On December 13, 2012, Citizenship, Immigration and Multiculturalism Minister Jason Kenney and United States Ambassador to Canada David Jacobson signed the U.S.-Canada Visa and Immigration Information-Sharing Agreement (the “Agreement”) in furtherance of the Perimeter Security and Economic Competitiveness Action Plan (the “Action Plan”), which was signed in 2011 by Prime Minister Stephen Harper and President Barack Obama. As part of the Action Plan, Canada and the United States committed to share immigration information to improve border efficiency and security, by establishing and verifying the identities of foreign nationals, and identifying those who were inadmissible, at the earliest opportunity.

The Agreement authorizes development of arrangements under which Canada may send an automated request for data to the United States, such as when a third country national applies to Canada for a visa or claims asylum. Such a request would contain limited information, such as name and date of birth in the case of biographic sharing, or an anonymous fingerprint in the case of biometric sharing. If the identity matches that of a previous application, immigration information may be shared, such as whether the person has previously been refused a visa or removed from the other country. The same process would apply in reverse when a third country national applies to the United States for a visa or claims asylum.

According to the Agreement, no information will be shared on Canadian or United States citizens or permanent residents. However, it will allow both countries to share information regarding third-country nationals who apply for a visa or a permit to travel to either country. The Agreement also provides an additional tool for regular, systematic information sharing on inland asylum claimants.

Biographic immigration information sharing is set to begin in 2013 and biometric sharing in 2014.

On June 8, 2012, the President Obama signed H.R. 3992 into law. The legislation, which was spearheaded by Rep. Howard Berman (D-Calif.), will grant E-2 investor visas to citizens of Israel. E-1 treaty trader visas have been available to citizens of Israel since April 3, 1954, until now they were ineligible to seek E-2 investor visas. Unfortunately, E-2 eligibility for citizens of Israel will not become effective until the terms and conditions of the final agreement are determined between the two countries.

On January 6, 2012, the Department of Homeland Security (“DHS”) announced that it was proposing a regulatory change that would allow spouses and children of U.S. citizens who are in the United States but need an immigrant waiver of unlawful presence bar to apply for the waiver within the United States. On January 9, 2012, DHS published a Notice of Intent relating to these proposed changes, in the Federal Register.

Under the Immigration and Nationality Act (“INA”), certain grounds of inadmissibility can bar aliens from being admitted to the United States or from obtaining an immigrant visa. However, the Secretary of DHS, through United States Citizenship and Immigration Services (“USCIS”), may waive some of those grounds.

Currently, aliens who are immediate relatives of U.S. citizens applying for immigrant visas at consular posts must apply for immigrant waivers while outside the United States, after a finding of inadmissibility is made by a consular officer in connection with their immigrant visa applications. As a result, U.S. citizen petitioners are often separated from their immediate relatives for extended periods.

The proposed regulatory change would allow spouses and dependent children of U.S. citizens to apply for a provisional immigrant waiver of the unlawful presence bars while they are still in the United States. If the provisional waiver is granted, the foreign national will then leave the United States and apply for an immigrant visa at a consular post abroad. If the alien is otherwise eligible for the immigrant visa, the consular officer may then approve the issuance of the visa so that the alien may enter the United States as a permanent resident.

There are two unlawful presence bars described under INA 212(a)(9)(B)(i). According to INA 212(a)(9)(B)(i)(I), an alien who was unlawfully present in the United States for more than 180 days but less than one year, and who then departs voluntarily from the United States before the commencement of removal proceedings, will be inadmissible for three years from the date of departure. According to INA 212(a)(9)(B)(i)(II), an alien who was unlawfully present for one year or more and then departs before, during, or after removal proceedings, will be inadmissible for ten years from the date of the departure.

The provisional waiver would only apply to the three- and ten-year unlawful bars mentioned above. Aliens who require immigrant waivers for one or more additional grounds of inadmissibility, such as fraud or willful misrepresentation or certain criminal offenses in conjunction with their immigrant visa applications must continue to request those waivers while outside of the United States in accordance with existing procedures.

According to INA 212(a)(9)(B)(v), an immigrant waiver of the unlawful presence bars is currently available in the case of the spouse or son or daughter of a United States citizen or of an alien lawfully admitted for permanent residence. However, the alien must establish that the refusal to grant the waiver would result in extreme hardship to the alien’s U.S. citizen or lawfully resident spouse or parent. The proposed regulatory change would not modify the standard for assessing eligibility for unlawful presence waivers; it would only change the timing of when such a waiver could be obtained.

DHS also intends to limit who may participate in the provisional waiver program to immediate relatives who can demonstrate extreme hardship to a U.S. citizen spouse or parent. Immediate relatives who can demonstrate extreme hardship to a U.S. permanent resident spouse or parent may still qualify for a normal immigrant waiver but are not eligible to seek a provisional waiver under this program.

This provisional waiver process would not alter the requirement that an alien depart from the United States to apply for an immigrant visa. An alien who receives a provisional waiver of the unlawful presence bar would not gain the benefit of such waiver unless he or she departed from the United States. This is intended to prevent such aliens from seeking permanent residence from within the United States by means of adjustment of status.

While these are only proposed changes, they represent a step in the right direction for immediate relatives of United States citizens who have incurred an unlawful presence bar due a prior overstay.

Introduction

On February 4, 2011, President Obama and Prime Minister Harper announced the United States-Canada joint declaration, Beyond the Border: A Shared Vision for Perimeter Security and Economic Competitiveness. It contemplated a shared approach to security in which both countries would work together to address threats within, at, and away from the border, while expediting lawful trade and travel.

On December 7, 2011, Obama and Harper released their Beyond the Border Action Plan (the “Plan”) which discusses, among other things, their shared vision for perimeter security. In furtherance of this objective, the Plan proposes several immigration-related initiatives. The United States and Canada state that they will:

1. Use a common approach to screening methodologies and programs, including pre-travel screening and targeting; “board/no-board” perimeter screening and decision processes, and technology;
2. Share relevant, reliable, and accurate information within the legal and privacy regimes of both countries, such as information contained on biographic and biometric national security watchlists, certain traveler criminal history records, and immigration violations; and
3. Share United States–Canada entry data at the land border such that the entry information from one country could constitute the exit information from another through an integrated entry and exit system.

Each of these initiatives is described in further detail below.

Common Approach to Screening

In connection with this initiative, Canada has agreed to implement two initiatives over the next 4 years: (a) the Electronic Travel Authorization (“eTA”), to improve screening of all visa-exempt foreign nationals, and (b) Interactive Advance Passenger Information (“IAPI”) to make “board or no-board” decisions on all travelers flying to Canada prior to departure. A brief description of each appears below:

1. The eTA initiative mirrors the Advance Passenger Information System (“APIS”) currently in place in the United States; APIS enables the Department of Homeland Security (“DHS”) to collect manifest information for international flights departing from or arriving in the United States and to compare them to relevant watchlists prior to the issuance of a boarding pass; Canadian citizens are subject to APIS so it is reasonable to assume that United States citizens will be subject to eTA once it is implemented.
2. IAPI mirrors the Electronic System for Travel Authorization (“ESTA”), which currently applies to foreign nationals who travel to the United States under the Visa Waiver Program (“VWP”). Canadian citizens are visa exempt but not as a result of the VWP so they are not currently subject to ESTA. It is therefore reasonable to assume that United States citizens will not be subject to eTA, once it is implemented.

Share Relevant Information to Improve Immigration and Border Determinations

In connection with this initiative, the United States and Canada have agreed to:

1. Share risk assessment/targeting scenarios, and enhance real time notifications regarding the arrival of individuals on U.S. security watchlists;
2. Provide access to information on those who have been removed or who have been refused admission or a visa from either country, as well as those who have been removed from their respective countries for criminal reasons; and
3. Implement a systematic and automated biographic information sharing capability by 2013 and biometric information sharing capability by 2014 to reduce identity fraud and enhance screening decisions, and in support of other administrative and enforcement actions.

This initiative has raised concerns among privacy advocates, who claim that Canada may be sharing too much information with the United States. Although some of this information is already shared between United States Customs & Border Protection (“USCBP”) and the Canadian Border Services Agency (“CBSA”), the Plan proposes even greater sharing of information between the two countries, including:

1. Sharing information concerning who has been removed, denied admission, or refused a visa from the other country; this information has not traditionally been shared between the two countries. Access to this level of information could adversely affect an applicant’s ability to enter the destination country even when they have not previously violated the laws of that country. Not all denials of admission or visa refusals are based on valid grounds of inadmissibility but may have the effect of prejudicing an immigration officer’s decision to admit or deny a specific passenger.
2. Implementing automated biographic information and biometric information sharing capability; this certainly has the potential to violate the privacy rights of Canadian and United States citizens. It remains to be seen how much sensitive information will actually be shared once this initiative has been implemented.

Establish and Coordinate Entry and Exit Information Systems

In connection with this initiative, Canada and the United States have committed to developing a system to exchange biographical information on the entry of travelers, including citizens, permanent residents, and third country nationals, such that a record of entry into one country could be considered as a record of an exit from the other. With regard to air travel, Canada has committed to develop (by June 30, 2014) a system to establish exits, similar to that in the United States, under which airlines will be required to submit their passenger manifest information on outbound international flights.

The United States has been trying to develop and entry-exit control system since it passed Section 110 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”). However, it was never able to develop an efficient exit control system to track the departure of foreign nationals.

USCBP has implemented an informal exit control system by requiring most departing passengers to surrender their Form I-94 Departure Records at the time of their exit (Canadian citizens entering as visitors for business or pleasure are not issued Form I-94s). However, it is hardly an effective or reliable system. This initiative will eventually allow the United States to track the departure of foreign nationals from the United States by outsourcing the task to CBSA.

Perhaps sharing the Canadian entry information of foreign nationals departing from the United States by land is not a serious concern for Canada, since CBSA must inspect these foreign nationals in connection with their application for admission to Canada and since an entry into Canada is clearly evidence of their departure from the United States. However, Canada’s commitment to share the exit information of foreign nationals departing from Canada by air on international flights may be going a bit too far.

While there may be a legitimate need for the United States to know when a foreign national has entered Canada (i.e. to verify his or her departure from the United States), there is no justification for sharing information on foreign nationals who are departing Canada for a destination other than the United States. If they are in Canada and are not travelling to the United States, there appears to be no legitimate reason why the United States would need this information.

Conclusion

Although some of the above initiatives are potentially controversial (in some cases, potentially unjustifiable), it is still only an action plan. None of the immigration-related initiatives described in the Plan have been implemented yet and it may be some time before this occurs. It will be interesting to see how Canada and the United States ultimately implement these initiatives in the future.

On November 23, 2011, United States Citizenship and Immigration Services (“USCIS”) announced that it had received a sufficient number of H-1B petitions to reach the statutory cap of 65,000 for fiscal year 2012 (“FY 2012″).

November 22, 2011 was the final receipt date for new H-1B specialty occupation petitions requesting an employment start date in FY 2012. As of October 19, 2011, USCIS had also received more than 20,000 H-1B petitions filed on behalf of persons exempt from the cap under the “advanced degree” exemption. USCIS will now reject cap-subject petitions for new H-1B specialty occupation workers seeking an employment start date in FY 2012 that were received after November 22, 2011.

Of course, USCIS will continue to accept and process petitions that are otherwise exempt from the cap. In addition, petitions filed on behalf of current H-1B workers who have been counted previously against the cap will not be counted toward the FY 2012 H-1B cap.

U.S. businesses use the H-1B program to employ foreign workers in specialty occupations that require theoretical or technical expertise in specialized fields, such as scientists, engineers, or computer programmers. The current annual cap on the H-1B category is 65,000. However, some petitions are exempt from the cap under the advanced degree exemption provided to the first 20,000 petitions filed for a beneficiary who has obtained a U.S. master’s degree or higher. Others are completely exempt from the numerical limits.

Please note that, each year, up to 6,800 H-1B numbers may be set aside from the cap of 65,000 during each fiscal year for the H-1B1 program under the terms of the legislation implementing the U.S.-Chile and U.S.-Singapore Free Trade Agreements. Unused numbers in this pool are made available for H-1B use for the next fiscal year.

For further information regarding the H-1B category, please review our H-1B article, which is available here.

The U.S. Department of State has published instructions relating to its upcoming Diversity Immigration Lottery for the 2013 fiscal year. For DV-2013, natives of the following countries are not eligible to apply because the countries sent a total of more than 50,000 immigrants to the United States in the previous five years:

BANGLADESH, BRAZIL, CANADA, CHINA (mainland-born), COLOMBIA, DOMINICAN REPUBLIC, ECUADOR, EL SALVADOR, GUATEMALA, HAITI, INDIA, JAMAICA, MEXICO, PAKISTAN, PERU, PHILIPPINES, SOUTH KOREA, UNITED KINGDOM (except Northern
Ireland) and its dependent territories, and VIETNAM. Persons born in Hong Kong SAR, Macau SAR, and Taiwan are eligible.

For DV-2013, natives of South Sudan and Poland are now eligible for selection, while Bangladesh natives are now ineligible.

Paper entries will not be accepted. Entries for the DV-2013 DV program must be submitted electronically between noon, Eastern Daylight Time (EDT) (GMT-4), Tuesday, October 4, 2011, and noon, Eastern Daylight Time (EDT) (GMT-4), Saturday, November 5, 2011. Applicants may access the electronic DV Entry Form (E-DV) at www.dvlottery.state.gov during the registration period. No entries will be accepted after noon, EDT, on November 5, 2011.

Effective August 15, 2011, petitioners residing outside the United States will no longer be able to routinely file Form I-130, Petition for Alien Relative, with U.S. embassies and consulates. As of the above date, petitioners residing overseas in countries where United States Citizenship and Immigration Services (“USCIS”) does not have a public counter presence (most posts will not) will be required to file their Form I-130 by mail with the USCIS Chicago Lockbox.

Thereafter, U.S. embassies and consulates will only be able to accept and process Forms I-130 in exceptional circumstances. However, petitions properly filed at an embassy or consulate prior to August 15, 2011, will not be affected by this change.

This change eliminates a significant advantage that petitioners residing outside the United States previously had over petitioners residing in the United States. By filing their Form I-130 with a consulate abroad, the adjudication of Form I-130 was significantly faster, since the consulate would approve the petition directly rather than forwarding it to USCIS.

Under the new procedures that take effect on August 15, 2011, petitioners residing outside the United States will be subject the same extended delays that apply to other Form I-130 petitions filed with USCIS.

On July 26, 2011, United States Customs & Border Protection (“USCBP”) announced that Global Entry kiosks are now available at USCBP preclearance at Vancouver International Airport and Ottawa’s MacDonald-Cartier Airport, and will be available at Montreal’s Trudeau International Airport and Toronto’s Lester B. Pearson International Airport by September. The placement of Global Entry kiosks at Canadian preclearance locations is part of the integration of the Global Entry and NEXUS Trusted Traveler programs.

The integration of the Global Entry and NEXUS programs began in December 2010, when USCBP published a Federal Register Notice announcing that NEXUS members could participate in Global Entry. With the deployment of Global Entry kiosks to Canadian preclearance, Global Entry members will be able to take advantage of the program when returning home from Canada.

NEXUS members, who have Global Entry benefits, have the option of using either the Global Entry or NEXUS kiosks in preclearance. “Having Global Entry kiosks at USCBP preclearance sites in Canada is another step we are taking to facilitate Global Entry and NEXUS members traveling into the U.S.,” said Office of Field Operations Assistant Commissioner Thomas S. Winkowski. “Trusted traveler members will now be able to enjoy this benefit as USCBP officers concentrate on those travelers who we know less about and who may pose a risk to our homeland.”

As I previously mentioned, Global Entry is a voluntary pilot program that streamlines the international arrivals process for pre-approved travelers through use of self service kiosks located at 20 major U.S. airports. The pilot program is an alternative to regular passport processing procedures, allowing members to bypass the regular line, and currently reduces average wait times by 70 percent. To date, Global Entry members have used the kiosks more than one million times.

Global Entry is available to U.S. citizens and U.S lawful permanent residents, as well as Mexican nationals. Citizens of the Netherlands may also apply under a special reciprocal arrangement that links Global Entry with the Dutch Privium program in Amsterdam. Canadian citizens and residents may participate in Global Entry through membership in the NEXUS program.

United States Citizenship and Immigration Services (“USCIS”) has updated its H-1B cap count for the current fiscal year. As of July 22, 2011, approximately 21,600 H-1B cap-subject petitions were receipted. Additionally, USCIS has receipted 13,300 H-1B petitions for aliens with advanced degrees.

U.S. businesses use the H-1B program to employ foreign workers in specialty occupations that require theoretical or technical expertise in specialized fields, such as scientists, engineers, or computer programmers. The current annual cap on the H-1B category is 65,000. However, some petitions are exempt from the cap under the advanced degree exemption provided to the first 20,000 petitions filed for a beneficiary who has obtained a U.S. master’s degree or higher. Others are completely exempt from the numerical limits.

Please note that up to 6,800 H-1B numbers may be set aside from the cap of 65,000 during each fiscal year for the H-1B1 program under the terms of the legislation implementing the U.S.-Chile and U.S.-Singapore Free Trade Agreements. Unused numbers in this pool are made available for H-1B use for the next fiscal year.

For further information regarding the H-1B category, please review our H-1B article, which is available here.