We are proud to provide this update on Canadian immigration news from our colleague and friend Veronique Malka with the Canadian Law Group. As the US continues to impose more restrictions on business immigration, many of our clients are looking to our neighbors to the north for opportunities.
In some great news for international students, the Trump Administration indicated in Federal Court that they are rescinding the new rule making it unlawful for international students to remain in status if their university chooses to offer only on-line learning this fall. It is believed that the numerous lawsuits filed by colleges and universities throughout the U.S. along with several states convinced the Trump administration that they were acting unlawfully and severely damaging US educational institutions by their action. As with most bully’s they backed down when confronted.
Many workers and dependents are currently stranded overseas due to the recent Presidential Proclamation suspending visa issuance until Jan 2021. Many of these individuals were already living and working in the U.S. but, circumstances had them overseas at the time the COVID-19 pandemic hit and they became stranded due to health concerns, travel restrictions and now the visa ban. With most U.S. Consulates remaining closed, the visa ban has little effect at present. However, as Consulates re-open, the ban will force families to remain separated and keep people from jobs for which they were already approved. Here is a recent article from Bloomberg discussing this issue.
If you or a family member are personally stranded and may be willing to be a participant in a Federal lawsuit against the Trump Administration and this policy, a friend of ours, Greg Siskind is collecting information from potential plaintiffs and you can complete the form here.
In the latest move designed to lessen the amount of legal immigration in the U.S., the Trump Administration has announced that international students who are currently enrolled in US colleges and universities must depart the U.S. and abandon their studies if the school they are attending continues with on-line instruction only for the fall semester. As many schools have yet to announce their fall plans, this latest announcement leaves 1000’s of students in a tenuous and uncertain situation. The attacks against this short-sighted policy have come quickly and from multiple sources but, as with other immigration policies, the White House is tone deaf. Here is a nice summary on the impact to international students.
The State of California has also filed suit on behalf of its entire university system and the over 100,000 international students currently enrolled.
The USCIS has announced an extension of its accommodations for responding to RFE’s, NOID, etc during this time of COVID-19. As a practical matter, most deadlines have been extended by 60 days. The USCIS has been extremely generous in steps it has taken to serve its customers during this pandemic and they should be saluted for their efforts.
Pursuant to a settlement agreement reached in Federal Court, the USCIS has released an official Policy Memorandum which eliminates the Neufeld memo from 2010 and the contracts and itineraries memo from 2018. This is a major victory for IT and healthcare staffing cos. The new memo reminds employers that they must continue to prove the existence of an employer-employee relationship but, that is now defined per the language of the statue instead of a made up policy designed to target a specific industry. As a practical matter, this new policy should result in full approvals and will alter the number of RFE’s and the issues raised. This new policy will also change the type of evidence that is needed to file a new case.
As everyone is aware, late on June 22, the President issued a new proclamation suspending the entry for certain foreign nationals seeking to enter the U.S. on H-1B, H-2B, J-1, and L-1 visas (and applicable dependents such as H-4 and L-2). While we do not believe that this proclamation will have the intended effect of freeing up jobs for U.S. workers, we do believe that the effect will be limited to those in specific situations.
The Executive Proclamation applies only to those outside the U.S. on the effective date (12:01 am on June 24, 2020). Any foreign national currently in the U.S. will not be affected by this proclamation, either for current application or future extensions or visas at the U.S. consulate. We expect the main group that will be impacted is H-1B CAP cases filed as Consular cases. They will not be able to enter the U.S. until next year regardless of approval and visa period. H-1B CAP cases filed as a Change of Status in the US will not be affected.
Even if a person is outside the U.S, the Executive Proclamation applies only if the person does not already have a valid visa on the effective date or a valid travel document. Those with a visa stamping currently in their passport may continue to use it to enter the U.S. as normal. However, we caution to be prepared if traveling in the U.S. as there will be additional review by the officer to determine whether a person is exempt from the Proclamation.
The J-1 restriction is limited to only interns, trainees, teachers, au pairs and camp counselors; it does not restrict entry for researchers, physicians or any other J-1 category.
As a result of the is order, anyone who is affected by the Executive Proclamation will be unable to obtain a visa unless they meet one of the exceptions which includes:
(1) any lawful permanent resident of the United States;
(2) any person who is the spouse or child, as defined in the Immigration and Nationality Ac;
(3) any person seeking to enter the United States to provide temporary labor or services essential to the United States food supply chain; and
(4) any person whose entry would be in the national interest as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees.
It is worth reemphasizing that visas not listed, such as E-1, E-2, E-3, O-1, P, TN (Canadian and Mexican), are not included and entry on these visas can continue as normal. Furthermore, the filing and processing of U.S. permanent resident applications (Application to Adjust Status) have not been impacted by this Proclamation. USCIS and DOL may continue to process such applications.
If you have questions about a specific scenario not covered above, please contact your HNM attorney. Stay safe.
This week, the U.S. Supreme Court struck down an order from the Trump Administration seeking to end the DACA program. There is speculation that the WH will attempt to simply slap a coat of paint on its flawed order and re-publish but, for now, the DACA program remains intact. The current DACA program remains a temporary fix and needs Congressional action to craft a long-term solution. The plight of Dreamers spans multiple Presidencies and regardless of who has been in the WH or in Congress, a solution has not been found. Although there is widespread support for the Dreamers themselves, there is not widespread support for providing benefits and amnesty for their parents and potentially other family members, hence the decades long impasse. For employers that have DACA employees, we would strongly urge you to explore options for sponsoring them for permanent residency.
The Department of State (DOS) has released the July Visa Bulletin and there was significant forward movement in multiple categories which is unusual this late in the fiscal year. The “All Other” EB3 moved forward another 6 mos. as did EB3 for the Philippines, Mexico, and Vietnam. India EB1 jumped forward 10 months. The difference between India EB2 and EB3 is only 5 weeks. The USCIS has indicated that they will use the Final Action Date chart for I-485 filings in July.
As described earlier this week, the White House has announced its intention to issue a Proclamation that would restrict legal immigration specifically, certain types of work visas. They also indicated their intention to issue regulations that would, effectively end the H-1b program and severely restrict the ability of international students to come into the U.S. and study and then enter the U.S. talent pool. The U.S. Chamber of Commerce on behalf of its members, made up of both large and small U.S. employers, believe that the actions suggested by the WH would significantly and negatively impact U.S. businesses particularly those who employ STEM workers. They further believe that these proposed actions would increase the amount of work being sent off-shore, to the detriment of the U.S. economy. The Chamber sent a letter to the WH urging them to re-consider. We appreciate the advocacy being done by the Chamber. A summary of the current plan of the WH is outlined in a New York Times piece that ran today. Read it here.