1. Skip to navigation
  2. Skip to content
  3. Skip to sidebar

Tier 2 Restricted Certificates of Sponsorship hit quota

Tier 2 Restricted Certificates of Sponsorship (CoS)—which employers use to employ non-EU/EEA nationals in the UK—are scarce.

All Tier 2 Restricted CoS applications that employers lodged before the April CoS allocation meeting on April 11, 2018, were successful, provided they scored 46 points or more. This meant that migrants had to be earning a minimum salary of £50,000. The pressure on the Tier 2 system is due to the drop in the number of EU/EEA migrants coming to the UK to work.

Only 1,975 Restricted CoS were available in the May allocation. Based on recent allocations, this will (again) not be sufficient to meet demand. In April, the Home Office granted 2,193 CoS. April was the fifth consecutive month that the allocation limit was exceeded. Employers across all industry sectors are urging the government to increase the cap amid a growing skills shortage.

Only prioritized applications, such as those on the shortage occupation list, PhD level occupations and where the salary is more than £50,000, will have a chance of success in May. Figures to be released at the end of the month will reveal the true picture.

, , , , ,

Tier 2 Restricted Certificates of Sponsorship hit quota

Stricter unlawful presence rules for foreign students and exchange visitors

Individuals in the United States on F, J and M visas (including F-2, J-2 and M-2 dependents) who fail to maintain their status will start accruing unlawful presence earlier, potentially spelling trouble for future immigration benefits, according to new US rules.

The US Citizenship and Immigration Services (USCIS) announced on Friday May 11, 2018, that the agency is changing the way it calculates the accrual of unlawful presence for nonimmigrant students and exchange visitors. The changes increase the likelihood that individuals in these two nonimmigrant visa categories will have problems on future immigration benefits.

Non-US citizens can be barred from obtaining visas, entering the US, and obtaining immigration benefits based on extended periods of unlawful presence in the US. If the individual accrues more than 180 days (but less than 1 year), he or she may be barred from re-entry for 3 years. Unlawful presence greater than 1 year can result in a 10-year bar.

The new policy, which becomes effective August 9, 2018, provides that nonimmigrant students and exchange visitors will start accruing unlawful presence either:

(1) the day after the visa holder no longer pursues the course of study or the authorized activity, or the day after they engage in an unauthorized activity; or

(2) the day after they complete the course of study or program, including any authorized practical training plus any authorized grace period.

In addition, visa holders start accruing unlawful presence on:

(3) the day after their I-94 expires; or

(4) the day after an immigration judge orders their deportation or removal of the individual.

Under the previous policy, an F, J or M visa holder would start accruing unlawful presence the day after the Department of Homeland Security (DHS) notified the visa holder that the individual violated his or her nonimmigrant status while adjudicating a request for another immigration benefit. Accruing unlawful presence under this criterion required notification by the USCIS to the visa holder of the violation.

This change is very important. There has always been a clear distinction between violating status and being unlawfully present, with only the latter situation having severe consequences for visa holders. A person could be in violation of status and not be unlawfully present. For instance, a foreign student on an F visa could drop out of school or perform unauthorized work and not accrue unlawful presence.

This situation is very specific to nonimmigrant students and exchange visitors because their Form I-94 and admission stamp usually list duration of status (or D/S) and not a specific date. Typically, F, J and M visa holders can maintain status as long as they remain enrolled or continue to participate in the activity for which they were admitted in the first place. The situation is different from other nonimmigrant visas, such as H-1B and L-1A visas, where unlawful presence generally starts accruing on the day after their visa stay permission on Form I-94 expires.

Under the new rule, even foreign students and exchange visitors who violate status unintentionally and without being aware of it, will start accruing unlawful presence—and may be in for an unpleasant surprise when they later apply for a new visa.

This announcement comes less than a month after USCIS updated its web page regarding the optional practical training (OPT) extension for international students with degrees in science, technology, engineering, and mathematics (STEM). USCIS now specifically provides that the training experience of STEM OPT workers may not be conducted at the place of business or worksite of the employer’s clients or customers. Combined with last week’s policy change, such an arrangement could cause the visa holder to accrue unlawful presence and later trigger a re-entry ban and visa denial.

We encourage employers who currently employ workers on F, J or M visas or who plan to do so, to carefully review the applicable rules, especially if you intend to subsequently apply for a new visa (e.g., H-1B, EB1, EB2) on their behalf.

For more information, please contact your Dentons lawyer and see the USCIS website for additional information.

, , , , , ,

Stricter unlawful presence rules for foreign students and exchange visitors

USCIS to require applicant’s signature for delivery of green card and EAD

Delivery of alien registration cards (popularly called green cards), employment authorization documents (EADs) and reentry permits will soon require the recipient to present valid photo identification at the time of delivery, with some exceptions.

The US Citizenship and Immigration Services (USCIS) announced on Friday, April 27, 2018, that the agency will soon start using the Signature Confirmation Restricted Delivery service from the US Postal Service. The stated goal is to increase “the security, integrity, and efficiency of document delivery” and provide “better tracking and accuracy of delivery information, improving service to applicants.” This new process applies to the delivery of secure documents, such as green cards, EAD cards and reentry permits. USCIS plans to first roll out the new process to secure documents that were returned as non-deliverable, and to subsequently expand use of signature confirmations to all deliveries of secure documents.

In general, applicants will have to present a valid ID to sign their documents upon delivery. USPS offers several alternatives, including designating another person to sign on the applicant’s behalf, authorizing the hotel or the apartment complex where the applicant resides to accept delivery, etc. Applicants can also sign up for Informed Delivery, an online service from USPS that provides delivery status notifications and allows for parcels to be held for in-person pickup at a USPS post office location.

This announcement comes less than a month after USCIS indicated that it would destroy such secure documents (green cards, EAD cards and travel booklets) after 60 days if returned as non-deliverable by USPS. These two recent announcements serve as a reminder that all foreign nationals are required to keep USCIS informed of their current address, and to report any change of address within 10 days of relocation by filing Form AR-11, either online or by post.

For more information, please contact your Dentons lawyer and for the full text of the agency’s press release can be found at the USCIS website.

, , ,

USCIS to require applicant’s signature for delivery of green card and EAD

The travails of the ‘Windrush generation’ and the lessons for EU nationals

UK Minister of State for Immigration Caroline Nokes has set out the government’s commitment to support the “Windrush generation,” immigrants who migrated legally from British colonies or former colonies in the Caribbean between 1948 and 1973. The term “Windrush” derives from the name of the ship, the Empire Windrush, that brought the first arrivals in Britain’s post-war drive to fill a labor shortage. The ship carried 492 passengers, many of them children, from the Commonwealth country of Jamaica. Under the British Nationality Act, they and thousands who followed after, enjoyed British citizenship and full rights of entry and settlement. In 1962, however, British law changed to end the automatic right of entry and, throughout the 1960s and 1970s, as the Caribbean colonies gained independence—and their people different citizenship—a series of British laws further tightened immigration controls.

The story of Caribbean-born Britons took an inauspicious turn in 2012. Changes to immigration law that required documentation to work, rent a property or access benefits, including healthcare, left people fearful about their status. As it turned out, their fears were justified. Recent reports in the British press about longtime legal residents of West Indian and Caribbean ancestry losing their jobs, being denied medical care, being evicted, and even detained and threatened with deportation because they could not prove that they had lived in the country since before 1973 produced a public outcry and, on April 17, 2018, an apology from Prime Minister Theresa May.

The current “hostile environment”—aimed at making it difficult for illegal immigrants to settle in the UK—has meant that many people living in the UK legally are being asked to document their right to stay in the UK when trying to access healthcare, applying for a job, opening a bank account, or renting a property, and some of the Windrush generation who arrived here as children are finding it difficult to do so because they have never had a need to update their passports and immigration documents.

Their plight, however, is not dissimilar to that of EU nationals, who must also think about what documentation they can produce to prove their right to remain in the UK. There are thousands of EU nationals who do not hold passports and/or do not have a paper trail to evidence their nationality or time spent in the UK. Without such documents, they will find it difficult to meet the requirements to apply for residency documentation confirming their status. Such EU nationals will feel the same level of anxiety and experience the same hostile environment that the Windrush generation are contending with. However, for EU nationals there’s the added pressure of having to complete their application within six months of December 31, 2020, being the end of the implementation period. Those who fail to do so enter uncharted territory, as there is no information at present on what will happen to EU nationals who haven’t obtained new residency documents.

Guy Verhofstadt, the European Union’s chief Brexit negotiator, identified this very issue when speaking to The Telegraph for an article that appeared on April 18 on how the UK government’s handling of its Windrush citizens has led to fears that EU nationals could face similar problems. Verhofstadt said, “This could be worrying for millions of EU citizens in the UK who may fear that they could face similar treatment after Brexit.” He added that he expects that MEPs will be looking for safeguards for their constituents.

The UK government has accepted that the Windrush citizens are entitled to reside in the UK and to access public services, and has asserted its commitment to working with any individuals who do not have documentation to prove their right to be in the UK. A new dedicated Home Office team will help such individuals gather the evidence necessary to prove that they have been living or working in the UK, and when such evidence is gathered, will endeavor to resolve cases within two weeks and at no cost to the applicant. Unfortunately, however, while the Brexit talks have gone more smoothly as of late, there is not the same commitment between the UK government and EU governments to help EU nationals. Given the current climate of uncertainty, we are advising EU nationals and employers of EU nationals on their best course of action.

, , , , , , , , ,

The travails of the ‘Windrush generation’ and the lessons for EU nationals

Graduation: Time to request post-graduation work permission for foreign students

It’s April. Graduation is just around the corner. International students who are in F-1 status must consider their post-graduation plans. Now is the time to work with foreign student advisors and the USCIS for those seeking to work and gain practical training after graduation.

Optional Practical Training (OPT) is a period of temporary employment in the US that is directly related to an F-1 student’s major area of study. An F-1 student may be authorized 12 months of OPT after completing a degree from a US university. Eligible students must apply within 30 days of the foreign student advisor (known to USCIS as the “designated school official” or “DSO”) for OPT into the Student and Exchange Visitor Information System (SEVIS) record system.

The application time window is only open from 90 days before to 60 days after completing the degree. The latest possible start date for the OPT is 60 days after completing the degree. F-1 students must make sure to submit their applications, with application fee, within the time window. OPT will start after USCIS approves the Form I-765 and issues an employment authorization document (EAD).

An employer is not required when OPT is requested, but the student will need to find work soon or OPT will be lost and the student will need to leave the US if he or she is without work for more than 90 days after OPT is granted. F-1 students on OPT must report employment status to their DSOs, who will then update their SEVIS records. The reporting is important because a student with approved OPT but without current employer information in SEVIS is considered unemployed. This can have serious ramifications on the student’s future immigration opportunities. We are seeing an increasing number of requests from USCIS regarding OPT employment information when the student later applies for the H-1B work visa that is widely used by F-1 students to work in the US beyond OPT.

OPT can be extended by 24 months for F-1 students who graduate with a bachelor’s or higher degree in an eligible science, technology, engineering or mathematics (STEM) field from an SEVP-certified school accredited by an accrediting agency recognized by the US Department of Education. Eligible students must apply before the end of the OPT as indicated on the EAD.

During the STEM OPT period, the permitted unemployment period is 60 days. Unlike the initial OPT, where employer involvement is minimal, STEM OPT requires that the employer enroll in USCIS’ E-Verify employment eligibility verification program. Dentons lawyers guide employers on the E-Verify registration process and advise on compliance issues.

Also, the employer must agree to employ the student for a minimum of 20 hours per week and to provide the student with formal training and learning objectives. To fulfill this requirement, the student and the employer must complete and sign Form I-983, which must explain how the training opportunity has a direct relationship to the student’s qualifying STEM degree. Dentons lawyers assist employers in developing STEM OPT-compliant training programs.

During the STEM OPT extension period, students must report to their DSOs every six months and supply updated information regarding their employment. If an employer terminates a student’s employment or if the student leaves the job, the employer has to report in either situation to the relevant DSO within five business days. STEM OPT students must submit annual self-evaluations and report to their DSOs regarding the progress of their training. Both student and employer must report to the relevant DSO any material changes to the training plan. Reporting and record-keeping are important in case the student applies for H-1B later.

For more information about STEM OPT, please contact your Dentons lawyer and see the USDHS website for additional information.

, , , , , , , ,

Graduation: Time to request post-graduation work permission for foreign students

EB5 immigrant investor visas are available again


EB5 immigrant visas of all types are once again available to investors who create job opportunities for American workers. The Omnibus Spending Bill signed by the president on March 23 included the extension of the US immigrant investor EB5 regional center program to the end of September 2018.

The US State Department’s April 2018 Visa Bulletin will be revised soon to show that EB5 regional center immigrant visas are immediately available for all countries of birth, except mainland China, which is expected to have the same waiting period as the EB5 non-regional center program.

Media around the world has been warning readers of the demise of the EB5 regional center program. The US Embassy at Hanoi, Vietnam, announced on March 20 that no EB5 regional center immigrant visas would be issued after March 23. Now that advisory is no longer effective and immigrant visa appointments will continue to be scheduled at US embassies and consulates.

EB5 refers to the US employment-based fifth preference immigrant visa category. EB5 allows an investor, spouse and unmarried children under the age of 21 to obtain resident status in return for creating at least 10 full-time equivalent jobs for American workers through a business investment. The EB5 non-regional center program considers only jobs for workers directly employed at the business investment, while the EB5 regional center program also counts the larger number of indirect and induced jobs created as calculated by government-approved economic models.

Both types of EB5 generally require a US$1,000,000 investment, but a US$500,000 investment can qualify if the business is located in a targeted employment area. Such areas either have an unemployment rate 150 percent above the national average or meet the legal definition of rural.

There are proposals to raise these EB5 target investment levels, which have not changed since being set in 1990. Most experts expect substantial increases, along with other changes to EB5 regulations, but no one knows when this will happen. As a result, immigrants may want to act quickly to invest and file their EB5 immigrant visa petition as soon as possible. They should especially be sure to do so before September 30, 2018, when the EB5 regional center program is next set to expire.

, , ,

EB5 immigrant investor visas are available again

Brexit latest: EU nationals who arrive during the post-Brexit transition period can stay

On February 28, the UK government announced that EU nationals who arrive in the UK after Brexit Day (scheduled for March 29, 2019), but before the end of the so-called “implementation” or “transition” period, will be able to stay permanently. This is a shift from the UK’s previous position that arrivals after Brexit Day would be entitled to remain on a temporary basis only and would become subject to immigration controls at the end of the transition period. While this announcement brings the UK closer to the EU’s stance on this matter, there are still some fundamental differences to be negotiated.

Overall this is positive news for employers, especially those who rely on EU talent, who will now have a longer period to build new talent pipelines to replace workers from the EU.

However, this concession may have come too late for some employers who have already lost valuable talent due to a general feeling of uncertainty among EU nationals and negativity around citizens’ rights. It remains to be seen whether this latest shift in negotiating position will be enough to convince EU nationals that the UK remains an attractive destination to work and build a career.

The UK’s original position was partly based on an assumption that EU nationals would rush to move to the UK before a given cut-off date. The dramatic fall in net migration from the EU since the referendum shows that there was never a risk of this happening.

EU nationals who arrive in the UK during the transition period will be subject to a registration system in line with what is already common practice in other EU member states. After accumulating five years’ residence in the UK an EU national will be able to apply for indefinite leave to remain (ILR), which will allow them to live in the UK permanently.

It should be noted that ILR is not the same as “settled status,” which EU nationals who arrive before Brexit Day will be able to apply for. The application process for ILR usually requires the applicant to satisfy minimum salary requirements, demonstrate English language ability and pass the “life in the UK” test. ILR is also more restrictive than settled status; for example, the holder of ILR will lose this status if they are absent from the UK for a period of two years, while for the holder of settled status, absence up to five years is permitted. It remains to be seen what the qualifying criteria for ILR in this situation will be, and whether a special procedure will be established that is more closely aligned to settled status.

Looking to the future, employers should also be encouraged by the following section of the announcement, which relates to a new immigration framework to be implemented post Brexit:

“… leaving the EU does not mean the end of migration between the EU and the UK. The new framework will therefore be designed to support the UK economy, enable businesses and key public sector workforces such as the National Health Service to access the skills they need, and underpin our trading relationships with partners in Europe and around the world.”

, , , , ,

Brexit latest: EU nationals who arrive during the post-Brexit transition period can stay

Temporary ban on hiring expats in the Oman private sector

 

 

 

 

February 21, 2018   

Welcome to our client update on recent legal developments and on a new Ministerial Decisions promulgated by the Ministry of Manpower in Oman.

This update summaries the new law temporarily banning the issuance of work permits to non-Omani individuals in 87 job categories in the private sector.

Dentons’ Muscat office has over three decades of experience of advising on employment law issues in Oman. For any points of clarification on the new MD or for any other employment law queries please do not hesitate to contact Dentons. We would be very happy to hear from you.

Click to read the complete article.

, , , ,

Temporary ban on hiring expats in the Oman private sector

Brexodus continues

Net migration from the EU has plummeted from 165,000 in 2016 to 90,000 in 2017.

As expected, in the latest statistics released by the Office of National Statistics today, net migration from the EU has plummeted, with fewer EU nationals moving to the UK and more leaving:

2016 2017
EU nationals who immigrated to the UK 268,000 220,000
EU nationals who emigrated from the UK 103,000 130,000
Net migration +165,000 +90,000

This is of significant concern to industries and sectors that rely heavily on EU talent, with health and medical services, and farming and agriculture already dealing with considerable labour shortages.

The UK will officially leave the EU on March 29, 2019, and even though this is still over 12 months away, employers are already feeling the impact.

The other interesting statistic released today is the huge increase in EU nationals applying for British citizenship. In 2016 15,460 EU nationals applied for British citizenship—following the Brexit referendum this number more than doubled to 38,528 in 2017.

What we can take from both of these statistics is that the lack of certainty in citizens’ rights and future immigration policy following Brexit is forcing individuals to consider and protect their position in the UK. At one end of the spectrum we can see that EU nationals are securing their rights in the UK by naturalising as a British citizen, and at the other end EU nationals are reassessing whether the UK is the place to establish a life and career in the first place. Without certainty on citizens’ rights and future immigration policy we can expect these statistics to continue on the same trajectory.

, , , , , , ,

Brexodus continues

Stretched resources: immigration and gender pay equity

Two stories in the UK headlines today relate to stretched resources: The Home Office preparing its immigration system for life after Brexit, and the Equality and Human Rights Commission (EHRC) enforcing employers to publish information on their gender pay gap.

Immigration system

According to the British House of Commons, it is unlikely the UK will have an immigration system in place when Britain leaves the EU in March 2019. The government has not published its future policy. This is causing distress for EU citizens living in Britain, and for UK businesses that rely on EU citizens.

An estimated three million EU citizens will need to register as having the right to be in the UK. Border force agencies will struggle to carry out checks on EU citizens arriving in the country. Agencies like Visas and Immigration, Immigration Enforcement and other departments of the Home Office will also feel the impact of the extra caseload. These services are already finding it difficult to cope, resulting in occasional poor decision-making. Dentons has worked with clients to help overcome these poor decisions.

The UK government is due to publish a white paper on immigration policy; already postponed from last autumn, it seems unlikely to see release before March 2019. Ministers working on the white paper have said the delay is to consider the Migration Advisory Committee’s report due in September 2018. Dentons contributed to this report, so we hope to see the collated views of our clients reflected in the future shape of UK immigration rules.

Gender pay equity

By April 4, 2018 companies with 250 or more employees are required to report the gender pay gap in their workforces. Questions have already been raised about whether the gender pay gap regulations under the Equality Act have teeth to motivate business to properly comply. On top of this, it seems likely the EHRC will struggle with having sufficient resources to enforce the regulations.

However, EHRC Chief Executive Rebecca Hilsenrath has distanced the commission from the responsibility of ensuring compliance. She has described the EHRC to the Financial Times as a “strategic enforcer” that looks at novel points of law”, and “at cases which will clarify the law”, and “where impact lies.” Therefore, the EHRC does not see itself as taking on all breaches of the Equality Act.

This bears out in the EHRC’s budget information: The government is not allocating additional resources for work on gender pay reporting. The EHRC will seek to increase its budget if many companies fail to comply with gender pay reporting. Having already seen its funding cut by 25 percent in the 2016–2020 spending review, a crystal ball is probably not needed to predict how any request for a budget increase will be answered.

, , , , , ,

Stretched resources: immigration and gender pay equity