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Significant changes in the work permit regulations in Uzbekistan

The Cabinet of Ministers of the Republic of Uzbekistan on March 25 approved a new procedure for employers to obtain a license and confirm foreign nationals. Changes to the framework including a broadening of the definition of “employer,” a more streamlined process, a significant increase in fees, and limiting three-year confirmations to certain categories of persons.

Read the complete Dentons article here.

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Significant changes in the work permit regulations in Uzbekistan

Proposed end of H-4 employment authorization likely to affect over 100,000 families

Time appears to be almost up for more than 100,000 foreign citizens working in the United States under an Obama-era special authorization for spouses of foreign workers here on the H-1B visa.

When Congress failed legislatively to address the lengthy wait times for many professionals and their families to be granted resident status, the US Citizenship and Immigration Services (USCIS) in 2015, under the Obama administration, issued a regulation to allow H-4 visa spouses of qualified H-1B professionals to apply for an employment authorization document (EAD). Some members of Congress complained that the executive branch was overstepping its authority by making law—which is Congress’s job—and the regulation was the subject of much debate during the last presidential election. Now the Trump administration is seeking to make good on the President’s campaign promise to eliminate EADs for H-4 spouses.

This change especially impacts US employers of people born in India.

The reason why Indian-born professionals are impacted is because there are numerical limits on the number of green cards granted each year. To promote the diversity of new immigrants to the US, there are quota limits on the place of birth. No more than 7 percent of the total number of family-sponsored and employment-based visas available in a fiscal year may be issued to natives of any one independent country. As the demand for Indian-born professionals is far greater than the annual supply of green cards under the quota, this has created a backlog.

In 2018 for instance, the backlog of Indian-born professionals waiting their turn to get a green card was well in excess of a half million individuals. As a result, it now takes many years for an Indian-born professional to receive his or her green card. As a consequence, Indian-born professionals comprise the bulk of H-4 EAD holders.

Under the current regulation, an H-4 spouse can request an EAD if the H-1B professional is the beneficiary of either an approved employment-based immigrant visa petition, or a Department of Labor alien employment certification application or employment-based immigrant visa petition filed at least 365 days prior to the end of the sixth year of the professional’s H-1B status.

In April 2017, President Trump signed the “Buy American and Hire American” executive order, which, among other things, directed the Department of Homeland Security (DHS), in coordination with other agencies, to review H-1B-related policies. The H-4 EAD regulation was one of the policies reviewed and the result was its proposed elimination.

US employers rely on H-1B professionals to make up for the shortage of qualified American professionals while keeping jobs in the US. CEOs of major US companies, sent a letter to DHS opposing the plan to eliminate the H-4 EAD. The letter pointed out that “[t]hese spouses are often highly skilled in their own rights,” and “revoking their US work authorization will likely cause high-skilled immigrants to take their skills to competitors outside the United States.

These US employers found some support in Congress. Senators Kamala D. Harris and Kirsten Gillibrand sent a letter to DHS and USCIS opposing rescission of the H-4 EAD, pointing out that the proposed change would disproportionately impact South Asian women (in 2017, 94 percent of H-4 EAD were women and 93 percent were from India).

But the administration has not changed its position. In November 2018, DHS published its mid-year regulatory agenda, which included a proposed rule to revoke the H-4 employment authorization final rule. DHS stated that “[s]ome U.S. workers would benefit from this proposed rule by having a better chance at obtaining jobs that some of the population of the H-4 workers currently hold, as the proposed rule would no longer allow H-4 workers to enter the labor market early.” With record low unemployment levels and US employers already complaining of recruiting problems, it is unclear where the DHS thinks employers will find these US workers.

The new rule, if adopted, is expected to become effective in the first half of 2019 and would impact all 100,000+ individuals currently holding an H-4 EAD. Researchers also estimate that the proposed rule will affect entire families, including the H-1B professionals themselves, because many will not be able to afford to live on one income if their dependent spouse is forced to abandon his or her career. This is especially true in areas such as Seattle and the Silicon Valley, which employ high numbers of H-1B workers and have a high cost of living. Entire families may leave the US, taking their job skills to other countries to compete with their former employers—whose only options to remain competitive may be to outsource the jobs or set up their own offshore facilities. Nearshoring to Canada has become increasingly popular, due to the relatively lower cost of doing business there and proximity to the US.

The direct cost of each failed expatriate assignment is estimated to range from $250,000 to $1 million, according to researchers. More important, the departure of these highly skilled workers represents a brain drain and a significant loss of talent for most companies.

Dentons helps employers develop strategies to recruit the world’s best and brightest to fill posts in the US and abroad. For more information, please contact the authors or your Dentons lawyer.

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Proposed end of H-4 employment authorization likely to affect over 100,000 families

Where’s my green card?

Longer waiting times expected for EB-5 immigrant investors

The US Department of State estimates longer waiting periods for EB-5 immigrant investors from the top six participating countries: China, Vietnam, India, Brazil, Taiwan and South Korea.

Waiting periods have long existed for immigrant investors born in mainland China and recently, EB-5 visa applicants from Viet Nam have been facing them. The State Department’s Visa Bulletin for June 2018 shows that EB-5 immigrant visas are only available to people born in China and Vietnam who applied before August 1, 2014. Now, the State Department predicts the likelihood, in the near future, of waiting periods for people born in the other four above-named countries.

The State Department predicts that, for people born in India, EB-5 will remain currently available until 2019 and that EB-5 is likely to remain available without longer waiting times for people born in Brazil, Taiwan and South Korea until 2020.

The US limits the number of immigrant visas and green cards issued each fiscal year. The limits are based on both visa category and country of birth. Each country has potentially the same supply. Only 10,000 EB-5 immigrant visas are available each fiscal year (October 1, 2017, was day one for FY2018). This small allocation is shared by immigrant investors and the family members who immigrate with them.

In addition to the countries mentioned above, the State Department reports increases in demand from Russia, Japan, Colombia and Venezuela.

While each country is entitled to 7 percent of the annual supply (i.e., 700 visas), any unused visas are allocated in order of immigrant petition receipt date, regardless of place of birth. In the past, that resulted in more China-born immigrants. As the demand from other countries increases, expect fewer unused visas and longer waiting periods.

For example, in FY2017 China received 75 percent (or 7,567) of all EB-5 immigrant visas because of unused visas allocated to other countries. Due to increasing demand from other countries, China will likely get fewer visas this year and in the future. The State Department puts the number at 4,500 in FY2018 and 3,500 in FY2019 (or less than half that of FY2017).

The bottom line: It is more important than ever for immigrant investors to file their petitions as early as possible. The date that the government receives the petition is the priority date.

The Visa Bulletin allocates immigrant visas by priority date. The sooner immigrants make their investment and file the petition, the faster they will get resident status. Petitions are processed slowly by the government. Since the priority date is the date that petitions are first received, immigrant investors are already in line during processing.

There are federal legislative and regulatory proposals pending that would at least partially address this problem. But these are only proposals and it is not clear when they will become law, if ever. One thing is certain: Unless and until Congress increases the annual supply of EB-5 visas, increasingly long waiting periods will create hardships on immigrant investors that will likely result in less job creation for American workers.

EB-5 refers to the employment-based, fifth preference immigrant visa classification. EB-5 is the US immigrant investor program that grants immigrant visas and resident status (or green cards) to individuals who make an at-risk investment that creates, directly or indirectly, full-time equivalent jobs for at least 10 American workers. The required dollar amount of investment is currently US$1 million, although US$500,000 is acceptable in targeted employment areas where the government wants to encourage job creation, generally high-unemployment or rural areas.

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Where’s my green card?

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.

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Tier 2 Restricted Certificates of Sponsorship hit quota

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.”

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

Trade deals and immigration

How will future trade deals impact UK immigration policy?

With Brexit negotiations between the UK and the European Union progressing, the UK is keen to start trade talks with the EU as soon as possible. While a trade deal with the EU is a priority, other countries, including India and Australia, have expressed that, in the fullness of time, they also would like to negotiate their own trade deals with the UK.

The UK’s Brexit Secretary, David Davis, has stated that he is looking for a “Canada Plus Plus Plus” trade deal with the EU, a reference to the recent deal between the EU and Canada. Labor mobility is a key element of that deal, making it easier for certain skilled professionals from Canada to work temporarily in the EU, and vice versa.

We can also learn from other trade deals:

  • The Trans-Pacific Partnership (TPP) trade deal currently being negotiated between 11 Pacific Rim countries (notably not including the US, which withdrew from the pact) is also looking to include an element of labor mobility. For example, it is proposed as part of this deal that it will be easier for Australian employers to recruit people from Canada, Chile, Japan, Malaysia, Mexico and Vietnam by exempting them from the usual requirement of advertising the role to Australians as part of the immigration process. In return, Australians will get reciprocal access to the labor markets of these six countries.
  • Likewise, one of the outcomes of the Australia-United States Free Trade Agreement (AUFTA), which came into effect in 2005, was the US E-3 visa, which is available only to Australians. The E-3 visa is similar to the H1-B visa, however more generous in that it has a separate quota of 10,500, is renewable indefinitely and has the additional benefit of the spouse of the main visa holder being able to work. In contrast, the H1-B visa has a quota of 65,000 (for applicants of all other nationalities), is capped at six years and the spouse of the main visa holder is not able to work. Singapore and Chile enjoy similar preferential immigration routes to the US as a result of their free trade deals.

One of the key arguments for voting to leave the EU was that the UK would be able to negotiate its own trade deals. So what are our likely trading partners saying?

  • Australia has spoken of the need for “greater access” to the UK for Australian business people.
  • India has already stated that the UK will need to relax immigration rules and make it easier for professionals and presumably students from India to come to the UK.
  • The EU is another matter entirely with many competing priorities and parties. The degree of labour mobility post Brexit will depend on whether we see a “soft Brexit” or a “hard Brexit”, which is still very much to be decided.

What is certain is that any trade deal the UK negotiates after Brexit will be about more than goods and services. Labor mobility will be a key element and it is therefore inevitable that any future trade deals the UK agrees will have an impact on immigration policy.

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Trade deals and immigration

Mind the gap

Employment law issues seem to be rife with gaps at the moment. We have already reported on the gender pay gap, brought to the fore by the UK’s new reporting regulations for gender pay that took effect on April 6, 2017. However, it looks like we are now dealing with another gap: the skills gap that commentators believe will be one of the consequences of the UK exiting the EU. In fact, we are already seeing the effects, as potential migrant workers are reluctant to come to the UK at a time of such uncertainty. As a result, there is a significant shortage of workers to fill such typical blue collar jobs as drivers, electrician assistants and construction workers. Sectors such as healthcare, retail and construction are among those feeling the squeeze, as they are heavily reliant on EU migrant workers. A study by the Recruitment and Employment Confederation (REC) points out that EU migrants are over-represented in low-skilled jobs, filling 15 percent of them, compared with 7 percent by non-EU migrants and 78 per cent by Britons.

Furthermore, Brexit has led to curbed planned growth and investments for one in four small and medium-sized enterprises (SMEs), according to the latest “UK SME Confidence Index” from Vistage. And the shortage of workers has forced employers to raise starting salaries. According to the REC study, in August salaries increased at the fastest pace in nearly two years. This trend may not be sustainable over the long haul if it impacts too negatively on profitability and business sustainability.

In the meantime, automation and digitalization have been proposed as possible solutions to bridge the gap. However, whether replacement of people with machines is quite what voters intended back in June 2016 when the referendum took place is questionable at best.

 

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Mind the gap

The rights of EU citizens in the UK

The UK government has published a policy paper setting out its offer to EU citizens and their families residing in the UK regarding their right to remain in the country post-Brexit. The offer differs depending on how long a person has been in the UK.

People who have been continuously living in the UK for five years will be able to apply to stay indefinitely by getting “settled status.” A settled status residence document will be issued to prove an individual’s permission to continue living and working in the UK. Those already with an EU permanent residence document will be required to apply. The application process should come online before the UK leaves the EU, hopefully in 2018. The government has pledged to make the process as streamlined and user-friendly as possible.

Other EU citizens in the UK will be subject to a “cut-off date” after which they will no longer be automatically entitled to stay. The date is still to be negotiated, but may fall at any point between March 29, 2017 (the date that Article 50 was triggered) and the date that the UK leaves the EU.

EU citizens who arrived in the UK before the cut-off date, but who have not been here for five years when the UK leaves the EU, will be able to apply to stay temporarily until they have reached the five-year threshold, at which time they also can apply for settled status as set out above.

EU citizens who arrive in the UK after the cut-off date will be able to apply for permission to remain after the UK leaves the EU, under future immigration arrangements for EU citizens. The arrangements have yet to be determined, but the government stated that there should be no expectation by this group of people that they will obtain settled status.

Please visit The Global Mobility Review next month for further information on this development.

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The rights of EU citizens in the UK

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

Tier 2 immigration skills charge – another fee to pay

As part of the government plans to reduce Britain’s reliance on migrant workers, from April 6, 2017 employers may have to pay an immigration skills charge of £1,000 per employee.

The skills charge will apply to a sponsor of a Tier 2 worker assigned a certificate of sponsorship in the “General” or “Intra-Company Transfer” route and who applies from:

  • outside the UK for a visa
  • inside the UK to switch to this visa from another
  • inside the UK to extend their existing visa

The skills charge does not apply if you are sponsoring:

  • a non-EEA national who was sponsored in Tier 2 before April 6, 2017 and is applying from inside the UK to extend their Tier 2 stay with either the same sponsor or a different sponsor
  • a Tier 2 (Intra-Company Transfer) graduate trainee
  • a worker to do a specified PhD level occupation
  • a Tier 4 student visa holder in the UK switching to a Tier 2 (General) visa
  • Tier 2 family members (“dependants”)

As the charge applies to the sponsor and not the individual, if a sponsor has paid it in respect of an individual who then seeks to change sponsor, the new sponsor will also be required to pay the levy.

A lower rate of £364 per certificate of sponsorship applies for smaller sponsors and charities. You will usually be considered a small business if:

  • your annual turnover is £10.2 million or less
  • you have 50 employees or fewer

The charge is in addition to all other application fees. Its purpose is to cut down on the number of businesses taking on migrant workers and to incentivize employers to train British staff to fill those jobs.

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Tier 2 immigration skills charge – another fee to pay