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New Form I-9 and E-Verify User Manual for US employers

The US Citizenship and Immigration Services (USCIS) issued a revised Form I-9 and E-Verify User Manual. Employers should use the new Form I-9 for all new hires and for re-verification of current employees when their temporary employment authorization expires.

Form I-9 is used for verifying the identity and employment authorization of individuals hired for employment in the United States. All employers must ensure proper completion of Form I-9 for each individual they hire for employment in the United States, citizens and noncitizens included.

USCIS, which is an agency under the US Department of Homeland Security (DHS), operates the E‑Verify program, an Internet-based system that allows any US employer to electronically verify the employment eligibility of a newly hired employee.

E-Verify is a voluntary program. However, employers with federal contracts or subcontracts that contain the Federal Acquisition Regulation (FAR) E-Verify clause are required to enroll in E-Verify as a condition of federal contracting. E-Verify is also a requirement for employers of F-1 foreign students employed under STEM Optional Practical Training. Further, employers in states that have enacted legislation require some or all employers to utilize E-Verify as a condition of business licensing.

The new Form I-9 is available at the USCIS website. The new E-Verify User Manual is available for download here.

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New Form I-9 and E-Verify User Manual for US employers

The rights of EU citizens in the UK

The UK government has published a policy paper setting out its offer to EU citizens and their families residing in the UK regarding their right to remain in the country post-Brexit. The offer differs depending on how long a person has been in the UK.

People who have been continuously living in the UK for five years will be able to apply to stay indefinitely by getting “settled status.” A settled status residence document will be issued to prove an individual’s permission to continue living and working in the UK. Those already with an EU permanent residence document will be required to apply. The application process should come online before the UK leaves the EU, hopefully in 2018. The government has pledged to make the process as streamlined and user-friendly as possible.

Other EU citizens in the UK will be subject to a “cut-off date” after which they will no longer be automatically entitled to stay. The date is still to be negotiated, but may fall at any point between March 29, 2017 (the date that Article 50 was triggered) and the date that the UK leaves the EU.

EU citizens who arrived in the UK before the cut-off date, but who have not been here for five years when the UK leaves the EU, will be able to apply to stay temporarily until they have reached the five-year threshold, at which time they also can apply for settled status as set out above.

EU citizens who arrive in the UK after the cut-off date will be able to apply for permission to remain after the UK leaves the EU, under future immigration arrangements for EU citizens. The arrangements have yet to be determined, but the government stated that there should be no expectation by this group of people that they will obtain settled status.

Please visit The Global Mobility Review next month for further information on this development.

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The rights of EU citizens in the UK

US proposes new immigration status for international entrepreneurs

Start up

In addition to the many legal solutions already in place to make visas and other immigration opportunities available to qualified entrepreneurs, there will be an additional way to allow entrepreneurs to live and work in the United States for up to two years if a new rule proposed by the US Citizenship and Immigration Services (USCIS) on August 26, 2016, goes into effect. Savvy entrepreneurs will continue to make use of existing law whenever possible, but the proposed International Entrepreneur Rule could create a much needed important new immigration benefit.

The key provisions of the new rule include:

  • DHS may grant the parole in the exercise of its discretionary authority on a case-by-case basis if the evidence shows that the applicant’s presence in the US will provide a significant public benefit;
  • The applicant must submit biometric information and may be denied if there is any derogatory information, such as criminal activity or national security concerns; and
  • The startup must have been formed in the US within the past three years; and
  • The startup must have substantial and demonstrated potential for rapid business growth and job creation, as shown by any of the following:
    • At least $345,000 in capital investment from certain qualified investor(s) with established records of successful investments within 365 days immediately preceding the parole application; or
    • Receipt of significant awards or grants of at least $100,000 from certain federal, state or local government entities within 365 days immediately preceding the parole application; or
    • Partial satisfaction of one or both of the above, plus other reliable and compelling evidence of the startup’s substantial potential for rapid growth and job creation.
  • The applicant must have an ownership interest in the startup of at least 15% and must maintain at least 10% ownership at all times during the parole; and
  • The applicant must have a role that is both active and central to operations that uses the applicant’s knowledge, skills or experience to substantially assist the startup.

“Qualified investor” includes an investor who is a US citizen or lawful permanent resident, or any organization located in the US that operates through a legal entity organized under the laws of the US or any state and is majority owned and controlled, directly or indirectly, by US citizens and residents, but only if such investor regularly makes substantial investments in startups that subsequently exhibit substantial growth in terms of revenue or jobs creation. Further, the investor must, during the five preceding years:

  • Have made investments in startups, in exchange for equity or convertible debt, in at least three separate calendar years comprising a total of not less than $1 million; and
  • At least two of these startups must each have:
    • Created at least five qualified jobs of at least 35 hours per week, in the US and for a US citizen, resident or other immigrant (not including the applicant and the applicant’s parent, spouse, sibling, son or daughter); or
    • Generated at least $500,000 in revenue with average annualized revenue growth of at least 20%.

Not counted as part of the $345,000 investment requirement is any investment by the applicant, or the applicant’s parents, spouse, brother, sister, son or daughter, or any company in which the applicant or those relatives, directly or indirectly, has an ownership interest.

The applicant entrepreneur and his or her spouse and children would be granted an initial stay of up to two years. An extension of the initial stay of up to three additional years is available, but only if the applicant and the startup continue to provide a significant public benefit as shown by substantial increases in capital investment, revenue or job creation. DHS’s proposed additional requirements for the extension generally require additional qualifying investment, creation of at least 10 qualified jobs, or generation of $500,000 in annual revenue, and annual revenue growth averaging 20%.

The proposed rule expressly states that there is no appeal from a denial, nor will the agency consider a motion to reopen or reconsider a denial decision.

The proposed new rule is not any type of immigrant visa or green card, nor is it a new type of temporary visa. Rather, the DHS is utilizing its discretionary parole authority As a way to authorize qualified foreign nationals to travel in and out of the US without a visa. A grant of parole does not confer immigrant status and does not allow a change to another temporary visa status within the US or an adjustment to a permanent resident (green card) status within the US. Parolees are not automatically authorized for employment in the US, but may apply to the USCIS for an Employment Authorization Document (EAD).

Parole authority to allow temporary entry to the US is not new. It is often used for humanitarian reasons, such as to allow aliens to receive urgent medical treatment, to visit a seriously ill American relative or attend an American relative’s funeral, to cooperate with law enforcement, to participate in a voluntary disaster relief effort, etc. However, given the unusual application of the parole authority to international entrepreneurs instead of creating a new visa classification through legislative action and especially in the current US election period, the future of this proposed application of parole authority is very unclear. Other extraordinary uses of agency authority by the DHS have been delayed and halted by court order. It is disappointing that the agency chose to use this controversial approach to solve the very important need the US has for better immigration solutions for entrepreneurs.

There is a 45-day public comment period from the date that the proposed rule is published in the Federal Register. The USCIS may change the terms of the proposed rule after review of the public comments. The agency did not state when a final rule will be issued, but there is little time in the current administration and the long-term future of this proposal very much depends on the position taken by next Presidential administration.

Read the full proposed rule at the USCIS website.

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US proposes new immigration status for international entrepreneurs

Good news for US employers and foreign students—DHS STEM OPT extension rule published

STEM 2

On October 19, 2015, the US Department of Homeland Security published the much anticipated proposed new regulation authorizing the amendment of F-1 student visa regulations regarding employment authorization for foreign students. This will give much needed relief to US employers and the foreign students who work for them.

Since 2008, F-1 foreign student visa holders who graduate from US universities with a degree in science, technology, engineering or math (STEM) degrees are eligible to apply for 17 months of employment authorization in the US beyond the 12 months normally available. In addition, the 2008 regulatory change allowed F-1 students to apply for optional practical training (OPT) employment authorization up to 60 days after completion of the academic program. Finally, the 2008 change addressed the “Cap-Gap” program by making available additional employment authorization to F-1 OPT holders who are beneficiaries of H-1B temporary worker change of visa status petitions beginning on October 1 whose employment authorization would otherwise expire prior to September 30.

On August 12, 2015, the Washington, DC federal district court in Washington Alliance of Technology Workers v. USDHS found that the DHS violated the Administrative Procedures Act in 2008 when DHS first created the STEM OPT regulation without the notice and comment period required by law. The court stayed its ruling to February 12, 2016, to give DHS time to take corrective action to minimize “substantial hardship for foreign students and a major labor disruption for the technology sector.”

The court effectively gave DHS until December 14, 2015, to publish a final regulation to correct the error (with some exceptions, a proposed regulation must be published a minimum of 60 days prior to a final regulation). That means the DHS should have published the proposed regulation no later than October 15. Failure to do so increases the chance of disruption. That said, the case was appealed to the Court of Appeals for the District of Columbia Circuit and DHS attorneys will likely ask the appellate court to stay the lower court order and suspend the February deadline.

For the complete text of the DHS proposed rule.

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Good news for US employers and foreign students—DHS STEM OPT extension rule published

USCIS received 233,000 FY 2016 H-1Bs: 148,000 more than the maximum quota

visa image

The US Citizenship and Immigration Services agency (USCIS) announced that the agency received nearly 233,000 new H-1Bs subject to the 85,000 quota limit for fiscal year 2016. The agency also announced that no later than May 11, 2015, the agency will resume the optional 15-day, $1,225 premium processing of quota-subject H-1Bs.

US law allows for the approval of up to 65,000 new H-1Bs subject to quota limits for each fiscal year, plus an additional 20,000 new H-1Bs that are only for individuals who earned an advanced degree from an American university. When more than the authorized number are received during the first five business days of April, the agency then randomly selects the lucky winners, choosing first 20,000 from those with advanced degrees. All unselected advanced degree petitions are then part of the selection process for the 65,000 quota. The USCIS has not yet announced how many of the petitions received were for individuals with advanced degrees.

The agency did not announce when fee receipts would be issued for the H-1Bs selected or when the non-selected petitions would be returned. Based on prior years, this seems likely to happen during the  last week of April and through May.

The full text of the USCIS announcement can be found at the USCIS web site.

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USCIS received 233,000 FY 2016 H-1Bs: 148,000 more than the maximum quota

Permit Me to Explain – Work Permits and LMIAs for Foreign Actors

Media-(ThinkStock)

As much as we Canadians (justifiably) boast about our homegrown talent, there is no hiding the fact that to maximize the quality of our music, TV, and film we sometimes need an assist from outside our borders.  For instance, you are a producer of a multimillion dollar film shooting in Canada and want to hire a specific non-Canadian actor to play the sister of the film’s protagonist: can you simply hire the performer?  Like many legal questions, the answer is (unfortunately) “it depends.”

When attempting to determine whether an employer may hire a foreign performer, the first question to be asked is what type of performer are they?  Some categories of performers need to obtain a work permit prior to performing in Canada[1]; other categories of performers, set out in Section 186 of the Regulations to the Immigration and Refugee Protection Act (the “Regulations”), are exempt from the requirement. On June 20, 2014, amendments were made to the Regulations, which revised the list of performers in the “exempt” category.  The list of exempt non-Canadian performers includes:

  •  musicians in a band performing several tour dates in Canada;
  • guest conductors and artists performing with Canadian productions or groups for a few performances;
  • actors in foreign touring theatrical productions;
  • professional wrestlers and circus performers in foreign touring productions;
  • musicians and buskers coming to Canada to perform in festivals;
  • support crew and other workers who are integral to a live production; and
  • disc jockeys coming to Canada to work at private events, festivals, concerts and fairs.[2]

Setting aside the (puzzling) grouping of professional wrestlers with circus performers, producers and their counsel will note the continued omission of film and television actors from this list; something emphasized by section 186(g) of the Regulations which includes the wording:

A foreign national may work in Canada without a work permit as a performing artist appearing alone or in a group in an artistic performance – other than a performance that is primarily for a film production or a television or radio broadcast.[3] [Emphasis Added]

So, at this point we know that any non-Canadian actor participating in any film or TV production will be classification as a temporary foreign worker (“TFWs”) and must obtain a work permit.  The work permit allows TFWs to work in Canada to perform a specific service for a designated employer for a defined period of time.  To obtain a work permit, performers may apply at a Citizen and Immigration Canada visa office[4] or at a Canadian port of entry (in the case of citizens of contiguous states).  So, is a work permit all that is required for producers to hire a non-Canadian actor?  Yet again, the answer is “it depends.”  The producer may, in addition to obtaining a work permit for the actor, be obliged to complete a Labour Market Impact Assessment (“LMIA”).  Whether an LMIA is required is dictated by (a) whether the performance is for (i) film; or (ii) TV; and (b) whether or not the production is a Canadian co-production.

If the performer is being brought into Canada to perform in a certified Canadian co-produced film (i.e. commonly referred to as a “treaty co-production”)[5] [6], then the producer of the film is not required to complete an LMIA.  For non-Canadian performers appearing on a (a) film; or (b) TV series, that is not a Canadian co-production, then an LMIA will be required in order to determine whether a work permit will be granted (and the length of the work permit).  The LMIA is performed by Employment and Social Development Canada (“ESDC”)[7] and is meant to evaluate whether the employment of the non-Canadian performer is likely to have a positive or negative effect on the Canadian labour market.  To commence the LMIA process, the producer submits a completed LMIA[8] [9] to Service Canada.  Employers may also create an account with the TFW Web Service[10] which allows them to submit their LMIA application online and monitor its ongoing status.

When it comes to television series, the situation is less clear. There is some ambiguity in the wording on the ESDC website: the wording specifically mentions an LMIA exemption for “actors and workers on a film co-production between Canada and a foreign country”[11]; but elsewhere on the same page, reference is made to “film” and “television”, hinting that the absence of “television” in the description of the LMIA exemption indicates a deliberate intention to not include television co-productions as being eligible for the LMIA exemption.  However, producers we have spoken to have relayed that, as a practical matter, they have qualified for this LMIA exemption for Canadian co-produced television productions.  Producers seeking to utilize this exemption may wish to submit a LMIA exemption request to Service Canada who will provide the producer with an opinion as to whether they qualify.[12]

At some point along the way, the budget-conscious producer (i.e. any producer) reading this article must be wondering about costs.  The June 20, 2014 amendments previously mentioned increased the LMIA application fee from $275 to $1,000.  Despite this over 350% increase, likely of greater significance is that the June 20th amendments increased the processing time for LMIA applications.[13]  The ESDC website currently states that LMIA applications will be processed within 10 business days.  This could potentially be problematic for producers who find themselves in a situation whereby the casting of a performer takes place less than two weeks prior to that performer’s first day of principal photography.  Concern may be further magnified if the performer is needed for pre-production activities.

Apprehensive that this processing time may harm productions in Canada, in mid-July members of the film and TV community met with federal immigration Minister Chris Alexander.  It was reported that during this meeting Minister Alexander gave assurances that film and TV productions facing time constraints would receive quick and efficient services in regard to their LMIA applications.  Speaking with colleagues, and barring some initial hiccups, Mr. Alexander has seemingly been good to his word.  Despite a 10 business day processing period, those administering the LMIA application process appear cognizant of the time sensitive nature of film and TV productions.

Although there is reason to expect continued expedient LMIA application processing, producers who are required to complete an LMIA should remain mindful of the 10 business day timeline.  When completing one’s LMIA application[14] careful attention should be given to box 4 on page 3 entitled “Expected employment start date”.  Producers would be wise to give themselves flexibility.  Performers at one time not considered necessary for pre-production may later be needed prior to principal photography or perhaps shooting schedules may change such that Actor #8 is now an “SW”[15] on the Day 2 call sheet as opposed to Day 6.  As unforeseen events are inevitable during the production process, when completing box 4 producers should ensure that either (a) they are 100% certain the performer is not needed any earlier than the start day written on the LMIA; or (b) give themselves some flexibility in choosing a date in order to provide for unpredicted delays or changes in schedules.

 

Summary of Requirements for Different types of Performers

Type of Performer

Work Permit Required

LMIA Required

Actor in Film (Canadian co-production)

Yes

No

Actor in Film (Not Canadian co-production)

Yes

Yes

Actor in TV Series (Canadian co-production)

Yes

ESDC wording is unclear, but we hear they are treated like film actors

Actor in TV Series (Not Canadian co-production)

Yes

Yes

[Many thanks to articling student Ben Iscoe for his invaluable assistance in researching and writing this post.]

[1] Immigration and Refugee Protections Regulations <http://laws-lois.justice.gc.ca/eng/regulations/SOR-2002-227/>.  See section 8(1) A foreign national may not enter Canada to work without first obtaining a work permit.  See also section 8(2) which states [s]ubsection (1) does not apply to a foreign national who is authorized under section 186 to work in Canada without a work permit.  Provisions of section 186 to be discussed.

[2] Employment and Social Development Canada <http://www.esdc.gc.ca/eng/jobs/foreign_workers/higher_skilled/film//index.shtml>.

[3] See Section 186(g) of the Regulation to the Immigration and Refugee Protection Act <http://laws-lois.justice.gc.ca/eng/regulations/SOR-2002-227/>.

[4] Citizen and Immigration Canada Offices <http://www.cic.gc.ca/english/information/offices/index.asp>.

[5] A co-production appears to need Telefilm certification to qualify for the exemption.  For more information on Telefilm certification, visit “http://www.telefilm.ca/en/coproductions/coproductions/guidelines”.  Once certified, for assistance bringing performers into Canada to work on the co-production, visit “http://www.telefilm.ca/document/en/04/ProcedureImmigrationversionanglaise.pdf”.   This latter link provides helpful guidance; including offering a template letter that will may be used by Telefilm if Canadian authorities contact them to confirm information.

[6] Citizen and Immigration Canada does not define “film.”  A feature length live action production seems to be the template format, but for other formats (e.g. episodic television series, movie of the week, short film, animated film, etc.) a producer will likely have to submit a LIMA exemption request.  For information on submitting a request see “http://www.cic.gc.ca/english/work/employers/lmo-basics.asp”.

[7] Employment and Social Development Canada <http://www.esdc.gc.ca/eng/home.shtml>.

[8] The LMIA form may be found on the Employment and Social Development Canada website <http://www.servicecanada.gc.ca/eforms/forms/esdc-emp5517(2014-11-019)e.pdf>.

[9] Please note that “[e]mployers in the Film and Entertainment sector are exempt from the recruitment and advertisement requirements.”  Employment and Social Development Canada <http://www.esdc.gc.ca/eng/jobs/foreign_workers/higher_skilled/film/index.shtml>; see “Recruitment and Advertisement” tab.

[10] Employment and Social Development Canada <http://www.servicecanada.gc.ca/eforms/forms/esdc-emp5536(2014-01-003)e.pdf>.

[11] Employment and Social Development Canada <http://www.esdc.gc.ca/eng/jobs/foreign_workers/higher_skilled/film//index.shtml>.

[12] For information on submitting a request see “http://www.cic.gc.ca/english/work/employers/lmo-basics.asp”.

[13] Mas, Susana.  “Temporary Foreign Workers: Film, TV industry assured timely permits.”  CBC.ca. July 18, 2014 <http://www.cbc.ca/news/politics/temporary-foreign-workers-film-tv-industry-assured-timely-permits-1.2710488>.

[14] A link to the LMIA form may be found under footnote 8.

[15] An acronym standing for “Start Work” and indicates the performer’s first day of principal photography.

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Permit Me to Explain – Work Permits and LMIAs for Foreign Actors

Canadian Government Revamps the Temporary Foreign Worker Program

With the government’s focus on “Canadians First” for Canadian jobs, the requirements to hire temporary foreign workers were revamped to make the hiring of foreign workers, and in particular low skilled / low wage foreign workers, more difficult for employers.

For employers that utitlize labour market opinions (now known as labour market impact assessmentsLMIA), one of the biggest changes is the increased application fee that is now $1000 per position (up from $275) with the potential of an additional $100 “privilege fee” to be added. For those employers wishing to employ “high skilled / high wage” foreign workers, a Transition Plan will need to be submitted with LMIA applications. For those employers wishing to hire “low skilled/ low wage” foreign workers, the ability to hire foreign workers will be tied to the unemployment rate in the region they wish to hire the foreign workers and there will be caps placed on the number of such applications an employer can request. The duration of LMIAs issued for such workers in Canada will also decrease to one year increments.

For employers that utilize the LMIA exempt work permit categories (now known as International Mobility Program) including work permits under international agreements such as NAFTA or GATS, there will be additional application fees that will take effect in the summer of 2015. These include the Employer Compliance fee of $230 for employer specific work permits and $100 privilege fee for open work permits. There will also be a requirement for employers to submit these job offers directly to Citizienship and Immigration Canada (CIC), however, the logistics of this requirement are still not known for those foreign workers eligible to apply at the port of entry. The provincial agreements with the Canadian government which have allowed for specific positions in certain provinces to be LMIA exempt will also be phased out and/or reassessed early next year.

The government will ensure employer compliance to the foreign worker programs with frequent audits and investigations by Service Canada (ESDC), CIC and Canada Border Services Agency and the government will heavily sanction employers found to be abusing the system.

Although more specific details will be provided in the coming weeks on the practical implications of the programs, a detailed summary of the changes can be found on the Government of Canada’s website at: http://news.gc.ca/web/article-en.do?nid=859859&_ga=1.156784699.1455899918.1369168661

Stay tuned for more details to come…

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Canadian Government Revamps the Temporary Foreign Worker Program

Employment and Social Development Canada Minister Jason Kenny announces moratorium on the Food Service’s Sector’s access to the Temporary Foreign Worker Program

fastfood_canada

Recent media coverage in Canada showed certain fast food restaurants misusing the Temporary Foreign Worker Program.  In response Canadian Employment Minister Jason Kenny announced an immediate moratorium on the Food Services Sector’s access to the program. Effective April 24, 2014, Employment and Social Development Canada (ESDC) stopped processing any new or pending LMO applications related to the Food Services Sector, and any unfilled positions related to a previously approved LMO were suspended.

No word on when the moratorium will end, as it will remain in effect until the Temporary Foreign Worker Program has been reviewed.

Read this complete article to learn more.

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Employment and Social Development Canada Minister Jason Kenny announces moratorium on the Food Service’s Sector’s access to the Temporary Foreign Worker Program

Canadian government shuts down access to work permits for Food Service Industry in Canada

The Canadian government has placed a moratorium on issuing labour market opinions for jobs in the food service industry following media reports on employer abuse of the temporary foreign worker program. Employers in the food service industry will no longer be able to hire foreign workers who require a labour market opinion to support their work permits. Employers who have applications pending or have received LMO approvals but work permits have not yet been issued to the foreign nationals will be suspended.

http://www.cbc.ca/news/canada/british-columbia/temporary-foreign-worker-program-for-fast-food-sector-suspended-by-ottawa-1.2621385

As the Canadian government continues to make immigration policies based on news headlines, we can certainly anticipate more changes to the temporary foreign worker program. Stay tuned!

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Canadian government shuts down access to work permits for Food Service Industry in Canada