The United States Embassy in Ottawa has announced that it will be transitioning to a new appointment service for applicants applying for U.S. visas at U.S. consular posts located in Canada.

All United States embassies/consulates in Canada currently use NVARS, which charges a fee for appointment booking services. However, starting September 1, 2010, applicants will visit CSC VISA INFORMATION SERVICES to either obtain information online or via telephone on how to start their application for a U.S. visa at a consular section in Canada. In addition, as of this date, all services including calling for information and scheduling an appointment will be provided for no additional cost, with no requirement that applicants pay phone charges or PIN numbers to access such services.

Applicants who have already scheduled an appointment through NVARS, should pay their visa application fee, known as the Machine Readable Visa (“MRV”) fee, prior to September 1, 2010; they should then bring their Scotiabank receipt to the appointment. It is recommended that applicants who have not yet started their application process wait until after September 1, 2010, to pay their MRV fee and schedule an appointment under the new, no-cost service.

Beginning September 1, 2010, applicants will be required to pay their MRV fee prior to scheduling an appointment. For applicants who paid their MRV fee prior to September 1, 2010, but who have not scheduled an appointment, there will be a grace period from September 1, 2010 until October 1, 2010 during which they can still use their previously paid MRV fee for appointment scheduling. However, if they have not scheduled an appointment prior to October 1, 2010, they will have to pay the MRV fee again through the new service in order to schedule an appointment.

The Department of State’s National Visa Center (“NVC”) has provided information on its new Immigrant Visa Electronic Processing Program (the “Program”), a pilot project that uses electronic communication and documentation methods to simplify and accelerate the immigrant visa application process. The Program uses e-mail for communication and submission of all forms and documents to the NVC using Portable Document Format (“PDF”).

Under the Program, all forms will be downloaded, completed, signed (if required), scanned, saved as PDF files, and e-mailed to the NVC. Required civil documents and supporting documents must be converted to PDF files by scanning and e-mailed to the NVC. After the NVC has completed processing the applicant’s petition, the applicant will need to present the original physical documents to the US Embassy/Consulate at the time of the applicant’s visa interview. Failure to do so may cause a delay or denial of the visa being sought.

The Program applies to the following applicants:

1. Applicants who are applying for a visa at the U.S. Embassy in Ashgabat, Turkmenistan are required to process electronically.
2. Applicants who are applying for a visa at the U.S. Consulate General in Ciudad Juarez, Mexico, in the following visa categories are required to process electronically if the first three letters of their NVC Case Number are MEP:
   • CR1 Conditional Spouse of United States Citizen
   • CR2 Conditional Child of United States Citizen
   • IR1 Spouse of United States Citizen
   • IR2 Child of United States Citizen
3. The option to participate is initially limited to visa applicants who are applying for a visa at the U.S. Embassies in Guangzhou, China and Montreal, Canada.

If eligible to participate in the Program, the applicant (or designated agent) and the petitioner must:

1. Have regular access to e-mail internet service;
2. Have the ability to scan required documents into PDF files; and
3. Be able to submit all forms electronically (no paper copies will be accepted).

All visa applicants, their designated agent (if applicable), and their petitioner will need to follow the processing requirements in order to successfully complete electronic processing of the immigrant visa petition. If the applicant and/or designated agent meets the above requirements and chooses to participate, further information on electronic processing requirements appears here.

If the applicant and/or designated agent DOES NOT meet the above requirements, the applicant is not eligible for participation in the Program. Such an applicant (or an applicant who is eligible but who chooses not to participate) should follow the instructions provided in the National Visa Center’s letter (e.g. paying the applicable fee or mailing the Choice of Address and Agent Form, DS-3032, to the NVC).

The Program represents a positive change. Previously, immigrant visa applicants were required to submit their original documents to the NVC, which could potentially have resulted in lost original documents. The Program now allows applicants to submit PDF copies of required documents and to simply bring the original documents to their final interview.

As of August 26, 2010, United States Citizenship and Immigration Services (“USCIS”) receipted 4,841 petitions toward the 33,000 H-2B cap amount for the first half of the fiscal year. This count includes 3,654 approved and 1,187 pending petitions.

The H-2B non-agricultural temporary worker program allows U.S. employers to bring foreign nationals to the United States to fill temporary non-agricultural jobs. There is a statutory numerical limit, or “cap,” on the total number aliens who may be issued a visa or otherwise provided H-2B status (including through a change of status) during a fiscal year.

Currently, the H-2B cap set by Congress is 66,000 per fiscal year, with 33,000 to be allocated for employment beginning in the 1st half of the fiscal year (October 1 – March 31) and 33,000 to be allocated for employment beginning in the 2nd half of the fiscal year (April 1 – September 30). Any unused numbers from the first half of the fiscal year will be made available for use by employers seeking to hire H-2B workers during the second half of the fiscal year. There is no “carry over” of unused H-2B numbers from one fiscal year to the next.

Generally, an H-2B worker who extends his/her stay in H-2B status will not be counted again against the H-2B cap. Similarly, the spouse and children of H-2B workers classified as H-4 nonimmigrants are not counted against this cap. Additionally petitions for the following types of workers are exempt the H-2B cap:

1. Fish roe processors, fish roe technicians and/or supervisors of fish roe processing
2. From November 28, 2009 until December 31, 2014, workers performing labor or services in the
Commonwealth of Northern Mariana Islands and/or Guam.

Once the H-2B cap is reached, USCIS may only accept petitions for H-2B workers who are exempt from the H-2B cap.

As of August 27, 2010, approximately 34,900 H-1B cap-subject petitions were receipted. United States Citizenship and Immigration Services (“USCIS”) has also receipted 13,000 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.

On August 23, 2010, the Alberta Immigrant Nominee Program (“AINP”) announced that, in response to current job market conditions, it is no longer accepting applications for two immigration streams. Effective immediately, the AINP will not accept new applications in the Family Stream and the U.S. Visa Holder Category. This change is temporary but will be effective until further notice.

“Our focus needs to be on jobs for Albertans and Canadians first,” said Thomas Lukaszuk, Minister of Employment and Immigration. “We will continue to process applications for people who have the skills our growing economy needs.”

The federal government limits the number of people Alberta can nominate for permanent residence. In 2010 Alberta is allowed to nominate 5,000 people. With limited numbers, Alberta’s focus will be on nominating people who currently work in permanent jobs and those who have job offers in occupations that are in demand in Alberta.

The official news release appears here.

On August 4, 2010, the Governor General in Council published amendments (the “Amendments”) to the Immigration and Refugee Protection Regulations (“IRPR”), which will adversely affect many temporary foreign workers (“TFWs”). Although the Amendments do not come into force until April 1, 2011, the changes are significant. An overview of these amendments is provided below:

Assessment of Employment Offered [R200(5)]

The Amendments establish specific factors to assess the genuineness of the employer’s offer of employment to a TFW, both in Labour Market Opinion (“LMO”) cases and in LMO-exempt cases. These factors include:

1. Whether the offer is made by an employer that is actively engaged in the business in respect to which the offer is made (except in the case of live-in caregivers, who are typically employed by households instead of businesses);
2. Whether the offer is consistent with reasonable employment needs of the employer;
3. Whether the terms of the offer are terms that the employer is reasonably able to fulfill; and
4. The past compliance of the employer, or any person who recruited the foreign national for the employer, with the federal or provincial laws that regulate employment, or the recruiting of employees, in the province in which it is intended that the foreign national work.

Additional Employer-Related Requirements for Live-In Caregivers [R203(1)(d)]

In the case of a live-in caregiver, an immigration officer must determine, on the basis of an LMO provided by Human Resources and Skills Development Canada (“HRSDC”), if:

1. The foreign national will reside in a private household in Canada and provide child care, senior home support care, or care of a disabled person in a household without supervision;
2. The employer will provide adequate furnished and private accommodations in the household; and
3. The employer has sufficient financial resources to pay the foreign national the wages that are offered to the foreign national.

Ban on Employers Who Failed to Substantially Comply with the Terms of a Previous LMO [R200(1)(c)(ii.1)(B) and R203(1)(e)]

The Amendments make an employer ineligible to seek a work permit on behalf of a TFW unless, during the period beginning two years before the initial request for an LMO is made to HRSDC or, in the case of an LMO-exempt work permit, beginning two years before the work permit application is received by Citizenship and Immigration Canada (“CIC”) or the Canadian Border Services Agency (“CBSA”):

1. The employer provided each of its foreign workers with wages, working conditions, and employment in an occupation that were substantially the same as the wages, working conditions, and occupation set out in the employer’s offer of employment; or
2. The failure to do so was justified in accordance with R203(1.1).

The permitted justifications described in R203(1.1) include:

1. A change in federal or provincial law;
2. A change to the provisions of a collective agreement;
3. The implementation of measures by the employer in response to a dramatic change in economic conditions that directly affected the employer, provided that the measures were not directed disproportionately at foreign nationals employed by the employer;
4. An error in interpretation made in good faith by the employer with respect to its obligations to a foreign national, if the employer subsequently provided compensation or made sufficient attempts to do so to all foreign nationals who suffered a disadvantage as a result of the error;
5. An unintentional accounting or administrative error made by the employer, if the employer subsequently provided compensation or made sufficient attempts to do so to all foreign nationals who suffered a disadvantage as a result of the error; or
6. Circumstances similar to those set out above.

The assessment is undertaken at the time that a new LMO is requested or, in the case of an LMO-exempt work permit application, when the work permit application is received by CIC/CBSA.

Published List of Banned Employers [R203(6)]

The Amendments provide that CIC must maintain a list of banned employers on its website, stating the names and addresses of each employer and the date that the determination was made. HRSDC will not issue an LMO and CIC/CBSA will not issue a work permit for any banned employer.

Temporary Foreign Workers Limited to Four Years [R200(3)(g)]

The Amendments provide for a cumulative four-year cap on TFWs until a period of 48 months (4 years) has elapsed. However, exemptions from the four-year cap exist in the following situations:

1. The foreign national intends to perform work that would create or maintain significant social, cultural, or economic benefits or opportunities for Canadian citizens or permanent residents. Therefore, work permits based on LMO exemptions such as significant benefit to Canada (C10) and intracompany transferee (C12), among others, will be exempt from the four-year cap.
2. The foreign national intends to perform work pursuant to an international agreement between Canada and one or more countries, including an agreement concerning seasonal agricultural workers. Therefore, work permits issued in accordance with international agreements such as the North American Free Trade Agreement, the General Agreement on Trade in Services, and the Canada-Chile Free Trade Agreement, among others, will be exempt from the four-year cap.

Fortunately, a TFW who has reached the four-year cap is not required to leave Canada; they just may not obtain a work permit during the subsequent 48-month period. In other words, the foreign national could obtain a study permit, attend school for 48 months, and then once again become eligible for a work permit.

LMOs to Indicate Period of Validity [R203(3.1)]

The Amendments provide that LMOs shall indicate the period during which the opinion is in effect. If the TFW does not obtain a work permit within the time period, the employer must request a new LMO from HRSDC.

HRSDC’s current policy is that all LMOs expire six months after issuance. It is unknown whether this validity period will continue once the Amendments come into force.

Conclusion

Clearly, the Amendments will have a dramatic and undesirable effect on most TFWs. The only positive news is that status quo will be maintained at least until April 1, 2011.

I previously reported that Citizenship and Immigration Canada (”CIC”) had published Ministerial Instructions, which affected the Federal Skilled Worker Class. These Ministerial Instructions imposed a mandatory language proficiency assessment on all Federal Skilled Worker cases, even those submitted by native English or French speakers and even where they did not require language points to qualify.

I also previously reported that, following the issuance of these Ministerial Instructions, CIC also revised its IMM 5612 Document Checklist, which is used for the initial filing of Federal Skilled Worker applications with the Central Intake Office (”CIO”). The language proficiency assessment was an expected addition to IMM 5612. However, what was not expected was the requirement that applicants also submit all documents listed on the specific visa office document checklist applicable to the consular post where the application will be processed.

Based on the current IMM 5612, the applicant must now submit a complete application, including all supporting documentation at the time of the initial filing with the CIO. This had the potential for causing considerable delays since documents such as police certificates could take months to obtain. Fortunately, CIC has now clarified that, as police certificates are related to admissibility rather than eligibility, applicants will not be required to provide them when they submit their application to the CIO.

Another serious question that arose from the current IMM 5612 was whether the CIO would forward the supporting documents to the consular post after it had done its initial screening. Prior to this change, the CIO did not forward the application forms to the consular post; it simply entered information contained in the forms into CIC’s database. CIC has now also clarified that documents must only be submitted once and that they will be forwarded to the consular post once the initial screening has been completed.

In the past, the Citizenship and Immigration Canada (“CIC”) Case Processing Center in Vegreville, Alberta (“CPC-V”), would accept a work permit extension application where a labour market opinion (“LMO”) application had been filed with Human Resources and Skills Development Canada (”HRSDC”), even if it was still pending at the time of filing.

CIC would accept the work permit application without the approved LMO. When it was ready to adjudicate the extension application (several months later), if the approved LMO was not included in the file, the work permit extension would be denied on that basis. However, if the LMO was approved in the interim, the employer could forward it to CIC before the adjudication of the work permit extension took place and the extension would be approved.

This permitted foreign nationals to benefit from implied status even if their existing work permits expired prior to the approval of their new LMOs. Assuming that the work permit extension application was filed prior to the expiration of the foreign national’s work permit, he or she would be entitled to implied status under Subsection 183(5) of the Immigration and Refugee Protection Regulations and could continue to work until the application was adjudicated.

However, in July 2010, CIC posted a notice on its website indicating that “concurrent filing” would no longer be permitted. The notice stated the following:

“If you are applying for a work permit for a job that requires an LMO, you must now include the valid LMO with your application. We are no longer accepting work permit applications without valid LMOs.”

The potential implications of this notice were considerable. Given the fact that HRSDC has been taking a strict approach to LMO applications, frequently requiring employers to repeat recruitment efforts in the case of minor irregularities, the inability of foreign nationals to acquire implied status while their LMO applications were pending could have created significant gaps in their employment authorizations.

In response to concerns raised by the Canadian Bar Association National Citizenship and Immigration Section, CIC has provided further clarification of this notice. It has now clarified that, although it may not be departmental policy to allow for concurrent processing of a work permit and LMO, CIC does have a procedure in place for when an applicant has already applied for the LMO, but has not yet received it, and his or her status will expire shortly.

To prevent the client from falling out of status, CPC-V previously agreed to accept the work permit application with proof that the client already applied for the LMO. CIC now states that this will continue because it does not consider this to be “concurrent processing.”

When CIC refers to “concurrent processing,” it is apparently referring to the situation where the work permit and LMO applications are submitted at the same time. In the situation described above, the LMO application has already been filed, even though it is still pending. When the work permit application is filed with evidence of the pending LMO application, the above procedure will continue to apply.

Although somewhat contrived, CIC’s recent clarification is good news for temporary foreign workers who require an LMO. Applicants who file their work permit extension applications with proof of their pending LMO applications will continue to benefit from implied status; CPC-V will not summarily reject these applications.

On May 25, 2010, we previously reported that the Simplified Entry Process for Information Technology Specialists (the “IT Worker Program”) would end on September 30, 2010. On August 5, 2010, Citizenship and Immigration Canada issued Operational Bulletin 225, which provided modified processing instructions for IT Worker Program cases filed prior to October 1, 2010.

According to Operational Bulletin 225, requests for an extension of a work permit or a new work permit application that has been filed prior to October 1, 2010, if approved, will be granted for a maximum duration of one year from the date of issuance of the work permit. Applications filed on or after October 1, 2010, will require a labour market opinion.

Operational Bulletin 225 is available here.

I previously reported that Citizenship and Immigration Canada (“CIC”) had published Ministerial Instructions, which affected the Federal Skilled Worker Class. These Ministerial Instructions imposed a mandatory language proficiency assessment on all Federal Skilled Worker cases, even those submitted by native English or French speakers and even where they did not require language points to qualify.

Following the issuance of these Ministerial Instructions, CIC also revised its IMM 5612 Document Checklist, which is used for the initial filing of Federal Skilled Worker applications with the Central Intake Office (“CIO”). The language proficiency assessment was an expected addition to IMM 5612. However, what was not expected is the requirement that applicants also submit all documents listed on the specific visa office document checklist applicable to the consular post where the application will be processed.

Prior to this change, the CIO did not require supporting documentation with the initial filing. Instead, applicants submitted a simplified application consisting primarily of relevant forms and the filing fee, without any supporting documentation. Once the CIO had screened the application and forwarded the case to the consular post, the applicant would be expected to provide any relevant supporting documentation to the post directly.

Based on the current IMM 5612, the applicant must now submit a complete application, including all supporting documentation at the time of the initial filing with the CIO. This can cause considerable delays since documents such as police clearance certificates can take months to obtain from certain countries.

Another more serious question is whether the CIO will forward the supporting documents to the consular post after it has done the initial screening. Prior to this change, the CIO did not forward the application forms to the consular post. It simply entered information contained in the forms into CIC’s database. If all supporting documentation must now be filed initially with the CIO, it is uncertain whether these documents will now be forwarded to the consular post once CIO has screened the application.