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Safeguarding the status of EU citizens: UK and EU negotiation update

 

 

 

 

 

 

The EU and UK have concluded their fifth round of negotiations.

Progress has been made on coming to an agreement in relation to the rights of EU citizens living in the UK. Some points are still to be negotiated.

The UK has confirmed that its “settled status” scheme, to be introduced next year, will be streamlined, digital and low-cost. For EU citizens who have permanent residence documents, the process of updating their status to “settled status” will be more straightforward. There may not be a cost, but if there is it will be greatly reduced.

The UK government has confirmed that safeguarding the status of EU citizens in the UK, and of UK nationals in the EU, will remain a priority. Prime Minister Theresa May said this week, “We want you [EU citizens] to stay.”

Keep your eye on The Global Mobility Review blog for further developments.

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Safeguarding the status of EU citizens: UK and EU negotiation update

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

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

H-1B blast off countdown 2017

T minus 59 days. The countdown has begun.  The date is coming.  It will be here soon.

It is the biggest event of the year in United States immigration.

Hundreds of thousands will apply, but only a lucky few will be chosen. Employers keen to recruit and employ the best and brightest talent from around the globe to meet American business needs are already gearing up.  Professionals eager to pursue their career in the United States are updating resumes and collecting diplomas and reference letters. This program is not the best way for a country to succeed, but the United States Congress continues to lack the will and wisdom to change a law almost 25 years old.

Are you ready?

April 1, 2017, is the first day that the United States Citizenship and Immigration Services agency (USCIS) will accept new H-1B specialty occupation worker nonimmigrant visa petitions by employers for foreign professionals.  It is important for global mobility and human resource managers to start work now to secure preliminary Department of Labor approvals, foreign degree evaluations, etc., to be ready to file the petition for an April 1 receipt date.

Limited supply

Only a limited number of new H-1B visas are accepted each year due to legal quota restrictions. Every year, 65,000 new H-1B visa petitions can be granted, of which 6,800 are set aside for citizens of Chile and Singapore under free trade agreements with those countries. To the extent there were unused free trade agreement H-1Bs, those are added to the quota for the next fiscal year. There is an additional allocation of 20,000 new H-1B visa petitions that can be accepted if the foreign professional in question earned a graduate degree from a university in the United States.

Not all H-1B visa petitions are subject to numerical limits. Individuals already holding H-1B visas are not counted against the quota, and petitions filed by institutions of higher education or related or affiliated nonprofit entities, nonprofit research organizations or governmental research organizations are exempt from the limits. And H-1B workers performing labor or services in the Commonwealth of the Northern Mariana Islands (CNMI) and Guam may also be exempt from the H-1B cap, provided their employers file the petition before December 31, 2019. Employers may not file a petition or an extension request for an employee more than six months before the employee’s intended start date.

Overwhelming demand

Last year, the USCIS received so many new H-1B visa petitions in the first week of April that the agency ended the application window on April 7. Approximately 236,000 new petitions were received, as compared to 233,000 in the prior year. As the regulations mandate, officers then selected—at random—which envelopes to open, and returned the rest unopened with the government filing fees. Only then did the agency begin the often long process of approving or denying the selected petitions on the merits of eligibility.

This year, the USCIS will once again receive more than it is allowed to accept. Again, the agency will randomly decide which envelopes to open and which to return unopened. The likelihood of a petition being selected in April 2017 is much lower than last year, taking into consideration the current state of the economy, the relatively low rate of American unemployment in typical H-1B specialty occupations, and the labor needs of US employers.

The countdown begins now (download dates directly into your Outlook)

T minus 59 days (February 1):  Start working with legal counsel now. Identify current and prospective employees who will need new H-1B visa petitions.

T minus 44 days (February 15):  By now, you and legal counsel should have requested the labor condition application certification from the Department of Labor.  Employers new to the process or who have not filed recently will need to create the appropriate accounts with the Department of Labor. Because the USCIS relies on Dunn & Bradstreet data (DUNS) as part of its employer background verification process, it is important for employers to create or update the company’s DUNS records to avoid inconsistencies with H-1B visa petition filings.

T minus 31 days (March 1):  Have all the required USCIS forms and supporting documents been signed and filing fee checks prepared?  There is still some time left to get last minute details completed, but this is when it gets very hectic. Government systems often become overloaded and delays at the Department of Labor for late filings are common.

T minus 1 day (March 31):  Envelopes should be properly addressed and delivered to the express service of choice with next business morning delivery instructions.

T minus 0 (April 1):  Just like at NASA ground control, this is the stage in the process where all the hard work resulted in successful delivery of the visa petition and you have to wait for the USCIS to announce whether the petition is selected or returned—usually within 3 weeks or so.

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H-1B blast off countdown 2017

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

USCIS fee changes, effective December 23, 2016

Shocked

The Department of Homeland Security (DHS) has published a final rule adjusting the fee schedule for many immigration applications and petitions processed by US Citizenship and Immigration Services (USCIS). The new fee schedule will become effective on December 23, 2016. Applications and petitions postmarked or filed on or after that date must include the new fees.

As determined by DHS, adjusting the fee schedule is necessary to fully recover costs and maintain adequate service. This is the first adjustment in the last six years.

Under this final rule, DHS will increase fees by a weighted average of 21 percent; establish a new fee of $3,035, covering USCIS costs related to processing the employment-based immigrant visa, fifth preference (EB-5) Annual Certification of Regional Center, Form I-924A; establish a three-level fee for the Application for Naturalization, Form N-400; and remove regulatory provisions that prevent USCIS from rejecting an immigration or naturalization benefit request paid with a dishonored check or lacking the required biometric services fee until the remitter has been provided an opportunity to correct the deficient payment.

While the fees for some petitions will remain the same, others will see significant increases. The highest increases are for the visas used by American businesses to bring skilled workers to the United States, immigrant investors creating jobs for Americans and immigrants acknowledged to have extraordinary ability.

The new fee schedule includes increased fee for the Form I-129 to $460 from $325. Form I-129 used for the most common work visas, including H-1B professional, O-1 extraordinary ability, and L-1 intracompany transfer visas, as well as E-1 treaty trader, E-2 treaty investor and E-3/FTA H-1B1/TN treaty professional visas processed in the United States rather than at an American consular post or preflight inspection unit abroad.

Fees for the Form I-140 used for EB-1, EB-2 and EB-3 employment-based immigrant visas were increased to $700 from $580.

One of the highest increases is for the Form I-526 required for an EB-5 immigrant investor creating at least ten jobs for American workers. Form I-526 fee was increased to an outrageous $3,675 from $1,500.

Family-based immigration fees are better, with only a 27 percent increase, to $535 from $420, for the Form I-130 used by US citizens and lawful permanent residents to sponsor certain close relatives to immigrate. The Form I-485 required for immigrants who process through the USCIS instead of an American consular post abroad was increased only slightly, to $1,140 from $985.

For a full list of the new fees please visit the USCIS website.

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USCIS fee changes, effective December 23, 2016

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

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

New policy guidance for immigrants changing employers

content_marketer_job_interview_cartoon

On March 18, 2016, the United States Citizenship and Immigration Services agency (USCIS) issued new policy guidance regarding how certain employment-based immigrants can change employers during the immigration process without jeopardizing the ability to obtain permanent residence.

In general, employer-sponsored immigration under the employment-based first (EB1), second (EB2) and third (EB3) preference immigrant visa categories requires the sponsoring employer and the immigrant to intend to work together in the job identified on the immigrant visa petition. A change of employer prior to approval of permanent resident status (popularly referred to as a green card) does not automatically terminate the residence application, but does call into question whether the required intent remains. The result is that immigrants are generally reluctant to change jobs prior to completing residence, even when other American employers are trying to recruit them.

In 2000, the US Congress recognized that slow processing by the USCIS (formerly the Immigration and Naturalization Service, or INS) harmed the ability of American employers to compete in the global market for key job skills, as immigrants chose other countries or were forced to leave the US because temporary visas expired before the USCIS completed its work. The American Competitiveness in the Twenty-First Century Act of 2000 (AC21) created greater job flexibility for immigrants to change jobs if the USCIS failed to complete processing of the application to adjust status to resident within 180 days, and if the new job is in the same or similar occupation as the old job. The USCIS was delegated responsibility to issue regulations to implement this law.

Although the USCIS never went through the process mandated by law to issue implementing regulations, the agency issued three prior AC21 policy memoranda and a FAQ. The March 18, 2016, memorandum entitled “Determining Whether a New Job is in ‘the Same or a Similar Occupational Classification’ for Purposes of Section 24(j) Job Portability” (PM-602-0122.1) is the latest.

This memorandum revises the USCIS Adjudicators Field Manual (AFM) to instruct officers to focus on the Department of Labor (DOL) occupational classification assigned to the jobs or other material information. The factors to be considered are: the duties, job requirements (skills, experience, education, training, license/certification) and wages. Location and employer industry sector are not identified, although both can certainly impact wages and are logically relevant in that regard.

The DOL occupational classifications can be found at O*NET OnLine. The DOL’s Online Wage Library can help show how the same or similar occupational classification might result in a change of wage for different locations and over time.

Some EB2 and EB3 visa categories require a DOL alien employment certification (PERM). In these cases, the DOL occupational classification is determined by the DOL on the prevailing wage determination and on the PERM application. The memorandum places the burden of proof on the immigrant to establish the DOL occupational classification for the new job.

In contrast, there is no DOL determination for the EB1 visa category for outstanding professors and researchers (EB1B), or for the multinational managers and executives (EB1C) visa categories, which could make for less predictability or greater flexibility in the outcome. The memorandum places the burden of proof on the immigrant to establish the DOL occupational classification for these jobs.

Aliens of extraordinary ability (EB1A) and aliens immigrant based on the national interest waiver (EB2NIW) self-sponsor, and are not impacted by a change of employer and the new memorandum.

In cases where the jobs have different occupational classifications, but fall within the same broad occupation, the memorandum states the officer may treat such evidence favorably. It also states that such positions will generally be considered to qualify as similar if they largely share the same duties, experience and education requirements.

The memorandum provides further guidance for career progression. While movement from junior to senior levels within the same occupation are likely to qualify, movement form a non-managerial to a managerial role will require a showing that the immigrant remains primarily responsible for the same or similar functions. The memorandum gives a favorable result in an example of a software developer being promoted to computer and information systems manager, while rejecting the promotion of a cook to food service manager, citing the different focus of the jobs as the defining characteristic.

Read the full policy memorandum at the USCIS website.

Dentons lawyers regularly guide employers and immigrant employees in developing and implementing strategies to preserve immigration benefits during such changes as work site relocation, career advancement, reductions in force and changes of employer, including AC21 issues.

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New policy guidance for immigrants changing employers

US State Department changes E Visa processing in Canada for investors and traders

financial2

The US State Department announced, effective March 1, 2016, new streamlined registration and expanded processing locations for E-1 treaty trader and E-2 treaty investors visa applications processed in Canada.

Applications to register companies to qualify as E-1 and/or E-2 visa employers must be done at the US Consulate in Toronto. E-1 and E-2 visa applications for employees of companies not already registered, or of companies that have let their registration expire, must be submitted to the Toronto consulate.

E-1 and E-2 visa applications for employees of companies registered with the US Consulate in Toronto, as well as their dependent family members, may now apply at the US Embassy in Ottawa, as well as the US consulates in Toronto, Vancouver, Calgary and Montréal. Previously, only the Toronto and Vancouver consulates handled E visa applications.

Appointments are prioritized for Canadian citizens and permanent residents who are citizens of treaty countries. The US State Department publishes a complete list of treaty countries online, click to see a complete list. Limited appointments are available for citizens and residents of countries other than Canada.

E visa company registration indicates that a consular officer has determined that a company met E visa standards on a prior application. Registered companies are given a Notice of E Visa Company Registration. There are more streamlined E visa application procedures while the registration is valid, unless there are substantive changes to the enterprise that would jeopardize its E visa status. If there are substantial changes in the company’s ownership structure or operations since the registration notice was issued, the consular officer may require additional corporate documents to ensure the treaty enterprise still qualifies.

For more information about the E-1, E-2 and other US temporary and permanent visas, please see Dentons United States Immigration Guide.

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US State Department changes E Visa processing in Canada for investors and traders