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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

Criminal record check for Tier 2 UK migrants

uk-intracompany

From April 6, 2017, individuals applying to come to the UK to undertake certain jobs will be subject, along with any adult dependants (over the age of 18 years old) applying with the main applicant, to the requirement under the Immigration Rules to produce a criminal record certificate. The certificate must be produced from any country in which the applicant has been resident for 12 months or more, consecutively or cumulatively, in the previous 10 years.

Effective January 1, 2017, sponsors must inform prospective employees at the point they assign their Certificate of Sponsorship (CoS) that they may become subject to this requirement by the time they make their application. This will enable them to begin seeking certificates where needed at the earliest opportunity, and to lodge a complete application for entry clearance sooner.

Affected job titles are:

  • Dental practitioners
  • Education advisers and school inspectors
  • Further education teaching professionals
  • Health professionals not elsewhere classified
  • Health services and public health managers and directors
  • Medical practitioners
  • Medical radiographers
  • Midwives
  • Nurses
  • Occupational therapists
  • Ophthalmic opticians
  • Pharmacists
  • Physiotherapists
  • Podiatrists
  • Primary and nursery education teaching professionals
  • Probation officers
  • Psychologists
  • Secondary education teaching professionals
  • Senior professionals of educational establishments
  • Social services managers and directors
  • Social workers
  • Speech and language therapists
  • Teaching and other educational professionals not elsewhere classified including Special needs education teaching professionals
  • Therapy professionals not elsewhere classified
  • Welfare professionals not elsewhere classified

The requirement to produce a criminal record certificate already applies to those applying under Tier 1 (entrepreneur) or Tier 1 (investor) and any adult dependant relative of the main applicant in either of these categories.

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Criminal record check for Tier 2 UK migrants

Byron Burger: A cautionary tale?

UK Border Controls

Popular UK “posh” burger chain Byron Burger has been at the center of a media flurry over the past week or so, as 35 members of its staff were rounded up and arrested in a controversial immigration sting. The controversy largely relates to Byron’s involvement in the sting.

The UK Home Office confirmed that on the morning of 4 July 2016, immigration officers raided Byron branches and arrested 35 “migrant workers” of Albanian, Brazilian, Egyptian and Nepalese nationality. In the initial reports, a senior manager in one of the branches alleged that staff, some of whom had been employed by Byron for as long as four years, had been falsely duped by Byron into attending a health and safety meeting at 9:30 a.m., when immigration officials quickly arrived and started to interview people.

Byron has confirmed that it facilitated the raid at the Home Office’s request but has refused to respond to the claims that it set up the staff meetings on false pretenses. Sometimes silence speaks a thousand words, as they say.

As such, in amongst the few messages of support for Byron, the critics have shouted louder, calling for a boycott of the chain. Two London branches have already been targeted in the backlash, where activists went so far as to release cockroaches and locusts into the restaurants, forcing them to be closed to customers.

But what are the rights and wrongs of this incident? First, the Home Office has acknowledged that Byron complied with its legal obligations, in particular its obligation to carry out “right to work” checks. The Home Office has issued guidance on what checks UK employers need to carry out on new workers (https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/536953/An_Employer_s_guide_to_right_to_work_checks_-_July_16.pdf). Provided that an employer has carried out the appropriate checks, it will have a statutory excuse against liability for a civil penalty if it later comes to light that any worker has been working illegally in the UK. Employers must therefore ensure that the necessary checks are carried out, as the penalty for failure to do so (up to £20,000 for each illegal worker) could be substantial.

The issue with the Byron workers is that, in the course of its own investigation, the Home Office identified that those workers at the center of the alleged immigration breaches had provided false or counterfeit documentation as proof of their right to work in the UK. The Home Office then made a specific request to Byron to assist it with its investigation, which Byron did.

Perhaps, then, the PR nightmare that is the Byron story should be treated as a cautionary tale of how not to assist in a Home Office investigation. The recent trend seems to show that the Home Office is really cracking down on illegal workers and, accordingly, Home Office investigations are likely to become a live issue for a number of employers. Employers need to balance their legal obligations against their more human responsibilities to their staff.

No one is condoning illegal working or the falsification of documentation. However, arguably, if Byron had dealt with the issue more sensitively and compassionately, it could have mitigated the negative press it received. In an era when people have the world at their fingertips, consumers are calling out to see the human face of business.

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Byron Burger: A cautionary tale?

Changes to Canadian Work Permit Categories for Television/Film and Performing Arts

Film photo

The Canadian Department of Immigration, Refugee and Citizenship Canada (“IRCC”) has announced two new Labour Market Impact Assessment (LMIA) exempt work permit categories for foreign nationals working in television and film or the performing arts.

Starting on February 17, 2016, the two new LMIA exemption categories will allow for certain foreign nationals to apply for a work permit without first having to apply to the Temporary Foreign Worker program for an LMIA. These work permit categories will now be governed under the International Mobility Program.

Television and Film (C14 Exemption – Significant Benefit)

Foreign nationals working in the TV and Film industry who hold positions that are essential to a TV or film production may be eligible to apply for a work permit directly at the port of entry (for TRV exempt nationals) or to a Canadian visa office abroad without first obtaining an LMIA. This new exemption will allow Canada to continue to attract high value TV and film productions to Canada, creating significant economic benefits and opportunities for Canadians. This exemption will apply to both Canadian productions and foreign productions.

To qualify, the positions must be considered to be “high wage” and are often unionized. In British Columbia a high wage position is considered to be an amount above $22.00 /hour and in Ontario, high wage is an amount over $21.15. See all provincial wage thresholds at: http://www.esdc.gc.ca/en/foreign_workers/hire/median_wage/index.page

Employers will be required to file an “Offer of Employment for LMIA Exempt Work Permits” with IRCC and pay a compliance fee of $230 before the work permit application is made. The Offer of Employment must be filed in advance and proof of filing will be required for the foreign national to make their work permit application.

To support the work permit application, the production must provide a support letter outlining some general information in relation to the production, a statement that the foreign worker and the position to be held by the foreign worker is essential to the production, and details on the economic benefit of the production to Canada (including the number of Canadians created by the production, the estimate budget to be spent in Canada and a statement confirming that the production satisfies the criteria for federal or provincial tax credits or is the recipient of federal or provincial funding). The production must also provide a letter of support from the applicable union.

For further details, please see: http://www.cic.gc.ca/english/resources/tools/temp/work/opinion/imp-c14.asp

Performing Arts (C23 – Reciprocal Employment)

Foreign nationals working as key creative personnel and talent associated with non-profit performing arts organizations involved in theater, opera, orchestras, and dance may be eligible for this LMIA exempt work permit. This new exemption will allow for foreign nationals to apply for work permits in the performing arts if they can demonstrate reciprocal opportunities for Canadians outside of Canada in the same discipline. A one to one ratio of reciprocity does not have to be proven, rather a general statement affirming that reciprocity has been known to exist with an explanation of how the organization plans to allow for opportunities for Canadians outside of Canada.

Employers will be required to file an “Offer of Employment for LMIA Exempt Work Permits” with IRCC and pay a compliance fee of $230 before the work permit application is made. The Offer of Employment must be filed in advance and proof of filing will be required for the foreign national to make their work permit application.

To support the work permit application, the performing arts organization will be required to provide a support letter outlining the reciprocity for Canadians abroad in the specific discipline, a copy of the job offer to the foreign national, and confirmation of the organization’s funding support from the Canadian government or applicable parliamentary council for the arts.

For further details on the performing arts LMIA exemption and reciprocity letters, please see: http://www.cic.gc.ca/english/resources/tools/temp/work/opinion/imp-c23.asp

Foreign Funded Commercials Filmed in Canada – Business Visitor

Another change that IRCC announced this week applies to essential personnel (including producers, directors, actors, technicians, etc.) entering Canada to shoot a foreign funded commercial or advertisement in Canada. This exemption falls under the Business Visitor category and therefore does not require an application for a work permit. The entry as a Business Visitor for filming commercials (or print advertising) is limited for entry to Canada for a very short duration (under 2 weeks).

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Changes to Canadian Work Permit Categories for Television/Film and Performing Arts

H-1B blast off countdown 2016

T minus 72 days. The countdown has begun.  The date is coming.  It will be here soon.

It is the biggest event of the year in United States immigration.

Hundreds of thousands will apply, but only a lucky few will be chosen.  Employers keen to recruit and employ the best and brightest talent from around the globe to meet American business needs are already gearing up.  Professionals eager to pursue their career in the United States are updating resumes and collecting diplomas and reference letters.  This program is not the best way for a country to succeed, but the United States Congress continues to lack the will and wisdom to change a law almost 25 years old.

Are you ready?

April 1, 2016, is the first day that the United States Citizenship and Immigration Services agency (USCIS) will accept new H-1B specialty occupation worker nonimmigrant visa petitions by employers for foreign professionals.  It is important for global mobility and human resource managers to start work now to secure preliminary Department of Labor approvals, foreign degree evaluations, etc., to be ready to file the petition for an April 1 receipt date.

Limited supply

Only a limited number of new H-1B visas are accepted each year due to legal quota restrictions.  Every year, 65,000 new H-1B visa petitions can be granted, of which 6,800 are set aside for citizens of Chile and Singapore under Free Trade Agreements with those countries. To the extent there were unused Free Trade Agreement H-1Bs, those are added to the quota for the next fiscal year.  There is an additional allocation of 20,000 new H-1B visa petitions that can be accepted if the foreign professional earned a graduate degree from a university in the United States.

Not all H-1B visa petitions are subject to numerical limits. Individuals already holding H-1B visas are counted against the quota, and petitions filed by institutions of higher education or related or affiliated nonprofit entities, nonprofit research organizations or governmental research organizations are exempt from the limits. The exemption for petitions filed for jobs only in Guam or the Commonwealth of the Northern Mariana Islands expired on December 31, 2015.

Overwhelming demand

Last year, the USCIS received so many new H-1B visa petitions in the first week of April that the agency ended the application window on April 7.  Approximately 233,000 new petitions were received, as compared to 172,500 in the prior year.  As the regulations mandate, officers then selected—at random—which envelopes to open and returned the rest unopened with the government filing fees.  Only then did the agency begin the often long process to approve or deny the selected petitions on the merits of eligibility.

This year, the USCIS will once again receive more than they are allowed to accept.  Again, the agency will randomly decide the envelopes to open and those to return unopened.  The likelihood of a petition being selected in April 2016 is likely to be much, much lower than last year, taking into consideration the current state of the economy, the relatively low rate of American unemployment in typical H-1B specialty occupations, and the labor needs of United States employers.

The countdown begins now (download dates directly into your Outlook)

launch

T minus 72 days (January 19):  Start working with legal counsel now.  Identify current and prospective employees who will need new H-1B visa petitions.

T minus 45 days (February 15):  By now, you and legal counsel should have requested the labor condition application certification from the Department of Labor.  Employers new to the process or who have not filed recently will need to create the appropriate accounts with the Department of Labor. Because the USCIS relies on Dunn & Bradstreet data (DUNS) as part of its employer background verification process, it is important for employers to create or update the company’s DUNS records to avoid inconsistencies with H-1B visa petition filings.

T minus 30 days (March 1):  Have all the required USCIS forms and supporting documents been signed and filing fee checks prepared?  There is still some time left to get last minute details completed, but this is when it gets very hectic.  Government systems often become overloaded and delays at the Department of Labor for late filings are common.

T minus 1 day (March 31):  Envelopes should be properly addressed and delivered to the express service of choice with next business morning delivery instructions.

T minus 0 (April 1):  Just like at NASA ground control, this is the stage in the process where all the hard work resulted in successful delivery of the visa petition and you have to wait for the USCIS to announce whether the petition is selected or returned—usually within 3 weeks or so.

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H-1B blast off countdown 2016

Student employment authorization for certain foreign students in the US could be jeopardized

DC of Columbia

Employment authorization for student visa holders could be jeopardized because the USCIS failed to properly publish its April 2008 rule with the required notice and comment.

The US District Court for the District of Columbia vacated the USCIS STEM extension rule in an August 12, 2015, decision.  The court stayed the ruling until February 12, 2016, to give the USCIS opportunity to correctly publish the rule with proper notice and comment; however, until that date, USCIS will accept STEM extension applications and already approved STEM extensions will not be affected. The USCIS is expected to act before the deadline.

In general, F-1 foreign student visa holders are eligible for 12 months of employment authorization, called Optional Practical Training (OPT), after graduation.  In 2008, an “extension” of 17 months of employment authorization became available to F-1 visa holders who graduated from American universities with a degree in Science, Technology, Engineering or Math (STEM).  In addition, STEM employment authorization is limited to employers enrolled in the voluntary e-Verify program.

The case is Wash. Alliance of Tech. Workers v. DHS.

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Student employment authorization for certain foreign students in the US could be jeopardized

H-1B Blast Off Countdown

T minus 84 days. The countdown has begun.  The date is coming.  It will be here soon.

It is the biggest event of the year in United States immigration.

Hundreds of thousands will apply, but only a lucky few will be chosen.  Employers keen to recruit and employ the best and brightest talent from around the globe to meet American business needs are already gearing up.  Professionals eager to pursue their career in the United States are updating resumes and collecting diplomas and reference letters.  This program is not the best way for a country to succeed, but the United States Congress continues to lack the will and wisdom to change a law almost 25 years old.

Are you ready?

April 1, 2015, is the first day that the United States Citizenship and Immigration Services agency (USCIS) will accept new H-1B specialty occupation worker nonimmigrant visa petitions by employers for foreign professionals.  It is important for global mobility and human resource managers to start work now to secure preliminary Department of Labor approvals, foreign degree evaluations, etc., to be ready to file the petition for an April 1 receipt date.

Limited Supply

Only a limited number of new H-1B visas are accepted each year due to legal quota restrictions.  Every year, 65,000 new H-1B visa petitions can be granted, of which 6,800 are set aside for citizens of Chile and Singapore under Free Trade Agreements with those countries. To the extent there were unused Free Trade Agreement H-1Bs, those are added to the quota for the next fiscal year.  There is an additional allocation of 20,000 new H-1B visa petitions that can be accepted if the foreign professional earned a graduate degree from a university in the United States.

Not all H-1B visa petitions are subject to numerical limits. Individuals already holding H-1B visas are counted again the quota, and petitions filed by institutions of higher education or related or affiliated nonprofit entities, nonprofit research organizations or governmental research organizations are exempt from the limits.  In addition, petitions filed for jobs only in Guam or the Commonwealth of the Northern Mariana Islands are exempt from the cap until December 31, 2015.

Overwhelming Demand

Last year, the USCIS received so many new H-1B visa petitions in the first week of April that the agency ended the application window on April 5.  Approximately 172,500 new petitions were received, as compared to 124,000 in the prior year.  As the regulations mandate, officers then selected — at random — which envelopes to open and returned the rest unopened with the government filing fees.  Only then did the agency begin the often long process to approve or deny the selected petitions on the merits of eligibility.

This year, the USCIS will once again receive more than they are allowed to accept.  Again, the agency will randomly decide the envelopes to open and those to return unopened.  The likelihood of a petition being selected in April 2015 is likely to be much, much lower than last year, taking into consideration the current state of the economy, the relatively low rate of American unemployment in typical H-1B specialty occupations, and the labor needs of United States employers.

The Countdown Begins Now (download dates directly into your Outlook) 

launch

T minus 84 days (January 7):  Start working with legal counsel now.  Identify current and prospective employees who will need new H-1B visa petitions.

T minus 60 days (February 1):  You and your legal counsel should be working together to prepare job descriptions, determine prevailing wage rates, secure equivalency evaluations of foreign degrees and work experience, and translate key documents.

T minus 45 days (February 15):  By now, you and legal counsel should have requested the labor condition application certification from the Department of Labor.  Employers new to the process or who have not filed recently will need to create the appropriate accounts with the Department of Labor. Because the USCIS relies on Dunn & Bradstreet data (DUNS) as part of its employer background verification process, it is important for employers to create or update the company’s DUNS records to avoid inconsistencies with H-1B visa petition filings.

T minus 30 days (March 1):  Have all the required USCIS forms and supporting documents been signed and filing fee checks prepared?  There is still some time left to get last minute details completed, but this is when it gets very hectic.  Government systems often become overloaded and delays at the Department of Labor for late filings are common.

T minus 1 day (March 31):  Envelopes should be properly addressed and delivered to the express service of choice with next business morning delivery instructions.

T minus 0 (April 1):  Just like at NASA ground control, this is the stage in the process where all the hard work resulted in successful delivery of the visa petition and you have to wait for the USCIS to announce whether the petition is selected or returned — usually within 3 weeks or so.

liftoff

 

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H-1B Blast Off Countdown

One week away: Critical employment issues facing multi-national employers

Labour-2-(ThinkStock)

With one week left, click here to register for our CLE program on Critical Employment Issues Facing Multi-National Employers.

December 10, 2014
04:00 PM – 07:00 PM EDT
1221 Avenue of the Americas
50th Floor
New York, NY
United States

Dentons Global Employment and Labor group is pleased to invite you to an interactive program bringing together Dentons lawyers from around the globe to present on several critical employment issues facing multi-national employers. The three-panel program will be followed by networking cocktails where you will have an opportunity to mingle and connect with professionals in the industry.

Panel topics and speakers:

Moderated by Brian Cousin

Privacy Panel (4:30 p.m.–5:30 p.m.):
Andy Roth (US), Barbara Johnston (Canada), Michael Bronstein (UK), Katell Deniel-Allioux (France),Todd Liao (China by video), Neil Capobianco (US)

Global Mobility Panel (5:30 p.m.–6:00 p.m.):
Matt Schulz (US), Michael Bronstein (UK), Todd Liao (China by video)

Restrictive Covenants Panel (6:00 p.m.–7:00 p.m.):
Richard Scharlat (US), Adrian Miedema (Canada), Michael Bronstein (UK), Katell Deniel-Allioux (France), Todd Liao (China by video)

Register Now

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One week away: Critical employment issues facing multi-national employers

US executive action promises important new immigration benefits for some

 

President Obama Speaks On Homeland Security's Announcement About Deportations

US President Obama announced on November 20, 2014 a series of executive actions to crack down on illegal immigration at the border, prioritize deporting felons not families, and require certain undocumented immigrants to pass a criminal background check and pay taxes in order to temporarily stay in the US without fear of deportation.  The United States Citizenship and Immigration Services agency (USCIS) announced that it is not yet accepting any applications for benefits under this program, stating that “[s]ome initiatives will be implemented over the next several months and some will take longer.”

Among the President’s initiatives is a plan to modernize, improve and clarify immigrant and nonimmigrant programs to grow our economy and create jobs.  This is intended to primarily benefit US businesses, foreign investors, researchers, inventors and skilled foreign workers.

The USCIS states that it will implement this initiative as follows:

  • Work with the Department of State to develop a method to allocate immigrant visas to ensure that all immigrant visas authorized by Congress are issued to eligible individuals when there is sufficient demand for such visas.
  • Work with the Department of State to modify the Visa Bulletin system to more simply and reliably make determinations of visa availability.
  • Provide clarity on adjustment portability to remove unnecessary restrictions on natural career progression and general job mobility to provide relief to workers facing lengthy adjustment delays.
  • Clarify the standard by which a national interest waiver may be granted to foreign inventors, researchers and founders of start-up enterprises to benefit the US economy.
  • Authorize parole, on a case-by-case basis, to eligible inventors, researchers and founders of start-up enterprises who may not yet qualify for a national interest waiver, but who:
    • Have been awarded substantial US investor financing; or
    • Otherwise hold the promise of innovation and job creation through the development of new technologies or the pursuit of cutting-edge research.
    • Finalize a rule to provide work authorization to the spouses of certain H-1B visa holders who are on the path to lawful permanent resident status.
    • Work with Immigration and Customs Enforcement (ICE) to develop regulations for notice and comment to expand and extend the use of optional practical training (OPT) for foreign students, consistent with existing law.
    • Provide clear, consolidated guidance on the meaning of “specialized knowledge” to bring greater clarity and integrity to the L-1B program, improve consistency in adjudications, and enhance companies’ confidence in the program.

There is an additional, well publicized initiative to provide temporary legal status to certain individuals who have been in the US unlawfully for a continuous period of more than 5 years, if they are the parent of a US citizen or lawful permanent resident.  More details on all of the initiatives can be found at the USCIS web site.

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US executive action promises important new immigration benefits for some

Critical employment issues facing multi-national employers

Labour-2-(ThinkStock)

December 10, 2014 04:00 PM – 07:00 PM EDT    

McGraw-Hill Conference Space    

1221 Avenue of the Americas 50th Floor

New York, NY United States

Dentons Global Employment and Labor group is pleased to invite you to an interactive program bringing together Dentons lawyers from around the globe to present on several critical employment issues facing multi-national employers. The three-panel program will be followed by networking cocktails where you will have an opportunity to mingle and connect with professionals in the industry.

Panel topics and speakers:

Moderated by Brian Cousin

Privacy Panel (4:30 p.m.–5:30 p.m.): Andy Roth (US), Barbara Johnston (Canada), Michael Bronstein (UK), Katell Deniel-Allioux (France), Todd Liao (China by video), Neil Capobianco (US)

Global Mobility Panel (5:30 p.m.–6:00 p.m.): Matt Schulz (US), Michael Bronstein (UK), Todd Liao (China by video)

Restrictive Covenants Panel (6:00 p.m.–7:00 p.m.): Richard Scharlat (US), Adrian Miedema (Canada), Michael Bronstein (UK), Katell Deniel-Allioux (France), Todd Liao (China by video)

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Critical employment issues facing multi-national employers