3 November 2015
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.
Proposed Rule Affecting F-1 Foreign Student Visa Holders Published in Federal Register
- On October 19, 2015, the Department of Homeland Security formally published its F-1 Optional Practical Training (OPT) STEM rule. Comments are being accepted until November 18, 2015. The rule had been vacated by a Washington DC federal judge because it had not been subjected to the public notice and comment process before it was implemented in 2008.
- Under current regulations, F-1 foreign students may apply for 12 months of post-graduation OPT, which allows them to work for an employer in their field of study.
- The proposed rule grants F-1 students who obtained a STEM (science, technology, engineering, mathematics) degree an additional OPT period of 24 months, replacing the current 17-month STEM OPT extension. The rule proposes a method for more clearly defining what qualifies as a STEM degree. The proposed rule also allows a maximum period of unemployment of 60 days during the additional 24-month extension period.
- The proposed rule imposes certain obligations on employers of STEM OPT students, including enrollment in E-Verify, implementation of formal mentoring and training programs for the students and application of terms and conditions (such as compensation) commensurate with those of similarly situated US workers.
- For any student who is the beneficiary of a timely filed H-1B change of status petition, the proposed rule also includes a “Cap-Gap” provision that automatically extends the F-1 status and current employment authorization until October 1 of the fiscal year for which the H-1B is requested.
Limit on CW-1 Visas for Fiscal Year 2016
- On October 22, 2015, the Department of Homeland Security announced that the annual fiscal year numerical limitation for the Commonwealth of the Northern Mariana Islands-Only Transitional Worker (CW-1) nonimmigrant classification for fiscal year 2016 is set at 12,999. This is a decrease of 1,000 from the last fiscal year.
- This change does not affect current CW-1 visa holders unless their employer files for an extension of their status. All petitions approved with a start date between October 1, 2015 and September 30, 2016 will count toward the 12,999 limit.
Indonesia: Changes to Regulations for Foreign Workers
- After passing new regulations governing foreign workers in June 2015, the Ministry of Manpower made further amendments in October 2015. Significantly, the 1:10 ratio of foreign workers to Indonesian employees has been removed from the regulations.
- Further, foreigners engaging in guidance, counseling or training on the application of industrial or technical products, attending business meetings and giving lecturers, no longer need to obtain a temporary work permit. Foreign workers engaging in the production of a commercial film, conducting audit, quality control or inspections, or installing products or machinery are still required to obtain a temporary work permit.
- The amendments clarify that non-resident foreign directors and commissioners are not required to obtain a work permit.
- The amendments also do not contain the previous requirement that foreign workers be able to communicate in Indonesian.
United Kingdom: Nursing Added to the Shortage Occupation List
- On October 15, 2015, the United Kingdom Home Secretary added nursing to the shortage occupation list on a temporary basis. This means that employers hiring foreign nurses will be exempt from performing the resident labor market test, and their requests for a restricted Certificate of Sponsorship are more likely to succeed, as requests for nurses will be prioritized over occupations that require a labor market test.
- The requirement that foreign nationals earn more than £35,000 (~USD 54,2013) in 2016 in order to qualify for settlement in the United Kingdom will not apply to foreign nationals employed as nurses.
Ministry of Economy Announces New Visa for Foreign Entrepreneurs
- In an October statement, the Ministry of Economy announced the creation of a program “Innovation Visas for Foreign Entrepreneurs.” The program is expected to be launched in the coming months and will provide foreign entrepreneurs with a 24-month visa to work at one of 12 pre-approved high-tech entrepreneurial incubators.
- Upon completion of the 24-month period, foreign entrepreneurs seeking to establish a company in Israel may apply for an “Expert Visa” for an as yet unspecified amount of time.
Short Employment Authorization Period Extended
- The Ministry of the Interior has extended the validity period of the Short Employment Authorization (SEA) visa from 30 to 45 days per calendar year. All other aspects of the program remain unchanged. Temporary regulations are in place until July 31, 2016.
South Africa: Relaxation of Certain Visa Rules
- The requirement for foreign nationals to submit visa applications in-person will be relaxed in countries where South Africa does not have an embassy or a consulate. In such countries, foreigners will be allowed to apply by mail. Biometrics will be collected at the port of entry upon arrival in South Africa.
- The application process for tourist visas is expected to be eased in countries with only a few South African consulates.
- For children from visa-exempt countries, the requirement to show original birth certificates and parental consent affidavits will likely be lifted. However, children traveling alone, or with only one parent or guardian, are strongly encouraged to carry relationship and consent documents in case questions are raised upon arrival in South Africa.