Archive for August, 2011

Canada-Colombia Free Trade Agreement Comes into Force as of August 15, 2011

Henry Chang | August 17, 2011 in Canadian Immigration | Comments (0)

The Free Trade Agreement (“FTA”) between Canada and Colombia was originally signed on November 21, 2008. However, it did not come into force until August 15, 2011.

As in the case of other FTAs, the Canada-Colombia FTA contains provisions for the temporary entry of treaty nationals pursuant to Section 204 of the Immigration and Refugee Protection Regulations. The Canada-Colombia FTA addresses the entry of treaty nationals (on a reciprocal basis) as business visitors, intracompany transferees, traders, investors, professionals and technicians, and spouses. These provisions appear in “Chapter 12 – Temporary Entry for Business Persons.”

Chapter 12 of the Canada-Colombia FTA is almost identical to Chapter 12 of the Canada-Peru FTA, but includes a section allowing for the issuance of open work permits to spouses of traders, investors, intracompany transferees, or professionals and technicians. This is also different from the North American Free Trade Agreement (“NAFTA”), which did not provide for spousal work permits.

According to Operational Bulletin 342, these new open work permits for spouses will be distinct from the C41 open work permits granted to spouses of skilled workers. As such, open work permits granted to spouses of Colombian nationals under the Canada-Colombia FTA will be given the new exemption code T25.

According to Operational Bulletin 342, guidance on the Canada-Colombia FTA will eventually appear as a new section in Appendix B of the Foreign Worker Manual (“FWM”) published by Citizenship and Immigration Canada (“CIC”). Appendix B provides guidance on International FTAs (other than the NAFTA, which is covered by Appendix G).

Until this new guidance has been added to the FWM, immigration officers are instructed to follow Section 2 of Appendix B, which provides guidance on the Canada-Peru FTA. The list of professionals and technicians in the Canada-Peru FTA section is identical to the list in Chapter 12 of the Canada-Colombia FTA in that it contains a list of professionals not covered followed by a list of technicians that are covered.

USCIS Centralizes Filing of Form I-130 Petitions

Henry Chang | August 14, 2011 in United States Immigration | Comments (0)

Effective August 15, 2011, petitioners residing outside the United States will no longer be able to routinely file Form I-130, Petition for Alien Relative, with U.S. embassies and consulates. As of the above date, petitioners residing overseas in countries where United States Citizenship and Immigration Services (“USCIS”) does not have a public counter presence (most posts will not) will be required to file their Form I-130 by mail with the USCIS Chicago Lockbox.

Thereafter, U.S. embassies and consulates will only be able to accept and process Forms I-130 in exceptional circumstances. However, petitions properly filed at an embassy or consulate prior to August 15, 2011, will not be affected by this change.

This change eliminates a significant advantage that petitioners residing outside the United States previously had over petitioners residing in the United States. By filing their Form I-130 with a consulate abroad, the adjudication of Form I-130 was significantly faster, since the consulate would approve the petition directly rather than forwarding it to USCIS.

Under the new procedures that take effect on August 15, 2011, petitioners residing outside the United States will be subject the same extended delays that apply to other Form I-130 petitions filed with USCIS.

Global Entry Now Available at Canadian Airport Preclearance Facilities

Henry Chang | August 3, 2011 in United States Immigration | Comments (0)

On July 26, 2011, United States Customs & Border Protection (“USCBP”) announced that Global Entry kiosks are now available at USCBP preclearance at Vancouver International Airport and Ottawa’s MacDonald-Cartier Airport, and will be available at Montreal’s Trudeau International Airport and Toronto’s Lester B. Pearson International Airport by September. The placement of Global Entry kiosks at Canadian preclearance locations is part of the integration of the Global Entry and NEXUS Trusted Traveler programs.

The integration of the Global Entry and NEXUS programs began in December 2010, when USCBP published a Federal Register Notice announcing that NEXUS members could participate in Global Entry. With the deployment of Global Entry kiosks to Canadian preclearance, Global Entry members will be able to take advantage of the program when returning home from Canada.

NEXUS members, who have Global Entry benefits, have the option of using either the Global Entry or NEXUS kiosks in preclearance. “Having Global Entry kiosks at USCBP preclearance sites in Canada is another step we are taking to facilitate Global Entry and NEXUS members traveling into the U.S.,” said Office of Field Operations Assistant Commissioner Thomas S. Winkowski. “Trusted traveler members will now be able to enjoy this benefit as USCBP officers concentrate on those travelers who we know less about and who may pose a risk to our homeland.”

As I previously mentioned, Global Entry is a voluntary pilot program that streamlines the international arrivals 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 procedures, allowing members to bypass the regular line, and currently reduces average wait times by 70 percent. To date, Global Entry members have used the kiosks more than one million times.

Global Entry is available to U.S. citizens and U.S lawful permanent residents, as well as Mexican nationals. Citizens of the Netherlands may also apply under a special reciprocal arrangement that links Global Entry with the Dutch Privium program in Amsterdam. Canadian citizens and residents may participate in Global Entry through membership in the NEXUS program.

USCIS Updates H-1B Cap Count as of July 22, 2011

Henry Chang | in United States Immigration | Comments (0)

United States Citizenship and Immigration Services (“USCIS”) has updated its H-1B cap count for the current fiscal year. As of July 22, 2011, approximately 21,600 H-1B cap-subject petitions were receipted. Additionally, USCIS has receipted 13,300 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.

USCIS Updates H-2B Cap Count as of July 22, 2011

Henry Chang | in United States Immigration | Comments (0)

As of July 22, 2011, United States Citizenship and Immigration Services (“USCIS”) receipted 29,568 petitions toward the 33,000 H-2B cap amount for the second half of the fiscal year. This count includes 29,127 approved and 441 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.