            North Korea No nonimmigrant visas    No immigrant or diversity visas
            Syria No nonimmigrant visas    No immigrant or diversity visas
            Venezuela No B-1, B-2, or B-1/B-2 visas of any kind for officials of the following government agencies: Ministry of Interior, Justice, and Peace; the Administrative Service of Identification, Migration, and Immigration; the Corps of Scientific Investigations, Judicial and Criminal; the Bolivarian Intelligence Service; and the People’s Power Ministry of Foreign Affairs, and their immediate family members    No restrictions
            Yemen No B-1, B-2, and B-1/B-2 visas    No immigrant or diversity visas
            Somalia Subject to additional scrutiny    No immigrant or diversity visas

Please note that there may still be additional scrutiny imposed on citizens of Iraq.

Waivers may be granted on a case-by-case basis. US immigration counsel should be sought for assessment of waiver eligibility.

PwC continues to monitor this matter and will be sure to update you as changes occur.

For further details regarding the Proclamation, or any other immigration matters, please contact a member of our team.


Posted by Immigration Law Team »

Canada: Visa Requirement Lifted for Romanians and Bulgarians

Posted by Immigration Law Team|Canada Immigration
Dec 17
1


In Brief  

Immigration, Refugees and Citizenship Canada (IRCC) announced that effective December 1, 2017, citizens of Romania and Bulgaria are no longer required to hold a valid Canadian temporary resident visa (TRV) to lawfully enter Canada.

Discussion

Romanian and Bulgarian citizens were previously required to hold a valid Canadian TRV to lawfully enter Canada. Since IRCC has announced that it will no longer require these citizens to hold a valid Canadian TRV to lawfully enter Canada, they will now instead be required to obtain an Electronic Travel Authorization (eTA) to fly to or transit through Canada.

Impact

Citizens of Romania and Bulgaria are now able to travel to Canada with a valid eTA and apply for a Canadian work permit at a Canadian port-of-entry (e.g. international airport), if there are no medical or criminal inadmissibility concerns. Therefore, if you have any current or prospective employees who are citizens of Romania or Bulgaria, and who are required to travel to Canada, they will be able to travel to Canada more expeditiously as a result of the removal of visa requirements for these individuals.

For more information on Immigration to Canada or any other immigration matter, please contact a member of our team at PwC Law LLP.


Posted by Immigration Law Team »