July 2017 Global Immigration Update

Feature Article:

DATA PROTECTION: AN OVERVIEW – This article provides an overview of recent developments in several countries with respect to data protection.Country Updates

Country Updates:

GERMANY – Effective August 1, 2017, the German parliament is implementing European Union (EU) Directive 2014/66/EC (Intra-Company Transfer (ICT)).

ITALY – The Italian government has reintroduced filing fees for the residence permit “permesso di soggiorno” application.

PERU – There have been new legislative developments in Peruvian immigration law.

RUSSIA – Several Presidential Orders have been issued with respect to tournament security and the lifting of limitations on Turkish travel.

UNITED KINGDOM – Prime Minister Theresa May recently announced to European leaders in Brussels how she plans to deal with European Union (EU) citizens living in the UK post-Brexit.

Feature Article

DATA PROTECTION: AN OVERVIEW

This article provides an overview of recent developments in several countries with respect to data protection.

Italy

Under Italian law, third parties using personal data must comply with Decree 196/2003 (Privacy Code). The law states that any person who engages in the processing of data within their operations shall at a minimum adopt security measures to guarantee complete confidentiality of the personal data processed. The transfer of sensitive data to non-European Union (EU) countries is subject to rules governed by article 43 of the Decree; which provides that the transmission of personal information from Italy to any country outside the EU, even when it is temporary or by use of any method, is only permitted when:

(i) the interested party has expressed consent (for highly sensitive information, permission must be in writing); or (ii) the transfer is necessary for the execution of contractual duties or for the fulfillment of specifications requested by the interested party before the conclusion of the contract or for the termination or the execution of a contract stipulated on behalf of the concerned party.

The transfer of information is also permitted when it is authorized by the guarantor, based on adequate assurances provided by the interested party. However, the transfer of personal data to any country outside the EU from Italy is strictly forbidden when the destination country does not guarantee an adequate level of preservation for the sensitive data.

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Country Updates

GERMANY

Effective August 1, 2017, the German parliament is implementing European Union (EU) Directive 2014/66/EC (Intra-Company Transfer (ICT)).

With the ICT Scheme, the EU Directive aims at providing a common framework for all participating member states (the United Kingdom, Ireland, and Denmark opted out) covering the GATS Mode 4 commitments on Intra-Group Transfers.

Overview: To be subject to this ICT scheme, third-country nationals must obtain a so-called ICT permit issued by the participating EU country where they will spend most of their time. The ICT permit is the first EU immigration permit that allows employment not just in the issuing member state but in a second member state for a period of up to 90 days (short-term mobility). To exercise the right to short-term mobility, the holder of an ICT permit issued by another member state must notify the Bundesamt für Migration und Flüchtlinge (BAMF) of the intended employment by providing information on the salary and work conditions. Unless the German administration actively refuses approval of the intended travel within 20 days, the third-country national is legally allowed to engage in short-term mobility under the conditions notified. Holders of an ICT permit issued by a fellow member state may also relocate for a period of more than 90 days to Germany by applying for a Mobile ICT card at the German immigration authorities before the transfer. If such an application is submitted 20 days before the start of the transfer and the ICT permit of the other EU member state is still valid, staying in Germany and working at the German entity is permitted for 90 days until the immigration authority’s decision has been made.

Eligibility: The ICT Card can be issued to third-country nationals dispatched from their employer abroad to work as a CEO/CFO/comparable manager, specialist, or trainee at a group company in Germany. Its validity is limited to a maximum of three years for CEO/CFO/comparable manager or specialist, and one year for trainees. The group relationship requires a group of companies that functions as a single economic entity through a common source of control, either by direct or indirect 51 percent ownership or domination agreements creating a structure of parent and subsidiary/affiliated companies. Managers are defined as persons directing the host entity or one of its departments with the power to “hire and fire” and who have sole responsibility for a substantial budget and report directly to directors or shareholders. A specialist needs to prove essential and specific knowledge in the area of business and/or the group company or host entity procedures, and a high level of qualification and relevant experience. Before a transfer to Germany, the applicant in the CEO/CFO/manager/specialist category must be employed with an entity of the same company or group for at least six months. A trainee is qualified by a university degree to undergo a paid traineeship during which, as part of the professional development, training in business techniques and methods is received.

Application process: The third-country national aiming for a German ICT Card must file a visa application with the German mission abroad at the place of residence. Visa waiver schemes that exist for other immigration categories and apply to certain nationalities may not be used when applying for the ICT Card. The ICT Card is subject to an internal approval procedure, which includes the German labor authority’s verifying that salary and employment conditions will be comparable to those of German employees.

Note that when dealing with the ICT scheme, the implementations of the framework differ within the different EU member states.

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ITALY

The Italian government has reintroduced filing fees for the residence permit “permesso di soggiorno” application.

The new amounts are:

  • Residence permit card valid from 3 months to 1 year: €40
  • Residence permit card valid from 1 to 2 years: €50
  • EC residence permit card for long-term residents and intra-company residence permit: € 100

Fixed expenses remain in place at about €76 (€30.46 for the electronic card; €16 for the application stamp, and €30 for the mailing fee).

As background, in October 2011, a joint ministerial decree introduced high residence permit application/renewal fees (from €80 to €200, depending on the type and duration of the permit, in addition to the fixed expenses already in place). In 2015, the European Court of Justice judged the tax to be a violation of European Union (EU) regulations. Subsequently, the Regional Administrative Court of Lazio declared the residence permit tax illegal and abolished the fee on applications in May 2016. On September 14, 2016, with Presidential Decree No. 03903/2016, the Council of State decided to suspend the court order of the TAR, Lazio’s Regional Administrative Court, and the fees were temporarily reintroduced, until a final decision was reached. Again, in November 2016, the Council of State confirmed the abolishment of the residence permit application/renewal fees introduced in 2011 (€80 to €200). New fees are in place now, as noted above, but they are lower than the amounts introduced in 2011 that were challenged by the European Court of Justice.

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PERU

There have been new legislative developments in Peruvian immigration law.

On January 7, 2017, legislative decree N° 1350, the “New Law of MIGRACIONES,” was published in the Official Gazette El Peruano under the powers delegated by the Peruvian Congress by virtue of Law No. 30506. The new law establishes a series of changes to the law on migration with respect to citizen security, standards for the internal and external immigration policy of Peru, including some aspects of the National Superintendence of Immigration (MIGRACIONES), and the regulation of border security, among other important aspects. The ultimate aim of the new law is to simplify and order the immigration law protecting the fundamental rights of national and foreign citizens, and strengthen national security.

Legislative Decree N° 1350, in force since March 1, 2017, means considerable progress because it changes the scheme considerably with respect to immigration categories and statuses, and creates several new immigration statuses, among other things. New regulations were published in El Peruano were published on March 27, 2017, with Supreme Decree No. 007-2017-IN.

With the entry into force of the new law, the former Aliens Law N° 703 and its amendment, Legislative Decree N° 1043, were repealed along with Legislative Decree No. 1236 and any rule that is opposed to Legislative Decree No. 1350.

The law includes two important changes:

  1. With respect to temporary migration for business, the new law allows foreigners without the intention of residing in Peru to perform business, legal, contractual, and specialized technical assistance or similar activities in Peruvian territory. The status is granted for 183 days, consecutive or cumulative, over a period of 1 year counted from the first entry into Peru. This status is not renewable.
  2. “Appointed worker” status is now granted not only on a temporary basis, but also as a resident status.

Thus, foreign individuals coming to work in Peru to carry out labor activities in the national territory, which consist of the accomplishment of a specific task or function or a job that requires specialized professional, commercial, or technical knowledge and who are sent by a foreign employer, as well as those who are commissioned by a highly specialized international corporation for the repair or maintenance of machinery or technically complex or advanced systems or mechanisms, or for corporate audits and international certifications, may receive a temporary visa with an authorized stay of 183 days, consecutive or cumulative, over a period of 1 year counted from the first entry into Peruvian territory, extendable for the same term but less than 1 year. In case of residents 365 days, renewable.

Both allow multiple entries. Foreigners with the migratory status of resident—appointed worker will hold a foreign card (carné de extranjería).

A foreigner with this migratory status cannot carry out paid or lucrative activities for his or her own account in Peru.

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RUSSIA

Several Presidential Orders have been issued with respect to tournament security and the lifting of limitations on Turkish travel.

Security measures during tournaments. In accordance with Presidential Order No. 202 dated September 5, 2017, “On security measures during the World Cup FIFA 2018 and Confederation Cup FIFA 2017,” rules of address registration are subject to change. The Confederation Cup will be held from June 1 until July 12 in Moscow, St. Petersburg, Kazan, and Sochi. The World Cup will be held from May 25 until July 25, 2018, in Moscow, St. Petersburg, Volgograd, Ekaterinburg, Kazan, Kaliningrad, Nizhni Novgorod, Samara, Rostov on Don, Saransk, and Sochi.

The changes will affect both Russian and foreign citizens.

Russian citizens who arrive in these cities during the tournaments should apply to register their arrival in the place of temporary residence within three calendar days of arrival.

Foreign nationals who have entered Russia during these tournaments should register their addresses within one calendar (not working) day from the arrival date. Foreign nationals arriving in Russia during a weekend or public holiday should register with the immigration authorities within 24 hours of arrival. Immigration authorities work during weekends and public holidays.

The new address registration rules apply to all foreign nationals regardless of the purpose of the visit, whether tourism, business, or on a work permit, including HQS. The new rules are applicable only during the tournaments and only in the mentioned cities.

The only exclusion to the new rules applies to Russian citizens and foreign nationals who are participants in the Confederation Cup and World Cup, FIFA official representatives and related organizations, and national football associations that are included in the FIFA accredited list.

Limitations lifted on Turkish travel. Also, in accordance with Presidential Order No. 224 dated May 31, 2017, “On termination of particular economic measures related to Turkish Republic,” Turkish nationals may travel to Russia for tourism, business, or work purposes. The limitations that have been in place from November 2015 have been terminated. The order came into force as of May 31, 2017.

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UNITED KINGDOM

Prime Minister Theresa May recently announced to European leaders in Brussels how she plans to deal with European Union (EU) citizens living in the UK post-Brexit.

The UK government has released “The United Kingdom’s Exit from the European Union,” which provides more detail on the Prime Minister’s approach and offering to EU citizens.

The Prime Minister has pledged that EU citizens who arrived in the UK before the triggering of Article 50 will be entitled to stay and those who arrive after the “cut-off” date will be given a two-year “grace period” after Brexit to obtain permission to remain in the UK or return to their home countries. She has not stated when the “cut-off” date will be, but the actual Brexit day, March 29, 2019, is a possibility.

Below is a summary of the proposal:

  • All EU citizens living in the UK will be transitioned into UK domestic law post-Brexit—this is not an automatic transfer, so EU citizens will need to proactively apply to the Home Office to remain in one of the categories under UK Immigration Rules. This will be the UK’s replacement scheme for EU free movement law.
  • In the interim, the UK will be looking to introduce a voluntary scheme for EU citizens to apply under UK Immigration Rules for indefinite leave to remain before Brexit.
  • Beginning on March 29, 2019, a two-year transitional period will apply (until March 29, 2021) where EU citizens resident in the UK will have deemed leave under the UK Immigration Rules. This is the “grace period” to allow EU citizens to regularize their UK status post-Brexit. If the EU citizen does not apply for permission to stay before this two-year grace period ends, the EU citizen will lose his or her right to stay in the UK afterwards.
  • EU citizens who acquired permanent residence in the UK before the “cut-off” date will be given a new settled status. However, the “cut-off” date has yet to be clarified—it could be March 29, 2017, or March 29, 2019. The EU citizen will still need to meet a number of requirements. It has been proposed that upon application, the EU citizen will be assessed on his or her length of residency (usually five years) and on conduct and criminality, mainly to ensure that the applicant is not a threat to the UK. There was no mentioning of the effect of absences, but it is likely that this will be assessed as part of the application. Also, there would only be an entitlement to apply, not an entitlement to indefinite leave (permission) to remain in the UK.
  • EU citizens who are in the process of acquiring the right of permanent residence before the “cut-off date” will be able to continue their track to indefinite leave to remain after five years of residence in the UK if they can show they have been working or studying. It is unclear how much self-employed EU citizens working in the UK will be protected.
  • EU citizens who arrive after the “cut-off” date will need to come under UK Immigration Rules, but the applicable rules have not yet been determined.
  • Irish citizens will not be affected and can remain in the UK. However, family members of Irish citizens (who are not Irish or UK citizens) will not be able to rely on the EU free movement law after Brexit and must apply under UK Immigration Rules, as with any other EU and non-EU citizen.
  • Family members of EU citizens will be treated in line with the principal EU citizen but they too must meet the residence requirement of five years and also demonstrate that they are in a genuine relationship with the EU national—this could include providing evidence of cohabitation. However, family members of EU nationals who arrive in the UK after the “cut-off” date will not be covered by the transitional arrangements and must apply under UK Immigration Rules.
  • Children born in the UK to EU citizens who hold permanent residence before the child’s birth will automatically be British. Therefore, EU citizens must show that they acquired permanent residence under the EU free movement law before their child was born in the UK for their child to be born British.
  • However, children born overseas or children born in the UK to EU citizen parents (who do not have permanent residence) will be eligible to apply for indefinite leave to remain. This would apply regardless of when the child was born or when he or she arrived in the UK. An EU citizen parent who arrived in the UK before the “cut-off” date and must apply for permission to stay in the UK post-Brexit also must apply for the same permission for his or her child.
  • Existing rules on the rights of EU citizens and UK nationals to export UK social welfare benefits to the EU will be protected for those who are exporting such UK social benefits on the “cut-off” date.
  • UK state pensions are currently payable to anyone eligible, wherever they reside in the world, but annual increases (known as uprating) are only payable to those living in the EU due to current EU law. The UK intends to continue to export and uprate the UK state pension within the EU, provided that the EU will also do the same and this will be agreed through negotiations.
  • The UK will seek to protect healthcare arrangements with the view of ensuring that EU citizens living in the UK will still be eligible for National Health Service-funded healthcare in the UK. This is only on the basis that the EU will also provide the same for UK nationals living in the EU but there is no indication as to what these reciprocal healthcare provisions may be.
  • Confirmation that current EU citizen students enrolled in a UK course at a UK university or further education institution in the academic years of 2017/18 and 2018/19 will continue to be eligible for student support and home fee status for the duration of their course.
  • The UK will seek to ensure that professional qualifications obtained before Brexit will continue to be mutually recognized so that these professionals can continue to practice in the UK without unfair detriment or discrimination.
  • The European courts will not have jurisdiction in the UK—the arrangements will only be enforceable through the UK judicial system.

There are still many questions, and many European nationals living in the UK await the formalization of these propositions.

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July 2017 Immigration Update

Headlines:

  1. Supreme Court Partially Lifts Trump Travel Ban Preliminary Injunctions – The Supreme Court plans to hear arguments in the related cases in October brought against the Trump administration in the U.S. Courts of Appeals for the Ninth and Fourth Circuits.
  2. USCIS Resumes Premium Processing for H-1B Petitions Filed for Conrad 30 Medical Doctors, Interested Government Agencies – USCIS said it plans to resume premium processing of other H-1B petitions as workloads permit.
  3. International Entrepreneur Final Rule Expected To Be Delayed, Scrapped – The Trump administration reportedly has decided to delay the rule’s effective date until March 2018, and ultimately to rescind it.
  4. USCIS Redesigns Green Card Application – The new Form I-485 and instructions “have been substantially updated to reduce complexity after collecting comments from the public and stakeholders,” USCIS said.
  5. Minor Lies Can’t Be Used to Revoke Citizenship, Supreme Court Rules – The Supreme Court noted that the law demands “a causal or means-end connection between a legal violation and naturalization.”
  6. State Dept. Releases Diversity Visa Lottery 2018 Results, Notifies Winners – Those selected will need to act on their immigrant visa applications quickly, the bulletin warns.
  7. ABIL Global: Germany – Effective August 1, 2017, the German parliament is implementing an EU directive on intra-company transfers.
  8. Firm In The News

Details:

  1. Supreme Court Partially Lifts Trump Travel Ban Preliminary Injunctions

On June 26, 2017, the Supreme Court partially lifted preliminary injunctions that barred the Department of State from enforcing section 2 of Executive Order 13780, which suspended for 90 days the entry into the United States of, and the issuance of visas to, nationals of six designated countries—Iran, Libya, Somalia, Sudan, Syria, and Yemen—and from enforcing section 6, which suspends refugee admissions from all countries for 120 days. The Supreme Court plans to hear arguments in the related cases in October brought against the Trump administration in the U.S. Courts of Appeals for the Ninth and Fourth Circuits.

The Department stated in a briefing that the travel ban for refugees will start July 6. Refugees scheduled to arrive before then are exempt from the temporary ban. The Department sent a cable to all diplomatic and consular posts implementing Executive Order 13780, in light of the Supreme Court’s ruling on President Trump’s travel ban, as of 8 p.m. ET on June 29, 2017. The cable notes that the Supreme Court’s ruling allows the travel ban to be enforced only against foreign nationals who lack a “bona fide relationship with a person or entity in the United States.” The cable states that applicants who are nationals of the affected countries who are determined to be otherwise eligible for visas and to have a credible claim of a bona fide relationship with a person or entity in the United States are exempt from the suspension of entry in the United States under section 2(c) of the order. Applicants who are nationals of the affected countries and who are determined to be otherwise eligible for visas, but who are determined not to have a qualifying relationship, “must be eligible for an exemption or waiver as described in section 3 of the [order] in order to be issued a visa,” the cable states.

The cable notes that any such relationship with a “person” must be a close familial relationship,” as defined in the cable. Any relationship with an entity “must be formal, documented, and formed in the ordinary course, rather than for the purpose of evading the E.O.” “Close family” is defined as a parent (including parent-in-law), spouse, child, adult son or daughter, son-in-law, daughter-in-law, sibling, whether whole or half. This includes step relationships. “Close family” does not include grandparents, grandchildren, aunts, uncles, nieces, nephews, cousins, brothers-in-law and sisters-in-law, and any other “extended” family members, the cable states.

The cable notes the following examples of who may and may not be included in the exemption from the travel ban:

[A]n eligible I visa applicant employed by foreign media that has a news office based in the United States would be covered by this exemption [from the travel ban]. Students from designated countries who have been admitted to U.S. educational institutions have a required relationship with an entity in the United States. Similarly, a worker who accepted an offer of employment from a company in the United States or a lecturer invited to address an audience in the United States would be exempt. In contrast, the exemption would not apply to an applicant who enters into a relationship simply to avoid the E.O.: for example, a nonprofit group devoted to immigration issues may not contact foreign nationals from the designated countries, add them to client lists, and then secure their entry by claiming injury from their inclusion in the E.O. Also, a hotel reservation, whether or not paid, would not constitute a bona fide relationship with an entity in the United States.

The cable states that the travel ban does not apply to certain categories of individuals, such as those who were inside the United States as of June 29, 2017, who have a valid visa as of June 29, 2017, or who had a valid visa at 8 p.m. ET January 29, 2017, even after their visas expire or they leave the United States. The cable also notes:

No visas will be revoked based on the E.O. [Executive Order], even if issued during the period in which Section 2(c) was enjoined by court order or during the 72-hour implementation period. New applicants will be reviewed on a case-by-case basis, with consular officers taking into account the scope and exemption provisions in the E.O. and the applicant’s qualification for a discretionary waiver. Direction and guidance to resume normal processing of visas following the 90-day suspension will be sent [via separate cable].

In a related statement issued publicly on June 29, 2017, the Department noted:

The Supreme Court’s order specified that the suspension of entry in section 2(c) of Executive Order 13780 may not be enforced against foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States. Applicants seeking B, C-1, C-3, D, or I visas will need to demonstrate that they have the required bona fide relationship in order to be exempt, or they may qualify for a waiver pursuant to the terms of the E.O. Qualified applicants in other nonimmigrant visa categories are considered exempt from the E.O., as a bona fide relationship to a person or entity in the United States is inherent in the requirements for the visa classification, unless the relationship was established for the purpose of evading the order.

The statement says that an individual who wishes to apply for an immigrant visa “should apply for a visa and disclose during the visa interview any information that might demonstrate that he or she is exempt from section 2(c) of the Executive Order.” A consular officer “will carefully review each case to determine whether the applicant is affected by the E.O. and, if so, whether the case qualifies for a waiver,” the statement says.

The statement also includes the following information with respect to students and short-term employees:

I’m a student or short-term employee that was temporarily outside of the United States when the Executive Order went into effect. Can I return to school/work?

If you have a valid, unexpired visa, the Executive Order does not apply to your return travel.

If you do not have a valid, unexpired visa, the Supreme Court’s decision specified that section 2(c) of the Executive Order may not be enforced against foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States. One example cited in the Supreme Court’s decision was a student from a designated country who had been admitted to U.S. university, thereby demonstrating a credible claim of a bona fide relationship with an entity in the United States.

The Supreme Court’s decision is at https://www.supremecourt.gov/opinions/16pdf/16-1436_l6hc.pdf. The Department of State’s public statement is at https://travel.state.gov/content/travel/en/news/important-announcement.html. A related “background briefing” is at https://www.state.gov/r/pa/prs/ps/2017/06/272281.htm. The full text of the cable is at http://live.reuters.com/Event/Live_US_Politics/989297085. The Executive Order is at https://www.whitehouse.gov/the-press-office/2017/03/06/executive-order-protecting-nation-foreign-terrorist-entry-united-states. A Department of Homeland Security FAQ is at https://www.dhs.gov/news/2017/06/29/frequently-asked-questions-protecting-nation-foreign-terrorist-entry-united-states. An advisory by NAFSA: Association of International Educators is at https://www.nafsa.org/Content.aspx?id=57494.

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  1. USCIS Resumes Premium Processing for H-1B Petitions Filed for Conrad 30 Medical Doctors, Interested Government Agencies

U.S. Citizenship and Immigration Services (USCIS) has resumed premium processing for H-1B petitions filed for medical doctors under the Conrad 30 Waiver program, as well as interested government agency waivers. The Conrad 30 program allows certain medical doctors to stay in the United States on temporary visas after completing their medical training to work in rural and urban areas that have a shortage of physicians.

Eligible petitioners for medical doctors seeking H-1B status under the Conrad 30 program, or through an interested government agency waiver, can file Form I-907, Request for Premium Processing Service, for Form I-129, Petition for a Nonimmigrant Worker. Form I-907 can be filed together with an H-1B petition or separately for a pending H-1B petition, USCIS noted.

USCIS said it plans to resume premium processing of other H-1B petitions as workloads permit. “We will make additional announcements with specific details related to when we will begin accepting premium processing for those petitions,” the agency said. Until then, premium processing remains temporarily suspended for all other H-1B petitions. USCIS said it will reject any Form I-907 filed for those petitions, and if the petitioner submitted one check combining the Form I-907 and Form I‑129 fees, USCIS will reject both forms.

The USCIS notice is at https://www.uscis.gov/news/news-releases/uscis-resume-h-1b-premium-processing-physicians-under-conrad-30-waiver-program. Information on the Conrad 30 program is at https://www.uscis.gov/working-united-states/students-and-exchange-visitors/conrad-30-waiver-program. Information on interested government agency waivers is at https://travel.state.gov/content/visas/en/study-exchange/student/residency-waiver/request-by-federal-government-agency.html.

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  1. International Entrepreneur Final Rule Expected To Be Delayed, Scrapped

A final rule on international entrepreneurs, issued by the Obama administration on January 17, 2017, and scheduled to take effect July 17, 2017, was recently returned to the Office of Management and Budget for further review. According to new reports, the Trump administration has decided to delay the rule’s effective date until March 2018, and ultimately to rescind it.

The final rule, intended to encourage entrepreneurs wishing to build companies in the United States, would have added new regulatory provisions guiding the use of parole on a case-by- case basis with respect to entrepreneurs of start-up entities who can demonstrate through evidence of “substantial and demonstrated potential for rapid business growth and job creation” that they would provide a “significant public benefit” to the United States. Such potential would be indicated by, among other things, “the receipt of significant capital investment from U.S. investors with established records of successful investments, or obtaining significant awards or grants from certain Federal, State or local government entities.” If granted, parole would provide a temporary initial stay of up to 30 months (which may be extended by up to an additional 30 months) “to facilitate the applicant’s ability to oversee and grow his or her start-up entity in the United States.”

A group of investors and startup founders in 25 states recently sent a letter to President Trump encouraging him to allow the rule to move forward. Noting that immigrant entrepreneurs are a “critical driver of increased economic activity” in the United States, the letter states that the international entrepreneur rule would be a “job creation tool” and is “desperately needed at a time when U.S. entrepreneurial leadership is being challenged by other countries.” Among other efforts, French President Emmanuel Macron recently announced a new technology visa for start-up founders, employees, and investors. “I want France to attract new entrepreneurs, new researchers, and be the nation for innovation and start-ups,” he said. And the United States’ next-door neighbor, Canada, offers an entrepreneur start-up visa program that grants permanent residence to immigrant entrepreneurs.

Bobby Franklin, president and chief executive of the National Venture Capital Association (NVCA), noted the contributions of immigrant entrepreneurship to the U.S. economy. He said that NVCA’s research has found that a third of U.S. venture-backed companies that went public between 2006 and 2012 had at least one immigrant founder. He noted a recent study showing that immigrants started more than half of U.S. “unicorns,” or privately held companies valued at more than $1 billion.

Mr. Franklin’s remarks are at https://techcrunch.com/2017/06/19/ensuring-foreign-born-founders-can-grow-their-startups-in-the-u-s/, The letter from the group of investors and startup founders discussed above is at http://nvca.org/wp-content/uploads/2017/06/Letter-to-President-Trump-on-IER-from-emerging-ecosystems.pdf. The original final rule is at https://www.gpo.gov/fdsys/pkg/FR-2017-01-17/pdf/2017-00481.pdf. A related article about the latest developments is at http://www.sfchronicle.com/business/article/Trump-administration-has-plan-to-scrap-startup-11236692.php.

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  1. USCIS Redesigns Green Card Application

U.S. Citizenship and Immigration Services (USCIS) has revised the Application to Register Permanent Residence or Adjust Status (Form I-485). The new Form I-485 and instructions “have been substantially updated to reduce complexity after collecting comments from the public and stakeholders,” USCIS said.

USCIS said that starting on June 26, 2017, there will be a 60-day “grace period” during which the agency will accept both the 01/17/17 and 06/26/17 editions of Form I-485 and Supplements A and J (which have also been revised). Beginning August 25, 2017, USCIS will only accept the revised form and supplements.

Changes to the form include:

  • Adjustments to navigation and the organization of questions, along with new spacing, columns, flow, white space, and formatting intended to enhance readability.
  • Inclusion of questions about biographic information (Form G-325A) so applicants will no longer need to file a separate form;
  • A list of 27 immigrant categories, which allows applicants to identify the specific immigrant category under which they are applying; and
  • A comprehensive, updated list of admissibility-related questions. Questions were added to ensure USCIS officers have the necessary information to better assess an applicant’s admissibility and eligibility.

USCIS noted that although both the revised Form I-485 and its instructions may look different from earlier versions, the process for filing the form and supplements A and J remains the same. Applicants must still submit their paper applications to the location listed in the form instructions.

The announcement is at https://www.uscis.gov/news/news-releases/uscis-introduces-redesigned-form-green-card-applicants. The revised form is at https://www.uscis.gov/i-485.

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  1. Minor Lies Can’t Be Used to Revoke Citizenship, Supreme Court Rules

On June 22, 2017, the U.S. Supreme Court ruled on the issue of when a lie during the naturalization process may lead to loss of U.S. citizenship. Divna Maslenjak, an ethnic Serb, lied during her naturalization process about her husband’s service as an officer in the Bosnian Serb Army. When this was discovered, the government charged her with knowingly procuring her naturalization contrary to law because she knowingly made a false statement under oath in a naturalization proceeding. A district court said that to secure a conviction, the government need not prove that her false statements were material to, or influenced, the decision to approve her citizenship application.

The U.S. Court of Appeals for the Sixth Circuit had affirmed the conviction, but the Supreme Court noted that the law demands “a causal or means-end connection between a legal violation and naturalization.” The Supreme Court said that to decide whether a defendant acquired citizenship by means of a lie, “a jury must evaluate how knowledge of the real facts would have affected a reasonable government official properly applying naturalization law.” The Supreme Court therefore said that the jury instructions in this case were in error, vacated the judgment of the Court of Appeals, and remanded the case for further proceedings.

The Supreme Court’s opinion is at https://www.supremecourt.gov/opinions/16pdf/16-309_h31i.pdf.

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  1. State Dept. Releases Diversity Visa Lottery 2018 Results, Notifies Winners

In the July 2017 Visa Bulletin, the Department of State released the diversity visa (DV) fiscal year 2018 results. The Kentucky Consular Center has registered and notified the winners of the DV-2018 diversity lottery. Those selected will need to act on their immigrant visa applications quickly, the bulletin warns.

The DV lottery makes available 50,000 permanent resident visas annually to persons from countries with low rates of immigration to the United States. Approximately 115,968 applicants have been registered and notified and may now make an application for an immigrant visa. The bulletin says that since it is likely that some of the first 50,000 persons registered will not pursue their cases to visa issuance, the larger figure is intended to ensure that all DV-2018 numbers will be used during FY 2018 (October 1, 2017, through September 30, 2018).

Applicants registered for the DV-2018 program were selected at random from 14,692,258 qualified entries (23,088,613 with derivatives) received during the 34-day application period that ran from Wednesday, October 4, 2016, until Monday, November 7, 2016. The visas have been apportioned among six geographic regions with a maximum of seven percent available to persons born in any single country. During the visa interview, the bulletin notes, principal applicants must provide proof of a high school education or its equivalent, or show two years of work experience in an occupation that requires at least two years of training or experience within the past five years.

Registrants living legally in the United States who wish to apply for adjustment of their status must contact U.S. Citizenship and Immigration Services for information on the requirements and procedures. Once the visa numbers have been used, the program for FY 2018 will end. Selected applicants who do not receive visas by September 30, 2018 will derive no further benefit from their DV-2018 registration.  Similarly, spouses and children accompanying or following to join DV-2018 principal applicants are only entitled to derivative diversity visa status until September 30, 2018.

The bulletin notes that dates for the DV-2019 program registration period will be publicized in the coming months.

The July Visa Bulletin, which includes a statistical country-by-country breakdown of those registered for the DV-2018 program, is at https://travel.state.gov/content/visas/en/law-and-policy/bulletin/2017/visa-bulletin-for-july-2017.html.

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  1. ABIL Global: Germany

Effective August 1, 2017, the German parliament is implementing European Union (EU) Directive 2014/66/EC (Intra-Company Transfer (ICT)).

With the ICT Scheme, the EU Directive aims at providing a common framework for all participating member states (the United Kingdom, Ireland, and Denmark opted out) covering the GATS Mode 4 commitments on Intra-Group Transfers.

Overview: To be subject to this ICT scheme, third-country nationals must obtain a so-called ICT permit issued by the participating EU country where they will spend most of their time. The ICT permit is the first EU immigration permit that allows employment not just in the issuing member state but in a second member state for a period of up to 90 days (short-term mobility). To exercise the right to short-term mobility, the holder of an ICT permit issued by another member state must notify the Bundesamt für Migration und Flüchtlinge (BAMF) of the intended employment by providing information on the salary and work conditions. Unless the German administration actively refuses approval of the intended travel within 20 days, the third-country national is legally allowed to engage in short-term mobility under the conditions notified. Holders of an ICT permit issued by a fellow member state may also relocate for a period of more than 90 days to Germany by applying for a Mobile ICT card at the German immigration authorities before the transfer. If such an application is submitted 20 days before the start of the transfer and the ICT permit of the other EU member state is still valid, staying in Germany and working at the German entity is permitted for 90 days until the immigration authority’s decision has been made.

Eligibility: The ICT Card can be issued to third-country nationals dispatched from their employer abroad to work as a CEO/CFO/comparable manager, specialist, or trainee at a group company in Germany. Its validity is limited to a maximum of three years for CEO/CFO/comparable manager or specialist, and one year for trainees. The group relationship requires a group of companies that functions as a single economic entity through a common source of control, either by direct or indirect 51 percent ownership or domination agreements creating a structure of parent and subsidiary/affiliated companies. Managers are defined as persons directing the host entity or one of its departments with the power to “hire and fire” and who have sole responsibility for a substantial budget and report directly to directors or shareholders. A specialist needs to prove essential and specific knowledge in the area of business and/or the group company or host entity procedures, and a high level of qualification and relevant experience. Before a transfer to Germany, the applicant in the CEO/CFO/manager/specialist category must be employed with an entity of the same company or group for at least six months. A trainee is qualified by a university degree to undergo a paid traineeship during which, as part of the professional development, training in business techniques and methods is received.

Application process: The third-country national aiming for a German ICT Card must file a visa application with the German mission abroad at the place of residence. Visa waiver schemes that exist for other immigration categories and apply to certain nationalities may not be used when applying for the ICT Card. The ICT Card is subject to an internal approval procedure, which includes the German labor authority’s verifying that salary and employment conditions will be comparable to those of German employees.

Note that when dealing with the ICT scheme, the implementations of the framework differ within the different EU member states.

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  1. Firm In The News

At the AILA Annual Conference 2017 in New Orleans, LA, June 21-24, 2017, Cyrus D. Mehta, Cora-Ann V. Pestaina, and David Isaacson were featured speakers.

Cyrus D. Mehta was Discussion Leader on a panel entitled Avoiding Family Feuds: Ethics in Family Practice, June 222, 2017.

Cyrus D. Mehta published Supreme Court May Have Bolstered Rights of Foreign Nationals with Ties to the United States on June 27, 2017.

Cora-Ann V. Pestaina was a speaker on a panel entitled Tricky LCA and PERM Issues for a Mobile Workforce, June 22, 2017.

David Isaacson was a speaker on a panel entitled Honestly, the United States is my Home, June 22, 2017.

David Isaacson published Sessions v Morales-Santana: The Problems of Levelling Down on June 21, 2017; and Travel Ban FAQs – Updated 06/27/2017 on June 27, 2017.

Michelle Velasco published With Adopted Decision Matter of O-A-, USCIS Accepts Provisional Certificates As Evidence of Degree Completion on July 5, 2017.

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Travel Ban FAQs – Updated 06/27/2017

These updated FAQs reflect the situation with regard to President Trump’s executive orders entitled “Protecting the Nation From Foreign Terrorist Entry Into the United States,” banning entry to the United States by certain individuals traveling from Syria, Iran, Sudan, Libya, Somalia, and Yemen, as of 8 pm Eastern Standard Time (EST) on June 27, 2017. New developments are expected to continue to rapidly change the situation.

What are the key points of these Executive Orders?

President Trump signed an Executive Order (EO1) the afternoon of Friday, January 27, 2017, available at https://www.whitehouse.gov/the-press-office/2017/01/27/executive-order-protecting-nation-foreign-terrorist-entry-united-states, which, according to its introduction, is intended to “protect Americans.” After Judge James Robart of the U.S. District Court for the Western District of Washington, on February 3, 2017, issued a TRO [http://cdn.ca9.uscourts.gov/datastore/general/2017/02/03/17-141_TRO_order.pdf] that temporarily blocked the government from enforcing EO1, and the Court of Appeals for the Ninth Circuit on February 9 refused to stay the injunction pending appeal [http://cdn.ca9.uscourts.gov/datastore/opinions/2017/02/09/17-35105.pdf ], President Trump signed a second Executive Order (EO2) on March 6, 2017, available at https://www.whitehouse.gov/the-press-office/2017/03/06/executive-order-protecting-nation-foreign-terrorist-entry-united-states.

EO2 was to become effective as of March 16, 2017, and replaced EO1, though much of EO2 is currently not in effect due to injunctions discussed further below. Certain portions of EO2 will come into effect on the morning of June 29, 2017, 72 hours after a Supreme Court decision discussed below that stayed a portion of the injunctions. A Presidential Memorandum issued on June 14, 2017 [https://www.whitehouse.gov/the-press-office/2017/06/14/presidential-memorandum-secretary-state-attorney-general-secretary] indicates that the provisions of EO2 will take effect 72 hours after the lifting of an injunction against them, to provide time for orderly implementation.

Among EO1’s key provisions were:

  • A 90-day ban on the issuance of U.S. visas to and entry to the United States of anyone who is a national of one of seven (7) “designated” countries—Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen. Iraq was subsequently removed from the list when EO2 was issued.
  • An immediate review by the U.S. Department of Homeland Security (DHS) of the information needed from any country to adequately determine the identity of any individual seeking a visa, admission or other immigration benefit and that they are not “security or public-safety threat[s].” This report must be submitted within 30 days and must include a list of countries that do not provide adequate information.
  • The suspension of the U.S. Refugee Admissions Program (USRAP) for 120 days.
  • The implementation of “uniform screening standards for all immigration programs” including reinstituting “in person” interviews.
  • A requirement that all individuals who need visas apply for them in person at U.S. consulates, rather than allowing “mail-in” or drop-box applications.

EO2 added a number of exemptions and discretionary waivers that limited the effect of EO1 in an effort to address some of the concerns raised by Judge Robart in his TRO and by the Court of Appeals for the Ninth Circuit. According to EO2, the 90-day ban on issuance of visas and entry into the United States for nationals of the six designated countries would only apply to those who

  • Were outside the United States on the effective date of EO2;
  • Did not have a valid visa at 5 p.m., Eastern Standard Time on January 27, 2017 (when EO1 was first promulgated); and
  • Did not have a valid visa on the effective date of EO2.

EO2 further exempted several classes of persons from its entry ban:

  • Any lawful permanent resident of the United States (LPR);
  • Anyone admitted to or paroled into the United States after the effective date of EO2;
  • Anyone with a document other than a visa permitting travel to the United States, such as an advance parole document, valid on the effective date of EO2 or afterwards;
  • Any dual national traveling on a passport from a non-designated country;
  • Anyone traveling on a diplomatic or diplomatic-type visa, NATO visa, C-2 visa for travel to the UN, or G-1, G-2, G-3 or G-4 visa;
  • Anyone granted asylum, admitted as a refugee, or granted withholding of removal, advance parole, or protection under the Convention Against Torture.

The references to the effective date of EO2 have been complicated by subsequent developments, especially the June 14, 2017 presidential memorandum [https://www.whitehouse.gov/the-press-office/2017/06/14/presidential-memorandum-secretary-state-attorney-general-secretary], so anyone potentially affected by exemptions linked to the effective date should consult an immigration attorney.

The Supreme Court has temporarily left in place part of two injunctions against EO2, as described in more detail below, so as to create an additional exemption. Under the modified injunctions, the travel ban and refugee ban of EO2 do not apply to “foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States.” In its decision issued on June 26, 2017 [https://www.supremecourt.gov/opinions/16pdf/16-1436_l6hc.pdf], the Supreme Court elaborated further on the requirements of such a bona fide relationship:

  • For a bona fide relationship with an individual person to qualify under the modified injunction, “a close familial relationship is required. A foreign national who wishes to enter the United States to live with or visit a family member, like [one plaintiff’s] wife or [another plaintiff’s] mother-in-law, clearly has such a relationship.”
  • For a bona fide relationship with an entity, “the relationship must be formal, documented, and formed in the ordinary course, rather than for the purpose of evading EO-2.” According to the Supreme Court, this could include:
    • Students admitted to a U.S. university;
    • “a worker who has accepted an offer of employment from an American company”; or
    • “a lecturer invited to address an American audience”.

The list is not necessarily an exclusive one, but the concept of a bona fide relationship will not stretch so far as to cover, for example, a nonprofit which adds affected immigrants to its client list for the purpose of claiming harm from their exclusion.

In addition to the exemptions, EO2 provides a consular officer or CBP official with the authority to grant discretionary waivers of the ban on a case-by-case basis. It lists various circumstances under which waivers might be appropriate, including:

  • One previously admitted to the United States for work, study, or other long-term activity, who seeks to enter the United States to resume that activity and whose activities would be impaired by denial of entry during the suspension period;
  • One who seeks to enter the United States “for significant business or professional obligations” which would be impaired by denial of entry during the suspension period;
  • One who “seeks to enter the United States to visit or reside with a close family member (e.g., a spouse, child, or parent) who is a United States citizen, lawful permanent resident, or alien lawfully admitted on a valid nonimmigrant visa, and the denial of entry during the suspension period would cause undue hardship”;
  • The case of “an infant, a young child or adoptee, an individual needing urgent medical care, or someone whose entry is otherwise justified by the special circumstances of the case”;
  • One who has been employed by the United States government and “can document that he or she has provided faithful and valuable service to the United States Government”;
  • One traveling for purposes related to certain international organizations;
  • “a landed Canadian immigrant who applies for a visa at a location within Canada”; or
  • One “traveling as a United States Government-sponsored exchange visitor.”

Some of these categories of potential waivers may be rendered unnecessary by the modified injunction left in place by the Supreme Court, but others remain potentially relevant.

What is an Executive Order? Can it be challenged?

Does the EO change the law or regulations?

While the president may have the authority to issue such orders if the administration deems the action to be in the public interest, EO1 and EO2 did not change, replace, or repeal existing statutes (laws) or regulations.

A number of legal challenges have been made to EO1 and EO2. Many believe that wide sweeping bans such as the travel ban effectively discriminate against individuals on a religious basis, as all the countries affected are predominantly Muslim. Others have maintained that the travel ban and change in refugee admissions rules are beyond the President’s statutory authority.

On Saturday, January 28, 2017, U.S. federal judge Ann Donnelly of the U.S. District Court for the Eastern District of New York in Brooklyn issued an emergency stay [http://i2.cdn.turner.com/cnn/2017/images/01/28/darweesh.v.trump_decision.and.order.document-3.pdf] that temporarily blocked the government from sending people out of the country under EO1 after they had landed at a U.S. airport with valid visas or green cards. On Friday, February 3, 2017, Judge James Robart of the U.S. District Court for the Western District of Washington issued a TRO [http://cdn.ca9.uscourts.gov/datastore/general/2017/02/03/17-141_TRO_order.pdf] that blocked the government from enforcing the travel ban at all. Several other federal courts also issued stays or TROs. In light of the Western District of Washington TRO, which applied nationwide, DHS announced on February 4 that it had “suspended any and all actions implementing the affected sections of the Executive Order” [https://www.dhs.gov/news/2017/02/04/dhs-statement-compliance-recent-court-order].

The federal government appealed to the Court of Appeals for the Ninth Circuit and asked the Court of Appeals for an emergency stay of the Western District of Washington TRO, but on February 5, the Court of Appeals denied the request for an immediate administrative stay pending review of the emergency motion for stay [http://cdn.ca9.uscourts.gov/datastore/general/2017/02/05/17-35105.pdf ], and on February 9, the Court of Appeals issued a published Order denying the motion for stay pending appeal [http://cdn.ca9.uscourts.gov/datastore/opinions/2017/02/09/17-35105.pdf]. Rather than pursuing the appeal regarding EO1, the Administration in March promulgated EO2 in place of EO1 and withdrew the appeal regarding EO1.

EO2 was also challenged in the courts before it could take effect. A TRO against most of its provisions [http://cdn.ca9.uscourts.gov/datastore/general/2017/03/30/17-15589%203-15%20DC%20order.pdf ], and then a preliminary injunction against the same provisions [http://cdn.ca9.uscourts.gov/datastore/general/2017/03/30/17-15589%203-29%20DC%20order.pdf], were issued by the U.S. District Court for the District of Hawaii in the case of Hawaii v. Trump, and that injunction was upheld almost in its entirety by the Court of Appeals for the Ninth Circuit [http://cdn.ca9.uscourts.gov/datastore/uploads/general/cases_of_interest/17-15589%20per%20curiam%20opinion.pdf], although the Court of Appeals narrowed the Hawaii injunction so as to allow the government to conduct the internal reviews provided for by EO2. The travel ban in section 2(c) of EO2 was also enjoined by the U.S. District Court for the District of Maryland in the case of IRAP v. Trump [http://www.mdd.uscourts.gov/sites/mdd/files/TDC-17-0361-Opinion-03162017.pdf], and that injunction was upheld by the en banc Court of Appeals for the Fourth Circuit [http://coop.ca4.uscourts.gov/171351.P.pdf].

The government sought review of the Hawaii and Maryland injunctions against EO2 in the U.S. Supreme Court. On June 26, 2017, the Supreme Court issued a decision [https://www.supremecourt.gov/opinions/16pdf/16-1436_l6hc.pdf] which granted the government’s petitions for writs of certiorari to review the injunctions and, pending that review, partially stayed the injunctions, narrowing them so that they only applied to those having a bona fide relationship with a person or entity in the United States, as discussed above.

The 90-Day Travel Ban

What exactly does the 90-day ban prohibit?

The ban halts visa issuance and entry to the United States for affected individuals.

When the ban is effective, the U.S. Department of State’s (DOS) consulates around the world are not permitted to issue visas to individuals who are nationals of a designated country. Consulates will deny pending visa applications of any individuals who fall within the scope of the EO—both nonimmigrant (temporary) visas, such as Bs, Fs, and H-1Bs, and immigrant visas for those seeking to become U.S. permanent residents.

When EO1 was in effect, DOS had initially indicated that all visas already issued to those within the scope of EO1 were provisionally revoked. The number of revoked visas is subject to significant uncertainty, although it is clear that it is large: a lawyer for the Department of Justice advised a judge hearing one of the above-referenced cases that more than 100,000 visas had been revoked, but DOS then said the number was fewer than 60,000. [https://www.nytimes.com/2017/02/03/us/visa-ban-legal-challenge.html]. Following the TRO against EO1, however, DOS indicated that it had lifted the provisional revocation, and that the visas were now valid again if they had not been physically cancelled. [https://travel.state.gov/content/travel/en/news/important-announcement.html ]. (In instances where visas were physically cancelled, individuals would require either a new visa, or a waiver from U.S. Customs and Border Protection (CBP) at the port of entry.)

At times when the relevant sections of EO1 were not subject to a TRO, stay, or injunction with respect to particular individuals, CBP officers at border crossings, U.S. airports, and pre-flight inspection at certain foreign airports were not permitted to admit such individuals who are nationals of designated countries or allow them to enter the United States, even if they have a facially valid visa. The same will now apply to EO2.

Who is affected by the 90-day ban?

This ban applies to nationals of the six (6) designated countries: Iran, Libya, Somalia, Sudan, Syria, and Yemen. (EO1 had also included a seventh country, Iraq, but EO2 removed Iraq from the list.) It does not apply to those subject to the various EO2 exceptions listed above. Under the Supreme Court’s modification of the injunctions issued by the Hawaii and Maryland courts, it also does not apply to those who have a credible claim of a bona fide relationship with a person or entity in the United States. It is not yet clear how CBP and the Department of State will implement the exemptions, including the exemption under the modified injunctions for those having a bona fide relationship.

What does it mean to be a “national”?

A national is a citizen of a particular country, someone entitled to hold the country’s passport. This encompasses someone born in the country or who is a citizen of the country. This may include individuals who were not born in the country but whose parents were, if such parentage entitles them to citizenship in that country. For example, someone born in Germany but whose parents were born in Iran may be considered an Iranian under Iranian law, and therefore may be considered subject to the ban.

Does the ban include “dual” nationals? What if the individual was born in one of the seven countries but is now a citizen of another country (e.g., Canada) and only holds that passport?

According to section 3(b)(iv) of EO2, the ban does not include “any dual national of a country designated under section 2 of this order when the individual is traveling on a passport issued by a non-designated country.” The situation under EO1 was less clear.

Does the ban include permanent residents (“green card” holders)?

Section 3(b)(1) of EO2 specifically exempts LPRs from the ban. EO1 as originally written did seem to ban the entry of affected lawful permanent residents (LPRs), and was applied to at least some LPRs in practice. However, an “authoritative guidance” memorandum subsequently issued by Counsel to the President Donald F. McGahn on February 1, 2017, “clarif[ied]” that EO1 did not ban entry by LPRs.

Does the ban apply to someone who has just traveled to a designated country?

No. Unless the individual is a national of a designated country, the ban does not apply solely because he or she has visited one or more of the six countries. Travel to one of the six countries, however, may increase the likelihood of being questioned by CBP about the nature of the visit—why the person was in the country, for how long, etc., as already provided for in the December 2015 Visa Waiver Program Improvement and Terrorist Travel Prevention Act. Such individuals may be placed in secondary inspection on arrival at a U.S. airport so that CBP may question them about the purpose and nature of such travel.

Can an affected individual still board a plane and try to enter upon arrival at a U.S. airport?

There were reports of airlines refusing to board individuals who appeared to be affected by EO1’s ban. Before making any travel plans, individuals should consult with an immigration attorney for individual counsel and advice.

Should affected individuals travel outside the United States?

Individuals who are affected by this ban must understand that if they depart the United States during the 90-day period, and if the ban is in effect when they attempt to return, they will most likely not be able to return. We caution potentially affected individuals who are in the United States, and who believe they qualify as having a bona fide relationship with a person or entity in the United States or qualify for another exception to EO2, to consult with an immigration attorney before making a decision to travel abroad.

What about individuals who are outside the United States and want to return?

While the ban is in effect, airlines may refuse to board anyone who appears to be affected by the ban. Those who are able to board a plane almost certainly will be refused admission (entry) to the United States on arrival at a U.S. airport. Anyone affected by the ban who is outside the United States at a time when the ban is in effect should consult with an immigration attorney before attempting to return in order to understand the current state of affairs and the risks involved, and to develop a strategy based upon his or her individual circumstances.

What will happen to those who are refused entry by CBP?

Individuals who are refused admission by CBP will be instructed to make arrangements to return on the next outbound flight to the destination from which they arrived. While waiting to return abroad or for a decision on a waiver that would allow their entry (see below regarding exceptions to the ban), they will be held or detained by CBP. They will not necessarily be able to make phone calls or send emails or text messages. CBP’s view is that there is no right to an attorney for individuals who arrive at U.S. airports or land ports-of-entry and seek admission to the United States. In practice, many CBP officers will agree to speak with lawyers representing such individuals. Keep in mind that as the ban comes back into effect, CBP officers may be overwhelmed in dealing with these arrivals and that it may be difficult—even for experienced immigration attorneys—to communicate quickly with CBP. Wherever possible, advance planning will be critical.

Are there any exceptions to the ban?

EO2 as written contains a number of exceptions for persons already having various sorts of lawful status or documentation, as discussed above. The injunctions modified by the Supreme Court further exempt from the application of EO2 anyone having a bona fide relationship with a person or institution in the United States.

EO2 also permits DOS and DHS to issue visas, or other immigration benefits, to affected individuals on a “case-by-case” basis, as discussed above. At this time, it is not clear how such requests will be adjudicated. Anyone seeking to make such a request during a time when the travel ban is in effect is advised to consult with an immigration attorney in order to prepare a strategy and supporting documentation.

Can CBP detain individuals?

Individuals who are refused admission and who agree to return on an outbound flight will be detained or held by CBP until they can depart.

At this time, we do not know how CBP will be dealing with those who seek to challenge the refusal of admission. When EO1 was first implemented, there were credible reports that CBP was detaining LPRs notwithstanding the court cases and Secretary Kelly’s statement of January 29, 2017 [https://www.dhs.gov/news/2017/01/29/statement-secretary-john-kelly-entry-lawful-permanent-residents-united-states]. It is also possible that CBP may agree to defer the inspection of individuals who seek to challenge the refusal of admission, which means that CBP will give them an appointment to return to CBP at a later date to review their case. At this time, it is not known how CBP will be handling such situations; different CBP officers and airports may take different actions.

Any affected individual thinking of traveling to the United States should consult with an immigration attorney about his or her individual circumstances. EO2, like EO1, does not change the existing immigration law, including the right to apply for asylum.

How are the U.S. consulates implementing the ban as it applies to visas?

It is not yet clear how the DOS will implement the EO2 ban, as limited by the modified injunction left in place by the Supreme Court to apply only to those lacking a bona fide relationship with a person or entity in the United States.

According to credible sources, when EO1 first came into effect, the DOS had issued a cable to all embassies and consular posts to suspend the issuance of nonimmigrant and immigrant visas for nationals of designated countries. As discussed above, EO2 has an exception for nationals of the designated countries who are applying for certain diplomatic and related visas; presumably affected individuals seeking such visas may still apply for and expect to receive these visas, if otherwise eligible. Other visa categories may necessarily be covered by the modified injunction, since many visa categories by their nature require a relationship with a U.S. family member or U.S. entity such as an employer or school.

While EO1 was in effect, consulates were advised to stop scheduling and conducting interviews of affected individuals. They also would stop issuing (printing) visas for anyone who was already interviewed but who has not yet received the visa. Courier services were instructed to return the unadjudicated applications to the affected individuals. Consular posts posted alerts on their websites to advise individuals of the suspension of visa issuance “effective immediately and until further notification.” With regard to immigrant visas for those affected by the ban, the DOS initially indicated that it would cancel currently scheduled interviews and would not schedule immigrant visa interviews for March or April.

While the TRO and injunctions completely barring enforcement of the ban under EO1 were in effect, however, visa processing appears to have resumed. The State Department announced [https://travel.state.gov/content/visas/en/news/executive-order-on-protecting-the-nation-from-terrorist-attacks-by-foreign-nationals.html] that “U.S. embassies and consulates will resume scheduling visa appointments” for nationals of the countries that had been affected by EO1. The same will presumably be true for those covered by the modified injunction against EO2, but the details of implementation are not yet clear.

How will EO2 affect applications pending before U.S. Citizenship and Immigration Services (USCIS)?

According to credible reports, including conversations with USCIS officers at local USCIS Field Offices, when EO1 was first implemented, DHS leadership initially received email instructions over the weekend to suspend the adjudication of immigration applications by affected individuals from any of the seven designated countries. However, on February 2, 2017, Acting USCIS Director Lori Scialabba issued a memorandum indicating that the entry bar would not affect adjudication of benefits for persons in the United States, adjudication of benefits for LPRs, or adjudication of visa petitions for persons outside the United States (since those petitions do not directly confer travel authorization). The same should apply to EO2: the entry ban will not affect most applications pending before USCIS, although refugee adjudications will be affected, and adjudication of I-730 refugee/asylee relative petitions for beneficiaries outside the United States may still be subject to further guidance.

What does EO2 mean for the immigration status of someone who is in the United States?

EO2, like EO1, only directly affects those who are applying for visas (nonimmigrant and immigrant) or seeking entry. It is theoretically possible that revocation of nonimmigrant visas could lead to holders of those visas who were in the United States being subjected to removal proceedings under section 237(a)(1)(B) of the Immigration and Nationality Act, but this charge of deportability could then be contested in those removal proceedings, as explained in a blog post by Cyrus D. Mehta [http://blog.cyrusmehta.com/2017/02/resisting-president-trumps-visa-revocations.html]. During the period when the EO1 travel ban was in effect, before the TRO was entered, it does not appear that such removal proceedings were instituted.

Might the ban be longer than 90 days?

EO2 states that the ban on visa issuance and entry is in place for 90 days. The ban, however, will not be lifted automatically at the end of the 90 days. Instead, DHS is required to report to the President within 20 days what additional information may be needed from particular countries for adjudications of a visa, admission or other benefit under the INA in order to determine that the individual seeking the benefit “is not a security or public-safety threat.” Each country will then be requested to provide such information, and will have 50 days to do so. After that 50-day period, “the Secretary of Homeland Security, in consultation with the Secretary of State and the Attorney General, shall submit to the President a list of countries recommended for inclusion in a Presidential proclamation that would prohibit the entry of appropriate categories of foreign nationals of countries that have not provided the information requested until they do so or until the Secretary of Homeland Security certifies that the country has an adequate plan to do so, or has adequately shared information through other means.”

Will the ban be extended to include other countries?

EO2’s call for a DHS report based, in part, on information provided by other countries that the U.S. government says it needs to properly review and vet individuals appears to allow for DHS to recommend including additional countries in the ban, until they provide the U.S. government with information DHS is requesting of them. This certainly leaves open the possibility and even likelihood of additional countries being included in the ban, should the other countries either not cooperate or not provide information deemed to be adequate by the U.S. government.

Suspension of the U.S. Refugee Admissions Program (USRAP)

Who is affected by the suspension of USRAP?

All refugees being processed abroad and seeking admission to the United States would be affected. However, the suspension of USRAP, like the entry ban, has been enjoined as it relates to any refugees with a bona fide relationship with persons or entities in the United States.

How long is the suspension of USRAP?

The USRAP would be suspended for 120 days. During this time, the DOS and DHS are required to review the application and adjudication process to determine what additional procedures to take to ensure that refugees “do not pose a threat to the security and welfare of the United States” and to implement those procedures. After the 120 days, DOS can resume refugee admissions only for nationals of countries that are found to have sufficient safeguards to ensure the security and welfare of the United States.

How many refugees will be let into the United States?

The EO states that DOS and DHS may admit 50,000 refugees for fiscal year 2017 (after the suspension is lifted). This represents a more than 50% reduction in the number of refugee admissions. However, the Supreme Court clarified in its decision that refugees having a bona fide relationship with a person or entity in the United States are exempt from this limit under the modified injunction, just as they are exempt from the overall suspension of USRAP.

Elimination of Mailed-In Visa Applications or the “Drop-Box” Application

EO2, like EO1, eliminates the ability of some individuals who need visas to apply for their visas at a U.S. consulate without an in-person interview. Previously, some individuals—due to age, or the fact that they were repeat applicants—could mail in their passports to the U.S. consulate or use a “drop-box” system when applying for a visa. This visa interview waiver program has been suspended. Now, anyone who needs a U.S. visa will be required to make an appointment at a U.S. consulate and appear in person for the visa interview.

The impact of this change may be significant, imposing increased burdens on consular staff, longer wait times to schedule visa appointments, and longer waits for individuals to receive their passports and visas back from the consulate. U.S. employers who await the arrival or return of employees may also be negatively affected given these anticipated slowdowns in the process to obtain U.S. visas.

Does the Executive Order change the Visa Waiver Program or ESTA?

No. The “visa interview waiver program” is different from the Visa Waiver Program (VWP), which allows citizens of 38 named countries to travel to the United States. The VWP is still in effect. Citizens of most Western European countries, and others (e.g., Australia, New Zealand, Japan, Singapore), may still seek admission to the United States on the basis of their passports and an ESTA clearance.

Mid-June 2017 Immigration Update

Headlines:

  1. Ninth Circuit Rules Against President Trump’s Revised Travel Ban – The U.S. Court of Appeals for the Ninth Circuit held on June 12, 2017, that President Donald Trump exceeded his authority in issuing the revised executive order banning travel to the United States from certain countries.
  2. New State Dept. Form Asks Certain Visa Applicants ‘Supplemental Questions’ Regarding Social Media Usage – A new Department of State form for visa applicants asks supplemental questions of “[i]mmigrant and nonimmigrant visa applicants who have been determined to warrant additional scrutiny in connection with terrorism or other national security-related visa ineligibilities.”
  3. Labor Dept. Announces Aggressive Anti-Visa Fraud Measures; White House Considers H-1B Overhaul – Secretary of Labor Alexander Acosta recently announced actions “to increase protections of American workers while more aggressively confronting entities committing visa program fraud and abuse.”
  4. Nonprofit Group Fights Cease-and-Desist Order from DOJ – The Northwest Immigrant Rights Project (NWIRP) recently received a “cease-and-desist” letter from the Department of Justice, ordering NWIRP to stop representing clients and close down its asylum advisory program. NWIRP subsequently filed a lawsuit and was granted a temporary restraining order in May.
  5. International Entrepreneur Final Rule Sent Back to OMB for Further Review – A final rule on international entrepreneurs, issued by the Obama administration on January 17, 2017, and scheduled to take effect July 17, 2017, was recently returned to the Office of Management and Budget for further review. The Trump administration has not yet explained its plans for the rule publicly, but it could amend, postpone, or withdraw the rule.
  6. Certain STEM OPT and English Language Students Affected by Loss of Accreditation – Certain students applying for 24-month STEM OPT extension programs and English language study programs are being affected by the U.S. Department of Education’s decision no longer to recognize the Accrediting Council for Independent Colleges and Schools (ACICS) as an accrediting agency.
  7. July Visa Bulletin Notes Oversubscription of Employment-Based Green Card Categories for China EB-3 and India EB-4 Categories – The date for these preferences will once again become Current for October, the first month of fiscal year 2018.
  8. Pro Bono: DACA Recipient Can Stay, Work in United States for Now – Kuck Immigration Partners announced that the U.S. District Court for the Northern District of Georgia in Atlanta recently preliminarily enjoined USCIS’s decision to terminate DACA status and employment authorization for a Mexican person living and working in the United States.
  9. Firm In the News…

Details

  1. Ninth Circuit Rules Against President Trump’s Revised Travel Ban

The U.S. Court of Appeals for the Ninth Circuit held on June 12, 2017, that President Donald Trump exceeded his statutory authority in issuing the revised executive order banning travel to the United States from certain countries. In suspending the entry of more than 180 million nationals from six countries, suspending the entry of all refugees, and reducing the cap on the admission of refugees from 110,000 to 50,000 for fiscal year 2017, the President “did not meet the essential precondition” to exercising that authority, the court said: “The President must make a sufficient finding that the entry of these classes of people would be ‘detrimental to the interests of the United States.’ ” Further, the court said, the order “runs afoul of other provisions of the [Immigration and Nationality Act] that prohibit nationality-based discrimination and require the President to follow a specific process when setting the annual cap on the admission of refugees.” On these statutory bases, the court affirmed in large part the district court’s order preliminarily enjoining several sections of the executive order. The court also vacated the portions of the injunction that prevent the government from conducting internal reviews. The court remanded the case to the district court with instructions to reissue an order consistent with the June 12 opinion.

The Trump administration also seeks Supreme Court review of a May 25, 2017, decision by the U.S. Court of Appeals for the Fourth Circuit on the revised travel ban. In that case, the Fourth Circuit ruled against the revised executive order on constitutional grounds, citing the First Amendment’s Establishment Clause against religious discrimination.

The Ninth Circuit’s decision is at http://cdn.ca9.uscourts.gov/datastore/uploads/general/cases_of_interest/17-15589%20per%20curiam%20opinion.pdf. The Fourth Circuit’s decision is at http://coop.ca4.uscourts.gov/171351.P.pdf.

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  1. New State Dept. Form Asks Certain Visa Applicants ‘Supplemental Questions’ Regarding Social Media Usage

A new Department of State form, DS-5535, for visa applicants asks supplemental questions of “[i]mmigrant and nonimmigrant visa applicants who have been determined to warrant additional scrutiny in connection with terrorism or other national security-related visa ineligibilities,” according to a related Federal Register notice. A wide variety of organizations are expressing concerns about the new form and its use.

The form’s questions include where the applicant has traveled outside his or her country of residence in the last 15 years, with “details for each trip, including locations visited, date visited, source of funds, and length of stay.” The form also asks for information about any passports other than those listed in the visa application; full names and dates of birth of any siblings; children; current or previous spouse or civil/domestic partner; addresses where the applicant has lived during the last 15 years; phone numbers, including “primary, secondary, work, home, and mobile numbers,” used over the last 5 years; email addresses used over the past 5 years, including “primary, secondary, work, personal, and educational”; usernames for any websites or social media applications used to create or share content, including photos, videos, and status updates, over the last 5 years (the form does not ask for passwords); and employers, job descriptions, and job titles over the last 15 years.

The Federal Register notice announcing the new form explains that most of this information is already collected on visa applications but for a shorter time period; for example, 5 years rather than 15 years. The notice states that requests for names and dates of birth of siblings and, for some applicants, children are new. The request for social media identifiers and associated platforms is also new for the Department of State, although the Department of Homeland Security (DHS) already collects such information on a “voluntary basis” from certain individuals. The notice explains that applicants may be asked to provide details of their international or domestic (within their country of nationality) travel, if it appears to the consular officer that the applicant has been in an area while the area was under the operational control of a terrorist organization. Applicants “may be asked to recount or explain the details of their travel, and when possible, provide supporting documentation.”

Reaction. A number of organizations sent a letter to the Office of Management and Budget (OMB) and the Department of State expressing their concerns about the new form. Among other things, the letter acknowledges the need to secure the United States, but cautions that there is also a need to remain open to those pursuing academic study and scientific research. The letter states that the notice is likely to have a “chilling effect” not only on those required to submit additional information but indirectly on all international travelers coming to the United States. According to the letter, the notice also provides insufficient information on the criteria for identifying those required to complete the supplemental form, the effect of unintentional incomplete disclosure, and remedies for correcting information initially provided. “These additional questions could lead to unacceptably long delays in processing, which are particularly harmful to applicants with strict activity timeframes or enrollment deadlines,” the letter notes, adding that no information is provided about the longer-term use, retention, or privacy protections for the information provided. The letter asks that the State Department publish an additional notice with this and other information.

The letter notes that scientific exchanges, whether through long- or short-term visits or at professional society meetings, are vitally important to the United States. Many project collaboration meetings take place at conferences held in the United States, and not having the top international talent in attendance “would be a significant problem,” the letter states. “Scientists must periodically meet in person, and if bureaucratic hurdles for entry into the United States are too high, they will hold their meetings elsewhere, hurting U.S. economic, technological, and scientific competitiveness.” For example, the letter notes, the “American Geophysical Union and the American Physical Society both have strong international counterparts that hold regular conferences and meetings, and the collaborators could well turn to those venues instead.”

Moreover, the letter notes, many U.S. professional societies have significant numbers of international members, and it is important for those individuals to be able to attend the U.S. societies’ meetings. The letter cites a 2012 report by PricewaterhouseCoopers noting that nearly 1.8 million meetings (not all scientific) were held in the United States during 2009 involving “an estimated 205 million participants and generat[ing] more than $263 billion in direct spending and $907 billion in total industry output.” The attendance of international scientists at U.S. meetings and conferences “is important in terms of the intellectual content they contribute, for the benefit to the United States from the formation and sustainment of partnerships with U.S. counterparts, and in terms of benefits to the U.S. economy,” the letter notes.

The letter was signed by 55 U.S. professional associations and other entities, including the American Association of Collegiate Registrars and Admissions Officers, the American Society of Civil Engineers, the Association for Research in Vision and Ophthalmology, the Institute of Mathematical Statistics, NAFSA: Association of International Educators, and the Society of Engineering Science.

The OMB approved the new form on an emergency basis for six months. The form is at https://tr.usembassy.gov/supplemental-questions-visa-applicants-ds-5535/. The Federal Register notice explaining who will use the form and why is at https://www.federalregister.gov/documents/2017/05/04/2017-08975/notice-of-information-collection-under-omb-emergency-review-supplemental-questions-for-visa. The letter from U.S. professional associations and other entities expressing concerns about the form is at http://www.nafsa.org/_/file/_/amresource/DS5535Comment051817.pdf.

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  1. Labor Dept. Announces Aggressive Anti-Visa Fraud Measures; White House Considers H-1B Overhaul

Secretary of Labor Alexander Acosta recently announced actions “to increase protections of American workers while more aggressively confronting entities committing visa program fraud and abuse,” according to a Department of Labor (DOL) press release. Secretary Acosta said these measures will include “heightened use of criminal referrals. The U.S. Department of Labor will focus on preventing visa program abuse and take every available legal action against those who abuse these programs.”

The announcement states that “it is now the policy of the department to enforce vigorously all laws within its jurisdiction governing the administration and enforcement of non-immigrant visa programs,” including:

  • Directing the DOL’s Wage and Hour Division (WHD) to use all its tools in conducting civil investigations to enforce labor protections provided by the visa programs.
  • Directing the DOL’s Employment and Training Administration (ETA) to develop proposed changes to the Labor Condition Application, and directing the WHD to review its investigatory forms, to better identify systematic violations and potential fraud, and to provide greater transparency for agency personnel, U.S. workers, and the general public.
  • Directing the WHD, ETA, and Office of the DOL Solicitor to coordinate the administration and enforcement activities of the visa programs and make referrals of criminal fraud to the Office of the Inspector General (OIG).
  • Establishing a working group made up of senior leadership from ETA, WHD, and the Solicitor’s office to supervise these efforts and coordinate enforcement. The working group will invite OIG to send representatives to participate in its efforts.

DOL will continue to work with the departments of Justice and Homeland Security to further investigate and detect visa program fraud and abuse, the announcement states.

In addition, DOL said it has begun “to prioritize and publicize the investigation and prosecution of entities in violation of visa programs.” For example, the agency announced that it obtained a preliminary injunction under the H-2A visa program from the U.S. District Court for Arizona against G Farms for “illegal and life-threatening housing provided to agricultural workers.” DOL said it “continues to investigate the violations at G Farms and has also been in contact with the OIG on this matter.”

This announcement comes on the heels of President Trump’s April 18, 2017, executive order ordering several agencies to suggest H-1B reforms. The Department of Homeland Security said it plans to issue new rules and guidance on the H-1B program. According to reports, the White House is also working with the Department of Justice to consider measures such as reducing the numerical limit on, and duration of, H-1B visas, among other actions.

The announcement is at https://www.dol.gov/newsroom/releases/opa/opa20170606.

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  1. Nonprofit Group Fights Cease-and-Desist Order from DOJ

The Northwest Immigrant Rights Project (NWIRP) recently received a “cease-and-desist” letter from the Department of Justice, ordering NWIRP to stop representing clients and close down its asylum advisory program at an immigration detention center in Washington state. NWIRP subsequently filed a lawsuit and was granted a temporary restraining order in May. NWIRP provides free and low-cost legal services to thousands of immigrants each year and, as part of the larger “airport lawyers” efforts nationwide, sent staff and volunteer lawyers to SeaTac airport in Seattle, Washington, to provide emergency legal assistance to travelers caught up in President Trump’s travel ban.

The U.S. District Court for the Western District of Washington at Seattle noted that the NWIRP is the sole pro bono organization listed by the Executive Office for Immigration Review (EOIR) for the state of Washington. In 2008, EOIR published new professional conduct rules for attorneys appearing in immigration proceedings. EOIR’s rules were intended to protect individuals in immigration proceedings by disciplining attorneys who engage in “criminal, unethical, or unprofessional conduct or frivolous behavior.” One of the activities the rules targeted was “notario fraud,” where a would-be immigrant pays for ongoing legal services that are not provided. The court noted that NWIRP sometimes provides emergency legal services without the resources to commit to full future representation of each potential client. NWIRP said that it met with the local immigration court administrator to discuss the rule’s impact and “agreed that it would notify the court when it assisted with any pro se motion or brief by including a subscript or other clear indication in the document that NWIRP had prepared or assisted in preparing the motion or application.”

Nearly nine years after promulgating the rule, EOIR sent a “cease and desist” letter to NWIRP ordering the nonprofit to stop “representing aliens unless and until the appropriate Notice of Entry of Appearance form is filed with each client that NWIRP represents.” NWIRP filed suit against EOIR, among others, seeking injunctive relief and a temporary restraining order so the organization can maintain the status quo until the parties can be heard on the motion for preliminary injunction.

In granting the temporary restraining order, the court said NWIRP had shown that “it is likely to succeed on the claims that entitle it to relief; NWIRP has already suffered and is likely to continue suffering irreparable harm in the absence of temporary injunctive relief; the balance of the equities tips in NWIRP’s favor; and granting this [temporary restraining order] is in the public interest.”

The court order is at https://www.nwirp.org/wp-content/uploads/2017/05/Dkt-33-order-granting-tro.pdf.

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  1. International Entrepreneur Final Rule Sent Back to OMB for Further Review

A final rule on international entrepreneurs, issued by the Obama administration on January 17, 2017, and scheduled to take effect July 17, 2017, was recently returned to the Office of Management and Budget for further review. The Trump administration has not yet explained its plans for the rule publicly, but it could amend, postpone, or withdraw the rule.

The final rule would add new regulatory provisions guiding the use of parole on a case-by- case basis with respect to entrepreneurs of start-up entities who can demonstrate through evidence of “substantial and demonstrated potential for rapid business growth and job creation” that they would provide a “significant public benefit” to the United States. Such potential would be indicated by, among other things, “the receipt of significant capital investment from U.S. investors with established records of successful investments, or obtaining significant awards or grants from certain Federal, State or local government entities.” If granted, parole would provide a temporary initial stay of up to 30 months (which may be extended by up to an additional 30 months) “to facilitate the applicant’s ability to oversee and grow his or her start-up entity in the United States.”

The final rule is at https://www.gpo.gov/fdsys/pkg/FR-2017-01-17/pdf/2017-00481.pdf.

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  1. Certain STEM OPT and English Language Students Affected by Loss of Accreditation

Certain students applying for 24-month STEM OPT (optional practical training in science, technology, engineering, or math) extension programs and English language study programs are being affected by the U.S. Department of Education’s decision in December no longer to recognize the Accrediting Council for Independent Colleges and Schools (ACICS) as an accrediting agency.

U.S. Citizenship and Immigration Services recently announced that this determination immediately affects two immigration-related programs:

  • English language study programs, as the programs are required to be accredited under the Accreditation of English Language Training Programs Act
  • F-1 students applying for a 24-month STEM OPT extension, as the regulations require them to use a degree from an accredited Student and Exchange Visitor Program (SEVP)-certified school as the basis of their STEM OPT extensions. The school must be accredited at the time of the application; this is the date of the Designated School Official’s (DSO) recommendation on the Form I-20.

SEVP will provide guidance to affected students in notification letters if their school’s certification is withdrawn. However, students enrolled at an ACICS-accredited school should contact their designated school officials (DSOs) immediately “to better understand if and how the loss of recognized accreditation will impact the F/M student’s status and/or immigration benefits application(s).”

If an ACICS-accredited school voluntarily withdraws from SEVP certification or cannot provide evidence in lieu of accreditation for programs listed on their Form I-17, international students at these schools will have 18 months to:

  • Transfer to a new SEVP-certified program;
  • Continue their program of study until the current session end date listed on their Form I-20 (not to exceed 18 months); or
  • Leave the United States.

After this 18-month grace period, SEVP will terminate the SEVIS records of any active F/M student at an ACICS-accredited school who has not transferred to a SEVP-certified school or departed the United States. USCIS said this guidance applies equally to all F/M students regardless of the program of study, and the 18-month period is valid for English as a Second Language (ESL) students as well.

ACICS-accredited schools will be unable to issue program extensions, and students will only be allowed to finish their current session if the ACICS-accredited school voluntarily withdraws its certification or if it is withdrawn by SEVP. If a student’s ACICS-accredited school is able to provide evidence of an ED-recognized accrediting agency or evidence in lieu of accreditation within the allotted time frame, the student may remain at the school to complete his or her

Students whose Forms I-20 have a DSO recommendation date before December 12, 2016, are not affected.

The USCIS announcement is at https://www.uscis.gov/news/alerts/certain-students-applying-english-language-study-and-24-month-stem-opt-extension-programs-affected-acics-loss-accreditation. More information about the loss of accreditation is at https://www.ice.gov/sevis/acics-loss-accreditation-recognition.

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  1. July Visa Bulletin Notes Oversubscription of Employment-Based Green Card Categories for China EB-3 and India EB-4 Categories

The Department of State’s Visa Bulletin for the month of July 2017 includes the following information:

CHINA Employment-based Third (E3) preference category: Readers were advised in item F of the June Visa Bulletin number 6, that it would be necessary to impose a date no later than August. The continued high level of demand for E3 numbers for USCIS adjustment of status applicants has required the establishment of a date for July. This has been done in an attempt to hold number use within the China E3 annual limit. The China E3 date will return to October 1, 2014 for October, the first month of fiscal year 2018.

INDIA Employment-based Fourth (E4) AND Certain Religious Workers (SR) preference categories: As readers were advised in the June Visa Bulletin number 6, there has been extremely high demand in the E4 and SR categories. Pursuant to the Immigration and Nationality Act, it has been necessary to impose E4 and SR Final Action Dates for India, which has reached its per-country limit. This action will allow the Department to hold worldwide number use within the maximum allowed under the FY-2017 annual limits.

The date for these preferences will once again become CURRENT for October, the first month of fiscal year 2018.

The July 2017 Visa Bulletin is at https://travel.state.gov/content/visas/en/law-and-policy/bulletin/2017/visa-bulletin-for-july-2017.html.

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  1. Pro Bono: DACA Recipient Can Stay, Work in United States for Now

Kuck Immigration Partners announced that the U.S. District Court for the Northern District of Georgia in Atlanta recently preliminarily enjoined U.S. Citizenship and Immigration Services’ (USCIS) decision to terminate Deferred Action for Childhood Arrivals (DACA) status and renewal, and employment authorization, for a Mexican person living and working in the United States, Jessica M. Colotl Coyotl. The court ordered USCIS to reconsider her DACA termination and readjudicate her renewal application “in a manner consistent with the Department of Homeland Security’s Standard Operating Procedures and this Order.” The court reinstated her work authorization pending readjudication of the renewal application and reconsideration of termination of DACA. The court said this order would remain effective until a further order from the same court, “which will issue only after Defendants have submitted sufficient proof that they have followed all relevant standard operating procedures regarding the adjudication of Plaintiff’s renewal application and any termination of Plaintiff’s DACA status.”

Ms. Colotl is 28 and has lived continuously in the United States since she was 11. She works at Kuck Immigration Partners as a paralegal and aspires to attend law school and become an immigration lawyer. The Kuck firm represented Ms. Colotl pro bono. The decision is at https://www.dropbox.com/s/016oyab4nyrq26l/TRO%20Order_Colotl.pdf?dl=0. A related video is at https://www.youtube.com/watch?v=84UIJon6HuI&app=desktop.

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  1. Firm In the News…

David Isaacson published The “politically correct version”: What Donald Trump’s Recent Tweet and Previous Use of the Term “Politically Correct” Tell Us About  His Revised Executive Order  on June 5, 2017.

Cyrus D. Mehta published Trump’s Tweet On “Extreme Vetting” May Have Opened the Door to a Court Challenge  on June 12, 2017. 

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June 2017 Global Immigration Update

Feature Article:

EFFECTS OF INCREASED ENFORCEMENT, SECURITY, NATIONALISM ON IMMIGRATION LAW: AN OVERVIEW – This article provides an overview of recent developments in several countries with respect to increases in enforcement, security measures, and nationalism.

Country Updates:

AUSTRALIA – This article summarizes significant changes to the 457 visa system that will replace the current 457 visa by March 2018. Important changes have already been implemented. The changes occurred without warning.

ITALY – Citizenship reform will be discussed in the Senate in June.

RUSSIA – Rules of address registration have been issued for the FIFA World Cup 2018 and the FIFA Confederation Cup 2017. Also, restrictions have been lifted for Turkish nationals traveling to Russia for tourism, business, or work purposes.rticle

Feature Article:

EFFECTS OF INCREASED ENFORCEMENT, SECURITY, NATIONALISM ON IMMIGRATION LAW: AN OVERVIEW

This article provides an overview of recent developments in several countries with respect to increases in enforcement, security measures, and nationalism.

Canada

The election of Donald J. Trump as the 45th President of the United States and the hostile political climate that has ensued in relation to immigration issues has had a significant impact on Canadian immigration. The initial enforcement of President Trump’s Executive Order, “Protecting the Nation from Foreign Terrorist Entry into the United States,” has significantly affected the seven countries named in the ban. Many citizens of these countries living in the United States, fearful for their future, have turned to Canada as an alternative. Canadian immigration lawyers have witnessed an increase in the interest of highly skilled individuals living and working in the United States in relocating to Canada.

The interest in Canada has also increased due to the temporary pause in the issuance of H-1B visas in the United States, effective April 3, 2017. This is in stark contrast with the recent commitment of Immigration, Refugees and Citizenship Canada (IRCC) to faster processing times for work permits for highly skilled workers. It remains to be seen whether Canada will seize this opportunity to attract more foreign talent. It is interesting to note that this political climate in the United States coincides with Canada’s Express Entry selection system inviting the highest number of candidates to apply for Canadian permanent residence since the program began on January 1, 2015.

President Trump’s election has also been a trigger for individuals to cross the border into Canada to make refugee claims. In light of the Safe Third Country Agreement between Canada and the United States, which stipulates that individuals must make a refugee claim in the first country in which they land, many individuals in the United States have been illegally crossing the border to avoid being caught under the agreement (which only applies at official ports of entry). Although the exact numbers of individuals making refugee claims in Canada is not known, the increase is significant and has captured the attention of news outlets across Canada. Available statistics indicate that the number of asylum seekers intercepted at the border in the first two months of 2017 is equal to approximately half of the total number of asylum seekers intercepted in all of 2016. As the weather warms up in Canada, it is expected that even more individuals will be making their way to Canada, thus putting more and more pressure on Canadian Border Service Agency officers to monitor borders and guide asylum seekers in making refugee claims.

Italy

On April 12, 2017, the Italian Parliament approved measures to accelerate asylum procedures, boost repatriation of undocumented migrants, and speed up deportations of those whose asylum requests have been rejected.

The Law Decree 17 February 2017, n. 13, signed into law on April 12 (the so-called Minniti-Orlando immigration law, named after its promoters), introduces several new provisions designed to streamline the processing of asylum requests as well as the deportations of those whose requests are rejected.

Under the new rules:

  • One of the two levels in the Italian court system to which asylum seekers can currently appeal in case of rejection is cancelled, and the deadline for submitting such a request is set to 1 month. As a result, an asylum ruling can now be appealed only once instead of twice. However, the right to appeal to Italy’s Supreme Court of Cassation (Corte Suprema di Cassazione) remains in place. Twenty-six new sections in courts across the country are created, specialized in immigration.
  • Two hundred and fifty people are to be recruited in the next two years to work on public committees specialized in dealing with asylum requests, with the purpose of strengthening the committees assessing the applications and ensuring faster processing times.
  • Asylum seekers hosted in reception centers will be registered as residents with the local municipalities and may choose to take part in volunteer or community service work.
  • Identification and expulsion centers (Centri di Identificazione ed Espulsione [CIE]) across Italy are increased in number and become “holding centres for repatriation” (Centri di permanenza per il rimpatrio [CPR]), each with a capacity not exceeding 150 people, with a total of 1,600 persons, located near major transport infrastructures.
  • Summary judgment for expulsion measures is directed to those considered a threat to public health or security and for prevention of terrorism.
  • Illegal immigration is countered with an electronic information system (Sistema Informativo Automatizzato [SIA], connected with the Schengen Information System).
  • Repatriations will occur faster due to cooperation with home countries through bilateral agreements.United StatesOnce a person is issued a visa or is traveling without a visa under the U.S. Electronic System for Travel Authorization (ESTA) program, U.S. Customs and Border Protection (CBP) has been reported to have increased scrutiny and raised the usual lines of questioning, specifically for business travelers and those entering on U.S. work visas. Travelers under the Visa Waiver Program should be prepared for questioning if a CBP immigration inspector determines that they have not been previously interviewed and sufficiently vetted before traveling.The “Hire American” portion of the order calls on the U.S. Secretaries of State, Labor, and Homeland Security and the Attorney General to “propose new rules and issue new guidance to supersede or revise previous rules and guidance if appropriate, to protect the interests of U.S. workers in the administration of our immigration system, including through the prevention of fraud or abuse.”In addition to directing agencies to consider changes in the H-1B lottery system, the Executive Order also calls for rigorous enforcement of U.S. immigration laws. Immigration attorneys have already seen an increase in the rate of requests for further evidence issued by U.S. Citizenship & Immigration Services (USCIS). Such requests may challenge the nature of the position offered—for example, whether it is a “specialty occupation” that normally requires a bachelor’s degree or higher in a specific specialty field—and question the individual’s qualifications for employment in the specialty field. Specific areas of scrutiny include entry-level computer programmers and analysts, as well as staffing companies and foreign workers involved in “third party placement,” which is when the usual place of activity is at a client site rather than the employer’s premises. This trend is likely to continue as USCIS and other agencies move forward in implementation of the new administration’s enforcement-driven policies.
  • Specifically, the agencies are directed to “suggest reforms to help ensure that H-1B Specialty Occupation Nonimmigrant Visas are awarded to the most-skilled or highest-paid petition beneficiaries.”
  • Also, President Trump signed the “Buy American and Hire American” Executive Order on April 18, 2017. The order sets forth his administration’s policy to “maximize…the use of goods, products, and materials produced in the United States” and to “rigorously enforce and administer the laws governing entry into the United States of workers from abroad.”
  • Scrutiny has increased at U.S. consulates and ports of entry. Following the injunction on enforcement of President Trump’s revised travel ban, U.S. Secretary of State Rex Tillerson issued diplomatic cables on March 17, 2017, directing all U.S. consular posts to increase scrutiny of visa applications and applicants for security threats. U.S. consular officers are expected to ask more detailed questions about applicants’ backgrounds. Consular officers also must refer applicants to the Fraud Prevention Unit for mandatory social media history checks if they were present in an area when it was controlled by the “Islamic State” (ISIS) or if the officer determines that an applicant may have ties to ISIS or other terrorist groups. This directive has caused a slowdown in visa issuance and an increase in visa denials.
  • The new provisions do not apply to unaccompanied minor migrants for whom a specific law was recently approved (Law 7 April 2017, n. 47). That law introduces a series of provisions to ensure comprehensive protection for unaccompanied foreign children by means of an effective system guaranteeing legal and health assistance, accurate age assessment, standards for reception centers and child facilities, and support for integration of children.

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Country Updates:

AUSTRALIA

This article summarizes significant changes to the 457 visa system that will replace the current 457 visa by March 2018. Important changes have already been implemented. The changes occurred without warning.

On April 18, 2017, Australia’s Prime Minister, Malcolm Turnbull, announced major changes to the Temporary Residence Subclass 457 program. The changes will also affect the Employer Nomination Scheme (ENS) permanent residence visa program for skilled workers.

The 457 Visa will be phased out and replaced with a Temporary Skills Shortage (TSS) visa, which will comprise two streams: Short-Term (2 years) and Medium-Term (4 years).

With immediate effect, the Consolidated Sponsored Occupation List (CSOL) will be renamed as the Short-Term Skill Occupations List (STSOL), which will be reviewed every 6 months.

Over 200 occupations have been removed from that list. As the change is immediate, all 457 applications currently being processed related to occupations that have been removed from the list will not be approved and applicants will be afforded the opportunity to withdraw the applications and receive a refund of the filing fee.

Conversely, any applications filed on or after April 19, 2017, must nominate occupations on the STSOL or on what is known as the Medium and Long-Term Strategic Skills List (MLTSSL).

Visas granted on or after April 18, 2017, relating to nominations of occupations on the STSOL will only be granted for a two-year period. After two years, a further and final period of two years may be sought. As of March 2018, visa holders can only be sponsored for a permanent visa if they are nominated for a position appearing on the MLTSSL.

457 Visa applicants granted visas on or after April 18, 2017, and holding MLTSSL positions may receive a four-year visa. Holders of the four-year visa will be able to be nominated for a permanent visa after a three-year period of employment with the sponsor.

Also as of March 2018, visa applicants will need to have at least two years of work experience prior to applying for a 457 visa before any nominated position. Apparently those nominated for STSOL positions will be required to demonstrate an intention to remain temporarily only in Australia.

Effective immediately are caveats that add layers of requirements on work experience or are occupation-specific. For example, in certain instances, employers may only nominate certain occupations if the employer is able to demonstrate a turnover of a $1 million per annum and a workforce of not less than five.

Below is a timeline of these changes.

April 19, 2017

  • 216 occupations removed from CSOL with 24 occupations restricted to regional Australia.
  • CSOL re-named as STSOL and MLTSSL introduced.
  • Visa applicants nominated for MLTSSL occupations to receive a four-year visa while those nominated for STSOL will be limited to two years. A second two-year visa may be applied for at the end of the first term.
  • At present persons nominated for permanent visas under the direct stream of the Subclass 186 (ENS) may be nominated for a position from either list. This will cease in March 2018.

July 1, 2017

  • Occupation Lists to be reviewed.
  • The current English-language salary exemption threshold of $96,400.00 will be removed. This means that all 457 Visa applicants will be required to have the equivalent of IELTS Level 5. It is assumed that the current country-of-origin exemption will apply.
  • Training benchmarks will be clarified.
  • Police Clearance Certificates will become mandatory.
  • Regarding ENS, IELTS level 6 in each component is required.
  • Also regarding ENS, a maximum age requirement of 45 (time of application) will apply to Direct Entry Stream applicants. The current 50-year age limit will continue for Temporary Transition applicants.

December 31, 2017

  • The Department of Immigration and Boarder Protection will begin collecting Tax File Numbers for all 457 holders and other employer-sponsored migrants. These data will be matched with Australian Tax Office records to check that 457 visa holders are not underpaid.
  • The Department will publish details of sponsors sanctioned for failing sponsorship obligations.

March 2018

  • The 457 Visa will be abolished and replaced by the TSS Visa, which will have two streams: the Short-Term Stream of up to two years and a Medium-Term Stream of up to four years.
  • The Short-Term Stream (STS) will include the following criteria:Renewal: Onshore renewal once only.

(i)Renewal: Onshore renewal once only.

(ii)   Occupations:

(1)For non-regional Australia – STSOL will apply.

(2)Additional occupations available for regional employers.

(iii) English language requirement: Minimum IELTS of 5 with a minimum of 4.5 in each component.

(iv) Genuine entry: A genuine temporary entrant requirement.

  • The Medium-Term Stream (MTS) will include the following criteria:

(i) Renewal: May be renewed onshore; pathway to permanent residence available after three years.

(ii)   Occupation:

(1) MLTSSL applies with additional occupations for regional employers.

(ii) English language requirement: IELTS Level 5 with 5 in each test component.

  • Eligibility criteria for both streams:

(i) Work experience of at least two years.

(ii)Labor market testing mandatory subject to international trade obligations.

(iii) Salaries to be paid must meet market rate and the Temporary Skill Migration Income Threshold (currently $53,900.00).

(iv)  Character clearance certificates are required.

(v) Introduction of a non-discretionary workforce test, details of which are unknown.

(vi) Training requirement to be strengthened.

  • ENS March changes:

(i) MTSSL only applies with additional occupations available for regional Australia;

(ii) Salaries must meet Temporary Skilled Migration Income Threshold and market rate;

(iii) PR period extended from two to three years;

(iv) Must have three years of relevant work experience;

(v) Must be under 45 years of age at time of application;

(vi) Training requirements are strengthened.

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ITALY

Citizenship reform will be discussed in the Senate in June.

Further discussion of the reform of Italian citizenship law is scheduled for June 15, 2017, in the Senate. If approved, the bill (N. 2092) will bring a twofold change to the current legislation: significant changes to the current jus soli law, and the introduction of a new route to citizenship, jus culturae.

Possible changes to the current jus soli route (birthright citizenship) include:

  • Foreign children born in Italy would be considered Italian by birth if at least one of their parents has acquired permanent residence status (i.e., is in possession of a permanent EC residence permit if non-EU or, for EU citizens, has acquired permanent right of residence);
  • Foreign children born in Italy and who have resided legally without interruption until reaching 18 years of age would now have 2 years instead of 1 to apply for citizenship.

The new jus culturae route would include:

  • Foreign children born in Italy or who have arrived by the age of 12 may acquire the right to citizenship after at least 5 years of education in Italy.
  • Foreign children who arrived in Italy before the age of 18 could apply for citizenship if they have resided regularly in Italy for at least 6 years and have successfully completed a cycle of education.

Italian citizenship is currently regulated by Law No. 91/1992. In October 2015, the Chamber of Deputies approved the reform bill, including a moderate version of the jus soli and jus culturae laws. Since then, the bill had been discussed in the Senate but an agreement had not been reached between the parties.

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RUSSIA

Rules of address registration have been issued for the FIFA World Cup 2018 and the FIFA Confederation Cup 2017. Also, restrictions have been lifted for Turkish nationals traveling to Russia for tourism, business, or work purposes.

In accordance with Presidential Order N. 202 of May 9, 2017, “On security measures during the World Cup FIFA 2018 and Confederation Cup FIFA 2017,” rules of address registration are subject to change. The Confederation Cup began June 1 and will run until July 12, 2017, in Moscow, St. Petersburg, Kazan, and Sochi. The World Cup will be held from May 25 until July 25, 2018, in Moscow, St. Petersburg, Volgograd, Ekaterinburg, Kazan, Kaliningrad, Nizhni Novgorod, Samara, Rostov on Don, Saransk, and Sochi.

The changes will affect both Russian and foreign citizens. Russian citizens who have arrived in these cities during the tournaments are expected to apply within three calendar days of arrival to register their arrival at the place of temporary residence.

Foreign nationals who have entered Russia during these events should register their addresses within one calendar (not working) day of the arrival date. Foreign nationals arriving in Russia during a weekend or public holiday should register with immigration authorities within 24 hours of arrival. Immigration authorities will be working during weekends and public holidays.

The new address registration rules apply to all foreign nationals regardless of the purpose of the visit, including for tourism, business, or work. The new rules are applicable only during the tournaments in the cities noted above.

The only exception to the new rules applies to Russian citizens and foreign nationals who are participants in the Confederation Cup and World Cup, FIFA official representatives and related organizations, and national football (soccer) associations that are included on the FIFA accredited list.

Also, in accordance with Presidential Order N. 224 of May 31, 2017, “On termination of particular economic measures related to Turkish Republic,” Turkish nationals may travel to Russia for tourism, business, or work purposes. The limitations in place since November 2015 have been terminated.

The Order comes into force as of 31st of May 2017.

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New Publications and Items of Interes

June 2017 Immigration Update

Headlines:

  1. Fourth Circuit Upholds Rejection of Trump Travel Ban – The U.S. Court of Appeals for the Fourth Circuit has upheld a nationwide preliminary injunction rejecting a substantial portion of the Trump administration’s revised executive order barring entry into the United States of people from certain countries.
  2. DHS Extends TPS Designation for Haiti –DHS has extended the temporary protected status designation for Haiti for 6 months, from July 23, 2017, through January 22, 2018.
  3. USCIS Reaches CW-1 Cap for FY 2018 – USCIS announced that as of May 25, 2017, it has received a sufficient number of petitions to reach the numerical limit of workers who may be issued CNMI-Only Transitional Worker (CW-1) visas or otherwise provided with CW-1 status for FY 2018. Although the FY 2018 cap has not been set, it is required by statute to be less than the 12,998 workers set for FY 2017.
  4. Recent Fraud Investigations Led to Convictions, USCIS Announced – USCIS assisted in several recent investigations leading to convictions in immigration fraud cases.
  5. ABIL Global: Australia – This article summarizes significant changes to the 457 visa system that will replace the current 457 visa by March 2018. Important changes have already been implemented. The changes occurred without warning.
  6. Firm In The News…

Details:

  1. Fourth Circuit Upholds Rejection of Trump Travel Ban

The U.S. Court of Appeals for the Fourth Circuit has upheld a nationwide preliminary injunction rejecting a substantial portion of the Trump administration’s revised executive order barring entry into the United States of people from certain countries.

Chief Judge Roger Gregory noted that the question for the court, distilled to its essence, was whether the Constitution protected plaintiffs’ right to challenge the executive order, which “in text speaks with vague words of national security, but in context drips with religious intolerance, animus, and discrimination.” He noted that “[s]urely the Establishment Clause of the First Amendment yet stands as an untiring sentinel for the protection of one of our most cherished founding principles—that government shall not establish any religious orthodoxy, or favor or disfavor one religion over another.” He said that Congress granted the President broad power to deny entry to the United States, but that this power is not absolute. “It cannot go unchecked when, as here the President wields it through an executive edict that stands to cause irreparable harm to individuals across this nation.”

Among other things, the court took into account not just the text of the executive order but also the context of statements made by President Trump both before and after his election and assumption of office. For example, the court noted that on December 7, 2015, then-candidate Trump published a “Statement on Preventing Muslim Immigration” on his website that proposed “a total and complete shutdown of Muslims entering the United States until our country’s representatives can figure out what is going on.” Among other things, the statement noted “great hatred toward Americans by large segments of the Muslim population.” The court noted that this statement remained on President Trump’s campaign website at least until February 12, 2017, and was highlighted on Twitter. On March 9, 2016, then-candidate Trump said, “I think Islam hates us,” and renewed his call for a ban on Muslim immigration in a March 22, 2016, interview. And when asked about a tweet that said that calls to ban Muslims from entering the United States were offensive and unconstitutional, then-candidate Trump responded, “So you call it territories. OK? We’re gonna do territories.” In an interview a week later, he said, “I’m looking now at territories. People were so upset when I used the word Muslim. Oh, you can’t use the word Muslim. Remember this. And I’m okay with that, because I’m talking territory instead of Muslim.” With respect to people revering the part of the Constitution that guarantees religious freedom, he said, “I view it differently.”

The court said, among other things, that it was “unmoved by the Government’s rote invocation of harm to ‘national security interests’ as the silver bullet that defeats all other asserted injuries.” Citing a 1967 case, United States v. Robel, the court noted that implicit in the term “national defense” is “the notion of defending those values and ideals which set this Nation apart….It would indeed be ironic if, in the name of national defense, we would sanction the subversion of one of those liberties…which makes the defense of the Nation worthwhile.” National security “may be the most compelling of government interests,” the court observed, “but this does not mean it will always tip the balance of the equities in favor of the government.” The court noted that unconditional deference to a government agent’s invocation of “emergency” has a “lamentable place in our history” and that the government’s asserted national security interest appeared to be a “post hoc, secondary justification for an executive action rooted in religious animus and intended to bar Muslims from this country.” The court said it remained unconvinced that the relevant section of the executive order “has more to do with national security than it does with effectuating the President’s promised Muslim ban.”

Circuit Judge Wynn, concurring, noted that “[i]nvidious discrimination that is shrouded in layers of legality is no less an insult to our Constitution than naked invidious discrimination.” In this case, he said, the invidious discrimination is “layered under the guise of a President’s claim of unfettered congressionally delegated authority to control immigration and his proclamation that national security requires his exercise of that authority to deny entry to a class of aliens defined solely by their national origin.” Laid bare, he said, “this Executive Order is no more than what the President promised before and after his election: naked invidious discrimination against Muslims,” which he said contravenes the authority Congress delegated to the President under the Immigration and Nationality Act, and is unconstitutional under the Establishment Clause.

Several judges dissented. The government stated that it intends to appeal to the Supreme Court.

The 205-page decision, including the dissents, is at http://coop.ca4.uscourts.gov/171351.P.pdf.

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  1. DHS Extends TPS Designation for Haiti

The Department of Homeland Security (DHS) has extended the temporary protected status (TPS) designation for Haiti for 6 months, from July 23, 2017, through January 22, 2018. Although Haiti has made significant progress in recovering from the January 2010 earthquake that prompted its designation, conditions in Haiti supporting its designation continue to be met, DHS said.

A worker who is a current beneficiary of Haiti’s designation for TPS and wants to use his or her Form I-766, Employment Authorization Document (EAD), as evidence of employment eligibility after it expires on July 22, 2017, must timely file application to renew that EAD by July 24, 2017. Timely filing automatically extends the validity of the expired EAD for 180 days, until January 18, 2018. (The Federal Register notice does not automatically extend the validity of the EAD for these beneficiaries and is not an acceptable document for Form I-9 Employment Eligibility Verification purposes.)

USCIS will then provide a Form I-797C, Notice of Action. If the EAD and Form I-797C both contain either category code “A-12” or “C-19,” this combination is considered a List A document for I-9 purposes. Employers will need to reverify employment authorization for these employees by January 18, 2018.

DHS encourages Haitian TPS beneficiaries during this 6-month extension “to prepare for their return to Haiti in the event Haiti’s designation is not extended again, including requesting updated travel documents from the government of Haiti.” At least 60 days before January 22, 2018, DHS Secretary John Kelly will re-evaluate the designation for Haiti and will determine whether another extension, a re-designation, or a termination is warranted.

Additional information, including where to file, is at https://www.uscis.gov/humanitarian/temporary-protected-status/temporary-protected-status-designated-country-haiti.

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  1. USCIS Reaches CW-1 Cap for FY 2018

U.S. Citizenship and Immigration Services (USCIS) announced that as of May 25, 2017, it had received a sufficient number of petitions to reach the numerical limit (cap) of workers who may be issued CNMI-Only Transitional Worker (CW-1) visas or otherwise provided with CW-1 status for fiscal year (FY) 2018. Although the FY 2018 cap has not been set, it is required by statute to be less than the 12,998 workers set for FY 2017.

USCIS said it will issue subsequent guidance when the FY 2018 cap is set and when the agency is able to announce the final receipt date. Because the final receipt date will depend on the FY 2018 cap, it is also possible that USCIS will not accept some petitions it received on or before May 25, 2017.

The agency noted that it will reject CW-1 petitions received on or after May 26, 2017, that request an employment start date before October 1, 2018. This includes CW-1 petitions for extensions of stay that are subject to the CW-1 cap. The filing fees will be returned with any rejected CW-1 petition.

If USCIS rejects an extension petition, the beneficiaries listed on that petition are not permitted to work beyond the validity period of the previously approved petition, USCIS noted. Therefore, affected beneficiaries, including any CW-2 derivative family members of a CW-1 nonimmigrant, must depart the Commonwealth of the Northern Mariana Islands (CNMI) within 10 days after the CW-1 validity period expires, unless they have some other authorization to remain under U.S. immigration law.

New employment petitions and extension-of-stay petitions are generally subject to the CW-1 cap.

All CW-1 workers are subject to the cap unless the worker has already been counted toward the cap in the same fiscal year. The CW-1 cap does not apply to CW-2 derivative family members.

USCIS encourages CW-1 employers to file a petition for a CW-1 nonimmigrant worker up to 6 months in advance of the requested employment start date, and to file as early as possible within that time frame. USCIS noted, however, that it will reject a petition if it is filed more than 6 months in advance.

For more information, see https://www.uscis.gov/working-united-states/temporary-workers/cw-1-cnmi-only-transitional-worker. The petition is at https://www.uscis.gov/i-129cw.

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  1. Recent Fraud Investigations Led to Convictions, USCIS Announced

U.S. Citizenship and Immigration Services (USCIS) assisted in several recent investigations leading to convictions in immigration fraud cases.

In one case, USCIS assisted in an investigation that led to a federal jury finding Jason Shiao guilty in a marriage fraud scheme. Mr. Shiao, of Santa Fe Springs, California, posed as an attorney in an elaborate scheme in which at least 87 foreign nationals, mostly Chinese citizens, paid up to $50,000 to enter into sham marriages.

As part of the scheme, according to USCIS, Mr. Shiao falsely claimed to be an attorney, paid U.S. citizens up to $15,000 to participate in the scheme, introduced would-be immigrants seeking benefits to U.S. citizens to facilitate the sham marriages, instructed his clients to pose for wedding photographs, and told clients to lie to USCIS officials. The defendants went to considerable lengths to make the fake marriages appear real, USCIS said. Mr. Shiao and his daughter prepared documentation that was filed with USCIS to bolster the validity of the fraudulent marriages, including staged photographs of “wedding ceremonies” and bogus tax returns, life insurance policies, joint bank account information, and apartment lease applications.

Mr. Shiao was sentenced to two years in prison. Mr. Shiao’s daughter was sentenced to six months in prison. A third defendant was transferred to the Eastern District of Pennsylvania, where he is also being prosecuted for drug trafficking charges based on crimes allegedly committed while on pre-trial release in the immigration fraud case.

In another case, USCIS assisted in an investigation that led to sentencing of Rosa Cingari to 12 years and seven months in federal prison and Domenico Cingari to eight years and one month in federal prison for conspiracy, making false statements in immigration applications and petitions, and mail fraud. The court also ordered the Cingaris to forfeit real property that was used to facilitate the offenses. As part of their sentence, the court also entered a money judgment in the amount of $740,880, the proceeds of the charged criminal conduct.

According to evidence presented at trial, the Cingaris owned and operated R.E.P.C. Accounting and Translations out of their home on West Park Street in Lakeland, Florida. They assisted undocumented people in obtaining Florida driver’s licenses by filing fraudulent immigration documents. Specifically, they filed Forms I-589, Application for Asylum and Withholding of Removal; I-130, Petition for Alien Relative; and I-765, Work Authorization. Most of the applications and petitions submitted to USCIS by the Cingaris contained materially false information, USCIS said. The Cingaris filed the fraudulent immigration documents to obtain USCIS I-797C Notices of Action. The Cingaris put their mailing address on all of the fraudulent forms so that USCIS would mail the Notices of Action to their business. They then sold the Notices of Action to their clients. The Cingaris charged their clients between $500 and $1,300 each for the fraudulent immigration applications.

More information on these cases is at https://www.uscis.gov/news/news-releases/uscis-assists-investigation-leading-conviction-imposter-attorney-marriage-fraud-scheme-0 and https://www.uscis.gov/news/news-releases/uscis-efforts-investigating-large-scale-immigration-fraud-leads-sentencing.

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  1. ABIL Global: Australia

This article summarizes significant changes to the 457 visa system that will replace the current 457 visa by March 2018. Important changes have already been implemented. The changes occurred without warning.

On April 18, 2017, Australia’s Prime Minister, Malcolm Turnbull, announced major changes to the Temporary Residence Subclass 457 program. The changes will also affect the Employer Nomination Scheme (ENS) permanent residence visa program for skilled workers.

The 457 Visa will be phased out and replaced with a Temporary Skills Shortage (TSS) visa, which will comprise two streams: Short-Term (2 years) and Medium-Term (4 years).

With immediate effect, the Consolidated Sponsored Occupation List (CSOL) will be renamed as the Short-Term Skill Occupations List (STSOL), which will be reviewed every 6 months.

Over 200 occupations have been removed from that list. As the change is immediate, all 457 applications currently being processed related to occupations that have been removed from the list will not be approved and applicants will be afforded the opportunity to withdraw the applications and receive a refund of the filing fee.

Conversely, any applications filed on or after April 19, 2017, must nominate occupations on the STSOL or on what is known as the Medium and Long-Term Strategic Skills List (MLTSSL).

Visas granted on or after April 18, 2017, relating to nominations of occupations on the STSOL will only be granted for a two-year period. After two years, a further and final period of two years may be sought. As of March 2018, visa holders can only be sponsored for a permanent visa if they are nominated for a position appearing on the MLTSSL.

457 Visa applicants granted visas on or after April 18, 2017, and holding MLTSSL positions may receive a four-year visa. Holders of the four-year visa will be able to be nominated for a permanent visa after a three-year period of employment with the sponsor.

Also as of March 2018, visa applicants will need to have at least two years of work experience prior to applying for a 457 visa before any nominated position. Apparently those nominated for STSOL positions will be required to demonstrate an intention to remain temporarily only in Australia.

Effective immediately are caveats that add layers of requirements on work experience or are occupation-specific. For example, in certain instances, employers may only nominate certain occupations if the employer is able to demonstrate a turnover of a $1 million per annum and a workforce of at least five.

Below is a timeline of these changes.

April 19, 2017

  • 216 occupations removed from CSOL with 24 occupations restricted to regional Australia.
  • CSOL re-named as STSOL and MLTSSL introduced.
  • Visa applicants nominated for MLTSSL occupations to receive a four-year visa while those nominated for STSOL will be limited to two years. A second two-year visa may be applied for at the end of the first term.
  • At present persons nominated for permanent visas under the direct stream of the Subclass 186 (ENS) may be nominated for a position from either list. This will cease in March 2018.

July 1, 2017

  • Occupation Lists to be reviewed.
  • The current English-language salary exemption threshold of $96,400.00 will be removed. This means that all 457 Visa applicants will be required to have the equivalent of IELTS Level 5. It is assumed that the current country-of-origin exemption will apply.
  • Training benchmarks will be clarified.
  • Police Clearance Certificates will become mandatory.
  • Regarding ENS, IELTS level 6 in each component is required.
  • Also regarding ENS, a maximum age requirement of 45 (time of application) will apply to Direct Entry Stream applicants. The current 50-year age limit will continue for Temporary Transition applicants.

December 31, 2017

  • The Department of Immigration and Boarder Protection will begin collecting Tax File Numbers for all 457 holders and other employer-sponsored migrants. These data will be matched with Australian Tax Office records to check that 457 visa holders are not underpaid.
  • The Department will publish details of sponsors sanctioned for failing sponsorship obligations.

March 2018

  • The 457 Visa will be abolished and replaced by the TSS Visa, which will have two streams: the Short-Term Stream of up to two years and a Medium-Term Stream of up to four years.
  • The Short-Term Stream (STS) will include the following criteria:

(i) Renewal: Onshore renewal once only.

(ii) Occupations:

(1) For non-regional Australia – STSOL will apply.

(2) Additional occupations available for regional employers.

(iii) English language requirement: Minimum IELTS of 5 with a minimum of 4.5 in each component.

(iv) Genuine entry: A genuine temporary entrant requirement.

  • The Medium-Term Stream (MTS) will include the following criteria:

(i) Renewal: May be renewed onshore; pathway to permanent residence available after three years.

(ii) Occupation:

(1) MLTSSL applies with additional occupations for regional employers.

(iii) English language requirement: IELTS Level 5 with 5 in each test component.

  • Eligibility criteria for both streams:
  1. Work experience of at least two years.
  2. Labor market testing mandatory subject to international trade obligations.
  3. Salaries to be paid must meet market rate and the Temporary Skill Migration Income Threshold (currently $53,900.00).
  4. Character clearance certificates are required.
  5. Introduction of a non-discretionary workforce test, details of which are unknown.
  6. Training requirement to be strengthened.
  • ENS March changes:
  1. MTSSL only applies with additional occupations available for regional Australia;
  2. Salaries must meet Temporary Skilled Migration Income Threshold and market rate;
  3. PR period extended from two to three years;
  4. Must have three years of relevant work experience;
  5. Must be under 45 years of age at time of application;
  6. Training requirements are strengthened.

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  1. Firm In The News

The latest edition of Chambers & Partners USA 2017 has ranked Cyrus D. Mehta & Partners PLLC for immigration as a Band 2 law firm under Immigration in New York. Cyrus D. Mehta has been ranked as a Star Individual. David A. Isaacson and Cora-Ann V. Pestaina have also been ranked as Up and Coming. https://www.chambersandpartners.com/12806/31/editorial/5/1#117776_editorial. Chambers Nationwide has also ranked Cyrus D. Mehta as a Band 1 lawyer for immigration. https://www.chambersandpartners.com/12788/31/editorial/5/1

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Mid-May 2017 Immigration Update

Headlines:

  1. Spending Bill Extends EB-5 Investor Visa Program to September 30; No Funding for Wall – The Consolidated Appropriations Act of 2017 extends the EB-5 immigrant investor visa program through September 30, 2017. The legislation also provides a large border-security funding increase, but no funding for a border wall.
  2. USCIS Completes Data Entry of FY 2018 H-1B Cap-Subject Petitions – USCIS has completed data entry of all fiscal year 2018 H-1B cap-subject petitions selected in a computer-generated random process and has begun returning all H-1B cap-subject petitions that were not selected.
  3. DACA Recipient Files Suit Over Revoked Status – Jessica Colotl, a DACA recipient whose case has received publicity over the years, has had her DACA status revoked. Her attorney has filed a motion requesting a federal judge in Atlanta, Georgia, to reinstate her DACA protection.
  4. USCIS Implements New Interpreter Policy, Form – The guidance applies to interviews conducted at domestic field offices except in cases where USCIS provides interpreters or has other policies.
  5. State Dept. Announces Continued High Demand for Visa Numbers in Several Employment-Based Categories – The Department of State’s Visa Bulletin for the month of June 2017 notes that continued high demand is resulting in cut-off dates being established in several categories.
  6. IT Issues Hamper Tracking of Visa Overstays, DHS OIG Says – It can take months for ICE to determine a visa-holder’s status and whether that person may pose a national security threat, which contributes to a backlog of more than 1.2 million visa overstay cases.
  7. Firm In The News…

Details:

  1. Spending Bill Extends EB-5 Investor Visa Program to September 30; No Funding for Wall

The Consolidated Appropriations Act of 2017, passed by Congress and signed May 7, extends the EB-5 immigrant investor visa program through September 30, 2017. The legislation also provides a large border-security funding increase, among other things.

The spending bill was also notable for what it didn’t contain. For example, the bill did not include funding to begin construction of the border wall promised by President Trump.

Some observers believe that before that date, legislation could be enacted to change the EB-5 program, such as by raising the minimum investment amount, which currently is $500,000 in rural and high unemployment areas and $1 million elsewhere. The EB-5 program has received a lot of attention recently because of a particular EB-5 project in New Jersey being promoted by the Kushner Company. Jared Kushner, President Trump’s son-in-law and a senior advisor to the President, stepped down as chief executive of the Kushner Company in January and has sold stakes in several properties to help allay concerns about possible conflicts of interest.

A statement by President Trump on signing the legislation is at https://www.whitehouse.gov/the-press-office/2017/05/05/statement-president-donald-j-trump-signing-hr-244-law. For more on this case, see https://www.nytimes.com/2017/05/08/us/politics/kushner-china-visa-eb-5.html.

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  1. USCIS Completes Data Entry of FY 2018 H-1B Cap-Subject Petitions

U.S. Citizenship and Immigration Services (USCIS) announced on May 3, 2017, that it has completed data entry of all fiscal year 2018 H-1B cap-subject petitions selected in a computer-generated random process. USCIS said it has begun returning all H-1B cap-subject petitions that were not selected. Due to the high volume of filings, USCIS was unable to provide a definite time frame for returning these petitions. USCIS asked petitioners not to inquire about the status of submitted cap-subject petitions until they receive a receipt notice or an unselected petition is returned. USCIS will issue an announcement once all the unselected petitions have been returned.

Additionally, USCIS is transferring some Form I-129 H-1B cap-subject petitions from the Vermont Service Center to the California Service Center to balance the distribution of cap cases. USCIS will notify by mail those whose cases are transferred.

USCIS also reminded petitioners that it has temporarily suspended premium processing for all H-1B petitions, including cap-subject petitions, for up to six months.

The USCIS announcement is at https://www.uscis.gov/news/alerts/uscis-completes-data-entry-fiscal-year-2018-h-1b-cap-subject-petitions.

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3          DACA Recipient Files Suit Over Revoked Status

Jessica Colotl, a Deferred Action for Childhood Arrivals (DACA) recipient whose case has received publicity over the years, has had her DACA status revoked. Her attorney has filed a motion requesting a federal judge in Atlanta, Georgia, to reinstate her DACA protection.

Ms. Colotl’s parents brought her to the United States from Mexico when she was 11. She was granted DACA status in 2013, which was renewed last year. In the intervening years, her parents moved back to Mexico but she stayed in the United States, graduated from college, and has been working as a paralegal with Kuck Immigration Partners, LLC. Last year, she wanted to travel to Mexico to visit her ill mother, but since she had an outstanding removal order, she filed a motion to reopen and administratively close her removal proceedings. An immigration judge denied the request but the Board of Immigration Appeals found in her favor and sent the case back to the immigration judge to administratively close her case. However, the immigration judge asked the government for its position in writing; in a supplemental filing in March 2017, the government said her case shouldn’t be closed and she was a priority for removal under a February 2017 Department of Homeland Security memorandum due to her criminal history (she was pulled over on campus for a traffic violation and driving without a license in 2010 and was charged with a felony false statement to a law enforcement officer when her address given didn’t match the record. At that time, she was detained for 37 days).

Kuck Immigration Partners filed a complaint on May 9, 2017, in Atlanta for declaratory and injunctive relief. “Trump promised that DACA kids were fine. Nothing’s changed in Jessica’s case.…They are simply in bad faith punishing her for exercising her rights under the policies enacted by the government,” said Charles Kuck. Now 28, Ms. Colotl said in her lawsuit that the government is using her as “a test case to revoke DACA, exceeding its discretionary authority in an arbitrary and capricious manner.” Calling the government’s action “completely outrageous,” she said she “felt shock because I didn’t know this could happen.”

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  1. USCIS Implements New Interpreter Policy, Form

U.S. Citizenship and Immigration Services (USCIS) announced the May 1, 2017, implementation of a policy memorandum issued on January 17, 2017. The guidance applies to interviews conducted at domestic field offices except in cases where USCIS provides interpreters or has other policies, such as asylum and refugee interviews; credible fear and reasonable fear screening interviews; interviews to determine eligibility for relief under provisions of the Nicaraguan Adjustment and Central American Relief Act; and naturalization interviews, unless the interviewee qualifies for an exception to demonstrating adequate proficiency in reading, writing, and speaking English. The standards also do not apply to document translations or to interviews conducted at international field offices.

The guidance states that interpreters must be sufficiently fluent in both English and the interviewee’s language, able to interpret competently between English and the interviewee’s language, and able to interpret impartially and without bias. Those restricted from serving as interpreters include minors under age 18 (an exception for good cause may be granted for those age 14-17); attorneys and accredited representatives of the interviewee; and witnesses (unless an exception for good cause is granted). A witness is anyone who gives a personal account, orally or in writing, of something seen, heard, or experienced.

USCIS has introduced the new Form G-1256, Declaration for Interpreted USCIS Interview, as part of implementation of this guidance. Both the interviewee and the interpreter must sign the form at the beginning of the interview in the presence of a USCIS officer. The form includes a declaration stating that the interpreter must accurately, literally, and fully interpret for both the interviewee and interviewing officer, and requires the interpreter to agree not to disclose any personal information learned in the interview.

USCIS officers will receive training to implement the new policy.

The announcement is at https://www.uscis.gov/news/alerts/role-and-use-interpreters-domestic-field-office-interviews. The policy memorandum is at https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2017/2017-17-1-RoleUseInterpreters-PM-602-0125-1.pdf. A related Web alert is at https://www.uscis.gov/news/alerts/role-and-use-interpreters-domestic-field-office-interviews.

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  1. State Dept. Announces Continued High Demand for Visa Numbers in Several Employment-Based Categories

The Department of State’s Visa Bulletin for the month of June 2017 notes, among other things:

  • Continued high level of demand for the China and India employment-based first preference (EB-1) categories has required the establishment of a cut-off date for June. The EB-1 date for these two countries will once again become Current for October, the first month of fiscal year 2018.
  • There has been an extremely large increase in China employment third preference applicant demand during the past month, due to the “downgrading” of status by applicants who had originally filed in the employment second preference. This has resulted in the third preference final action date being held for the month of June. Continued heavy demand for numbers will require a retrogression of this date no later than August.
  • There also is continued high demand in the India EB-4 and special religious worker categories, which is likely to result in the India EB-4 per-country limit being reached in June. Therefore, implementation of July EB-4 and special religious worker final action dates for India is expected. The India EB-4 and special religious worker dates should once again become Current for October.

The Visa Bulletin for June 2017 is at https://travel.state.gov/content/visas/en/law-and-policy/bulletin/2017/visa-bulletin-for-june-2017.html.

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  1. IT Issues Hamper Tracking of Visa Overstays, DHS OIG Says

The Department of Homeland Security’s (DHS) Office of Inspector General (OIG) recently found that U.S. Immigration and Customs Enforcement (ICE) relies on information technology (IT) systems that are “fragmented” and “ineffective,” lacking in integration and information-sharing capabilities. As a result, OIG said, ICE personnel are forced to “laboriously piece together vital information from up to 27 distinct DHS information systems and databases to accurately determine an individual’s overstay status.” It can take months for ICE to determine a visa-holder’s status and whether that person may pose a national security threat, OIG said, which contributes to a backlog of more than 1.2 million visa overstay cases.

Further complicating ICE’s efforts to track visa overstays is DHS’s lack of a comprehensive biometric exit system at U.S. ports of departure to capture information on nonimmigrant visitors. In the absence of such a system, OIG reported, ICE must rely on third-party departure data, such as commercial carrier passenger manifests, which do not include biometric land departure information reflecting those who cross the border on foot or using their own vehicles.

OIG made several recommendations to the DHS and ICE Chief Information Officers (CIOs) to improve information sharing, provide training and guidance, evaluate data reliability, and implement a biometric exit solution.

A related press release is at https://www.oig.dhs.gov/assets/pr/2017/oigpr-050417.pdf. The full report is at https://www.oig.dhs.gov/assets/Mgmt/2017/OIG-17-56-May17.pdf.

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  1.   Firm In the News

Cyrus D. Mehta authored the article Representation of the Joint Sponsor on an I-864 is Both Permissible and Prudent that was published in Bender’s Immigration Bulletin, May 1, 2017.

Cyrus D. Mehta was a Panelist on two panels – Ethics – Falsus in Uno and Family Immigration, at the Immigration Law Conference, organized by the Federal Bar Association, in Denver, CO, on May 12-13, 2017.

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May 2017 Immigration Update

Headlines:

  1. President Trump Signs ‘Buy American and Hire American’ Executive Order – Among other things, the order calls for the Secretaries of State, Labor, and Homeland Security, along with the Attorney General, to “propose new rules and issue new guidance, to supersede or revise previous rules and guidance if appropriate,” to protect U.S. workers in the administration of the immigration system, “including through the prevention of fraud or abuse.”
  2. Congress Extends EB-5 Regional Center Program for a Week – USCIS will continue to accept Form I-526 petitions based on investments through EB-5 regional centers through May 5, 2017.
  3. USCIS Says Employers Should Review Form I-9s for SSN Glitch – Employers who used Form I-9, Employment Eligibility Verification, downloaded between November 14 and November 17, 2016, should review the forms to ensure that their employees’ Social Security numbers appear correctly in Section 1.
  4. Redesigned Green Cards, EADs To Be Issued Beginning May 1 – The redesigns use enhanced graphics and fraud-resistant security features.
  5. Visa Bulletin for May Discusses Expiration, Imminent Unavailability of Certain Visa Categories – Several visa categories are due to expire or become unavailable soon.
  6. Firm In The News…

Details:

  1. President Trump Signs ‘Buy American and Hire American’ Executive Order

On April 18, 2017, President Donald Trump signed a “Buy American and Hire American” executive order. The order sets the policy of the executive branch as, among other things, rigorously enforcing and administering laws governing entry into the United States of workers from abroad. The order also calls for new rules and guidance to “protect the interests of United States workers.”

Among other things, the order calls for the Secretaries of State, Labor, and Homeland Security, along with the Attorney General, to “propose new rules and issue new guidance, to supersede or revise previous rules and guidance if appropriate,” to protect U.S. workers in the administration of the immigration system, “including through the prevention of fraud or abuse.”

The order also calls for reforms “to help ensure that H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries.” U.S. Citizenship and Immigration Services (USCIS) recently released a policy memorandum changing guidance on the H-1B specialty occupation designation for computer programmers.

President Trump announced the executive order during a visit to Snap-On Tools in Wisconsin on April 18. He said, “The ‘Buy and Hire American’ order I’m about to sign will help protect workers and students like those of you in the audience today. This historic action declares that the policy of our government is to aggressively promote and use American-made goods and to ensure that American labor is hired to do the job. It’s America first, you better believe it.” He said the order declares that “Made in America content” will be maximized in all federal projects, and that U.S. trade agreements will be investigated accordingly. He said that “widespread abuse” in the U.S. immigration system “is allowing American workers of all backgrounds to be replaced by workers brought in from other countries to fill the same job for sometimes less pay. This will stop.” That includes, he said, “taking the first steps to set in motion a long-overdue reform of H-1B visas.” He said that H-1B visas are currently awarded in “a totally random lottery” but that instead “they should be given to the most-skilled and highest-paid applicants, and they should never, ever be used to replace Americans.” President Trump also said the North American Free Trade Agreement (NAFTA) “has been very, very bad for our country,” and that his administration was going to “make some very big changes” or “get rid of NAFTA for once and for all.”

The order is at https://www.whitehouse.gov/the-press-office/2017/04/18/presidential-executive-order-buy-american-and-hire-american. A related press statement is at https://www.whitehouse.gov/the-press-office/2017/04/18/president-trump-promotes-buy-american-and-hire-american. A White House “Background Briefing” on the executive order is at https://www.whitehouse.gov/the-press-office/2017/04/17/background-briefing-buy-american-hire-american-executive-order. The USCIS memo on computer programmers is at https://www.uscis.gov/sites/default/files/files/nativedocuments/PM-6002-0142-H-1BComputerRelatedPositionsRecission.pdf.

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  1. Congress Extends EB-5 Regional Center Program for a Week

The U.S. Congress passed a one-week stopgap funding bill to prevent a government shutdown and the expiration of the EB-5 regional center program. The continuing resolution will keep the U.S. federal government open through May 5, 2017, and U.S. Citizenship and Immigration Services will continue to accept Form I-526 petitions based on investments through EB-5 regional centers through that date.

It is unclear whether Congress will be able to resolve outstanding issues related to EB-5 program reform by May 5. It is possible that Congress will pass another continuing resolution extending funding until a later date. Stay tuned.

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  1. USCIS Says Employers Should Review Form I-9s for SSN Glitch

U.S. Citizenship and Immigration Services (USCIS) announced on April 17, 2017, that employers who used Form I-9, Employment Eligibility Verification, downloaded between November 14 and November 17, 2016, should review the forms to ensure that their employees’ Social Security numbers appear correctly in Section 1. The agency said there was a glitch when the revised I-9 was first published on November 14, 2016, whereby numbers entered in the Social Security number field “were transposed when employees completed and printed Section 1 using a computer. For example, the number 123-45-6789 entered in the Social Security number field would appear as 123-34-6789 once the form printed.” USCIS said employers using an I-9 that contains this glitch should download and save a new I-9 at uscis.gov/i-9.

USCIS also said that employers who notice that their employees’ Social Security numbers are not written correctly “should have their employees draw a line through the transposed Social Security number in Section 1, enter the correct Social Security number, and then initial and date the change.” Employers should include a written explanation with the I-9 about why the correction was made.

USCIS said it immediately repaired and reposted the form on November 17, 2016.

The announcement is at https://www.uscis.gov/i-9-central/whats-new.

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  1. Redesigned Green Cards, EADs To Be Issued Beginning May 1

U.S. Citizenship and Immigration Services announced a redesign of the Permanent Resident Card (“green card”) and the Employment Authorization Document (EAD) as part of the “Next Generation Secure Identification Document Project.” USCIS began issuing the new cards on May 1, 2017. The redesigns use enhanced graphics and fraud-resistant security features.

The new green cards and EADs:

  • Display the individual’s photos on both sides
  • Show a unique graphic image and color palette:
    • Green cards will have an image of the Statute of Liberty and a predominately green palette (green cards also will no longer have an optical stripe on the back)
    • EAD cards will have an image of a bald eagle and a predominately red palette
  • Have embedded holographic images
  • No longer display the individual’s signature

Some green cards and EADs issued after May 1, 2017, may still display the existing design format because USCIS will continue using existing card stock until current supplies are depleted. Both the existing and the new green cards and EADs will remain valid until the expiration date shown on the card.

Certain EADs held by individuals in temporary protected status (TPS) and other designated categories have been automatically extended beyond the validity date on the card. For additional information on which EADs are covered, see https://www.uscis.gov/humanitarian/temporary-protected-status#Automatic%20Employment%20Authorization%20Document%20(EAD)%20Extension and https://www.uscis.gov/working-united-states/automatic-employment-authorization-document-ead-extension.

USCIS noted that some older green cards do not have an expiration date; such cards remain valid. The agency said that individuals who have such cards may want to consider applying for a replacement card bearing an expiration date. “Obtaining the replacement card will reduce the likelihood of fraud or tampering if the card is ever lost or stolen,” USCIS noted.

The announcement is at https://www.uscis.gov/news/news-releases/uscis-will-issue-redesigned-green-cards-and-employment-authorization-documents.

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  1. Visa Bulletin for May Discusses Expiration, Imminent Unavailability of Certain Visa Categories

Several visa categories are due to expire or become unavailable soon. The Department of State’s Visa Bulletin for May 2017 includes the following information:

Scheduled Expiration of Two Employment Visa Categories

Employment Fourth Preference Certain Religious Workers (SR):

Pursuant to the continuing resolution signed on December 10, 2016, the non-minister special immigrant program expires on April 28, 2017. No SR visas may be issued overseas, or final action taken on adjustment of status cases, after midnight April 27, 2017. Visas issued prior to this date will only be issued with a validity date of April 27, 2017, and all individuals seeking admission as a non-minister special immigrant must be admitted (repeat, admitted) into the U.S. no later than midnight April 27, 2017.

The final action date for this category has been listed as “Unavailable” for May. If there is legislative action extending this category for FY-2017, the final action date would immediately become “Current” for May for all countries except El Salvador, Guatemala, Honduras, and Mexico which would be subject to a July 15, 2015 final action date.

Employment Fifth Preference Categories (I5 and R5):

The continuing resolution signed on December 10, 2016 extended this immigrant investor pilot program until April 28, 2017. The I5 and R5 visas may be issued until close of business on April 28, 2017, and may be issued for the full validity period. No I5 or R5 visas may be issued overseas, or final action taken on adjustment of status cases, after April 28, 2017.

The final action dates for the I5 and R5 categories have been listed as “Unavailable” for May. If there is legislative action extending them for FY-2017, the final action dates would immediately become “Current” for May for all countries except China-mainland born I5 and R5 which would be subject to a June 1, 2014 final action date.

Special Immigrant Visa Availability

The Department expects to exhaust the Special Immigrant Visas allocated by Congress under the Afghan Allies Protection Act of 2009, as amended, not later than June 1, 2017. As a result, the Final Action Date for the SQ category for certain Afghan nationals employed by or on behalf of the U.S. government in Afghanistan will become “Unavailable” effective June 2017. No further interviews for Afghan principal applicants in the SQ category will be scheduled after March 1, 2017, and further issuances will not be possible after May 30, 2017.

The SQ category for certain Iraqi nationals employed by or on behalf of the U.S. government in Iraq is not affected and remains current, though the application deadline was September 30, 2014.

The FY-2017 annual limit of 50 Special Immigrant Visas in the SI category was reached in December 2016 and the Final Action Date remains “Unavailable.” As included in the January 2017 Visa Bulletin, further issuances in the SI category will not be possible until October 2017, under the FY-2018 annual limit.

The May 2017 Visa Bulletin is at https://travel.state.gov/content/visas/en/law-and-policy/bulletin/2017/visa-bulletin-for-may-2017.html.

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  1. Firm In The News

Cyrus Mehta was a Speaker on Ethics Lecture, organized by the New York Legal Assistance, Group, New York, NY, April 20, 2017.

Cyrus Mehta was quoted in “H-1B Briefing at White House Highlights Infosys, TCS, Cognizant Outsize Role in Lottery,” published by Firstpost on April 23, 2017. Regarding the Trump administration’s comparisons and assertions about H-1Bs driving down U.S. wages, Mr. Mehta noted that “[a] techie in Wisconsin and a techie in Silicon Valley will not be earning the same; there will be a difference. Additionally, a very senior-level H-1B worker in Wisconsin may be earning less than a junior-level person in Silicon Valley. They’re not factoring in regional differences,” he said. The article is at http://www.firstpost.com/world/h1b-briefing-at-white-house-highlights-infosys-tcs-cognizant-outsize-role-in-lottery-3399158.html. Mr. Mehta also spoke in a wide-ranging discussion on H-1B visas. A video of that conversation is at https://www.facebook.com/firstpostin/videos/1419298931463091/.

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Mid-April 2017 Immigration Update

Headlines:

  1. USCIS Reaches FY 2018 H-1B Cap – On April 7, 2017, USCIS reached the H-1B cap for FY 2018. USCIS also received a sufficient number of H-1B petitions to meet the 20,000 visa U.S. advanced degree exemption.
  2. USCIS Changes H-1B Specialty Occupation Guidance for Computer Programmers – Attorneys are expecting an increase in requests for evidence challenging eligibility and in denials of applications for H-1B computer programmers, although some say this approach has been going on for some time.
  3. USCIS Announces Multiple Measures To ‘Deter and Detect’ H-1B Visa Fraud, Abuse – Among other things, USCIS said it “will take a more targeted approach” when making site visits across the country to H-1B petitioners and the worksites of H-1B employees.
  4. Visa Processing Delays Expected in Busy Summer Season Due to Increased Screening – Visa applicants, especially those coming from India, may experience processing delays due to heightened scrutiny over the busy summer season and beyond.
  5. DHS Asks DC Circuit Court for 6 Months To Reconsider H-4 Employment Authorization Rule – DHS said it wanted time to reconsider whether to revise the H-4 rule through notice-and-comment rulemaking.
  6. Stalking’ the Undocumented Immigrant: California Objects to Immigration Enforcement Tactics at Courthouses – California’s chief justice said that “enforcement policies that include stalking courthouses and arresting undocumented immigrants, the vast majority of whom pose no risk to public safety, are neither safe nor fair.” Among other things, she said that such actions “undermine the judiciary’s ability to provide equal access to justice.”

 Details:

  1. USCIS Reaches FY 2018 H-1B Cap

U.S. Citizenship and Immigration Services (USCIS) announced on April 7, 2017, that it has reached the congressionally mandated 65,000 visa H-1B cap for fiscal year 2018. USCIS has also received a sufficient number of H-1B petitions to meet the 20,000 visa U.S. advanced degree exemption, also known as the master’s cap.

The agency said it will reject and return filing fees for all unselected cap-subject petitions that are not duplicate filings.

USCIS will continue to accept and process petitions that are otherwise exempt from the cap. The agency noted that it suspended premium processing as of April 3 for up to six months for all H-1B petitions, including cap-exempt petitions.

Petitions filed on behalf of current H-1B workers who have been counted previously against the cap, and who still retain their cap numbers, will not be counted toward the congressionally mandated FY 2018 H-1B cap. USCIS will continue to accept and process petitions filed to:

  • 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; and
  • Allow current H-1B workers to work concurrently in a second H-1B position.

USCIS said it encourages H-1B applicants to subscribe to the H-1B cap season email updates at https://www.uscis.gov/working-united-states/temporary-workers/h-1b-specialty-occupations-and-fashion-models/h-1b-fiscal-year-fy-2018-cap-season. The announcement that the cap has been reached for FY 2018 is at https://www.uscis.gov/news/news-releases/uscis-reaches-fy-2018-h-1b-cap.

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  1. USCIS Changes H-1B Specialty Occupation Guidance for Computer Programmers

On April 3, 2017, the first filing day for fiscal year 2018 H-1B petitions, U.S. Citizenship and Immigration Services (USCIS) released a policy memorandum changing guidance on the H-1B specialty occupation designation for computer programmers. The memo, “Guidance Memo on H-1B Computer Related Positions,” supersedes and rescinds a memo with the same title issued December 22, 2000.

The new memo states that petitioners may not rely solely on the Occupational Outlook Handbook (OOH) to prove that an entry-level computer programmer position is a specialty occupation: “[I]t is improper to conclude based on this information that USCIS would ‘generally consider the position of programmer to qualify as a specialty occupation.’ ” Among other things, the new memo states that the earlier memo “does not properly explain or distinguish an entry-level position from one that is, for example, more senior, complex, specialized, or unique.” The fact that a computer programmer may use information technology skills and knowledge to help an enterprise achieve its goals in the course of his or her job “is not sufficient to establish the position as a specialty occupation,” the memo states. Thus, “a petitioner may not rely solely on the [OOH] to meet its burden” and must provide other evidence.

Many such H-1B applications presumably have already been filed, along with fees of several thousand dollars per application that the agency can keep whether it approves or denies the application. Attorneys are expecting an increase in requests for evidence challenging eligibility and in denials of applications for H-1B computer programmers, although some say this approach has been going on for some time.

The USCIS memo is at https://www.uscis.gov/sites/default/files/files/nativedocuments/PM-6002-0142-H-1BComputerRelatedPositionsRecission.pdf.

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  1. USCIS Announces Multiple Measures To ‘Deter and Detect’ H-1B Visa Fraud, Abuse

On April 3, 2017, U.S. Citizenship and Immigration Services (USCIS) announced multiple measures “to further deter and detect H-1B visa fraud and abuse.” USCIS explained that the H-1B visa program “should help U.S. companies recruit highly skilled foreign nationals when there is a shortage of qualified workers in the country,” but that “too many American workers who are as qualified, willing, and deserving to work in these fields have been ignored or unfairly disadvantaged.” USCIS stated that it is prioritizing “combating fraud in our employment-based immigration programs.”

Among other things, USCIS said it “will take a more targeted approach” when making site visits across the country to H-1B petitioners and the worksites of H-1B employees. The agency said it will focus on:

  • Cases where USCIS cannot validate the employer’s basic business information through commercially available data;
  • H-1B-dependent employers (those who have a high ratio of H-1B workers as compared to U.S. workers, as defined by statute); and
  • Employers petitioning for H-1B workers who work off site at another company or organization’s location.

Targeted site visits will allow USCIS to focus resources “where fraud and abuse of the H-1B program may be more likely to occur,” the agency said, and to “determine whether H-1B dependent employers are evading their obligation to make a good faith effort to recruit U.S. workers.” USCIS said it will continue random and unannounced visits nationwide. “These site visits are not meant to target nonimmigrant employees for any kind of criminal or administrative action but rather to identify employers who are abusing the system,” USCIS said.

USCIS also has established an email address, ReportH1Babuse@uscis.dhs.gov, “to allow individuals (including both American workers and H-1B workers who suspect they or others may be the victim of H-1B fraud or abuse) to submit tips, alleged violations and other relevant information about potential H-1B fraud or abuse.” Information submitted to the email address will be used for investigations and referrals to law enforcement agencies for potential prosecution, USCIS said.

The announcement is at https://www.uscis.gov/news/news-releases/putting-american-workers-first-uscis-announces-further-measures-detect-h-1b-visa-fraud-and-abuse.

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  1. Visa Processing Delays Expected in Busy Summer Season Due to Increased Screening

According to reports, visa applicants, especially those coming from India, may experience processing delays due to heightened scrutiny over the busy summer season and beyond. The Department of State issued several related cables to diplomatic and consular posts that were publicly leaked, such as one issued on March 17, 2017, calling for increased scrutiny and consideration of security advisory opinions (SAOs) when additional checks may be warranted, along with generally limiting visa interviews to 120 per consular officer per day.

To support an SAO request, consular officers may ask visa applicants probing questions. It was also reported that those coming to the United States may be required to disclose their mobile phone contacts, social media passwords, financial records, and ideology. The March 17 cable’s leaked text says that if a consular post determines that an applicant “may have ties to ISIS or other terrorist organizations or has ever been present in an ISIS-controlled territory, post must/must refer the applicant to the Fraud Prevention Unit for a mandatory social media review.” The cable states that the post should scan the results of this review into the nonimmigrant visa case for consideration during the SAO process.

For the text of the March 17 cable, see https://tinyurl.com/lbam9fn.

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  1. DHS Asks DC Circuit Court for 6 Months To Reconsider H-4 Employment Authorization Rule

The Department of Homeland Security (DHS) has filed a motion asking the U.S. Court of Appeals for the District of Columbia Circuit to delay proceedings in Save Jobs USA v. DHS for up to 6 months so the agency may reconsider a February 2015 rule, “Employment Authorization for Certain H-4 Dependent Spouses,” that allows certain people maintaining H-4 nonimmigrant status to apply for and receive employment authorization. DHS said it wanted time to actively reconsider whether to revise the H-4 rule through notice-and-comment rulemaking.

The motion, filed April 3, 2017, is at http://www.balglobal.com/wp-content/uploads/4-3-17-DHS-motion.pdf.

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  1. ‘Stalking’ the Undocumented Immigrant: California Objects to Immigration Enforcement Tactics at Courthouses

California Chief Justice Tani G. Cantil-Sakauye recently sent a letter to U.S. Attorney General Jeff Sessions and Department of Homeland Security Secretary John Kelly expressing concerns about reports that immigration agents “appear to be stalking undocumented immigrants in our courthouses to make arrests.”

In the letter, Chief Justice Cantil-Sakauye said that courthouses “should not be used as bait in the necessary enforcement of our country’s immigration laws.” She noted that courts are the main point of contact for crime victims and witnesses. “As finders of fact, trial courts strive to mitigate fear to ensure fairness and protect legal rights. Our work is critical for ensuring public safety and the efficient administration of justice,” she noted.

Chief Justice Cantil-Sakauye said she is concerned about “the impact on public trust and confidence in our state court system” if the public feels that state institutions are being used to facilitate goals and objectives other than their primary purpose. She said that “enforcement policies that include stalking courthouses and arresting undocumented immigrants, the vast majority of whom pose no risk to public safety, are neither safe nor fair.” Among other things, she said that such actions “undermine the judiciary’s ability to provide equal access to justice,” and requested that this type of enforcement not be pursued.

The letter is at http://newsroom.courts.ca.gov/internal_redirect/cms.ipressroom.com.s3.amazonaws.com/262/files/20172/Chief%20Justice%20Cantil-Sakauye%20Letter_AG%20Sessions-Secretary%20Kelly_3-16-17.pdf.

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April 2017 Global Immigration Update

Headlines:

INDIA – India has launched an e-Tourist Visa for certain travelers.

ITALY – Various developments have been announced.

NETHERLANDS – This article offers comments from a Dutch perspective on the new European Union Directive on intracorporate transferees.

TURKEY – Regulations on the new Turquoise Card have been published.

UNITED KINGDOM – This article discusses several recent developments, including how triggering Article 50 will affect employers of EU nationals in the UK.

Details:

INDIA

India has launched an e-Tourist Visa for certain travelers.

India has launched an e-Tourist Visa (eTV) for travelers whose sole objective for visiting India is recreation, sightseeing, a casual visit to meet friends or relatives, a visit for short-duration medical treatment, or a casual business visit.

The eTV is a single-entry visa, and a visitor can request up to two eTVs per year. The eTV is valid for 30 days from the date of arrival. The holder of the eTV visa may remain in India for a maximum of 30 consecutive days after the initial entry date, and the visa is non-extendable and non-convertible.

Although there is no definition of the term “casual business,” anecdotal evidence suggests that it could involve attending short business meetings or a conference during the 30-day period.

Travelers to India on an eTV should have a return ticket or onward journey ticket with proof of sufficient funds to support themselves during their entire stay in India.

The eTV is not available to international travel document holders or to applicants with a diplomatic passport. International travelers having either a Pakistani passport or who are of Pakistani origin must apply for a regular visa at an Indian Mission.

The e-TV is available for nationals of the following countries/territories:

Albania, Andorra, Anguilla, Antigua & Barbuda, Argentina, Armenia, Aruba, Australia, Austria, Bahamas, Barbados, Belgium, Belize, Bolivia, Bosnia & Herzegovina, Botswana, Brazil, Brunei, Bulgaria, Cambodia, Canada, Cape Verde, Cayman Islands, Chile, China, China-SAR Hong Kong, China-SAR Macau, Colombia, Comoros, Cook Islands, Costa Rica, Cote d’lvoire, Croatia, Cuba, Czech Republic, Denmark, Djibouti, Dominica, Dominican Republic, East Timor, Ecuador, El Salvador, Eritrea, Estonia, Fiji, Finland, France, Gabon, Gambia, Georgia, Germany, Ghana, Greece, Grenada, Guatemala, Guinea, Guyana, Haiti, Honduras, Hungary, Iceland, Indonesia, Ireland, Israel, Jamaica, Japan, Jordan, Kenya, Kiribati, Laos, Latvia, Lesotho, Liberia, Liechtenstein, Lithuania, Luxembourg, Madagascar, Malawi, Malaysia, Malta, Marshall Islands, Mauritius, Mexico, Micronesia, Moldova, Monaco, Mongolia, Montenegro, Montserrat, Mozambique, Myanmar, Namibia, Nauru, Netherlands, New Zealand, Nicaragua, Niue Island, Norway, Oman, Palau, Palestine, Panama, Papua New Guinea, Paraguay, Peru, Philippines, Poland, Portugal, Republic of Korea, Republic of Macedonia, Romania, Russia, Saint Kitts and Nevis, Saint Lucia, Saint Vincent & the Grenadines, Samoa, San Marino, Senegal, Serbia, Seychelles, Singapore, Slovakia, Slovenia, Solomon Islands, South Africa, Spain, Sri Lanka, Suriname, Swaziland, Sweden, Switzerland, Taiwan, Tajikistan, Tanzania, Thailand, Tonga, Trinidad & Tobago, Turks & Caicos Islands, Tuvalu, United Arab Emirates, Ukraine, United Kingdom, Uruguay, United States of America, Vanuatu, Vatican City-Holy See, Venezuela, Vietnam, Zambia, and Zimbabwe.

For further details, see https://indianvisaonline.gov.in/visa/tvoa.html.

ITALY

Various developments have been announced.

Italy Welcomes High-Net-Worth Individuals

This year the Italian Budget Law, effective January 1, 2017, includes several measures aimed at attracting foreign investments and encouraging high-net-worth (HNW) individuals to move to Italy. Among these are the introduction of a preferential tax regime for wealthy individuals who take up tax residency in Italy and a new visa program specific for HNW investors that facilitates the procedures for their entry and residence in Italy. Until now, Italy, unlike other EU countries, did not provide a dedicated entry-for-investment visa scheme.

Favorable Flat-Tax Regime Begins for New Residents

On March 8, 2017, the Italian Revenue Agency (Agenzia delle Entrate) issued implementing provisions for a flat-tax regime. The law is now fully effective.

Individuals who become Italian tax residents can take advantage of a substitute tax regime on their foreign income. Under this regime, regardless of amount, foreign income will only be subject to a yearly flat tax of €100,000. Close family members can also benefit from the favorable tax measures: a flat tax of just €25,000, instead of €100,000, will be applied to their foreign income. Moreover, opting for the new regime guarantees full exemption from reporting requirements with respect to financial and non-financial assets abroad and from succession duties on assets outside Italy.

To qualify for this option, the applicant must not have been resident in Italy for at least 9 tax years during the previous 10 years; eligible taxpayers can request the substitute tax regime when filing their tax returns. Before that point, it is possible to submit a preliminary ruling (interpello) to the Italian Revenue Agency.

Guidelines and checklists of requirements are now available. For further information, see http://www1.agenziaentrate.gov.it/english/invest_italy/new_residents_regime.htm.

New Provisions Introduced for Dedicated Visa Option: Investor Visa

Additional provisions have been introduced in Italian immigration law to promote foreign investments. An “investor visa” will shortly be available to foreigners intending to invest in Italy under one of the following options:

  • €2 million in government bonds, to be kept for at least 2 years
  • €1 million in the share capital of an Italian company, reduced to €500,000 if the company is an innovative start-up
  • €1 million in philanthropic donations (culture, education, immigration management, scientific research, or cultural heritage)

The government is drafting an implementing decree that, once published, will make the law fully effective.

Cap on Workers From Outside the EEA for 2017 Announced

The Italian government has announced a cap of 30,850 on the number of workers from outside the European Economic Area (EEA) allowed in Italy for 2017.

The figure and the categories of workers allowed this year are not very different from those announced in recent years. Once again, no quotas for standard sponsored employment have been issued (apart from a few exceptions below).

More than half of the quotas are reserved for seasonal workers (17,000). Most of the remaining quotas (10,850) are reserved for changes of status for residence permit holders in Italy or the European Union (EU) (study, seasonal work, permanent); for example, to convert the existing residence permit into a permit for employment/self-employment.

The remaining few quotas are for self-employment work (2,400) and special categories (600) of foreigners (such as South American citizens with Italian ancestors or individuals who have completed a specific training in their country of residence).

Background. Immigration for work purposes in Italy is based on a quota system. Quotas are set annually by means of a decree (decreto-flussi). The decree sets the numerical limits for each category of foreign nationals who may apply for work permits and the period during which applications can be submitted. Permits are normally granted on a first-come, first-served basis.

Several categories of workers are excluded from the cap and are not subject to a fixed limit, such as intra-company transfer (ICT) workers, highly skilled workers, executives or managerial employees assigned to the Italian branch of a foreign legal entity, university lecturers and professors, translators and interpreters, and professional nurses.

Deadlines and How To Apply

Application forms for permit conversion and permits reserved for special categories of foreigners, and seasonal work permit application forms, are available at https://nullaostalavoro.dlci.interno.it/Ministero/Index2. Application forms can only be submitted until December 31, 2017.

Instructions and deadlines are set by quota decree 2017 (DPCM 13 February 2017) and Ministries joint circular 08.03.2017, at http://www.lavoro.gov.it/notizie/Documents/Circolare_flussi_2017.pdf.

Quota Categories

The 30,850 quotas are allocated among the following categories:

NEW ENTRIES—NON-EU NATIONALS RESIDING ABROAD

  • 17,000 quotas (seasonal work). Limited to:
    • Agriculture; hospitality and tourism industry
    • Nationals of Albania, Algeria, Bosnia-Herzegovina, South Korea, Ivory Coast, Egypt, Ethiopia, Yugoslav Republic of Macedonia, Philippines, Gambia, Ghana, Japan, India, Kosovo, Mauritius, Moldova, Montenegro, Morocco, Niger, Nigeria, Pakistan, Senegal, Serbia, Sri Lanka, Sudan, Ukraine, Tunisia
    • 2,000 entries reserved for workers who have already worked as seasonal employees at least once in the previous 5 years and whose employers apply for a multi-year permit. For these, no nationality restrictions apply
  • 500 quotas (work as an employee). For foreign nationals residing abroad who have completed an educational/training program in their home countries (pursuant to Article 23, Immigration Law)
  • 100 quotas (employee/self-employee). For employed or self-employed work. For foreign nationals who have Italian ancestry and reside in Argentina, Uruguay, Venezuela, or Brazil.
  • 2,400 quotas for self-employment, which includes:
    • Entrepreneurs intending to implement an investment plan of interest to the Italian economy, involving an investment of at least €500.000 and creating at least 3 new jobs in Italy
    • Freelancers/independent contractors who intend to practice regulated or controlled professions (i.e., individuals belonging to a professional association or enrolled in an official/public register); or professions that are not non-regulated but are considered representative at the national level and included in the lists edited by the Public Administration
    • Holders of corporate offices or administrative/controlling positions (any of the following: chairman, CEO, member of board of directors, auditor) in an Italian company, active for at least 3 years (requirements set by Visa Decree May 11, 2011 n.850)
    • Foreign citizens who intend to set up innovative start-up companies under certain conditions, who will have a self-employment relationship with the start-up
    • Internationally well-known artists of the highest reputation, artists of recognized high professional qualifications, or artists who are hired by well-known Italian theaters, important public institutions, public television or well-known national private television (requirements set by Visa Decree May 11, 2011 n.850)

PERMIT CONVERSION—FOR NON-EU NATIONALS ALREADY IN ITALY/EU

  • 5750 quotas from seasonal to standard work permits. For conversions of seasonal work permit to standard, non-seasonal work permit (as an employee)
  • 4000 quotas from study to employed work. For conversion of study, internship, and/or vocational training residence permit to residence permit for work (as an employee)
  • 500 quotas from study to self-employment. For conversion of study, internship, and/or vocational training residence permit to residence permit for self-employment
  • 500 quotas for holders of an EU residence permit for long-term residents issued by an EU Member State other than Italy who wish to apply for a residence permit for work (as an employee) in Italy
  • 100 quotas for holders of an EU residence permit for long-term residents issued by an EU Member State other than Italy who wish to apply for a residence permit for self-employment in Italy

Employers should evaluate their need for work permits for non-EU nationals, especially if intending to hire foreign nationals holding a study, internship, and/or vocational training residence permit or permanent residents of an EU country.

Official Guidelines Issued for ICT Work Permits: What’s New?

After the introduction of the new EU ICT work permit category in Italy in January 2017, based on the so-called “ICT Directive” (Directive 2014/66), the Ministry Of Labour and Social Policies has issued its official guidelines on the matter and list of documents (Circular letter 09.02.2017). Below is an overview of the main features and substantial changes to existing provisions:

  • The previous work permit category under article 27 c.1 letter (g) of Italian immigration law no longer exists. Holders of work permits for highly skilled workers on assignment for a determined period to carry out a specific task or activity may have difficulties in extending the current permit to the end of the maximum assignment duration of 4 years.
  • The existing intra-company work permit for managers/highly skilled staff pursuant to article 27 c.1 letter (a) remains in place.
  • Substantial changes have been introduced for graduated workers transferred for career development purposes.
  • ICT applications can be filed only for assignments longer than 90 days.
  • Work and residence permits must be issued within 45 days from each application filing.
  • Maximum duration of the transfer is 3 years for managers and specialists, 1 year for trainees (total, including extensions).
  • Once the maximum period of transfer is reached, the worker must leave Italy and return to the sending employer or to a company of the same group. A new ICT application can be filed only after 3 months have passed.
  • The application must be sponsored and filed by the host entity in Italy, defined as a seat, branch, or representative office of the non-EU employer. Companies must be affiliated; i.e., either directly owned by the non-EU sending company or by another company of the same group (per article 2359 of the Italian Civil Code).
  • During the entire assignment, the employer must comply with the relevant social security obligations.
  • There is more flexibility on the documents required to show an accommodation in Italy (in some locations, a housing feasibility certificate may no longer be required).
  • Intra-EU mobility: Holders of a valid Italian ICT permit may, under certain conditions, temporarily perform activities at an entity of the same group established in another EU Member State. Similarly, the holder of a valid ICT permit issued by another EU member state does not need a visa to enter Italy and can be transferred for up to 90 days within 180 days in exemption of the work/residence permit. A work permit is required for longer assignments.
  • Specific reasons for denial have been introduced. For example, a denial may be issued if the host company has been set up for the purpose of obtaining work permits or has been put into liquidation, has been liquidated, or is not carrying out any economic activity.
  • The obligations set forth in article 10 of Decree n. 136/2016 implementing EU Posted Workers Directive (2014/67) do not apply (i.e., secondment notifications do not apply).
  • Italian companies can request an expedited procedure by signing a Protocollo di Intesa (Protocol Agreement or Memorandum of Understanding) with the Ministry of Interior.
  • Family dependents may join the assignee in Italy regardless of the duration of his or her permit and are allowed to work.

Posted Worker Notifications No Longer Required for ICT Workers

The Ministry of Labour has published a clarification on the applicability of secondment declaration obligations (http://www.cliclavoro.gov.it). The FAQ section explains that the provisions and obligations of Legislative Decree No. 136/2016 do not apply to the following categories of workers (see FAQ no. 10, https://www.cliclavoro.gov.it/Aziende/FAQ/Pagine/Posting-of-workers.aspx):

  1. Foreign ICT managers, specialists, trainees, per Directive 2014/66/EU on the conditions of entry and residence of third-country nationals in the framework of an intra-corporate transfer (Ministry of the Interior and Ministry of Labour and Social Policies joint circular No. 9/2017, https://www.cliclavoro.gov.it/Normative/circolare-9-gennaio-2017-n.1.pdf)
  2. Foreign researchers
  3. Self-employed foreign workers
  4. Intra-company assignees—managers, highly skilled—foreign workers referred to in Article 27 c.1 letter (a) of Italian Immigration Law

Points 2 to 4 have not yet been confirmed by means of a memorandum to be published by the Italian National Labour Inspectorate.

What is the change?

The obligations set forth in Decree n. 136/2016 implementing the EU Posted Workers Directive (2014/67) no longer apply to most foreign workers posted to Italy. The above-mentioned obligations are only applicable to:

  • Service agreement assignments; i.e., workers posted to Italy to provide services in the framework of a service agreement between the Italian entity and the entity established outside the EU—Article 27 c.1 letter (i)
  • So-called “Van der Elst assignment”; i.e., workers employed by an EU company posted to Italy to provide services in the framework of a service agreement between the Italian entity and the EU entity—Article 27 c.1-bis
  • Workers of any nationality posted to Italy in the framework of the provision of services per the provisions set forth in the EU Posted Workers Directive (2014/67)

What’s next?

Foreign companies posting workers under points 1 through 4 above are no longer subject to the secondment notifications and other related obligations (document storage, etc.). Secondment notifications already sent and that were not due may need to be cancelled/annulled. It is not yet clear how to proceed.

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NETHERLANDS

This article offers comments from a Dutch perspective on the new European Union Directive on intracorporate transferees.

The European Union (EU) has introduced an EU-wide permit scheme for intracompany transfers. Directive 2014/66, in force since November 29, 2016, offers excellent options for mobility of intracorporate transferees throughout EU territory—at least in theory. Another interesting feature: it’s obligatory.

EU Directive 2014/66 of May 15, 2014, on the entry and residence of third-country nationals in the framework of an intra-corporate transfer (ICT Directive) was implemented in the Netherlands on November 29, 2016, the last day of the transition window. The ICT Directive is a landmark regulation in the sense that it introduces—compared to existing EU directives on labor migration—an exceptional level of harmonization across the EU. What does this directive mean, and how does it function?

Main Features of the ICT Directive Scheme

The ICT Directive applies to third-country nationals (i.e., non-EU/EEA nationals) who are temporarily transferred for occupational or training purposes to a Member State and who, at the time of the residence permit application, reside outside the territory of the Member States. It provides for a residence permit valid for a maximum of three years (for managers and technical specialists) or one year (for trainees). The main benefit of the permit is that it allows the transferee to travel from the EU Member State that has granted the permit to an establishment of the same group of undertakings in another Member State, without the need for a new test on fulfillment of the conditions. Thus, the ICT permit opens important new mobility options within the EU. Note that the United Kingdom, Ireland, and Denmark have opted out of the ICT Directive.

ICT Mobility

The ICT permit allows the transferee to move to other Member States for periods of time not exceeding 90 days (short-term mobility) and for periods longer than that (long-term mobility). For short-term mobility, the Member States have two options: they may simply allow the transferee to move and work in their territory on the basis of the valid ICT permit issued in the first Member State, or they might opt for a (rather complex) notification procedure. For long-term mobility, the Member States have three options. They may: (1) allow such longer stays on the basis of the ICT permit issued in the first Member State; (2) provide for a notification system; or (3) opt for an extra application procedure. Much will depend on which of these options the Member States will choose when implementing the Directive. Many still have not done so yet. In theory, the EU could effectively become a single area in which intracorporate transferees can move and work as if there were no Member States. The Netherlands has taken a conservative approach and chosen a notification system for short-term mobility and a permit system for long-term mobility. However, the applicant can work from the moment of application and with fewer conditions than for a first-entry application.

Concerns Raised by Corporations

The new rules were met with enthusiasm but also raised some concerns. Indeed, the residence permit obtained on the basis of the ICT Directive has certain limitations vis-à-vis existing permit schemes, both national schemes and EU schemes (such as the EU Blue Card scheme), or, at any rate, from a Dutch perspective. For example, the Dutch knowledge migrant permit (kennismigrantenvergunning, KMR) is granted for up to five years (depending on the employment contract) and can be renewed without limitation. The ICT residence permit can be granted for a maximum of three years (for managers and technical specialists) or one year (for trainees), as noted above, but cannot be renewed. It is true that a new ICT permit might be obtained subsequent to the first one. However, depending on the Member State’s implementation, the transferee first must leave EU territory for a period ranging from one day to six months. The latter is the case in the Netherlands, so an ICT residence permit based on the Directive effectively cannot be renewed, and a new posting for the same employee in the Netherlands is possible only after an interruption of at least six months.

This would not be problematic, of course, if the application of the Directive were not obligatory. It should be noted that the Dutch KMR scheme can be used for local hires, as well as for intra-corporate transferees who remain on a foreign contract and payroll. The KMR scheme is generally preferred to other schemes, not only for the length of the permit but also for its procedural swiftness (two weeks’ processing time) and the rights associated with it (e.g., full spousal labor market access).

But the ICT Directive has now changed all of this, as it does not leave the Member States an option. If a transferee falls within the scope of the Directive (mainly foreign contracts and payroll), national permit schemes may not be applied and the Member State must apply the ICT Directive scheme.

In addition to the ICT permit being limited in duration and renewability, the entry conditions are in some cases more onerous than those of national schemes, so that where the national permit might successfully be applied for, the ICT permit application must be refused. For example, the ICT Directive requires that the transferee have three months’ prior employment in the group of undertakings (the Directive leaves Member States the option to choose for prior employment of up to six months), whereas the KMR scheme allowed for hiring and immediate transfer to the Netherlands. Thus a newly hired employee will now, as a result of the Directive, effectively have to wait three months before being able to move to the Netherlands. Another potential obstacle is the qualification requirement (a bachelor’s degree or higher, whereas the Dutch KMR scheme requires no formal education level).

When corporate employers began to realize these aspects of the ICT Directive, a certain anxiety started to build. It didn’t help that the immigration authority in the Netherlands (IND) did not take a sufficiently clear position on the issues of non-renewability of the ICT permit and its obligatory character. The lack of clarity revolved around the definition of the scope of the ICT Directive—when is an applicant within the scope of the ICT Directive so that national schemes fall away?

Scope and Definitions of the ICT Directive

Article 2 of the ICT Directive limits its scope to third-country nationals who reside outside the territory of the EU Member States at the time of application, or who are residing in a Member State under the ICT Directive already. This means that for every person who does not meet one of those two criteria, the ICT Directive does not apply. For these employees, the regular KMR scheme can still be used.

The scope is further limited (via article 2 and 3 of the ICT Directive) by the fact that it must concern intra-company transfers. If it is not “intra-company,” the ICT Directive does not apply. Also, if it is not a transfer because the employee gets a contract and payroll in the Netherlands (local hire), the ICT Directive does not apply.

Permit Requirements

If the ICT Directive applies, the employee must meet the requirements of article 5 of the ICT Directive to obtain the permit. As mentioned, it is important to distinguish between the scope of the ICT Directive and the requirements for a permit. The first step is the scope: Does the ICT Directive apply to this employee? If not, then other schemes like the KMR scheme might be used. If yes, then step two is to check whether the transferee meets the requirements for the ICT permit. If not, then no permit can be issued. To solve the issue, the person must be brought outside of the scope of the ICT Directive so the KMR scheme can be used (e.g., by moving the contract and payroll to the Netherlands).

Frequently Asked Questions

While initially the IND did not take a sufficiently clear position, most issues have now been clarified. The outcome is that the ICT permit can be transferred into a national permit, even if the employee remains on a foreign contract and payroll. The process that led to this conclusion is interesting.

Since November 2016, the IND has published two new documents: the ICT Directive Frequently Asked Questions (FAQs) in Dutch dated December 8, 2016, and a translation of these FAQs into English. Although these texts have no formal legal status, it seems that the IND has chosen the form of FAQs to communicate its guidelines for the implementation of the ICT Directive scheme. The IND has never used this method before.

When the English version of the FAQs was published on February 16, 2017, the IND gave no indication that it was anything other than a literal translation. Surprisingly, however, this version differed significantly from the Dutch version of December 2016, namely on the most contested point: the renewability of the ICT permit. The Dutch version suggested that after the maximum duration of an ICT permit, the permit holder must return to his or her foreign employer: “The idea behind the ICT Directive is that after the stay in the Netherlands the employee returns to the foreign employer or goes to another EU-based undertaking of the organisation.” In the English version, however, the following sentence was added to this paragraph: “However, the employee can apply for a national residence permit after the maximum period of residence.”

As if to leave no room for interpretation, a whole new question-and-answer was inserted that explained that after three (or one) year(s), a transferee falls out of scope of the Directive and is therefore entitled to apply and obtain a KMR permit, even if he keeps his labor contract and payroll with the employer outside the EU.

This argument might certainly be refuted, as article 2 of the Directive reads: “This Directive shall apply to third-country nationals who reside outside the territory of the Member States at the time of application and apply to be admitted or who have been admitted to the territory of a Member State under the terms of this Directive.”

The question is whether the European Commission is likely to take any action on this, as their main priority is currently to chase those Member States that have not transposed the Directive at all, which is a much bigger threat to the well-functioning of this new EU-wide permit scheme.

Conclusion

The ICT Directive is a very interesting new permit scheme that applies throughout (most of) the EU. Multinational corporations will certainly benefit from its mobility options, although it will still take time before the practices in all Member States will be sufficiently clear and interchangeable for the EU to “feel” as one area. In terms of a new permit scheme that reinforces the options of an intracompany transfer to the EU, the Directive must be compared to local permit schemes—a test that in the Netherlands turns out negatively. The Dutch government has found a way around the obligatory character, but the solution does not seem compliant with the wording of the ICT Directive. The future will show whether such national disobedience eventually jeopardizes the success of the ICT scheme and, if so, how the European Commission will get the Member States back on the same page.

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TURKEY

Regulations on the new Turquoise Card have been published.

On March 14, 2017, regulations on the new Turquoise Card were published in the Official Gazette. In the new Law on International Workforce (work permit law of August 2016), a category of permanent residence was created for qualifying foreigners. Under Article 11 of the new law, a Turkuaz (Turquoise) Card will be issued to a foreign national after evaluation of his or her educational level, professional experience, contribution to science and technology, and/or investment impact in Turkey.

Turquoise Cards are issued for an indefinite term following a 3-year conditional period. Those granted a Turquoise Card generally have the same rights as those accorded to Turkish citizens, with some exemptions. Their dependents also are granted residence permits. Such applications have been awaiting the implementing regulations. Regardless of these new regulations, as of press time the system was not yet online to allow for Turquoise Card filings. A panel of experts within the Work Permit Directorate is expected to adjudicate Turquoise Card cases. Additionally, the new system will very likely include a completely new specialized application form(s). It is unclear when the system will be available online.

The regulations state that:

  1. Turquoise Card applications can be filed from abroad or within Italy depending on the immigration status of the applicant.
  2. The categories for a Turquoise Card include highly qualified employees, certain investors, strategic/high-impact scientists or researchers, internationally successful artists or athletes, and specialists who will promote Turkey.
  3. Any Turkish government agency may issue a “Certificate of Conformity” evidencing support for the particular foreigner’s application. Details regarding this certificate will be determined at a later date.
  4. General criteria (scoring system) for each category include:
  • Highly Qualified Employees: Level of education, prestige of educational institution, salary level, foreign language abilities, relevant professional experience
  • Investors: Amount of investment, level of exports, number of employees, strategic need of sector of investment, strategic need of region where investment will occur, nature of intellectual or industrial property rights of investment
  • Scientists/Researchers: Level of education and prestige of educational institution; patents, trademarks, or licenses granted to the applicant; level of innovation of their activities or field of knowledge; academic or professional titles; strategic importance to Turkey of their sector of expertise; anything that shows the importance of their professional experience or qualifications
  • Athletes or Artists: Nationally or internationally recognized awards or degrees. For artists, recognition of their work
  • Specialists to Promote Turkey or Turkish Culture: Duration, sustainability, influence, etc., of their promotional activities for Turkey. Activities carried out internationally; e.g., as volunteers.
  • Applicants who are continuing their academic studies are not necessarily precluded from filing an application.
  • A successful applicant will be given a 3-year conditional status. On an annual basis, the applicant will need to file a status report.
  • Turquoise Card recipients have all the same rights as those issued indefinite work permits.
  • Turquoise Card dependents are also issued residence cards.
  • Turquoise Cards will be cancelled if the holder remains outside of Turkey for more than 6 months, unless he or she can prove force majeure. If the holder remains outside for more than 2 years, even force majeure will not prevent the cancellation of the holder’s card and those of his or her dependents.

The most-used category for this program is likely to be for investors from predominantly Middle Eastern countries.

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UNITED KINGDOM

This article discusses several recent developments.

Key Changes Affecting Tiers 2 and 5

On March 16, 2017, the Home Office published its latest changes to the Immigration Rules. The main changes are particularly relevant for sponsors of Tier 2 migrants and will come into effect on or after April 6, 2017. Below is an overview of the key changes that affect the Tier 2 and 5 categories, as well as other important changes.

As previously announced, an Immigration Skills Charge of £1000 per skilled worker per year is being introduced for employers in the Tier 2 (General) and Tier 2 (Intra-Company Transfer) routes. The charge is £364 for small and charitable sponsors.

There are exemptions for PhD-level occupations, Intra-Company Transfer Graduate Trainees and those switching from Tier 4 to Tier 2 in the United Kingdom.

Tier 2 (Intra-Company Transfer) migrants were previously exempt from this charge but now will pay a surcharge of £200 per person per year. Dependents will also need to pay the same amount as the main applicant.

Tier 2 (General) applicants coming to work in the education, health, and social care sectors will need to provide a criminal record certificate for each country where they have resided for 12 months or more over the preceding 10 years. This will also apply to their adult dependents.

A certificate will be required for applicants sponsored in these Standard Occupation Classification codes. Applicants in these codes outside of the Tier 2 (General) route, such as intra-company transfers, are not affected. Certificates will also be required from partners applying from overseas on or after April 6, 2017, who want to join an existing Tier 2 (General) visa holder working in one of these sectors.

The minimum salary sponsors can offer a Tier 2 (General) worker will increase from £25,000 to £30,000 for experienced workers. The current minimum salary of £20,800 will be retained for new entrants. Note that the appropriate rate for the job specified in the relevant codes of practice (SOC codes) may well be higher and in fact many of the occupational salary rates in the codes of practice for both new entrants and experienced workers will be increased.

The high earner salary threshold will be increased from £155,300 to £159,600 (for these individuals sponsors are exempt from carrying out a Resident Labour Market Test and from the requirement to assign a restricted Certificate of Sponsorship under the Tier 2 (General) limit).

For “milkround” recruitment (where companies tour universities to recruit), changes are being made to the Resident Labour Market Test, including widening the websites that may be used for graduate recruitment from a specified list of four to any freely available, prominent, graduate recruitment website. A further change is being made whereby a candidate must be offered a job within 12 months of the completion of the advertising relied on (currently six months).

A waiver for the Resident Labour Market Test and an exemption from the Tier 2 (General) limit is being introduced for posts that support the relocation of a high-value business to the UK or a significant new inward investment project. The sponsor must be a newly registered (within the last three years) branch or subsidiary of an overseas business and the investment must involve new capital expenditure of £27 million or the creation of at least 21 new UK jobs.

The Short Term Staff category will close, meaning that all intra-company transfer workers, except graduate trainees, must qualify under a single route with a minimum salary threshold of £41,500, or the appropriate rate in the codes of practice, whichever is higher.

The salary threshold for senior intra-company transferees who are able to extend their total stay in the category to up to nine years is being reduced, from £155,300 to £120,000.

The requirement for intra-company transferees to have at least one year’s experience working for the sponsor’s linked entity overseas is being removed for applicants paid £73,900 or above.

Changes have been introduced to provide greater clarity and consistency as to which types of allowance will be considered against the salary requirements. Also, the closure of the Short Term Staff subcategory means that accommodation allowances can form a maximum of 30% (rather than 40%) of the total salary package for all intra-company transferees (except Graduate Trainees).

  • Sponsors of creative workers in the Creative and Sporting subcategory must comply with a recruitment code of practice or otherwise take into account the needs of the resident labor market. A change is being made to waive this requirement for creative sector jobs that appear on the Shortage Occupation List.
  • A further change is being made to the codes of practice for creative workers so that sponsors do not need to carry out a recruitment search where a performer is required for continuity or is engaged by a unit company in relation to productions outside the UK, rather than outside the European Economic Area (EEA), as at present. This ensures that non-EEA nationals who have performed in productions elsewhere in the EEA are not disadvantaged.
  • The requirement for points-based system dependents to meet the 180-days-per-annum residency requirement in the UK to qualify for indefinite leave to remain has been removed.
  • The period of overstaying that is permitted before a re-entry ban is imposed on individuals who have remained in the UK after their leave to enter or remain has expired will be reduced from 90 days to 30 days where the overstaying began on or after April 6, 2017. Unless specific exceptions apply, anyone who overstays for more than 30 days will be subject to a 12-month re-entry ban.
  • To qualify for indefinite leave to remain (ILR) on or after April 6, 2022, an individual must be earning at least £37,900.
  • A clarification has been made confirming that individuals may apply for a visitor visa in any country offering a visa service regardless of whether they are resident in that country.

Immigration Skills Charge

The UK government has just announced that subject to parliamentary approval, the immigration skills charge is due to be introduced on April 6, 2017.

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 will be applying 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

There is a transitional provision whereby the skills charge does not apply if an employer is sponsoring an individual who was sponsored in Tier 2 before April 6, 2017, and is applying from inside the UK to extend his or her Tier 2 stay with either the same sponsor or a different sponsor.

This is an important exemption for Sponsors. It means that the skills charge will not apply to extension applications of an employer’s existing Tier 2 workforce, provided the employer extend the workers’ stay on an in-country basis. Furthermore, if an employer wishes to hire an individual already working in the UK on a Tier 2 visa granted before April 6, 2017, the employer will not need to pay the skills charge when applying for a new visa for the worker on an in-country basis.

Timings of extension applications will therefore be important to ensure applications are made timely from within the UK before the Tier 2 migrant’s leave expires. This is important because if your Tier 2 employee is outside the UK when his or her visa expires, he or she will not only be subject to the cooling-off period for 12 months (unless within the high earner category) but will also be subject to the skills charge.

Other Exemptions

  • 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
  • The employer does not have to pay the skills charge for the worker’s family members (dependents).

Cost of the Skills Charge

The skills charge will be £1000 per year for medium or large sponsors and £364 per year for small or charitable sponsors (including universities). It will be payable upfront and for the total period of time covered by the certificate of sponsorship.

An employer will usually be considered to be a small business if:

  • Its annual turnover is £10.2 million or less; and
  • It has 50 employees or fewer.

Sponsors will need to pay the skills charge at the same time as they pay to assign a certificate of sponsorship (CoS) to sponsor someone to do a skilled job in the UK. The money collected by the Home Office will be used by the Department for Education to address skills gaps in the UK workforce.

Steps an Employer Should Take Immediately

An employer that knows it will need to bring Tier 2 migrants to the UK this year should consider bringing forward recruitment plans so that it is in a position to apply for the Tier 2 entry clearance before April 6, 2017. The critical date will be the date of filing of the online application. Therefore, provided the entry clearance application is submitted online before April 6, the employer can avoid the skills charge. The employer will need to be mindful of the start date of employment in the UK, as new guidance on start dates has also been issued.

CoS Start Date

The UK government has also issued new guidance on the CoS start date, which will need to be taken into account when considering the start date for employment in the UK for Tier 2 employees. The start date given on the CoS must be the date on which the migrant employee will start working for the employer. The employee will be granted entry clearance no more than 14 days before the start date given on the CoS. Once the entry clearance has been granted, it is possible to delay this start date, but in the case of a Tier 2 (General) migrant, any revised start date cannot be put back by more than four weeks from the original start date on the CoS. However, under the Tier 2 (Intra-Company Transfer) route, it is possible for the start date to exceed the four weeks, provided the employee continues to be paid by the sending overseas entity.

How Will Triggering Article 50 Affect Employers of EU Nationals?

The House of Commons has voted to reject the House of Lords amendment that sought to guarantee the rights of EU nationals resident in the UK before Brexit negotiations begin. This paves the way for Article 50 of the Lisbon treaty to be triggered shortly, when the two-year negotiation process will begin for the UK to leave the European Union. Although this two-year period can be extended with the agreement of all 27 members, it is unlikely in reality that this will be achievable. While the government has stated that negotiations regarding the rights of EU citizens will be a priority once Article 50 is triggered, until this issue is decided many EU nationals will remain in limbo in the UK with ongoing uncertainties regarding whether they can continue to reside in the UK.

This will come as a blow to many employers of EU migrants who now continue to face uncertainty about whether their EU workforce will continue to have residency rights in the UK.

There are strong indications that the government will grant permanent residence to those who have resided in the UK for at least five years as qualified persons; i.e., those who were workers, self-employed, self-sufficient, students, or job seekers prior to a not-yet-determined cut-off date. This could happen when the UK eventually leaves the EU, but there is a strong possibility it could be as soon as the date of triggering Article 50. It has been widely reported in the press that the cut-off date will be when the government triggers Article 50, and indeed this date has been recommended in a report by British Future published in December 2016.

To ease employees’ concerns, employers may wish to conduct an audit of their EU employees and family members of EU nationals to ascertain whether they can meet the five-year residency requirement.

As part of this process, employees should be encouraged to collect documents evidencing their status as employed, self-employed, a student, or self-sufficient. It is important to note that the five-year qualifying period can consist of periods of stay consecutively in any of these categories. For any period when the employee was a student or self-sufficient, he or she will need evidence of comprehensive sickness insurance. Employees will also need to show that they have not spent more than six months outside the UK in any 12-month period over the five years. On this point, where an employee has resided in the UK in excess of five years, he or she can use a five-year period where the qualifying conditions are easily met with supporting documentation and where he or she can show no absence from the UK for more than two years after the five-year qualifying period chosen.

Alternatively, employers could await the outcome of the negotiations to be conducted by the government and in the meantime their EU employees’ rights to live and work in the UK will continue until Britain leaves the EU and during any agreed-upon transitional period.

Individuals can apply to the Home Office for a registration certificate or, if they have already been in the UK for five years, a document certifying permanent residence. These documents do not in themselves confer any rights but are evidence that the government has acknowledged the individual is exercising his or her right of residence or has acquired permanent residence.

If an individual has been living in the UK for at least six years, he or she could consider applying to the Home Office for naturalization as a British citizen. This can only be done after obtaining a document certifying permanent residence. Before applying, individuals will need to check whether their country of origin permits dual nationality and whether it will affect their tax position. If they have any non-EU family members—for example, spouses or dependent relatives—becoming British could affect their ability to rely on the individual’s EU rights and advice should be sought on this.

Individuals could also consider applying for a British passport for any child born in the UK. A child born in the UK on or after April 30, 2006, to an EU citizen who acquired permanent residence before the child’s birth is automatically a British citizen, even if the EU citizen parent has never held a document certifying permanent residence. Different rules apply for children born before this date but they could be eligible to be registered as British.

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