New Executive Order signed, calling for review of the H-1B visa program

Posted by Immigration Law Team|US Immigration
Apr 17
20


In brief

President Donald Trump signed an Executive Order on April 18, 2017 with a strong message to federal agencies to review protections for American-made products and American workers. This message echoes that which he stated throughout his campaign. The Order, entitled “Buy American and Hire American,” calls for greater limits on visas issued to foreign skilled workers and advises federal agencies to produce preliminary reports to propose improvements to the H-1B visa program. Most notably, the President seeks to crackdown on fraud and abuse within the H-1B program, to strictly enforce existing H-1B rules, and to propose changes to the current H-1B requirements such that the highest skilled and the highest paid applicants are favored for visa selection.

Note: No changes in H-1B policy or regulations have taken effect. The Executive Order is a preliminary step calling only for a review of the existing regulations and policies. Extensive changes to the H-1B program, such as those proposed, can only be implemented by an act of Congress.

Background

The H-1B program allows US employers to temporarily hire highly skilled foreign workers in specialty occupations, generally requiring the minimum of a bachelor’s degree. Built-in protections in the H-1B program, such as wage and educational mandates, are meant to protect US labor while encouraging the flow of foreign ingenuity and expertise into the US. However, fraud and abuse within the H-1B program has raised concerns that US employers are replacing American workers with low-wage foreign workers, contrary to the spirit of the H-1B program. This is an issue which has drawn much attention in recent years, and earlier this month, the Departments of Justice, Labor, and Homeland Security announced measures to deter and detect H-1B visa fraud and abuse.

Impact

In an effort to curb fraud and abuse in the H-1B program, the Executive Order calls on the Departments of Justice, Labor, Homeland Security, and State to take the following actions:

– Rigorously enforce and administer existing immigration laws of the United States

– Propose new rules and issue new guidance to protect the interests of United States workers, including the prevention of fraud and abuse, and

– Suggest reforms to the H-1B program to ensure the H-1B visas are awarded to the most-skilled or highest-paid foreign workers.

– The executive order is not expected to impact this year’s H-1B cap lottery.

Recommendations

Employers with H-1B employees should reach out to immigration counsel to review internal procedures and ensure compliance with all H-1B rules and regulations. Employers should continue to maintain close contact with immigration counsel should these objectives become implemented through agency and congressional action.

PwC Law continues to monitor these developments and will be sure to provide updates as changes occur.

For more information on the H-1B category and the lottery selection process, please contact a member of our team.


Posted by Immigration Law Team »

Service Canada Stops Processing LMIA Applications in Alberta

Posted by Immigration Law Team|Canada Immigration
Apr 17
19


In brief

On April 19, 2017, it was announced that Employment and Social Development Canada (ESDC) will refuse to process Labour Market Impact Assessment (LMIA) applications for certain high-wage occupations in Alberta, effective immediately.

Discussion

In an effort to promote hiring Canadians and Albertans first, ESDC has announced that it will not process LMIA applications for 29 high-wage occupations in Alberta, effective immediately. This moratorium is expected to last for 24 months and will impact the following occupations:

– Human resources managers

– Engineering managers

– Purchasing agents and officers

– Production logistics coordinators

– Civil engineers

– Mechanical engineers

– Electrical and electronic engineers

– Geological and mineral technologists and technicians

–  Civil engineering technologists and technicians

– Industrial engineering and manufacturing technologists and technicians

– Non-destructive testers and inspection technicians

– Contractors and supervisors, electrical trades and telecommunications occupations

– Machinists and machining and tooling inspectors

– Welders and related machine operators

– Electricians (except industrial and power system)

– Industrial electricians

– Plumbers

– Carpenters

– Contractors and supervisors, mechanic trades

– Contractors and supervisors, heavy equipment operator crews

– Construction millwrights and industrial mechanics

–  Heavy-duty equipment mechanics

– Motor vehicle body repairers

–  Transport truck drivers

– Contractors and supervisors, oil and gas drilling and services

– Oil and gas well drillers, servicers, testers and related workers

– Oil and gas well drilling and related workers and service operators

– Oil and gas drilling, servicing and related labourers

– Petroleum, gas and chemical process operators

Impact

As Alberta’s economy is highly connected to the resource sector, the decision to refuse to process LMIA applications for the above listed occupations, including a number of applied science professions and skilled trades, will have a significant impact on Alberta businesses. Employers should review their current foreign worker population to identify any employees who may be affected by this initiative within the next two years.

For further information on LMIA applications for these occupations in Alberta, please contact a member of our team at PwC Law LLP.


Posted by Immigration Law Team »

Quebec Immigrant Investor Program will Re-Open on May 29, 2017

Posted by Immigration Law Team|Canada Immigration
Apr 17
17


In brief

Beginning May 29, 2017, eligible candidates will be able to submit their application for permanent residence through Quebec’s provincial Immigrant Investor Program.

Discussion

The Quebec Immigrant Investor Program (QIIP), part of Quebec’s economic permanent immigration class is designed to facilitate permanent residence for those high-net worth individuals with an intention to settle in Quebec. The program will accept applications from May 29, 2017 until February 23, 2018 or until the quota of 1,900 applications is reached, whichever occurs first. Within the quota, a maximum of 1,330 applications will be accepted from foreign nationals from China, Macao and Hong Kong.

In order to be eligible for permanent residence under the QIIP, an applicant must:

1.  Be at least 18 years of age;

2.  Have, alone or with an accompanying spouse, a net worth of CAD $1.6 million which has been obtained legally, and excludes donations made in the six months prior to the date the application was filed;

3.  Sign an agreement to make a passive investment of CAD $800,000 for a five year period with an authorized financial intermediary;

4.  Have at least two years experience within the last five years managing or owning a qualifying business;

5.  Declare an intention to settle in Quebec.

In addition to the above eligibility factors, applicants must obtain a certain number of points, awarded based on relevant factors including age, the nature and duration of any professional training, and language abilities; however,  if an investment agreement complies with program requirements, an applicant will be awarded more than half these points.

Although there is no minimum language requirement, those applicants with an advanced intermediate knowledge of French as demonstrated by a recognized French language test are not subject to the cap and may submit their application at any time prior to March 31, 2018.

Investors should note that while their investment, guaranteed by the Government of Quebec, is risk free, they will not receive any interest at the end of the five-year period. Any interest accrued on the investments is directed toward provincial growth initiatives. Further, once the investment is made, it cannot be revoked.

For those applicants who otherwise meet the program requirements but cannot make the $800,000 investment, financing options are available.

Impact

As Canada’s Federal investor program shut down in 2014, the QIIP remains the only option available for high-net worth individuals who wish to gain Canadian permanent residence through investment. As the zero-risk investment program provides qualifying applicants with a predictable route to permanent residence, it is expected that the cap will be reached relatively quickly.

Applicants should be aware that as this is a paper-based, provincial immigration program, application processing times are currently exceeding 41 months.

For more information on the Quebec Immigrant Investor Program, please contact a member of our team at PwC Law LLP.


Posted by Immigration Law Team »

Ontario Immigrant Nominee Program to resume issuing Notifications of Interest for the Human Capital Priorities Stream during the week of April 10-14, 2017

Posted by Immigration Law Team|Canada Immigration
Apr 17
10


In brief

The Ontario Immigrant Nominee Program (OINP) will resume issuance of Notifications of Interest (NOI) to qualifying applicants under the Human Capital Priorities (HCP) Stream during the week of April 10-14, 2017.

Analysis

The HCP Stream is one of two streams under the OINP which awards qualifying Express Entry candidates additional points towards their total Express Entry points score. It is open to skilled workers who intend to live and work permanently in Ontario.

In order to be eligible for this stream, an applicant must:

–  Have a valid profile in the Express Entry pool;
–  Qualify for one of the federal economic immigration programs under the Express Entry System;
–  Indicate an interest in immigrating to Ontario when creating his or her profile; and
–  Obtain a minimum of 400 points in the Express Entry system.

Candidates who are selected for the HCP stream will receive a Notification of Interest (NOI) from the OINP through their Express Entry account.  Not all candidates who meet HCP stream eligibility criteria will receive an NOI.

An NOI authorizes a candidate to submit an HCP application through the OINP’s online portal. If this application is approved, the candidate will then receive a Nomination letter from the Province of Ontario through their Express Entry account confirming their provincial nomination. This letter must be “accepted” within 30 days. Once the letter has been “accepted”, the candidate’s overall points score will increase by 600 points to reflect their provincial nomination.

During the week of April 10-14, 2017, the OINP will also be issuing NOIs to candidates who meet the above-referenced eligibility criteria and who are in high-demand skilled trades within the construction sector. These targeted occupations include:

–  Carpenters
–  Electricians (except industrial and power system)
–  Construction millwrights and industrial mechanics
–  Welders
–  Painters and decorators
–  Plumbers
–  Bricklayers
–  Roofers and shinglers
–  Sheet metal workers
–  Tilesetters
–  Boilermakers
–  Plasterers, drywall installers and finishers and lathers
–  Industrial electricians

Impact

The OINP will be issuing NOIs to qualifying candidates throughout the year until Ontario’s 2017 federal nomination allocation has been reached.  To potentially secure an NOI under the OINP’s HCP stream, interested candidates should submit Express Entry profiles and indicate their interest in immigrating to the Province of Ontario.

Candidates should keep in mind that an NOI is valid for 6 months. Candidates must register a profile for the HCP stream within that timeframe, and submit a complete OINP application within 14 days of registering their HCP profile.

For more information on the OINP’s HCP stream and how to apply, please contact PwC Law LLP.


Posted by Immigration Law Team »

USCIS reaches H-1B Cap for FY2018

Posted by Immigration Law Team|US Immigration
Apr 17
7


In brief

Earlier today, United States Citizenship and Immigration Services (USCIS) announced that it received sufficient H-1B cap petitions to commence the H-1B cap lottery selection process. USCIS received a sufficient number of H-1B cap-subject petitions for both the general H-1B filing category and the advanced degree exemption (US Master’s Cap).  USCIS will continue to accept H-1B cap-subject petitions received today, April 7, 2017, but will reject any such filings received on or after April 8, 2017.

Background

Each year, USCIS begins accepting new H-1B cap-subject petitions for the fiscal year on the first business day in April, subject to annual quotas of 65,000 visas for general petitions and 20,000 visas for petitions filed under the US Master’s Cap. During the initial filing period for Fiscal Year 2018, which began on April 3, 2017 and concludes on April 7, 2017, USCIS received more than enough H-1B cap-subject petitions to fill both the general and advanced degree quotas. As such, USCIS will not accept any new H-1B cap-subject petitions filed on or after April 8, 2017 for FY2018. The next filing period for H-1B cap-subject petitions is scheduled to begin April 2, 2018, barring any changes to the H-1B program under President Trump’s administration.

When USCIS receives more petitions than it can accommodate under the annual quotas, a lottery is conducted to determine which petitions will be adjudicated. In the coming days, USCIS will use a computer-generated lottery process to select enough petitions to meet the 65,000 general-category cap and the 20,000 US Master’s Cap. The agency will conduct the selection process for the US Master’s Cap first. All unselected US Master’s Cap petitions then become part of the random selection process for the 65,000 general-category cap limit. USCIS will reject and return all unselected petitions with their filing fees.

Recommendations

Employers that have filed H-1B cap-subject petitions for Fiscal Year 2018 should stay tuned for further information from USCIS regarding the date of the H-1B lottery, as well as the total number of petitions filed.

For more information on the H-1B category and the lottery selection process, please contact a member of our team.


Posted by Immigration Law Team »

Employment and Social Development Canada’s updates to provincial and territorial median hourly wage impact Labour Market Impact Assessment applications

Posted by Immigration Law Team|Canada Immigration
Apr 17
6


In brief

Employment and Social Development Canada (ESDC) has updated provincial and territorial median hourly wages, effective April 29, 2017. These updates will determine the type of Labour Market Impact Assessment (LMIA) an employer applies for.

Analysis

When applying for an LMIA, an employer may do so through one of two streams: 1) Stream for high-wage Positions; and 2) Stream for low-wage positions. Positions with wages at or above the median hourly wage will fall within the high-wage stream, and positions with wages below the median hourly wage will fall within the low-wage stream.

This is particularly important as each stream has different requirements. For example, subject to certain exemptions, the high-wage stream will require the employer to provide a transition plan, in which the employer undertakes to reduce its reliance on temporary foreign workers.

When applying under the low-wage stream, an employer will be subject to a cap on the number of temporary foreign workers it employs.

It is important to note that as compared to last year’s median hourly wages, only British Columbia, Newfoundland and Labrador, and Yukon experienced a decrease. All other provinces and territories saw an increase in median hourly wage, while Manitoba’s remained the same.

Impact

Given that the provincial and territorial hourly median wage determines the LMIA stream an employer must apply under, ESDC’s updates may impact an employer’s ability to hire temporary foreign workers. For example, an employer who expected to apply for an LMIA through the high-wage stream may now be subject to the low-wage stream’s cap if the median wage increased in his or her particular province or territory.

For more information on ESDC’s updates to the provincial and territorial median hourly wage and applying for an LMIA, please contact PwC Law LLP.


Posted by Immigration Law Team »

Increased Oversight of the H-1B Category

Posted by Immigration Law Team|US Immigration
Apr 17
6


 

In brief

Three federal agencies, the Department of Homeland Security, the Department of Justice and the Department of Labor, have announced plans to provide greater oversight of the H-1B category in an effort to prevent abuses and protect US workers.

Background

The H-1B program allows US employers to temporarily hire highly skilled foreign workers in specialty occupations.  In recent years, there has been growing concern that some US employers have abused the H-1B system by choosing to hire foreign workers instead of US workers and, in some cases, replacing US workers with H-1B employees. The Immigration and Nationality Act prohibits US employers from discriminating against US workers in their hiring, firing, and recruitment efforts.

In response to this concern and in an effort to protect US workers, United States Citizenship and Immigration Services, the Department of Justice, and the Department of Labor, have all announced plans to increase oversight and scrutiny of the H-1B program.

Impact

In an effort to protect US workers from H-1B abuses, federal agencies will undertake the following actions:

– Increase scrutiny on all H-1B petitions
– Increase site-visits at the workplaces of H-1B holders specifically focusing on the following:
* Worksites of H-1B dependent employers – companies that have 15% or more of their US workforce on H1-B visas
* Worksites of H-1B employees who work at a different location from their employer, and
* Worksites for companies that do not readily have information about their business accessible through commercially available data
– ‘Rigorously’ use existing authority to initiate investigations of H-1B violations
– Investigate and prosecute H-1B abuses by ensuring greater coordination between federal agencies
– Consider changes to the Labor Condition Application in future H-1B cycles
– Seek improvements to the H-1B program by looking at legislative changes and existing statutory authorities

In addition, USCIS has established an email address to allow people to submit tips regarding alleged H-1B violations or cases of potential H-1B fraud or abuse.

Recommendations

Employers with H-1B employees should reach out to their legal counsel to initiate a review of internal procedures and processes and ensure compliance with all H-1B rules and regulations. Companies are also encouraged  to have a site visit preparation plan in place in the  event of a site visit.

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

For further details regarding the recent H-1B announcements, or any other immigration matter, please contact a member of our team. 

 


Posted by Immigration Law Team »

H-1B Visa Program Update

Apr 17
6


In brief

USCIS has started to accept H-1B cap-subject petitions for Fiscal Year 2018 and is expected to remain open to such petitions until April 7, 2017, assuming the available numbers are exhausted in the initial filing period. If the H-1B filing quotas are exceeded during this initial filing period, USCIS will conduct a random lottery to determine which petitions will move forward to adjudication.  Separately, USCIS’ temporary suspension of the Premium Processing Service for all H-1B petitions becomes effective April 3, 2017.

Discussion

Starting April 3, 2017, USCIS will begin accepting H-1B cap-subject petitions for Fiscal Year 2018 (“FY2018”).  USCIS will accept up to a maximum of 65,000 petitions under the H-1B general category for FY2018. Additionally, USCIS will accept up to a maximum of 20,000 H-1B petitions filed under the US advanced degree exemption. The H-1B cap filing window opened April 3, 2017, and will remain open for at least five business days, until April 7, 2017.

In the event that the H-1B quotas mentioned above are exceeded, USCIS will use a computer-generated selection process, or lottery, to randomly select the petitions which will be eligible for consideration.  Before running the lottery, USCIS will complete initial intake for all filings received during the filing period of April 3, 2017, to April 7, 2017.

If a lottery is required, USCIS will first run the lottery for petitions filed under the US advanced degree category. All US advanced degree petitions that are not initially selected will become part of the random selection process for the general category. Ultimately, if an H-1B cap-subject petition is not selected through the lottery, USCIS will reject the petition, and will return the filing fees unless it is deemed a duplicate filing.

Separately, USCIS’ temporary suspension of the Premium Processing Service for all H-1B petitions, including non-cap subject petitions, becomes effective April 3, 2017.  The length of the temporary suspension has not been formally announced, and as such, it is unclear when this option will re-open for H-1B petitions.  We will continue to monitor the situation and provide further updates as they are available.  For more information on the temporary suspension of Premium Processing on H-1B petitions, please refer to our prior Alert on this topic.

Recommendations

Employers using the H-1B visa category should ensure that their petitions filed from April 3, 2017 onward do not use the Premium Processing Service, until further notice.  Additionally, employers that have filed H-1B cap-subject petitions for Fiscal Year 2018 should stay tuned for further information from USCIS regarding the total number of petitions filed, and whether a lottery will be necessary to select petitions for adjudication.

For further details on the of H-1B visa category, or on any other immigration matters, please contact a member of our team.

 

 

 

 

 

 

 

 

 

 


Posted by Immigration Law Team »