As part of its Form I-129 revision on November 23, 2010, United States Citizenship and Immigration Services (“USCIS”) added a new Part 6 to Form I-129, the petition form used for most non-immigrant employment classifications. The new Part 6 states the following:

With respect to the technology or technical data the petitioner will release or otherwise provide access to the beneficiary, the petitioner certifies that it has reviewed the Export Administration Regulations (“EAR”) and the International Traffic in Arms Regulations (“ITAR”) and has determined that:

Clearly, many employers will not know whether their disclosure of certain information to the Beneficiary during the course of his or her employment will violate these regulations. In response to requests by numerous stakeholders to delay the implementation of this requirement, USCIS has now announced that the export control attestations (Part 6 of Form I-129) are suspended temporary for 60 days (until February 20, 2011) to allow employers to institute or modify the necessary internal processes to be able to provide accurate attestations with respect to the export control section.

As of December 17, 2010, approximately 53,900 H-1B cap-subject petitions were receipted. Additionally, United States Citizenship and Immigration Services (“USCIS”) has receipted 19,700 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.

Citizenship and Immigration Canada has announced that, effective December 23, 2010, if you are submitting a language test with your application, the results are now valid for 2 years from the time you took the test, instead of 1 year. This change applies to Federal Skilled Worker, Canadian Experience Class and Business Class Immigrants (which includes Investor, Entrepreneur, and Self-Employed categories).

On November 24, 2010, Citizenship and Immigration Canada (“CIC”) announced that it was implementing a pilot project to fulfill its commitment under Section 4.3 of the Temporary Foreign Worker Annex of the Canada-Ontario Immigration Agreement, which was signed in August 2008. Guidelines for the pilot project appear in Operation Bulletin 229, published by CIC.

Under Article 4.3 of the Annex, where a Canadian permanent resident or Canadian citizen who has left Canada returns to Canada to re-establish his or her residence in Ontario and work in Ontario as a Skilled Worker, and he or she is accompanied by a foreign spouse or common law partner and/or dependents, Canada agrees to issue open work permits to that spouse or common law partner and those dependents upon application, provided the applicants are otherwise legally able to work in Ontario. These open work permits should have a validity period of two years. Article 4.4 of the Annex also exempts these dependents from the requirement to obtain a Labour Market Opinion (“LMO”).

The 18-month pilot program will operate from November 24, 2010, until May 24, 2012, inclusive. These dates refer only to the dates on which qualifying work permits can be issued, not to the duration of the work permits. A review of the pilot program will take place after 12 months of operation.

This all sounds very promising but, upon further review, it is clear that this pilot project does not go far enough. Operational Bulletin 229 states that, for the purposes of the pilot, occupations for the Canadian or Permanent Resident re-establishing in Ontario are limited to health professionals and academics in post-secondary public institutions.

While this pilot project is certainly welcome, most returning Canadians and permanent residents will not fall within its parameters. It is hoped that, once the pilot program has ended, CIC will implement a permanent program that extends to spouses, common-law partners, and dependent children of all skilled Canadians or permanent residents returning to Ontario.

United States Citizenship and Immigration Services (“USCIS”) has revised its Form I-129, which employers use to petition for temporary workers in a variety of nonimmigrant visa classifications. The revised version of the form was published on the same day that the final fee rule became effective (November 23, 2010). USCIS will accept previous editions of Form I-129 for 30 days, or until December 22, 2010.

In other words, the last day that USCIS can accept previous editions of the form is December 22, 2010. Petitions must be postmarked or filed on or before this date for the previous edition to be accepted. On or after December 23, 2010, USCIS will only accept the revised form (with the November 23, 2010 revision date) and will reject requests using previous editions of the form. Petitions postmarked or filed on or after this date require the new version of Form I-129.

On November 10, 2010, Citizenship and Immigration Canada (“CIC”) published regulations in the Canada Gazette, which reinstate the Canadian Federal Immigrant Investor Program (“IIP”). These regulations come into force on December 1, 2010.

On June 26, 2010, CIC published proposed regulations in the Canada Gazette, which would increase the personal net worth and investment amounts utilized by the IIP. Under the proposed regulations, the investment required under the IIP would increase from $400,000.00CAD to $800,000.00CAD. In addition, the personal net worth required to qualify under the IIP would increase from $800,000.00CAD to $1.6 Million CAD.

CIC also published Ministerial Instructions in the Canada Gazette, which established a moratorium on new IIP applications from June 26, 2010, until the date that the final regulations became effective. According to the Ministerial Instructions, no applications under the program were to be accepted unless they were post-marked or received by CIC before June 26, 2010. The stated purpose of the moratorium was to mitigate the growing surge in such applications under the lower investment and personal net worth levels.

According to CIC, a net worth of $800,000CAD in 1999 was considered substantial enough to attract applicants with the financial wherewithal and expertise to make a significant positive economic contribution to Canada. However, due to increasing global wealth, CIC believed that a net worth of $800,000 was now within easy reach of a modest property owner in a large city, who may not have other transferable resources as originally envisioned. In addition, CIC stated that most other countries with similar programs now required an investment closer to $1 Million CAD.

The new regulations, which were published on November 10, 2010, reinstate the IIP and implement the higher investment and net worth levels that were initially announced on June 26, 2010. As of December 1, 2010, applicants under the IIP are required to invest $800,000CAD and to establish a personal net worth of $1.6 Million CAD.

United States Citizenship and Immigration Services (“USCIS”) has introduced a standardized form for requesting waivers of the fees charged for immigration-benefit processing. Form I-912, Request for Fee Waiver, became available for use on November 23, 2010.

The new form identifies the requirements for documenting a fee waiver request. The form’s instructions also give information on the methodology that USCIS uses to evaluate the requests. For example, if an applicant can show that he or she is receiving a means-tested benefit and presents evidence to document that claim, then there is no requirement to submit further evidence.

USCIS will use the same methodology in reviewing all fee waiver requests, whether submitted on the new Form I-912 or in a written statement generated by the applicant.

James L. Rector, United States Customs & Border Protection (“USCBP”) Assistant Port Director (“APD”), Blaine, Washington, has informed the American Immigration Lawyers Association that USCBP has now established a NAFTA adjudications trial program. It will be staffing the Pacific Highway port of entry with NAFTA subject matter experts every Tuesday and Thursday from 8:00 am to 4:00 pm for 90 days (through February 25, 2011).

This is interesting because, the former Immigration and Naturalization Service (“Legacy INS”) initially established Free Trade Officers at ports of entry in order to ensure the consistency (and perhaps accuracy) of NAFTA adjudications. Although adjudications made by certain Free Trade Officers were not always correct and were not necessarily consistent with other ports of entry, they were consistent to the extent that similar cases submitted at the same port were adjudicated in the same manner.

When Legacy INS split in March 2003, USCBP started phasing out dedicated Free Trade Officers. The above trial program represents a reversal of USCBP’s prior decision to eliminate Free Trade Officers. If the trial program is successful, USCBP may start assigning dedicated Free Trade Officers to other ports of entry.

On August 4, 2010, the governor-general-in-council published 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 fulfil; 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 offered.

Ban on employers who fail 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 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 affect the employer, provided that the measures are 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 provides compensation or makes 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 provides compensation or makes 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 on its website a list of banned employers, 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 (four 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, for example, 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 the status quo will be maintained at least until April 1, 2011.

On September 1, 2010, Citizenship and Immigration Canada (“CIC”) issued Operational Bulletin 230, which announces a new exemption from the Labour Market Opinion (“LMO”) requirement for foreign medical residents and medical research fellowship holders. This new exemption falls under Paragraph 205(c)(ii) of the Immigration and Refugee Protection Regulations.

Foreign medical residents are holders of a medical degree equivalent to that of a Canadian Medical Doctorate (MD) who are coming to Canada to complete a residency at a Canadian hospital or in a clinical setting as part of their medical training. These positions have a duration of approximately 2–7 years or more depending on the area of medical specialization. Positions occupied by these foreign nationals are non-ministry (not publicly) funded places that have been created by Canadian medical faculties with financial support from the country sponsoring the training of the foreign resident.

Foreign medical fellowship holders are holders of a medical degree equivalent to that of a Canadian Medical Doctorate (MD), and recognized medical specialists who have completed residency training and accept to continue specializing in some highly specific field of study to advance clinical or medical research. Foreign medical fellows doing clinical work/research are typically performing very specific clinical/research work for a one or two year period, in a hospital, clinical or research setting. Although in some provinces fellows have no patient contact. Regardless of whether contact with patients occurs, fellows, like all residents, are required to pass an immigration medical exam according to R30.

Foreign medical residents and fellows must present the following documentation when they apply for their work permits (either at a Canadian consulate or at a port of entry):

a) An official letter of employment from the university written on university letterhead and signed by a senior administrator (e.g. the Program Manager) from the Postgraduate Medical Office, detailing: (1) the position being offered including the area of specialty, if applicable; (2) the length of the residency training/fellowship period (number of months) including the beginning and end dates of the residency or fellowship period; (3) the work location(s) for the duration of residency/fellowship; (4) the annual income offered to the foreign national with an attestation that the wage is commensurate with that of a Canadian performing the same duties in the same location of work; (5) whether the position is covered by a collective agreement; and (6) whether the physician must be licensed by the provincial College of Physicians and Surgeons in order to undergo their residency or fellowship in that province.

b) When applicable, a copy of a letter from the relevant provincial College of Physicians and Surgeons, which confirms in preliminary terms the eligibility of the foreign national for licensure.