31 minute read
Federal Case Corner
sabrina damasT, esq.
This recurring column will highlight some of Attorney Sabrina Damast’s favorite federal court decisions. The cases will run the gamut of immigration practice, from detention issues to crimmigration, due process to asylum eligibility.
First Circuit Finds that Massachusetts Conviction for Accessory after the Fact is an Aggravated Felony
The First Circuit has determined that a Massachusetts conviction for accessory after the fact is an obstruction of justice-related aggravated felony. In so doing, the court determined that the definition of obstruction of justice unambiguously “does not require a nexus to a pending or ongoing investigation or judicial proceeding.” This widens a circuit split, with the Ninth and Third Circuits requiring a nexus to an ongoing investigation, and the Fourth Circuit and First Circuit agreeing with the Board of Immigration Appeals that an ongoing investigation is not required. The First Circuit further determined that even assuming a nexus to an investigation is required, the Massachusetts statute meets that requirement. “To be convicted under that statute, the accessory must act with specific intent to enable a felon to ‘avoid or escape detention, arrest, trial, or punishment.’ Absent an investigation, there can be no prosecution and no detention, arrest, trial, or punishment to avoid or escape.”
The full text of Silva v. Garland can be found here: http://media.ca1.uscourts.gov/pdf. opinions/20-1593P-01A.pdf
Second Circuit Finds that Violation of Protection Order Deportability Analysis is Governed by Circumstance Specific Approach
The Second Circuit has determined that deportabilty under section 237(a) (2)(E)(i) of the INA (violation of a protective order) is governed by a
circumstance specific approach, not a categorical analysis. In so doing, the Court noted that the deportability ground does not require a conviction, and the categorical analysis is usually applied to a statute of conviction . The full text of Alvarez v. Garland can be found here: https://www.ca2.uscourts.gov/ decisions/isysquery/7ab57bdbb5b8-4eea-80f6-61f7193bf77f/2/ doc/22-6021_opn.pdf#xml=https:// www.ca2.uscourts.gov/decisions/ isysquery/7ab57bdb-b5b8-4eea-80f661f7193bf77f/2/hilite/
Second Circuit Eliminates Judicial Review of Withholding-Only Proceedings
The Second Circuit has determined that a non-citizen subject to a reinstated removal order can only seek judicial review within 30 days of the reinstatement determination. The non-citizen cannot seek judicial review of any subsequent decision in a withholding-only proceeding. This, of course, is an incredibly alarming decision, which strips a large group of non-citizens of judicial review of non-discretionary protection from persecution and torture.
The full text of Bhaktibhai-Patel v. Garland can be found here: https://www.ca2.uscourts.gov/ decisions/isysquery/7ab57bdbb5b8-4eea-80f6-61f7193bf77f/8/ doc/19-2565_opn.pdf#xml=https:// www.ca2.uscourts.gov/decisions/ isysquery/7ab57bdb-b5b8-4eea-80f661f7193bf77f/8/hilite/ The Second Circuit has remanded an Administrative Procedure Act case, in which the applicant was found inadmissible on terrorism-related grounds. The applicant claimed to have acted only under duress when he used a weapon. The Court remanded for U.S. Citizenship and Immigration Services to determine if the use of a weapon under duress would constitute an unlawful act in the United States or in Afghanistan, as the definition of terrorist activity requires the activity to be “unlawful under the laws of the place where it is committed (or . . . if it had been committed in the United States, would have been unlawful under the laws of the United States or any State).”
The full text of Kakar v. USCIS can be found here: https://www.ca2.uscourts.gov/ decisions/isysquery/ac4ff7f98a5d-433e-8c2c-54b6af2cc791/6/ doc/20-1512_opn.pdf#xml=https:// www.ca2.uscourts.gov/decisions/ isysquery/ac4ff7f9-8a5d-433e-8c2c54b6af2cc791/6/hilite/
Second Circuit Finds that Making False Statements is a Crime Involving Moral Turpitude
The Second Circuit has determined that making false statements in violation of 18 U.S.C. § 1001(a) is a crime involving moral turpitude because the conviction “necessarily requires ‘deceit and an intent to impair the efficiency and lawful functioning of the government.” This conclusion is in accord with similar conclusions reached by the Sixth and Seventh Circuits on the immigration consequences of a conviction under this statute.
The full text of Cupete v. Garland can be found here: https://www.ca2.uscourts.gov/ decisions/isysquery/caf0e4267c20-43be-be1c-90754628fc71/7/ doc/20-3441_opn.pdf#xml=https:// www.ca2.uscourts.gov/decisions/ isysquery/caf0e426-7c20-43be-be1c90754628fc71/7/hilite/
Fourth Circuit Finds that 237(a)(1)(H) Waiver is Available to the Son or Daughter of a Deceased U.S. Citizen
The Fourth Circuit has determined that a 237(a)(1)(H) waiver is available to an applicant even if her U.S.-citizen father is deceased. Such a person remains the son or daughter of a U.S. citizen, even after the citizen’s death.
The full text of Julmice v. Garland can be found here: https://www.ca4.uscourts.gov/ opinions/211177.P.pdf
Fifth Circuit Finds that BIA Appeal Deadline is Subject to Equitable Tolling
The Fifth Circuit has determined that the 30-day deadline to file an appeal with the Board of Immigration Appeals is not jurisdictional, and thus, is subject to equitable tolling. Two other circuits (the Second Circuit and the Ninth Circuit) have already reached the same conclusion.
The full text of Boch-Saban v. Garland can be found here: https://www.ca5.uscourts.gov/ opinions/pub/20/20-60540-CV0.pdf
Fifth Circuit Addresses TPS Holders’ Eligibility for Adjustment of Status
In a convoluted analysis based more on policy than statute, the Fifth Circuit has determined that recipients of Temporary Protected Status, who travel on Advance Parole after being ordered removed, are admitted to the United States upon return, but are still considered to be subject to an unexecuted order of removal. As such, they would need to reopen their removal proceedings in order to pursue adjustment of status. Without reopening, no agency would have jurisdiction to adjudicate their adjustment of status applications.
The full text of Duarte v. Mayorkas can be found here: https://www.ca5.uscourts.gov/ opinions/pub/18/18-20784-CV0.pdf
Ninth Circuit Finds that Montana Defines Cocaine More Broadly than Federal Law
Most lawyers, if asked to compare the derivatives of cocaine in two statutes, would respond by asking “what’s a derivative of cocaine?” The continuing litigation surrounding the isomers and derivatives of various controlled substances highlights the importance of immigration lawyers making friends with chemists, who actually understand the concepts of isomers and derivatives. In Montana, a mismatch between state and federal definitions of cocaine derivatives likely means that Montana offenses involving cocaine are no longer removal offenses.
The full text of U.S. v. House can be found here: https://cdn.ca9. uscourts.gov/datastore/ opinions/2022/04/15/20-30169.pdf Ninth Circuit Finds that a California Conviction for Rape of an Unconscious Person is not an Aggravated Felony
The Ninth Circuit has determined that a California conviction for rape of an unconscious person is not an aggravated felony because it includes intercourse with someone whose consent was procured by fraud. The court found the statute to be overbroad and indivisible. The court, however, gave the Board of Immigration Appeals another opportunity to decide if the generic definition of rape includes consensual intercourse obtained through fraud. It seems likely that this conviction will again be found to be an aggravated felony after the Board’s decision on remand. The full text of Valdez Amador v. Garland can be found here: https://cdn.ca9. uscourts.gov/datastore/ opinions/2022/03/09/13-71406.pdf
The Tenth Circuit, in an amazing decision, has recognized the existence of a pattern or practice of persecution in Honduras against transgender women. “The acts of violence are so widespread that any reasonable adjudicator would find a pattern or practice of persecution against transgender women in Honduras. The record shows extensive evidence of widespread violence against transgender individuals in Honduras.”
The full text of Gonzalez Aguilar v. Garland can be found here: https://www.ca10.uscourts.gov/sites/ ca10/files/opinions/010110663824. pdf
The Eleventh Circuit has reversed a finding that a Florida conviction for burglary of an unoccupied dwelling is a crime involving moral turpitude because there is no requirement that the dwelling be intermittently occupied. This distinguishes it from the Oregon statute for burglary of an unoccupied dwelling at issue in the Board of Immigration Appeals’ decision in Matter of J-G-D-F-, 27 I&N Dec. 82 (BIA 2017). The court remanded for further analysis by the Board of Immigration Appeals.
The full text of Lauture v. Attorney General can be found here: https://media.ca11.uscourts.gov/ opinions/pub/files/201913165.pdf
Eleventh Circuit Finds that Denial of a National Interest Waiver is Unreviewable
The Eleventh Circuit has determined that it lacks jurisdiction to review the discretionary determination that an applicant does not meet the criteria for a national interest waiver, as outlined in Matter of Dhanasar. This is in line with the decisions reached by the District of Columbia, Third, and Ninth Circuits on the same jurisdictional question. The Court clarified that a challenge to whether U.S. Citizenship and Immigration Services failed to follow its own procedures or the test set out in Dhanasar would not be jurisdictionally barred, but rather, a disagreement with the agency’s finding that an applicant does not meet the Dhanasar standard is not reviewable.
The full text of Brasil v. Secretary of Homeland Security can be found here: https://media.ca11.uscourts.gov/ opinions/pub/files/202111984.pdf
Eleventh Circuit Finds that Florida Marijuana Statutes are Overbroad
In another instance of “this drug isn’t really this drug” litigation, the Eleventh Circuit has determined that Florida’s definition of marijuana (which includes the stalk of the plant) is broader than the federal definition of marijuana (which excludes the stalk). As such, Florida marijuana convictions should no longer trigger controlled substance-related removability.
The full text of Said v. Attorney General can be found here:
https://media.ca11.uscourts.gov/ opinions/pub/files/202112917.pdf
About the Author
Sabrina Damast practices in the areas of immigration and nationality law and post-conviction relief. Before opening her own law practice, Sabrina served as a judicial law clerk in the Los Angeles Immigration Court and worked as an immigration attorney in private practice. As a law clerk, she conducted research and wrote more than two hundred decisions for dozens of Immigration Judges. She developed an expertise in all forms of deportation defense, including applications for asylum, permanent residence, NACARA, fraud waivers, and criminal waivers. As an attorney in private practice, she solidified these skills by representing clients threatened with deportation. Sabrina is an active member of the American Immigration Lawyers Association and the Los Angeles County Bar Association. In her spare time, she enjoys singing, swing dancing, and musical theater, and she is the leader of a local Girl Scout troop. Sabrina is a member of the New York and California Bars and is admitted to the Central District of California, the Southern District of California, the Northern District of California, the Eastern District of California, the Ninth Circuit Court of Appeals, and the United States Supreme Court. She frequently publishes articles, teaches CLEs, and gives presentations on immigration law.
Anna Khan, Esq YIPLawyers.com anna@yiplawyers.com
A Long Two Years: Australia’s Path to Re-Opening Its Borders Post-Pandemic
anna Khan, esq.
March 2020. I have gotten back from a wonderful national immigration law conference held in Melbourne, Victoria. I wipe the seats down on the plane, just to be extra safe. No mask, I eat the plane snacks happily. The next day I take my little cousin to a jiu-jitsu competition for pre-teens – a room full of children coughing on each other, touching everything in sight without a care in the world.
A week later, the whole world shuts down. As an immigration lawyer, this was the most surreal moment of the entire Covid-19 pandemic for me. My entire career is built on global mobility and suddenly and in very unforeseeable circumstances, this entire premise is removed. Hard legislation is implemented, preventing any non-citizens, and for that matter, citizens too, to enter the country. No way in and no way out! No ability to predict the future for clients who are also at a loss.
A brief history of the rules
If you are like me, you have tried to forget the last two years and could use
a refresher. For everyone’s benefit, here is a quick recap of what happened in Australia:
• 1 February 2020: Australia denies entry to anyone who has left or transited China from 1 February 2020.
• 1 March 2020: Australian government extends travel restrictions and deems Covid 19 a ‘pandemic’. Foreign nationals (excluding permanent residents of Australia) who are in Iran on or after 1 March 2020, will not be allowed to enter Australia for 14 days from the time they have left or transited through Iran.
• 11 March 2020: Australian government extends travel restrictions to include Italy and Korea.
• 17 March 2020: Australian government extends 14-day selfisolation requirement to ALL travelers entering Australia.
• 20 March 2020: Only Australian citizens, residents and immediate family members can travel to Australia. Travel exemptions are introduced for all non-citizens traveling into the country. Exemption reasons include being immediate family of an Australian citizen or having ‘critical skills’ in a ‘critical sector’ for Australia’s economic recovery. A travel exemption is also needed for Australian citizens to leave the country. Mandatory hotel quarantine is required in all states and territories.
• 7 April 2020: Government announces new stream to the Subclass 408 visa – Covid-19 Pandemic Even., The purpose is to provide a pathway for certain former and current holders of temporary visas to lawfully remain in Australia, and for those who would otherwise be required to depart Australia, but for the COVID-19 pandemic, are unable to leave Australia.
• 2 September 2020: The Government announces a new ‘skilled occupation list’, which may be exempt from the travel ban into the country. This includes CEO’s, software engineers, and a range of occupations in the medical profession.
• 13 October 2020: a range of waivers to visa application fees is announced for several visa subclasses, including Working Holiday, Prospective Marriage, and Visitor visas.
• 25 November 2020: The Government announces exemptions to permanent residence pathways for temporary workers who may have had reduced hours due to the pandemic.
• 9 December 2020: The Australian Travel Declaration is introduced and must be completed by all incoming passengers.
• 31 August 2021: Government announces that until December 2021, the weekly limit on the number of travelers arriving in Australia on commercial flights remains at 3,070. • 1 November 2021: a parent of an adult Australian will be considered an immediate family member of an Australian citizen or permanent
What does all mean for you?
As of May 2022, all visa routes have re-opened for all foreign passport holders. This is great news, but has also resulted in wildly blown out processing times for many visas. Reports of Visitor visas taking up to 20 months to process and Temporary Skill Shortage visas taking up to 15 months have meant that what should have been welcoming news is yet another hurdle for individuals and businesses. All fully vaccinated foreign passport holders who have a valid Australian visa, can travel into the country without issue. Fully vaccinated currently does not include a booster shot requirement. Everyone must complete the Digital Passenger Declaration (DPD) which is not a visa application and is something that is an additional requirement to a valid visa. Many clients have reported plans to fly into Australia with no visa and only a completed the DPD. This has resulted in postponed flights upon the realization that they will not be allowed entry. The Digital Passenger Declaration is the equivalent of an incoming passenger card that must be completed on the plane – it is necessary but only the last step. Negative Covid-19 tests are also no longer required as of April 2022. However, each individual Australian state and territory has its own requirements – the majority requiring travelers to take their own Rapid Antigen Test within 24 hours of entry and self-isolate should it return positive. Unvaccinated foreign passport holders, regardless of the type of temporary visa they hold, are still required to apply for and have an approved travel exemption before they are allowed to travel into the country. There are medical exemptions and other general exemptions that were created in 2020, including being an immediate family member of an Australian citizen or possessing a ‘critical skill’.
What about the ones who remained in Australia during the pandemic?
The Government has implanted measures to reward those temporary visa holders that remained in Australia during the pandemic, and helped businesses pull through. One of the most significant changes has been for Australia’s Subclass 482 Temporary Skill Shortage visa holders who were previously been unable to apply for permanent residence. On 25 November 2021, the Government announced that the pathway for permanent residence would be opened up to all Subclass 482 visa holders in Australia, including individuals with occupations on the short-term occupation list. These occupations are otherwise not eligible for an employed nominated permanent residence. On 18 March 2022, legislations was enacted to allow any holder of a Subclass 482 (or historical 457) visa who had been in Australia between 1 February 2020 – 14 December 2021 to become eligible for the employer nominated permanent residence, via the Subclass 186 visa temporary residence transition stream.
This opened up permanent residence possibilities for a large cohort of individuals, however a small ineligible group remains. The legislation requires that the applicant meet other criteria for this particular stream of the Subclass 186 visa, namely that they have worked with their employer on a Subclass 482 or 457 visa for at least 3 full years before making their application. Given this legislation is only set to commence from 1 July 2022 and cease on 1 July 2024, essentially this means that the cohort of individuals able to apply for permanent residence are those individuals who have worked with their current employer on their Subclass 482 or 457 visa as of 29 June 2021. Anyone who changed employers after that (which would have been many during the pandemic)
What are the timelines and process for those traveling to Australia in the near future?
The processing times for visas across the board has increased. Lengthy processing times are likely to continue for the next 12 months as more businesses and individuals adjust to international travel once again. Ironically, the ease with which the majority of applications were processed during the pandemic due to limited applications being accepted has disappeared. Where Subclass 482 visas were once taking one week, they are now taking months because this visa route has re-opened to all applicants once again.
What is the impact on Student and Working Holiday Visa Holders?
Student visa holders who arrived between 9 January 2022 and 19 March 2022 may be eligible for a refund of their visa application fees and have until 31 December 2022 to apply for the refund. Similarly, Working Holiday visa holders who arrived in Australia between 19 January 2022 and 19 April 2022 can also apply for a refund of their application fees, and from 5 March 2022, those Working Holiday visa holders already in Australia can apply for a second or third Working Holiday visa with a nil visa application charge. Individuals outside the country who held a Working Holiday visa before 20 March 2020 which expired between then and 31 December 2021 may also apply for an offshore Working Holiday visa with a nil application charge as long as they did not travel into the country on that visa and make their new application before the end of the year.
Beyond Covid-19 – What’s Next?
What a thrill, Australia is in a Federal election year, the results of which are very hot off the press. A Labor Government for the first time in close to ten years. This essentially means, anything is possible both in a positive and negative sense. While the Labor Government has made no comment about the opening of permanent residence pathways, they may well feel that this is too generous and make revisions. Elections will often affect policy on many visas, the biggest usually being Temporary Work visas and Student visas – the ‘controversial’ ones. However, Parent and Partner visas are not immune and processing times for these can also be affected depending on promises made and the policy positions taken. Historically speaking, Labor has placed quite an emphasis on parents and Australian workers. We are very much in a ‘wait and see’ position for what the next few months will bring.
About the Author
Anna Khan is an Australian immigration lawyer. She primarily practices in corporate and skilled immigration, and has spent considerable time dealing with family migration. She encourages readers to reach out with restaurant and food recommendation as this is where her true passion lies. She currently resides in beautiful Sydney.
Daniel Lee, Esq Fasken.com dalee@fasken.com
daniel lee, esq.
Introduction
In the United States the processing time for the permanent resident applications could take several years with uncertainty, depending on the foreign national’s country of citizenship and priority date. To get the worker started sooner, each year many companies in the United States use the H-1B visa lottery system to hire foreign nationals with theoretical or technical knowledge in a speciality occupation. And each year, many companies are not successful in receiving an invitation to submit a H-1B visa application for their candidates. Some of the global talents in the IT industry, including software engineers, have turned to Canada and have successfully immigrated to Canada as permanent residents under the Federal Skilled Worker Program or Canadian Experience Class in as short as six months from submitting a complete permanent resident application to the Government of Canada. This article provides a summary of the Federal Skilled Worker Program and Canadian Experience Class for software engineers to immigrate to Canada as a permanent resident. This article will also introduce an expedited work permit category for software engineers with a job offer from a Canadian employer to apply for a Canadian work permit in as short as 4 to 6 weeks.
What is Canada’s Express Entry Case Management System?
In January 2015, Canada launched Express Entry, Canada’s application management system for specific economic immigration programs, including the Federal Skilled Worker Program and Canadian Experience Class. Express Entry was designed to expedite permanent resident applications for foreign nationals with skilled work experience under the economic immigration programs. Foreign nationals who meet the program requirements under the Federal Skilled Worker Program or
Canadian Experience Class can create an online Express Entry profile and periodically foreign nationals with the highest Express Entry points may receive an invitation to apply for permanent residency online. Canada aims to process the Federal Skilled Worker Program and Canadian Experience Class applications within six months from the date that the applicants have submitted a complete application.
During the COVID-19 pandemic, the Government of Canada temporarily paused the Federal Skilled Worker Program and Canadian Experience Class. On April 22, 2022, the Government of Canada announced that Immigration, Refugees and Citizenship Canada will resume Federal Skilled Worker Program and Canadian Experience Class invitations in early July 2022. The vast majority of new Express Entry applications will be processed within the six-month service standard.
In order to be eligible for the Federal Skilled Worker Program1 , the foreign national must score at least 67 out of 100 points in the selection factors, which includes the following minimum requirements:
1. Skilled Work Experience: The foreign national has at least one year of continuous full-time and paid work experience in NOC skill type 0 or NOC skill level A or B, including software engineers, within the past ten years.
2. Language Ability: The foreign national meets the minimum language requirement in English or French. For software engineers, an approved language test2 must be taken within the past two years and a score of Canadian Language Benchmark 7 in all four abilities (writing, reading, listening, speaking) must be obtained. 3. Education: The foreign national meets the minimum education requirement (completion of secondary school). For software engineers a higher education is usually required (Bachelor’s degree). If the post-secondary education is not completed in Canada, then an educational credential assessment from a designated organization is required.
Once the foreign national meets the Federal Skilled Worker Program eligibility requirements, the foreign national can create an online Express Entry profile, which is valid for 12 months. If the foreign national’s Express Entry points are high enough, then the foreign national may receive an invitation to apply for permanent residency.
Unlike the Federal Skilled Worker Program, the Canadian Experience Class is for skilled workers who have gained Canadian work experience in Canada within the past three years. Whereas, the Federal Skilled Worker Program is for skilled workers who have gained foreign work experience from outside of Canada within the past ten years. In order to be eligible for the Canadian Experience Class3 , the foreign national must meet the following minimum requirements: 1. Skilled Work Experience: The foreign national has at least one year of continuous full-time and paid work experience in Canada in NOC skill type 0 or NOC skill level A or B, which includes software engineers, within the past three years before applying for permanent residency.
2. Language Ability: The foreign national meets the minimum language requirement in English or French. For software engineers, an approved language test4 must be taken within the past two years and a score of Canadian Language Benchmark 7 in all four abilities (writing, reading, listening, speaking) must be obtained.
3. Education: There is no education requirements for the Canadian Experience Class. To improve their rank in the Express Entry pool, foreign nationals with post-secondary education from outside of Canada should obtain an educational credential assessment from a designated organization for their highest level of post-secondary education completed.
Once the foreign national meets the eligibility requirements in the Canadian Experience Class, the foreign national can create an online Express Entry profile, valid for 12 months. If the foreign national’s Express Entry points are high enough, the foreign national may receive an invitation to apply for permanent residency.
The minimum requirements for the Federal Skilled Worker Program and Canadian Experience Class were summarized above. Meeting the minimum requirements of the mentioned programs will not guarantee the foreign national will receive an invitation to apply for Canadian permanent residency. This is because only candidates in the Express Entry pool with the highest Express Entry points may receive an invitation to apply for Canadian permanent residency.
Express Entry points can be increased with Canadian work experience. Foreign nationals who are citizens of the United States and Mexico can apply for a CUSMA Professionals Work Permit (similar to a TN visa in the United States) to work in Canada as a software engineer.
Software engineers not currently meeting one of the Free Trade Agreements, such as CUSMA Professionals, can apply for a work permit under the International Mobility Program, where the Canadian employer is exempt from the Labour Market Impact Assessment requirement. The Government of Canada created the Global Talent Stream to provide a simplified procedure for foreign nationals and their employers in Canada to apply for a Canadian work permit for foreign nationals to work as software engineers.
The Global Talent Stream launched in June 2017, has a list of Global Talent Occupations to fill positions in high demand in Canada, including software engineers. Employers wanting to hire foreign nationals to fill positions in the Global Talent Occupations List is exempt from the recruitment requirement for Labour Market Impact Assessment for four weeks. Further, the Labour Market Impact Assessment applications under the Global Talent Stream receives expedited processing of ten business days. Once the Labour Market Impact Assessment application is approved, the foreign national and spouse/ common-law partner can apply for a Canadian work permit, and the dependent children under 22 years of age can apply for a Canadian study permit. The Government of Canada also expedite the Canadian work permit applications and aims to process the Canadian work permit applications in about two weeks. This means foreign nationals who want to work in Canada as software engineers can commence their employment in Canada as short as 4-6 weeks if they have a job offer from an employer in Canada.
The foreign national’s spouse or common-law partner will be eligible for an open work permit and can work in Canada without employment restrictions, while the foreign national holds a valid Canadian work permit. The foreign national’s dependent children will be able to study primary school and secondary school in Canada while the foreign national holds a valid Canadian work permit.
Endnotes 1 https://www.canada.ca/en/immigration-refugees-citizenship/services/immigrate-canada/express-entry/eligibility/federal-skilled-workers.html#education 2 https://www.canada.ca/en/immigration-refugees-citizenship/services/immigrate-canada/express-entry/documents/language-requirements/language-testing.html 3 https://www.canada.ca/en/immigration-refugees-citizenship/services/immigrate-canada/express-entry/eligibility/canadian-experience-class.html 4 https://www.canada.ca/en/immigration-refugees-citizenship/services/immigrate-canada/express-entry/documents/language-requirements/language-testing.html Canada has both competitive permanent resident and temporary resident programs for foreign software engineers to move to Canada. Software engineers are in high demand in Canada. There are expedited pathways for experienced software engineers to immigrate to Canada as permanent residents within about six months upon receiving an invitation to apply for the Government of Canada. Software engineers who want to work in Canada temporarily can apply for a Canadian work permit under the LMIA Global Talent Stream if they have a job offer from an employer in Canada. Foreign nationals under the LMIA Global Talent Stream could start their employment in Canada for as short as 4-6 weeks. The processing time for immigration applications are subject to change. However, for both permanent resident and temporary resident programs for software engineers, the Government of Canada is currently prioritizing their applications.
About the Author
Daniel Lee is a Canadian immigration lawyer at Fasken’s Vancouver, BC office. His practice focuses on corporate immigration law and employer immigration compliance. His practice is primarily focused on corporate immigration, including facilitating global mobility for employees and facilitating their permanent residence in Canada. Daniel also works closely with employers in developing workplace policies to ensure their workplaces are in compliance with Canadian immigration laws and policies. During the COVID-19 pandemic, Daniel advises his clients on the frequent changes in immigration laws, including the Quarantine Act and the travel exemptions.
Graduates of Top US universities have Lucked out with the UK’s new High Potential Individual Visas
vanessa ganguin, esq.
The United Kingdom has launched the High Potential Individual visa - its new easy unsponsored immigration route for graduates of the world’s top universities. The selection of qualifying top universities has caused some controversy as there are only five European universities on the 2021 list, and none from Africa, South Asia or Latin America. The good news for graduates of elite US education institutions however is that over half of the qualifying universities for this new UK immigration route are North American. The High Potential Individual visa is a great opportunity for graduates who qualify to come to the UK with their family to work, look for employment, work freelance or set up a business. On May 30, 2022, UK Chancellor Rishi Sunak insisted: “we want the businesses of tomorrow to be built here today - which is why I call on students to take advantage of this incredible opportunity to forge their careers here.”
Applicants for this new visa should have graduated within five years before applying from a university on the UK government’s High Potential Individual visa: global universities list for the year their degree was awarded. The UK Government has published these global universities lists based on higher education institutions that featured for that year in at least two of the Times Higher Education World University Rankings, Quacquarelli Symonds World University Rankings and The Academic Ranking of World Universities. The good news for North American graduates is that over half the qualifying universities on the lists are in the USA, with Canada well represented too. For example in 2021 none of the 37 universities that appeared in two of the above independent guides were from Latin
America, Africa or South Asia, while Canadian graduates meeting the eligibility requirements from McGill University, University of British Columbia or University of Toronto can all apply for a High Potential Individual visa. Last year there were as many colleges in California (Caltech; Stanford; University of California, Berkeley; UCLA; University of California, San Diego) that qualified as in the whole continent of Asia (NTU, Singapore; National University of Singapore; CUHK, Hong Kong; University of Hong Kong; University of Tokyo, Japan; Kyoto University, Japan; Peking University, China; Tsinghua University, China). The other 15 US universities from where graduates can apply are: Columbia University; Cornell University; NYU; Harvard University; MIT; Duke University; Johns Hopkins University; Northwestern University; Princeton University; University of Michigan-Ann Arbor; University of Chicago; University of Washington; Yale University; University of Pennsylvania; University of Texas at Austin. The 2021 list has only five higher academic institutions in Europe: Ecole Polytechnique Fédérale de Lausanne, Switzerland; ETH Zurich (Swiss Federal Institute of Technology), Switzerland; Karolinska Institute, Sweden; Paris Sciences et Lettres Research University, France; LMU Munich, Germany. The Southern hemisphere of the globe is only represented by the University of Melbourne, Australia.
What other eligibility requirements are there for the High Potential Individual visa?
Requirements for this relatively speedy route to the UK are not onerous. Applicants must pass a security and criminality check and be proficient in English to at least the B1 intermediate level – which can be described as “fluency to communicate without effort with native speakers”. A husband, wife, civil partner, or unmarried partner may accompany a high potential individual, as may children under 18 on the date of application. (Unmarried partners must be in a genuine and subsisting relationship of two years or over.) Applicants should demonstrate savings of £1,270; £285 for an accompanying partner; £315 for a first child, £200 for any additional child.
What are the benefits of the High Potential Individual visa?
The new immigration route is useful for those who want to try working in the UK without being beholden to a particular sponsoring employer. It will also prove useful for employers who want to hire anyone eligible without the expense or responsibility of being a sponsor. Any employment they undertake will not be subject to having to be coded under a standard occupation classification (SOC) code or require a minimum salary. Employers can get to know High Potential Individuals first before sponsoring them on a more long-term visa. Those granted a visa may work, look for work, work freelance or set up a business. They will not be able to access public funds. The visa costs £715 plus the immigration health surcharge (which allows free access to NHS healthcare.)
How long can High Potential Individuals stay?
The amount of leave that successful applicants are granted depends on the level of academic qualification they hold. Applicants holding a qualification equivalent to a UK Bachelor’s or Master’s level degree will be granted a period of two years. Applicants who hold a qualification equivalent to a UK PhD or other doctoral level qualification will be granted three years. This is not a route to settlement in itself, but an opportunity for people to enter the work market in the UK. At any point before the High Potential Individual visa expires switching is permitted into work visa categories that do lead to settlement, such as Skilled Worker, Start up, Scale up, Innovator or Global Talent visas.
About the Author
Vanessa Ganguin, managing partner at Vanessa Ganguin Immigration Law, is one of the most highly regarded experts in UK immigration, with over 27 years’ specialist experience. Vanessa Ganguin’s immigration advice has spanned high court appeals to multinational takeovers. Vanessa advises a wealth of clients from the US, from entertainers and artists to start-ups and big brands moving staff to the UK. She is recommended by Chambers & Partners UK, Chambers High Net Worth Guide, Legal 500 and Who’s Who Legal as a thought leader in immigration law.
