At Brown Immigration Law, we strive to be your company's partner in growth and innovation, on a global scale. We continue our commitment to demystifying the complex immigration laws of the United States and Canada to provide efficient and effective immigration and global mobility support. Please find this month's business immigration news below.

We wish everyone a happy holiday season!

U.S. BUSINESS IMMIGRATION UPDATES

Fiscal Year 2024 H-1B Cap Reached

USCIS reported on December 13, 2024 that the H-1B cap for fiscal year 2024 has been reached. As noted by the Service in its update, "USCIS has received a sufficient number of petitions needed to reach the congressionally mandated 65,000 H-1B visa regular cap and the 20,000 H-1B visa U.S. advanced degree exemption, known as the master's cap, for fiscal year (FY) 2024." As a review, this year, the H-1B lottery was conducted twice by USCIS to meet the cap – this update indicates that USCIS will not need to run a third lottery to meet the cap for FY 2024.

USCIS meeting the cap for FY 2024 was already widely speculated and USCIS had previously suggested such when it announced the second lottery selection – this move just provides official notice of the end of the lottery. At Brown Immigration Law, we have already begun initial internal planning and organization for next year's H-1B lottery (FY 2025). Please reach out to your BIL attorney with any questions or join us for our upcoming webinars (see below).

Update on Government Shutdown

In mid-November, the U.S. House of Representatives and Senate passed a continuing resolution which continued the funding of certain agencies through January 19, and others until February 2, 2024, the later date including DHS, DOS, and the DOL. President Biden signed the continuing resolution, which prevents a government shutdown for the time being. As we have previously reported, a government shutdown would have many impacts on U.S. immigration, specifically applications with the Department of Labor and many other services. Since the passing of the continuing resolution Congress has yet to take up the funding bills required to avert possible shutdown in 2024. We will continue to monitor and hope that a commonsense solution is reached.

USCIS Reopening Incorrectly Issued Advance Parole Documents

Near the end of November, the American Immigration Lawyers Association (AILA) reported that USCIS was issuing Advance Parole documents with incorrect categories and annotations. For example, USCIS had issued many Advance Parole documents to applicants with pending I-485, Adjustment of Status Applications labeled with the category for a Temporary Protected Status applicant. The National Benefits Center indicated that it had been tracking the incorrectly issued case types and was comprehensively reviewing cases to re-issue the travel documents with the correct classification. The NBC updated AILA that it had taken all necessary corrective measures by November 17, 2023.

Your Brown Immigration Law attorney is monitoring this issue. If you have filed form I-485 along with form I-131 (Advance Parole), please contact your attorney for a review of the travel document when it is approved. To put the above notes in context, USCIS has erroneously issued "I-512T" travel documents in these cases, which is the code for the Temporary Protected Status (TPS) category, not the AOS category. Attempting to re-enter the United States with an I-512T travel document could lead to complications. Thus far, USCIS seems to be consistently recognizing its mistake and immediately re-opening the cases to issue the corrected travel document with the I-512L code, but we ask that our clients be mindful and contact your BIL attorney in advance of any travel related to your AP travel document.

Department of Homeland Security and the Department of Labor Provide Copy of Temporary Rule Authorizing 64,716 Additional H-2B Visas for FY2024

On November 17, 2023 via the Federal Register, DHS and DOL authorized the issuance of an additional 64,716 H-2B visas for fiscal year 2024. As reported by AILA, "These supplemental visas will be distributed in several allocations. 20,000 visas made available in this rule will be reserved for nationals of Guatemala, El Salvador, Honduras, Haiti, Colombia, Ecuador, or Costa Rica. 44,716 supplemental visas will be available to returning workers who received H-2B visas or were otherwise granted H-2B status during one of the last three fiscal years." The Federal Register noted that this was an "exercise of time-limited authority to increase the numerical limitation for FY 2024 for the H–2B temporary nonagricultural worker program and portability flexibility for H–2B workers seeking to change employers."

January Visa Bulletin

The Visa Bulletin for January 2024 has been released. For employment-based adjustment of status applicants, USCIS has confirmed that it will continue to accept applications current under the "Dates for Filing" chart.

The January 2024 Visa Bulletin shows movement in a couple of categories. Referring to the Final Action Chart, EB-1 China moves to July 1, 2022 and EB-1 India moves to September 1, 2020. For EB-2 ROW, the date moves to November 1, 2022. Finally, EB-2 for China and India move to January 1, 2020 and March 1, 2012, respectively. Please note: As initially released, there was discrepancy in the Dates for Filing chart for EB-2 China, but this has since been corrected, noting that the EB-2 China date for filing is June 1, 2020.

CANADIAN BUSINESS IMMIGRATION UPDATES

Employer's Requirement for Proof of Canadian Citizenship or Permanent Residency Held to be Discrimination

In Imperial Oil Limited v Haseeb (2023 ONCA 364), the Ontario Court of Appeal affirmed the Human Rights Tribunal of Ontario's ruling, finding Imperial Oil guilty of discriminating against a job applicant on the basis of citizenship. The discrimination arose from the employer's demand for proof of Canadian citizenship or permanent residency after offering a position to a recent graduate.

Mr. Haseeb, an international student, applied for an entry-level project engineer role at Imperial Oil while holding a Post-Graduate Work Permit (PGWP). Imperial Oil extended a job offer contingent on proof of Canadian citizenship or permanent residency. However, the offer was revoked upon discovering he only held a temporary status. Mr. Haseeb then filed a human rights application, claiming discrimination based on citizenship, a violation of the Ontario Human Rights Code.

Initially, in 2018, the Tribunal declared it discriminatory for employers to request proof of Canadian citizenship or permanent residency. The employer was ordered to pay over $100,000 in damages. However, the Divisional Court of Ontario overturned this decision and Mr. Haseeb appealed to the Court of Appeal. The Court of Appeal found Imperial Oil's insistence on proof of Canadian citizenship or permanent residency constituted discrimination based on citizenship, excluding legally entitled non-Canadian citizens from working anywhere in Canada.

Emphasizing the protection of "citizenship," the Court clarified that it ensures equal treatment for individuals eligible to work in Canada under federal immigration law. Notably, the Code permits a Canadian citizenship requirement only when required or authorized by law (Section 16(1)).

Based on this development, employers are urged to review their hiring policies, mindful of potential claims of discrimination based on citizenship (including temporary status). Reach out to your BIL Lawyer for further guidance with respect to managing your immigration risks.

Certain Students Can Work Full-time until April 30, 2024

Immigration, Refugees, and Citizenship Canada (IRCC) have recently declared an extension to a policy benefitting specific international students, enabling them to engage in employment beyond the standard 20-hour-per-week limit for off-campus work during non-academic periods.

In light of the escalating labor shortages across Canada, the immigration department introduced a temporary measure in 2022, granting eligible international students the opportunity to pursue full-time employment off-campus, totaling 40 hours per week.

Originally slated to conclude on December 31, 2022, having commenced on November 15 of the same year, this temporary policy was subject to a recent announcement. The latest update extends the validity of this policy, ensuring its continuation until April 30, 2024.

IRCC to Increase Financial Requirements for Study Permit Applicants

IRCC acknowledges that the current financial requirement for international students in Canada has not kept pace with the rising cost of living, leading to challenges for students upon arrival. Effective January 1, 2024, there will be an annual adjustment to the cost-of-living requirement based on Statistics Canada's low-income cut-off (LICO), ensuring it aligns with essential living expenses. For example, the 2024 cost-of-living requirement for a single study permit applicant will be CAD 20, 635, compared to the CAD 10,000 requirement that has been in place since the early 2000's.

IRCC emphasizes that this adjustment aims to prevent student vulnerability and exploitation. While recognizing varying impacts on applicants, the department plans targeted pilots next year to support underrepresented groups of international students pursuing studies in Canada.

Express Entry

Express Entry is the primary system for managing immigration in Canada. Individuals (Express Entry candidates) become eligible based on three federal immigration programs: the Federal Skilled Worker Program (FSWP); Canadian Experience Class (CEC); and Federal Skilled Trades Program (FSWP). Once they are eligible and their Express Entry profile is created, individuals are entered into a pool of candidates.

In addition to being eligible for Express Entry, candidates must be competitive to receive an Invitation to Apply (ITA) for permanent residence. Express Entry candidates are assigned Comprehensive Ranking Score (CRS) points based on criteria such as their age, education, work experience etc. Generally, the Government periodically reviews the pool of Express Entry candidates and invites the highest-ranking individuals to apply.

Over the last four weeks, Canada issued 11,650 Invitations to Apply (ITA) for permanent residence (PR) under Express Entry. Please see below for a high-level summary:

  • IRCC held one targeted draw for individuals in certain STEM occupations, inviting 5, 900 Express Entry candidates; the cut-off score was 481.
  • IRCC held its first targeted draws for individuals proficient in French, inviting 1, 000 Express Entry candidates; the cut-off score was 470.
  • IRCC also held general draw inviting 4, 750 Express Entry candidates; the cut-off score was 561.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.