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USCIS to require applicant’s signature for delivery of green card and EAD

Delivery of alien registration cards (popularly called green cards), employment authorization documents (EADs) and reentry permits will soon require the recipient to present valid photo identification at the time of delivery, with some exceptions.

The US Citizenship and Immigration Services (USCIS) announced on Friday, April 27, 2018, that the agency will soon start using the Signature Confirmation Restricted Delivery service from the US Postal Service. The stated goal is to increase “the security, integrity, and efficiency of document delivery” and provide “better tracking and accuracy of delivery information, improving service to applicants.” This new process applies to the delivery of secure documents, such as green cards, EAD cards and reentry permits. USCIS plans to first roll out the new process to secure documents that were returned as non-deliverable, and to subsequently expand use of signature confirmations to all deliveries of secure documents.

In general, applicants will have to present a valid ID to sign their documents upon delivery. USPS offers several alternatives, including designating another person to sign on the applicant’s behalf, authorizing the hotel or the apartment complex where the applicant resides to accept delivery, etc. Applicants can also sign up for Informed Delivery, an online service from USPS that provides delivery status notifications and allows for parcels to be held for in-person pickup at a USPS post office location.

This announcement comes less than a month after USCIS indicated that it would destroy such secure documents (green cards, EAD cards and travel booklets) after 60 days if returned as non-deliverable by USPS. These two recent announcements serve as a reminder that all foreign nationals are required to keep USCIS informed of their current address, and to report any change of address within 10 days of relocation by filing Form AR-11, either online or by post.

For more information, please contact your Dentons lawyer and for the full text of the agency’s press release can be found at the USCIS website.

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USCIS to require applicant’s signature for delivery of green card and EAD

The travails of the ‘Windrush generation’ and the lessons for EU nationals

UK Minister of State for Immigration Caroline Nokes has set out the government’s commitment to support the “Windrush generation,” immigrants who migrated legally from British colonies or former colonies in the Caribbean between 1948 and 1973. The term “Windrush” derives from the name of the ship, the Empire Windrush, that brought the first arrivals in Britain’s post-war drive to fill a labor shortage. The ship carried 492 passengers, many of them children, from the Commonwealth country of Jamaica. Under the British Nationality Act, they and thousands who followed after, enjoyed British citizenship and full rights of entry and settlement. In 1962, however, British law changed to end the automatic right of entry and, throughout the 1960s and 1970s, as the Caribbean colonies gained independence—and their people different citizenship—a series of British laws further tightened immigration controls.

The story of Caribbean-born Britons took an inauspicious turn in 2012. Changes to immigration law that required documentation to work, rent a property or access benefits, including healthcare, left people fearful about their status. As it turned out, their fears were justified. Recent reports in the British press about longtime legal residents of West Indian and Caribbean ancestry losing their jobs, being denied medical care, being evicted, and even detained and threatened with deportation because they could not prove that they had lived in the country since before 1973 produced a public outcry and, on April 17, 2018, an apology from Prime Minister Theresa May.

The current “hostile environment”—aimed at making it difficult for illegal immigrants to settle in the UK—has meant that many people living in the UK legally are being asked to document their right to stay in the UK when trying to access healthcare, applying for a job, opening a bank account, or renting a property, and some of the Windrush generation who arrived here as children are finding it difficult to do so because they have never had a need to update their passports and immigration documents.

Their plight, however, is not dissimilar to that of EU nationals, who must also think about what documentation they can produce to prove their right to remain in the UK. There are thousands of EU nationals who do not hold passports and/or do not have a paper trail to evidence their nationality or time spent in the UK. Without such documents, they will find it difficult to meet the requirements to apply for residency documentation confirming their status. Such EU nationals will feel the same level of anxiety and experience the same hostile environment that the Windrush generation are contending with. However, for EU nationals there’s the added pressure of having to complete their application within six months of December 31, 2020, being the end of the implementation period. Those who fail to do so enter uncharted territory, as there is no information at present on what will happen to EU nationals who haven’t obtained new residency documents.

Guy Verhofstadt, the European Union’s chief Brexit negotiator, identified this very issue when speaking to The Telegraph for an article that appeared on April 18 on how the UK government’s handling of its Windrush citizens has led to fears that EU nationals could face similar problems. Verhofstadt said, “This could be worrying for millions of EU citizens in the UK who may fear that they could face similar treatment after Brexit.” He added that he expects that MEPs will be looking for safeguards for their constituents.

The UK government has accepted that the Windrush citizens are entitled to reside in the UK and to access public services, and has asserted its commitment to working with any individuals who do not have documentation to prove their right to be in the UK. A new dedicated Home Office team will help such individuals gather the evidence necessary to prove that they have been living or working in the UK, and when such evidence is gathered, will endeavor to resolve cases within two weeks and at no cost to the applicant. Unfortunately, however, while the Brexit talks have gone more smoothly as of late, there is not the same commitment between the UK government and EU governments to help EU nationals. Given the current climate of uncertainty, we are advising EU nationals and employers of EU nationals on their best course of action.

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The travails of the ‘Windrush generation’ and the lessons for EU nationals

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

On February 28, the UK government announced that EU nationals who arrive in the UK after Brexit Day (scheduled for March 29, 2019), but before the end of the so-called “implementation” or “transition” period, will be able to stay permanently. This is a shift from the UK’s previous position that arrivals after Brexit Day would be entitled to remain on a temporary basis only and would become subject to immigration controls at the end of the transition period. While this announcement brings the UK closer to the EU’s stance on this matter, there are still some fundamental differences to be negotiated.

Overall this is positive news for employers, especially those who rely on EU talent, who will now have a longer period to build new talent pipelines to replace workers from the EU.

However, this concession may have come too late for some employers who have already lost valuable talent due to a general feeling of uncertainty among EU nationals and negativity around citizens’ rights. It remains to be seen whether this latest shift in negotiating position will be enough to convince EU nationals that the UK remains an attractive destination to work and build a career.

The UK’s original position was partly based on an assumption that EU nationals would rush to move to the UK before a given cut-off date. The dramatic fall in net migration from the EU since the referendum shows that there was never a risk of this happening.

EU nationals who arrive in the UK during the transition period will be subject to a registration system in line with what is already common practice in other EU member states. After accumulating five years’ residence in the UK an EU national will be able to apply for indefinite leave to remain (ILR), which will allow them to live in the UK permanently.

It should be noted that ILR is not the same as “settled status,” which EU nationals who arrive before Brexit Day will be able to apply for. The application process for ILR usually requires the applicant to satisfy minimum salary requirements, demonstrate English language ability and pass the “life in the UK” test. ILR is also more restrictive than settled status; for example, the holder of ILR will lose this status if they are absent from the UK for a period of two years, while for the holder of settled status, absence up to five years is permitted. It remains to be seen what the qualifying criteria for ILR in this situation will be, and whether a special procedure will be established that is more closely aligned to settled status.

Looking to the future, employers should also be encouraged by the following section of the announcement, which relates to a new immigration framework to be implemented post Brexit:

“… leaving the EU does not mean the end of migration between the EU and the UK. The new framework will therefore be designed to support the UK economy, enable businesses and key public sector workforces such as the National Health Service to access the skills they need, and underpin our trading relationships with partners in Europe and around the world.”

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

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

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

Entry to the United States barred for certain passport holders?!

US President Donald Trump issued an executive order delaying the entry to the United States of lawful permanent residents with green cards, immigrant and nonimmigrant visa holders, refugees and passport holders from seven countries. The order, dated January 27, 2017, became effective immediately. Soon thereafter, the US Department of State issued an urgent notice suspending visa issuance to citizens of those countries.

On January 28, 2017, injunctions were issued in federal courts in Massachusetts and New York. The orders enjoin federal agencies from removing people with approved refugee applications, valid visas and others from the seven countries.

How the government is reacting

In a January 29, 2017, press release, the US Department of Homeland Security (DHS) stated that it will continue to enforce all of President Trump’s executive orders. Later that same day, the US Citizenship and Immigration Services (USCIS) agency, which is part of DHS, issued a statement deeming the entry of lawful permanent residents to be in the national interest. The result is to allow lawful permanent residents to return to their homes in the US, absent significant derogatory information indicating a serious threat to public safety and welfare.

Citizens from these countries are impacted

Nationals from the following seven countries are detrimentally impacted:

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

The order does not apply to citizens of other countries who merely visited the listed countries.

Travel Guidance

Nationals from the seven listed countries, including dual citizens traveling with the passport of another country, may wish to delay travel to the United States until the details of the implementation of the executive order is 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.

Background

The executive order is reported to have been issued without advance consultation with the agencies charged with its implementation, including DHS and the Department of State.

President Trump stated on January 28 that the travel ban is “working out very nicely.”

That said, there is broad media coverage of the widespread confusion that resulted, not only in the general public, but also at airports, airlines, border crossings, etc. There are reports of detentions of new arrivals at airports and public protest in many American cities. I have had a number of emails and calls from client employers canceling travel for employees carrying passports from the impacted countries, including dual citizens and United States lawful permanent residents. Due to the reciprocal nature of diplomatic relations, it is likely that US passport holders traveling to these seven countries will experience similar difficulties.

The situation remains very fluid. Press Secretary Reince Priebus stated on January 29, 2017, that the executive order will no longer apply to lawful permanent residents, and the USCIS issued its confirming statement mentioned above.

Dentons will issue further information as it becomes available.

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Entry to the United States barred for certain passport holders?!

Tax consequences for multinationals sending employees to Canada

US-and-Canada-flag-puzzle

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