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
On January 19, 2018, the US federal government reached in impasse on budget negotiations, causing a partial government shutdown. On January 22, Congress approved a continuing resolution to fund the government through February 8, 2018. The main issue of contention surrounded budget and relief for Deferred Action for Childhood Arrivals (DACA) beneficiaries. Earlier, in September 2017, President Trump announced his intention to end the DACA program. Democrats, in turn, have advocated for the codification of DACA and, by majority, refused to approve a budget without a permanent resolution to the DACA program. As part of the deal to resume government operations, Congress was given a March 5 deadline to develop a permanent solution for the DACA program, as March 5 remains the deadline for the administration’s phase-out of the program.
During the government shutdown, immigration processes overseen by the Department of Labor (including PERM, LCA, and prevailing wage) were unavailable. Also unavailable was DHS’s E-Verify database, the EB-5 program, and Conrad 30 Waiver program. All affected government programs are once again up and running.
On January 9, 2018, US District Court Judge William Alsup denied the Department of Homeland Security’s (“DHS”) motion to dismiss five lawsuits filed in the US District Court for the Northern District of California challenging Acting Secretary of Homeland Security Elaine Duke’s September 5, 2017, decision to end the Deferred Action for Childhood Arrivals (“DACA”) program. Judge Alsup also issued a preliminary injunction requiring the government to maintain the DACA program under the terms and conditions that were in effect before the September 5 order, with limited exceptions.
Under the exceptions: 1) DHS need not process new applications from applicants who have never received deferred action; 2) travel document requests need not be processed for the time being; and 3) DHS “may take administrative steps to make sure fair discretion is exercised on an individualized basis for each renewal application.”
The court has directed the government to post reasonable public notice that it will resume receiving DACA renewal applications, but it is not clear when that will happen given the possibility of government appeals. DACA beneficiaries who might benefit from renewal should not take action until the situation is clarified.
Legislative discussions have been underway, and on the same day as the ruling, President Trump hosted a bipartisan meeting to discuss the issue. Ten days later, the US government partially shut down, largely due to the dispute over the future of the DACA program. (See item above.) Additional developments on both the judicial and legislative fronts are likely in the coming weeks.
On January 9, 2018, a spokesperson for US Citizenship and Immigration Services (USCIS) denied reports that the agency was considering a change in interpretation of a law that allows H-1B visa holders to remain in the United States while awaiting an immigrant visa (green card) to become available. (See the Mayer Brown Legal Update dated January 4, 2018.) According to an article published by McLatchy DC Bureau, the Trump administration has reportedly backed off on plans to do away with the three-year extensions of stay because of “intense pressure from the business and technology communities.” A letter sent to the White House last week by Congressional Caucus on India members Kevin Yoder (R-Kansas) and Tulsi Gabbard (D-HI) and obtained by McLatchy urged the president to reconsider, saying, “We strongly believe this action would be harmful to the American economy, credibility, and relations with India and the Indian-American community.” The US Chamber of Commerce also weighed in against the reported change in policy.
While acknowledging that it is “considering a number of policy and regulatory changes to carry out the president’s “Buy American, Hire American” executive order, USCIS advised McLatchy that it was never considering changing its interpretation of section 104(c) of the American Competitiveness in the Twenty First Century Act, which provides for extensions of stay beyond the statutory six-year H-1B limit for those foreign nationals affected by the per-country limitation on allocation of immigrant visa numbers. A separate provision allowing for one-year extensions of H-1B status to account for agency processing delays would not have been affected by the change.
In anticipation of the potential repeal of the North American Free Trade Agreement (NAFTA), businesses and individuals are seeking alternative options to travel to and from Canada. The Comprehensive Economic and Trade Agreement (CETA) offers alternative options to travelers from EU-member states, including business visitors, intra-corporate transferees, investors, and certain professionals.
Under CETA, EU citizen business visitors are permitted to travel to Canada on a short-term basis and engage in work activities without obtaining a work permit. This includes short-term business visitors conducting technical research, leading a tour group, or providing interpretation services. In addition, EU citizens who are managers and specialists traveling to Canada for investment purposes can set up an enterprise in Canada without having to obtain a work permit, facilitating ease of travel.
In addition, CETA provides intra-corporate transferees with the ability to obtain work permits to facilitate the transfer of senior managers and specialized knowledge professionals from one entity to a Canadian-based entity. It also allows university graduates to temporarily transfer to Canada for career development purposes.
CETA also offers benefits to professionals falling within two distinct categories: 1) contractual service suppliers (individuals servicing a Canadian customer pursuant to a contract with their EU employer) and 2) independent professionals (self-employed EU citizens directly contracted by a Canadian customer). These professionals may not be direct employees of a Canadian entity; they may only provide a service pursuant to a service contract.
Although CETA does not provide options for foreign nationals who are normally included under NAFTA, it does provide immigration benefits to Canadians and EU citizens.
Earlier this year, the Chinese government announced the creation of a foreign talent visa system, a pilot system designed to attract foreign talent to China. On January 9, 2018, the government published additional information on the R visa, a long-term, multiple entry visa allowing professionals working in management, technology, scientific research, teaching, or consulting capacities to obtain a 5–10 year visa authorizing periods of stay up to 180 days. R visas are intended for high-level talented foreign nationals who possess specialized talents considered urgently needed by the Chinese economy.
Dependent family members will also be eligible for R visas with the same validity as the principal visa holder’s.
R visa applications are filed electronically, and currently there are no visa fees to apply for an R visa. Applications are processed within five business days, or two business days if expedited processing is requested.
R visa holders may use their visas to travel to China as business visitors, or they may obtain a work permit should they be required to engage in work-related activities while in China. Work permit applications are filed electronically and processed within three business days.
The Indian government recently announced that any foreign national who intends to reside in India for more than 182 days will be required to obtain an Aadhaar Card (India’s national identification card) by March 31, 2018. If foreign nationals fail to obtain a card by this date, he or she will be prohibited from using Indian banks, filing income tax returns, and potentially applying for visa and residence permit extensions.
Previously, in April 2017, the government advised that foreign nationals were required to obtain Aadhaar Cards and then reneged this requirement in the following month. The recent announcement makes clear that foreign nationals are no longer exempt from Aadhaar Card requirements.
The European Commission recently introduced a regulation to establish a new Entry/Exit System (EES) to track travel information of non-EU travelers entering and departing external borders of the European Union as short-term visitors. The EES will maintain data for both visa and visa-exempt visitors staying in the European Union for a period of 90–180 days. The EES will maintain an electronic record of each foreign national’s identity data, dates and place of entry to and exit from EU-member states, and any refusals.
The data maintained by the EES will improve the quality of border checks by automatically calculating periods of stay to systematically identify individuals who may have overstayed. In addition, data will be made available to law enforcement on a limited basis to improve internal security and aid in the fight against terrorism.
The timeframe to implement the EES will be decided on a future date, once the technology has been developed.