HIGHLIGHTS

• H-2B Quota Reached for First Half of the 2016 Fiscal Year
• Canada Welcomes Francophone Workers to Regions Outside of Quebec
• UPDATE: New USCIS Policy Adds Clarity to Job Portability Determinations
• CBP to Institute EVUS – the Electronic Visa Update System

H-2B Quota Reached for First Half of the 2016 Fiscal Year

March 15, 2016 was the final receipt date for new H-2B petitions seeking an employment start date before April 1, 2016.   H-2B visas are intended for foreign nationals filling temporary nonagricultural jobs.  The current congressionally mandated limitation or “cap” for this type of visa is 66,000 per year. The cap is divided into two segments for the fiscal year, with 33,000 for employees who start work between October 1st and March 31st, and 33,000 for employees who start work between April 1st and September 30th.

USCIS received enough H-2B petitions to meet the 33,000 quota for the first half of fiscal year 2016. As a result, USCIS will not adjudicate H-2B applications received after March 15, 2016 for candidates who seek an employment start date before April 1, 2016, unless the petition meets one of the enumerated exceptions.  The following types of petitions are exempt from the cap and will continue to be adjudicated by USCIS:

• Employees who are considered “returning workers” and who were counted in the H-2B cap during 2013, 2014, or 2015;
• Employees already holding H-2B status who wish to extend their status or change employers;
• Fish roe processors, technicians, or managers of fish roe processing; and
• Employees working in the Commonwealth of the Northern Mariana Islands or Guam between November 28, 2009 and December 31, 2019.

Canada Welcomes Francophone Workers to Regions Outside of Quebec

Canada will initiate a new stream of the International Mobility Program (IMP) on June 1, 2016, the goal of which is to draw skilled francophone (French speaking) employees to towns and cities in Canada, specifically outside of Quebec.  The “Mobilite Francophone” program will allow Canadian employers to hire francophone employees in technical, skilled, or managerial professions from outside of Canada who will work in communities outside of Quebec with a francophone minority. Applicants eligible for the program will be exempt from the Labour Market Impact Assessment (LMIA) process.  Canada’s Immigration, Refugees and Citizenship sector would like to see new francophone employees make up four percent of the immigrants moving to places outside of Quebec by 2018.  Canadian Heritage Minister, Melanie Joly, explained that “Canada’s diversity is enriched by our francophone minority communities all across the country.  We want to see these communities flourish across Canada and immigration is strategic to preserving their vitality and prosperity.” Although the new francophone stream is planned to go into effect on June 1, 2016, eligibility requirements have not yet been released. EIG will continue to monitor development of the Mobilite Francophone program.

UPDATE: New USCIS Policy Adds Clarity to Job Portability Determinations

The U.S Citizenship and Immigration Services (USCIS) has finalized its policy memorandum concerning guidance on determining whether a new job is in the “same or a similar occupational classification” for AC-21 portability purposes.  The guidance is intended to give clarification for individuals with pending applications to adjust status.

In determining whether a new job is the “same or similar occupational classification,” USCIS officers will use the “totality of the circumstances” standard when comparing two occupations.  UCIS will compare whether the jobs are “identical,” “resembling in every relevant respect,” “the same kind of category or thing,” or whether the jobs share essential qualities or have a “marked resemblance or likeness.”  USCIS will consider Standard Occupation Classification Codes, managerial functions, career progression, geographic variation, and difference in wages.

USCIS intends for the memo to provide flexibility and stability for foreign workers and their employers while applications to adjust status are pending adjudication.

CBP to Institute EVUS – the Electronic Visa Update System

U.S. Customs and Border Protection (CBP) anticipates implementing a platform called EVUS, the Electronic Visa Update System, in November 2016.  EVUS, a creation stemming from a bilateral agreement with China, will require Chinese nationals granted ten year B-1/B-2, B-1, or B-2 visas to complete a CBP form online to update biographic information.  Chinese travelers must be enrolled in EVUS prior to traveling to the U.S.  Enrollment in EVUS will be granted for two year increments or until the traveler gets a new passport, depending which event occurs first. Ten year visa holders will need to complete the EVUS enrollment before their first travel to the U.S. and at least once every two years for valid admission into the U.S.  The biographic information travelers will need to verify will cover the following areas:

• Name;
• Address;
• Date of birth;
• Passport number; and
• Other important biographic information

Under EVUS, travelers will need to pay a fee upon enrollment and renewal.  Currently, travelers will not have to update their biographic information until November 2016 when the platform is launched.