Seyfarth Synopsis: On October 30, 2023, President Biden issued an Executive Order that sets a new course for the safe, secure, and trustworthy development and use of Artificial Intelligence (AI). Interestingly, this order is not just about technology- it brings with it a host of implications, including a significant move marking a new direction in immigration policy, especially for U.S. employers. To accomplish the Executive Order’s stated goal of ensuring that America “leads the way in seizing the promise and managing the risks” of AI, the order seeks to pave the way to attract AI talent into the US, as both students and immigrants. The significant immigration policy changes and rulemaking initiated by the order marks a new direction in immigration policy. This blog post delves into these implications, offering insights into the potential of this Executive Order (or “EO”) to reshape the immigration landscape to support economic growth and U.S. competitiveness as it relates to those working in the field of “AI and other critical and emerging technologies.”

Immigration Policy Innovations

To cultivate talent in AI and emerging technologies, the Executive Order on the Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence highlights the significance of immigration policy in attracting and retaining top talent. With that in mind, the Department of Homeland Security (“DHS”) and the Department of Labor (“DOL”) are directed to review and identify pathways within the current U.S. immigration system to advance the policies outlined in the Executive Order.

Clarifying and Modernizing Pathways: The DHS Secretary is set to review and potentially modify policies related to how temporary visa categories like the O-1A for individuals with extraordinary ability or  outstanding researchers and permanent visa categories like the EB-1 for individuals with extraordinary ability or the EB-2 for individuals with advanced degrees may be leveraged to encourage talent in these fields. DHS has posted general information through a Fact Sheet that discusses its consideration of immigration policy changes, but what such changes could look like and when they may be implemented through policy or regulation is still in theory. Efforts could include broadening the criteria for these visas and making the process more streamlined for specialists in AI and emerging technologies to qualify in these visa categories.

Schedule A Occupations Expansion: A significant proposition is expansion of the DOL “Schedule A” list of occupations. Schedule A is a list of occupations where the DOL has in essence predetermined a shortage exists in the labor market. For occupations on this list, U.S. employers may bypass the test of the labor market that is currently required to sponsor foreign workers for green cards. It has been more than three decades since the Schedule A Group I list was updated. The program is one of many that is ripe for review and modernization. It is unknown if DOL has a system or process for how occupations are identified for Schedule A. Historically the list was limited to roles like nurses and physical therapists, with this new directive, an updated list is within the realm of possibility. Alongside the unknowns are great possibilities for implementing a more nuanced approach and systematic protocol for regularly reviewing and assessing the approved occupations on Schedule A to better meet the demands and needs of the labor market, one that is in line with a quickly changing economic and global landscape.

Modernizing the H-1B Program: The proposed amendments to the H-1B visa regulations may redefine “specialty occupation” criteria. Given AI’s interdisciplinary nature, it is crucial that this definition is flexible enough to accommodate AI specialists whose expertise crosses traditional academic boundaries. The DHS Fact Sheet referencing the USCIS’ proposed rule to modernize the H-1B program published on October 20, 2023 notes that this proposed rule is “consistent” with the Executive Order. A close review of the proposed rule, however, reveals unclear elements, particularly in defining specialty occupation and educational criteria. Timing of the Executive Order is opportune as stakeholders can comment on the proposal until December 19, 2023, to ensure it meets business needs and aligns with the Executive Order. We encourage our readers to consider commenting or working with a group that is doing so.[1]

Benefits for Noncitizen Students: The Executive Order also proposes expanding visa renewal programs for F-1 STEM students and J-1 research scholars to simplify the process and eliminate the need for costly and disruptive international travel to renew visas at U.S. consulates outside the U.S. However, adjustments to the J-1 visa’s two-year foreign residence requirement[2] could impose additional challenges, potentially requiring certain scholars to return to their home countries for two years. This could impact long-term staffing and planning for organizations that rely on J-1 visa holders.

Timeline Summary

The Executive Order provides an ambitious timeline for the respective federal agencies to take action in support of the immigration related priorities and provisions:

Within 45 Days (December 14, 2023): The Secretary of Labor is mandated to publish a request for information (RFI). This RFI aims to gather public input to identify specific AI and emerging technologies-related occupations, and other sectors, lacking sufficient U.S. workers.

Within 90 Days (January 28, 2024): The Secretary of State and the Secretary of Homeland Security are required to take steps to streamline visa processing times. This includes ensuring timely visa appointments for noncitizens working or researching in AI or related technologies. They must also ensure a sufficient volume of visa appointments for individuals with expertise in these critical areas.

Within 120 Days (February 27, 2024): The Secretary of State should consider new criteria for designating skills and countries on the Exchange Visitor Skills List, particularly focusing on skills critical to the U.S.This includes consideration for publishing updates to the 2009 Revised Exchange Visitor Skills List and implementing a domestic visa renewal program under 22 C.F.R. 41.111(b). This aims to assist qualified applicants, especially those skilled in AI and emerging technologies, in continuing their work in the U.S. without interruption.

Within 180 Days (April 27, 2024): The Secretary of State is expected to propose expanding nonimmigrant categories eligible for domestic visa renewal, including J-1 research scholars and F-1 STEM students.A program should be established to identify and attract global talent in AI and other technologies, with a focus on informing them about U.S. research and employment opportunities, including visa options and potential expedited visa processing.

Within 180 Days (April 27, 2024): The Secretary of Homeland Security is tasked with reviewing and initiating necessary policy changes to clarify and modernize immigration pathways. This includes pathways for experts in AI and emerging technologies under various visa categories like O-1A, EB-1, and EB-2.

The Secretary must continue the process of modernizing the H-1B program and consider rulemaking to enhance the adjustment process for lawful permanent residency for noncitizens and their families in these technology sectors.

More broadly our Seyfarth partners drafted a fantastic overview of the EO, discussing issues that were identified as being of particular interest to employers President Biden Signs Executive Order Setting Forth Broad Directives for Artificial Intelligence Regulation and Enforcement.  The overview suggests that the EO outlines a “comprehensive government wide approach,” emphasizing not just national security and public health but also broad government involvement in AI development and usage. The overview also discusses calls for action across multiple departments and agencies, balancing the benefits of AI with associated risks. The employer issues were identified as:

  1. Civil Rights and AI Enforcement Coordination
  2. Focus on Labor and Worker Protections
  3. Guidance for Federal Contractors on AI in Hiring
  4. Federal Government’s Approach to AI Risk
  5. NIST’s Role and Security Testing of AI

Potential Challenges and Aspirations

While these policy changes offer promise, many are still in the proposal stage and require rulemaking to be enacted. The Executive Order largely sets a direction for potential changes, with actual implementation depending on future regulatory actions. Additionally, in the context of immigration, the effectiveness of these changes in attracting AI and emerging technologies talent may be limited by broader systemic issues like visa backlogs and caps, especially for applicants from over-represented countries who are forced to wait patiently “in a legal line” for years to obtain residency.

A Step Forward with Room for Legislative Action

The Executive Order on AI signifies a proactive step towards enhancing the U.S.’s role in AI development and attracting global talent. However, its full impact will depend on the implementation of these proposals and the broader context of U.S. immigration policy. While these changes are promising, meaningful reform in this area ultimately requires action on the part of the administration and Congress, highlighting the need for a comprehensive approach to immigration reform to truly harness the potential of global AI expertise.

[1] Our Government Relations and Policy Group, led by former USCIS Director Leon Rodriguez can assist with comment drafting.

[2] The J-1 visa program, often used by research scholars, has a condition known as the “two-year home country physical presence requirement.” Essentially, it mandates that certain J-1 visa holders must return to their home country for at least two years after their visa expires. This requirement is designed to ensure that the skills and experience gained in the U.S. are utilized in their home country.

By: Rachel V. See, Annette Tyman, and Joseph R. Vele

Seyfarth synopsis: President Biden’s Executive Order on artificial intelligence sets forth his vision for America to continue leading in AI innovation while also addressing risks associated with the use of AI. While much of the document delves into cutting-edge safety issues with national security implications, there are many provisions in the EO that have broad ramifications for companies generally, and employers specifically. The Order mandates greater coordination by civil-rights agencies on AI issues, emphasizes worker protections, and instructs the Department of Labor to guide federal contractors regarding AI-driven hiring practices. It marks the strategic emphasis on the government’s internal standards for AI governance and AI risk management, and towards articulating and implementing “required minimum risk-management practices” for AI applications that “impact people’s rights or safety.” The Executive Order’s emphasis on security assessments of AI systems are also set to influence AI risk management and safety dialogues across various sectors, all with significant implications in the labor and employment domain.

Continue Reading President Biden Signs Executive Order Setting Forth Broad Directives for Artificial Intelligence Regulation and Enforcement

By: Jake Campbell, Weija (Victoria) Ma, and Jason Burritt

Seyfarth Synopsis: The below summarizes recent legal updates that impact U.S. immigration:

1. Government Shutdown Avoided – For Now

On September 30, 2023, Congress passed a stopgap bill to keep the government running for another 45 days. For more information on potential impacts if the government were to shutdown, please see our legal alert–Potential Government Shutdown: Immigration Consequences for Employers and their Foreign Employees—here.

Continue Reading October 2023 U.S. Immigration Alert

By: Weijia (Victoria) Ma, Jake Campbell, Michelle Gergerian

Seyfarth Synopsis: The below summarizes recent legal updates that impact U.S. immigration:

1. Citizenship and Immigration Services (USCIS) Launched Online Appointment Request Form

On August 21, USCIS launched a new online form for individuals to request in-person appointments at their local field offices. Instead of calling the USCIS Contact Center, individuals can use the online appointment request form to request an in-person appointment at a field office for ADIT stamps, Emergency Advance Parole, and more. However, it is important to note that the requested date and time cannot be guaranteed. USCIS will review the online appointment request form and schedule the individual for an in-person appointment date based on the local field office’s availability.

Continue Reading September 2023 U.S. Immigration Alert

By: Steven Brouilliard

The White House recently announced that beginning May 12, 2023, the COVID-19 vaccination requirements for entry to the United States will no longer apply to nonimmigrant international air travelers.  In addition, the Department of Homeland Security announced that it would end the COVID-19 vaccination requirements as of May 12, 2023 for non-U.S. travelers arriving via land ports of entry and ferry terminals to the United States.  Thus, as of May 12, 2023, the U.S. will no longer require nonimmigrants to be vaccinated against COVID-19 to enter the U.S. by land, air, or sea.  This timing coincides with the recently announced end of the COVID-19 Public Health Emergency on May 11, 2023.

Until May 12, 2023, however, nonimmigrants must continue to show proof of vaccination against COVID-19 for entry to the United States.  This announcement does not impact the requirement of COVID-19 vaccination for medical exams (Form I-693) in connection to applications for adjustment of status or immigrant visas.  As of now, the COVID-19 vaccination will still be a required vaccine when applying for permanent residence.

By: Dawn Lurie, Matthew Parker* and Amber Stokes*

On May 4, 2023, the U.S. Department of Homeland Security (DHS) and U.S. Immigration and Customs Enforcement (ICE) announced the official sunset date for COVID-19 related Form I-9 physical inspection flexibilities: July 31, 2023. Additionally, ICE advised that employers would have 30 days, or until August 30, 2023, to complete an in-person verification of all employees that were virtually verified since March 2020. Yesterday’s announcement put an end to the speculation of whether the remote policy would run past July, and whether employers would only have three days after the termination of the flexibilities in which to update I-9s. No and No.

Continue Reading Ready or Not: Form I-9 Flexibilities are Winding Down

By: Mary Honeychurch, Steven Brouillard, Weijia (Victoria) Ma, and Jake Campbell

Seyfarth Synopsis: The below summarizes recent legal updates that impact U.S. immigration:

1.  USCIS Releases FY2024 H-1B Initial Registration Period Updates

On April 28, USCIS announced that it received 780,884 registrations for the FY2024 H-1B initial registration, resulting in an approximate 14% chance of selection, a significantly lower selection rate than in previous years.

Cap Fiscal YearTotal RegistrationsEligible Registrations*Eligible Registrations for Beneficiaries with No Other Eligible RegistrationsEligible Registrations for Beneficiaries with Multiple Eligible RegistrationsSelections**
2021274,237269,424241,29928,125124,415
2022308,613301,447211,30490,143131,924
2023483,927474,421309,241165,180127,600
2024780,884758,994350,103408,891110,791

USCIS noted that the significant increase in the number of registration has raised serious concerns that some companies may have tried to gain an unfair advantage by working together to submit multiple registrations on behalf of the same beneficiary.

As a part of the registration process, each prospective employer, or petitioner, is required to sign an attestation, under penalty of perjury, that:

  1. All of the information contained in the registration submission is complete, true, and correct;
  2. The registration(s) reflect a legitimate job offer; and
  3. The registrant, or the organization on whose behalf the registration(s) is being submitted, has not worked with, or agreed to work with, another registrant, petitioner, agent, or other individual or entity to submit a registration to unfairly increase chances of selection for the beneficiary or beneficiaries in this submission.

If USCIS finds that that the registrant violated the attestation, USCIS will render the petitioner ineligible to file a petition based on that registration.  USCIS also has discretion to deny or revoke a petition based on a registration that is found to have a false attestation.

Notably, more than 52% of the registrations received this year were from beneficiaries who had two or more registrations submitted on their behalf.  Based on evidence from both FY2023 and FY2024, USCIS stated that it has already undertaken extensive fraud investigations, denied and revoked petitions accordingly, and is in the process of initiating criminal law referrals.

USCIS indicated that it is working on an upcoming H-1B modernization rule that will propose, among other things, changes to the H-1B registration process to reduce the possibility of misuse and fraud in the H-1B registration system.

2. Department of Labor (DOL) Held Webinar to Explain Upcoming Changes to Form ETA 9089 (PERM) Applications

On April 19, 2023 and April 20, 2023, the DOL hosted webinars explaining the upcoming changes to Form ETA 9089 (9089), also known as the PERM application.  As of April 24, 2023, the new 9089 is available in the Foreign Labor Application Gateway (FLAG) system so that filers can begin creating applications on the new 9089.  This new version of the 9089 will be required starting May 16, 2023. The Office of Foreign Labor Certification (OFLC) will no longer accept new applications submitted via the legacy PERM system after May 15, 2023 at 6:59 pm EST.

3. Office of Foreign Labor Certification (OFLC) Issues Updated Guidance Regarding Form ETA 9089, Field H.10-B

On April 14, 2023, the Department of Labor (DOL) announced that it will accept and process requests for reconsideration for denials based solely on Field H.10-B of Form 9089, “Acceptable Alternate Occupation Title” when this field did not contain a specific job title (i.e., “see H-14” or when the employer listed a specific minimum requirement without a job title).  OFLC indicated that it evaluated the denials issued for this reason and determined that, while they are appropriate, it has been inconsistent with denials for this reason, which resulted in confusion for filers.  As a result, OFLC has stopped issuing denials for this reason on pending applications and will not deny cases for this reason for any application submitted on or before May 30, 2023.  OFLC will also overturn denials based solely on this issue if the employer submits a request for reconsideration.  OFLC will identify applications that were denied for this reason and encourages those who have not yet submitted a request for reconsideration not to do so. OFLC indicated that it will prioritize processing for reconsideration requests where the denial was based solely on this issue.

In addition, DOL clarified that a job title should be used when completing this field going forward. The new ETA-9089 in FLAG (see above), however, does not have the same question as the current H.10-B. Instead, the new 9089 will rely on the data entered on Form 9141, Application for Prevailing Wage Determination where the question reads “Indicate the Occupation Required.”  To date, DOL has not clarified whether it will require a job title for this question on Form 9141.

4. Movement in the May 2023 Visa Bulletin

In May 2023, EB-2 Final Action will retrogress by 4.5 months to February 15, 2022.  The EB-3 China Professional/Skilled Worker category will advance by 5 months to April 1, 2019 (Final Action) and by 4 months to June 1, 2019 (Dates for Filing).

In May 2023, filers must use the Final Action Dates in the DOS May 2023 Visa Bulletin for employment-based preference filings and Dates for Filing for family-sponsored filings.

The State Department anticipates further retrogression for EB-1 India and China in the coming months, and retrogression for EB-2 and EB-5 India as soon as June.

5.  U.S. Department of State (DOS) Announces Visa Fees Increase for Certain Visa Categories

On March 28, 2023, DOS published a final rule regarding increases to certain visa application  processing fees and the Border Crossing Card (BCC) for Mexican citizens age 15 and over.  The fee increases take effect on May 30, 2023. The changes include the following:

  • The application processing fee for non-petition based nonimmigrant visa applications (except E category) will be raised from $160 to $185 (15.6% increase).
  • The application processing fee for H, L, O, P, Q, and R categories will be raised from $190 to $205 (7.9% increase).
  • The processing fee for the BCCs for Mexican citizens age 15 and over will be raised from $160 to $185 (15.6 % increase).
  • The fee for E category visa applications will be raised from $205 to $315 (53.7% increase).

6. USCIS Extends Suspension of Biometrics Submission for Certain I-539 Applicants

USCIS announced an extension of the suspension of the biometrics submission requirement for applicants requesting an extension of stay in or change of status to H-4, L-2, or E nonimmigrant status.  The previous suspension was scheduled to end on May 17, 2023.  It has now been extended through September 30, 2023.  USCIS still retains the discretion to request biometrics on a case-by-case basis, and applicants who receive a biometrics appointment notice should plan to attend.

7. DOS Publishes a Notice Regarding Ukrainian J-1 Exchange Visitors

On April 5, 2023, DOS published a notice in the Federal Register describing the details of Special Student Relief (SSR) arrangements for eligible Ukrainian J-1 exchange visitors in the College and University Student category, effective until October 23, 2023.

8. United States Citizenship and Immigration Service (USCIS) Announces Updated Policy Guidance on Mailing Address Procedures for Applicants for Survivor-Based Immigration Relief

On April 11, 2023, USCIS announced that it has updated guidance regarding information disclosure related to Violence Against Women Act (VAWA) self-petitioners as well as T and U visa applicants.  Previously, USCIS had not published guidance in the Policy Manual specific to safe mailing address procedures in these cases, and policies were largely based upon regulations and local office practices.

Under the new guidance, USCIS will not disclose “any information which relates to a protected person,” with limited exceptions.  This includes information that USCIS may have in its records about the protected person that are not directly related to their applications for VAWA, T, or U benefits.  It also provides clear guidance on mailing address procedures for protected persons represented by an attorney or representative, protected persons without an attorney, and protected persons with multiple pending forms.

The updated guidance goes into effect on July 11, 2023.

9. USCIS Clarifies How U.S. Citizenship and Naturalization Provisions Apply to Adopted Children

On April 21, 2023, USCIS issued updated guidance clarifying:

  • The requirements for adopted children to meet the definition of a child for citizenship and naturalization purposes;
  • Eligibility for US citizenship for adopted children (both those living within and outside of the US) and how to obtain a Certificate of Citizenship for adopted children who reside in the US; and
  • Procedure for the acquisition of citizenship and naturalization when an adoption is disrupted or dissolved.

The guidance did not change the requirements, but merely updated the guidance in an effort to make them clearer to adoptive families and adoptees.

10. The Department of Health and Human Services (HHS) Proposes Rule Amending the Definition of “Lawful Presence” for Affordable Care Act Coverage to Include DACA Recipients

On April 24, 2023, HHS released a notice in the Federal Register that would expand access to health care by reducing barriers for Deferred Action for Childhood Arrivals (DACA) recipients. The proposed rule would amend the definition of “lawfully present” to include DACA recipients for the purposes of Medicaid and Children’s Health Insurance Program (CHIP).  To qualify for coverage, DACA recipients would still need to meet all other eligibility requirements for coverage in the State. The proposed effective date for this rule is November 1, 2023.  This proposed rule is currently in the commenting period, which will end on June 23, 2023.

By:  Rania Abboud, Nelli Shevchenko, and Gabriele Vennewald

Please note: while we address some country-specific updates related to the COVID-19 pandemic, this Alert contains information regarding global restrictions and closures as they stand today. Given the constantly changing nature of this situation, we highly recommend reviewing any global mobility inquiries on a case-by-case basis, including any consulate-specific or immigration authority resources, in “real-time” before traveling internationally. Please reach out to our Global Mobility Team in advance of any international travel.

Canada

Impact of Strike and Change of Exemption Codes

On April 19, 2023, the Public Service Alliance of Canada (PSAC), a union which represents over 155,000 public servants in the federal government of Canada, began a strike.  This strike has affected Canadian immigration in the following ways:

  • Immigration, Refugees and Citizenship Canada (IRCC) consular and in-land extension work permit applications can still be submitted online to IRCC, but processing times may be longer. Additionally, IRCC responses to inquiries/requests may be delayed.
  • Canada Border Service Agency (CBSA) services at the port of entry are expected to be maintained during the labor disruption. However, wait times may increase at the border.

The following links provide additional details on the expected impacts of this strike.

IRCC Changes the Labor Market Impact Assessment (LMIA) exemption codes

On  April 25, 2023, IRCC implemented a new coding system to identify the different eligibilities or criteria for specific LMIA-exempt situations.  Many of these new codes were added in December 2022, but IRCC has waited to fully implement them until now. Although some codes remain the same, others have changed.  Some of the more common codes used are listed below, along with their corresponding new codes, but the full list can be found in the link here:   LMIA-Exempt Work Permit codes – Old vs. New.

LMIA- Exempt Work Permit Name:Previous LMIA Exemption Code:New LMIA Exemption Code:
Intra-company transferee (ICT) – Executive, Senior or Functional managerC12C62
ICT – Specialized knowledgeC12C63
CUSMA – ProfessionalT23T36
CUSMA – ICT Executive or Senior ManagerT24T37
CUSMA – ICT Specialized knowledgeT24T38
Colombia – Professionals or TechniciansT23F12
Colombia – ICT Executive or Senior ManagerT24F13
Colombia – ICT Specialized knowledgeT24F15
Chile – ProfessionalsT23F22
Chile – ICT Executive or Senior ManagerT24F23
Chile – ICT Specialized knowledgeT24F24
South Korea – ICT Executive or Senior ManagerT24F33
South Korea – ICT Specialized knowledgeT24F35
Peru – ProfessionalsT23F52
Peru – ICT Executive or Senior ManagerT24F53
Peru – ICT Specialized knowledgeT24F55
Bridging open work permits (BOWPs)A75A75
Certain Québec Selection Certificate (CSQ) holders currently in QuébecA75A73
Reciprocal employmentC20C20
Spouses or common-law partners of high – skilled workers (TEER 0 through 3)C41C41

China

Issuance of Visitor Visas

After easing the business visitor visa application process, Chinese Consulates are once again accepting tourist visa applications.  Please see further details here.

Germany

Change of Government Filing Fees at German Consulate in Mumbai, India

All government filing fees for processing of visa application at the German Consulate in Mumbai changed as of April 26, 2023 as follows:

The Schengen visa fee for adults changed to 7.200 INR; the Schengen visa fee for minors stays at 3.600 INR.

The national visa fee for adults changed to 6.800 INR; the national visa fee for minors stays at 3.400 INR.

Please see the updated information as well on the Consulate’s website under “Step 5 Visa Fees” here.

Japan

New Benefits in the Special Highly Skilled Professional System (“J-Skip”)

Foreign Nationals who meet the requirements of the “Highly Skilled professional (i)” or “Highly Skilled Professional (ii)” residence status and whose educational background, work experience, and income exceed certain conditions will gain the following additional advantages:

  • be allowed to employ up to two foreign domestic helpers without being required to meet any domestic situation requirements,
  • be allowed to use priority lanes at large airports when entering and leaving Japan, and
  • be allowed to have spouses to work in a wider range of activities in Japan.

For further details please see here.

Japan Future Talent Program (“J-Find”)

The Japan Future Talent Program permits graduates of outstanding overseas universities to stay in Japan for up to two years’ time, with a “Designated Activities” status (Future creation individual) if they engage in “activities to find jobs” or “preparatory activities for starting a business” in Japan within five years of their graduation.  For further details, please see here.

Border Control – Upcoming Changes

The Japanese Government announced changes in Japan’s border control measures effective midnight, April 29, 2023 JPT.   In light of the announcement that new coronavirus infections will no longer be recognized as “new influenza and other infectious diseases,” the following changes will be made to Japan’s border control measures effective midnight on April 29, 2023.

 All entrants will not be required to submit either a “negative test certificate from a test taken within 72 hours prior to departure from Japan” or a “vaccination certificate (3 times)”.

(2) The “sample inspection” currently conducted as a temporary measure for those entering from China (excluding Hong Kong and Macau) on direct flights will be changed to the same inspection upon entry for symptomatic persons as for those entering from other countries/regions.

2. However, the current inspection at the time of entry for symptomatic entrants with novel coronavirus infection and medical treatment at facilities when individuals are found to be positive for novel coronavirus infection will be continued until midnight on May 8, 2023, and the genomic surveillance of infectious diseases will start at midnight on May 8, 2023.

The latest border control measures can be confirmed here.

México

Company Registration Update With Immigration Authorities Required

Mexican companies employing foreign nationals and which are registered with the immigration authorities (INM) are required to update the annual registration with the local immigration office with jurisdiction over their address.  One of the required documents is evidence that the company fulfills it tax obligations.  Accordingly, companies must update their immigration registration each year upon filing their annual corporate tax declaration.  The registration update normally involves a site visit to the company by INM officers. Companies that do not have an updated registration are generally not able to file work permit applications.

United Kingdom 

Changes to Salary Levels, Sponsor Guidance, and Introduction of New Visa Category and Scheme

  • Changes to minimum salary levels for sponsored workers:  on April 12, 2023, the minimum salary requirements were updated for sponsored workers, including Skilled Workers and Global Business Mobility Workers.  The hourly rate for Skilled Worker was increased from £10.10 per hour to £10.75 per hour, but remains subject always to other minimum wage requirements being met.  For Skilled Workers, the general annual threshold was increased to £26,200 – an increase of £600 per year; and for shortage occupation routes, the increase is now to £20,960 per year from previous figure of £20,480.  The Global Business Mobility: Senior or Specialist Worker’s threshold also rose to £45,800 – an increase of £3,400. Scale-up route increased from £33,000 to £34,600 per year.  The annual salary calculations for the “going rate” are now based on weekly working hours of 37.5, rather than the previously used 39-hour per week calculation.  This also has the effect of increased hourly salary rates for certain roles.
  • Changes to sponsor guidance – reports on remote and hybrid working:  due to the COVID-19 pandemic, remote and hybrid working patterns became a norm for many employers.  During the height of the pandemic, the Home Office advice was that no report was required for remote working arrangements.  This position has now changed. The latest updated Workers and Temporary Workers: guidance for sponsors, Part 3, version dated 31 March 2023 sets out a reporting requirement for the licence holders to confirm to the Home Office where a worker has moved, or will be moving to, a hybrid working pattern as a more permanent working arrangement.  The guidance now confirms that a report is required where a sponsored worker:  1) changed work address, 2) moved to full time remote work, or 3) moved to hybrid working pattern. A “hybrid working pattern” is where the worker will work remotely on a regular and planned basis from their home or another address, such as a work hub space, that is not a client site or an address listed on the organization’s licence, in addition to regularly attending one or more of company offices or branches, or a client site..  Short-term changes to work patterns do not need to be reported, and only permanent working patterns need to be reported.  For fully remote workers, the Home Office may call into question why an employee is required to be present in the UK if they can effectively carry out their duties from elsewhere.  It is important that employers be able to confirm and add information about why this is the case (for example, for regulatory or tax reasons; UK-based client facing role).
  • Introduction of Innovator Founder visa:  also in April 2023, the Home Office revamped existing Innovator and Startup routes by abolishing both of the existing routes and introducing a new combined visa type – Innovator Founder visa.   New Innovator Founder visa provisions strip away some of its restrictive provisions including no longer requiring investment funds of £50,000 and allowing its holders to take up supplementary employment.  Innovator Founder endorsing bodies now consist of three approved commercial bodies and one government body.  Notably, the government introduced a cap on the fees that the endorsing bodies can charge for their services which was previously unlimited.  This is a welcome change to the route. However, restrictive and high threshold requirements for ILR still remain in place for the Innovator Founder route which may continue hindering the popularity of the route.

Introduction of Electronic Travel Authorisation (ETA) Scheme

The Home Office announced that the ETA scheme will start its roll-out from Autumn 2023 onwards.  An ETA is a digital permission to travel, similar to the US ESTA scheme. It will be required by all non-visa nationals coming to the UK for up to six months as a visitor, including transit visitors.

Qatari nationals will be the first to apply and trial the scheme, and those who plan to travel to the UK on or after November 15, 2023 will need to apply for UK ETA. Other countries in the Middle East (Bahrain, Jordan, UAE, Saudi Arabia etc.) will follow suit from February 22, 2024. Further roll-out to all other non-visa nationals is expected to come in Autumn 2024.

At the moment, most non-visa nationals do not need to apply for any kind of advanced approval for their visits to the UK. After the ETA scheme becomes operational, non-visa nationals would need to factor in time to apply for an ETA before anticipated trips to the UK.  It is likely that anyone refused an ETA will have to apply for a UK visit visa, so employers and business travelers may wish to factor the timing of this into any business visits which are planned.

The ETA will be valid for 2 years and will permit multiple entries. British, Irish nationals and anyone who already has a valid UK visa status will not need to apply for ETA.

Rules for Offshore Workers and the End of Exemption

Skilled Worker visa sponsorship now applies to employees working in UK waters and the UK territorial sea, which extends 12 nautical miles from the coast. In 2017, the Home Office introduced a concession to the Immigration Rules to allow the employment of foreign nationals who are joining vessels engaged in the construction and maintenance of offshore wind projects in UK territorial waters.  This concession was time limited and following several extensions, the latest Home Office announcement states that it will no longer continue beyond 30 April 2023.  The employers who relied on the exemption for offshore workers would need to ensure their employees have a work permit under existing UK visa routes.

The guidance also includes new duties for employers sponsoring offshore workers.  For the purposes of the guidance, an ‘offshore worker’ is defined as someone who arrives directly into UK waters for the purpose of work without first entering through UK landmass.

From 12 April 2023, employers sponsoring an offshore worker must notify UKVI of the dates that the worker:

first arrives in UK waters at the beginning of the job for which they are being sponsored, and leaves UK waters at the end of the job for which they are being sponsored.

This must be done no earlier than the date the worker arrives or leaves UK waters (whichever is relevant) and no later than 10 working days after the worker arrives or leaves UK waters.

By: Jake Campbell and Weijia (Victoria) Ma

Seyfarth Synopsis: The below summarizes recent legal updates that impact U.S. immigration:

1. FY2024 H-1B Cap Registration

On March 27, 2023, U.S. Citizenship and Immigration Services (USCIS) announced that initial registration was complete and that all prospective petitioners with selected registrations selected in the lottery were notified.  Petitioners must file H-1B cap-subject petitions for selected registrations before June 30, 2023.

2. USCIS Issued Guidance on Mobile Biometrics Collection Services

On March 7, 2023, USCIS issued policy guidance to address mobile biometrics collection and biometrics collection in remote locations.  If individuals are unable to attend their biometrics in person due to health or other issues, or because they reside in remote locations, USCIS now has the discretion to offer mobile biometrics services.  USCIS may also coordinate with local law enforcement agencies or other Department of Homeland Security (DHS) agencies to collect biometrics if mobile biometrics collection services are unavailable.  Applicants must follow the instructions on the biometric notice to request mobile biometrics.

3. Premium Processing for OPT and STEM OPT Students

As of April 3, 2023, USCIS will accept premium processing requests for all OPT and STEM OPT I-765 applications, including both new or pending OPT EAD applications.  USCIS will process OPT EAD applications within a 30-day period for a premium fee of $1,500.

4. USCIS Field Offices  – Delivering Forms I-94 with ADIT (Temporary I 551) Stamps by Mail to Prove Temporary Lawful Permanent Resident (LPR) Status

On March 16, 2023, USCIS announced that LPRs may receive Forms I-94 with ADIT (temporary I-551) stamps by mail as temporary evidence of Lawful Permanent Resident status without attending an in-person appointment at a USCIS field office.  According to USCIS, this alternate Form I-94 with an ADIT stamp is an acceptable List A receipt for Form I-9 and E-Verify purposes.

LPRs may request temporary evidence of their status in the form of an ADIT stamp if:

  • They do not have their Green Card; or
  • Their Form I-90, Application to Replace Permanent Resident Card (Green Card), Form I-751, Petition to Remove Conditions on Residence, or Form N-400, Application for Naturalization, is still pending adjudication and their Green Card and extension notice have expired.

To obtain an Form I-94 with an ADIT stamp, LPRs must contact USCIS by calling at 1-800-375-5283 or 1-800-767-1833 (TDD for the hearing impaired).  Immigration services officer will verify the LPR’s information, including their identity and physical mailing address.  The officer will then either create an in-person appointment if needed or submit a request to a USCIS field office.  Upon receipt of the request, if an in-person appointment is not needed, the USCIS field office will then review the request and mail the applicant a Form I-94 with ADIT stamp, DHS seal and a printed photo of the LPR in USCIS’s systems.

5. DHS Extended and Redesignated Somalia for Temporary Protected Status for 18 Months

On March 13, 2023, DHS announced an eighteen-month extension of the designation of Somalian nationals for Temporary Protected Status (TPS) until September 17, 2024.  To benefit from this extension, existing TPS recipients must re-register during the 60-day re-registration period from March 13, 2023 to May 12, 2023.  Eligible applicants who are applying for TPS for the first time can register during the period from March 13, 2023 to September 17, 2024.

6. Extension for Certain Ukrainians Paroled into the U.S.

DHS announced that it is considering, on a case-by-case basis, granting a one-year extension of parole and employment authorization to certain Ukrainian nationals and immediate family members who were paroled into the U.S. at a port of entry between February 24, 2022 and April 25, 2022, prior to the Uniting for Ukraine process became available. According to DHS, it will review cases based on the date of parole, and the review process can take approximately four weeks to consider and vet all the individuals in the group. 

7. COVID-Related Flexibilities

USCIS confirmed on March 23, 2023 that the COVID-related flexibility to file certain notices and requests ended on March 24, 2023.  For the notices or requests issued after March 23, 2023, USCIS must receive the response by the deadline listed in the notice or request to be considered timely filed.  If the notice or request was issued on or before March, 23, 2023, then the 60-day flexibility will apply to file the response after the deadline listed on the notice.  These notices include, but are not limited to, Requests for Evidence (RFEs), Notices in of Intent to Deny (NOIDs), Notices of Intent to Revoke (NOIRs,), and others.

For Form I-290B, Notice of Appeal or Motion, or Form N-336, Request for a Hearing on a Decision in Naturalization Proceedings (Under Section 336 of the INA), USCIS will consider if:

  • The form was filed up to 90 calendar days from the issuance of a decision they made; and
  • They made that decision between November 01, 2021 and March 23, 2023.

8. USCIS Removed 60-Day Rule for Civil Surgeon Signatures on Form I-693

After a temporary waiver for applications filed December 9, 2021 to March 30, 2023, on March 31, 2023, USCIS issued guidance that permanently removed the requirement to file Form I-693 within 60 days of the civil surgeon signing the form.  Effective immediately, the new policy applies to all Form I-693s, including ones that are currently pending with USCIS.

9. U.S. Department of State (DOS) Announced Visa Fees Increase for Certain Visa Categories

On March 28, 2023, DOS published a final rule regarding increases to certain visa application  processing fees and the Border Crossing Card (BCC) for Mexican citizens age 15 and over.  The fee increases take effect on May 30, 2023. The changes include the following:

  • The application processing fee for non-petition based nonimmigrant visa applications (except E category) will be raised from $160 to $185 (15.6% increase).
  • The application processing fee for H, L, O, P, Q, and R categories will be raised from $190 to $205 (7.9% increase).
  • The processing fee for the BCCs for Mexican citizens age 15 and over will be raised from $160 to $185 (15.6 % increase).
  • The fee for E category visa applications will be raised from $205 to $315 (53.7% increase).

Seyfarth will offer more details and insights once more information is available.  Please contact the authors or your Seyfarth attorney if you have any questions.

By: Nelli Shevchenko

The U.K. Home Office has updated the Employer’s Guidance on Right to Work Checks on 28 February 2023. The guidance contains important information about obligations and compliance processes for UK right to work applications made by UK-based employers. Changes include clarifications on eVisa and BRPs checks, use of ID Service Providers, and clarifications of documents for certain status holders (students).

  • eVisa and pending applications

New changes are also introduced to enable some individuals with outstanding, in-time applications (for permission to stay in the UK, or an appeal, or Administrative Review (3C leave)) to prove their right to work using the Home Office online checking service. Previously such people could only rely on the Employer Checking Service, which could take several days to process. Home Office online checking service will speed up the process to establish person’s right to work in the UK for this category.

  • Clarification on evidence for employing students (Annex B)

The guidance now provides additional information on what evidence employers should consider to obtain from the relevant educational institution in relation to term times for the employees who hold Student visa.  These additional documents are important to establish a statutory excuse for all student employees, because they ensure that the students do not take up employment that is in breach of the “right to work” conditions of their Student Visa and that they are permitted to undertake the work in question. The new wording states that:

‘[t]he dates should be provided by the sponsoring education provider, either directly or indirectly if the student is providing a letter or email, they have received from their sponsoring education provider setting out the required details. It would be for you, as the employer, to determine if the information provided is sufficient, whether received from the sponsoring education provider directly or via the student. For instance, where information showing course dates on the education provider’s website differs from that in any letter received, you may wish to seek further clarification.’

The onus is therefore on the employer to ensure that the information provided is a genuine reflection of the student employee’s right to work conditions, and it is important to check that the information provided is coming from the educational provider. Whilst the official website pages are commonly used, it is highly advisable that a letter confirming the person’s individual terms dates covering the full period of employment is obtained and retained.

  • Information on short-dated Biometric Residence Permit cards (BRPs)

Other  new changes in line with the growing number of U.K.  eVisa holders include: confirmation that an employer should not presume that BRPs with an expiry date of 31 December 2024 are issued in error (where the individual has permission to stay ending after this date). The online right to work check should display the correct expiry date of the relevant immigration permission.

  • Use of ID Service Providers (IDPS)

In relation to checks using an Identity Service Provider (IDSP), the guidance states that some providers offer services in relation to manual checks of physical documents or checks via the online service. The guidance makes it clear that ‘other than where you use an IDSP expressly for right to work checks of British or Irish citizens with a valid passport (or Irish passport card), it is not possible to establish a statutory excuse against liability for a civil penalty if the manual document-based check, or online service right to work check, is performed by an IDSP.’

Employers should therefore be aware that they cannot outsource the Right to Work checks in the UK to IDPS completely. Companies must still conduct the checks themselves on all employees who are not British or Irish citizens.