In response to a Trump administration Executive Order, the Department of State published notices on March 30, 2018, in the Federal Register soliciting public comment on requiring visa applicants to provide any identifiers used by applicants on certain listed social media platforms during the five years preceding the date of the application. On May 31, 2019, the Department of State announced that it had updated its visa application forms to request social media identifiers, noting that the collection of this information from visa applicants will “strengthen [our] process for vetting these applicants and confirming their identity.” The application forms include platforms such as Facebook, Twitter, Instagram, LinkedIn and YouTube.  The Department of State published FAQs providing more information to the public soon after.

In 2019, two documentary-film organizations filed a federal lawsuit in Washington, DC challenging the lawfulness of the new policy. When President Biden revoked the Executive Order which prompted the social media disclosure requirement in 2021, some expected the Department of State to eliminate the questions from the visa application forms after concluding its policy review.  Specifically, the President directed “a review of the current use of social media identifiers in the screening and vetting process, including an assessment of whether this use has meaningfully improved screening and vetting, and recommendations in light of this assessment.“ The Department of State, however, chose not to alter the Trump-era changes to the visa application forms, and the lawsuit proceeded. On August 11, 2023, Judge Timothy J. Kelly dismissed the lawsuit finding that the plaintiffs failed to state actionable claims under both the First Amendment and the Administrative Procedures Act, and that it is permissible for the Department of State to require visa applicants to share their social media information.

With the dismissal of the lawsuit, the US Government may choose to expand its collection of social media identifiers or handles, as Customs and Border Protection announced in 2021 with regards to the Visa Waiver Program. The Department of State might also choose to expand its list of platforms in the visa application form to include newer platforms such as TikTok. Meanwhile, the use of any social media platform not specified on the drop-down list can still be disclosed in response to the question “have you used additional social media platforms in the last 5 years?” Travelers should be prepared to accurately disclose identifiers when completing visa application forms and are cautioned that the intentional withholding of information could have serious consequences on an applicant’s ability to travel to the United States.

On July 18, 2023, Canada’s newly announced program offering open work permits to holders of U.S. H-1B visas closed after it reached the maximum number of applicants – less than two days after its launch. Under the Canadian government’s “Tech Talent Strategy,” ten thousand open work permits have been made available to foreign nationals who hold H-1B specialty occupation visas from the United States. The program is intended to improve the mobility of high-tech talent in North America by expanding the options for H-1B holders facing long waits for U.S. permanent residency (i.e., green cards). While the popularity of Canada’s program was widely expected, the speed with which the 10,000-permit limit was reached underscores the high demand for labor mobility in North America among employers and employees alike.

Continue Reading Canada’s Work Permit Program for U.S. H-1B Visa Holders Maxes Out in 48 Hours, as U.S. Conducts Second H-1B Lottery

On June 8, 2023, the U.S. Department of State announced that it had adopted new technology and enhanced coordination to reduce the time required for Administrative Processing, which encompasses a range of possible additional steps that may be required before an applicant can demonstrate eligibility for a visa.  These steps may include additional national security vetting.  Historically, Administrative Processing lacked predictability and transparency, and many U.S. visa applications would languish for months or years.  

Despite the State Department’s assurances, many Administrative Processing visa cases are still taking a very long time to clear.  This is particularly true for Russian, Chinese, and Iranian applicants, including individuals who held visas in the past, are currently living in the United States, or have U.S. citizen family members.  While the Department of State’s new system may have been effective at eliminating some cases from requiring Administrative Processing in the first place, many visa cases placed into Administrative Processing are still experiencing lengthy and frustrating waits. Absent an effective advocacy and engagement strategy, expediting the resolution of an Administrative Processing case can be challenging, and applicants living in the United States needing a visa to return should seek advice on the risk of a lengthy delay before leaving the country.  In some instances, deferring travel may be advisable. 

If a visa applicant is told that they will be placed into Administrative Processing, they should take the following steps:

  • Ask the interviewing officer why the application is going into Administrative Processing;
  • Ask how long the officer believes it will take for the application to clear Administrative Processing;
  • Make notes immediately after the interview of all of the questions asked by the consular officer;
  • Preserve any paperwork given to the visa applicant after the interview;
  • Seek professional advice before submitting responses to any questionnaires or requests for additional evidence.

Depending on the information gathered at the interview, a visa applicant may need to prepare personally and professionally for a long wait. If, after several months, the case has still not cleared, or if urgent personal or business issues arise requiring a more rapid resolution, visa applicants should explore engaging the Department of State regarding expedited processing. While the Department of State typically tells applicants that administrative processing cannot be expedited, in certain situations, such as a medical emergency, it is possible for consular managers to influence the prioritization of an application. Managers have a lot of influence over the resolution of a case pending final adjudication only when the case is pending with the consular section overseas. If an application, however, is pending clearance in Washington or with another agency, which is the case for most Administrative Processing applications languishing for long periods of time, consular managers overseas have limited influence over the resolution of such cases.

In a significant move aimed at streamlining and providing additional flexibilities to the employment verification process, the Department of Homeland Security announced a final rule granting certain employers the authority to utilize an optional alternative when examining Form I-9 documentation. The announcement follows the agency’s proposed rulemaking in August 2022 designed to explore alternative means for employers to verify the identity and employment authorization of new employees. We prepared a Legal Update to examine the new process and how it differs from existing procedures, and what employers should know as the new rule becomes effective.

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On June 23, 2023, the Italian government announced that foreign workers would be permitted to begin working in Italy while they wait to sign a contratto di soggiorno (contract of stay) at the immigration office. The change is part of a package of reforms intended to enable qualified foreign workers to begin employment in Italy in a more rapid fashion. While the foreign worker is still eventually required to sign the contract of stay, they no longer have to wait to do so before beginning formal employment.  

Continue Reading Italy Loosens Post-Arrival Requirements for Foreign Workers

On June 27, 2023, the Canadian government announced a new “Tech Talent Strategy” aimed at increasing the country’s attractiveness to global talent. Central to the government’s strategy is a program that offers three-year open work permits to foreign nationals who hold H-1B specialty occupation visas in the United States. Spouses of US H-1B visa holders would also be eligible for work authorization in Canada, and children would be eligible for study permits. The Tech Talent Strategy also includes provisions that promote Canada as a destination for digital nomads, improve the allocation of visas to startup companies, and streamline work permit processes. The open work permit program for H-1B visa holders is set to go into effect on July 16, 2023.

Continue Reading Canada Offers Open Work Permits to US H-1B Visa Holders as Part of “Tech Talent Strategy”

The Polish government has reportedly begun relaxing work permit requirements for certain individuals working remotely in the country for foreign employers. The policy change has been announced in agency guidance issued by the Ministry of Family and Social Policy, which exercises responsibility over the Polish labor market. The move is a departure from the government’s previous policy requiring nearly all gainfully employed foreign workers located in Polish territory to obtain a work permit – even if their physical location was incidental to their work. Poland’s relaxation of work permit rules for remote workers comes as several other countries – including Spain, Italy, Romania, Iceland, and the United Arab Emirates – have introduced remote worker (or “Digital Nomad”) visas to attract an increasingly mobile class of global talent.  

Continue Reading Poland Relaxes Work Authorization Rules for Remote Workers

To retain the best global talent, many employers leverage the annual H-1B visa lottery to secure work authorization for new employees. The nature of a lottery, however, leads some employers to search for ways to improve their chances of securing that “winning ticket”—and a pathway to retaining key talent in the United States. Recently, the Department of Homeland Security (DHS) noted that some employers had developed schemes with other entities to submit multiple submissions on behalf of the same prospective employee. In this Legal Update, we discuss the H-1B visa lottery process, which business practices are being targeted in the DHS probe, and what employers – and prospective employees – should be aware of in light of the investigations.

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Australia’s Department of Home Affairs has announced that all subclass 482 visa holders will be eligible to apply for permanent residency by the end of 2023. Currently, subclass 482 visa holders in short-term occupations are unable to seek permanent residency. The government will also allow short-term subclass 482 visa holders to renew their visas indefinitely, and will reduce the required employment period before seeking permanent residency from three years to two. The new policies are designed to provide more equitable access to permanent residency in Australia.

Continue Reading Australia Expands Eligibility for Permanent Residency

Effective July 1, 2023, the Australian government will raise the Temporary Skilled Migration Income Threshold (TSMIT) from AUD $53,900 to AUD $70,000. The move is a response to the government’s independent “Review of the Migration System,” which recently recommended actions for updating Australia’s immigration system. Raising the TSMIT will affect eligibility for the Subclass 482 visa – a Temporary Skill Shortage visa designed to allow employers to sponsor a suitably skilled foreign worker to fill a position for which a qualified Australian candidate cannot be found. According to the government announcement, around 90% of full-time jobs in Australia are now paid more than the current TSMIT.

Continue Reading Australia Raises Income Threshold for Skilled Migrant Visas