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.

On June 18, 2008, the Immigration and Refugee Protection Act was amended to give the Minister of Citizenship and Immigration (the “Minister”) authority to issue instructions that would allow it to control the processing of applications. Pursuant to this authority, the Minister recently issued a fourth set of Ministerial Instructions (“MI-4″), which came into force on November 5, 2011.

According to MI-4, the Federal Skilled Worker (“FSW”) program will now have a new eligibility stream for international students pursuing doctoral (PhD) studies at Canadian institutions. This adds an additional 1,000 numbers to the current cap of 10,000, which are available to FSW applicants who do not have arranged employment.

General Eligibility Requirements

In order to be eligible to apply under this stream, the FSW application must be received by the Centralized Intake Office (“CIO”) in Sydney, Nova Scotia on or after November 5, 2011, and must meet either of the following two sets of criteria in order to be placed into processing:

1. Applications from international students who are currently enrolled in a doctoral (PhD) program, delivered by a provincially or territorially recognized private or public post-secondary educational institution located in Canada, and who have completed at least two years towards the completion of their PhD and who are in good academic standing and who are not recipients of a Government of Canada award requiring them to return to their home country to apply their knowledge and skills. OR
2. Applications from foreign nationals who have completed a doctoral (PhD) program from a provincially or territorially recognized private or public post-secondary educational institution located in Canada no more than twelve months prior to the date their application is received by the CIO in Sydney, Nova Scotia. Applicants must not have received a Government of Canada award that required them to return to their home country to apply their knowledge and skills; or if they were a recipient of such an award, they must have satisfied the terms of the award.

Applicants who are eligible for processing are still assessed under the other requirements of the FSW Program. Applicants must still meet minimal requirements and obtain the minimum pass mark in order to continue processing of their cases.

Annual Limits

A maximum of 1,000 new FSW applications from international students pursuing PhD studies or recently who obtained a PhD at a Canadian institution will be considered for processing each year. This cap will be calculated over and above any other FSW caps on application intake identified in earlier Ministerial Instructions. Under the earlier Ministerial Instructions, FSW applicants who do not have arranged employment in Canada are limited to a total cap of 10,000 a year and a sub-cap of 500 per year for each of 29 specific occupations.

For the purpose of calculating this particular cap, this year will begin on November 5, 2011 and end on October 31, 2012. Subsequent cap years will begin on November 1 and end on October 31, unless otherwise indicated in a future Ministerial Instruction. Applications will be considered in order of the date they are received.

FSW Applications Received before November 5, 2011

MI-4 does not apply to complete applications received prior to November 5, 2011. All FSW applications received by the CIO prior to that date will continue to be considered for processing under the previous Ministerial Instructions

FSW Applications Received on or after November 5, 2011

The MI-4 applies to applications received at the CIO on or after November 5, 2011. The CIO will assess complete applications received on or after this date against the Ministerial Instructions to determine whether applicants are eligible for processing.

The CIO will make a final eligibility determination and those determined to be eligible will be placed into processing. Applications that receive a negative eligibility determination will not be processed and will receive a full refund of the processing fee. In the case of a negative determination, the application and documentation submitted will not be returned.

On June 18, 2008, the Immigration and Refugee Protection Act was amended to give the Minister of Citizenship and Immigration (the “Minister”) authority to issue instructions that would allow it to control the processing of applications.  Pursuant to this authority, the Minister recently issued a fourth set of Ministerial Instructions (“MI-4″), which came into force on November 5, 2011.

In accordance with MI-4, a moratorium (referred to as a “temporary pause” in MI-4) has now been placed on new Family Class sponsorship applications for parents and grandparents (“FC4″).  New FC4 Sponsorship applications for parents [R117(1)(c)] or grandparents [R117(1)(d)] received by the Centralized Processing Centre-Mississauga (“CPC-M”) on or after November 5, 2011, will be returned to the sponsor with a letter advising them of the temporary pause. Applications that are postmarked before November 5, 2011, but are received at CPC-M on or after November 5, 2011 will also be returned to the sponsor.  In both cases, processing fees will be returned.

According to MI-4, this temporary pause is being implemented as part of a broader strategy to address the large backlog and wait times in the Parents and Grandparents category, supporting the attainment of immigration goals set by the Government of Canada.  It will remain in place for up to twenty-four months while a more responsive, sustainable, and long-term approach for the program is considered.

According to the press release issued by Citizenship and Immigration Canada (“CIC”) on November 4, 2011, the following additional changes are also being implemented:

1. The Government of Canada will increase by over 60% the number of sponsored parents and grandparents Canada will admit next year, from nearly 15,500 in 2010 to 25,000 in 2012.  These numbers will apply to parent and grandparent applications filed prior to November 5, 2011.
2. The government is introducing the new Parent and Grandparent Super Visa, which will be valid for up to ten years. The multiple-entry visa will allow an applicant to remain in Canada for up to twenty-four months at a time without the need for renewal of their status. The Parent and Grandparent Super Visa will come into effect on December 1, 2011, and CIC will be able to issue the visas, on average, within eight weeks of the application. This means that instead of waiting for eight years, a parent or a grandparent can come to Canada within eight weeks. Parent and Grandparent Super Visa applicants will be required to obtain private Canadian health-care insurance for their stay in Canada.

The temporary pause on sponsorships of parents and grandparents is certainly controversial.  However, the Minister has tempered the bad news to some extent with increased approval numbers for next year and the possibility of extended temporary resident status for parents and grandparents, under its Parent and Grandparent Super Visa category.