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
For the second year in a row, US Citizenship and Immigration Services (USCIS) announced that it will temporarily suspend premium processing for the upcoming fiscal year’s H-1B petitions, for which filings may be accepted as of April 2, 2018.
USCIS’s premium processing service guarantees 15-calendar-day processing to those petitioners or applicants who choose to use this service, or USCIS will refund the premium processing service fee. If the fee is refunded, the relating case will continue to receive expedited processing.
In contrast to 2017, when USCIS also suspended H-1B extensions and amendments, the March 20, 2018 USCIS announcement indicates that the current suspension will apply only to FY 2019 H-1B petitions. But as FY 2019 filings will only increase processing backlogs, the likelihood of a broader suspension of premium processing is material. USCIS specifically noted in its announcement that its objective in suspending premium processing for FY 2019 H-1B petitions is to enable officers to address backlogs without a “surge” of premium processing requests.
USCIS’s current announcement indicates the suspension for new petitions will last until September 10, 2018.
The government of Canada recently announced that anyone 18 years old or older applying for permanent resident status or citizenship in Canada is now required to obtain and submit a police certificate as part of the application process. Immigration, Refugees and Citizenship Canada has advised that applicants must provide police clearance certificates for any country in which an applicant has resided for six or more consecutive months since the age of 18.
In addition, police certificates may be required for individuals traveling to Canada on a temporary basis as a caregiver, tourist, student, or temporary worker. Foreign nationals are advised to check the application instructions for the program they are applying for to confirm if a police certificate is indeed required.
Starting on July 1, 2018, the Australian government will commence a new 12-month trial visa scheme designed to attract highly skilled workers to Australia. Visas will be available to established companies and start-up enterprises. To qualify, established companies must either have annual revenue of at least AU$4 million for the past two years or be publically listed. The beneficiary must have at least three years of relevant work experience and earn a minimum annual salary of at least AU$180,000. Eligible companies may utilize 20 slots per year.
STEM-focused start-ups will also be eligible to sponsor experienced and qualified foreign nationals earning at least the market salary rate and no less then AU$53,900. Qualifying foreign nationals must have at least three years of relevant work experience. In order for the start-up to be eligible, it must demonstrate a recruitment policy that give first preference to Australian workers, must complete a labor market test for the position, must pay market salary rates to all employees, must be a good corporate citizen with no violations of workplace or immigration law, and must be endorsed by a start-up authority. Eligible companies may utilize up to five slots per year.
For both streams, qualified foreign nationals will receive a four-year Temporary Skill Shortage visa. In addition, age cap concessions will be allowed. Visa holders will also be eligible to apply for permanent resident status after three years.
Additional eligibility criteria may be added following consultation with industry and other stakeholders.
With the surge of foreign workers in China, the Chinese government recently confirmed plans to establish one central immigration agency in order to improve immigration administration and services. The agency will be overseen by the Ministry of Public Security.
The agency will formulate and oversee immigration policies and procedures, operate border control, administer compliance, and manage the treatment of refugees and nationality. The agency will also enforce immigration laws, pursue foreign nationals who enter the country illegally or work or stay without authorization, and oversee the repatriation of illegal immigrants.
Finally, the agency will provide services to Chinese nationals exiting from and returning to China.
As a related matter, the Ministry of Science and Technology will oversee the employment of foreigners, transferring the responsibility out of the hands of the State Administration of Foreign Experts Affairs.
The Ministry of Home Affairs recently made several amendments to visa policy in India. The changes include:
- New subcategories for business visas:
- The electronic business visa (e-BV) under the electronic visa (e-visa) scheme now includes visitation for business purposes.
- The business visa has several new subcategories, including: crew of non-scheduled airlines who operate chartered and special flights, foreign academics/experts covered under the Global Initiative of Academic Networks (GIAN), foreign nationals who are partners or directors of a company, individuals engaged in commercial sports events on contract and receiving remuneration (including coaches), and miscellaneous categories who are eligible for a business visa but are not covered under any other sub-category.
- New subcategory for student visas: The student visa now includes a subcategory for students of theological studies and missionary students.
- Modifications to the visa cancellation policy: If a foreign national who is already in possession of a long-term/consular-issued Indian visa seeks to obtain a short-term visa (such as a conference visa, transit visa, or e-visa), the pre-existing long-term visa will not be cancelled. Instead, the long-term visa will be placed on hold for the period of the short-term visa.
While foreign nationals must strictly comply with the purpose of their visit declared at the time the application was filed, it is now also permissible for them to engage simultaneously in activities permitted under a tourist visa.
If an applicant is unsure of the appropriate visa category at the time of application, the applicant is advised to apply under the broad business visitor visa category. The visa officer will then determine the most appropriate sub-category based on the stated purpose of the visit.
The Public Manpower Authority recently imposed a stricter eligibility criterion for foreign national engineers seeking employment in Kuwait. To qualify, applicants must now obtain a no-objection certificate from the Kuwait Society of Engineers. In order to obtain the certificate, the applicant must provide evidence showing that a) he or she has graduated from an accredited university, b) the university and its engineering program are on the society’s accreditation list, and c) the applicant has passed an exam given by the society.
This new eligibility criterion applies to any foreign worker seeking an initial or renewed work permit. The stricter requirement is consistent with efforts in the region to promote a local workforce.
United Arab Emirates
To eliminate the time and hassle of applying for a visa, the United Arab Emirates (UAE) and the Ukraine recently entered an agreement providing visa-free travel to their respective citizens. The agreement covers UAE citizens traveling to the Ukraine and Ukrainian nationals traveling to the UAE for short periods of stay as business travelers or tourists. These nationals will no longer be required to apply for and obtain a visa prior to traveling. For short-term stays, visas will be issued upon arrival.
Effective March 26, 2018, the Ministry of Business, Enterprise and Innovation implemented a series of amendments to its regulations on employment permits (Employment Permits (Amendment) Regulations 2018). Among the changes, an employment contract must now be submitted with all new and work permit renewal applications: This is “a copy of the signed contract of employment between the person who makes the offer of employment, or, as the case may be, the contractor or foreign employer, and the foreign national in respect of whom the application is made.” Previously, employment contracts were only required in limited circumstances. Now, a fully executed employment contract must be submitted with all employment permit applications.
Also updated were Schedule 3, “Employments in respect of which there is a shortage in respect of qualifications, experience or skills which are required for the proper function of the economy,” and Schedule 4, “Employments in respect of which an employment permit shall not be granted.” Schedule 4 does not, however, apply to Intra Company Employment Permits.
As the United Kingdom prepares for its departure from the European Union, the Migration Advisory Committee (MAC), recently published an interim update on its findings regarding European Economic Area (EEA) workers in the UK labor market. The MAC is a committee commissioned by the UK government to objectively study the impact on the UK labor market of the UK’s exit from the European Union and how to create a sustainable immigration system.
While the MAC’s overall recommendations are expected to be published in September 2018, the interim update provides a summary of the 417 responses to its Call for Evidence. Acknowledging that the responses received are not representative of all businesses that employ EEA workers, the report sheds light on cross-cutting themes from employers, including:
- When an EEA applicant gets a job, it is because the employer thinks that candidate is the best, and sometimes only, qualified applicant.
- Employers report a shortage of skills across the gamut—for low-, medium-, and high-skilled jobs.
- Many employers have the impression that EEA migrants are more motivated, have a strong work ethic, and are more flexible than UK-born workers. This includes the EEA workers being more willing to work longer hours, including overtime, and during less-appealing hours.
- Currently, the ratio of vacancies to unemployment is high, which has left employers finding it difficult to recruit workers. Low unemployment has driven employers to recruit beyond the local labor market.
- In general, employers are concerned about their ability to recruit and hire EEA migrants and are fearful that their ability to hire highly qualified workers will be restricted. This was particularly true for employers who hire low-skilled workers. For these employers, their business models were developed with the anticipation of having available EEA migrant labor.
Despite these findings, the report concludes by stating what is best for an individual employer is not necessarily best for the welfare of the resident population, which is the criterion the MAC uses when evaluating migration policy. These factors will be taken into consideration in the MAC’s final report due in September.