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Supreme Court allows travel ban

The US Supreme Court partially lifted preliminary injunctions that had blocked President Trump’s revised executive order suspending US entry by foreign nationals from six, rather than the previous seven, mostly Muslim countries. However, the Court carved out an exception for foreign nationals who have a “bona fide relationship” with a person or entity in the United States,” raising such questions as “What is a bona fide relationship?” and “What is an entity in the US?” that will likely be the subject of further court action.

Supreme Court allows travel ban

The US Supreme Court partially lifted preliminary injunctions that had blocked Executive Order No. 13780, signed by President Donald J. Trump in March 2017 (EO-2), banning travel to the US for citizens of six countries. The Supreme Court scheduled a full hearing of the case for October 2017.

“Bona fide relationship” exception

The Supreme Court found that the preliminary injunction shall remain in place and the travel ban will not impact foreign nationals who have a “bona fide relationship with a person or entity in the United States.” Further, refugees will continue to be allowed to enter the US, subject to the 50,000 person cap on refugee admissions, except that the cap cannot be used as a means to bar an individual with a bona fide relationship with the US.

The Supreme Court defined “bona fide relationship” as either (with respect to individuals) “a close familial relationship” or (with respect to entities), a relationship that is “formal, documented, and formed in the ordinary course.” What constitutes a sufficiently close familial relationship is likely to be the subject of further court action.

As for what constitutes a sufficiently established relationship with an entity, the Supreme Court provided three examples:

  • Students admitted to attend university in the US
  • Workers who have accepted an offer of employment from a US company
  • Lecturers invited to the US for a speaking engagement

The travel ban will apply to individuals whose relationship with an entity was formed to purposefully circumvent the ban.

It is worth noting that EO-2 in its original form applies only to the new issuance of visas, and not the US entry of individuals who have already been issued visas, green cards or asylum/refugee status.

Also, there is a chance that the Supreme Court will not have to hear the case in its entirety in October. If EO-2 goes into effect as scheduled by the Trump administration, the 90 day temporary ban will conclude at the end of September, several days before the Supreme Court begins its term. This would, then, remove any controversy over the legality of that piece of the order.

Citizens from these countries impacted

Citizens from the following countries are detrimentally impacted:

  • Iran
  • Libya
  • Somalia
  • Sudan
  • Syria
  • Yemen

EO-2 does not apply to citizens of other countries who merely visited the listed countries. Further, it does not apply to citizens of these six countries who are dual citizens and use the passport of a non-affected country to apply for a visa and enter the US.

When does the ban start?

In a June 14 memorandum, President Trump directed the Department of Homeland Security (DHS), the Department of State and other relevant agencies to wait 72 hours from the release of the Supreme Court decision before banning refugees and travelers from the six affected countries to “ensure an orderly and proper implementation” of the changes.

Background

During his first six months in office, President Trump signed two travel ban executive orders. The first, Executive Order 13797 (EO-1), issued on January 27, 2017, took a number of steps, including:

  • Suspending for 90 days the entry of foreign nationals from seven mostly Muslim countries identified as presenting heightened concerns about terrorism and travel in the US [1]
  • Suspending for 120 days the United States Refugee Admissions Program (USRAP), during which an adequacy review is to be undertaken
  • Reducing to 50,000 per year the total number of refugees that could be admitted to the United States, starting in fiscal year 2017
  • Suspending indefinitely admission of refugees from Syria

EO-1 was quickly blocked  by the US District Court for the Western District of Washington, which issued a nationwide temporary restraining order. The US Court of Appeals for the Ninth Circuit denied an emergency motion by the US government to stay the district court order pending appeal. In response, the government rescinded EO-1 and went back to the drawing board.

On March 6, 2017, President Trump signed EO-2, which closely mirrored the directives in EO-1, but was intended to correct some its perceived errors, including:

  • Reducing the reach of the 90-day temporary suspension of entry to foreign nationals from six (rather than seven) mostly Muslim countries, with Iraq no longer included [2] and with a case-by-case waiver of the entry bar.
  • Directing the Secretary of DHS to undertake a 20-day global review of whether foreign governments provide sufficient information about nationals applying for visas.

EO-2 was immediately challenged in court, which challenges led to prompt nationwide preliminary injunctions by the US District Court for the District of Maryland and (as stated above) the Western District of Washington, which were then appealed to the US Courts of Appeal for the Fourth and Ninth Circuits, respectively.

The Fourth Circuit concluded that the EO-2 ban on entry from the six named countries was primarily motivated by religious considerations and, as such, violated the First Amendment. In that case, the preliminary injunction only applied to the suspension of entry of foreign nationals from particular countries. The 120-day ban on USRAP and the quota on total refugee immigration would still be in force.

The Ninth Circuit, meanwhile, found that EO-2 exceeded the president’s authority under the Immigration and Nationality Act (INA) and, on that basis, upheld the injunction with regard to the entirety of EO-2.

The federal government appealed both decision to the Supreme Court, certiorari was granted, and the two cases were consolidated and oral argument scheduled for October Term 2017. The Supreme Court, meanwhile, heard the government’s application to stay the aforementioned injunctions.

Dentons will continue to issue further information as it becomes available.

[1] Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen

[2] Iran, Libya, Somalia, Sudan, Syria and Yemen

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Supreme Court allows travel ban

Criminal record check for Tier 2 UK migrants

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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

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

Disclosing bribery conduct not an easy decision for US companies

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July 8, 2016

Recent non-prosecution agreements between the US Securities and Exchange Commission and two companies—Akamai Technologies, Inc. and Nortek, Inc.—in matters involving FCPA books and records violations stemming from conduct that occurred in China, coupled with corresponding decisions by the US Department of Justice to close its investigations into these two matters, provide some limited insight into how to secure similar resolutions of future investigations. However, the questions that remain regarding the benefits of voluntary disclosure of an organization’s misconduct leave things clear as mud.

Should a US company faced with evidence of bribery by an employee or other agent self report in this post-Yates Memorandum/post-FCPA Pilot Program era? Read more in this client alert by Dentons white collar partners Stephen L. Hill, Michelle J. Shapiro and Brian O’Bleness.

Click to read complete article.

 

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Disclosing bribery conduct not an easy decision for US companies

Global Employment Lawyer – Volume 2, Issue 1 – November/December 2015

Global Employment Lawyer - Nov. & Dec. 2015

 

Look out, beware—it’s holiday party season!

For many companies, having an annual holiday party is part of the culture and tradition of the organization. Company holiday parties provide employees with an opportunity to socialize and celebrate together, and can certainly help boost morale and engender loyalty. At the same time, however, there are risks lurking. Depending on the type of party and the part of the world you are having it in, there are different types of risks that can come into play—and we have some tips to mitigate them.

What’s not risky? Keeping up to date on the hot topics in employment and labor issues from around the globe which could affect your business goals in those regions.

From all of your friends at Dentons, we wish you a happy, healthy and prosperous holiday season!

Read the complete issue

 

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Global Employment Lawyer – Volume 2, Issue 1 – November/December 2015

New Visa Bulletin updates green card processing timetable; impacts the dynamic between US employers and immigrant workers

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Every month, the US State Department publishes the Visa Bulletin, an online publication that summarizes the availability of US green cards. The Visa Bulletin indicates when green cards subject to statutory quotas are available for issuance to prospective immigrants based on the type of green card being pursued, the alien’s country of birth and the alien’s “priority date” (the date that a permanent labor certification application or an immigrant petition was filed on the alien’s behalf).

On September 9, 2015, the State Department announced new procedures for determining green card availability.  These new procedures go into effect on October 1, 2015. The Visa Bulletin will now include two critical dates: a “filing date,” which determines when individuals may file their green card applications, and a “final action” date, which reflects when the USCIS or a consulate may make a decision on the applications. This change will allow aliens to file green card applications (including applications for Employment Authorization Documents or “EADs”) earlier than before, although it will not expedite the actual issuance of their green cards which is based on quotas established by law.  For more information about this development, please see the USCIS website.

For example, the October 2015 Visa Bulletin’s “Application Final Action Dates for Employment-based Preference Cases” shows that a decision to approve a green card may be made in October to an Indian-born advanced degree professional with an employment-based second preference priority/filing date of May 1, 2005.  That same Bulletin shows that the USCIS will accept applications to adjust status to permanent resident (I-485) for this same type of individual, but with a priority date of July 1, 2011.

This is a very significant change that is likely to benefit many.  This change will allow many employment-based immigrants and their accompanying family members to obtain EAD and advance parole (AP) international travel authorization card many years sooner.  Allowing spouses and children to work is an important benefit for many families.  This change will also give employers the option to rely on the EAD/AP card to employ the foreign professional without the cost and recordkeeping required to extend their nonimmigrant visa status, which represents a significant cost savings.

Last, and most certainly not least, this change will impact the ability of immigrant workers to change jobs faster and with greater ease.  In general, most employers and immigrant workers must intend to do the job originally designated when the employer originally applied to the Department of Labor for the alien employment certification. This limits the ability of employers and immigrants to make career changes, both with the same employer (e.g., promotions, demotions, change of job site) and for a change of employer (e.g., layoffs, mergers and acquisitions, new job opportunities).  Back in 2000, US law was changed to allow immigrant workers to continue to immigrate notwithstanding such a change, but only if certain requirements are met.  A key requirement is that the I-485 must be pending for at 180 days or more (additional details are available from the USCIS).

This change in how the US government uses the Visa Bulletin will make it much easier for immigrant workers to change jobs faster, giving them greater security.  It will likely have a detrimental impact on US employers seeking to retain these workers, while at the same time aiding US employers seeking to recruit these workers.  The result will somewhat change the dynamic between US employers and immigrant workers.

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New Visa Bulletin updates green card processing timetable; impacts the dynamic between US employers and immigrant workers

Global Employment Lawyer – Issue 3

Summer 2015

Global Employment Lawyer

The third edition of the Global Employment Lawyer provides you with practical content to keep you current on developments that effect your business goals around the globe. Our lawyers look at questions of religious accommodation as well as the unpleasant income tax consequences of temporary visas in the US; managing “difficult employees” in Canada; reducing workforce due to redundancies in China; imminent changes to Polish labor law; recruitment of non-resident foreign workers in Angola; employing foreign workers in Israel and whistleblowing in the UK.

Read more

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Global Employment Lawyer – Issue 3

Dentons Employment and Labor seminar series

London-Wallpaper

Managing employment challenges internationally

Dentons’ global Employment and Labor group would like to invite you to our global seminar on Tuesday, June 30, 2015, hosted by our London office. Our international panel, moderated by partners Michael Bronstein (London) and Brian Cousin (New York), will cover employment law issues across a range of jurisdictions.

Our global panel will discuss:

  • Global employment law – traps for the unwary entering new markets Highlighting key issues for employers, covering:
    • US, by Sandy McCandless
    • Canada, by Lindsay Mullen
    • France, by Katell Déniel-Allioux
    • Germany, by Isabelle Moog
    • Poland, by Aleksandra Minkowicz-Flanek
    • A particular focus on China, by Anderson Zhang (大成)
  • Whistleblowing in the global workplace Examining common themes and best practices internationally:
    • UK, by Ryan Carthew
    • US, by Neil Capobianco
    • Canada, by Jillian Frank
    • France, by Katell Déniel-Allioux
    • Poland, by Aleksandra Minkowicz-Flanek.

The panel discussion will be followed by a cocktail reception.

For those unable to attend, we will be streaming a live webinar to clients and contacts in all jurisdictions.

Event schedule

4 p.m. BST Registration
4:30–6:00 p.m. BST Global employment law – traps for the unwary entering new markets Our panel will highlight key issues for employers, covering the US, Canada and various countries in Europe, as well as a particular focus on China.
6–6:15 p.m. BST Networking break
6:15–7:30 p.m. BST Whistleblowing in the global workplace – policy and practice for employers Our panel will examine common themes and best practices internationally.
7:30–8:30 p.m. BST Cocktail reception

 

We hope you will be able to attend.

This seminar carries 2.5 UK continuing professional development (CPD) points.

Register Now

Dentons Employment and Labor seminar series

LMIA Exempt Work Permit Applications – New Procedure

Effective February 21, 2015, there will be changes to the work permit application process for categories that are currently exempt from obtaining a Labour Market Impact Assessment (LMIA) and employer specific. The changes follow amendments to the Immigration and Refugee Protection Regulations focused on employer compliance in the employment of foreign workers.

As a result of the regulatory amendments, most work permit applications will now require a 2 step process:

Step 1. Either an LMIA application to Service Canada OR a new procedure involving an application form to be submitted to Citizenship and Immigration Canada (CIC) for LMIA exempt categories (Form IMM 5802 – Offer of Employment to a Labour Market Impact Assessment Exempt Foreign National) with an additional $230 employer compliance fee.

Step 2. Work permit application.

This new procedure is applicable to all LMIA exempt work permits that are employer specific including work permit extension applications, visa office applications, port of entry applications. The new procedure will apply to most LMIA exempt work permit applications including work permits under NAFTA, intra-company transfers, PNPs, signficant benefit, etc. (Note: step 1 is not required for open work permit applicants, however, open work permits will be subject to an additional $100 privilege fee).

The new IMM 5802 Form and online fee payment (through their current CIC online fee payment site) will be available on Wednesday, February 18, 2015. The new form will require general corporate information about the employer (including contact information), the terms of the offer, information supporting the LMIA exemption and an attestation by the employer on the terms of the offer of employment.

Third party representatives will be able to submit the IMM 5802 Form for employers as long as the employer contact has signed a Use of Rep form (IMM 5476). The process requires that the IMM 5802 be completed by employers and submitted with the $230 payment to CIC.

Once the IMM 5802 Form is submitted to CIC, a confirmation will be generated by CIC. This confirmation along with a copy of the IMM 5802 Form and the $230 fee payment must be provided to the foreign worker to make an application for a work permit (i.e. at the visa office, online or at POE etc.)

There is not an advance “adjudication process” for the IMM 5802 Form before the work permit application is processed. For example, although proof that the IMM 5802 Form was submitted is required for an applicant to apply for a work permit at the POE, it was indicated that this could be done 5 minutes prior to arriving at the port of entry, as long as the applicant had a copy of the submitted IMM 5802 Form and payment confirmation with their work permit application.

There will also be a process for receiving a refund of the $230 employer compliance fee (and $100 privilege fee) if a work permit application is refused

More information will be posted by CIC this week and the link to the CIC site can be found at: http://www.cic.gc.ca/english/resources/tools/temp/work/admissibility/specific.asp

If you have any questions, please do not hesitate to contact us.

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LMIA Exempt Work Permit Applications – New Procedure

New year, new employment issues

Global_Employment_Lawyer_Winter_2015

The mission of Dentons’ Global Employment Lawyer is to keep you informed of significant trends and developments in the area of global employment and labor law, wherever they take place, so that you are in a better position to make educated business decisions. Thank you for helping to make the first edition of the Global Employment Lawyer a huge success!

In this second edition of the Dentons’ Global Employment Lawyer, our lawyers examine:

  • Options for dealing with employee layoffs in China for foreign investors
  • Canada’s recent decision to require employee accommodation for childcare responsibilities
  • Restrictions under Polish law which can affect employment settlements
  • Romania’s recent decisions effecting union standing and disciplinary actions against employees
  • Specific ambiguities in Egyptian labor law on financial entitlements, employment terminations and collective dispute resolution mechanisms
  • UK’s recent employment decision potentially increasing the amount of holiday pay owed to certain overtime workers
  • Current and pending changes to US employment regulations for 2015, including laws affecting paid sick leave, anti discrimination and bullying, social media, severance and more
  • US IRS regulation Section 457A’s effect on deferred compensation for US taxpayers who work for non-US entities
  • Recap of Dentons’ client seminar on critical employment issues for multinationals

Read the complete issue

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New year, new employment issues