The U.S. Department of State (“DOS”) has released a new version of Form DS-160, the online nonimmigrant visa application form used by all United States embassies and consulates. The previous DS-160 was plagued by system problems; the new version is supposed to resolve most of the problems associated with the old form. Of course, time will tell.

The new DS-160 now clarifies what DOS has been advising attorneys since the first DS-160 was released – that only the applicant may click the submit button. The main page of the Form DS-160 now clearly advises applicants that they must electronically sign and submit their own application, even if someone else helped them to complete the application. The new Form DS-160 also includes six new questions that relating to possible grounds of inadmissibility.

For further details regarding the new Form DS-160, please refer to the Frequently Asked Questions page for the new form.

On June 24, 2011, Citizenship, Immigration and Multiculturalism Minister Jason Kenney announced that Canada would be adjusting its intake of applications from economic immigrants “to further reduce the backlog and improve wait times.” Effective July 1, 2011, the changes will affect new applicants to the Federal Skilled Worker (“FSW”) Program, the Federal Immigrant Investor Program, and the Federal Entrepreneur Program.

The previous Ministerial Instructions, which were published on June 26, 2010, stated that FSW applicants who did not have an offer of employment would not be accepted for processing unless they fell under one of the 29 occupations listed in the instructions. In addition, these applicants were subject to a total cap of 20,000 per year and a sub-cap of 1,000 per year for each of the 29 listed occupations.

As of July 1, 2011, FSW applicants who do not have an offer of employment in Canada will now be limited to a total cap of 10,000 a year and a sub-cap of 500 per year for each of 29 listed occupations. This represents a 50% reduction in both the total number of FSW applicants (who are permitted to apply without an offer of employment in Canada) and in the number that may apply in each of the 29 listed occupations each year.

Minister Kenney is also introducing an annual cap of 700 on new Federal Immigrant Investor applications. Although last year, Citizenship and Immigration Canada (“CIC”) made changes that raised the minimum net worth and investment requirements, Minister Kenny claims that it continues to receive applications in excess of what is required. The annual cap on new applications will supposedly allow for progress on backlog reduction while ensuring that CIC has a sufficient volume of new files to meet its commitments.

Minister Kenney is also introducing a temporary moratorium on new Federal Entrepreneur Program applications. According to the announcement, wait times for this program currently stretch to eight years in some visa offices; by ceasing to accept new applications as of July 1, 2011, CIC will supposedly prevent further processing delays.

The announcement states that the Federal Entrepreneur Program will undergo a review in the coming months to ensure that Canada is better able to attract and retain innovative entrepreneurs. However, in recent years, only a small number of applicants has applied under the Federal Entrepreneur Program. Although time will tell, it is quite possible that the Federal Entrepreneur Program will never be reinstated.

The official news release appears here.

United States Citizenship and Immigration Services (“USCIS”) has updated its H-1B cap count for the current fiscal year. As of June 17, 2011, approximately 16,300 H-1B cap-subject petitions were receipted. Additionally, USCIS has receipted 10,800 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.

As of June 17, 2011, United States Citizenship and Immigration Services (“USCIS”) receipted 28,297 petitions toward the 33,000 H-2B cap amount for the first half of the fiscal year. This count includes 27,524 approved and 1,773 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; and
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.

The Ontario Bar Association Citizenship and Immigration Section recently met with representatives of Opportunities Ontario, the province’s Provincial Nominee Program (“PNP”). During this meeting, they provided insight into the level of recruitment activities that would be expected from an employer who files a PNP application on behalf of a prospective employee.

The Opportunities Ontario website states that positions being considered for approval by Opportunities Ontario must “not affect the settlement of any labour dispute or affect the employment of a person involved in such a dispute, or adversely affect employment or training opportunities for Canadian citizens or permanent residents of Ontario.” It also states that, as the PNP is designed in part to assist employers who are having difficulty recruiting qualified, skilled workers in Ontario, “applications from employers who are seeking positions for foreign workers residing abroad, or foreign workers who are visiting Canada, will receive priority processing if those employers have tried to recruit Canadian citizens or permanent residents located in Ontario for those positions before applying to the program.”

It was previously believed that Opportunities Ontario would not attach too much significance to this requirement, since this standard was significantly lower than the standard applied by Human Resources and Skills Development Canada (“HRSDC”) in the context of a Labour Market Opinion (“LMO”). However, recent comments by Opportunities Ontario suggest that they are applying a stricter interpretation than previously believed.

The following issues were discussed by Opportunities Ontario during the meeting:

1. The reference to “priority processing” is in the context of longer processing times for employers who apply without demonstrating recruitment efforts. This has meant that these employers application may take longer to process, as additional documentary information may be requested to determine if approval of the position for a foreign national will negatively affect employment and training opportunities for Canadian citizens and permanent residents in Ontario. In other words, employers who do not provide evidence of recruitment may have their applications denied rather than simply “delayed.”
2. The simplest way to demonstrate that the test is met is through recruitment efforts. Where prospective nominees are visiting Ontario or abroad, the application recruitment efforts have not been made and the employer is otherwise unable to demonstrate that the position will not affect the settlement of any labor dispute or affect the employment of a person involved in such a dispute, or adversely affect employment or training opportunities for Canadian citizens or permanent residents of Ontario, the application could be denied. Although it is still possible to obtain an approval without evidence of recruitment efforts, this suggests that Opportunities Ontario expects evidence of recruitment in most cases.
3. The recruitment requirement may be relaxed in certain cases. The following examples were provided:
   • If the employee is on an open market post-graduation work permit and the student is applying in the International Student with Job Offer Stream, the recruitment requirement is relaxed. However, if the work permit is through an international agreement such as SWAP/Working holiday/International Experience Canada and the work permit has been issued without an assessment of the labor market impact then recruitment efforts by the employer will need to be demonstrated.
   • If an applicant on an open work permit has worked for the employer for a period of time, then that may be considered when assessing the extent of the recruiting efforts required.
   • If an employer can demonstrate that an employee has a specific skill set, such as highly specialized knowledge or specific and relevant managerial experience, then the employer can explain why recruitment efforts in Ontario were not pursued. Opportunities Ontario will consider such applications on a case by case basis. However applications on the basis that the only specific qualification is that an applicant speaks a particular language are not likely to be approved. This suggests that the recruitment requirement may be relaxed (on a case-by-case basis) for executive, managerial, or specialized employees who are working for the employer under certain LMO-exempt work permits, such as a NAFTA Intracompany Transferee or perhaps even NAFTA Professional.
4. In terms of what evidence of recruitment is required, an employer must provide an explanation of what recruitment efforts were made and the results thereof. There is no set requirement for the type of recruiting conducted but it must be reasonable for the position. Job Bank, recognized internet sites, local newspapers, etc. are all reasonable. Recruitment efforts within the last year prior to submitting the application should be sufficient.

In summary, it would appear as though evidence of recruitment efforts is generally required, although these efforts are lower than what would be required for an LMO application. In addition, the recruitment requirement can be relaxed (on a case-by-case basis) in cases where it can be explained that the approval of the applicant would not negatively affect employment and training opportunities for Canadian citizens and permanent residents in Ontario.

Based on the above, employers seeking to obtain an Ontario nomination certificate on behalf of a foreign national should either submit evidence of their recent recruitment efforts or be prepared to demonstrate why this evidence is not necessary to establish that the approval of the applicant would not negatively affect employment and training opportunities for Canadian citizens and permanent residents in Ontario.

United States Citizenship and Immigration Services (“USCIS”) has updated its H-1B cap count for the current fiscal year. As of June 1, 2011, approximately 13,600 H-1B cap-subject petitions were receipted. Additionally, USCIS has receipted 9,300 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.

On May 6, 2011, Citizenship and Immigration Canada announced changes to its Transit Without Visa (“TWOV”) Program.

Background

In July 2009, CIC in co-operation with the Canada Border Services Agency (“CBSA”) announced the formalization of the TWOV Program pilot at Vancouver International Airport (“VIA”) in July 2009. The TWOV Program allows certain foreign nationals with valid United States visas, travelling to and from the United States, to transit through Canada without having to first obtain a Canadian visa.

The objective of the TWOV Program is to facilitate the movement of bona fide travellers transiting through Canada while maintaining the security of Canadians and the integrity of Canada’s immigration and refugee protection programs. This program will also improve the international competitiveness of Canadian airports by making them more attractive to airlines and travellers originating from or destined to the United States.

Eligible Foreign Nationals

The TWOV Program applies only to nationals of the following four countries:

1. Indonesia;
2. The Philippines;
3. Taiwan (Note: does not apply to holders of the ordinary passport issued by the Ministry of Foreign Affairs in Taiwan with personal identification number. These individuals are already waived from a visa requirement.); and
4. Thailand.

In order to be eligible to travel under the TWOV Program, nationals of these countries must:

1. Be in possession of a valid visa issued by the United States;
2. Be in possession of a valid passport issued by the authorities of a participating country;
3. Hold a confirmed onward ticket for a connecting flight that departs Canada immediately (foreign nationals transiting Canada under the TWOV Program may not seek entry to Canada as temporary residents); and
4. Arrive in Canada on an airline that has an up-to-date TWOV Memorandum of Understanding (MOU) with CIC and the CBSA; and transit through an approved Canadian airport.

Eligible Airlines

The following airlines have an up-to-date TWOV MOU with CIC and the CBSA, and are therefore eligible to carry TWOV passengers:

1. Cathay Pacific Airways;
2. Philippine Airlines;
3. Air Canada; and
4. Jazz Aviation LP.

Eligible Airports

The TWOV Program was initially available through VIA. However, it has now expanded to include Toronto’s Pearson International Airport (“PIA”) (Terminal 1 only). Effective March 27, 2011 the only two Canadian airports at which this program is eligible are the VIA and PIA (Terminal 1 only).

On May 31, 2011, Citizenship and Immigration Canada (“CIC”) issued Operational Bulletin 310, which discussed recent changes to the Labour Market Opinion (“LMO”) confirmation letters issued by Human Resources and Skills Development Canada (“HRSDC”).

In cases where a positive LMO has been obtained, the employer must provide a copy of the LMO confirmation letter to the foreign national, as CIC and the Canadian Border Services Agency (“CBSA”) require a copy to process the LMO-based work permit application. HRSDC’s Foreign Worker System (“FWS”) also interfaces with CIC systems to provide CIC and CBSA with electronic details about the job offer and the foreign national associated with the LMO confirmation letter.

Until recently, Annex A of an LMO confirmation letter included the name of a foreign national who would be entering Canada under that LMO. Where an LMO confirmation letter was issued for multiple positions, it was commonplace to include multiple names, as listed in Annex A. This presented a privacy risk because the LMO confirmation letter (including Annex A) was sent by the employer to all of the foreign nationals identified, thereby divulging personal information about each foreign worker contained in the LMO.

In response to this privacy concern, as of April 1, 2011, HRSDC implemented a change to their FWS that no longer allows the name of a foreign national to be included in an LMO confirmation letter. However, for the moment, LMO confirmation letters related to the Live-in Caregiver Program (“LCP”) and Arranged Employment Opinions (“AEOs”) will continue to show the name of the FN.

HRSDC continues to share the names of foreign nationals electronically with CIC and CBSA through the FWS interface for the purposes of administering the Temporary Foreign Worker Program. CIC and CBSA officers will only be able to verify a foreign national’s link to the LMO via an Employment Validation search in both Global Case Management System and Field Operations Support System.

United States Citizenship and Immigration Services (“USCIS”) has updated its H-1B cap count for the current fiscal year. As of May 26, 2011, approximately 13,100 H-1B cap-subject petitions were receipted. Additionally, USCIS has receipted 9,000 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.

As of June 1, 2011, United States Citizenship and Immigration Services (“USCIS”) receipted 28,201 petitions toward the 33,000 H-2B cap amount for the second half of the fiscal year. This count includes 26,655 approved and 1,546 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; and
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.