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Legal Update

Global Directions: Mobility Trends in November 2017

2 November 2017
Mayer Brown Legal Update

Mayer Brown’s Global Directions is a summary of recent immigration and mobility trends arising in key jurisdictions around the globe. This high-level overview alerts recipients to select changes in law and practice that may affect their global mobility programs.

Americas

Canada

Canada Eases Eligibility Requirements for Citizenship

On October 11, 2017, the Citizenship Act was amended to ease the eligibility requirements for Canadian citizenship. These changes include reducing the physical presence requirement, changing the way physical presence is calculated, and narrowing the age range for meeting the language and knowledge requirement. Previously, applicants needed to be physically present in Canada for four out of the six preceding years. This requirement has been reduced to three out of five years. In addition, applicants can now include some of the time spent as temporary residents (e.g., as work permit holders or students) in the preceding five years to meet the physical presence requirement. An applicant can count each day that he or she was physically present in Canada as a temporary resident as a half-day, for a maximum credit of 365 days. In addition, the age range for the mandatory language and knowledge requirement has been narrowed. Before it applied to applicants aged 14 – 64; now it applies to those aged 18 – 54. Additional changes are anticipated in 2018.

United States

States Take Action Against Trump Travel Ban 3.0

Hawaii Federal Judge Blocks Trump’s Third Travel Ban

A federal judge for the US District Court for the District of Hawaii issued a nationwide order on October 17, 2017, blocking implementation of a presidential proclamation issued by President Donald Trump on September 24, 2017, titled “Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry into the United States by Terrorists or Other Public-Safety Threats.” The presidential proclamation was scheduled to be implemented on October 18.

In a legal action titled State of Hawai’I, Ismail Elshikh, John Does 1 & 2, and Muslim Association of Hawaii, Inc. vs. Donald J. Trump, et. al., US District Court Judge Derrick K. Watson issued a 40-page decision enjoining, nationwide, Sections 2(a), (b), (c), (e), (g), and (h) of the proclamation. These sections would, among other directives, suspend indefinitely the entry into the United States of certain nationals of six countries: Chad, Iran, Libya, Syria, Yemen, and Somalia. The decision discussed the indefinite nature of the travel suspensions and confirmed that “[t]he generalized findings regarding each country's performance...do not support the vast scope of” the directive.

The decision did not enjoin an indefinite suspension of entry into the United States of certain nationals from North Korea and Venezuela. These portions of the proclamation remain scheduled for implementation on October 18.

Maryland Federal Judge Stays Travel Ban 3.0 for Those with “Close Ties” to US

On October 17, 2017, the US District Court in Greenbelt, Maryland, became the second federal court that day to enjoin the Trump administration’s third travel ban. In a 91-page opinion filed less than 24 hours after the US District Court in Hawaii issued its temporary restraining order, US District Judge Theodore D. Chuang found that plaintiffs are likely to succeed on the merits of their constitutional and statutory claims with respect to Section 2 of the presidential proclamation that imposed “travel ban 3.0.”

Section 2 of the presidential proclamation would impose nationality-based restrictions on travel to the United States by nationals of Chad, Iran, Libya, North Korea, Somalia, Syria, Venezuela, and Yemen.

Judge Chuang found that the latest policy is an "inextricable re-animation of the twice-enjoined Muslim ban" that President Trump called for multiple times on the campaign trail. "To the extent that the Government might have provided additional evidence to establish that national security is now the primary purpose for the travel ban, it has not done so," Judge Chuang wrote in his opinion.

The Maryland order is more limited than the Hawaii order, however, in that it would allow some of the new restrictions to take effect for people who lack "a credible claim of a bona fide relationship with a person or entity in the United States." The Hawaii order does not draw this distinction.

Like the Hawaii order, the Maryland order does not affect the ban on travel from North Korea or the more limited restrictions on travel for certain Venezuelan government officials. Otherwise, pending further proceedings, travel from the listed countries remains unimpeded.

Asia

Australia

Training Levy to Be Introduced in Support of Temporary Skill Shortage (TSS) Visa

Two new bills have been introduced to implement a training levy to support the new Temporary Skill Shortage (TSS) visa program, set to replace the Subclass 457 visa category in March 2018. Employers who sponsor foreign nationals for a TSS visa and certain permanent skilled visas will be required to pay a training levy which will be allocated toward the Skilling Australians Fund. The proposed levies are as follows:

  • Employers with an annual income of AUD 10 million or more will be required to pay AUD 1,800 for each year a foreign worker sponsored on a TSS visa works in Australia. In addition, these employers will pay a levy of AUD 5,000 for each foreign employee sponsored for permanent residence.
  • Employers with an annual income less than AUD 10 million will be required to pay AUD 1,200 for each year a foreign worker sponsored on a TSS visa works in Australia and AUD 3,000 for each foreign employee sponsored for permanent residence.

The funds raised through these levies will be used to support Australian skills development through apprenticeships, internships, and training programs geared toward Australian workers. 

Thailand

Thailand Launches Pilot System for Work Permit and Visa Applications

Among a recent spate of technological advancements, the Thai Department of Employment, Ministry of Labor, Board of Investment, and Immigration Bureau are launching a new Single Window for Visa and Work Permits system for foreign experts. The new system is intended to reduce the time spent and documentation required to obtain a work permit. Currently, foreigners must use the One Stop Service Center to apply for a work permit and visa. This involves the foreigner first obtaining an approval letter from the Board of Investment. Once that’s obtained, they apply for a work permit through the Department of Employment. Once that’s approved, they receive a hard copy work permit book. Upon its receipt, they then apply for a one-year visa with the Immigration Bureau.

Once the Single Window system is available, the applicant will simply file one application online. The system will allow the applicant to schedule an appointment with the Immigration Bureau and will provide a downloadable e-Permit to replace the paper work permit book. It is anticipated that the Single Window system will be fully functional by January 1, 2018. In preparation for the launch of the new system, the Board of Investment is offering training to participating companies. This new system will streamline, simplify, and improve the application process for obtaining initial and renewal work permits and visas.

Turkey

Turkey Suspends Issuance of Visas to US Citizens

On October 8, 2017, the Turkish government announced the immediate suspension of most visa services to US citizens, including a suspension of the issuance of visa stamps (including work and student visas) at Turkish embassies and consulates in the United States and of the ability to apply online for e-visas. While some Turkish consulates outside the United States are issuing visas to US citizens, some require applicants to be a lawful resident or dual citizen of the country in which the consular post is located.

Both major airports serving the Istanbul area are reportedly issuing sticker visas upon arrival to US nationals entering Turkey from a port of exit outside the United States. However, US citizens are unable to obtain a border visa if they are arriving on a direct flight from the United States.

However, applications by US citizens for work and residence permits are being processed and approved.

Turkish authorities have indicated that they will adjudicate any visa applications filed prior to October 8.

Europe

EU Ministers Agree to Tighten Rules on Migrant Workers

On October 23, 2017, EU Ministers of Employment and Social Affairs agreed to tighten rules on posted workers, i.e., workers who are employed in one EU member state and sent by their employer to work temporarily in another EU member state. The new directive aims to ensure fair remuneration and a level playing field between posting and local companies in the host country.

The new directive will inter alia provide for the following regulations:

  • Remuneration of posted workers in accordance with host member state law and practices, i.e., the principle of equal treatment, will be introduced: posted workers have to receive the same remuneration, including salary, bonuses and employment benefits, as local workers.
  • A 12-month limit on the posting of workers will be implemented; the posting can be extended to a maximum of 18 months.
  • Universally applicable collective agreements will have to be applied to posted workers across all sectors.
  • The principle of equal treatment will also be introduced for temporary agency workers; temporary agency workers and local workers will have to be treated equally.

The ministerial agreement will be negotiated with the European Parliament before any legal changes are introduced.

Authors

  • Elizabeth (Liz) Espín Stern
    T +1 202 263 3825
  • Paul Virtue
    T +1 202 263 3875
  • Grace Shie
    Partner
    T +1 202 263 3845
  • Paul Justas Sarauskas
    T +1 312 701 7019
  • Lisa J. Pino
    T +1 202 263 3408
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