Prime Minister Trudeau Announces new Minister of Immigration, Refugees and Citizenship Canada

Posted by Immigration Law Team|Canada Immigration
Jan 17
11


In Brief

On January 10, 2017, Prime Minister Trudeau announced changes to the Ministry, replacing several key Cabinet Members including the Minister of Immigration, Refugees and Citizenship. Mr. Ahmed Hussen was sworn in as the new Minister of Immigration, Refugees and Citizenship.

Discussion

Mr. Hussen is currently the Member of Parliament for the Toronto South – Weston riding. Mr. Hussen gained his seat in Parliament in 2015 as the first Somali-Canadian elect.

Mr. Hussen immigrated to Canada from Somalia in 1993 and has a history of political involvement, most recently serving as National President for the Canadian Somali Congress. Mr.  Hussen is also a community advocate, serving on the Boards of the Global Enrichment Foundation and Journalists for Human Rights, and co-founding the Regent Park Community Council.

As a Member of Parliament, Ahmed Hussen sits on the Justice and Human Rights Committee and the Canada-Africa Parliamentary Association.

It is anticipated that previous Minister of Immigration, Refugees and Citizenship, Mr. John McCallum, will assume a diplomatic position, potentially serving as Canada’s ambassador to China.

Impact

While this cabinet shuffle comes as a surprise to some, Mr. Hussen’s appointment as Minister of Immigration, Refugees and Citizenship demonstrates an ongoing commitment to ensuring Canada’s immigration policy continues to fuel industrial growth, while ensuring both that families remain united and that Canada honours its  humanitarian commitments.

For information on your Canadian immigration matters, please contact PwC Law LLP.


Posted by Immigration Law Team »

Canadian Immigration 2016: A year in review

Posted by Immigration Law Team|Canada Immigration
Dec 16
29


Throughout 2016, Canada’s immigration system has shifted from a focus on traditional attributes such as education and skilled work experience, to a greater emphasis on core Canadian values, such as inclusivity, diversity, recognizing humanitarian principles and prioritizing well-rounded economic growth.

This past year, the Canadian government introduced several new initiatives which will allow companies in Canada to leverage both foreign talent and unique labour market opportunities. Focusing on simplifying the hiring process for foreign nationals, Immigration, Refugees and Citizenship Canada (“IRCC”) announced the removal of visa requirements for certain countries, and the creation of both the TV/Entertainment industry exemption and the Global Skills Strategy. Changes to the Express Entry system provide better chances of success for international students, and foreign workers with Canadian work experience. The Employer Portal, introduced in late 2015, aims to smooth the work permit application process for Labour Market Impact Assessment (“LMIA”) exempt foreign workers. Finally, the application process for spousal sponsorship has been streamlined, with the objective of reducing processing times to 12 months or less.

The government has also recognized Canada’s diverse cultural landscape by re-introducing the Francophone Mobilité program, sponsoring over 35,000 Syrian refugees since late 2015, and proposing to increase the age of dependents to allow families coming to Canada to remain united. In doing so, IRCC has reintroduced Canada’s open immigration system and reinstated itself as a model for diverse yet balanced immigration policy.

Reflected in the 2017 immigration targets announced by IRCC in late October, family class targets were increased from 80,000 to 84,000, and economic class targets increased from 160,600 to 172,500. Refugee resettlement targets decreased from 55,800 to 40,000, however the government continues to double those resettlement targets set in 2015 and in years prior. These targets, combined with policy advancements, demonstrate a well-rounded and sustainable future for Canada’s immigration strategy.

1. Electronic Travel Authorization (eTA)

As of November 10, 2016 citizens from visa-exempt countries excluding the US are required to obtain an eTA before flying to or through Canada. All visa-exempt travellers without an eTA will be prevented from boarding their flights to or through Canada. For more information, please see PwC Law’s blog post from April 29, 2016.

2. Canada Facilitates Entry for Citizens of Mexico, Bulgaria, Romania and Brazil

In 2016, many efforts were made to strengthen bilateral relationships with important Canadian trading partners and surrounding regions, thereby increasing business opportunities and investment. For instance, the Government of Canada announced the removal or softening of certain visa requirements for citizens of Mexico, Bulgaria, Romania, and Brazil.

Mexico: As of December 1, 2016, provided they hold a valid eTA, Mexican citizens are no longer required to hold a visa to enter Canada. Those Mexican citizens already holding a valid Canadian visa are exempt from the eTA requirement and can continue to travel to Canada on their valid visa. For more information about visa requirements for Mexican citizens,  please see PwC Law’s blog post from June 30, 2016.

Bulgaria and Romania: For information on current visa requirements for Romanian and Bulgarian citizens, please see PwC Law’s blog post from November 20, 2016.

Brazil: Although visa requirements for Romanian and Bulgarian citizens are similar, Brazilian citizens who have neither held a Canadian visa in the past ten years, nor who currently hold a valid US non-immigrant visa will still require a Canadian temporary resident visa.

3. Employer Compliance Portal

In late 2015, IRCC introduced the new “Employer Portal”, replacing the old, paper-based compliance regime.  For more information on the Employer Portal, please see PwC Law’s blog post from October 19, 2015.

4. Lights, Camera, Action: TV Production/Entertainment Industry Exemption Announced

The Canadian government expanded the International Mobility Program by introducing a new LMIA exemption to facilitate the issuance of work permits to certain foreign nationals employed in the TV and film sectors. This was done to support existing public investment in TV and film productions, as well as to recognize the significant economic benefit that high-value productions bring to Canada.

5. Bienvenue: Mobilité Francophone

In March 2016, IRCC announced a target of 4% francophone immigration under Canada’s Federal economic immigration stream by 2018. On June 1, 2016, as part of this effort, IRCC announced a new mobility stream. For more information, see PwC Law’s blog post from March 18, 2016.

6. Changes to the Express Entry System

In late 2016, the Canadian government introduced several change to the Express Entry system in an effort to meet the system’s objective of prioritizing candidates who have the strongest chances for economic success in Canada. For a summary of the changes, please see PwC Law’s blog post from November 11, 2016.

7. Changes to Family Reunification

In December 2016, the Government of Canada announced changes to both inland and overseas spousal sponsorship applications. For a summary of these changes, please see PwC Law’s blog post from December 8, 2016.

Canada also announced a new intake procedure for Parent and Grandparent sponsorship applications, detailed in PwC Law’s blog post from December 14, 2016.

8. Coming Soon – What to Expect in 2017

A. Age of Dependents

The Government of Canada has proposed to re-introduce and raise the maximum age at which a child may be considered a “dependent child” for immigration purposes, from 19 years of age to 22 years of age. Learn more about this change from PwC Law’s November 3, 2016 blog post.

B. Citizenship Changes

In early 2016, the government tabled a bill aimed at providing greater flexibility for Canadian permanent residents seeking to obtain citizenship. Specifically, the Act to Amend the Citizenship Act would reduce the period of time an applicant must be physically present in Canada prior to applying for citizenship and provide more flexibility in accruing this presence, thereby making it faster and less restrictive to meet this requirement. Further, the bill repeals the Minister’s ability to strip dual citizens who have been convicted of certain offences against Canada’s national interest of their Canadian citizenship. Finally, the bill restores the previous age range of 18-54 years for citizenship applicants to demonstrate knowledge of Canadian history and language skills.

C. Global Skills Strategy

Canada’s new ‘Global Skills Strategy  program is  intended to provide start up or fast-growing companies in Canada with quicker, more reliable access to highly qualified global talent, thus allowing them to better respond to emerging business opportunities in highly dynamic industry sectors. For more information, please see PwC Law’s blog post from December 1, 2016.

Conclusion 

Changes to Canada’s immigration policy this past year have reflected a renewed, long-term outlook encompassing both economic growth and humanitarian considerations. Based on this progress, future Canadian immigration policy will continue to prioritize economic growth in key industry sectors, facilitating both permanent and temporary immigration to Canada and as such, employers can expect to benefit from future changes through easier access to skilled international talent. For more information on these changes, please contact a member of our team.


Posted by Immigration Law Team »

Initial improvements to the Temporary Foreign Worker Program announced

Posted by Immigration Law Team|Canada Immigration, Temporary Foreign Worker Program
Dec 16
14


In brief

On December 13, 2016, Minister John McCallum, Immigration, Refugees and Citizenship, along with Minister MaryAnn Mihychuk, Employment, Workforce Development and Labour, announced several initial changes to the current Temporary Foreign Worker Program. In particular, effective immediately, the four-year cumulative rule will no longer apply to temporary foreign workers in Canada.

Discussion

In response to calls for reform of the Temporary Foreign Worker Program (TFWP), in 2016, the Canadian government undertook a study of the program. The appointed Standing Committee on Human Resources, Skills and Social Development and Status of Persons with Disabilities made several recommendations which included a need for the TFWP to more accurately reflect the realities of the Canadian labour market, a need to develop pathways to permanent residency for foreign workers, and a need to reform the Labour Market Impact Assessment process. The government expressed that it would table a full response to the Standing Committee’s recommendations in the New Year.

However, in the interim, Ministers McCallum and Mihychuk announced on December 13, 2016 that, effective immediately, the “four in, four out” rule would no longer apply. Outside certain prescribed exemptions, this rule previously limited a foreign worker’s eligibility to work in Canada to four years, cumulatively, at which point he or she would be ineligible to work in Canada for the next four years. The elimination of the rule alleviates stakeholder concerns that it created instability and hardship for both workers and employers.

In addition, the government announced that changes will soon be made to the advertising requirements for low-wage employers. Specifically, these employers will be required to target advertising to underrepresented groups in the workforce which may include youth, persons with disabilities, Indigenous people and newcomers.

Minister McCallum also noted that employers who accessed the TFWP before June 20, 2014 will continue to be subject to the 20% cap on the proportion of low-wage temporary foreign workers employed at a particular worksite. For those employers who accessed the program after June 20, 2014, the 10% cap will continue to apply. However, for employers in seasonal industries wishing to employ foreign workers for up to 180 days in 2017, the exemption to the cap will be extended until December 31, 2017.

Finally, the government announced that it is committed to continuing to develop pathways to permanent residency for those temporary foreign workers who do not currently have access.

Impact

With the abolishment of the “four-in, four-out” rule, an application for an extension of a work permit will be based on the category itself (which may impose its own maximum duration) but will no longer involve an overall assessment against a cumulative duration of four years, and then an analysis if any of the exemptions apply. Employers will gain more stability with their foreign worker labour force and foreign nationals will no longer face the hardship of having to leave Canada for four years.

However, employers in the low-wage sector may be subject to more stringent advertising requirements prior to being able to show genuine recruiting efforts were made within Canada. Finally, as part of the government’s commitment to creating feasible pathways to Permanent Residence, employers and foreign workers alike can expect to see new and creative programs making Canadian permanent residency more accessible.

For further information on the Temporary Foreign Worker Program, please contact PwC Law LLP.

 


Posted by Immigration Law Team »

Changes to the intake process for the Parent and Grandparent Program

Posted by Immigration Law Team|Canada Immigration
Dec 16
14


In brief

As a further expression of its commitment to upholding the Immigration and Refugee Protection Act’s goal of family reunification, Minister McCallum announced on December 14, 2016 changes to the intake process for sponsorship applications under the Parent and Grandparent Program. Between January 3, 2017 and February 2, 2017, potential sponsors will need to complete an online expression of interest form, and wait to be randomly selected to submit their full sponsorship application packages.

Discussion

In the past, the number of parent and grandparent sponsorship applications were limited by Immigration, Refugees and Citizenship Canada (IRCC) in order to manage the intake, interest and size of the program. However, recognizing its commitment to family reunification, the government is now taking steps to ensure the intake and application process is fair and accessible.

Beginning in 2017, the government will be implementing a lottery system in which potential sponsors will have 30 days to submit an expression of interest online. For 2017, potential sponsors will be able to submit their expression of interest online from January 3, 2017, when the program becomes available, up until February 2, 2017. At the end of the 30-day submission period, IRCC will randomly select 10,000 potential sponsors, and invite them to submit their full application packages.

Once invited to apply, each potential sponsor will have 90 days to submit their complete application to IRCC. Those individuals not invited to apply will be able to submit an online expression of interest again in 2018.

Impact

Previously, potential sponsors had to submit a complete application upon opening of the program and hope to be amongst the first accepted 10,000 applications.  While the number of applications accepted will still be limited to 10,000, this new intake process will create a more accessible and fair intake process for these sponsorship applications since potential sponsors will be able to submit an expression of interest online and a lottery system will determine those selected to provide the full application.

For more information on sponsorship applications under the Parent and Grandparent Program, please contact PwC LLP.

 


Posted by Immigration Law Team »

Ministerial announcement on family reunification

Posted by Immigration Law Team|Canada Immigration
Dec 16
8


In brief

Minister McCallum announced that as of December 7, 2016, processing times for both inland and overseas spousal sponsorship applications would be reduced from approximately 24 months on average, to 12 months. Additionally, a new application kit will be available online on December 15, 2016.

Background

In early 2016, Immigration, Refugees and Citizenship Canada (IRCC) reduced application processing times by 15 percent for inland applications and by 10 percent for overseas applications in an effort to promote the Immigration and Refugee Protection Act’s goal of family reunification. Today, Minister McCallum announced further reductions to the application processing times in order to meet that objective, keeping in mind that more complex cases may require more time.

Impact

The Canadian government announced that it plans to admit 64,000 spouses and dependents to Canada in 2017, and in order to facilitate this, has allocated $25 million in the federal budget to hiring additional resources and improving efficiency. In reviewing the current processes, Minister McCallum noted that the government has determined several ways to improve efficiency including:

– Using a single, new and simplified application kit for both inland and overseas applications

– Reducing the current application guide from 180 pages to 75 pages in an effort to simplify it, and replacing the current 14 checklists with four new document checklists depending on who is being sponsored (spouse, common-law spouse, conjugal partner or dependent child)

– Using one relationship questionnaire or evaluation form, rather than two questionnaires and one evaluation form, and

– Removing the requirement to provide police certificates and medical examinations upfront.

Minister McCallum also noted that there would not be changes to the security, criminal, medical and genuineness screening processes.

As mentioned, a new application kit for new sponsors will be available on December 15, 2016 on IRCC’s website. However, IRCC will continue to process applications using the current kit in the order they are received until January 31, 2017. After this date, IRCC will only accept applications using the new kit.

Additionally, the current pilot program giving open work permits to eligible spouses or partners who are being sponsored through the inland application process and are currently in Canada will be extended until December 21, 2017.

For further information on spousal sponsorship applications, please contact PwC Law LLP.


Posted by Immigration Law Team »

New Global Skills Strategy announced

Posted by Immigration Law Team|Canada Immigration
Dec 16
1


In brief

The Honourable John McCallum, Minister of Immigration, Refugees and Citizenship Canada (IRCC) and the Honourable Navdeep Bains, Minister of Innovation, Science and Economic Development Canada have jointly announced the creation of a new Global Skills Strategy designed to benefit fast growing industry sector companies within Canada.

Discussion

Currently, key personnel entering Canada to assist with the high growth or start-up activities of companies in Canada must do so pursuant to a Labour Market Impact Assessment (LMIA) or under an LMIA exempt work permit category. In response to key stakeholder demand and a recognition that the current immigration rules do not respond quickly enough to allow Canadian companies to capitalize on emerging opportunities, the Global Skills Strategy announced on November 30, 2016 will give companies in Canada quicker access to highly qualified global talent, allowing them to better respond to business opportunities emerging in highly dynamic industry sectors.

To be implemented later in 2017, the Global Skills Strategy will:

– Establish a two-week processing time for visas and work permits for low-risk, highly skilled talent seeking to work for companies in Canada

– Create a dedicated service channel for companies seeking to make large investments in the Canadian economy, which will result in job creation for Canadian citizens/permanent residents

– Allow foreign nationals entering Canada on very short-term assignments (30 days or less) in low risk fields or in academia to work in Canada without requiring a work permit

Impact

Upon implementation of this program, companies in Canada seeking to scale up or start operations in Canada will be able to respond more quickly to the changing economic landscape by having as close to real-time access to key talent as possible. The Global Skills Strategy recognizes that in the innovation sector, companies often require highly skilled talent within days, and this new initiative will allow companies within Canada to respond to opportunities more rapidly than is possible under the current rules and regulations. The specific industries which will benefit most from this new strategy remain to be determined, however companies in highly innovative sectors in Canada, such as the pharmaceutical or information technology sectors, can expect to benefit from this new initiative.

For more information on access to key global talent and Canada’s current Temporary Foreign Worker Program and International Mobility Program, please contact PwC Law LLP.

 


Posted by Immigration Law Team »

The impact of Trump’s election on US corporate immigration

Posted by Immigration Law Team|US Immigration
Nov 16
21


Global mobility managers have received a flood of emails over the last week from employees concerned about their US immigration status. Some of the questions include the following:

1. I’m currently on an H-1B. Does Trump’s election mean that I can’t get an H-1B extension?

2. I’m on a TN. Trump wants to withdraw from NAFTA. Am I going to be forced out of the US sometime soon?

3. I’m from a Middle Eastern country and Trump said he will suspend the issuance of visas for certain nationalities. If I leave the US, am I going to be able to get a visa to return to the US?

4. I’m Muslim and am in the green card process. Will my adjustment of status application be denied?

5. I am interested in getting a US green card. Is Trump’s election going to make that more difficult for me?

Global mobility managers also have their own questions:

1. Is it going to be harder for our company to obtain H-1B status?

2. What will the PERM process look like? Will there still be per country limits imposed on those born in India and China?

3. Obtaining L-1B approvals for intracompany transferees has already become increasingly difficult, thereby impeding important knowledge sharing between affiliated entities. Will there be more stringent adjudications of nonimmigrant petitions at USCIS?

4. Will we still be able to get L-1 visas under our company’s L-1 Blanket at visa posts abroad?

5. Will our employees be stuck outside the US for administrative processing if they are from certain countries?

Throughout his campaign, Trump has espoused “hire American” rhetoric, as did Clinton. Both candidates were vocal that foreign nationals should not take away US jobs; however, both, at different times, had also discussed the importance of finding ways of keeping certain desirable foreign students in the US. In terms of corporate immigration, Trump was most vocal about the H-1B classification.

This discussion must take into account the following: for there to be changes in immigration law, they would need to be passed by Congress. The President can only override Congress by issuing an Executive Order, available only in limited circumstances. Where the President is particularly influential, however, is in his ability to nominate/appoint the Director of USCIS and the Secretary of State, both which need to be confirmed by the Senate (which has a Republican majority). The Director of USCIS plays a key role in providing guidance to USCIS Adjudicators as to how they apply the law to a particular case in the form of policy memoranda. The Secretary of State can also influence how Consular Officers apply the law in adjudicating certain visa applications. As such, who Trump puts into those positions will have an impact on the manner in which US immigration laws and regulations are applied to each individual case.

H-1B classification

Trump’s position on the H-1B classification has fluctuated from requesting that it be eliminated altogether to strongly stating the need for the US to keep talented people, especially graduates of top US academic institutions. Since he has been a proponent of keeping certain university graduates in the US, and since such graduates typically use the H-1B category as their temporary status while they pursue the path to permanent residency, it is unlikely that the H-1B category would be eliminated. Trump has stated that he is a proponent of H-1B reform, which includes requiring US employers to pay a higher prevailing wage to foreign workers than those currently being paid, and to ensure that there are no qualified US workers prior to extending an offer to a foreign worker for the same role.

If legislative changes are made, it is possible that they could be implemented quickly, possibly upon H-1B extension. This would mean that employers would need to meet the new requirements in order for the H-1B to be filed. It is possible that this added burden would dissuade some employers from filing H-1B extensions for their employees.

Bottom line: The H-1B category will likely not be eliminated but there may be some reform which would make it more difficult for companies to obtain H-1B status for their employees.

TN status

If the US withdraws from NAFTA, then the TN classification would not exist. It must be noted that the US can only withdraw from NAFTA by giving 6 months written notice. It is possible that those in TN status will be given the opportunity to complete their stay in the US, but will not be eligible for extensions. Alternatively, they may be given a certain length of time to depart the US. Unfortunately, with the numerical limitations on the H-1B cap, those in TN status might face challenges in obtaining H-1B status and might not qualify for another status. If the TN classification is eliminated, perhaps an alternative would be made available to citizens of Canada, such as those afforded to Australian nationals under the E-3 classification.

Nonimmigrant adjudications by USCIS and Department of State

Over the last 8 years under the Obama administration, it has become increasingly difficult for companies to obtain approvals of L-1B specialized knowledge intracompany transferee applications, either before USCIS or before the Department of State (DOS). Denials in this category have often alluded to the fact that US workers can perform the job duties with a reasonable amount of on-the-job training, without giving weight to an employer’s attestations that such is not the case. These limitations on approving L-1B applications have undervalued the importance to multinational companies of having key employees enter the US to perform critical specialized roles which, in turn, enhance the companies’ success thereby increasing jobs for US workers. If Trump truly understands “big business,” he will create an atmosphere where USCIS and DOS adjudicators and officers will see the larger positive impact of the movement of key employees of multinational corporations and possibly facilitate the flow of such workers to the US. However, if the “hire American” rhetoric prevails, then we will see a tightening on nonimmigrant adjudications before USCIS and DOS.

Visa processing at US Consular Posts

When applicants apply for visas at US Consular Posts, their cases may be placed in administrative processing for a number of reasons, including additional security checks. Trump has been vocal about Consular Posts not being sufficiently diligent in screening people from certain (primarily Middle Eastern) countries and wanted to suspend the issuance of visas for people of certain nationalities. It is very possible that more cases will be held up in administrative processing which could lead to several months of delays for certain visa applicants. This may discourage foreign nationals studying and working in the US under legitimate nonimmigrant categories from departing the US, out of fear that there may be major delays in obtaining a visa, required for re-entry into the US. It is still unclear what exactly will happen in terms of adjudications at Consular Posts, but over the coming months, nationals of certain countries may wish to monitor the situation before departing the US.

PERM process

In interviews during the election, Trump has been clear that there are certain people that the US must continue to retain, specifically international students attending some of the US’ top academic institutions. He has also discussed having tests of the US labor market in the H-1B context. Since the PERM process already requires a stringent test of the US market and only allows an employer to proceed with sponsoring a foreign national if there are no US workers who are able, willing, qualified, or available for the role, there is a good chance that there will not be any major changes to the PERM process. One of the hottest topics for those engaged in the PERM process surrounds the per country limits imposed by Congress on the number of immigrant visas available to foreign nationals. Congress determines the number of immigrant visas that are available and has also determined that those born in any one country cannot comprise more than 7% of the total number of immigrant numbers issued in any given fiscal year. It is unclear whether there will be any changes to the per country limits under Trump, but likely the PERM green card process will largely remain the same.

Adjustment of Status adjudications at USCIS

There will likely be little change to USCIS’ adjudication of green card applications. However, it is possible that those from Middle Eastern countries may experience administrative delays as their cases undergo additional security checks. Although most employment-related green cards are issued without requiring an interview at the local USCIS Field Office, it is possible that those from Middle Eastern countries will have their cases sent to the local Office for further adjudication.

Conclusion

There is still much uncertainty as to the state of US corporate immigration after Trump’s inauguration. There are many studies that demonstrate that immigrants not only fuel economic growth in the US, but also play a positive impact on the income of US workers. In formulating his plans for immigration while in the White House, it is hoped that Trump will utilize his knowledge of “big business” to create strategies that positively respond to the immigration needs of US companies.

We will continue to monitor the situation from both an employee and global mobility manager perspective and will provide updates as they become available. If you have any questions, please do not hesitate to contact any of the following:

Sheila Snyder, Partner; T: +1 604 806 7185; Email: sheila.snyder@pwc.com

Monika Szabo, Partner; T: +1 416 687 8580; Email: monika.szabo@pwc.com

Douglas A. Cowgill, Attorney, Senior Associate; T: +1 604 495 8966 ext 3659; Email: douglas.a.cowgill@pwc.com

 


Posted by Immigration Law Team »

DHS proposes new rule: Amended regulations for certain employment-based immigrant and non-immigrant visa programs

Posted by Immigration Law Team|US Immigration
Nov 16
21


In brief

The Department of Homeland Security (DHS) has proposed a final rule which will amend its regulations related to certain employment-based immigrant and nonimmigrant visa programs. It includes the retention of EB-1, EB-2, and EB-3 immigrant workers and program improvements affecting high-skilled nonimmigrant workers. The final rule is intended to benefit U.S. employers and foreign workers participating in certain programs, by streamlining the processes for employer sponsorship of nonimmigrant workers for lawful permanent resident (LPR) status. Additionally, the final rule aims to increase job portability and provide stability and flexibility for foreign workers.

Discussion

Notable issues and changes addressed in the final rule include the following:

Retention of priority dates: Priority date retention will generally be available as long as the approval of the initial Form I-140 petition was not revoked for fraud, willful misrepresentation of a material fact, the invalidation or revocation of a labor certification, or material error. This will allow workers to retain priority dates and effectively transfer those dates to new and subsequently approved Form I-140 petitions

Retention of employment-based immigrant visa petitions: Form I-140 petitions that have been approved for 180 days or more would no longer be subject to automatic revocation based solely on withdrawal by the petitioner or the termination of the petitioner’s business

– 10-day non-immigrant grace periods before / after the assignment in US: There will be two grace periods of up to 10 days, consistent with those already available to individuals in some non-immigrant classifications, to individuals in the E-1, E-2, E-3, L-1, and TN classifications.The rule allows an initial grace period of up to 10 days prior to the start of an authorized validity period, as well as a second grace period of up to 10 days after the end of an authorized validity period in the U.S.

– 60-day non-immigrant grace periods where employment ceases prior to end of petition validity: There will be a new grace period of up to 60 consecutive days during each authorized validity period for individuals in the E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1 or TN classifications. This grace period allows high-skilled workers in these classifications, including those whose employment ceases prior to the end of the petition validity period, to more readily pursue new employment should they be eligible for other employer-sponsored non-immigrant classifications or employment in the same classification with a new employer

– Automatic extension of EAD pursuant to timely renewal filing: Certain EADs will be extended for up to 180 days from the date of expiration, as long as: (1) a renewal application is filed based on the same employment authorization category as the previously issued EAD; (2) the renewal application is timely filed prior to the expiration of the EAD; and (3) the individual’s eligibility for employment authorization continues beyond the expiration of the EAD and an independent adjudication of the underlying eligibility is not a prerequisite to the extension of employment

– Eligibility for employment authorization in compelling circumstances: Certain beneficiaries with approved I-140 petitions in the U.S. in E-3, H-1B, H-1B1, L-1, or O-1 non-immigrant status may apply for separate employment authorization for a limited period if there are compelling circumstances that, in the discretion of DHS, justify the issuance of employment authorization.

Impact

DHS states that these changes codify and improve existing policies concerning various employment-based immigrant and non-immigrant visa classifications. One of the main goals is to simplify the process for employers to hire and retain non-immigrant workers who have approved Form I-140 petitions. Also, DHS aims to give such workers additional career options as they wait for immigrant visas to become available. DHS considers these improvements increasingly important given the lengthy waits and consistently growing demand for immigrant visas.

The proposed rule is currently in the 60-day notice and comment period following publication in the Federal Registrar on November 18, 2016. The proposed changes will most likely take several months to clear the federal regulatory process. PwC Law LLP will provide additional updates as they become available.

For more information on the proposed rule change issued by DHS, please contact PwC Law LLP.


Posted by Immigration Law Team »