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 » No Comments »

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.

 


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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 » No Comments »

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 » No Comments »

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 » No Comments »

Life after NAFTA – US & Canada Perspectives

Feb 18
21


Introduction

Round 6 of the renegotiation of the North American Free Trade Agreement (NAFTA), the pact between Mexico, Canada and the US took place in Montreal, Canada from January 21st to the 29th.  No progress was made on the key issues through the first five rounds and the Montreal meetings have been billed as the final round of discussions.  It remains to be seen whether the three countries can agree on terms that will update and keep NAFTA in place for future generations.  Complicating the renegotiations are the consistent overtures made by US President Donald Trump that he will withdraw from the NAFTA deal if the other two countries do not concede to some of the United States’ hardline demands.  While a NAFTA withdrawal will unleash many known and unknown economic consequences for the three member countries, there will also be immigration consequences, both known and largely unknown, for individuals who are working in Canada and the US on NAFTA-based work permits.

The purpose of this article is to review the current immigration provisions of NAFTA and to explore whether NAFTA work permit holders will be able to continue to live and work in the US and in Canada if the US withdraws from the agreement.

Background

NAFTA was entered into force on January 1, 1994 and created one of the largest free trade zones in the world between the US, Canada and Mexico.  The treaty covers many industries and sectors and aimed at the following objectives:

1) Eliminating tariffs for certain projects
2) Eliminating certain non-tariff barriers
3) Establishing standards in areas such as health, safety and industry
4) Expanding the telecommunications trade
5) Reducing textile and apparel barriers
6) Expanding free trade in agriculture
7) Expanding trade in financial services
8) Opening insurance markets
9) Increasing investment opportunities
10) Increasing protection of intellectual property rights
11) Expanding the rights of American firms to bid on Mexican and Canadian government procurement contracts.

a) NAFTA Immigration Provisions for the United States

In order to facilitate trade expansions and the free movements of goods, NAFTA also contains immigration provisions that allow for the movement of US, Canadian and Mexican nationals throughout the free trade zone under a more expedited process.  At the outset, while immigration was not a principal concern, the NAFTA drafters realized that the movement of goods and services in international commerce would also involve the moving of people who trade in those goods and services.

For the United States, NAFTA provides the following immigration provisions:

Visitors for Business (B-1)

Canadian and Mexican nationals are allowed to enter the US to engage in B-1 business activities as long as they receive no salary or remunerations from a US source, establish they will engage in business activities, and will not be performing “work” activities that usually require a work permit.  The activities include the following:

– Technical research and Design
– Growth, manufacture, and production
– Market research and analysis
– Negotiating contracts or taking sales orders
– Transportation and distribution activities
– After-sales services

Canadian nationals are able to enter the US as a B-1 business visitor through the US-Canada border or through a preclearance facility in Canada without having to apply for a visa at the US Consulate.

L-1 Intracompany Transferees

The NAFTA provisions permit Canadian nationals to follow a streamlined process for applying for L-1 admission as an intra-company transfer.  Canadian nationals are not required to file their L-1 petition with US Citizenship and Immigration Services (USCIS).  Instead they may submit an L-1 petition and request admission into the United States with US Customs and Border Protection (CBP) at a Class A port of entry along the US/Canada border at a pre-clearances station in Canada.

TN Nonimmigrants (Treaty Nationals)

NAFTA permits Canadian and Mexican nationals to enter the US on TN status to engage in certain professional activities that are designated by the treaty provisions.  The TN professions and the minimum qualifications for each are listed in the NAFTA appendix and include, but are not limited to, the following:

– Accountants
– Computer System Analysts
– Engineers
– Mathematicians
– Economists
– Scientists
– Urban Planners

Canadian nationals may submit a TN application and request admission into the United States with US Customs and Border Protection (CBP) at a Class A port of entry along the US/Canada border at a pre-clearances station in Canada.

E-1/E-2 Treaty Traders and Investors

The NAFTA provisions make Canadian and Mexican nationals eligible for E visas which are designed for treaty traders (E-1) and treaty investors (E-2).

b) NAFTA Immigration Provisions for Canada

Entry provisions for US and Mexican citizens seeking to work in Canada under NAFTA largely mirror those found in the US.

Under Canadian immigration law, NAFTA’s provisions exist alongside of general immigration provisions.  Business visitor eligibility criteria under NAFTA parallels the business visitor requirements set out at section 186(a) of the Immigration and Refugee Protection Regulations (IRPR), with the main difference being that NAFTA has slightly more restrictive after-sales service provisions.

The other three categories of business people — namely professionals, intra-company transferees and traders / investors — are eligible for Canadian work permits under IRPR R. 204(a) on a similar basis to the US.  US and Mexican citizens may apply for NAFTA-based work permits upon arrival in Canada, with no advance government processing or an application through a visa office abroad being required.

US and Mexican citizens who qualify for NAFTA-based work permits are exempt from the onerous Labour Market Impact Assessment process, meaning that NAFTA is an efficient and cost-effective basis for obtaining a work permit.

The Post-NAFTA Landscape

Under Article 2205 of NAFTA, any of the three countries can pull out of the treaty by giving six months notice to the other two countries.  NAFTA has been in place for over 20 years and the implications of a potential US withdrawal are still being ascertained.  In this regard, we have outlined some potential scenarios and outcomes if the US decides to withdraw from NAFTA.

a) Does the President have the authority to pull out of NAFTA?

The NAFTA treaty states that any country may pull out of the agreement by providing six months’ notice.  Based on this provision, the President may pull out of the agreement.  However, the power to negotiate trade deals is shared between the President and the Congress.  Congress usually grants the President the ability to negotiate trade deals, which are ultimately submitted for a congressional vote.

If the President withdraws from NAFTA, some provisions of the deal such as the binational panels that resolve trade disputes, would disappear while other things, such as preferential tariff treatment for Canadian and Mexican goods, would remain until Congress passes legislation to repel them.

Additionally, after the agreement was executed by the three countries, the United States ratified and implemented the agreement through legislation, which governs the way the US trades with Mexico and Canada under NAFTA.  The legislation can only be repealed by congressional vote.  Congress could fight to keep the legislation intact or pass new laws designed to boost its own authority over trade agreements.  Thus, since much of NAFTA is implemented by congressional statute, which cannot be changed without congressional vote, what would remain has been termed a “Zombie” NAFTA—where the US no longer formally participates in the agreement but the domestic laws would treat Canadian and Mexican products as NAFTA-bound.

In any scenario, it is extremely likely that a withdrawal will lead to a legal battle with members of Congress or industry groups challenging the President in court over his power to unilaterally withdraw from the agreement.

b) In the case of a withdrawal, what would happen to the NAFTA agreement between Canada and Mexico?

In the event of a US withdrawal, the NAFTA agreement may remain in effect between Canada and Mexico, but this would likely require positive action from both countries.

It should also be noted that the Trans-Pacific Partnership (TPP) — which could be ratified as early as 2019 — contains mobility provisions that are similar to those in NAFTA.  Canada and Mexico are both parties to the TPP.  With the TPP on the horizon, Canada and Mexico may not have the appetite to revive NAFTA in the event that the US withdraws from this agreement.

c) Could the US and Canada revert back to the Canada-US free-trade agreement (CUSFTA) that came before NAFTA?  

In 1987, Canada and the US signed a free-trade deal known as the Canada-US free-trade agreement (CUSFTA).  This deal superseded NAFTA.  The prevailing view is that if the United States pulls out of NAFTA, then the original CUSFTA provisions might come back into force.  The immigration provisions in CUSFTA are similar to those in NAFTA, with the exception that the professional categories in CUSFTA are not as extensive as those listed in NAFTA.  Certain professional categories in NAFTA, such as Urban Planners, are not available under CUSFTA.  Nevertheless, CUSFTA could serve as a fall back option for individuals in Canada or the US on NAFTA-based work permits.

However, there are issues with this scenario: First, the CUSFTA would not automatically revert become operational. Various decisions and significant “lift” will be required first. Secondly; the withdrawal provisions of CUSFTA are very similar to those in NAFTA; either country can terminate the agreement by providing six months’ notice.  Thus it is possible that the President could provide six months’ notice to simultaneously withdraw from NAFTA and CUSFTA, leaving no fallback provision.

d) If the US pulls out of NAFTA, what will happen to the immigration status of Canadian and Mexican nationals who are in the US and Canada on NAFTA-based work permits?

     i) US

This is a complex question and could involve many likely scenarios.  As mentioned before, the Canada-US trade relationship could revert back to the CUSFTA provisions.  These provisions are similar to NAFTA and include work permits for professionals that are similar, though more limited, to those enumerated in the NAFTA provisions.  However, it is unclear whether NAFTA-based work permit holders in the US could remain in the US based on CUSFTA provisions.  One option is that the US could provide further guidance to state that NAFTA-based work permits would automatically revert to CUSFTA-based work permits and Canadian nationals could remain in the US without disruption to their employment.

Another possible scenario is that NAFTA-based work permit holders will have to take action and apply for a CUSFTA-based work permit.  Within the six month notice period, Canadian nationals, who reside in the US, could file a CUSFTA-based work permit at a service center inside the US.  This process would allow Canadian citizens to continue working while their new CUSFTA application is being adjudicated by the service agencies.  Canadian nationals would also have the opportunity to apply for a CUSFTA work permit at a US-Canada land crossing or at a preclearance facility in Canada.

     ii) Canada

There is a great deal of uncertainty as to how the Canadian government would address the termination of NAFTA and the rights of NAFTA-based work permit holders in Canada.

At present, there are upwards of 40,000 NAFTA work permit holders in Canada, many of whom are working in fields with persistent labour shortages, such as nursing and engineering.  It would be devastating to the Canadian economy if tens of thousands of skilled professionals are required to leave the country, not to mention counterproductive in light of government’s recent efforts to lure foreign talent to Canada.  In the event that NAFTA is terminated, it is expected that existing NAFTA-based work permit holders would be permitted to continue working in Canada until such time as their status documents expire.  This would protect Canadian employers from the sudden and unplanned departure of key US and Mexican talent, as well as ensuring that government does not have to deal with an onslaught of thousands of new work permit and other applications from NAFTA-based work permit holders.

However, if the Canadian government opts to follow the US government’s lead and instead takes the position that all NAFTA-based work permits are void as soon as NAFTA is terminated, US and Mexican citizens should be able to apply for new work permits during the 6 month notice period provided that they qualify under an alternative work permit category (such as the reciprocal employment or significant benefits work permit categories under IRPR’s general immigration provisions).  US citizens holding NAFTA-based work permits may also be able to change the basis for their work authorization from NAFTA to CUSFTA (provided that CUSFTA comes back into effect) or their work permits may be automatically deemed to have become CUSFTA-based work permits.

To the extent that NAFTA-based work permit holders are required to take proactive steps to remain in Canada, they may have to apply for work permit extensions and / or change of conditions through the Case Processing Centre in Vegreville, Alberta or, if applicable, at a Canadian port-of-entry.

If some form of NAFTA remains in effect between Canada and Mexico, Mexican nationals holding NAFTA-based work permits may be unaffected by the termination of this agreement by the US.  Alternatively, depending on the timing of NAFTA’s termination, Mexican citizens may be able to change the basis of their work authorization from NAFTA to the TPP.

At the end of the day, it should be highlighted that the Canadian government has been actively courting foreign skilled workers under the Global Skills Strategy and other related initiatives.  Allowing tens of thousands of highly skilled professionals to leave the country would run completely contrary to these efforts.  Accordingly, if proactive measures are needed to keep NAFTA-based work permit holders in the country, the Canadian government may take such steps.

e) Assuming the US issues a six month notice to withdraw from NAFTA and CUSFTA, what will happen to the NAFTA-based work permits of Canadian and Mexican nationals residing in the US?

Again, there are many possible scenarios.  It is possible the three countries could make separate agreements to let NAFTA-based work permit holders remain in the US and continue to utilize the work permit provisions of NAFTA.

Alternatively, the US may allow NAFTA work permit holders to work until the expiry of their work permits.  They could also decide that all NAFTA work permits will end at the expiry of the six month notice period.  Under this last scenario, Canadian and Mexican nationals would have to leave at the end of the six month notice period or change to another work permit category, if they are eligible.

From an immigration perspective, it is not clear what type of post-NAFTA and post CUSFTA landscape will emerge.  Currently, Canadian nationals, when entering the US as B-1 business visitors, or applying for L-1 or TN work permits, do not have to apply for a visa at a US Consulate.  It is unclear if they will continue to remain “visa-exempt” in the B-1 and L-1 categories or would have to apply for visas at the US Consulates in Canada.   It is also unclear whether the US Congress would be willing to pass law to keep the immigration provisions of NAFTA intact, which would allow NAFTA work permit holders to continue working without disruption in their US status.

Recommendations in the event of a US-led NAFTA withdrawal

Despite the uncertainty associated with a post-NAFTA landscape, there are some concrete steps companies can take in anticipation of a NAFTA and CUSFTA withdrawal that would help protect NAFTA-based employees to remain in the US or Canada.

a) US

For individuals working in the US on L-1 NAFTA-based work permits, companies should consider switching their work permits to the H-1B classification.  Keep in mind that only 85,000 total H-1B visas are given each year; the first day of filing is April 1st and if the application is accepted and approved, the H-1B will become effective on October 1st. Moreover, the H-1B position must require a four-year bachelor degree and the individual applicant must have a four year bachelor degree or its equivalent in education and/or experience related to the position.

It may also be possible to re-file L-1 applications with the service center through USCIS.  An L-1 approval through USCIS would allow the individual to continue to work and reside in the US on the same status.

For individuals in the US on TN work permits, companies should also consider filing H-1B petitions on their behalf.  Alternatively, if employees have worked for a sister, parent, or subsidiary company outside the US for one full continuous year within the last three years prior to their entry into the US, then they may be eligible for an L-1 work permit.  The L-1 work permit would be filed at a USCIS service center.

b) Canada

Canadian employers seeking to retain NAFTA-based work permit holders would be well-advised to transition such individuals to permanent resident status.  Under the federal government’s Express Entry process, foreign nationals can secure permanent resident status through the Canada Experience Class, Federal Skilled Worker Program or Federal Skilled Trades Program within  6 months (and, in some cases, in as little as a few weeks).  A number of provinces also have very fast and effective provincial nomination programs.  Once a NAFTA-based work permit holder has applied for permanent residence through the federal government or secured a nomination for permanent residence from a province or territory, they then become eligible for a bridging work permit, which will allow them to remain in Canada until they have secured permanent resident status.

Alternatively, affected foreign nationals could look at changing the basis for their work authorization from NAFTA to a different work permit category, such as the reciprocal employment or significant benefits category.

Employers could also look at transitioning U.S. and Mexican citizens to intra-company transfer work permits, provided that they have a history of employment with the company abroad.  However, Canadian immigration law requires intra-company transferees to be employed with the foreign employing entity at the time the application is made; accordingly, this strategy would require the Canadian employer to transfer their NAFTA-based work permit holder back to the foreign employing entity for a period of time before that individual could return to Canada and apply for an intra-company transfer work permit.

We recommend that companies review their employee population to identify which individuals are currently on NAFTA-based work permits and then work with their counsel to develop alternative work authorization strategies on their behalf.

Conclusion

The termination of NAFTA would have far-reaching implications for NAFTA-based business visitors and work permit holders in Canada and the US.

As the Canadian government has recently taken active measures to attract skilled workers under the Global Skills Strategy and related initiatives, Canada is expected to take proactive steps to ensure that NAFTA-based work permit holders can remain in the country.  On the other hand, in light of President Trump’s “America First” policies, the US may be less facilitative in terms of ensuring that NAFTA-based work permit holders can continue to live and work in the country.

There are still many unknowns associated with the termination of NAFTA and the impacts to current NAFTA-based work authorization holders.  Please contact PwC Law LLP to discuss your company’s particular situation and to develop a plan for retaining your NAFTA-based work permit holders.

 

The conclusions reached in this document represent and are based upon our best judgment regarding the application of immigration laws arising under the Immigration and Refugee Protection Act and Regulations Customs Act, the US Code of Federal Regulations, the Immigration and Nationality Act (INA),  judicial decisions, administrative regulations, and operational manuals existing as of the date hereof.  This document is not binding upon the Canada Border Services Agency, Customs Border Protection or any other immigration enforcement authority and there is no assurance or guarantee that CBSA, CBP or any other immigration/customs authority will not successfully assert a contrary position.

 


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US: Government Shutdown 2018

Posted by Immigration Law Team|US Immigration
Feb 18
7


In brief

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

Discussion

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

DACA

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

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

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

Impact

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

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

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

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

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

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

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

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


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

Jan 18
12


In brief

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

Background

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

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

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

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

Recommendations

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

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

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

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


Posted by Immigration Law Team » No Comments »