Canada

Medical examinations are no longer required for most foreign nationals from Mexico and 44 other countries seeking to reside in Canada for more than six months or to enter as agricultural workers.

Most foreign nationals seeking to reside in Canada for over six months who are from Mexico or 44 other countries can now enter Canada without first undergoing a medical exam, following an announcement from Citizenship and Immigration Canada (CIC). In addition, medical exams are no longer required for agricultural workers from the same countries.

The medical examination requirement remains in place for those seeking to work in an occupation in the health sciences fields and those working with children. The change also does not affect those applying for permanent residence or refugees, who will continue to be required to have the normal medical examination before entering Canada.

The full list of countries and territories where medical exams are still required is available here. CIC will make periodic assessments of health situations globally and may reinstate health exam requirements for long-term visitors from other countries.

The content herein is provided for informational purposes only. If you have any questions, please do not hesitate to contact the global immigration professional with whom you work at Fragomen Global Immigration Services or send an email to canada@fragomen.com.

Source: Fragomen

Canada

Citizenship and Immigration Canada will introduce new restrictions for the Temporary Foreign Worker Program (TFWP), effective April 1, 2011, including a new cap on the time that some work permit holders can work in Canada and a new probation period for employers that fail to meet their commitments under the work permit program.

Under the new requirements, some work permit holders will be limited to a cumulative duration of four years of work in Canada. Once the four-year cap is reached, these individuals will not be eligible to apply for another work permit for a period of four years, with some important exceptions. The cap will not apply to most workers who enter pursuant to a Labour Market Opinion (LMO)-exempt work permit category, specifically those holding work permits that are issued pursuant to an international trade treaty, such as NAFTA, or to those holding positions that are exempt from LMO requirements because they create or maintain significant benefits for Canadians. Employers should plan ahead and explore options for permanent residence for those foreign employees who may be subject to the four-year cap.

Also, employers seeking to hire foreign workers will be assessed based against their past compliance with TFWP program requirements. Employers that are found to have provided a TFWP worker with wages, working conditions or an occupation that are not substantially the same as the terms and conditions of the job offer that supported their previous work permit application, and for which a reasonable justification has not been provided, will be subject to a two-year probationary period during which the employer will not be able to hire a foreign worker under the program. Citizenship and Immigration Canada will also maintain a public list of noncompliant employers on its website.

The content herein is provided for informational purposes only. If you have any questions, please do not hesitate to contact the global immigration professional with whom you work at Fragomen Global Immigration Services or send an email to canada@fragomen.com.

Source: Fragomen

President of the United States

The U.S. Senate has passed by unanimous consent the Emergency Border Security Supplemental Appropriations Act of 2010, which contains provisions that will raise fees for certain employers with a U.S. workforce of more than fifty percent H-1B or L-1 nonimmigrants. The bill was initially passed by the Senate on August 5, but because of a constitutional requirement that revenue measures originate in the House, the bill was sent back to the House, which passed the measure on August 10. The bill then returned to the Senate for its final approval. Though the Senate was in recess, it reconvened with just a few members present. The bill will now go to the President for his signature.

Implementation of the new H-1B and L-1 fees will be largely up to U.S. Citizenship and Immigration Services (USCIS). While many issues concerning the legislation remain unresolved, including how the fees would be apportioned and collected, the following frequently asked questions address what is currently known about the H-1B and L-1 fees.

Is the new fee provision now in effect?

No. The fee provision will take effect once the President signs the bill.

Which employers would be affected by the bill?

Employers with more than 50 employees who have a U.S. workforce of more than fifty percent H-1B or L-1 nonimmigrant workers would be affected.

What new fees would affected employers need to pay?

According to the language of the bill, it would raise the “filing fee and fraud prevention and detection fee” for affected employers by $2,000 for H-1B petitions and $2,250 for L-1 petitions.

What about blanket L-1 applications at the consulates?

We expect that collection of the new fee would be part of the visa application process.

How will USCIS count employees? What about an employer that has a large number of H-1B or L-1 workers but is a subsidiary or affiliate of another U.S. company?

There is nothing in the statutory language to indicate how companies would count employees. Some observers have suggested that USCIS might use counting rules similar to those in the Department of Labor’s H-1B dependency regulations, in terms of determining full-time equivalence and treatment of companies within the same business organization. However, there is no indication yet of how the government would approach this.

Is this a permanent provision?

No, it is scheduled to sunset on September 30, 2014.

Source: Fragomen

United States

Priority date cut-offs in the third employment-based immigrant category will advance substantially for most countries, but will move forward more modestly for China and will be unchanged for India.

The Department of State has released the September Visa Bulletin, its projection of immigrant visa availability for the last month of Fiscal Year 2010. In September, priority date cut-offs for nearly all employment-based preference categories will once again advance. In some cases, these advancements exceed the State Department’s earlier projections of employment-based immigrant visa availability through the end of the current fiscal year.

In the employment-based second-preference (EB-2) category, priority dates will advance by just over seven weeks for China and India, to May 8, 2006, and will remain current for all other countries. In the employment-based third preference (EB-3) subcategory for professionals and skilled workers, cut-off dates will advance by six and one-half months for most countries, to December 15, 2004, and one month for China, to October 22, 2003, but will be unchanged for India, at January 1, 2002, and remain unavailable for Mexico. In the EB-3 other worker subcategory, priority dates will advance just over 10 months for most countries, to March 22, 2003, but will remain at January 1, 2002 for India and will be continue to be unavailable for Mexico. All other employment-based categories remain current.

In September 2010, priority date cut-offs for employment-based immigrant categories will be as follows:

EB-1

Current for all countries.

EB-2

China – May 8, 2006.
India – May 8, 2006.
All other countries – current.

EB-3

China – October 22, 2003.
India – January 1, 2002.
Mexico – Unavailable.
All other countries – December 15, 2004.

EB-3 Other Workers

India – January 1, 2002.
Mexico – Unavailable.
All other countries – March 22, 2003.

EB-5

Current for all subcategories and countries.

United States: Senate

This morning, the U.S. Senate passed by unanimous consent the Emergency Border Security Supplemental Appropriations Act of 2010, which contains provisions that will raise fees for certain employers with a U.S. workforce of more than fifty percent H-1B or L-1 nonimmigrants.

The bill was initially passed by the Senate on August 5, but because of a constitutional requirement that revenue measures originate in the House, the bill was sent back to the House, which passed the measure on August 10, and returned to the Senate for its final approval. Though the Senate was in recess, it reconvened with just a few members present. The bill will now go to the President for his signature.

Many issues concerning the legislation remain unresolved, including how the fees would be apportioned and collected. A Fragomen FAQ addresses what is currently known about the H-1B and L-1 fees.

India

The Indian government recently issued guidelines that introduce new criteria for employment visas and clarify the maximum validity and extension periods for business visas. The new guidelines also address in-country registration requirements for employment and business visa holders.

Employment Visa Quota and Validity for Non-IT Positions

Under the new guidelines, Indian employers that sponsor foreign nationals to work in sectors other than information technology (IT) remain subject to the employment visa quota introduced in 2009, which requires sponsoring companies to limit the number of foreign workers they employ in India to 1% of their total workforce or 20 foreign workers in total, whichever is less. However, where 1% of the company’s total workforce is less than five employees, the company may now sponsor up to five foreign workers for employment visas for non-IT positions.

Foreign nationals working in non-IT positions may be issued an employment visa for an initial period of up to two years (increased from the previous one-year period), and may extend their visa in-country for a total validity period of up to five years from the visa’s initial date of issuance.

The requirements for foreign nationals working in the information technology sector, reported here, are unchanged by the new guidelines.

Registration Requirements for Employment Visa Holders

The new guidelines clarify that employment visa holders are required to register with their local Foreigners Regional Registration Office (FRRO) or Foreigners Registration Office (FRO) only if they will remain in India for 180 days or more. If registration is required, it must take place within 14 days of the foreign national’s arrival in India. Registrants will be issued a residence permit that is valid for the same period as their employment visa. They are required to update their residence permit immediately following a change of address. Holders of employment visas issued for a period of less than 180 days are not required to register with local authorities unless otherwise indicated on the visa.

Business Visa Validity, Extensions and Registration Requirements

Business visas may now be issued to nationals of most countries for a total validity period of up to five years. U.S. nationals may be issued business visas with a validity of ten years. (In all cases, business visa holders can be admitted to India for up to six months per stay.) Previously, business visas were generally granted for an initial period up to one year, except to nationals of certain countries.

The new guidelines clarify that business visas with a validity of less than five years may be extended in India for a total period of up to five years from the visa’s initial date of issuance, provided that the gross sales or turnover from the foreign business visitor’s activities in India equal or exceed 10 million rupees (approximately US$ 216,000) per year.

According to the new guidelines, business visas will now carry endorsements that clearly identify the visa holders’ applicable terms of stay, including whether or not they must register with local authorities upon arrival. The endorsements will state either “each stay not to exceed 6 months and registration not required” or “registration required within 14 days.”

Visas for Training or Auditing

The guidelines do not address whether foreign nationals entering India to impart training or to perform auditing activities require a business or employment visa. As such, the appropriate visa category for foreign nationals entering India to engage in either of these activities will be determined by the Indian consular official and will be subject to his or her discretion and interpretation of the guidelines.

Implementation of the New Guidelines

Fragomen is monitoring the implementation of the new guidelines by the authorities in India and by the Indian Missions abroad. It is expected to take some time before the guidelines are implemented fully and consistently across the various Missions.

The content herein is provided for informational purposes only. If you have any questions, please do not hesitate to contact the global immigration professional with whom you work at Fragomen Global Immigration Services or send an email to indiaqueries_newpolicy@fragomen.com.

Source: Fragomen

United States

Foreign nationals applying for authorization to travel to the United States under the Visa Waiver Program will be required to pay a fee of US$14.00 beginning September 8, 2010.

Beginning September 8, 2010, foreign nationals planning to enter the United States under the Visa Waiver Program (VWP) will need to pay a new fee of US$14.00 when they submit an application for permission to travel through the Electronic System for Travel Authorization (ESTA).

ESTA registration is required of all foreign nationals traveling under the VWP. Individuals applying for a first-time or renewal ESTA authorization on or after September 8 will be required to pay the new fee by credit card at the time they submit their application. Travelers who already have ESTA authorization as of September 8 will not be required to pay the fee until they apply to renew their authorization. ESTA registrations are valid for two years or until the foreign national obtains a new passport, whichever comes first.

Impact on Employers and Foreign Nationals

The new fee will impose an additional requirement on foreign nationals seeking ESTA authorization to travel under the Visa Waiver Program on or after September 8. Employers should advise individuals planning to apply for ESTA authorization that they will need to provide credit card information if they submit their application on or after September 8, 2010. Those who apply before September 8 are not subject to the new fee.

ESTA applications can be filed at any time before VWP travel to the United States, but should be submitted at least 72 hours before departure. Applications are submitted online at https://esta.cbp.dhs.gov. If an ESTA application is denied, the foreign national must apply for a B-1/B-2 visitor visa at a U.S. consulate in order to travel to the United States for business visits or tourism.

Source: Fragomen

United States

U.S. Citizenship and Immigration Services has introduced several new features to its website and online case status system.

Among the new features is an online e-Request tool that allows individuals who have filed a Form I-90 application to replace a permanent residence card or an N-400 application for naturalization to send an inquiry if the case has been pending for longer than the agency’s stated processing times or, in the case of an I-90 application, the applicant has not received an appointment for biometrics. According the agency, individuals who use the online inquiry system can expect a response time of 15 days, as opposed to the standard 30-day response time for telephone inquiries through USCIS’s National Customer Service Center. The online inquiry tool is currently limited to Forms I-90 and N-400 only, but the agency has suggested that it could be expanded to include other applications and petitions in the future.

USCIS has also changed the way that search results are displayed in the online case status system, so that individuals who use the system will have better information on the process steps for their case type. Now, when an individual checks the status of a case in the upgraded system, the search results will list all of the relevant processing steps for the specific case type and highlight where the individual’s case stands in the process. Previously, status check results listed more generic process steps, some of which may not have been applicable to the specific case type.

Lastly, the agency has introduced more Spanish-language material on the website, including case status search results and the online change-of-address function.

An agency presentation on the system enhancements is available here.

Source: Fragomen

United Kingdom

Foreign nationals from outside the European Economic Area (EEA) or Switzerland who are applying to enter or remain in the UK as the spouse, civil partner or unmarried partner of a British citizen, UK permanent resident or a holder of some form of settled status in the UK will need to pass an English language test starting November 29, 2010, the UK Border Agency (UKBA) has announced.

Applicants will need to demonstrate a basic command of English and be able to understand and use simple everyday expressions and very basic phrases. Foreign nationals from the following majority English-speaking countries are exempt from the test, however:

• Antigua and Barbuda
• Australia
• the Bahamas
• Barbados
• Belize
• Canada
• Dominica
• Grenada
• Guyana
• Jamaica
• New Zealand
• St Kitts and Nevis
• St Lucia
• St Vincent and the Grenadines
• Trinidad and Tobago
• United States of America

Note that the new requirement applies only to individuals applying for immigration status as the spouse or partner of a British citizen, permanent resident, or individual with settled status in the UK. It will not apply to the spouses or partners of principal foreign nationals with temporary status in the UK, such as those of Tier 1 or Tier 2 migrants under the Points-Based System

Source: Fragomen

Arizona

A federal judge has blocked the State of Arizona from implementing the most controversial provisions of its new immigration law, including a provision that would have required police officers to check the immigration status of individuals suspected of being undocumented and a provision that would have made it a state crime to fail to carry immigration documents. Other portions of the law will take effect as scheduled on July 29.

Federal District Judge Susan R. Bolton has issued a preliminary injunction that prohibits the State of Arizona from implementing several key portions of S.B. 1070, its new and controversial immigration law. The judge determined that the U.S. government is likely to succeed in its argument that certain provisions of the state statute are preempted by federal immigration law.

Judge Bolton’s order blocks Arizona from requiring law enforcement officers to check the immigration status of persons reasonably suspected of being undocumented, and from making it a crime to fail to carry immigration documents. The judge also blocked a provision that would have made it a crime for a foreign national to seek or perform work without employment authorization and a portion of the law that would have allowed police officers to arrest an individual without a warrant if there was probable cause to believe that person had committed an offense rendering him or her removable from the United States.

Judge Bolton did not enjoin the entire law, however, and several of its provisions will now take effect as scheduled on July 29. These include portions that strengthen existing state laws against the knowing or intentional employment of unauthorized foreign nationals, as well as a provision limiting the solicitation of day labor. Other portions of the law will be implemented as well, including a provision that prohibits state agencies and officials from limiting the enforcement of federal immigration law and provisions that criminalize the act of harboring an undocumented foreign national during the commission of a crime or inducing an undocumented individual to come to or live in Arizona.

In the wake of today’s ruling, court challenges to the state statute will now go forward, though Arizona could appeal the preliminary injunction. Fragomen is closely monitoring the lawsuits against S.B. 1070 and will issue further Client Alerts as developments occur.

Source: Fragomen