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Criminal record check for Tier 2 UK migrants

From April 6, 2017, individuals applying to come to the UK to undertake certain jobs will be subject, along with any adult dependants (over the age of 18 years old) applying with the main applicant, to the requirement under the Immigration Rules to produce a criminal record certificate. The certificate must be produced from any country in which the applicant has been resident for 12 months or more, consecutively or cumulatively, in the previous 10 years.

Effective January 1, 2017, sponsors must inform prospective employees at the point they assign their Certificate of Sponsorship (CoS) that they may become subject to this requirement by the time they make their application. This will enable them to begin seeking certificates where needed at the earliest opportunity, and to lodge a complete application for entry clearance sooner.

Affected job titles are:

  • Dental practitioners
  • Education advisers and school inspectors
  • Further education teaching professionals
  • Health professionals not elsewhere classified
  • Health services and public health managers and directors
  • Medical practitioners
  • Medical radiographers
  • Midwives
  • Nurses
  • Occupational therapists
  • Ophthalmic opticians
  • Pharmacists
  • Physiotherapists
  • Podiatrists
  • Primary and nursery education teaching professionals
  • Probation officers
  • Psychologists
  • Secondary education teaching professionals
  • Senior professionals of educational establishments
  • Social services managers and directors
  • Social workers
  • Speech and language therapists
  • Teaching and other educational professionals not elsewhere classified including Special needs education teaching professionals
  • Therapy professionals not elsewhere classified
  • Welfare professionals not elsewhere classified

The requirement to produce a criminal record certificate already applies to those applying under Tier 1 (entrepreneur) or Tier 1 (investor) and any adult dependant relative of the main applicant in either of these categories.

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Criminal record check for Tier 2 UK migrants

New national interest waiver ruling

Increased immigration opportunities for individuals of exceptional ability

There are increased opportunities for individuals of exceptional ability to immigrate to the United States based on new national interest waiver rule after the US Department of Homeland Security issued on December 27, 2016, designated the Matter of Dhanasar decision as precedent.

Summary

The new rule means that USCIS may grant a national interest waiver if the petitioner demonstrates:

(1) that the foreign national’s proposed endeavor has both (a) substantial merit and (b) national importance;

(2) that he or she is well positioned to advance the proposed endeavor; and

(3) that, on balance, it would be beneficial to the United States to waive the requirement of a job offer and thus of a labor certification.

The employment-based second preference immigrant visa category (EB2) includes individuals of exceptional ability who can self-petition to immigrate.  That means they sign their own immigrant petition and do not need a sponsoring employer. Further, the normal requirement of an employer obtaining an alien employment certification from the US Department of Labor can be waived on a showing that the waiver is in the national interest.

Analysis

The new rule states that “substantial merit” may be in a range of areas, citing business, entrepreneurialism, science, technology, culture, health, or education, research, pure science, and the furtherance of human knowledge as examples.  Showing the potential to create significant economic impact may be favorable, but is not required.

“National importance” focuses on potential prospective impact, rather than geographic terms.  National or global implications are relevant, but even a ventures that focus on one geographic are of the US may qualify.

The requirement that the immigrant be well positioned to advance the proposed endeavor focuses on the immigrant.  Relevant factors include education, skills, knowledge, and record of success in related or similar efforts, plan for future activities, and the interest of others (e.g., potential customers, users, investors).

The benefit to the US is an analysis of both:

  • Impracticality of securing a job offer or alien employment certification; and
  • Benefit of the immigrant’s contributions to the US warrants foregoing the alien employment certification.

Matter of Dhanasar

The immigrant in Matter of Dhanasar held a PhD in Engineering, as well as Master’s degrees in Mechanical Engineering and Applied Physics. His research focused on hypersonic propulsion systems and computational fluid dynamics.  He developed a validated computational model of high-speed air-breathing propulsion engine and a novel numerical method of calculating hypersonic air flow.  He intended to work in air and space propulsion systems R&D at university, as well as supporting teaching activities in STEM disciplines.

The US Citizenship and Immigration Services denied the immigrant petition, but that decision was reversed on appeal to the Administrative Appeals Office.  The AAO found there was both substantial merit and national importance to the immigrant’s work due to potential use in military and civilian applications, advances to scientific knowledge, and American national security and competitiveness applications.  The high level of accomplishment to date by the immigrant was found to show benefit to the US even assuming that other qualified US workers are available.

Matter of New York State Department of Transportation

The new ruling vacates the AAO’s decision in Matter of New York State Department of Transportation, which had been in effect since 1998.  That case severely limited self-sponsored EB2 due to a restrictive interpretation of the national interest waiver requirements, which was often misinterpreted by the USCIS to require the very labor market test that was intended to be waived.

Impact

The new ruling makes the self-petition EB2 national interest waiver much more widely available.  As a result, we anticipate a significant increase in filings, including in some cases where the self-petition EB1 extraordinary ability immigrant visa category might be in consideration.  On the other hand, the EB2 category remains oversubscribed with long waiting periods for immigrants born in mainland China and India.  These individuals will continue to shun EB2 in favor of the more stringent requirements of EB1.

The complete text of Matter of Dhanasar can be found here.

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New national interest waiver ruling

Important new regulations for immigrant workers

The US Citizenship and Immigration Services (USCIS) published important new regulations for immigrant workers on November 18, 2016. The regulations become effective January 17, 2017.

Summary

The agency has amended its regulations to provide benefits to those in the employment-based first (EB1), second (EB2) and third (EB3) immigrant visa categories and their employers. The agency’s stated goal is to improve processes and increase certainty for employers seeking to employ and retain such workers, provide greater job flexibility for those workers, and clarify relevant Department of Homeland Security (DHS) policies.

New Rules

There are a number of new regulations, some of which adopt current agency policy and others that are new. The following are some of the most important ones.

For occupations in which a license is required (e.g., doctor, lawyer, etc.), the USCIS will grant the H1B visa for up to one year, if the only obstacle to license issuance is lack of a Social Security number.

For the purpose of counting the number of days spent in the US in H1B visa status towards the normal six-year limit, the USCIS will consider any twenty-four-hour period spent outside the US as one day, regardless of the reason for the absence.

A former H1B visa holder who is no longer in H1B visa status, and regardless of whether he or she is in the US or abroad, may seek an exemption from the normal six-year limit. The foreign worker must be otherwise eligible and the beneficiary of an approved EB1, EB2 or EB3 petition for whom the visa is not current under the quota system as of the date that the H1B petition is filed.

Lengthy adjudication delays of permanent resident status will not support an extension of H1B status beyond the normal six-year limit if the immigrant fails to file for permanent residence or an immigrant visa within one year of the visa becoming current under the quota system. If the visa becomes unavailable again, a new one-year period will be afforded when an immigrant visa again becomes available. The USCIS may also in its discretion excuse failure to timely file upon a showing that the failure was due to circumstances beyond the immigrant’s control.

Credible documentation that an H1B visa worker faced retaliatory action from the sponsoring employer regarding a violation of that employer’s H1B labor condition application obligations may be considered by the USCIS as grounds to grant an extension of H1B stay, or a change of status to another visa classification, notwithstanding the worker’s loss of, or failure to maintain, his or her H1B status.

The definition of “same occupational classification” for purposes of establishing the portability of immigrants to new jobs, has been modified to mean an occupation that resembles in every relevant respect the occupation for which the EB petition was originally granted. “Similar occupational classification” is now defined as an occupation that shares essential qualities or has a marked resemblance or likeness with the original occupation. This guidance is similar to what agency memoranda have already stated.

Employment eligibility verification regulations are amended to authorize employers to accept as proof of employment eligibility Form I-797C and also state that the original employment authorization document is automatically extended for up to 180 days. This is a new rule and will help employers.

Background

The US limits the number of employment-based immigrants annually, by both visa category and country of birth. The quota allocation set in 1990 has never been increased. The annual supply for most categories and countries of birth seems sufficient to prevent lengthy waiting periods; the greatest source of delay are USCIS and Department of Labor (DOL) agency processing times.

The most significant exceptions are for immigrants born in India and mainland China. So many employment-based immigrants born in those two countries are in the queue that waiting periods of for most immigrant visa categories now are many years.

Employer-sponsored EB visas tend to be for specific jobs, at specific work sites, with stated duties and compensation. In general, sponsoring employers and immigrant workers must intend after immigration is complete to work in the same job at the same work site with the same duties for the same (or similar) compensation.

Congress addressed this problem in the American Competitiveness in the 21st Century Act of 2000 (AC21). The USCIS (and its predecessor, the Immigration and Naturalization Service) issued implementing policy guidance, which has been clarified and revised over the years.

The lengthy processing delays were also a problem for H1B professional workers, since there is normally a limit of only six years of status. AC21 provided for extensions beyond the six-year limit.

The EB1 immigrant visa category includes individuals of extraordinary ability, outstanding professors and researchers, and multinational managers and executives. The EB2 category is for professionals with advanced degrees and individuals with exceptional ability. The EB3 category is for professionals and skilled workers, while the EB3W category is for other workers in short supply.

Read the full text of the new regulations here.

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Important new regulations for immigrant workers

UK Employment Law Round Up, Volume 1, Issue 10 – 2016


UK Employment Law Round-up

In this issue we look at recent case law decisions which have provided a useful reminder of the position when dealing with contracts tainted by illegality and taking prior disciplinary warnings into account. We also bring you up to date with the latest thoughts on calculating holiday pay, and the scope of ACAS Early Conciliation certificates. We review the new judicial assessment procedure in the employment tribunal, along with proposals to inspect corporate governance and to ask employers to disclose employed foreign nationals.

Read the full newsletter here.

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UK Employment Law Round Up, Volume 1, Issue 10 – 2016

US green card availability to increase beginning October 1

Effective October 1, 2016, green cards will become more readily available for most people immigrating to the United States on employment-based (EB) immigrant visa categories.

The US State Department announced in the October 2016 edition of its Visa Bulletin that the agency is processing requests under the EB1 category for all countries of birth, effective October 1. This category includes aliens of extraordinary ability, outstanding professors and researchers, and multinational managers and executives, regardless of place of birth. During the summer, the agency reported a lengthy backlog for EB1 immigrants born in mainland China and India.

The EB2 category—for professionals with an advanced degree and aliens of exceptional ability—is also immediately available, except for individuals born in mainland China and India, for whom the category is backlogged to February 15, 2012, and January 15, 2007, respectively.

The EB3 category—for professionals and skilled workers—has limited available for all places of birth. That said, the backlog for most places is to June 1, 2016, and it is not likely to slow the process of immigration, since the Department of Labor generally takes more than four months to grant the alien employment certification application, often referred to as PERM, longer and that is a prerequisite for EB3 immigration.

The EB5 category—for investors—is currently available for all places of birth except mainland China, which continues to be where the majority of EB5 immigrants are born. EB5 is unavailable for China-born investors in projects in Regional Centers, while EB5 is available to China-born investors in non-Regional Center projects who have I-526 immigrant petition receipt dates on or before February 22, 2014.

There is an annual limited supply of immigrant visas in all EB categories that is replenished effective October 1, the first day of the new fiscal year. In categories where the annual demand tends to be greater than the limited supply, the Visa Bulletins issued for October through April often show the most movement. There is often more movement in the dates for individuals born in mainland China and India during these months. The EB1 and EB5 dates that have improved so much since the September 2016 Visa Bulletin are likely to retrogress once again later in the fiscal year, but the State Department did not release a prediction as to when or by how much.

The full text of the October 2016 Visa Bulletin can be found here.

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US green card availability to increase beginning October 1

Global Employment Lawyer – Volume 2, Issue 2 – Fall 2016

Brand-36-Global-Employment-Blog-Banner
What Happens If You Really “Break A Leg!?”

According to the Cambridge Idioms Dictionary, “Break a leg!” is something you say to wish someone good luck, especially before they perform in the theatre. Although there are many theories, the derivation of this term is unclear. The expression reflects a theatrical superstition that wishing a person “good luck” is actually considered bad luck. But is it really bad luck if you “break a leg?”

In this month’s edition, we feature articles from eight different countries Australia, Canada, China, France, Germany, Israel, UK and US. As always, we thank you for you readership.

Read the complete issue

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Global Employment Lawyer – Volume 2, Issue 2 – Fall 2016

Byron Burger: A cautionary tale?

Popular UK “posh” burger chain Byron Burger has been at the center of a media flurry over the past week or so, as 35 members of its staff were rounded up and arrested in a controversial immigration sting. The controversy largely relates to Byron’s involvement in the sting.

The UK Home Office confirmed that on the morning of 4 July 2016, immigration officers raided Byron branches and arrested 35 “migrant workers” of Albanian, Brazilian, Egyptian and Nepalese nationality. In the initial reports, a senior manager in one of the branches alleged that staff, some of whom had been employed by Byron for as long as four years, had been falsely duped by Byron into attending a health and safety meeting at 9:30 a.m., when immigration officials quickly arrived and started to interview people.

Byron has confirmed that it facilitated the raid at the Home Office’s request but has refused to respond to the claims that it set up the staff meetings on false pretenses. Sometimes silence speaks a thousand words, as they say.

As such, in amongst the few messages of support for Byron, the critics have shouted louder, calling for a boycott of the chain. Two London branches have already been targeted in the backlash, where activists went so far as to release cockroaches and locusts into the restaurants, forcing them to be closed to customers.

But what are the rights and wrongs of this incident? First, the Home Office has acknowledged that Byron complied with its legal obligations, in particular its obligation to carry out “right to work” checks. The Home Office has issued guidance on what checks UK employers need to carry out on new workers (https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/536953/An_Employer_s_guide_to_right_to_work_checks_-_July_16.pdf). Provided that an employer has carried out the appropriate checks, it will have a statutory excuse against liability for a civil penalty if it later comes to light that any worker has been working illegally in the UK. Employers must therefore ensure that the necessary checks are carried out, as the penalty for failure to do so (up to £20,000 for each illegal worker) could be substantial.

The issue with the Byron workers is that, in the course of its own investigation, the Home Office identified that those workers at the center of the alleged immigration breaches had provided false or counterfeit documentation as proof of their right to work in the UK. The Home Office then made a specific request to Byron to assist it with its investigation, which Byron did.

Perhaps, then, the PR nightmare that is the Byron story should be treated as a cautionary tale of how not to assist in a Home Office investigation. The recent trend seems to show that the Home Office is really cracking down on illegal workers and, accordingly, Home Office investigations are likely to become a live issue for a number of employers. Employers need to balance their legal obligations against their more human responsibilities to their staff.

No one is condoning illegal working or the falsification of documentation. However, arguably, if Byron had dealt with the issue more sensitively and compassionately, it could have mitigated the negative press it received. In an era when people have the world at their fingertips, consumers are calling out to see the human face of business.

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Byron Burger: A cautionary tale?

Tax consequences for multinationals sending employees to Canada

Multinational corporations sending employees to foreign countries on business must be alert to the legal responsibilities that can arise from such transfers. Dentons partner Emmanuel Sala clarifies the Canadian and Quebec fiscal rules and mechanisms that govern US parent corporations with US employees employed in Canada. His article covers both Canadian federal and Quebec provincial payroll tax obligations. Regarding Canadian federal tax obligations, Emmanuel notes that if a US parent corporation is determined to have a “permanent establishment” (PE) in Canada, business profits attributable to the PE would be subject to Canadian federal income tax and various forms of tax relief would become unavailable. He provides an in-depth review of the most common situations that might give rise to a PE determination, including fixed-base, agency, construction-site and service. Emmanuel also discusses the possibility of implementing secondment arrangements to mitigate the risk of a PE determination.

Click to read article.

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Tax consequences for multinationals sending employees to Canada

New UK penalties for unauthorized foreign workers and their employers starting July 12, 2016

Effective today, July 12, 2016, employers found guilty of “knowingly” employing unauthorized foreign workers in the UK may face an increased prison term, and unauthorized foreign workers will be subject to criminal liability. This results from provisions of the Immigration Act 2016 which are aimed at further deterring workers who do not have the legal right to work in the UK from entering the nation. Provisions of the Immigration Act 2016, which take effect today, are slated to be implemented in stages over the coming months and while Brexit will certainly have implications for UK immigration law in the long-term, in the short-term our concern is with the provisions that begin to take effect today, which are as follows:

There will be an increase in the criminal penalties that may be applied to employers who employ illegal workers.

  • It is already a crime to knowingly employ an illegal worker, the penalty for which has been a fine of up to £20,000 and a prison term of up to two years. While the level of the fine remains the same under the 2016 Act, the maximum sentence upon conviction has been increased to five years in prison from the current two. In addition, experience has shown that proving that an employer knew that an employee was working illegally can be difficult. Therefore, beginning today an employer will be guilty of this criminal offence if the employer has reasonable cause to believe that an employee was working illegally. It is no longer necessary to prove that the employer actually knew this; only that he should have known it in view of the circumstances.

Illegal working will become a criminal offence.

  • Prior to today, the sanction applicable for employees guilty of working illegally is deportation, and a record of the illegality became part of the person’s immigration file. From today, working illegally will be a criminal offence subject to a sanction of up to six months in prison and/or a potentially unlimited fine. As working illegally is now a crime, any proceeds from working illegally also be subject to seizure as proceeds of crime. This provision has caused particular concern among certain human rights groups who have argued that it may lead to illegal workers feeling unable to speak out against exploitation for fear of themselves being criminally charged.

While UK employers should already be undertaking appropriate right-to-work checks, the stricter provisions that take effect today should serve as a reminder to make sure that current right-to-work checking processes are as robust as they can be.

The ever-changing landscape of UK immigration law has never been more fluid or uncertain than it will be over the coming months. We will keep you updated as matters develop.

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New UK penalties for unauthorized foreign workers and their employers starting July 12, 2016

Brexit, a global perspective in the immediate aftermath…

Following the UK’s EU referendum, the UK has a clear mandate for exit from the European Union. There is doubt, however, about what the future may look like for the UK and its relationship with Europe or the rest of the world. It is likely that there will now be a prolonged transition period, with the next UK government needing time to plan, prepare and negotiate the UK’s future.

Some key thoughts in the meantime:

  • For UK nationals living elsewhere in the EU, and EU nationals living in the UK, there will be no immediate change. Protection of citizens already established in those states is likely to form part of negotiations between the UK and the EU.
  • Free movement of EU citizens is expected to be negotiated as a condition of any trade deal between the UK and the EU. However, if ultimately the UK decides to no longer share in the EU’s right to free movement of labor, then citizens of other member states will not enjoy an automatic right to work, travel and live in the UK. Similarly, UK citizens will not enjoy EU citizenship rights. Prior to the referendum, the UK had already made it more difficult for EU citizens to gain permanent residence in the UK. However, the UK government will be aware that imposing fundamental limits on the free movement of labor at this time could make the UK a much less attractive destination for international businesses and skilled and educated migrants.
  • Nationals of other countries working in the UK, such as from the US, should see no imminent changes. The UK government is saying that the UK is open for business on a global scale. This is an opportunity to grow and strengthen relationships across the globe. At present the UK is not seeing any large-scale recruitment freezes or job losses.
  • Trade and investment are good for the UK’s employment growth and stability. The UK government will want to keep a level playing field with the UK’s European counterparts, and look for opportunities across the globe, at this crucial time. One key area where it will want to display its good practice is data protection. Realistically, a trade deal between the UK and the EU may also mean the UK continuing to be subject to key EU legislation.
  • The UK has a body of homegrown legislation protecting UK employment law rights. The fundamental right that exists in the UK to claim unfair dismissal will not be affected by its withdrawal from Europe. The UK also had discrimination laws in place before its ascension to the EU; EU aims and legislation are so established in UK good employment practice that they are likely to remain fundamentally the same for now. While moving to a US-style system, where employees receive lower overall protection, is possible, it is unlikely in the short term, given the broader cultural change needed to accept the US norms.
  • Subject to the above, EU rights, or improvements in those rights, in the UK may eventually be diminished or lost. However, it seems likely that grand proposals will eventually be reduced to a few smaller, less significant changes. If the UK is not required to keep EU legislation in these areas as part of a broader deal, the government may review and make changes to the current position in a number of areas, such as: (i) harmonization of terms following a TUPE transfer, (ii) limits on bankers’ bonuses, (iii) working time controls, (iv) collective redundancy consultation, (v) agency workers’ rights and (vi) the absence of a cap on discrimination awards.
  • If the UK is no longer subject to the jurisdiction of the European Court of Justice, UK case law may develop in a slightly different direction. This may mean a gradual parting of ways between the UK and EU states.

On balance, it is most likely that the next government will want to preserve the status quo, at least in the short term, and wait for the dust to settle before looking for opportunities to make more fundamental and valuable changes. Dentons will keep you posted as the picture evolves.

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Brexit, a global perspective in the immediate aftermath…