IMMIGRATION LAW UPDATE

July 2023

Welcome to the latest Nicola, Gudbranson & Cooper Immigration Law Update, our overview of developments in immigration law that affect you, your business, and your employees. If you have questions about the items in this Update, or immigration-related concerns that you’d like to discuss with a lawyer, please contact Karen Moss or Brad Ortman.

Substantial Immigrant Visa Backlogs Return to EB-2 and EB-3 Visa Categories

The U.S. Department of State’s August Visa Bulletin reveals substantial immigrant visa backlogs for all employment-based immigrants in the EB-2 and EB-3 categories, which relate to advanced degree professionals and skilled workers, respectively.

These backlogs are nothing new for people from India and China. What is new is that they affect people from all other countries in the world as well. The worldwide backlog in the EB-2 category currently is roughly 15 months. In the EB-3 category, the worldwide backlog is more than 3 years. This, of course, is a positive scenario compared to people from India who face backlogs of 12.5 and 14.5 years, respectively.

We expect this situation to continue until at least the new fiscal year, which begins on October 1. At that point, new quota numbers will be released, which will likely reduce these backlog numbers.

Canada Offers Employment Authorization to U.S. H-1B Visa Holders

H-1B visa holders and their immediate family members are now eligible to apply to live and work in Canada for an initial period of three years starting July 16, 2023.

Notably, this new program extends an open work permit to individuals, which means that they do not have to have a specific job offer in Canada. Instead, they can move to Canada and then seek out employment while living in the country. Immediate family members of an H-1B visa holder are also eligible for work and study permits.

This may appeal to H-4 dependents in the U.S. that may not yet be eligible for work authorization. This new opportunity provides refuge for individuals who are laid off or are running out of time in H-1B status and offers new flexibilities to foreign nationals looking for ways to stay in North America.

In-person Inspection of Form I-9 Documents Required by August 30, 2023

Employers that inspected documents virtually for Forms I-9 during the pandemic must physically inspect these documents by August 30, 2023. Failure to do so may result in significant fines.

Employers should be aware that COVID-related accommodations have ended, and in-person inspection of documents for I-9 purposes is required now and into the future. This presents challenges for employers that utilize hybrid and remote workforces. Such employers may wish to consider using an authorized representative or designated agent model to assist in the process.

If you have questions on how to implement a compliant system for I-9 document inspection, please feel free to contact Karen Moss or Brad Ortman for guidance.

Demand for U.S. Passports and U.S. Visas Surges, Resulting in Delays

Passport demand has surged as people have resumed traveling in large numbers. This has resulted in extended waits to obtain U.S. passports. The current wait time for standard processing is 10-13 weeks. Expedited processing takes 7-9 weeks. Travelers with imminent travel plans who cannot afford to wait that long must proceed to a passport agency for expedited filing. These trends reflect an overall trend of increased passport issuance. 46% of Americans currently have passports, up from 30% in 2008.

Demand for U.S. visas and related delays also continues to be a problem. Delays continue to be a problem, especially for third-country nationals and applicants for tourist visas. Indeed, waits for tourist visas are roughly a year and a half for people applying in New Delhi and nearly a year for those applying in Madrid. Travelers should plan accordingly.

U.S. Department of Labor Introduces New System for PERM Labor Certification Filings

As of June 1, the U.S. Department of Labor (DOL) changed the way in which PERM labor certification filings are to be submitted. The agency has also updated Form ETA 9089, which is used for these filings.

Notably, the changes do not require employers to create separate accounts or to respond to sponsorship verification questionnaires, which were required under the previous system. The substantive rules for such filings have otherwise not changed. Filings made under the old system will continue to be processed and adjudicated before any that are made under the new system.

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If you have questions or would like to learn more about these or other immigration topics, please contact Karen Moss, Brad Ortman, or Anne Grove of the Immigration Law Group at Nicola, Gudbranson & Cooper via email or at (216) 621-7227.

Bradley L. Ortman and Karen Gabriel Moss
Nicola, Gudbranson & Cooper LLC

This Immigration Law Update contains general information that should not be considered legal advice or legal opinion concerning individual situations. Legal counsel should be consulted for specific advice.