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EU family members’ rights

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

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

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

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

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

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EU family members’ rights

UK General Election–immigration manifesto

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

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

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

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

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

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UK General Election–immigration manifesto

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

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

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

We hope you are able to join the program.

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

USCIS begins return of unselected H-1B petitions

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

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

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

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

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USCIS begins return of unselected H-1B petitions

‘Hire American’ executive order

End of days—or much ado about nothing?

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

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

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

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

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

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

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

Enforcement

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

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

We will monitor agency actions carefully to see how this develops, but employers are well advised to review the immigration-related records keeping and compliance systems. Annual affirmative audits and trainings are best practices that the Immigration and Customs Enforcement agency looks to when considering whether to reduce fines and penalties for violators. Employers are well-advised to consult with counsel on what steps can be taken now, as well as expected changes that can be planned for.

H-1B visa random selection and wages

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

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

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

From the backgrounder:

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

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

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

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

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‘Hire American’ executive order

New H-1Bs for 2018 are gone

 

US employer demand once again greater than limited supply

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

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

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

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

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

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

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

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

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New H-1Bs for 2018 are gone

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

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

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

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

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

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

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

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

The information sheet explains:

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

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

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

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

Form EEA – permanent residence applications

Applicants use Form EEA (PR) to apply for, replace or renew a document certifying permanent residence or a permanent residence card.

On April 12, 2017, the Home Office updated its guidance notes detailing what an applicant should send with his or her application. See here for full details. The guidance notes now include a table of examples of people in different circumstances. This acts as a helpful guide for applicants thinking about the evidence they might need to provide specific to their own circumstances.

The documents and evidence sent must be originals. The Home Office makes an exception for online applicants who have their passports verified, copied and sent to the Home Office by a local authority participating in the European Passport Return Service. All documents not in English or Welsh must be accompanied by an official English translation provided by a qualified translator.

Dentons will issue further information as it becomes available.

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Form EEA – permanent residence applications

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

Travel ban executive order – the saga continues

The US Departments of State and Homeland Security both issued statements on February 6, 2017, confirming that the government has suspended the implementation of key provisions of President Trump’s travel ban on nationals from seven Muslim-majority countries, and that visas that had been provisionally revoked are now valid for travel and may be used, once again, to come to the US, subject to the normal laws and procedures that existed prior to the President Trump’s executive order dated January 27, 2017.

This action comes as a result of a Ninth Circuit Court of Appeals decision in State of Washington and State of Minnesota v. Trump, denying a US Department of Justice request for an immediate stay of a nationwide injunction granted by a US federal district court judge in Seattle in response to Washington State’s request for a temporary restraining order immediately halting implementation and enforcement of the immigration ban.

The EO initially barred the entry to the United States of lawful permanent residents with green cards, and imposes a 90-day suspension of admission for immigrant and nonimmigrant visa holders, and refugees and passport holders from the seven countries. Soon thereafter, the Department of State issued an urgent notice suspending visa issuance to citizens of those countries. The EO also suspended the resettlement of refugees from all countries to the US for 120 days, and bans Syrian refugees indefinitely.

Previous injunctions had been issued in federal courts in Massachusetts and New York. Those orders temporarily enjoined federal agencies from removing people with approved refugee applications, valid visas and the nationals from the seven Muslim countries. The Seattle court’s decision is the broadest and has the largest impact.

Citizens from these countries are impacted

Nationals from the following countries are detrimentally impacted:

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

The EO does not apply to citizens of other countries who merely visited the listed countries. Further, the US Customs and Border Protection Agency has stated that the EO does not apply to citizens of these seven countries, if they are dual citizens and use the passport of a non-affected country to enter the US.

Travel guidance

Nationals from the seven listed countries, including dual citizens traveling with the passport of another country and US permanent residents, may wish to delay travel to the US until the details of the implementation of the EO are more clear, even if they already hold a visa to enter the United States. If in the United States already, they may wish to defer departure as they may not be allowed to return or they may find themselves going through a more lengthy than usual secondary inspection on arrival in the US. There are also reports of airline personnel being understandably confused regarding the status of the EO, with resulting inconvenience to travelers.

Background

On February 4, President Trump tweeted the following about the Hon. James L. Robart, the district court judge who issued the nationwide order. “The opinion of this so-called judge, which essentially takes law-enforcement away from our country, is ridiculous and will be overturned!”

Criticism of the tweet and the EO was immediate and widespread. Senator Patrick Leahy (D-VT) said, “The President’s hostility toward the rule of law is not just embarrassing, it is dangerous. He seems intent on precipitating a constitutional crisis.” Senators John McCain (R-AZ) and Lindsey Graham (R-SC) said: “We fear this executive order will become a self-inflicted wound in the fight against terrorism.”

Broad media coverage of the confusion caused by the uncertainty surrounding the EO’s fate continues. Dentons continues to receive emails and calls from employers who are considering cancelling all travel for employees carrying passports from the impacted countries, including dual citizens and US lawful permanent residents. Similar concerns have been voiced by citizens of many countries that are not listed in the EO but are worried that their country might be next. Due to the reciprocal nature of diplomatic relations, it is likely that US passport holders traveling to the seven countries will experience similar difficulties upon their arrival. Iran, for its part, has said, it would stop US citizens entering the country in retaliation to Washington’s visa ban.

Dentons will issue further information as it becomes available.

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Travel ban executive order – the saga continues