During the recent Canadian Bar Association Citizenship and Immigration Conference in Gatineau, Quebec, representatives of the Central Intake Office (“CIO”) in Sydney, Nova Scotia, provided some helpful insight into its processing of Federal Skilled Worker (“FSW”) applications. The CIO screens all FSW applications in order to verify that submitted applications satisfy the Ministerial Instructions, which currently restrict who can apply under the FSW class.

The current Ministerial Instructions prohibit the acceptance of a FSW unless: (a) the applicant has Arranged Employment, or (b) the applicant has work experience in one of the 29 designated occupations within the last ten years. An applicant who does not have Arranged Employment is limited by a total quota of 20,000 FSW applications per year; each designated occupation itself is limited to 1,000 applications per year.

The quotas on the 29 designated occupations will be reset as of July 1, 2011. Of course, the Minister of Citizenship, Immigration and Multiculturalism can theoretically amend the list of occupations at any time, although there is no immediate indication that the list of designated occupations will be revised.

The CIO has confirmed that it renders a final decision regarding the eligibility of the applicant under the Ministerial Instructions. As this is a decision rather than a mere opinion, these determinations are considered “locked in.”

For example, if the CIO makes a determination that the applicant is eligible to file a FSW application based on Arranged Employment (because they are working in Canada on a valid work permit and have an indeterminate job offer), this eligibility will continue even if the person loses their job before the completion of their permanent residence case. The Canadian Embassy or Consulate will not re-visit the decision with respect to eligibility under the Ministerial Instructions.

Unfortunately, selection points for Arranged Employment are not considered “locked in.” As a result, the Canadian Embassy or Consulate will still deny an application if the applicant loses their job and no longer has at least 67 selection points due to the loss of his or her Arranged Employment selection points. Of course, if the applicant continues to have at least 67 points even after losing their Arranged Employment points, the application can still be approved.

The CIO has also stated that, if an applicant provides evidence that he or she is eligible based on both the Designated Occupations list and Arranged Employment, it will choose to make the determination based on Arranged Employment. The rationale for this policy is to conserve numbers available under the annual quotas. However, if the CIO concludes that the applicant is not eligible based on Arranged Employment, it will then consider his or her eligibility based on the Designated Occupation list.

As of May 6, 2011, United States Citizenship and Immigration Services (“USCIS”) receipted 27,173 petitions toward the 33,000 H-2B cap amount for the second half of the fiscal year. This count includes 24,420 approved and 2,753 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.

United States Citizenship and Immigration Services (“USCIS”) has updated its H-1B cap count for the current fiscal year. As of May 6, 2011, approximately 10,200 H-1B cap-subject petitions were receipted. Additionally, USCIS has receipted 7,300 H-1B petitions for aliens with advanced (master’s or higher) degrees from the United States.

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 5, 2011, United States Customs & Border Protection (“USCBP”) announced that its Trusted Traveler Programs have reached one million members. Trusted Traveler Programs include: (a) Global Entry, (b) NEXUS, (b) SENTRI and (d) FAST. Each of these programs is briefly described below.

Global Entry is a voluntary pilot program that streamlines the international arrival process for pre-approved travelers through use of self-service kiosks located at 20 major U.S. airports. The pilot program is an alternative to regular passport processing lines and currently reduces average wait times by 70 percent.

Applications to Global Entry must be submitted online at www.globalentry.gov. A fee of $100 is collected via the website for a five-year membership. Applicants must then complete an interview and fingerprint data collection in person at any of the 20 airport sites.

Once enrolled in the pilot program, Global Entry members may proceed directly to the kiosks in the international arrivals area upon arrival in the U.S. At the kiosk, members insert their passport or lawful permanent resident card into a document reader, provide digital fingerprints for comparison with fingerprints on file, answer customs declaration questions on the kiosk’s touchscreen, and then present a transaction receipt to CBP officers before leaving the inspection area.

NEXUS is a joint USCBP-Canada Border Services Agency program that both implemented to enhance border security while simplifying the entry process for pre-approved, low-risk travelers. NEXUS was established in 2002 and currently has more than half-million members. NEXUS applicants must go through background checks in both Canada and the United States. The application fee for NEXUS is $50 and enrollment is for five years. In December 2010, USCBP added Global Entry benefits to NEXUS and SENTRI members.

Secure Electronic Network for Travelers Rapid Inspection (“SENTRI”) provides expedited USCBP processing for pre-approved, low-risk travelers entering the U.S. at land ports of entry from Mexico. The SENTRI program was first implemented at Otay Mesa, Calif., in 1995, and has grown to include 16 lanes at the nine largest ports of entry along the U.S.-Mexico border including San Ysidro, Calif., Calexico, Calif., Nogales, Ariz., two crossings in El Paso, Texas, and the Texas ports of Laredo, Hidalgo and Brownsville.

The Free and Secure Trade (“FAST”) program offers dedicated lanes and expedited border clearance for importers, carriers and drivers who have passed rigorous risk assessments that include fingerprinting. The program is available on both the northern and southern borders. There are about 80,000 members enrolled. FAST members report saving an average 27 minutes when transporting goods into the U.S., and an average of 18 minutes when entering Canada.

All Trusted Traveler Program applicants must voluntarily undergo a background check against criminal, law enforcement, customs, immigration, and terrorist indices; a 10-fingerprint law enforcement check; and a personal interview with a USCBP officer.