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Proposed change to afford certain temporary foreign workers with increased mobility

A proposed amendment to Canada’s Immigration and Refugee Protection Regulations (IRPR) would provide increased employment mobility to certain foreign workers under the Canadian Temporary Foreign Worker Program. It still remains to be seen whether Immigration, Refugees and Citizenship Canada and Employment and Social Development Canada will move forward with the amendment, and whether there is any appetite to provide similar changes to programs used to employ more highly-skilled foreign workers. To view the article on this proposed amendment, written by a member of our Toronto Employment and Labor team, click here.

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Proposed change to afford certain temporary foreign workers with increased mobility

DHS publishes final rule governing FY 2020 H-1B cap season. Now it’s time to prepare your cap-subject petitions

Last week, the Department of Homeland Security (DHS) published the final rule amending regulations governing H-1B cap-subject petitions. For a detailed discussion of the proposed rule, see our recent blog post here. The final rule, however, makes some changes different from those set out in the proposed rule.

No online registration for FY 2020 H-1B cap season

Though suggested in the proposed rule, the final rule clearly states that an online registration requirement will not be implemented for the FY 2020 cap season. The agency explains that before implementation, it wants to complete user testing and other evaluative tools to ensure the system and process are fully functional. Employers should be ready in 2020 for the FY 2021 H-1B cap season, when the process change will likely take place. US Citizenship and Immigration Services (USCIS) will announce the implementation in advance of the cap season in which it will implement the requirement.

Changing the order of the H-1B lottery selection for the FY 2020 H-1B cap season

Currently, H-1B cap-subject petitions filed under the advanced degree cap are selected first, and unselected petitions get a second bite at the apple—an opportunity to compete, along with the regular cap petitions, for one of the 65,000 visas available for workers holding bachelor’s degrees. The final rule reverses this order. Effective April 1, 2019, USCIS will first select 65,000 petitions from all submissions, including both regular and advanced degree petitions. USCIS will then run a second lottery to select enough qualifying petitions to meet the 20,000 cap exemption for individuals with advanced degrees from US institutions. DHS states that the change will increase the chances of H-1Bs being awarded to individuals with US master’s degrees or higher by up to 16%, or 5,340 workers. Time will tell. Why DHS thinks random holders of US master’s degrees will better serve American competitiveness than will holders of bachelors’ degrees in targeted fields of study, such as STEM, or who otherwise meet the goals articulated in President Trump’s April 2017 executive order directing an interdepartmental review of the H-1B visa program, was not addressed in the final rule.

Dentons analysis

Employers need to submit full H-1B cap-subject petitions during the first week of April. Please contact your lawyer now to be fully prepared.   

Meanwhile, Dentons will continue to closely monitor any changes to the regulations surrounding the H-1B program, particular regarding the pre-registration requirement, and update you as needed.

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DHS publishes final rule governing FY 2020 H-1B cap season. Now it’s time to prepare your cap-subject petitions

Proposed end of H-4 employment authorization likely to affect over 100,000 families

Time appears to be almost up for more than 100,000 foreign citizens working in the United States under an Obama-era special authorization for spouses of foreign workers here on the H-1B visa.

When Congress failed legislatively to address the lengthy wait times for many professionals and their families to be granted resident status, the US Citizenship and Immigration Services (USCIS) in 2015, under the Obama administration, issued a regulation to allow H-4 visa spouses of qualified H-1B professionals to apply for an employment authorization document (EAD). Some members of Congress complained that the executive branch was overstepping its authority by making law—which is Congress’s job—and the regulation was the subject of much debate during the last presidential election. Now the Trump administration is seeking to make good on the President’s campaign promise to eliminate EADs for H-4 spouses.

This change especially impacts US employers of people born in India.

The reason why Indian-born professionals are impacted is because there are numerical limits on the number of green cards granted each year. To promote the diversity of new immigrants to the US, there are quota limits on the place of birth. No more than 7 percent of the total number of family-sponsored and employment-based visas available in a fiscal year may be issued to natives of any one independent country. As the demand for Indian-born professionals is far greater than the annual supply of green cards under the quota, this has created a backlog.

In 2018 for instance, the backlog of Indian-born professionals waiting their turn to get a green card was well in excess of a half million individuals. As a result, it now takes many years for an Indian-born professional to receive his or her green card. As a consequence, Indian-born professionals comprise the bulk of H-4 EAD holders.

Under the current regulation, an H-4 spouse can request an EAD if the H-1B professional is the beneficiary of either an approved employment-based immigrant visa petition, or a Department of Labor alien employment certification application or employment-based immigrant visa petition filed at least 365 days prior to the end of the sixth year of the professional’s H-1B status.

In April 2017, President Trump signed the “Buy American and Hire American” executive order, which, among other things, directed the Department of Homeland Security (DHS), in coordination with other agencies, to review H-1B-related policies. The H-4 EAD regulation was one of the policies reviewed and the result was its proposed elimination.

US employers rely on H-1B professionals to make up for the shortage of qualified American professionals while keeping jobs in the US. CEOs of major US companies, sent a letter to DHS opposing the plan to eliminate the H-4 EAD. The letter pointed out that “[t]hese spouses are often highly skilled in their own rights,” and “revoking their US work authorization will likely cause high-skilled immigrants to take their skills to competitors outside the United States.

These US employers found some support in Congress. Senators Kamala D. Harris and Kirsten Gillibrand sent a letter to DHS and USCIS opposing rescission of the H-4 EAD, pointing out that the proposed change would disproportionately impact South Asian women (in 2017, 94 percent of H-4 EAD were women and 93 percent were from India).

But the administration has not changed its position. In November 2018, DHS published its mid-year regulatory agenda, which included a proposed rule to revoke the H-4 employment authorization final rule. DHS stated that “[s]ome U.S. workers would benefit from this proposed rule by having a better chance at obtaining jobs that some of the population of the H-4 workers currently hold, as the proposed rule would no longer allow H-4 workers to enter the labor market early.” With record low unemployment levels and US employers already complaining of recruiting problems, it is unclear where the DHS thinks employers will find these US workers.

The new rule, if adopted, is expected to become effective in the first half of 2019 and would impact all 100,000+ individuals currently holding an H-4 EAD. Researchers also estimate that the proposed rule will affect entire families, including the H-1B professionals themselves, because many will not be able to afford to live on one income if their dependent spouse is forced to abandon his or her career. This is especially true in areas such as Seattle and the Silicon Valley, which employ high numbers of H-1B workers and have a high cost of living. Entire families may leave the US, taking their job skills to other countries to compete with their former employers—whose only options to remain competitive may be to outsource the jobs or set up their own offshore facilities. Nearshoring to Canada has become increasingly popular, due to the relatively lower cost of doing business there and proximity to the US.

The direct cost of each failed expatriate assignment is estimated to range from $250,000 to $1 million, according to researchers. More important, the departure of these highly skilled workers represents a brain drain and a significant loss of talent for most companies.

Dentons helps employers develop strategies to recruit the world’s best and brightest to fill posts in the US and abroad. For more information, please contact the authors or your Dentons lawyer.

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Proposed end of H-4 employment authorization likely to affect over 100,000 families

Tier 2 Restricted Certificates of Sponsorship hit quota

Tier 2 Restricted Certificates of Sponsorship (CoS)—which employers use to employ non-EU/EEA nationals in the UK—are scarce.

All Tier 2 Restricted CoS applications that employers lodged before the April CoS allocation meeting on April 11, 2018, were successful, provided they scored 46 points or more. This meant that migrants had to be earning a minimum salary of £50,000. The pressure on the Tier 2 system is due to the drop in the number of EU/EEA migrants coming to the UK to work.

Only 1,975 Restricted CoS were available in the May allocation. Based on recent allocations, this will (again) not be sufficient to meet demand. In April, the Home Office granted 2,193 CoS. April was the fifth consecutive month that the allocation limit was exceeded. Employers across all industry sectors are urging the government to increase the cap amid a growing skills shortage.

Only prioritized applications, such as those on the shortage occupation list, PhD level occupations and where the salary is more than £50,000, will have a chance of success in May. Figures to be released at the end of the month will reveal the true picture.

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Tier 2 Restricted Certificates of Sponsorship hit quota

Trade deals and immigration

How will future trade deals impact UK immigration policy?

With Brexit negotiations between the UK and the European Union progressing, the UK is keen to start trade talks with the EU as soon as possible. While a trade deal with the EU is a priority, other countries, including India and Australia, have expressed that, in the fullness of time, they also would like to negotiate their own trade deals with the UK.

The UK’s Brexit Secretary, David Davis, has stated that he is looking for a “Canada Plus Plus Plus” trade deal with the EU, a reference to the recent deal between the EU and Canada. Labor mobility is a key element of that deal, making it easier for certain skilled professionals from Canada to work temporarily in the EU, and vice versa.

We can also learn from other trade deals:

  • The Trans-Pacific Partnership (TPP) trade deal currently being negotiated between 11 Pacific Rim countries (notably not including the US, which withdrew from the pact) is also looking to include an element of labor mobility. For example, it is proposed as part of this deal that it will be easier for Australian employers to recruit people from Canada, Chile, Japan, Malaysia, Mexico and Vietnam by exempting them from the usual requirement of advertising the role to Australians as part of the immigration process. In return, Australians will get reciprocal access to the labor markets of these six countries.
  • Likewise, one of the outcomes of the Australia-United States Free Trade Agreement (AUFTA), which came into effect in 2005, was the US E-3 visa, which is available only to Australians. The E-3 visa is similar to the H1-B visa, however more generous in that it has a separate quota of 10,500, is renewable indefinitely and has the additional benefit of the spouse of the main visa holder being able to work. In contrast, the H1-B visa has a quota of 65,000 (for applicants of all other nationalities), is capped at six years and the spouse of the main visa holder is not able to work. Singapore and Chile enjoy similar preferential immigration routes to the US as a result of their free trade deals.

One of the key arguments for voting to leave the EU was that the UK would be able to negotiate its own trade deals. So what are our likely trading partners saying?

  • Australia has spoken of the need for “greater access” to the UK for Australian business people.
  • India has already stated that the UK will need to relax immigration rules and make it easier for professionals and presumably students from India to come to the UK.
  • The EU is another matter entirely with many competing priorities and parties. The degree of labour mobility post Brexit will depend on whether we see a “soft Brexit” or a “hard Brexit”, which is still very much to be decided.

What is certain is that any trade deal the UK negotiates after Brexit will be about more than goods and services. Labor mobility will be a key element and it is therefore inevitable that any future trade deals the UK agrees will have an impact on immigration policy.

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Trade deals and immigration

Green card processing times for employment-based immigration expected to increase

Delays and increased processing times can be expected for employer-sponsored immigrants seeking green cards, based on a recently announced change by the US Citizenship and Immigration Services agency (USCIS).

In a press release dated August 28, 2017, USCIS stated that the agency plans, effective October 1, 2017, to begin interviewing employment-based immigrants. This will impact employer-sponsored professionals, skilled workers, executives, manager, and outstanding professors and researchers, as well as individually sponsored immigrants with extraordinary or exceptional ability.

The press release states: “Previously, applicants in these categories did not require an in-person interview with USCIS officers in order for their application for permanent residency to be adjudicated. Beyond these categories, USCIS is planning an incremental expansion of interviews to other benefit types.”

This statement is inaccurate. In fact, the agency used to personally interview all immigrants. Decades ago, the policy changed and employment-based immigrants were only interviewed if a review of the application showed a need for an interview or as a random, quality-control measure. The primary reason for the change was to devote agency resources to more important tasks, after the agency determined the incidence of fraud detected by in-person interviews was not significantly greater than for applications processed without interviews. In addition, waiving the interview process allowed the agency to consolidate processing at regional centers where government workers were better trained in the special requirements for such immigration. Finally, remote processing at regional centers without direct public contact minimized the inconsistent processing experienced at local offices, as well as the incidence of fraud and corruption by government workers in direct contact with the public.

As Sir Winston Churchill famously stated: “Those who fail to learn from history are doomed to repeat it.” Local interview processing times vary, but the new policy is likely to increase by more than four months the time it takes USCIS to process applications for adjustment of status and maybe much longer where local offices with significant immigrant populations, such as Silicon Valley, are doing the processing.

By the way, the State Department has always interviewed all immigrants. Although going this route is more costly in terms of travel and lost US work days, more immigrants and their employers may want to consider this option if USCIS processing times spiral out of control.

The full text of the agency’s press release can be found at the USCIS website and the Executive Order can be found at the White House website.

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Green card processing times for employment-based immigration expected to increase

‘Hire American’ executive order

End of days—or much ado about nothing?

The visa rules that allow US employers to temporarily hire certain foreign professionals is either going to change dramatically…or not, and there will have been much ado about nothing.

President Trump signed the “Buy American and Hire American” Executive Order (EO) on April 18, 2017. This EO does not change any existing law or regulation. It merely calls on the relevant federal agencies to make changes. This means employers can anticipate more, not less, government regulation and new agency policies, limited by US immigration law made by Congress.

Here is the text of the immigration-related components of the EO:

Sec. 5. Ensuring the Integrity of the Immigration System in Order to “Hire American.” (a) In order to advance the policy outlined in section 2(b) of this order, the Secretary of State, the Attorney General, the Secretary of Labor, and the Secretary of Homeland Security shall, as soon as practicable, and consistent with applicable law, propose new rules and issue new guidance, to supersede or revise previous rules and guidance if appropriate, to protect the interests of United States workers in the administration of our immigration system, including through the prevention of fraud or abuse.

(b) In order to promote the proper functioning of the H-1B visa program, the Secretary of State, the Attorney General, the Secretary of Labor, and the Secretary of Homeland Security shall, as soon as practicable, suggest reforms to help ensure that H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries.

It is clear that the EO makes no new rule or change in law, unlike previous EOs like the travel bans. This EO merely instructs the relevant agencies to propose new rules and issue guidance, if appropriate, with the stated goal of protecting US workers and preventing fraud/abuse and suggesting H-1B reforms.

With so little information in the EO, what can employers expect. Limited insights can be gleamed from the backgrounder issued the night before this EO was issued, when the White House held a press briefing.

Enforcement

The EO merely instructs the agencies to issue proposals and guidance to prevent fraud or abuse. The backgrounder does not do much more than explain that the Administration seeks the strict enforcement of all laws governing entry into the US of foreign workers. The EO calls on the Departments of Labor, Justice, Homeland Security and State to take prompt action to crack down on fraud and abuse. The backgrounder states:

And then again, you add that on top of the across-the-board reform process for guest worker and visa programs in general to make sure that they’re strictly complying with all the rules, laws, and protections for American workers, again, which there are many, but there hasn’t been this kind of systematic review. And this is something that the President, if you look, actually promised that he would have the Department of Labor go and do this kind of systematic review and take these kinds of actions.

We will monitor agency actions carefully to see how this develops, but employers are well advised to review the immigration-related records keeping and compliance systems. Annual affirmative audits and trainings are best practices that the Immigration and Customs Enforcement agency looks to when considering whether to reduce fines and penalties for violators. Employers are well-advised to consult with counsel on what steps can be taken now, as well as expected changes that can be planned for.

H-1B visa random selection and wages

The EO instructs these agencies to suggest reforms to ensure that H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries. The backgrounder says that these agencies are expected to report back on proposed ways to change how new H-1B visa petitions are allocated.

Existing rules allocate the limited annual supply of new H-1B visa petitions for most US employers on a random-selection basis. The EO suggests that the foreign worker’s skills and compensation be taken into consideration. Ironically, this would give preference to requests from employers who pay foreign workers more than the average paid to Americans.

The backgrounder acknowledges that some immigration changes can only be made by Congress. Just like the Obama Administration, however, the Trump Administration seems willing to bypass Congress and act unilaterally and not wait for Congress to act.

From the backgrounder:

But you could be looking at things on the administrative side, like increasing fees for H1B visas.  You could be looking at things like if we could adjust the wage scale—a more honest reflection of what the prevailing wages actually are in these fields. Obviously, taking a more vigorous stance, which various—in the Department of Justice do with respect to enforcing gross and egregious violations of the H1B program. You could see potential—and again, we’ll have to get a full legal analysis and review from all the departments, but right now the lottery system disadvantages master’s degree holders. There’s ways that you could adjust the lottery system to give master’s degree holders a better chance of getting H1Bs relative to bachelor’s degree holders. There’s a lot of possible reforms that you could do administratively in addition to a suite of legislative actions.  

There is no change in the H-1B random selection process, which is already concluded for fiscal year 2018. Changes can reasonably be anticipated for fiscal year 2019 filings in April 2018. What skills, wage offers, or other factors will impact the likelihood of selection remains to be determinedassuming that the status quo changes at all.

We will continue to share more information and analysis as the law evolves.

The full text of the EO is published on the White House web site; click here to read the backgrounder press release. To read the President’s remarks on signing the EO click here.

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‘Hire American’ executive order

New H-1Bs for 2018 are gone

 

 

US employer demand once again greater than limited supply

United States Citizenship and Immigration Services (USCIS) once again received more H-1B visa petitions (for professional workers) from US employers than the limited supply allocated by Congress for fiscal year 2018.

The agency reported receiving 199,000 petitions during the first five business days of April—37,000 fewer than last year—the first time in years that the number of petitions has fallen.

The selection process was completed on April 11, but the agency did not announce by what date all accepted petition fee receipts would be issued, unselected cap-subject petitions returned with the uncashed filing fee checks, and approval notices for granted petitions sent.

As in years past, USCIS will reject and return filing fees for all unselected petitions that are not duplicate filings. Last year, most returns were received by June.

Congress authorizes USCIS to granted 65,000 H-1B visa petitions per fiscal year, plus an additional 20,000 petitions earmarked only for foreign nationals who earned a graduate degree from an American university. FY2018 starts October 1, 2017. For both of these quotas, the demand was greater than the supply, but USCIS has not provided a breakdown for each.

Certain H-1B visas remain available and USCIS will continue to accept and process petitions to:

  • Approve H-1B status to an individual coming to work for an employer that is exempt from quota limitations—generally the US government, American universities and certain related or nonprofit organization
  • Approve H-1B status to an individual counted previously against the cap and who is not subject to the FY2018 cap
  • 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
  • Allow current H-1B workers to change employers
  • Allow current H-1B workers to work concurrently in a second H-1B position

The full text of the agency’s press release can be found at the USCIS website.

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New H-1Bs for 2018 are gone

Tier 2 immigration skills charge – another fee to pay

As part of the government plans to reduce Britain’s reliance on migrant workers, from April 6, 2017 employers may have to pay an immigration skills charge of £1,000 per employee.

The skills charge will apply to a sponsor of a Tier 2 worker assigned a certificate of sponsorship in the “General” or “Intra-Company Transfer” route and who applies from:

  • outside the UK for a visa
  • inside the UK to switch to this visa from another
  • inside the UK to extend their existing visa

The skills charge does not apply if you are sponsoring:

  • a non-EEA national who was sponsored in Tier 2 before April 6, 2017 and is applying from inside the UK to extend their Tier 2 stay with either the same sponsor or a different sponsor
  • a Tier 2 (Intra-Company Transfer) graduate trainee
  • a worker to do a specified PhD level occupation
  • a Tier 4 student visa holder in the UK switching to a Tier 2 (General) visa
  • Tier 2 family members (“dependants”)

As the charge applies to the sponsor and not the individual, if a sponsor has paid it in respect of an individual who then seeks to change sponsor, the new sponsor will also be required to pay the levy.

A lower rate of £364 per certificate of sponsorship applies for smaller sponsors and charities. You will usually be considered a small business if:

  • your annual turnover is £10.2 million or less
  • you have 50 employees or fewer

The charge is in addition to all other application fees. Its purpose is to cut down on the number of businesses taking on migrant workers and to incentivize employers to train British staff to fill those jobs.

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Tier 2 immigration skills charge – another fee to pay

Important new regulations for immigrant workers

The US Citizenship and Immigration Services (USCIS) published important new regulations for immigrant workers on November 18, 2016. The regulations become effective January 17, 2017.

Summary

The agency has amended its regulations to provide benefits to those in the employment-based first (EB1), second (EB2) and third (EB3) immigrant visa categories and their employers. The agency’s stated goal is to improve processes and increase certainty for employers seeking to employ and retain such workers, provide greater job flexibility for those workers, and clarify relevant Department of Homeland Security (DHS) policies.

New Rules

There are a number of new regulations, some of which adopt current agency policy and others that are new. The following are some of the most important ones.

For occupations in which a license is required (e.g., doctor, lawyer, etc.), the USCIS will grant the H1B visa for up to one year, if the only obstacle to license issuance is lack of a Social Security number.

For the purpose of counting the number of days spent in the US in H1B visa status towards the normal six-year limit, the USCIS will consider any twenty-four-hour period spent outside the US as one day, regardless of the reason for the absence.

A former H1B visa holder who is no longer in H1B visa status, and regardless of whether he or she is in the US or abroad, may seek an exemption from the normal six-year limit. The foreign worker must be otherwise eligible and the beneficiary of an approved EB1, EB2 or EB3 petition for whom the visa is not current under the quota system as of the date that the H1B petition is filed.

Lengthy adjudication delays of permanent resident status will not support an extension of H1B status beyond the normal six-year limit if the immigrant fails to file for permanent residence or an immigrant visa within one year of the visa becoming current under the quota system. If the visa becomes unavailable again, a new one-year period will be afforded when an immigrant visa again becomes available. The USCIS may also in its discretion excuse failure to timely file upon a showing that the failure was due to circumstances beyond the immigrant’s control.

Credible documentation that an H1B visa worker faced retaliatory action from the sponsoring employer regarding a violation of that employer’s H1B labor condition application obligations may be considered by the USCIS as grounds to grant an extension of H1B stay, or a change of status to another visa classification, notwithstanding the worker’s loss of, or failure to maintain, his or her H1B status.

The definition of “same occupational classification” for purposes of establishing the portability of immigrants to new jobs, has been modified to mean an occupation that resembles in every relevant respect the occupation for which the EB petition was originally granted. “Similar occupational classification” is now defined as an occupation that shares essential qualities or has a marked resemblance or likeness with the original occupation. This guidance is similar to what agency memoranda have already stated.

Employment eligibility verification regulations are amended to authorize employers to accept as proof of employment eligibility Form I-797C and also state that the original employment authorization document is automatically extended for up to 180 days. This is a new rule and will help employers.

Background

The US limits the number of employment-based immigrants annually, by both visa category and country of birth. The quota allocation set in 1990 has never been increased. The annual supply for most categories and countries of birth seems sufficient to prevent lengthy waiting periods; the greatest source of delay are USCIS and Department of Labor (DOL) agency processing times.

The most significant exceptions are for immigrants born in India and mainland China. So many employment-based immigrants born in those two countries are in the queue that waiting periods of for most immigrant visa categories now are many years.

Employer-sponsored EB visas tend to be for specific jobs, at specific work sites, with stated duties and compensation. In general, sponsoring employers and immigrant workers must intend after immigration is complete to work in the same job at the same work site with the same duties for the same (or similar) compensation.

Congress addressed this problem in the American Competitiveness in the 21st Century Act of 2000 (AC21). The USCIS (and its predecessor, the Immigration and Naturalization Service) issued implementing policy guidance, which has been clarified and revised over the years.

The lengthy processing delays were also a problem for H1B professional workers, since there is normally a limit of only six years of status. AC21 provided for extensions beyond the six-year limit.

The EB1 immigrant visa category includes individuals of extraordinary ability, outstanding professors and researchers, and multinational managers and executives. The EB2 category is for professionals with advanced degrees and individuals with exceptional ability. The EB3 category is for professionals and skilled workers, while the EB3W category is for other workers in short supply.

Read the full text of the new regulations here.

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Important new regulations for immigrant workers