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 Goes Live to Reveal Implementation Plans of New DHS Deportation Policy
On September 27, the US Citizenship and Immigration Services (“USCIS”) Office of Public Engagement hosted a live teleconference to inform the public how the agency will implement its new policy, or policy memorandum (“PM”), issued on June 28, 2018, “Updated Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Deportable Aliens.” The policy aligns USCIS operations with Executive Order 13768: Enhancing Public Safety in the Interior of the United States.
The new NTA policy will be implemented incrementally.
Key takeaways of the teleconference include:
- USCIS will apply the policy in cases of fraud or willful misrepresentation, the abuse of the receipt of public benefits, a criminal offense, and unlawful presence, among other categories.
- “At this time,” USCIS will not apply the policy in cases of employment-based petitions, such as I-140 and I-129 petitions. Thus, employment-based petitions are excluded from the policy, however this does not preclude the agency from later expanding the new NTA policy to include employment-based petitions.
- USCIS will not apply the policy in instances of Deferred Action Childhood Arrivals (“DACA”) recipients or requestors, Temporary Protected Status, or humanitarian cases. USCIS will implement the new policy beginning October 1, 2018, in cases where the agency denies status-impacting applications such as Form I-485 (Adjustment of Status) or Form I-539 (Extend/Change Non-Immigrant Status).
- USCIS may still refer immigration cases to Immigration Customs Enforcement (“ICE”) without issuing an NTA.
- USCIS will not issue an NTA immediately upon the denial of a benefit request but will wait for the expiration of an appeal or motion period before issuing an NTA. This interim period is usually 33 days from the date of the decision but may be less depending upon the case type and could be as brief as 18 days.
- USCIS will issue NTAs either by mail or in person by service of process, implying the importance of applicants maintaining accurate addresses on file with USCIS.
After more than a year of negotiations, the United States, Canada, and Mexico agreed to a US$1.2 trillion trade agreement on September 30, 2018—the United States-Mexico-Canada Agreement or “USMCA.” The new agreement, which replaces the North American Free Trade Agreement (“NAFTA”), will be signed by President Trump in November before being delivered to Congress. Key details from the USMCA deal include greater market access for US dairy farmers to export to Canada and increased auto manufacturing in North America at higher wages, which will shift labor from Mexico. Canada and Mexico will also obtain greater trade protections by facing tariffs only for exports exceeding 2.6 million vehicles to the United States. The USMCA additionally contains stringent protections for patents and trademarks, improves labor rights, and will not amend NAFTA’s Chapter 19 dispute resolution provision.
South Africa Implements Immigration Changes to Boost Business and Tourism
In an effort to bolster tourism and business opportunities in South Africa, the government recently announced a series of amendments to its tourist and business visa schemes. The key revisions include:
- Expansion of List of Visa Waiver Countries: The South African government is negotiating with officials from Algeria, Bahrain, Belarus, Cuba, Egypt, Georgia, Ghana, Iran, Kuwait, Lebanon, Morocco, Oman, Qatar, Sao Tome & Principe, the Saharawi-Arab Democratic Republic, Saudi Arabia, Palestine, Tunisia, and the United Arab Emirates to waive visa requirements for ordinary passport holders.
- Introduction of Biometric Movement Control Systems, E-Visa, and E-Gates Pilot Programs: These programs are designed to automate and otherwise make more efficient the process for foreign nationals seeking entry into South Africa. They will be piloted at a number of airports in the coming months.
- Availability of Long-Term Multiple Entry Visas: To facilitate the entry of tourists, business visitors, and academics, African travelers to South Africa may be eligible for a multiple entry visa valid for 10 years for business visits or academics. Three-year multiple entry visas are also available to trusted travelers.
- Simplified Processing and 10-Year Multiple Entry Visas for Nationals of China and India: Visitors from China and India can now use a courier to submit visa applications rather than having to appear in person at a South African consulate. In addition, biometrics can now be completed upon arrival rather than prior to traveling. Once the visa application is approved, a 10-year multiple entry visa will be issued.
Additional changes are expected in the coming months, including the potential expansion of the critical skills list. With new positions being added, more foreign workers will be eligible to permanently reside in South Africa.
Hong Kong Immigration Policy Now Offers Same-Sex Dependent Visas
On September 18, 2018, the Hong Kong government announced a revision to the immigration policy for entry of foreign national dependents to recognize overseas same-sex partnerships when considering eligibility for dependent visas/entry permits. The revision took effect on September 19, 2018.
A person who has entered into one of the following relationships outside of Hong Kong with an eligible sponsor in accordance with local laws and with such status being legally and officially recognized by the local authorities of the place of celebration is now eligible to apply for a dependent visa/entry permit to enter into Hong Kong:
- Same-sex civil partnership;
- Same-sex civil union;
- Same-sex marriage;
- Opposite-sex civil partnership; or
- Opposite-sex civil union
The original eligibility criteria of the policy will also continue to apply unchanged and cover cases such as those in which:
(i) There is reasonable proof of a genuine relationship between the applicant and the sponsor;
(ii) There is no known record to the detriment of the applicant; and
(iii) The sponsor is able to support the dependent's cost of living at a standard well above the subsistence level and provide him/her with suitable accommodation in Hong Kong.
The change in policy follows the highly publicized Court of Final Appeal decision in QT v. Director of Immigration  HKCFA 28, which overturned the Immigration Department's former policy of restricting dependent visas to a spouse in a heterosexual couple. The change in policy is a major shift in the Immigration Department's policy and is good news for employers, helping their efforts to attract talent to and retain talent in Hong Kong.
The Indian government recently introduced a series of changes.
Effective September 24, 2018, in-country registrations, visa extensions, and other visa services normally completed at the local Foreigners Regional Registration Offices (“FRRO”) in Gurugram, Faridabad, Ghaziabad, and Gautam Buddha Nagar must now be completed online, thereby eliminating the need for foreign nationals to visit these FRROs in person. These FRROs are just a few of the numerous FRROs that started offering e-services earlier this year.
In addition, the government recently announced that a foreign national seeking to change employers within subsidiaries/group companies within India will now no longer need prior Ministry of Home Affairs approval. Instead, change of employer applications are to be filed locally with the FRRO or the FRO (Foreigners Registration Office) in the appropriate jurisdiction.
Electronic visas, including e-tourist, e-business, or e-medical visas, can now be used up to three times in a single calendar year (January to December). Previously, e-visas could only be used twice in a calendar year. In addition, e-visa applications can be filed a minimum of four days and a maximum of 120 days prior to arrival in India. The validity of an e-visa is 60 days from the date of arrival in India.
Spain Targets Large Companies in Increased Enforcement Efforts
Spanish authorities are giving greater scrutiny to EU Intracompany Transferee (“ICT”) Permit and national ICT Permit applications in an effort to ensure that foreign workers receive employment conditions and salaries comparable to those of local workers. Specifically, the government’s Large Companies Unit is more closely reviewing EU and national ICT Permit applications to verify that each applicant’s salary aligns with local standards. While the Spanish government previously reviewed the total compensation package as a whole, it is now individually reviewing the foreign worker’s home base salary, salary while on assignment, allowances (both in money and in kind), and benefits stated in the home employment contract and assignment letter. In order to clearly demonstrate that a foreign worker receives salary packages and work conditions comparable to those of local workers, employers should carefully document each element of the employee’s salary package in their ICT Permit applications.