USCIS has announced that as of May 2, 2016, it has completed all data entry for H-1B cap petitions selected in the “lottery” for consideration in the FY2017 cap. We expect that all receipt notices for selected petitions will be received within the next seven to 10 days. USCIS also will now return all petitions that were not selected, a process that will take several weeks.

​Although no new H-1B hires may be made, employers may be able to take advantage of other visa categories, as follows:

• B-1 - The B-1 category allows a foreign national to enter the United States to participate in business activities on behalf of a foreign employer.  Generally, a person in B-1 status may not engage in productive employment in the United States.  Allowable B-1 activities include consulting/meeting with business associates, attending a professional conference, participating in training, or negotiating contracts.  The “B-1 in lieu of H-1” might be used where the foreign national would qualify for H-1B status, but their employer is not based in the U.S. and they are coming to the U.S. for a short period of time.  This type of B-1 status does permit productive work in the U.S., but the person must be employed by and continue to be paid by the overseas employer.
• E-3 - The E-3 category is limited to nationals of Australia and is capped at 10,500 per fiscal year, although that quota has never been filled.  The substantive requirements of the E-3 are very similar to H-1B category.  There must be an offer of employment in a “specialty occupation” and the individual must possess a bachelor’s degree or the equivalent in a field related to the employment.
• TN - The North American Free Trade Agreement (NAFTA) between the U.S., Canada, and Mexico allows for simplified immigration travel between and among the three countries.  For purposes of employment in the U.S., citizens of Canada and Mexico who are coming to the U.S. to work in certain professions may be eligible to enter in TN status.  To qualify for TN status, the foreign national must be a citizen of Canada or Mexico, must have a prearranged offer of employment in the U.S., and must meet the educational/experience qualifications for the occupation, which are also specifically set forth in the NAFTA regulations.  In addition, NAFTA limits TN status to individuals working in one of a specifically enumerated list of occupations.
• E-1 / E-2 - The E-1/E-2 categories require that the person be a national of a country with which the U.S. has an appropriate treaty of commerce and that the prospective employer is majority owned by nationals of that same treaty country or by corporate entities having the “nationality” of the treaty country.  These owners/corporate entities must either have made a “substantial” investment in the U.S. or there must be “substantial” trade between the U.S. and the treaty country.  In addition, the offered position must be executive or supervisory, or involve “essential skills.”
• F-1 - The F-1 student visa category permits employment under various circumstances, most commonly through Curricular Practical Training (CPT) or Optional Practical Training (OPT). There is a 12-month limit on OPT unless the person has a designated STEM (Science, Technology, Engineering, or Mathematics) degree and the employer participates in the e-Verify employment verification program, in which case an additional 29 months of post-graduation OPT is available.
• L-1 - The L-1 visa category allows U.S. employers to transfer employees of related overseas entities to work temporarily in the U.S.  The U.S. and foreign entities must have a corporate relationship sufficient to support L-1 status, the employee to be transferred must have worked for the related employer overseas for at least one year, and the offered position must be managerial/executive or must involve “specialized knowledge.”
• O-1 - The O-1 category is available for persons of extraordinary ability who can document sustained national or international acclaim in their field.

Finally, there are various visa categories available for training that might be useful in certain circumstances.

As always, please contact us with any questions.

Citizenship and Immigration Canada (“CIC”) has unveiled a new employer compliance form under the International Mobility Program. Based on the new regulations, employers are now required to file employment confirmation information prior to filing a foreign worker work permit application.

As of February 21, 2015, applying for a work permit requires a two-step application process:

1. An employer immigration compliance filing in Canada; and
   
2. The employee work permit application, supported by the employer’s in-Canada application filing.

This new procedure applies to Labour Market Impact Assessment Exempt (LMIAE) work permits. These include intra-company transfers, trade agreement work permits (such as NAFTA, GATS and Canada’s free trade agreements with Peru, Columbia, Chile and South Korea) reciprocal agreements, spousal work permits, open work permits, significant benefit exemptions, provincial/territorial agreements, and others.

This new employer work permit compliance filing process will require employers to provide employment information directly to CIC when hiring foreign nationals under the International Mobility Program. The information provided by employers will form the basis of future compliance assessments when employers are inspected.

Specifically, employers will be required to provide the following information:

•  Name, address, contact information;
  
•  Business number (if applicable);
  
•  Relevant employment information;
  
•  Information supporting use of the LMIA-exemption;
  
•  Offer of employment using the form made available by CIC; and
  
•  $230 fee payable by employers for each LMIA-exempt employer-specific work permit application, including renewals, unless exempt by policy.
  

The $230 fee and employment information must be submitted by the employer before a foreign national makes an application for a work permit. If employers do not meet the above requirements when hiring foreign nationals under employer-specific LMIA-exemptions, officers will refuse the work permit application by the foreign national.

Aside from the government revenue generation of this new program, it is designed to ensure that the government receives information directly from the employer regarding the employment position. This will enable the government to verify compliance with the International Mobility Program regulatory requirements. The Regulatory Impact Analysis Statement from the government indicates that the information will be utilized for government employer compliance processes. The government seeks to bolster their enforcement authority in employer compliance inspections. These regulations will enhance CIC’s legislative authority to inspect employers. The government will conduct on-site inspections without a warrant.

At employer on-site inspections, CIC will require employers to provide documents that demonstrate compliance with the job offer, including payroll and taxation documentation, time sheets, foreign worker activities and responsibilities, location of employment and other types of government and non-government documentation. CIC may also interview foreign workers or Canadian employees to determine employer compliance.

The regulatory penalties for employer non-compliance with immigration filings can include jail terms and fines for the officers and directors of the employer.