Tag: Immigration

On August 1, 2015, Citizenship and Immigration Canada (CIC) will introduce an Electronic Travel Authorization (eTA) Program. The eTA program objective is to establish a uniform process to screen visa-exempt foreign nationals prior to travel to Canada, in order to identify security threats prior to arrival in North America. The eTA program is modeled after the Electronic System for Travel Authorization (ESTA), which applies to foreign nationals who enter the U.S. under the Visa Waiver Program.  The program will not be mandatory until March 15, 2016.

CIC will begin accepting online eTA applications on August 1, 2015 for visa-exempt nationals who fly to Canada. Entry requirements will not change for entries made by land and sea. The following foreign nationals will need an eTA prior to entering Canada:

• Visa-exempt foreign nationals
• Foreign nationals who are U.S. Lawful Permanent Residents.
• Foreign nationals who are currently in Canada under a work or study permit must apply for an eTA.
• Foreign nationals applying for a work or study permit after August 1, 2015 will automatically be granted an eTA.

Importantly, U.S. citizens are exempt from the eTA requirement and do not need a visa to enter Canada.

Before traveling to Canada, foreign nationals must apply for an eTA through an online application process. An eTA will be issued within minutes and will be valid for five years or for the validity of the underlying passport, whichever comes first.

We encourage foreign nationals who will need an eTA to apply during the transition period from August 1, 2015 through March 15, 2016 to avoid any delays in travel to Canada. Gibney will continue to monitor this matter and provide updates as they become available. If you have any questions regarding this alert, please contact your designated Gibney representative, or email info@gibney.com.

This article is provided as general information for clients and friends of Gibney, Anthony & Flaherty, LLP. It does not constitute, and should not be construed as, legal advice. The contents of this article may be considered attorney advertising in some states.

On April 9, 2015, the Administrative Appeals Office (AAO) of the United States Citizenship and Immigration Services (USCIS) issued a decision directly impacting many employers who currently employ H-1B nonimmigrant workers. The decision provides that a change to an H-1B worker’s authorized place of employment to a geographical area not covered by the original labor condition application (LCA) is a material change requiring the employer to file an amended or new H-1B petition, including a corresponding LCA certified by the Department of Labor (DOL). This decision clarifies and supersedes prior USCIS guidance on this issue, which left ambiguous the materiality of a worksite change to a different geographic area. Under the new decision, an employer anticipating imminent changes in a worksite location to a different geographic area for an H-1B worker must notify USCIS prior to the change through the filing of an H-1B petition.

Please note, changes of worksite within the same geographic Metropolitan Statistical Area (MSA) will likely continue to be governed by DOL guidance that an LCA is valid within an entire MSA, so long as prior notice is provided at the new worksite within the same MSA. In other words, a change of worksite within the same geographic MSA may not require a new H-1B petition, so long as notice is given to workers at the new worksite.

It is uncertain how soon USCIS may begin to adhere to the newly-issued decision in its daily operations. Gibney will continue to monitor this new development, and will work with our clients to understand the implications of this new decision and to develop effective strategies to comply with the policy set forth.

If you have any questions about this alert, please contact your Gibney representative or email info@gibney.com.

On March 24, 2015, USCIS released a long-anticipated Policy Memorandum on the L-1B visa category, which allows for an intra-company transfer of current foreign employees with “Specialized Knowledge” of the company.  USCIS has faced criticism for its high denial rates of L-1B visa petitions, with a recent National Foundation for American Policy report finding denial rates of 35% in 2014, up from 6% in 2006.  The Obama Administration has promised to reform the L-1B category, and this new USCIS Policy Memorandum appears to be the first step in fulfilling that promise.  USCIS will take comments on the Memo until May 8, 2015, with the final version going into effect on August 31, 2015.

The Memorandum proposes to rescind all prior USCIS internal guidance on the L-1B category, replacing it with clearer guidelines on specific aspects of L-1B adjudication, including:

• Clarifying that the evidentiary standard for Specialized Knowledge is a “preponderance of the evidence,” a relatively lower standard
• Providing that, according to the regulatory definition, a sponsored worker may qualify by possessing “special knowledge” of a company’s products or services OR “advanced knowledge” of a company’s processes and procedures
• Noting that Specialized Knowledge is not limited to knowledge that is proprietary or absolutely unique to the transferring company, nor does such knowledge need to be narrowly held within the transferring company
• Moreover, the petitioner is not required to demonstrate an absence of U.S. workers available to perform the duties of the L-1B worker
• The Memo also provides a list of possible evidence that petitioners may submit to demonstrate Specialized Knowledge

Gibney will work with its clients to understand the implications of this new Policy Memo before the effective date of August 31, 2015, and to develop effective strategies to comply with the guidelines set forth.

If you have any questions about this alert, please contact your Gibney representative or email info@gibney.com.

U.S. Citizenship and Immigration Services (USCIS) published its final rule, effective May 26, 2015, confirming that the Department of Homeland Security (DHS) will extend employment authorization eligibility to certain H-4 dependent spouses of H-1B nonimmigrants who are seeking employment-based lawful permanent resident (LPR) status.

In order to be eligible, the H-4 visa holder must be the dependent spouse of an H-1B nonimmigrant visa holder who:

• Is the principal beneficiary of an approved Form I-140, Immigrant Petition for Alien Worker or
• Has been granted H-1B status under sections 106(a) and (b) of the American Competitiveness in the Twenty-first Century Act of 2000 as amended by the 21st Century Department of Justice Appropriations Authorization Act, known as AC21; AC21 permits H-1B nonimmigrants seeking lawful permanent residence to work and remain in the United States beyond the six-year limit on their H-1B status

Under the new rule, eligible H-4 dependent spouses will be able to file Form I-765, Application for Employment Authorization, with supporting evidence and the required $380 fee in order to obtain employment authorization and receive an Employment Authorization Document (EAD).

USCIS will begin accepting applications on May 26, 2015. The H-4 dependent spouse will not be able to begin working in the United States until USCIS has approved the Form I-765 and the H-4 dependent spouse has received the EAD.

Gibney will work with clients and provide any updates as the rule is implemented.

If you have any questions about this alert, please contact your Gibney representative or email info@gibney.com.

Effective November 12, 2014, the United States and China entered into a new reciprocal visa agreement aimed at providing Chinese and U.S. citizen business visitors, tourists, exchange visitors, students, and accompanying family members with visas with longer validity periods. This agreement is only applicable to new applications filed from November 12, 2014 onward. Existing visas will remain valid until the expiration date printed on the visa sticker.

Under the new agreement, Chinese business visitors and tourists are eligible to obtain multiple entry B1/B2 visas with validity periods of up to ten years. Students, exchange visitors, and accompanying family members may obtain multiple entry F, M, or J visas with validity periods of up to five years, or covering the intended duration of the academic program.

U.S. citizens are eligible to obtain multiple entry business (M) and tourist (L) visas with validity periods of up to ten years. The same provisions apply to short-term visas to visit relatives (Q2) and private matter visas (S2). Additionally, U.S. students may obtain residence permits with validity periods of up to five years.

The Chinese Embassy also announced that visas issued to U.S. citizens will retain validity beyond the passport expiration date, provided that the new passport bears the same name, sex, birth date, and nationality of the passport containing the valid visa. However, if there are changes to any of these identifying criteria in the new passport, a new China visa must be obtained.

If you have any questions regarding this alert, please contact your designated Gibney representative, or email info@gibney.com.

On November 20, 2014, President Obama announced a series of executive actions designed to improve U.S. border security; preserve family unity while holding undocumented immigrants accountable for background checks and taxes; and boost the U.S. economy through the reform of legal immigration. Please note that these initiatives have not yet been implemented and no applications for benefits can be submitted until the Agencies provide guidance on implementation and/or regulations are published.

1. Crack Down on Illegal Immigration at the Border

The President’s actions will centralize border security command-and-control and establish clear interior enforcement priorities based on threats to national security, border security and public safety. To execute these actions, Secretary Johnson has announced a plan to shift additional Border Patrol agents and U.S. Immigration and Customs Enforcement (ICE) personnel to the Southwest border of the United States. The Department of Justice has also announced a series of reforms that will re-order and streamline the Immigration Court docket based on the President’s enforcement priorities.

2. Prioritize the Deportation of Felons, not Families

In line with the President’s enforcement priorities and in support of family unity, the executive actions also introduce new and expanded removal and enforcement relief programs for certain undocumented persons present in the United States:

• Expansion of Deferred Action for Childhood Arrivals (DACA) Program: Under the current program introduced in 2012, certain young persons without immigration status are eligible to request consideration for deferred action and work authorization for a period of two years, so long as they were born prior to June 15, 1981 and have maintained continuous residence in the United States since June 15, 2007. The expanded program will remove the upper age restriction, shift the continuous residence requirement to January 1, 2010, and extend the deferred action and employment authorization period to three years. The expanded program is expected to take effect 90 days after the November 20, 2014 announcement.
• New Deferred Action for Parental Accountability (DAPA) Program: This new program will provide an avenue for deferred action and work authorization for undocumented parents of U.S. Citizens and Legal Permanent Residents (LPRs). To be eligible for consideration under DAPA, undocumented individuals must have maintained continuous residence in the United States since January 1, 2010 and have no criminal history within the President’s interior enforcement priorities. Applicants for benefits under DAPA will be required to undergo thorough criminal background checks and pay taxes. The new program is expected to take effect 180 days after the November 20, 2014 announcement.
• Expansion of Provisional Waivers of Unlawful Presence Based on Extreme Hardship: Under the current policy announced in 2013, only spouses and minor children of U.S. Citizens are eligible to obtain a provisional waiver of unlawful presence if an immigrant visa is available. The executive action intends to expand the list of eligible waiver applicants to include the sons and daughters of U.S. citizens, as well as the spouse, sons and daughters of LPRs. The action also seeks to clarify the “extreme hardship” standard that must be met to obtain the waiver. The expanded program will not take effect until the issuance of new guidelines and regulations.

3. Streamline Legal Immigration to Grow the Economy and Create Jobs

In addition to the border security and removal relief actions, the President has also announced initiatives aimed at supporting economic growth and job creation in the United States by supporting the country’s high skilled businesses and workers. None of these actions will take effect until the issuance of necessary guidance and regulations

Several executive actions will focus on improving employment-based temporary visa programs:

• L-1B Specialized Knowledge: U.S. Citizenship and Immigration Services (USCIS) plans to issue a policy memorandum to help eliminate the uncertainty that has developed in recent years with respect to the L-1B program. The memorandum will provide clear, consolidated guidance on the meaning of “specialized knowledge” in order to bring greater coherence and integrity to the L-1B program, improve consistency in adjudications, and enhance confidence in the program.
• OPT Reformation and Expansion: The Department of Homeland Security (DHS) plans to promulgate rules to expand the degree programs eligible for Optional Practical Training (OPT), extend the time period and use of OPT for foreign students and graduates in the Science, Technology, Engineering and Math (STEM) fields, and require stronger ties between OPT students and their academic institutions to ensure their practical training furthers their full course of study.
• H-4 Employment Authorization: DHS is also finalizing a new rule to provide work authorization to certain spouses of H-1B holders in the green card process. This will be particularly beneficial for the nationals of countries with severely retrogressed visa numbers, such as India and China.

DHS will also clarify and expand immigration options for foreign entrepreneurs, and streamline the green card process for greater efficiency, predictability and job mobility:

• Options for Foreign Entrepreneurs: In an effort to create jobs, attract investments and generate revenue in the United States, USCIS will be proposing a program to grant parole status, on a case-by-case basis, to inventors, researchers, and founders of start-up enterprises. This new program is intended to apply to entrepreneurs who might not yet qualify for a national interest waiver, but who have been awarded substantial U.S. 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. USCIS also intends to issue new guidance or regulations to clarify the standard by which a national interest waiver can be granted, with the aim of promoting its greater use for the benefit of the U.S economy.
• Immigrant Visa and Adjustment of Status Reforms: In a series of related reforms aimed at streamlining the green card process, USCIS plans to work with the Department of State (DOS) 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. USCIS also plans to work with the DOS to modify the Visa Bulletin system to more simply and reliably make determinations of visa availability.

In addition, USCIS plans to provide clarity on adjustment of status portability provisions to remove unnecessary restrictions on natural career progression and general job mobility. USCIS will also issue a policy memorandum that will provide additional agency guidance with respect to the types of job changes that constitute a “same or similar” job under current law. These new policies are intended to provide relief to workers facing lengthy delays in adjustment of status processing.

Similarly, the Department of Labor (DOL) has announced plans to review the permanent labor certification (PERM) program, which has not been examined comprehensively or modified since its inception ten years ago.

For more information please refer to the agency directives and relevant FAQs published on the USCIS website.

For specific questions or legal advice, please contact your immigration professional at Gibney, Anthony & Flaherty, LLP, or email info@gibney.com.

On February 24, 2014, voters in Switzerland passed a popular referendum to amend Switzerland’s constitution and restrict immigration, reflecting a departure from the freedom of movement allowed European Union (EU) nationals under existing agreements.  The Swiss Federal Council interpreted the referendum as a response to population growth, increased immigration, and an attempt to protect the local labor force.

The new provisions will impose restrictions on residence permits for foreign nationals by implementing a quota system.  These quotas will impact cross-border commuters and asylum seekers. The new constitutional provisions require legislative action and further negotiation with the European Union before measures can be fully implemented.

Currently, Switzerland has a dual system for the admission of foreign workers:  one system for EU nationals and one system for other workers. Gainfully employed nationals from EU or European Free Trade Agreement (EFTA) states can benefit from agreements on the free movement of persons.  Only a limited number of management level employees, specialists and other qualified employees are admitted from all other countries.  The referendum reintroduces strict quotas for immigration from EU countries, contrary to the current Swiss-EU agreement on freedom of movement.

The provisions do not specify precise quota numbers nor do they clearly define procedures for the allocation of work permits. The Swiss Federal Council and Parliament have three years to implement the new system. The Agreement on Free Movement of Persons and other bilateral agreements will remain in force until new provisions are implemented.

The Swiss Federal Council intends to start negotiations with the European Union and put an implementation plan in place by the end of 2014.  Gibney will provide updates regarding the implementation of these changes as they become available.

If you have any questions regarding this alert, please contact your designated Gibney representative, or email info@gibney.com.

The U.S. Department of State (DOS) has published the January 2014 Visa Bulletin.  The December 2013 Visa Bulletin showed significant retrogression in the EB-2 category for India, true to predictions made by the DOS Visa Office in November. The January 2014 Visa Bulletin further confirms that in addition to the ongoing retrogression in the EB-2 category, there is no movement in any of the other employment-based categories for India. For China, the priority date in the EB-2 category has advanced by one month, whereas in the EB-3 category the priority date has advanced by six months. The priority date in the EB-3 category for the Worldwide and Mexico quotas has also advanced by six months. Priority cut-off dates for the most common employment-based categories are provided below. Foreign nationals having a priority date before the established cut-off date are eligible to file immigrant visa or adjustment of status applications for permanent residence.

Employment-based, first preference (EB-1):

All foreign nationals: Current

“Current” means that immigrant visa numbers are immediately available for all priority dates within the designated preference category.

Employment-based, second preference (EB-2):

• Worldwide: Current
• China: December 8, 2008
• India: November 15, 2004
• Mexico: Current
• Philippines: Current

Employment-based, third preference (EB-3) professional/skilled workers:

• Worldwide: April 1, 2012
• China: April 1, 2012
• India: September 1, 2003
• Mexico: April 1, 2012
• Philippines: February 15, 2007

Employment-based, third preference (EB-3) “other” workers:

• Worldwide: April 1, 2012
• China: April 1, 2012
• India: September 1, 2003
• Mexico: April 1, 2012
• Philippines: February 15, 2007

For specific questions or legal advice, please contact your immigration professional at Gibney, Anthony & Flaherty, LLP, or email immigrationalerts@gibney.com.

On April 1, 2014, United States Citizenship and Immigration Services (USCIS) will begin accepting H-1B petitions subject to cap limits for the fiscal year (FY) 2015.  Although April may seem far off, several factors including increasing demands for H-1B workers, an anticipated high volume of Labor Condition Application (LCA) filings, and the possibility of another federal government shutdown signal that it is not too early for employers to being preparing for the H-1B cap season now.

The H-1B cap for FY 2014 was reached within the first week of filing and a lottery to select H-1B petitions for adjudication was conducted for the first time since 2008. With employers filing H-1B petitions for those who missed the most recent year’s cap, as well as new petitions being filed on behalf of graduates and new employees, we anticipate that a large number of H-1B cap FY 2015 filings will result in the H-1B quota being quickly reached.  An increase in H-1B cap petitions will lead to a high volume of Labor Condition Application (LCA) filings, a required component of all H-1B petitions. Consequently, we could see significantly slower processing times and backlogs within the Department of Labor (DOL).  Furthermore, should another federal government shutdown occur in January, it is likely that the processing of LCAs would be halted, possibly impacting a company’s ability to file H-1B cap petitions on April 1st.

We urge employers to identify potential H-1B cap cases now and work with immigration counsel to ensure timely filing of cases.

If you have any questions about this alert, please contact your Gibney representative or email immigrationalerts@gibney.com.