16 July 2015
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.
Canada: New Penalties for Employer Non-Compliance
- Employment and Social Development Canada has announced new penalties for employers that violate the Temporary Foreign Worker Program and International Mobility Program compliance rules. The new penalties are scheduled to take effect December 1, 2015.
- Employers found to be non-compliant with program rules may face a financial penalty ranging from US$500 to $100,000 per violation, up to $1 million in any one-year period. Furthermore, the current two-year ban on use of program benefits will be replaced by bans of one, two, five and 10 years depending on the severity of the violation. A permanent ban may be imposed for the most serious violations.
Potential Amendments For H-1B Workers
- On April 9, 2015, the Administrative Appeal Office of US Citizenship and Immigration Services (USCIS) issued a precedent decision in the Matter of Simeio Solutions, LLC, ruling that employers must file an amended H-1B petition whenever there is a change in a foreign worker’s jobsite location. Under prior guidance, employers were only required to submit a new Labor Condition Application (LCA) with the Department of Labor.
- In May 2015, USCIS issued guidance clarifying that an amended H‑1B petition need only be filed if a foreign worker’s jobsite location is moved outside the Metropolitan Statistical Area (MSA), or area of intended employment listed on the original LCA.
- Under this guidance, which was initially characterized as being effective immediately, employers had been given until August 19, 2015, to file amended H-1B petitions for all foreign workers who moved to new jobsite locations outside the original MSA at the time of the Simeio ruling. Once the amended H-1B petition is filed, the foreign worker may immediately begin working at the new jobsite without waiting for a decision to be rendered by USCIS.
- However, USCIS later changed its guidance to “proposed” and subject to change based on public comment. To date, the guidance remains proposed only.
Premium Processing Resumed for H-1B Extensions
- Effective July 13, 2015, USCIS resumed premium processing service for H-1B extensions, including change of employer petitions requesting an extension of stay. This takes place sooner than the original scheduled date of July 27, 2015, to resume premium processing.
- USCIS had suspended premium processing for H-1B extensions beginning May 26, 2015, when the new rule went into effect allowing certain H-4 dependent spouses to apply for employment authorization. Given the volume of employment authorization applications expected to be filed, the suspension of premium processing allowed USCIS to reallocate internal resources to process those applications.
Malaysia: New Employment Pass Category
- On July 15, 2015, the Malaysian Ministry of Home Affairs introduced a new Category III Employment Pass. Category III covers those individuals earning between RM 2,500 and RM 4,999 (~ USD 657 to USD 1,314) with a contract period of less than 12 months.
- The salary range is lower than the mandated RM 5,000 for Categories I and II. Companies seeking Employment Passes in the new Category III will be required to submit a written exemption request (from the mandatory RM 5,000 salary) to the Ministry of Home Affairs. The Ministry will make a decision regarding the exemption within 14 days of receiving the request. Approval of the exemption will be valid for one year and will be reviewed on a yearly basis.
- Applicants may not bring dependents or hire foreign maids under this category. Passes may be renewed a maximum of two times and will be subject to review each time.
Singapore: New Requirements for Employment Pass Applications
- Effective October 1, 2015, the Ministry of Manpower will require job advertisements accompanying Employment Pass applications to include the salary range for the position. Advertisements that do not include a salary range will be rejected.
- In addition, the Ministry will also require companies submitting an Employment Pass application to present additional evidence allowing the Ministry to assess whether Singaporeans were properly considered for the position. Companies will need to disclose the number of applications submitted by Singaporeans for the position, whether Singaporeans were interviewed for the position, and the company’s current number of Singaporeans in professional, managerial, and executive positions. Companies that fail to comply with these evidentiary requirements may have their work pass privileges curtailed.
Vietnam: Visa Exemption Extended to Additional Countries
- Vietnam has expanded the list of countries whose citizens may visit Vietnam visa free. Effective July 1, 2015 through June 30, 2016, citizens of Germany, France, Italy, the United Kingdom and Spain may enter Vietnam for up to 15 days without a visa. They join citizens of Denmark, Finland, Sweden, Japan, South Korea and Russia who were granted visa-exempt status beginning January 1, 2015 through December 31, 2019.
- Travelers who are allowed to enter Vietnam without a visa based on these visa exemptions must spend a minimum of 30 days outside of Vietnam between each visa-exempt visit.
Italy: Restrictions on Croatian Workers Lifted
- Italy has lifted all working and hiring restrictions pertaining to Croatian nationals effective July 1, 2015. Croatian workers may now be hired by Italian employers without obtaining a work permit from the applicable Immigration Office; they are no longer subject to contractual limitations and may engage in the same work activities as other EU/EFTA citizens.
Restricted Certificate of Sponsorship Quota Reached for June 2015
- Applications for restricted certificates of sponsorship exceeded the number of certificates available for the month of June. Restricted certificates of sponsorship must be obtained for all foreign workers in the Tier 2 (General) category with an annual salary below £153,500 per year.
- Priority was given to applications for roles listed on the shortage occupation list, followed by roles requiring a PhD. Priority was then based on annual salary.
Biometric Residence Permit Requirement for All Foreign Workers
- Effective July 31, 2015, Biometric Residence Permits (BRPs) will be required for all foreign nationals applying to work for more than six months in the United Kingdom.
- Under the new requirements, the British Consulate will issue a 30-day visa during which time the foreign national must enter the United Kingdom. Failure to enter the United Kingdom within the 30-day visa validity period will trigger the need for a new visa application.
- Upon arrival in the United Kingdom, the foreign national will have 10 days to collect the BRP from the designated post office. Failure to collect the BRP within this period may result in a financial penalty.