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‘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 chlamydia and pregnancy – what you need to know | ohnerezeptfreikaufchlamydia in pregnancy treating chlamydia during pregnancy. … to treat chlamydia in pregnancy, common antibiotics such as azithromycin, … 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

Strategies for complying with anti-corruption rules in Saudi Arabia


1. Introduction

Government contracting can be highly rewarding in Saudi Arabia, given the wide-ranging opportunities in defense, education and healthcare. At the same time, however, companies doing business there need to be mindful of the anti-corruption rules and practices of not only their home jurisdictions, but also the Saudi legal framework. Moreover, investors must be conscious of the particularities of Saudi culture and politics, where the head of a company with whom they are negotiating may be a member of the Royal Family, or where an intermediary in a government contract may be one of ‘the monarchy’s thousands of princes. Investors doing business in Saudi Arabia must understand this local context in order to avoid the unwitting payment to a “government official.”

2. Recent steps towards eliminating corruption

The need to understand Saudi Arabia’s anti-corruption laws has become especially important in recent years, as that nation has pressed ahead with a campaign aimed at eliminating and punishing corruption and bribery at all government levels. Among the measures taken to realize this goal were the formation of the Violations Review Committee of the Government Tenders and Procurement http://www.achaten-suisse.com/ Law, establishment of the National Anti-Corruption Commission and passage of the Combating Bribery Law.

2.1 Combating Bribery Law

The Combating Bribery Law (CBL) seeks to counter both the offering, soliciting and receiving of bribes among Saudi public officials in Saudi Arabia. Under the CBL, a public official is deemed to have received a bribe if the official has solicited, accepted or received, for himself or a third party, a promise or gift in exchange for:

  • The performance of any of his duties;
  • Abstaining from carrying out his duties;
  • Violating the functions of his duties;
  • Performing or abstaining from his duties as a result of a request, recommendation or mediation;
  • Exercising real or alleged influence to obtain from any public authority any act, decision, contract, license, job, service or other benefit or advantage; or
  • Lobbying a governmental authority on the basis of his position.

A “public official” is broadly defined as any of the following:

  • A person employed by the State or any of the public administrative authorities, regardless of whether the employment is permanent or temporary;
  • An arbitrator or expert appointed by the Government or any entity having judicial specialization;
  • A person assigned by a governmental authority or any other administrative authority to perform a specific assignment;
  • A person employed by a joint stock company or company in which the State has a holding; and
  • Chairmen and directors of companies provided for in the preceding paragraph (Art. 8.5 CBL).

Foreign investors attempting to ascertain whether their Saudi counterpart is deemed to be a “public official” under the CBL may encounter difficulty. For example, the chairman and directors of a company in which the State “has a holding” are deemed to be public officials, but determining whether a company is partially or wholly publicly owned is not as straightforward. It is easy to determine when contracting with large, listed companies, such as Saudi Arabia Basic Industries Corporation (SABIC), whose public records disclose the Saudi government’s 70 percent shareholding, but it is more complex when contracting with smaller, unlisted companies, particularly if the only way to get a complete picture of ownership is by piecing together several dozen formational and governing documents published over many years, or when one has to sort out a complex web of company and subsidiary company structures.

2.2  National Anti-Corruption Commission

The National Anti-Corruption Commission (Nazaha or the Commission) has jurisdiction over all governmental bodies and agents, as well as over private businesses where the Kingdom owns 25 percent or more of its capital. All governmental bodies, as well as all businesses that are 25 percent Kingdom-owned, are required to disclose the financial details of their projects, contracts and general operations to the Commission, which is charged with:

  • Receiving and analyzing the reports and statistics from entities falling under ‘its jurisdiction in order to identify areas where corruption could take place and implement preventative measures.
  • Receiving complaints of corruption from citizens and communicating “detected violations” to investigative bodies that fall within its jurisdiction, such as the Minister of Health, the Minister of Municipal and Rural Affairs, the Minister of Education and the Ministry of Water and Electricity.
  • Supervising the investigations and advising the Saudi authorities to take precautionary measures against persons guilty of engaging in corruption.

The Commission has undertaken several investigations into prominent government contracts, including a deal between the Saudi Railways Organization and a Spanish train manufacturer and a contract between a multinational construction company and a hospital in Mecca.

The Commission has published various ads calling on Saudi citizens and residents to report acts of corruption. The ads state that “keeping silent and just watching administrative and financial corruption makes you part of this corruption.”

2.3 Violations Review Committee

Article 78 of the Government Tenders and Procurement Law (the Procurement Law) directs the Minister of Finance to form a committee of advisors comprised of at least three members from relevant government authorities, including a legal advisor and a technical expert, to review compensation claims submitted by contractors and suppliers as well as reports of deceit, fraud and manipulation, in addition to decisions of withdrawal of works. This committee is charged with hearing statements of grievant contractors and suppliers and those accused of fraud or other violations, including their defenses and views of the government authorities. If a contractor or supplier prevails in his claims, the committee must issue a decision awarding compensation.

3. Recommended practices

A foreign company or investor doing business in Saudi Arabia can avoid running afoul of anti-bribery laws by implementing the following practices regarding government contracting:

  • Thoroughly review the constitutional documentation of companies and agents with which whom are doing business. If even a single share of a Saudi company is owned by the Saudi government or by a public institution, the CBL will apply and the individual with whom you are contracting may be deemed to be a public official.
  • Conduct a thorough due diligence before engaging an agent. Review the agent’s commercial registration certificate and confirm the identities of each of the agent’s owners, managers and directors to confirm that none are governmental officials. You should proceed with caution if your research discloses that the agent has family or business relationships with key governmental officials. Similarly a governmental official’s insistence on using the particular agent should, in the absence of legitimate reasons, raise a red flag.
  • Before executing agency agreements, ensure that local agents provide written confirmation that they do not employ or make payments to public officials and that their anti-bribery and corruption policies and practices are at least as rigorous as ‘your firm’s own policy and practices. Such measures will not only minimize the risk of prosecution for an offense, but will also provide the affirmative defense that you had adequate procedures in place to prevent persons associated with your company from undertaking bribery.
  • Include adequate warranties in agency contracts that impose a burden on local agents to comply with anti-corruption laws. Parties may wish to incorporate language such as the following:
    • The Agent warrants that neither it, nor any of its employers, officers, directors, agents, distributors, representatives or any other individual otherwise under the Agent’s control shall pay, offer, promise to pay (or authorize to pay or offer money or anything else of value to any foreign official (i.e., any officer or employee of a foreign government or any department, agency or instrumentality thereof) in order to wrongfully influence the official to misuse his official position in order to obtain or retain business.

By implementing the above recommendations, investors can focus on the business in which they have developed their expertise, and reap the benefits of government contracting in Saudi Arabia, without running afoul of anti-corruption laws and regulations.

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Strategies for complying with anti-corruption rules in Saudi Arabia

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 cheap levitra medicine 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