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.
Supreme Court Upholds Trump's Third Travel Ban
In a 5-4 decision issued on Tuesday, June 26, 2018, the US Supreme Court upheld the president's broad statutory authority to suspend the issuance of visas to nationals of certain countries in the interests of national security, as ordered in the September 24, 2017 presidential Proclamation 9645. The majority opinion, authored by Chief Justice John Roberts, states, "By its plain language, [the Immigration and Nationality Act] grants the president broad discretion to suspend the entry of aliens into the United States …The president lawfully exercised that discretion based on his findings—following a worldwide, multiagency review—that entry of the covered aliens would be detrimental to the national interest." (Please see Mayer Brown's analysis.)
On June 20, 2018 the president signed an executive order, "Affording Congress an Opportunity to Address Family Separation." The executive order states that officials will continue to prosecute everyone who crosses the border illegally but will find or build facilities to hold families together while the parents' cases are considered by the courts.
The president indicated the border will be "just as tough," with borders "very strong," but families will no longer be separated. In a recent news conference, President Trump indicated, "We are keeping a very powerful border and it continues to be a zero tolerance." The executive order similarly reiterates the administration's hard-line zero tolerance policy of detaining any adults entering the country illegally, a policy that, according to statistics released on June 19, has led to the separation of more than 2,300 children from their parents.
To stem the separations the detentions have caused to date, the executive order provides a temporary detention policy, authorizing the secretary of Homeland Security, "to the extent permitted by law and subject to the availability of appropriations," to maintain custody of alien families—including minor children—during the pendency of any criminal or immigration proceedings. The executive order also requires the attorney general to prioritize the adjudication of cases involving detained families.
There are no announced procedures in place to reunite the 2,300 children who have been separated from their parents prior to issuance of the president's executive order.
Modifications Made to Global Talent Occupations List for Category B of the Global Talent Stream
As of June 12, 2018, the following occupations have been added to the Global Talent Occupations List for Category B: engineering managers, architecture managers, science managers, mathematicians, and statisticians. These occupations have been determined to be in-demand and for which there is insufficient domestic labor supply. Because these occupations are in-demand, employers are no longer required to request a Labor Market Impact Assessment under the Global Talent Stream for these positions.
Electrical technicians, electronic technicians, and technologists have been removed from the shortage list.
Following a meeting between Canada's Minister of Immigration, Refugees and Citizenship, Ahmed Hussen, and the United Arab Emirates ("UAE") Minister of Foreign Affairs and International Cooperation, His Highness Sheikh Abdullah bin Zayed Al Nahyan, the Canadian government announced that it is exempting UAE citizens from certain visa requirements. Effective June 5, 2018, Emirati citizens will no longer require a visa to travel to Canada for short-term visits (up to six months) for business or tourism. They will, however, be required to obtain an Electronic Travel Authorization ("eTA") to travel to Canada. Applications for an eTA can be made online.
Timing Announced for Implementation of Skilling Australians Fund and Amendments to Labour Market Testing Requirements
The Australian Department of Home Affairs recently announced that the Skilling Australians Fund ("SAF") framework will be implemented during the first quarter of 2018-2019. Once implemented, the SAF levy will be applicable to companies filing Temporary Skill Shortage ("TSS"), subclass 186 and subclass 187 nomination applications.
For TSS (subclass 482) nomination applications, the levy is as follows:
- AUD 1,200 per year* or part year for small businesses (those with annual turnover of less than AUD 10 million)
- AUD 1,800 per year* or part year for other businesses
For subclass 186 and 187 nomination applications, the levy, which is likely a one-off levy, is AUD 5,000.
*For example, if a small business nominates an employee for a two-year visa, then the levy will be AUD 2,400 (and payable at the time the TSS nomination application is lodged).
The Department of Home Affairs also announced that amendments to the Labor Market Testing ("LMT") requirement would be implemented at the same time that the SAF levy is imposed. In instances where an employee is not an intracompany transfer, the LMT must be conducted:
- For a period of four weeks;
- No more than four months before the nomination is lodged; and
- Such that advertisements set out any skills or experience requirements that are appropriate to the position.
Notwithstanding the LMT changes above, the list of acceptable mediums in which nominated positions may be advertised has now been expanded to include LinkedIn's online recruitment platform and industry-specific recruitment websites that are relevant to the nominated occupation.
United Kingdom Publishes Statement of Intent for EU Settlement Scheme
On June 21, 2018, the UK Home Office published the EU Settlement Scheme: Statement of Intent, which sets out details about eligibility criteria for EU citizens and their families to apply for settled status in the UK following the completion of the UK's withdrawal from the European Union on March 29, 2019 until the end of the "implementation period" on December 31, 2020.
The EU Settlement Scheme provides that:
- EU citizens and their family members who by December 31, 2020 have been continuously resident in the UK for five years will be eligible for settled status, enabling them to remain in the UK indefinitely.
- EU citizens and their family members who arrive in the by UK December 31, 2020, but will not yet have been continuously resident there for five years, will be eligible for "pre-settled status," enabling them to stay until they have reached the five-year threshold. Thereafter, they may apply for settled status.
- EU citizens and their family members with settled status or pre-settled status will have the same access as they currently do to healthcare, pensions, and other benefits in the UK.
- Immediate family members (a spouse, civil partner, durable partner, dependent child or grandchild, and dependent parent or grandparent) living overseas will still be able to join an EU citizen resident in the UK after the end of the implementation period if the relationship existed on December 31, 2020 and continues to exist when the person seeks to come to the UK. Future children are also protected.
There will be no change to the current rights of EU citizens and their family members under EU law until December 31, 2020.
There will be three key criteria to determine if an individual is eligible for settled status under the EU Settlement Scheme: 1) proof of identity, 2) proof that they have been resident in the UK, and 3) verification that they are not a serious or persistent criminal and do not pose a security threat.
Applicants will be able to apply for settled status online or, in limited circumstances, by paper application. The application fee will be £65 for an applicant 16 years or older and £32.50 for applicants under 16.
On June 15, 2018, the UK government published a number of changes in immigration rules, which are set to take place on July 6, 2018. Key changes include:
- Permanent Residents: Regarding individuals who have acquired indefinite leave to enter or remain in the UK and who are returning to the UK following an extended period outside the country: Those who were outside the UK:
- for less than two years will retain their indefinite leave status
- for more than two years must now apply for entry clearance and demonstrate that they have strong ties to the UK in order to be issued indefinite leave to enter.
- Tier 1 (Investor): Applicants are required to maintain their investments. While applicants may withdraw interest and dividend payments generated by their qualifying investments from their portfolios, they may not do so if these were generated before the applicant purchased the portfolio. In addition, as evidence of their investments, applicants must currently submit portfolio reports signed off by a financial institution regulated by the Financial Conduct Authority. Institutions must confirm that the funds have only been invested in qualifying investments and that no loan has been secured against those funds.
- Tier 2 (General): In response to the shortage of qualified medical professionals, doctors and nurses are now exempt from the Tier 2 (General) limit. This will free up places within the limit for other key roles that contribute to the UK economy.
- Tier 2: Migrants applying for settlement who have been absent from work on maternity, paternity, shared parental, or adoption leave are required to provide evidence of the underlying adoption or birth that necessitated their leave.
- Electronic Visa Waiver ("EVW") Scheme: Nationals of Oman, Qatar, United Arab Emirates, and Kuwait are eligible for an EVW, enabling visa-free travel to the UK as a visitor for up to six months.