Canada: New Policy on Medical Inadmissibility

Posted by Immigration Law Team|Canada Immigration
Apr 18
16


In Brief:

On April 16, 2018, the Honourable Ahmed Hussen, Minister of Immigration, Refugees and Citizenship Canada (“IRCC”), announced changes to the medical inadmissibility provisions in the Immigration and Refugee Protection Act (“IRPA”) and the Immigration and Refugee Protection Regulations (“IRPR”), to ensure Canada’s immigration policies better reflect the importance of inclusion of persons with disabilities.

Discussion:

Since 2016, the Government of Canada had been reviewing all elements of its medical inadmissibility provisions, engaging in discussions with provincial and territorial governments along with other relevant stakeholders. Additionally, the Standing Committee on Citizenship and Immigration had examined the issues surrounding Canada’s medical inadmissibility policy, recommending eliminating it in its entirety. In response, today’s changes, which are proposed to take effect immediately, include the following:

1. Increase the cost threshold for medical inadmissibility

Currently, if a foreign national has a medical condition for which certain aspects of their treatment exceed the annual cost threshold, they may be found to be medically inadmissible to Canada. The 2017 threshold to determine whether a condition represents an excessive demand on health or social services is $6,655 annually, or $33,275 over five years. The cost threshold will be increased to three times this level.

By tripling the cost threshold, many applicants, particularly those with conditions treated primarily with publicly funded health services, will no longer be inadmissible to Canada. This change is especially notable for those applicants who rely on prescription medication which is eligible to be funded by a provincial program, as the total publicly-borne cost of these medications may now fall within the revised cost threshold.

2. Amending the definition of ‘social services’

Currently, when determining whether an applicant is medically inadmissible to Canada, Immigration Officers assess whether an individual’s circumstances is likely to place an excessive demand on social services, which is broadly defined to include services such as special education, social and vocational rehabilitation services, and personal support services. The new policy seeks to amend the definition of social services to remove reference to special education, social and vocational rehabilitation services, and personal support services. The result is that the publicly funded cost of these services will no longer count toward the amount used to determine excessive demand.

Amending the definition of social services will support societal inclusion of persons with disabilities, while continuing to protect publicly funded social services, in addition to benefiting those applicants with intellectual disabilities or hearing or visual impairments.

3. Client service Improvements

In order to improve client service, enhance transparency in decision making, and enable these changes, the following measures will be implemented:

–  Centralizing applications containing a potential medical inadmissibility to one office in Canada, for greater consistency and efficiency in decision-making;
–  Conducting a plain-language review, and revamping departmental procedures and products to facilitate the application process and to ensure clear communication with applicants; and
–  Providing ongoing training to decision makers and medical officers to support these changes.

Impact

Every year, approximately 1,000 applicants for permanent and temporary residence in Canada are found medically inadmissible to Canada. Approximately twenty to thirty percent of these cases relate to excessive demand caused by special education services required for children. IRCC’s new policy is expected to dispense with a majority of medical inadmissibility cases, as the increased cost threshold will facilitate immigration for applicants with conditions that typically require a limited range of health and social services, and whom have a relativelylow financial impact on health and social service costs.

The new policy seeks to address the issue of inclusion, as some current and soon-to-be applicants may be found medically inadmissible to Canada based on a set of criteria established approximately forty years ago. The implementation of this new policy means that most people with disabilities that would previously have been deemed inadmissible to Canada may no longer face this barrier.

For more information on medical inadmissibility, or any other immigration related matter, please contact a member of our team at PwC Law LLP.


Posted by Immigration Law Team »

USCIS has Completed the H-1B Cap Random Selection Process for Fiscal Year 2019

Posted by Immigration Law Team|US Immigration
Apr 18
13


In Brief:

On April 6, 2018, USCIS reached the congressionally mandated H-1B visa and master’s cap limit for the 2019 fiscal year. USCIS received a total of 190,098 H-1B petitions during the filing period.  Of the total petitions received, 65,000 H-1B cap petitions and 20,000 U.S. master’s or higher petitions have been selected via USCIS’ random lottery selection process. Petitions not selected under the master’s cap lottery became part of the random selection process for the 65,000 H-1B cap petitions.

Petitions that were not selected by the random lottery will be returned to petitioners with their filing fees reimbursed. For all selected cap petitions, USCIS will send receipt notices. These petitions will be processed by USCIS over the coming months and petitioners should expect to receive either approval notices or Requests for Evidence.

Discussion:

Despite the increased scrutiny USCIS has been applying to H-1B petitions as of late, it does not appear that employers were significantly discouraged from filing H-1B cap petitions for FY 2019.  As the table below demonstrates, H-1B cap filings have dipped only slightly from last year:

Fiscal Year Number of H-1B Cap Filings
2019 190,098
2018 199,000
2017 236,000
2016 233,000
2015 172,500
2014 124,000

While the H-1B statutory cap has been met, USCIS will continue to accept and process petitions filed for current H-1B workers who have been counted previously against the cap. These include but are not limited to petitions filed to:

–  Extend the amount of time a current H-1B worker may remain in the United States;
–  Change the terms of employment for current H-1B workers; and
–  Allow current H-1B workers to change employers.

PwC Law continues to monitor all legal immigration matters and will be sure to update you as changes occur. For more information on the H-1B cap program, or any other immigration matters, please contact a member of our team at PwC Law LLP


Posted by Immigration Law Team »

US: Form I-129 Pilot Program for Canadian L Nonimmigrants

Posted by Immigration Law Team|US Immigration
Mar 18
26


In Brief:

The US Citizenship and Immigration Services (“USCIS”) and Customs and Border Protection (“CBP”) have announced a joint pilot program whereby Canadian L-1 applications made at the Blaine, Washington ports of entry will no longer be adjudicated directly by CBP. Instead, petitions will be sent to USCIS, and applicants will wait for approval of their L-1 petitions before heading to the border to apply for admission into the US. The pilot program is scheduled to begin on April 30, 2018 at the Blaine, Washington ports of entry.

Discussion:

Currently, Canadian citizens applying for L-1 status at the Blaine, Washington ports of entry present their application packets for adjudication by CBP. A CBP Officer reviews the packet on the spot and typically either admits the applicant in L-1 status or provides a Notice of Deficiency of L-1 Petition, which often requires that the applicant return with an updated packet. Under the newly announced pilot program, Canadian citizens applying for L-1 status at the Blaine, Washington ports of entry will first need to have their L-1 petitions sent to USCIS and await approval, prior to presenting themselves for admission to the US. The new process is expected to have a Receipt Notice issued on the same day, and a decision (or Request for Evidence) issued within 2-3 business days. Once the case is approved, the applicant can present their Approval Notice to be admitted in L-1 status. To facilitate the process, USCIS is expected to have a dedicated email address, similar to the current premium processing email, that will provide case updates, including notice of receipt, notice of a Request for Evidence, and notice of approval. It is expected that even with an email confirmation of approval, applicants can present themselves at the port of entry for admission in L-1 status. It may also be possible, although not encouraged by USCIS, for applicants to present themselves at the port of entry upon the issuance of the Receipt Notice and request that their applications be adjudicated immediately.

The pilot program has been developed to: (1) increase efficiencies in L-1 processing; (2) enhance consistency within adjudications; and (3) allow for CBP to focus on its inspection work. If the pilot is successful, the program will be expanded to additional ports of entry, and may also be extended to other classifications, such as TN (Treaty National under NAFTA), so long as legally permissible.

Impact:

Only Canadian citizens applying for L-1 status through the Blaine, Washington ports of entry will be impacted at this time. Canadians who do not wish to be part of the pilot program may use other ports of entry when making their L-1 applications. While rollout of the program across the entire northern border is ultimately contemplated, the pilot program will be initially focused on the Blaine, Washington ports of entry. The pilot program is expected to last six months.

PwC Law continues to monitor these matters and will be sure to update you as changes occur.

For more information on this Pilot Program, or any other immigration matters, please contact a member of our team at
PwC Law LLP.

 


Posted by Immigration Law Team »

US: USCIS Suspends Premium Processing for Fiscal Year 2019 H-1B Cap Petitions, Effective April 2, 2018

Posted by Immigration Law Team|US Immigration
Mar 18
21


In Brief:

USCIS has announced that it will temporarily suspend premium processing for Fiscal Year (“FY”) 2019 H-1B cap petitions, including petitions seeking an exemption for individuals with a U.S. master’s degree or higher. This temporary suspension will come into effect on April 2, 2018, when the first FY 2019 H-1B cap cases may be filed, and is expected to last until September 10, 2018. USCIS is temporarily suspending premium processing in order to maintain the processing timelines for other petitions and to prioritize the adjudication of other H-1B case types, including extensions, amendments, and change of employer matters.

During this suspension, USCIS will reject all premium processing requests filed with FY 2019 cap-subject H-1B petitions. Should an employer submit fees for premium processing in conjunction with other H-1B filing fees (combined check), USCIS will reject all fees and the entire H-1B cap petition will be rejected.

While the suspension is in place, an employer may request that USCIS expedite a FY 2019 cap-subject H-1B petition only if it meets one or more expedite criteria, which include severe financial loss to the H-1B employer, humanitarian reasons, and emergency situations. USCIS grants expedited requests on an infrequent and discretionary basis.

During this temporary suspension, USCIS will continue to accept premium processing requests for H-1B petitions that are not subject to the FY 2019 cap, including H-1B extensions, amendments, and change of employer petitions.

Discussion:

Employers may request faster processing of their petitions in most categories by utilizing USCIS’ premium processing service. Premium processing allows for a decision to be rendered, or a Request for Evidence issued, within 15 calendar days. The cost for this service is $1225, and is in addition to the filing fees required for each category.

Employers have historically utilized the premium processing service for H-1B cap cases in order to assist them with workforce planning, and also to provide their employees (or prospective employees) with more timely visibility as to their future U.S. immigration status. Since the demand for H-1Bs has often exceeded the allotted annual quotas (in some years by more than threefold), USCIS conducts a random lottery to determine which cases will be selected for adjudication. Although utilizing the premium processing service did not affect the odds of being selected in the H-1B lottery, it allowed for better talent planning in general. Specifically, since employers file H-1B cap cases in April for an October 1 start date, they would utilize premium processing in order to receive decisions on their H-1B cap cases by May or June – rather than waiting until August, September, October, or even later, for a decision to be rendered.

Impact:

In light of the suspension of premium processing for FY 2019 cap-subject H-1B petitions, H-1B employers should prepare for a longer period of uncertainty regarding the outcome of their H-1B cap petitions, which could cause delays in finalizing their workforce and talent strategies.

In prior years when premium processing has been suspended, USCIS has issued receipt notices for the overwhelming majority of selected cap petitions by June of that filing year. If the coming year is similar to prior years, we can expect that most H-1B employers will have visibility as to their case selection by June, but not as to their final case determination. For those cases that have not been adjudicated by September 10, 2018, it is anticipated that employers will have the opportunity to upgrade those pending cases to premium processing, with the hope of receiving an approval prior to the October 1 start date. Although USCIS has indicated that it expects the suspension to last until September 10, employers should be prepared in the event that the suspension is extended.

H-1B cap beneficiaries (ie employees and prospective employees) will be impacted by the uncertainty of whether they have secured H-1B employment for October 1. Those seeking H-1B visa appointments in September and October may experience delays if their cases are approved near the October 1 start date. Beneficiaries currently in F-1 status and whose optional practical training (“OPT”) will expire before October 1, 2018, should speak to their immigration counsel regarding the ability to continue working in the U.S. during the pendency of the H-1B cap petition. Beneficiaries with H-1B cap petitions filed as a “change of status” should be mindful of longer processing times particularly in the event of international travel plans, as travel abroad can cause the “change of status” aspect of their petition to be deemed abandoned by USCIS. Individuals planning international travel should speak to their immigration counsel regarding any potential impact.

For further details on the suspension of H-1B premium processing for FY 2019 cap-subject H-1B petitions, or on any other immigration matters, please contact a member of our team at PwC Law LLP.

 


Posted by Immigration Law Team »

Canada: Invitation to Land in Person at an IRCC office

Posted by Immigration Law Team|Canada Immigration
Mar 18
20


In Brief:

Immigration, Refugees and Citizenship Canada (“IRCC”) will be testing a pilot project that will provide a select group of Permanent Resident (“PR”) applicants the opportunity to complete the landing process in person at a local IRCC office in Canada.

Discussion:

Between March 19 and April 20, 2018, IRCC will be contacting a select group of PR applicants via email, from an address ending in “@cic.gc.ca”. The pilot project will extend to certain PR applicants residing in the Montreal, Fredericton and Halifax areas, who have recently received their Confirmation of PR documentation. However, only PR applicants who are contacted by IRCC via email will be able to use this landing process and participation in this pilot project cannot be requested. This landing alternative is also not available for applicants who reside outside Canada. The email received from IRCC will list the dates and times the applicant may visit their local IRCC office to complete the PR landing process.

The current process requires PR applicants to either contact IRCC to schedule an appointment to visit their local IRCC office, or to leave Canada and return to the country through an international airport or Canadian land border, often referred to as “flag poling”. The current process can pose difficulties for those who do not live close to a land border or who are not able to make immediate international travel plans. Although PR applicants may contact IRCC to schedule an appointment and visit a local office, getting through to an IRCC agent over the phone can also be difficult.

Upon completion, and based on the results of the pilot project, IRCC will determine whether this landing process should be expanded to include other areas in Canada and form part of the normal landing process.

Similar to previous initiatives, such as the pilot project to land via telephone interview, IRCC continues to develop ways to provide more flexibility and convenience in an effort to improve client service.

Impact:

This initiative may offer an efficient alternative to flag-poling at a Canada-U.S. land border, scheduling international travel or scheduling an in-person landing interview with IRCC.

For more information on Canadian permanent residency and/or the PR landing process, please contact a member of our team at PwC Law LLP.


Posted by Immigration Law Team »

US: Update on EAD Processing, including H-4 EADs

Posted by Immigration Law Team|US Immigration
Mar 18
15


In Brief:

The adjudication of Employment Authorization Documents (EADs) has been increasingly delayed, causing much concern and uncertainty on the part of applicants. United States Citizenship and Immigration Services (USCIS) has confirmed that almost one quarter of all EAD cases have been pending for over 180 days. In addition, spouses of H-1B holders who have qualified under the H-4 EAD program are concerned that they may lose their employment authorization over the coming months, as a result of the US Department of Homeland Security (DHS) announcement to terminate the H-4 EAD program.

Discussion:

In the past, applicants for Employment Authorization Documents (EADs) were often receiving their EADs within 90 days of filing. When their cases were pending for more than 75 days, they could make an inquiry with USCIS which would generally result in EAD approval within 90 days. In recent times, there have been delays in adjudications, including increased delays when a Request for Evidence (RFE) has been issued. USCIS has confirmed that, although it has a 90-day processing goal for EADs, the 90 day clock restarts once a response to the RFE is received. In the most recent report, processing times have been reported as follows:

Days pending                Percentage of pending EAD cases
<75                                  43%
76-90                               5%
121-160                           10%
160-180                           5%
>180                                24%

USCIS has confirmed that it is aware of the delays and has stated that it is adjusting resources and looking for ways to make more efficient use of existing resources. USCIS stated that applicants can still submit inquiries when their cases have been pending for more than 75 days, that there will be a new website available that will present processing times in a new design, and that there may be upcoming changes to the EAD intake process.

H-4 EADs

In February 2015, DHS authorized H-4 dependents, whose primary H-1B spouses obtained I-140 approvals, to apply for employment authorization benefits. The rule allowed for eligible H-4 dependent spouses to apply for an EAD that would allow them to work. Prior to this, H-4 dependent spouses from visa retrogressed countries who did not have visa numbers available to file their adjustment of status/immigrant visa applications were not legally authorized to seek employment while in H-4 status.

Since its inception, this rule has been subject to numerous legal challenges. In December 2017, DHS announced that it planned to terminate the H-4 EAD program, and would be issuing a rescission notice of proposed rulemaking (NPRM) in February 2018. On February 28, 2018 through a DHS filing in a pending US Court of Appeals case, DHS announced that it is anticipated that the publication of the proposed rule will occur in June 2018. Once the rule is published, however, it will still take a few months before the rule is finalized.

Recommendations:

We recommend that applicants file for EAD extensions as soon as legally possible, and ensure that their applications are submitted in full, in order to avoid Requests for Evidence in their individual cases. For cases pending more than 75 days, we recommend that inquiries be made, since such inquiries have resulted in the issuance of EADs. We recommend those currently employed pursuant to an H-4 EAD seek alternatives for obtaining work authorization, including possibly entering into this year’s H-1B cap, if eligible. In addition, once the rule has been published for comment, which is anticipated to occur in June 2018, we recommend that individuals and employers provide comments during the public comment period attesting to the importance of maintaining the H-4 EAD program.

PwC Law continues to monitor these matters and will be sure to update you as changes occur.

For more information on EADs, the H-4 EAD program, or any other immigration matters, please contact a member of our team at PwC Law LLP.

 


Posted by Immigration Law Team »

Canada: Comprehensive and Progressive Agreement for Trans-Pacific Partnership (“CPTPP”)

Posted by Immigration Law Team|Canada Immigration
Mar 18
12


In Brief:

On March 8, 2018, the Honourable François-Philippe Champagne, Canada’s Minister of International Trade, joined representatives from ten other member countries to sign the historic Comprehensive and Progressive Agreement for Trans-Pacific Partnership (“CPTPP”). The CPTPP will be comprised of 11 member countries including Australia, Brunei, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore and Vietnam, to form one of the largest free-trade agreements in the world.

Discussion:

Upon entry into force, the CPTPP should provide employers with less restrictive immigration options, and enable faster and more predictable movement of skilled labour. We anticipate that following the coming into force of the CPTPP, Immigration, Refugees and Citizenship Canada will publish program delivery guidelines to clarify the practical application of the CPTPP’s immigration provisions.

The CPTPP sets out Canada’s commitments in Article 12.4 (Grant of Temporary Entry) pertaining to the temporary entry of business persons, as follows:

1. Business Visitors

Similar to existing Free Trade Agreements (“FTAs”), the business visitor category will permit the temporary entry of business visitors for up to six months provided their primary source of remuneration for the proposed business activity, as well as the place of business and accrual of profits, is outside Canada. This category includes business visitors seeking to engage in one of the following business activities:

 –  Meetings and Consultations
 –  Research and Design
 –  Manufacture and Production
 –  Marketing
 –  Sales
 –  Distribution
 –  After-Sales or After-Lease Service
 –  General Service including managerial/supervisory and financial services personnel engaging in commercial transactions, tourism, personnel attending conventions/conducting tours, and translation services.

2. Intra-corporate Transferees

Similar to existing FTAs, the intra-corporate transferee category will permit the temporary entry of business persons currently employed by an enterprise and with one year of experience with that company within the three-year period immediately preceding the date of application for admission to Canada. This category includes business persons, in specific countries, employed in the capacity of:

 –  Executive – business person who directs the management, establishes goals and policies, exercises decision-making authority of the organisation or a major component or function of the organisation.
 –  Manager – business person who directs the organisation or a department or subdivision of the organisation, supervises and controls the work of others, has authority to hire and fire personnel, and exercises discretionary authority over the day-to-day operations.
 –  Specialist – employee possessing specialised knowledge of the company’s products or services and their application in international markets, or an advanced level of expertise or knowledge of the company’s processes and procedures.
 –  Management Trainee on Professional Development – employee with a post-secondary degree who is on a temporary work assignment intended to broaden the employee’s knowledge of and experience in a company in preparation for a senior leadership position within the company.

As this provision does not require that intra-corporate transferee specialists meet a prevailing wage requirement, employers may wish to rely on the CPTPP provisions rather than the general provisions if applicable to the foreign worker.

3. Investors

Similar to existing FTAs, the investor category will permit the temporary entry of business persons seeking to establish, develop or administer an investment to which the business person or business person’s enterprise has committed, or is in the process of committing, a substantial amount of capital, in a capacity that is supervisory, executive or involves essential skills.

4. Professionals/Technicians

This category will permit the temporary entry of business persons engaged in a country-specific specialty occupation (NOC levels O, A and B) as a Professional or Technician.

The CPTPP defines Professionals as persons who possess the following:

(a) theoretical and practical application of a body of specialised knowledge; and
(b) a post-secondary degree of four or more years of study, unless otherwise provided in this schedule, as well as any other minimum requirements for entry defined in the NOC, and
(c) two years of paid work experience in the sector of activity of the contract, and
(d) remuneration at a level commensurate with other similarly-qualified professionals within the industry in the region where the work is performed (excluding non-monetary elements such as, but not limited to, housing costs and travel expenses).

Technicians are defined as persons who possess these attributes:

(a) theoretical and practical application of a body of specialised knowledge, and
(b) a post-secondary or technical degree requiring two or more years of study as a minimum for entry into the occupation, unless otherwise provided in this Schedule, as well as any other minimum requirements for entry defined in the NOC, and
(c) four years of paid work experience in the sector of activity of the contract, and
(d) remuneration at a level commensurate with other similarly-qualified technicians within the industry in the region where the work is performed (excluding non-monetary elements such as, but not limited to, housing costs and travel expenses).

Employers may note that, unlike other work permit categories under FTAs such as the NAFTA, Professionals/Technicians under the CPTPP must meet a wage requirement, which is yet to be defined. The category also specifies that previous work experience must be paid, which precludes the possibility of including work experience gained on certain unpaid internships or on the job training.

Impact:

Upon entering into force, the CPTPP will provide Canadian employers with new options for foreign nationals from CPTPP member countries in certain professions, in addition to highly skilled technicians, intra-corporate transferees, investors, and business visitors. This will improve the predictability of the import of skilled labour, and facilitate workforce planning for employers with foreign or mobile workforces.

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


Posted by Immigration Law Team »

US: Supreme Court Rejects Trump Administration’s Appeal in DACA Case

Feb 18
28


In brief

On January 9, 2018, a federal district court judge issued a nationwide injunction directing Department of Homeland Security (DHS) to resume accepting renewal applications from Deferred Action for Childhood Arrivals (DACA) beneficiaries.  The Trump administration attempted to bypass appellate review and requested that the U.S. Supreme Court intervene to review the lower courts’ injunction directly.  On February 26, 2018, the Supreme Court rejected this request and DHS will continue to accept DACA renewal applications beyond the March 5 deadline the administration had previously imposed.  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 plans to terminate the DACA program, effective 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.

On January 9, 2018, a federal district court judge in the Northern District of California issued a nationwide injunction 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 for all DACA-based Advance Parole applications.  In February, a federal district judge in the Eastern District of New York issued a similar injunction in a challenge to DACA termination.

The Trump Administration requested that the Supreme Court lift the injunctions against terminating DACA before the lower courts have issued a judgement on the merits of the case.  The Supreme Court declined to lift the injunctions and the matter will proceed through normal channels and initially be heard by the Ninth Circuit Court of Appeals.

Recommendations

If the Ninth Circuit upholds the lower court decision and if Congress fails to implement legislation related to class of foreign nationals protected by DACA, only then will the Supreme Court decide to review the matter.  In the meantime, the DHS must continue accepting renewal DACA applications.  We recommend continuing to file DACA-based EAD extension applications until the injunction is overturned or until Congress passes DACA legislation.

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, DHS has authority to 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 »