The impact of Trump’s election on US corporate immigration

Posted by Immigration Law Team|US Immigration
Nov 16

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.


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:

Monika Szabo, Partner; T: +1 416 687 8580; Email:

Douglas A. Cowgill, Attorney, Senior Associate; T: +1 604 495 8966 ext 3659; Email:


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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

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.


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.


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.

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Canada announces changes to the Express Entry System

Posted by Immigration Law Team|Canada Immigration
Nov 16

In brief

Canada’s Minister of Immigration, Refugees and Citizenship Canada (IRCC) has released proposed instructions including several sweeping changes to the points allocation structure for permanent residence under the Express Entry program. Effective November 19, 2016, a new points system will be applied, impacting international students, senior executives, and certain LMIA-exempt work permit holders.

Based on the new points allocations which account for highly valued experience and skills not previously recognized by the CRS, foreign workers previously not meeting the cutoff score may, as of November 19, 2016, receive higher rankings in the pool of candidates, and be more likely to receive an ITA.


The launch of the Express Entry system on January 1, 2015 by the Department of Citizenship and Immigration represented a major shift in the way Canada selects and processes applications for permanent residence. Moving from a system of first in line to best in line, candidates are selected according to a ‘Comprehensive Ranking System’ (CRS) which allocates points based on metrics designed to reflect Canada’s economic immigration policy goals. While Express Entry has, so far, successfully decreased application processing times, early outcomes and stakeholder feedback have revealed areas for improvement.

In response, IRCC has published proposed ministerial instructions, including several significant changes to the Express Entry system, which will apply to all applications in the candidate pool as of November 19, 2016.

Overview and impact of changes

Invitation to apply – Validity period

Current Candidates issued an ‘Invitation to Apply’ (ITA) have 60 days to submit their electronic application for permanent residence (e-APR).
New Candidates issued an ITA will have 90 days to submit their e-APR application, commencing the day after their ITA is issued.
Impact The additional 30 days will provide applicants with more time to gather the extensive documentation required to submit their e-APR. However, applicants are still advised to begin gathering their documentation well in advance of receiving their ITA, keeping in mind that some documentation such as police records or medical examinations should be no more than twelve months old.


Skills transferability – Calculation of points for education

Current In order to obtain the maximum number of points available for education within the Skills Transferability matrix, individuals with more than one post-secondary education credential from a foreign institution would have to obtain Education Credential Assessments (ECAs) for all of their degrees.
New Going forward, individuals with a credential at the Master’s, Professional, or Doctoral level will only need to obtain an ECA for their highest level of education (if completed outside of Canada) in order to be awarded the maximum points available for education in the matrix.
Impact Awarding skills-transferability points based on the level of education and not the number of degrees held relieves candidates from having to obtain two ECAs, which previously increased both administrative costs and complexity for candidates. This change may also relieve pressures on designated organizations, and decrease the processing times for ECAs.


Additional factors

Current Up to 600 points may be issued to individuals for ‘additional factors’, having either a provincial nomination or a qualifying offer of employment based on a positive Labour Market Impact Assessment (LMIA).
New ‘Additional factors’ for which bonus points are awarded now include a provincial nomination or a newly defined qualifying offer of arranged employment; or Canadian education credentials.
Impact Broadening the category of additional factors for which bonus points will be awarded recognizes skills and values previously unaccounted for in the old system.


Arranged employment – “Qualifying job offer”

Current Only a LMIA will “validate” a job offer and provide an applicant with an increased points score and a candidate will automatically receive 600 bonus points for holding a qualifying job offer.
New A job offer in a skilled occupation will provide candidates with additional points if it is made pursuant to a positively issued LMIA; made to a skilled worker with a valid LMIA-based work permit, if the offer is made by the same employer that is currently specified on their work permit; or made to a skilled worker with a valid LMIA-exempt work permit issued under a Free Trade Agreement (e.g. NAFTA) or pursuant to the Significant Benefit or Reciprocal Employment category (e.g. Intra-Company Transferee), if the offer is made by the same employer that is currently specified on their work permit, once the candidate has at least one year of continuous full-time (or equivalent part-time) Canadian work experience with that employer.

Candidates holding one of the above qualifying job offers for employment in a position classified under the National Occupation Classification (NOC) matrix Major Group 00, including Senior Management occupations, will receive an increase of 200 additional points.

Candidates with a qualifying job offer for a NOC 0, A, or B position will receive an increase of 50 additional points

Impact The bonus points awarded to a candidate with a qualifying offer of employment virtually guarantee that they will receive an ITA, despite their human capital score. As such, candidates with high human capital scores not reaching the cutoff are excluded despite possessing characteristics highly valued by the CRS. The new system will address this issue and will allow candidates with high human capital scores but without an approved offer of employment a better chance of receiving an ITA. Removing employers’ obligation to obtain an LMIA prior to extending a qualifying job offer will facilitate their ability to permanently hire their current foreign worker employees, and simplify long-term strategic planning. Finally, candidates with approved job offers in low wage occupations will no longer be guaranteed an ITA which will leave more room for skilled candidates.

Candidates with an open work permit, such as those issued to accompanying spouses, International Experience Canada participants, or graduates of Canadian institutions won’t be eligible to receive bonus points unless their job offer is based on a positive LMIA.


Candidates with Canadian education credentials

Current Candidates having obtained an education credential in Canada do not have any advantage over those who studied outside of Canada and individuals with Canadian education credentials are not awarded any bonus points.
New Bonus points will be awarded in addition to those already awarded under the CRS to individuals who have studied at a Canadian educational institution in a full-time program of at least eight months, and were physically present in Canada for at least eight months.

If more than half of the program was comprised of learning English or French, or distance learning, or if the credential was obtained pursuant to a scholarship or fellowship which required the candidate to return to their home country upon graduation, then the additional points are not applicable.

15 bonus points awarded to individuals with an eligible credential from a Canadian post-secondary program of one or two years.

30 bonus points awarded to individuals with a credential from a post-secondary program of three years or more, or a Master’s, professional, or Doctoral degree obtained in Canada.

Impact Recognizing that candidates with Canadian education credentials are often well-suited to settle permanently in Canada, the award of these bonus points will give Canadian-educated candidates a competitive edge, and will increase the number of Canadian-educated candidates receiving ITAs. Specifically benefitting from this change will be those candidates holding a post-graduate work permit who may be ineligible to receive bonus points for a qualifying job offer, as they won’t hold an employer-specific work permit.



Employers should re-examine their foreign worker population, taking into account the new CRS structure, to determine whether any foreign workers who previously did not qualify could now benefit with a permanent job offer.

Accordingly, those employers who are considering making job offers to foreign workers, or who may do so in the future, are advised to incorporate these new changes into their long-term strategic outlook as they may now be able to capitalize upon this newly accessible section of the labour market.

For further details on the changes to the Express Entry system or any other permanent residence matter, please contact PwC Law LLP.

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Trump declared US President: How will this affect immigration?

Posted by Immigration Law Team|US Immigration
Nov 16

In brief

After emerging victorious in several key battleground states, Republican candidate Donald Trump has declared victory as the winner of the 2016 US Presidential race.  Republicans also retained control of the Senate and the House of Representatives.  An overview of Trump’s platform and the immigration implications of his election are outlined below.

Background – Trump’s immigration platform

Donald Trump’s campaign spoke extensively on the issue of immigration, primarily in relation to concerns around illegal immigration, and included propositions for the following:

– Building a physical wall to divide the United States and Mexico

– Deporting criminal aliens, in joint operation with local, state, and federal law enforcement, and tripling the number of ICE agents

– Suspending the issuance of visas in areas deemed to not have adequate screening mechanisms in place

– Ending President Obama’s executive actions, Deferred Action for Parents of Americans (DAPA) and Deferred Action for Childhood Arrivals (DACA), resulting in the deportation of the beneficiaries of these programs

By comparison to Trump’s platform on illegal immigration, he spoke sparingly in relation to his corporate immigration platform.  Throughout various stages of the campaign, however, Trump’s platform included propositions for the following:

– Increasing wage requirements for H-1B visa holders in an effort to encourage US companies to hire more Americans for entry-level jobs

– Increasing usage of the E-Verify program, resulting in required participation for all US companies in order to verify employment authorization status prior to an individual commencing employment within the US

– Renegotiating and potentially considering the abolition of NAFTA, under which certain classifications of professionals are eligible to transfer between the US, Canada and Mexico for employment purposes

– Suspending US visa issuance from Muslim regions, as determined necessary by Trump

Impact – What does this mean for immigration?


US immigration implications

While difficult to predict whether the above will occur in the proposed form or an altered form, it seems likely that Trump will attempt to take robust action at the outset of his presidency in relation to illegal immigration, with potential changes to corporate immigration to follow.   Action instituted by Trump, however, could be met with delays in Congress.

With the GOP retaining control of the House of Representatives (236 to 191) and the Senate (51 to 47), Trump may benefit from a united Republican Congress.  Trump’s relationship with many congressional republicans, however, has been described as uneasy and is not expected to lend itself to automatic agreeance on key immigration topics.  Further, many of Trump’s proposed policies will require approval from Congress for the significant costs involved, likely resulting in periods of lengthy delays before any changes to immigration are felt.  Based on the anticipated debate expected to occur on many key immigration fields, including the costs associated with Trump’s platforms on illegal immigration and corporate immigration, change will likely occur slowly. Thus, unless Congress also supports Trump’s position, changes to corporate immigration will likely occur slowly following periods of significant debate.

Canadian immigration implications

As the votes were cast and ballots counted, the website for Immigration, Refugees and Citizenship Canada experienced such high volumes on election night that it ultimately crashed, leading to widespread reports that many US citizens unhappy with the results of the election are seriously contemplating moving to Canada on a long-term basis. While the Canadian government has mandated immigration to be more facilitative as a means to foster economic growth and diversity across the country, the process of obtaining permanent residence in Canada remains a relatively lengthy one with eligibility to apply on economic grounds being based largely on the particular candidate’s age, education, work experience, language proficiency, and whether or not they hold a valid job offer. As such, long-term or permanent relocation of American citizens to Canada will not be immediate, and is unlikely to occur en masse.

From a corporate immigration perspective, the changes proposed by Trump are likely to impact businesses not only in the US, but also those in Canada and particularly those engaging in cross-border business.  As noted above, Trump’s platform has been highly protectionist, and he has spoken at length pledging to remove the United States from the North American Free Trade Agreement (NAFTA), if the document is not amended to his liking. It remains to be seen how Trump and his advisors will attempt to amend NAFTA, however any amendments will first need to be agreed to by all member nations, which will not be a quick or seamless process. If the United States eventually removes itself from NAFTA, however, cross-border travel and corporate global mobility programs will be deeply impacted, as such a decision will affect millions of citizens from Canada, the United States and Mexico, who currently utilize the NAFTA work permit category to move seamlessly across borders to work  in NAFTA member countries.


In light of Trump’s win, we recommend that employers assess their global mobility program and long-term foreign worker needs both in the US and Canada, and budget for potential increases to wage requirements and processing times accordingly.  Companies who employ or are intending to employ foreign nationals under the NAFTA may also wish to consider applying now for their NAFTA-based work permits for the maximum work permit duration to avoid disruption to business services, and ensuring their employees continue to take advantage of working in NAFTA member countries while NAFTA remains in effect.

For more information on the President-elect’s immigration platform, please read our Insight.

For questions relating to immigrating to Canada or the US, please contact PwC Law LLP.

Please note that PwC Law does not endorse any specific political opinions or views.

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Electronic Travel Authorization: Short-term measure for dual Canadian citizens introduced

Posted by Immigration Law Team|Canada Immigration
Nov 16

In brief

As of November 10, 2016, dual Canadian citizens will need a Canadian passport to board their flight to Canada, with the exception of American-Canadian dual citizens. However, under a newly-introduced short-term measure, available until January 31, 2017, qualifying dual Canadian citizens may apply for a special authorization to travel with their valid non-Canadian passports.


As discussed in our previous client alert, the Electronic Travel Authorization (eTA) requirement leniency period comes to an end on November 10, 2016.  This means all visa-exempt travellers, except U.S. citizens, will need to obtain an eTA in order to fly to or transit through Canada. Dual Canadian citizens cannot obtain an eTA, and instead must obtain a Canadian passport. That being said, American-Canadian dual citizens need not obtain a Canadian passport to fly to Canada and can enter Canada with their U.S. passport, as long as they meet certain basic requirements to enter Canada.


The newly introduced short-term measure, available until January 31, 2017, affects all other dual Canadian citizens.  It will allow eligible dual Canadian citizens to apply for special authorization to travel to or transit through Canada by air using their valid non-Canadian passports. This special authorization is available to dual Canadian citizens whose:

– Second citizenship is from a visa-exempt country

– Travel date to Canada is imminent (leaving in less than 10 days), and

– Canadian citizenship can be verified by Immigration, Refugees and Citizenship Canada (IRCC)

An individual can apply for a special authorization online via IRCC’s website. Each applicant’s information will be verified in IRCC’s electronic system to confirm Canadian citizenship. Each individual applying for a special authorization must ensure that all information is entered correctly when applying for this authorization, as mistakes in information can lead to a delay or refusal of this authorization. Without this special authorization, the individual will not be able to board their flight to Canada.

In addition, it should be noted that a special authorization is valid only for one person. If a family is travelling together, each family member will need to apply separately for their special authorization.

Once his/her application is approved, the special authorization will be valid for 4 days from the date of travel indicated in the application.

Given that applying for a Canadian passport can take time, particularly if the applicant is required to obtain proof of Canadian citizenship prior to applying for their Canadian passport, this short-term measure will help reduce travel disruptions for certain dual Canadian citizens travelling to Canada by air.


In advance of flying to or transiting through Canada, travellers need to be fully aware of the eTA requirements that apply to their unique situation to ensure that they do not experience issues with reaching their destination.

For further information on eTA requirements or on obtaining this special authorization, please contact a member of our team.



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