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UK Queen’s speech: What might immigration look like after Brexit?

It may not have been accompanied by the usual pomp and circumstance, but the Queen’s speech on Wednesday, June 21 did provide some further clues as to what the government has planned for EU nationals post-Brexit. In the speech, the Queen confirmed that there are plans for an immigration bill that, if passed, will enable the government to end the free movement of EU nationals into the UK, but still allow the country to attract “the brightest and the best.” The bill would require EU nationals and their families to be “subject to relevant UK law,” she said.

This seems to suggest that we can expect to see a skills-based immigration system for EU workers following Brexit. Reading in between the lines, it also seems we can expect that EU nationals already working in the UK who choose to remain will be allowed to do so. However, those who do choose to remain will be subject exclusively to UK law, and will no longer enjoy the protections afforded by the European Court of Justice. Presumably this would work along the lines of Norway’s membership in the single market.

Currently EU nationals in the UK are advised to apply for permanent residency if they meet the qualifying criteria. The thinking being this may be sufficient to secure their stay in the UK after Brexit. Theresa May is in Brussels for Brexit talks today, where she is set to address EU leaders on her plans for the 3 million EU nationals currently residing in the UK, and the 1 million UK citizens currently residing in mainland Europe. We understand that full details of her plans will be published on Monday, ending the uncertainty that currently hangs over those who have exercised their right to freedom of movement, and over their employers.

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UK Queen’s speech: What might immigration look like after Brexit?

Adult dependent relatives—judicial review challenge

The Immigration Rules pertaining to visa applications ‎made by adult dependent relatives of UK citizens were changed in July 2012. According to the Rules, an “adult dependent relative” must be a close family member of the UK sponsor, i.e., a parent, grandparent. The Rules also require that:

  • The applicant must—because of age, illness or disability—require long-term personal care to perform everyday tasks.
  • The applicant must be unable—even with the practical and financial help of the UK relative—to get the required care in the country where he or she is living, either because it is not available and there is no person in that country who can reasonably provide it, or because it is not affordable.

There was concern at the time of the Rules change that the Home Office (the government department responsible for immigration, passports, counter-terrorism and crime policy), had tightened the Rules too much.

Home Office statistics have borne out the validity of that concern. Since the Home Office changed the Rules, the average number of successful applications each year decreased by at least 93 per cent!

BritCits, an advocacy group, challenged the current requirements. The organization, which campaigns for fair family immigration rules that don’t divide families or force British citizens into exile, brought a judicial review application in the High Court of Justice (BritCits vs. SSHD) challenging the legality of the Rules. It argued that the Rules defeated the purpose of the law under which they were made; that the Rules raised expectations without any real possibility of those expectations being met; and that the Rules interfered with family life.

The High Court issued a judgment dismissing the judicial review application. BritCits requested and was granted permission to appeal. This was dismissed by the Court of Appeal.

Applicants applying in this category will have to make applications with the knowledge that their chance of success is exceptionally low and that despite a recent challenge to the Immigration Rules, they will remain as promulgated. Applicants will continue to have to pull together as much evidence as they can to show that they meet the requirements. Although the Rules require scrutiny of the available care in the adult dependent relative’s home country, the Home Office will consider whether the care is “reasonable” for the applicant and “of the required level” for the applicant. This can include the psychological and emotional needs of elderly parents, for example. Taking such an approach could mean the difference between an application for an adult dependent relative being accepted or rejected.

If BritCits pursues its challenge to the Supreme Court we will of course keep you informed.

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Adult dependent relatives—judicial review challenge

EU family members’ rights

Family members ‎of EU nationals can join them in another member state if the EU national is exercising treaty rights, for example, studying or working.

The EU national may qualify for permanent residence after a qualifying period of time in the UK. Once an EU national is granted a right to permanent residence, he or she may then apply for British citizenship. One would assume that this also means that they can enjoy family life in the UK.

Until now this has not been so, but the position may be about to change. Once an EU national becomes a British citizen, he or she is no longer entitled to rely on EU law and the rights derived from it for family members.‎ However, the EU’s Advocate-General has given an opinion in Lounes (C-165/16) that non-EU family members should be able to remain in the UK with their dual EU and British family member. Ms. Ormazábal, a dual Spanish and British national, married Mr. Lounes, an Algerian national. The Advocate-General considered that the treatment of Ms. Ormazábal (the dual national) should be no less favorable than before her naturalization, or than would be granted to her if she was forced to move to another EU state to keep her family together.

While this is only the Advocate-General’s opinion, and is therefore only advisory and non-binding on the Court of Justice of the European Union, it is rare for the Advocate-General’s opinion to not be followed. The 15 judges at the CJEU will consider the case in the summer.

This could have a far-reaching ‎impact on EU nationals who wish to obtain dual citizenship to be sure of their right to remain in the UK once the UK leaves the EU. Previously EU nationals have held off naturalizing as British citizens for fear that their family members would not be able to remain in the UK. We will watch the progress of this case carefully and bring you an update as soon as there is more news.

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EU family members’ rights

UK General Election–immigration manifesto

What’s going to happen to UK immigration in a post-Brexit era? That’s the million-dollar question. While there has been huge speculation as to what our immigration system and net migration figures are likely to look like going forward, little clarity has been provided as yet.

Jeremy Corbyn has sent the message that he intends to toughen up on immigration. The Labour Party has acknowledged that free movement of workers across borders is likely to not be possible once the UK leaves the EU, but has stated that imposing new immigration controls will not be at the top of its list of priorities if it wins the election. It’s not really clear where that message leaves us when trying to predict what the new model is going to look like.

The Conservatives, for their part, have indicated that they will stick by pledges made in David Cameron’s 2010 manifesto to cut migration to “tens of thousands,” despite having missed the target after making the same promise in 2010 and 2015. Again, it’s not clear from their rhetoric how they hope to achieve this, although Prime Minister Theresa May has reiterated that when the UK leaves the EU, the nation will have the opportunity to make sure it has control of its borders.

Meanwhile, the UK Independence Party (UKIP) has gone one step further, as it is prone to do, pledging to cut net migration levels to zero within five years by asking skilled workers and students to get visas and banning migration into the UK for unskilled and low skilled workers. This time it’s not clear how UKIP intend to do the math to achieve a net migration level of zero.

And then there are the Liberal Democrats who are against stricter migration controls. Tim Farron, their leader, recently tweeted that “immigration is a blessing and not a curse.”

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UK General Election–immigration manifesto

Show Me the Money: What the Trump administration’s budget and spending priorities reveal to employers

May 25, 2017
1:00 PM – 2:00 PM EDT
Webinar

Our Employment and Labor team marked the passage of President Trump’s first 100 days with a webinar on May 25, 2017 that looked at whether the president’s budget proposal backed up his prior public statements about wanted changes to employment, benefits and immigration regulations, as well as the impact on employers of the spending bill passed by Congress to prevent a government shutdown. By “following the money,” you can better prepare for future compliance demands and enforcement risks. For your convenience, the program can be viewed in it’s entirety and to register to the webinar by visiting the event page.

We hope you are able to join the program.

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Show Me the Money: What the Trump administration’s budget and spending priorities reveal to employers

USCIS begins return of unselected H-1B petitions

The United States Citizenship and Immigration Services (USCIS) announced on May 3, 2017 that it completed data entry of all fiscal year 2018 H-1B cap-subject petitions selected in its computer-generated random selection process, and that it began returning all H-1B petitions that were not selected.

The agency did not provide a definite time frame for returning these petitions, but the unselected FY 2017 H-1B petitions were returned by the end of June 2016. The same timetable seems likely this year.

Petition approvals for selected cases have already started being sent. Because of the large volume, processing times vary greatly and petition approvals are likely to continue through the summer http://www.achaten-suisse.com/ and even into the early fall, as was the case in prior years.

For the full text of the USCIS announcement can be found at the USCIS website.

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USCIS begins return of unselected H-1B petitions

‘Hire American’ executive order

End of days—or much ado about nothing?

The visa rules that allow US employers to temporarily hire certain foreign professionals is either going to change dramatically…or not, and there will have been much ado about nothing.

President Trump signed the “Buy American and Hire American” Executive Order (EO) on April 18, 2017. This EO does not change any existing law or regulation. It merely calls on the relevant federal agencies to make changes. This means employers can anticipate more, not less, government regulation and new agency policies, limited by US immigration law made by Congress.

Here is the text of the immigration-related components of the EO:

Sec. 5. Ensuring the Integrity of the Immigration System in Order to “Hire American.” (a) In order to advance the policy outlined in section 2(b) of this order, the Secretary of State, the Attorney General, the Secretary of Labor, and the Secretary of Homeland Security shall, as soon as practicable, and consistent with applicable law, propose new rules and issue new guidance, to supersede or revise previous rules and guidance if appropriate, to protect the interests of United States workers in the administration of our immigration system, including through the prevention of fraud or abuse.

(b) In order to promote the proper functioning of the H-1B visa program, the Secretary of State, the Attorney General, the Secretary of Labor, and the Secretary of Homeland Security shall, as soon as practicable, suggest reforms to help ensure that H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries.

It is clear that the EO makes no new rule or change in law, unlike previous EOs like the travel bans. This EO merely instructs the relevant agencies to propose new rules and issue guidance, if appropriate, with the stated goal of protecting US workers and preventing fraud/abuse and suggesting H-1B reforms.

With so little information in the EO, what can employers expect. Limited insights can be gleamed from the backgrounder issued the night before this EO was issued, when the White House held a press briefing.

Enforcement

The EO merely instructs the agencies to issue proposals and guidance to prevent fraud or abuse. The backgrounder does not do much more than explain that the Administration seeks the strict enforcement of all laws governing entry into the US of foreign workers. The EO calls on the Departments of Labor, Justice, Homeland Security and State to take prompt action to crack down on fraud and abuse. The backgrounder states:

And then again, you add that on top of the across-the-board reform process for guest worker and visa programs in general to make sure that they’re strictly complying with all the rules, laws, and protections for American workers, again, which there are many, but there hasn’t been this kind of systematic review. And this is something that the President, if you look, actually promised that he would have the Department of Labor go and do this kind of systematic review and take these kinds of actions.

We will monitor agency actions carefully to see how this develops, but employers are well advised to review the immigration-related records keeping and compliance systems. Annual affirmative audits and trainings are best practices that the Immigration and Customs Enforcement agency looks to when considering whether to reduce fines and penalties for violators. Employers are well-advised to consult with counsel on what steps can be chlamydia and pregnancy – what you need to know | ohnerezeptfreikaufchlamydia in pregnancy treating chlamydia during pregnancy. … to treat chlamydia in pregnancy, common antibiotics such as azithromycin, … taken now, as well as expected changes that can be planned for.

H-1B visa random selection and wages

The EO instructs these agencies to suggest reforms to ensure that H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries. The backgrounder says that these agencies are expected to report back on proposed ways to change how new H-1B visa petitions are allocated.

Existing rules allocate the limited annual supply of new H-1B visa petitions for most US employers on a random-selection basis. The EO suggests that the foreign worker’s skills and compensation be taken into consideration. Ironically, this would give preference to requests from employers who pay foreign workers more than the average paid to Americans.

The backgrounder acknowledges that some immigration changes can only be made by Congress. Just like the Obama Administration, however, the Trump Administration seems willing to bypass Congress and act unilaterally and not wait for Congress to act.

From the backgrounder:

But you could be looking at things on the administrative side, like increasing fees for H1B visas.  You could be looking at things like if we could adjust the wage scale—a more honest reflection of what the prevailing wages actually are in these fields. Obviously, taking a more vigorous stance, which various—in the Department of Justice do with respect to enforcing gross and egregious violations of the H1B program. You could see potential—and again, we’ll have to get a full legal analysis and review from all the departments, but right now the lottery system disadvantages master’s degree holders. There’s ways that you could adjust the lottery system to give master’s degree holders a better chance of getting H1Bs relative to bachelor’s degree holders. There’s a lot of possible reforms that you could do administratively in addition to a suite of legislative actions.  

There is no change in the H-1B random selection process, which is already concluded for fiscal year 2018. Changes can reasonably be anticipated for fiscal year 2019 filings in April 2018. What skills, wage offers, or other factors will impact the likelihood of selection remains to be determinedassuming that the status quo changes at all.

We will continue to share more information and analysis as the law evolves.

The full text of the EO is published on the White House web site; click here to read the backgrounder press release. To read the President’s remarks on signing the EO click here.

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‘Hire American’ executive order

New H-1Bs for 2018 are gone

 

US employer demand once again greater than limited supply

United States Citizenship and Immigration Services (USCIS) once again received more H-1B visa petitions (for professional workers) from US employers than the limited supply allocated by Congress for fiscal year 2018.

The agency reported receiving 199,000 petitions during the first five business days of April—37,000 fewer than last year—the first time in years that the number of petitions has fallen.

The selection process was completed on April 11, but the agency did not announce by what date all accepted petition fee receipts would be issued, unselected cap-subject petitions returned with the uncashed filing fee checks, and approval notices for granted petitions sent.

As in years past, USCIS will reject and return filing fees for all unselected petitions that are not duplicate filings. Last year, most returns were received by June.

Congress authorizes USCIS to granted 65,000 H-1B visa petitions per fiscal year, plus an additional 20,000 petitions earmarked only for foreign nationals who earned a graduate degree from an American university. FY2018 starts October 1, 2017. For both of these quotas, the demand was greater than the supply, but USCIS has not provided a breakdown for each.

Certain H-1B visas remain available and USCIS will continue to accept and process petitions to:

  • Approve H-1B status to an individual coming to work for an employer that is exempt from quota limitations—generally the US government, American universities and certain related or nonprofit organization
  • Approve H-1B status to an individual counted previously against the cap and who is not subject to the FY2018 cap
  • Extend the amount of time a current H-1B worker may remain in the United States
  • Change the terms of employment for current H-1B workers
  • Allow current H-1B workers to change employers
  • Allow current H-1B workers to work concurrently in a second H-1B position

The full text of the agency’s press release can be found at the USCIS website.

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New H-1Bs for 2018 are gone

Q. Do US border inspectors demand passwords and inspect phones and laptops?

US Customs and Border Protection (CBP) searched 14,993 electronic devices during the six-month period between October 1, 2016 and March 31, 2017, according to an ‘agency press release issued on April 11, 2017. The press release did not reveal how many of those devices, if any, were seized as evidence.

The CBP’s numbers constitute a dramatic increase compared to the 19,033 searches of electronic devices conducted during the 12-month period commencing on October 1, 2015, and ending on September 30, 2016 (up from 8,502 searches during the prior 12 months).

The CBP’s border search authority is considered by the agency to require no warrant, a position that has been upheld in federal appellate courts. The CBP has stated that it adjusts the level of search activity to align with current threat information regarding terrorist activity, child pornography, violations of export controls and intellectual property rights and visa fraud.

“These searches, which affect fewer than one-hundredth of one percent of international travelers, have contributed to national security investigations, arrests for child pornography and evidence of human trafficking,” stated John Wagner, Deputy Executive Assistant Commissioner, Office of Field Operations. “CBP officers are well trained to judiciously conduct electronic device searches and to protect sensitive information that may be encountered.”

The CBP has an information sheet, titled “Inspection of Electronic Devices,” which agents provide to travelers whose property is being searched detailing the various reasons individuals are selected for a search, including:

  • Travel documents incomplete
  • Does not have proper documents or visa
  • Previously violated one of the laws the CBP is charged with enforcing
  • Name matches that of a person of interest in one of the government’s enforcement databases
  • Randomly selected

The CBP advises that the agent retain a device, along with copies of any documents or information in the possession of the person who was searched relating to immigration, customs or other enforcement matters, only if such retention is consistent with the privacy and data protection standards of the system in which such information is retained. Otherwise, if after reviewing the information, there exists no probable cause to seize it, the CBP states that the agency return the device and not retain copies of any documents seized.

The information sheet explains:

“If CBP determines that the device is subject to seizure under law—for example, if the device contains evidence of a crime, contraband or other prohibited or restricted items or information—then you will be notified of the seizure as well as your options to contest it through the local CBP Fines, Penalties and Forfeitures Office.”

The information sheet also addresses privacy and civil liberties protections during the conduct of border searches.

The full text of the April 11 press release is available at the US CBP website and the published agency’s information sheet can be found here.

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Q. Do US border inspectors demand passwords and inspect phones and laptops?

Strategies for complying with anti-corruption rules in Saudi Arabia


1. Introduction

Government contracting can be highly rewarding in Saudi Arabia, given the wide-ranging opportunities in defense, education and healthcare. At the same time, however, companies doing business there need to be mindful of the anti-corruption rules and practices of not only their home jurisdictions, but also the Saudi legal framework. Moreover, investors must be conscious of the particularities of Saudi culture and politics, where the head of a company with whom they are negotiating may be a member of the Royal Family, or where an intermediary in a government contract may be one of ‘the monarchy’s thousands of princes. Investors doing business in Saudi Arabia must understand this local context in order to avoid the unwitting payment to a “government official.”

2. Recent steps towards eliminating corruption

The need to understand Saudi Arabia’s anti-corruption laws has become especially important in recent years, as that nation has pressed ahead with a campaign aimed at eliminating and punishing corruption and bribery at all government levels. Among the measures taken to realize this goal were the formation of the Violations Review Committee of the Government Tenders and Procurement http://www.achaten-suisse.com/ Law, establishment of the National Anti-Corruption Commission and passage of the Combating Bribery Law.

2.1 Combating Bribery Law

The Combating Bribery Law (CBL) seeks to counter both the offering, soliciting and receiving of bribes among Saudi public officials in Saudi Arabia. Under the CBL, a public official is deemed to have received a bribe if the official has solicited, accepted or received, for himself or a third party, a promise or gift in exchange for:

  • The performance of any of his duties;
  • Abstaining from carrying out his duties;
  • Violating the functions of his duties;
  • Performing or abstaining from his duties as a result of a request, recommendation or mediation;
  • Exercising real or alleged influence to obtain from any public authority any act, decision, contract, license, job, service or other benefit or advantage; or
  • Lobbying a governmental authority on the basis of his position.

A “public official” is broadly defined as any of the following:

  • A person employed by the State or any of the public administrative authorities, regardless of whether the employment is permanent or temporary;
  • An arbitrator or expert appointed by the Government or any entity having judicial specialization;
  • A person assigned by a governmental authority or any other administrative authority to perform a specific assignment;
  • A person employed by a joint stock company or company in which the State has a holding; and
  • Chairmen and directors of companies provided for in the preceding paragraph (Art. 8.5 CBL).

Foreign investors attempting to ascertain whether their Saudi counterpart is deemed to be a “public official” under the CBL may encounter difficulty. For example, the chairman and directors of a company in which the State “has a holding” are deemed to be public officials, but determining whether a company is partially or wholly publicly owned is not as straightforward. It is easy to determine when contracting with large, listed companies, such as Saudi Arabia Basic Industries Corporation (SABIC), whose public records disclose the Saudi government’s 70 percent shareholding, but it is more complex when contracting with smaller, unlisted companies, particularly if the only way to get a complete picture of ownership is by piecing together several dozen formational and governing documents published over many years, or when one has to sort out a complex web of company and subsidiary company structures.

2.2  National Anti-Corruption Commission

The National Anti-Corruption Commission (Nazaha or the Commission) has jurisdiction over all governmental bodies and agents, as well as over private businesses where the Kingdom owns 25 percent or more of its capital. All governmental bodies, as well as all businesses that are 25 percent Kingdom-owned, are required to disclose the financial details of their projects, contracts and general operations to the Commission, which is charged with:

  • Receiving and analyzing the reports and statistics from entities falling under ‘its jurisdiction in order to identify areas where corruption could take place and implement preventative measures.
  • Receiving complaints of corruption from citizens and communicating “detected violations” to investigative bodies that fall within its jurisdiction, such as the Minister of Health, the Minister of Municipal and Rural Affairs, the Minister of Education and the Ministry of Water and Electricity.
  • Supervising the investigations and advising the Saudi authorities to take precautionary measures against persons guilty of engaging in corruption.

The Commission has undertaken several investigations into prominent government contracts, including a deal between the Saudi Railways Organization and a Spanish train manufacturer and a contract between a multinational construction company and a hospital in Mecca.

The Commission has published various ads calling on Saudi citizens and residents to report acts of corruption. The ads state that “keeping silent and just watching administrative and financial corruption makes you part of this corruption.”

2.3 Violations Review Committee

Article 78 of the Government Tenders and Procurement Law (the Procurement Law) directs the Minister of Finance to form a committee of advisors comprised of at least three members from relevant government authorities, including a legal advisor and a technical expert, to review compensation claims submitted by contractors and suppliers as well as reports of deceit, fraud and manipulation, in addition to decisions of withdrawal of works. This committee is charged with hearing statements of grievant contractors and suppliers and those accused of fraud or other violations, including their defenses and views of the government authorities. If a contractor or supplier prevails in his claims, the committee must issue a decision awarding compensation.

3. Recommended practices

A foreign company or investor doing business in Saudi Arabia can avoid running afoul of anti-bribery laws by implementing the following practices regarding government contracting:

  • Thoroughly review the constitutional documentation of companies and agents with which whom are doing business. If even a single share of a Saudi company is owned by the Saudi government or by a public institution, the CBL will apply and the individual with whom you are contracting may be deemed to be a public official.
  • Conduct a thorough due diligence before engaging an agent. Review the agent’s commercial registration certificate and confirm the identities of each of the agent’s owners, managers and directors to confirm that none are governmental officials. You should proceed with caution if your research discloses that the agent has family or business relationships with key governmental officials. Similarly a governmental official’s insistence on using the particular agent should, in the absence of legitimate reasons, raise a red flag.
  • Before executing agency agreements, ensure that local agents provide written confirmation that they do not employ or make payments to public officials and that their anti-bribery and corruption policies and practices are at least as rigorous as ‘your firm’s own policy and practices. Such measures will not only minimize the risk of prosecution for an offense, but will also provide the affirmative defense that you had adequate procedures in place to prevent persons associated with your company from undertaking bribery.
  • Include adequate warranties in agency contracts that impose a burden on local agents to comply with anti-corruption laws. Parties may wish to incorporate language such as the following:
    • The Agent warrants that neither it, nor any of its employers, officers, directors, agents, distributors, representatives or any other individual otherwise under the Agent’s control shall pay, offer, promise to pay (or authorize to pay or offer money or anything else of value to any foreign official (i.e., any officer or employee of a foreign government or any department, agency or instrumentality thereof) in order to wrongfully influence the official to misuse his official position in order to obtain or retain business.

By implementing the above recommendations, investors can focus on the business in which they have developed their expertise, and reap the benefits of government contracting in Saudi Arabia, without running afoul of anti-corruption laws and regulations.

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Strategies for complying with anti-corruption rules in Saudi Arabia