On December 30, 2011, Citizenship and Immigration Canada (“CIC”) published Operational Bulletin 368 (“OB 368″).  According to OB 368, all Canadian Experience Class (“CEC“) applications must now be submitted to the Centralized Intake Office (“CIO“) in Sydney, Nova Scotia.  This change became effective on January 1, 2012.

Upon receipt, the CIO will assess each CEC application for completeness.  An application must include all of the forms and documents listed in the Generic Document Checklist for CEC applicants to be considered complete by the CIO.

If the application is incomplete, the CIO will return the entire application package (including fee payment) to the applicant. For complete applications, the CIO will enter the application information into the Global Case Management System and recover the processing fee.  CIO will then send complete applications to an appropriate office for processing.  Offices will process applications according to existing procedures and processing priorities.

Until January 31, 2012, all visa offices will continue to accept any CEC application submitted directly to their office.  Missions should forward any CEC application received directly to the CIO.  After January 31, 2012, applications will be returned to the applicant advising them that they must submit their application to the CIO.

On December 30, 2011, Citizenship and Immigration Canada (“CIC”) issued Operational Bulletin 373 (“OB 373”).  OB 373 provides additional information relating to the Excessive Demand Cost Threshold (the “Demand Threshold”) for 2012, which became effective on December 1, 2011.

The Demand Threshold is used to determine whether a foreign national should be barred from Canada based on health grounds. Although it may also be applied in the case of temporary residents (i.e. nonimmigrants), the Demand Threshold is most often applied when considering the admissibility of foreign nationals who are seeking permanent residence in Canada.

Applicable law

According to Clause 38(1)(c) of the Immigration and Refugee Protection Act, a foreign national is inadmissible on health grounds if their health condition might reasonably be expected to cause excessive demand on health or social services. The term “excessive demand” is defined in the Subsection 1(1) of the Immigration and Refugee Protection Regulations (“IRPR”) as:

1. A demand on health services or social services for which the anticipated costs would likely exceed average Canadian per capita health services and social services costs over a period of five consecutive years immediately following the most recent medical examination required by the IRPR, unless there is evidence that significant costs are likely to be incurred beyond that period, in which case the period is no more than ten consecutive years, or
2. A demand on health services or social services that would add to existing waiting lists and would increase the rate of mortality and morbidity in Canada as a result of an inability to provide timely services to Canadian citizens or permanent residents

However, according to R38(2), the excessive demand ground of inadmissibility does not apply in the case of a foreign national who:

1. Is a member of the Family Class (a spouse, common-law partner or child of a sponsor who is seeking permanent residence)
2. Has applied for a permanent residence as a Convention refugee or a person in similar circumstances, or
3. Is a protected person.

The above individuals may not be barred from Canada based on excessive demand. However, the Demand Threshold is relevant to all other foreign nationals seeking both temporary resident and permanent resident status.

Initially, the Canadian Institute for Health Information (“CIHI”) aggregate that represented average Canadian per capita health expenditure was used as the Demand Threshold. However, CIC’s Health Branch felt that CIHI figure did not completely cover expenditures for certain social services. In January 2003, a supplementary amount was identified to account for the missing per capita expenditures and this amount was combined with the CIHI figure to calculate the Demand Threshold.

Application

The 2012 Demand Threshold has been set at $6,141.00CAD per year, and is effective as of December 1, 2011. As the definition of excessive demand describes costs incurred over a period of five consecutive years, the annual figure is normally multiplied by five and then compared to the expected medical costs of the foreign national during that period. This results in a legislated 2012 Demand Threshold of $30,705.00CAD ($6,141.00CAD x 5) over five years.

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.

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.

On September 19, 2011, Citizenship and Immigration Canada (“CIC”) published Operational Bulletin 346, which authorized the recapture of unused time that would otherwise count against the time limits that are normally imposed on intracompany transferees.  According to Section 5.31 of the Temporary Foreign Worker Guidelines (which describes C12 intracompany transferees) and Appendix G (which describes NAFTA intracompany transferees), executive and managerial intracompany transferees are limited to a maximum stay of seven years and specialized knowledge intracompany transferees are limited to a maximum stay of five years; this parallels the time limits imposed on L-1A (executive and managerial) and L-1B (specialized knowledge) nonimmigrants in the United States.  Once the limit has been reached, the foreign national must complete one year of full-time employment with the multinational organization outside of Canada before becoming eligible for a new seven- or five-year limit.

Unfortunately, most CIC and Canadian Border Services Agency officers would calculate these time limits using the start and end dates shown on a foreign national’s work permit.  While this certainly simplified the task of calculating the time limits, it failed to acknowledge the fact that many intracompany transferees divide their time among one or more international offices.  Some intracompany transferees continue to reside abroad and only travel to their company’s Canadian offices when necessary.  As a result, a foreign national who held a three-year work permit as an intracompany transferee but who only spent four months each year physically in Canada would still have the entire three-year period of the work permit counted against his or her total limit.

In the United States, exceptions to the seven- and five-year time limits imposed on L-1A and L-1B nonimmigrants are recognized in the Department of Homeland Security (“DHS”) regulations, which are codified in Title 8 of the Code of Federal Regulations (“8 CFR”).  According to 8 CFR 214.2(l)(12)(ii), the time limits will not apply to aliens who do not reside continually in the United States and whose employment in the United States is seasonal, intermittent, or consists of an aggregate of six months or less per year. In addition, the limitations do not apply to aliens who reside abroad and regularly commute to the United States to engage in part-time employment.

Prior to Operational Bulletin 346, practitioners would argue that the Canadian intracompany transferee category (at least in NAFTA cases) was intended to be reciprocal and that, since Canadians who entered the United States under L-1A or L-1B status would be entitled to recaptured time, foreign nationals should be entitled to the same treatment.   However, such arguments often met with limited success.

Operational Bulletin 346 now specifically recognizes that time spent outside Canada during the period of the work permit may be recaptured.  It states as follows:

Normally, the duration of the work permit is used to calculate the maximum five or seven year time limit that an ICT is allowed to work in Canada. However, time spent outside Canada during the duration of the work permit can be recaptured. For example, if ICT senior managers have a work permit for one year and spend two 2-month stints over the course of the 12 months working in the U.S., then only 8 months would count against their seven-year limit as ICTs.  In summary, documented time spent outside Canada can be “recaptured” to allow the ICT five or seven full years of physical presence in Canada.

The guidance contained in Operational Bulletin 346 is not as complicated as 8 CFR 214.2(l)(12)(ii); it simply states that only time spent physically within Canada while under an intracompany transferee work permit will count towards the seven- or five-year limit.  Even a foreign worker who spends eleven months out of each year physically in Canada is entitled to recapture one month each year.  Under 8 CFR 214.2(l), an L-1 worker who spent the same amount of time in the United States would not be entitled to any recaptured time.

Foreign workers with Canadian intracompany transferee work permits, who wish to take advantage of Operational Bulletin 346, should make sure that they maintain detailed records of all trips outside of Canada during the period of their work permits.

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.