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.
USCIS Changes Policies Related to Requests for Evidence and Notices of Intent to Deny
On July 13, 2018, US Citizenship and Immigration Services (USCIS) issued new guidance, set to take place on September 11, 2018, that provides adjudicators with broader authority to issue case denials. Under the guidance, USCIS officers may exercise greater discretion to deny applications, petitions or requests when there is insufficient evidence to establish benefit eligibility. Previously, USCIS provided applicants and petitioners an opportunity to supplement insufficient filings by responding to Requests for Evidence (RFE) or Notices of Intent to Deny (NOID). Applicants and petitioners must now take extra caution to ensure complete initial filings are made to the government.
On June 28, 2018, USCIS issued new policy guidance that expands the circumstances under which an adjudicator will generate a Notice to Appear (NTA), a charging document that commences removal proceedings and the deportation process and instructs its recipient to appear before an immigration judge. The guidance broadens USCIS authority to initiate NTAs in cases of fraud or criminal activity or when an immigrant applicant is denied an immigration benefit and accrues unlawful presence. The guidance aligns the agency with current immigration enforcement priorities under Executive Order 13768, “Enhancing Public Safety in the Interior of the United States.”
Traditionally, under earlier guidance, USCIS referred deportation matters to Immigration Customs Enforcement (ICE). Now, USCIS will issue NTAs on its own. The new guidance also states that “USCIS will issue an NTA where, upon issuance of an unfavorable decision on an application, petition, or benefit request, the alien is not lawfully present in the United States.” Thus, applicants for US citizenship, green card, or extension or change of status petitions who are ultimately denied could face deportation, whether they are business visitors, H-1B visa holders or international students.
The new USCIS guidance exempts most Deferred Action for Childhood Arrivals recipients.
On July 24, 2018, ICE issued a press release announcing that Homeland Security Investigations (HSI) had targeted 5,200 businesses for I-9 audits from January 1 to July 20, 2018. The aim of such audits is to “protect jobs for U.S. citizens and others who are lawfully employed, eliminate unfair competitive advantages for companies that hire an illegal workforce, and strengthen public safety and national security” by creating a “culture of compliance.” Employers found to be in violation of the law are subject to hefty fines and criminal prosecution. Employees working without authorization may be detained and removed from the country.
The press release notes a sharp increase in enforcement activity by the agency. In fiscal year 2018 thus far, HSI has conducted more than three times as many worksite investigations as it did in the prior year. From October 1, 2017 to July 20, 2018, HSI conducted 6,093 worksite investigations and made 675 criminal and 984 administrative arrests. In the prior fiscal year, from October 2016 to September 2017, HSI conducted 1,716 worksite investigations and made 139 criminal and 172 administrative arrests.
Canadian Government Approves Alternative Formats for Police Clearance Certificates for US Citizens and Residents
Effective immediately, Immigration, Refugees and Citizenship Canada and the Canada Border Services Agency will begin accepting electronically submitted Identity History Summary (IHS) from the US Federal Bureau of Investigation (FBI) for the purposes of securing Canadian work permits and permanent residence. Previously, the only option was to secure an FBI criminal history record through the mail or, in some cases (for US citizens and permanent residents), through an FBI-approved Channeler. In an effort to improve the application process, applicants now have the option to request an electronic IHS from the FBI to be used as a police certificate for any immigration benefit.
European Parliament Votes to Implement the European Travel Information and Authorization System
On July 5, 2018, the European Parliament gave its final approval to implement the European Travel Information and Authorization System (ETIAS). It is estimated that this new electronic pre-screening program for visitors will become operational in 2021. The aim of ETIAS is to strengthen security in the region and to streamline the process of issuing travel authorizations to enter the Schengen Area. The system will pre-screen travelers from visa-waiver countries in order to identify security and migration risks. When arriving at the border of any European country member of the Schengen Area, visa-waiver travelers will need to be in possession of both a valid ETIAS as well as a valid travel document.
The ETIAS system will cross-check all the information provided by the traveler against the EU information systems. Applicants will have to complete an ETIAS registration before travelling to Europe, and the information provided will be pre-screened to determine whether their Schengen entry would pose any security, health or migration risk. Similar pre-vetting systems have been implemented in the United States, Canada and Australia. The ETIAS application will require applicants to enter their full name, address, date of birth and passport details. There will also be some security and health-related questions. The application process will take a matter of minutes, and, if approved, the ETIAS travel authorization will be sent to the applicant electronically. An approved ETIAS will have a validity of three years, compared to the two years offered by the US ESTA (Electronic System for Travel Authorization) system. An application fee of €7 will apply to all applicants over the age of 18.
Following Brexit, UK citizens will become “third country nationals” with no automatic right of admission. Negotiations between the European Union and the United Kingdom will determine whether UK citizens will be required to complete ETIAS travel authorization prior to travel to the Schengen Area.
On July 12, 2018, the Court of Justice of the European Union issued a binding ruling that all EU countries must recognize unmarried partnerships when evaluating applications for residence rights for dependent partners of EU nationals who have resided in other EU countries. According to the ruling, the partner with whom the EU citizen has a “durable relationship, duly attested” is eligible to apply for residence authorization as a dependent of that EU citizen in order to allow every citizen of the EU the right to move and reside freely within the EU. Individuals within this category seeking authorization to reside within the European Union with their EU partner will be subject to “extensive examination of the personal circumstances” to prove that a durable relationship exists.
The UK Government accepted applications that were submitted by or before July 5, 2018 for Restricted Certificates of Sponsorship (RCOS) for PhD-level positions, for positions included on the recognized shortage occupation list, or for positions prioritized for other reasons. In the instance where applicants were to be paid under GBP 41,000, those applications were rejected. The salary cap of GBP 41,000 is much lower than the GBP 50,000 - 60,000 range over the past several months. Applicants whose RCOS applications were refused may reapply for a RCOS next month, provided the advertising undertaken by their prospective employer remains valid.
Russian Federal Migration Service Implements New Rules for Foreign Workers
Effective immediately, foreign nationals can no longer use the address of their employer in Russia to complete the registration process with the Federal Migration Service (FMS). The only exception to this rule is if the foreign national actually resides at the registered business address of their employer. Under the new rule, only a proprietor of the premise where a foreign national actually resides will be entitled to register the foreign national at that address. Current rules do not permit foreign nationals to register on their own. Rather, an employer, university or landlord must complete the registration on his or her behalf. Penalties for failing to register include fines and potential deportation.
New Exit Procedures Implemented for Certain Foreign Nationals Working in Vietnam
Offices of the Vietnam Immigration Department in Hanoi and several other provinces have recently announced that foreign nationals whose work assignments in Vietnam are terminating must now surrender their Temporary Residence Card (TRC), along with TRCs for any dependents, prior to leaving the country. Previously, foreign nationals were required to use their TRC when departing the country and mail the card back to Vietnamese authorities for cancellation. While the new procedure eliminates the requirement of mailing the card from an overseas location, a foreign national must now obtain an exit visa prior to their final departure. It is recommended that foreign nationals apply for their exit visas two to four weeks prior to their departure. Applications must also be filed for dependent family members. In addition, original passports must be provided to the Immigration Department for stamping and will be held for the duration of the application process, estimated to be seven days. Ho Chi Minh City and many other provinces have yet to implement these new procedures and will continue to allow foreign nationals to mail back their TRCs once they have departed Vietnam.