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1. VISA WAIVER PROGRAMS: AN OVERVIEW -

This article provides an overview of visa waiver programs in several countries.

2. AUSTRALIA -

Australia has implemented the Temporary Skills Shortage visa and employer nomination sponsored visas.

3. HONG KONG -

This article provides an overview of the acquisition of Chinese nationality in the Hong Kong SAR and related tax issues.

4. ITALY -

Italy has implemented a new directive on the conditions of entry and residence of third-country nationals for certain purposes. There are new rules for non-EU/EEA students and researchers.

5. RUSSIA -

A new federal law changes the rules for address registrations of foreign nationals and stateless persons in the Russian Federation.

6. UNITED KINGDOM -

This article discusses next steps for the "Windrush Generation"; details of the Brexit settlement scheme, including a toolkit for employers; and good news for employers of Tier 2 migrants: the easing of pressure on the Tier 2 cap.

7. New Publications and Items of Interest -

New Publications and Items of Interest

8. Member News -

Member News

 

 
 
1. VISA WAIVER PROGRAMS: AN OVERVIEW
 

This article provides an overview of recent developments in several countries with respect to visa waiver programs.

Canada

To be granted admission to Canada as a visitor, foreign nationals are subject to different entry conditions depending on their country of citizenship. Pursuant to subsections 190(1) and 190(2) of the Immigration and Refugee Protection Regulations, certain foreign nationals can apply to enter Canada as a visitor directly at a Canadian port of entry while others must apply for a Temporary Resident Visa (TRV) before arriving in Canada, usually through a Visa Office abroad.

Citizens of the following countries are visa-exempt and therefore do not require a TRV to travel to Canada: Andorra, Australia, Austria, Bahamas, Barbados, Belgium, Brunei Darussalam, Bulgaria, Chile, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Federal Republic of Germany, Finland, France, Greece, Hungary, Iceland, Ireland, Italy, Japan, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Mexico, Monaco, Netherlands, New Zealand, Norway, Papua New Guinea, Poland, Portugal, Republic of Korea, Samoa, San Marino, Singapore, Slovakia, Slovenia, Solomon Islands, Spain, Sweden, Switzerland, and United Arab Emirates. In addition, British citizens, most British overseas citizens, citizens of Israel, citizens of the United States and persons who have been lawfully admitted to the United States for permanent residence as well as holders of certain diplomatic passports, and holders of passports issued by the Hong Kong Special Administration Region and the Ministry of Foreign Affairs in Taiwan are also exempt from the requirement to obtain a TRV.

While citizens of these visa-exempt countries do not require TRVs to travel to Canada, most must obtain an electronic travel document called an Electronic Travel Authorization (eTA) if they wish to travel to Canada by air. The eTA must be applied for and obtained before boarding a flight to Canada. Canadian citizens, Canadian permanent residents, and U.S. citizens are exempt from this requirement and can continue to enter Canada using their valid Canadian passport, valid Canadian permanent resident card, or valid U.S. passport. The eTA is only required for air travel, which means that citizens of visa-exempt countries can continue to enter Canada without an eTA at a Canadian land border crossing.

There are a few limited exceptions to the requirement for citizens of visa-requiring countries to obtain TRVs. For example, since May 1, 2017, certain citizens of Brazil and Romania can apply for an eTA instead of the usual requirement to obtain a visa to fly to or to transit through a Canadian airport. This new exemption to obtaining a TRV applies to citizens of these two countries who have held a Canadian visa in the past 10 years or who currently hold a valid U.S. nonimmigrant visa. In addition, pursuant to paragraph 190(3)(f) of the Immigration and Refugee Protection Regulations, a foreign national who would normally require a TRV is authorized to re-enter Canada following a visit to the United States or St. Pierre and Miquelon if they hold valid temporary resident status in Canada and are returning to Canada before the end of the period initially authorized for their temporary stay.

A foreign national who is granted entry as a visitor can normally remain in Canada for an initial period of six months unless otherwise indicated by a Border Services Officer of the Canada Border Services Agency. Extended stays of up to two years can be granted for parents and grandparents having applied and obtained a "Super Visa."

Colombia

Under Colombian immigration laws, foreign nationals of more than 90 countries do not require visas to enter Colombia. They may apply for an entry and stay permit (PIP), which is granted to visa-waivered foreigners upon arrival at the port of entry. 

PIP-6

To undertake commercial or business activities such as attending or participating in academic, scientific, artistic, cultural, or sporting events without any remuneration; being interviewed as part of a recruitment process; participating in business training; or performing journalistic activities or coverage, foreign nationals may apply for an entry-and-stay permit 6 (PIP-6) and may stay initially for 90 days, extendable for an additional 90 days, for a maximum stay of 180 days per calendar year. It is important to note that PIP-6 holders are not permitted to bill clients, nor is client-to-client billing permitted.

PIP-7

In the same way, foreign nationals engaging in urgent technical activities for 30 days or less may obtain a PIP-7 entry-and-stay permit for short-term technical authorization upon arrival when presenting the pre-approval letter, issued by Colombian Immigration. The request for the pre-approval letter is submitted to Colombian Immigration and is generally issued within five business days. The PIP-7 is issued immediately upon arrival in Colombia at the port of entry to non-restricted nationalities.

Some of the visa waiver benefits are available to citizens of the European Union, Andorra, Antigua and Barbuda, Argentina, Australia, Bahamas, Barbados, Belize, Bhutan, Bolivia, Brazil, Brunei-Darussalam, Canada, Chile, Costa Rica, Dominica, Dominican Republic, Ecuador, El Salvador, Fiji, Georgia, Granada, Guatemala, Guyana, Honduras, Iceland, Indonesia, Israel, Jamaica, Japan, Liechtenstein, Lithuania, Luxembourg, Korea, Malaysia, Malta, Marshall Islands, Mexico, Monaco, New Zealand, Palau, Panama, Papua New Guinea, Paraguay, Peru, Philippines, Romania, Saint Kitts and Nevis, Saint Vincent and Grenadines, Saint Marino, Saint Lucia, Solomon Islands, Singapore, Slovenia, Suriname, Switzerland, Trinidad and Tobago, Turkey, United Kingdom, United States, Uruguay, and Venezuela.

Moreover, nationals of Cambodia, India, Nicaragua, Myanmar, China, Thailand, Vietnam, and Nicaragua who hold a valid visa with a validity of more than six months, or residence status from a Schengen country or the United States, also qualify for the visa-free regime and could apply for these permits.

France

European Union (EU) law determines the foreign nationals who may benefit from visa waivers to enter Member States, which include France. The list of countries who are visa-waived countries are listed in an annex to EU regulation 539/2001.

EU law, through its directives, determines the content of national immigration laws and regulations. The EU Directive 2016/801 of 11 May 2016 recasts conditions of entry and residence of third-country nationals for the purpose of of research, studies, training, voluntary service, pupil exchange schemes or educational projects, and au pairing. Besides recasting previous directives, this directive establishes improved intra-EU mobility of third-country scientists, their accompanying family members, and students, making the EU more attractive to these strategic populations of third-country nationals.

French legislation already meets most of the minimum standards for admitting third-country nationals for the purpose of research, studies, training, voluntary service, pupil exchange schemes or educational projects, and au pairing. However, the legislation will have to be modified to allow for the improved intra-EU mobility required by this directive for scientists, their accompanying family members, and students.

The following articles of the directive are of particular interest:

Intra-EU Mobility for Scientists (Articles 28, 29, 30)

Third-country nationals admitted to a Member State in scientist status for one year can carry out their activities in a second Member State for a maximum period of 180 days. A third-country scientist admitted to a Member State under a multi-year permit can carry out their activities in a second Member State for 360 days, or more if the second Member State allows for a longer period.

The family members admitted as such in the first Member State may accompany the scientist to the second Member State. The directive does not provide for a right to work for such family members in the second Member State.

Intra-EU Mobility for Students (Article 31)

Third-country nationals admitted to a Member State and who are covered by a Union or multilateral program that comprises mobility measures or by an agreement between two or more higher education institutions can carry out their studies in one or several second Member States for a period of up to 360 days per Member State.

Immigration reform is expected to fully transpose the EU Directive 2016/801 into national legislation in France in the next few months.

India

India has implemented an efficient e-Visa that obviates the need to apply for a visa at an Indian consulate or mission.

The e-Visa has three sub-categories: e-Tourist visa, e-Business Visa, and e-Medical visa. The sole objective of the traveler visiting India, according to the Government of India website, must be for "recreation, sightseeing, casual visit to meet friends or relatives, short duration medical treatment or casual business visit." Although "casual business visit" has not been defined, based on anecdotal evidence, it is being interpreted broadly to involve legitimate business activities not involving work or employment. Those activities are subject to a separate employment visa. The passport should have at least six months' validity from the date of arrival in India, and must also have at least two blank pages for stamping by the immigration officer at the port of entry. Moreover, the traveler should have a return ticket or onward journey ticket, with sufficient money to spend during his or her stay in India.

Applicants who are nationals from the following countries or territories are eligible:

Albania, Andorra, Angola, Anguilla, Antigua & Barbuda, Argentina, Armenia, Aruba, Australia, Austria, Azerbaijan, Bahamas, Barbados, Belgium, Belize, Bolivia, Bosnia & Herzegovina, Botswana, Brazil, Brunei, Bulgaria, Burundi, Cambodia, Cameron Union Republic, Canada, Cape Verde, Cayman Islands, Chile, China, China-SAR Hongkong, China-SAR Macau, Colombia, Comoros, Cook Islands, Costa Rica, Côte d'lvoire, Croatia, Cuba, Cyprus, 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, Iran, Ireland, Israel, Italy, Jamaica, Japan, Jordan, Kazakhstan, Kenya, Kiribati, Kyrgyzstan, Laos, Latvia, Lesotho, Liberia, Liechtenstein, Lithuania, Luxembourg, Madagascar, Malawi, Malaysia, Mali, Malta, Marshall Islands, Mauritius, Mexico, Micronesia, Moldova, Monaco, Mongolia, Montenegro, Montserrat, Mozambique, Myanmar, Namibia, Nauru, Netherlands, New Zealand, Nicaragua, Niger Republic, Niue Island, Norway, Oman, Palau, Palestine, Panama, Papua New Guinea, Paraguay, Peru, Philippines, Poland, Portugal, Republic of Korea, Republic of Macedonia, Romania, Russia, Rwanda, Saint Christopher and Nevis, Saint Lucia, Saint Vincent & the Grenadines, Samoa, San Marino, Senegal, Serbia, Seychelles, Sierra Leone, Singapore, Slovakia, Slovenia, Solomon Islands, South Africa, Spain, Sri Lanka, Suriname, Swaziland, Sweden, Switzerland, Taiwan, Tajikistan, Tanzania, Thailand, Tonga, Trinidad & Tobago, Turks & Caicos Island, Tuvalu, Uganda, Ukraine, United Arab Emirates, United Kingdom, United States, Uruguay, Uzbekistan, Vanuatu, Vatican City-Holy See, Venezuela, Vietnam, Zambia, and Zimbabwe.

Eligible applicants may apply online a minimum of four days in advance of the date of arrival and not earlier than 120 days after. For example, if an applicant is applying on September 1, the applicant can select an arrival date from September 5 to January 2.

The applicant should carry a copy of the Electronic Travel Authorization (ETA) at the time of travel, and the ETA status should be shown as "GRANTED" before traveling begins.

The validity of the e-Visa is 60 days from the date of arrival in India .Double entry is permitted on the e-Tourist Visa and e-Business Visa. Triple entry is permitted on e-Medical Visa. The e-Visa can be used a maximum of two times in a calendar year; i.e., between January and December. It is non-extendable, non-convertible, and not valid for visiting protected, restricted, and cantonment areas. Special prior permission needs to be sought to visit such areas of India.

Nationals of yellow fever-affected countries or travelers arriving from these countries must carry a yellow fever vaccination card at the time of arrival in India; otherwise they may be quarantined for six days upon arrival in India.

The Government of India website has also issued the following advisory:

Services of e-Visa involves completely online application for which no facilitation is required by any intermediary/agents etc. It is advised not to believe or fall in trap of any such unscrupulous elements who claim speedy/express grant of e-Visa and charge money for it. [Wording and emphasis in original.]

Further details can be found here.

Mexico

A major legislative reform to the Mexican immigration regime in November 2012 aligned migratory policies with current challenges that had not been successfully addressed under the previous General Populations Law that had been valid for nearly 40 years. Some of the founding principles that govern immigration policy in Mexico today include protection of immigrants' human rights, addressing immigration as a shared responsibility with other countries' governments, fostering international mobility within the framework of respect and security, attracting investment, and facilitating the free movement of people within the country for transit, business, tourism, and work-related purposes.

Consistent with the above, nearly 30 former immigration status and subcategories have been superseded and simplified into three main immigration statuses, known as "conditions of stay": Visitor, Temporary Resident, and Permanent Resident.

Foreign nationals from designated countries can enter Mexico without a visa for transit, tourism, and business purposes in visitor status. Furthermore, nationals from countries that require a visa to enter Mexico as visitors may be exempt from this requirement if they are:

  1. Holders of a valid visa to enter the United States, Canada, Japan, United Kingdom, or the Schengen countries;
  2. Holders of permanent resident status in Canada, the United States, Japan, the United Kingdom, the Schengen countries, or the Pacific Alliance member countries (Chile, Colombia, and Peru); or
  3. Holders of an APEC Business Traveler Card (ABTC) approved by Mexico.

Foreign nationals from visa-required countries who do not meet any of these conditions may apply for a visitor visa at the nearest visa-adjudicating Mexican consular post to their place of residence and secure a visa within 10 business days upon fulfilling the requirements for the purpose of the trip. In practice, most consulates grant this type of visa within one to three business days and the requirements typically include proof of economic solvency or evidence of an invitation from a Mexican-based entity for business-related purposes, among other standard requirements.

The visitor status is appropriate for short-term stays of up to 180 days per entry without extension. Nonetheless, there is no limit on the number of times a foreign national may enter Mexico under visitor status.

Since Mexican migration law does not distinguish among business activities, foreign visitors entering for business may engage in most kinds of business and work-related activities, provided that these are legal and consistent with their declaration at the port of entry to the country. Foreigners cannot be remunerated directly from a Mexican source under visitor status on a visa waiver.

Notwithstanding the above, several options foreigners have as visitors may be deceiving because there are contingencies that can be triggered due to frequent travel or compliance with other applicable laws, such as labor and tax. Examples of the latter include signing on behalf of a company, contracting, or opening a bank account.

Companies that plan to send foreign employees to Mexico for business and work-related purposes should evaluate the overall implications pertaining to other applicable laws, in addition to the immigration laws.

This information is of a general nature and should not be relied upon as legal advice.

Russia

The federal law of July 19, 2018, ? 202-FZ, "On amending individual legal acts of the Russian Federation pertaining to easier E visa procedures for foreign citizens on the territory of Russian Federation state border airport checkpoints located in the Far Eastern Federal District," comes into force on August 19, 2018.

The federal law provides for extending entry and exit E visa procedures to the territory of airport checkpoints located in the Far Eastern Federal District. At the moment, the E visa procedures are valid for entry into the Russian Federation and exit from the Russian Federation only through the following checkpoints across the state border, located on the territory of the Free Port of Vladivostok:

  1. Air checkpoint "Vladivostok (Knevichi)";
  2. Maritime checkpoints "Vladivostok," "Zarubino," "Petropavlovsk-Kamchatsky," "Korsakov," and "Posiet";
  3. Railway checkpoints "Pogranichny," "Khasan," and "Makhalino"; and
  4. Road checkpoints "Poltavka" and "Turiy Rog."

Beginning August 19, 2018, the E visa procedures will be available for entry into the Russian Federation and exit from the Russian Federation at following air checkpoints of the Far Eastern Federal District: Khabarovsk (Novy), Petropavlovsk-Kamchatsky (Yelizovo), Yuzhno-Sakhalinsk (Khomutovo), Blagoveshchensk, and Anadyr (Ugolny).

E Visa Specifics and Application Process

1. Only citizens of the following countries can obtain an e-visa, the list is set out by the Government of the Russian Federation:

Algeria

Bahrain

Brunei

India

Iran

Qatar

People's Republic of China

Democratic People's Republic of Korea

Kuwait

Morocco

Mexico

United Arab Emirates

Oman

Saudi Arabia

Singapore

Tunisia

Turkey

Japan

2. An E visa is free. Invitations, hotel booking confirmations, or any other documents that confirm the purpose of visit to the Russian Federation are not required for an E visa.

3. An E visa is valid for entry into the Russian Federation and exit from the Russian Federation only through the checkpoints established by the government of the Russian Federation and located on the territory of the Free Port of Vladivostok and, since August 19, 2018, also in the Far Eastern Federal District.

4. An E visa is for single entry and is issued for a period of 30 calendar days from the date of issuance. The permitted period of stay in the Russian Federation on an electronic visa is up to 8 calendar days, starting from the date of entry. The validity of the E visa and the permitted period of stay under E visa in Russia cannot be extended.

5. E visas can only be issued for the following categories:

  • Business (purpose of the visit: business),
  • Tourist (purpose of the visit: tourism),
  • Humanitarian (purpose of the visit: sports, cultural relations, or scientific and technical relations).

If the purpose of the visit does not correspond to any of the above, the visa is issued through diplomatic missions or consular offices of the Russian Federation.

6. Foreign citizens who have arrived in the Russian Federation on E visas have the right to travel only within the Far Eastern Federal District, with the exception of territories, organizations, and facilities. Special permission to enter the latter is required in accordance with federal laws of the Russian Federation.

Foreign citizens can leave the Russian Federation on E visas only through checkpoints in the territory of the Free Port of Vladivostok and the Far Eastern Federal District.

E visa applications are filed through the website of the Consular Department of the Ministry of Foreign Affairs:

  1. https://evisa.kdmid.ru/ru-RU (Russian)
  2. https://evisa.kdmid.ru/en-US/Home/Index (English)

In accordance with paragraph 2 of article 18.8 of the Code of Administrative Violations of the Russian Federation, a violation by a foreign citizen or stateless person of the rules of entry to the Russian Federation or the regime of stay (residence) in the Russian Federation, such as a discrepancy between the declared purpose of the visit to the Russian Federation and the activities actually carried out within the period of stay (residence) in the Russian Federation will result in the imposition of administrative fines in the amount of two thousand to five thousand rubles, with or without deportation.

Legislative Overview

Relevant laws include:

  • Federal law of July 19, 2018, ? 202-FZ, "On amending individual legal acts of the Russian Federation pertaining to easier E visa procedures for foreign citizens on the territory of Russian Federation state border airport checkpoints located in the Far Eastern Federal District"
  • Government Decree of May 30, 2017, ? 667, "About establishment of the electronic visa procedure specifics and entry into the Russian Federation on the basis of E visas for foreign citizens arriving to the Russian Federation through checkpoints located on the territory of Free Port of Vladivostok, through the air checkpoints located on the territory of the Far Eastern Federal District, and about modification of regulations on the state system of migration and registration, and identity documents’ production, registration and control"
  • Government Order of April 14, 2017, ? 692-R, "On the list of countries whose citizens can obtain the single-entry business, tourist, and humanitarian E visas upon arrival in the Russian Federation through the checkpoints of the Free Port of Vladivostok"
  • Resolution of the Government of the Russian Federation of July 19, 2018, ? 848, "On amendments to the Government Decree of May 30, 2017, ? 667"
  • Code of Administrative Violations of Russian Federation of December 30, 2001, ? 195-FZ

Turkey

Although foreign nationals of some countries can enter Turkey visa-free for business visitor purposes, as a general rule, foreign nationals require a visa to enter and remain in Turkey to pursue business activities. This may be either an electronic visa/E visa or occasionally a consular-issued visa. The duration of stay period (generally 30, 60, or 90 days) and the fee for the visa depend on the nationality of the applicant. A more precise list of those nationalities that are visa-free and those that require an E visa or consular visa is available on the website of the Ministry of Foreign Affairs of the Republic of Turkey.

Countries whose nationals may visit Turkey visa-free include many European countries such as France, Germany, Greece, and Denmark. The list also includes many neighboring countries such as Iran, Bulgaria, Jordan, Lebanon, Croatia, Azerbaijan, Moldova, and Albania, as well as several Latin American countries. Nationals from many developed countries, such as the United States, Canada, and the United Kingdom, must obtain E visas to enter Turkey.

A foreigner may apply for an E visa here.

 
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2. AUSTRALIA
 

Australia has implemented the Temporary Skills Shortage visa and employer nomination sponsored visas.

While certain transitional arrangements remain, the old Subclass 457 Visa in Australia has now been replaced by the Temporary Skills Shortage (TSS) Visa (Subclass 482).

As with the previous 457 process, the TSS visa process consists of three separate applications: the application by the employer to be approved as a sponsor, the nomination, and the visa application. To sponsor an employee, the employer must be approved as a Standard Business Sponsor. Sponsorship approvals may be valid for five years. In certain circumstances, a sponsor may seek accreditation, which may enable future nominations and may expedite visas for that accredited sponsor.

Central to the nomination application has been the establishment of two separate lists of approved occupations: the Short-Term Skills Occupation List (STSOL) and the Medium and Long-Term Strategic Skills List (MLTSSL). Visas granted relating to nominations of occupations on the STSOL will only be granted for a two-year period. After the two years, a further and final period of two years may be sought. Where International Trade Obligations apply, a four-year visa may be granted. Visa applications granted relating to nominations for occupations on the MLTSSL may be approved for a four-year period.

Only the holders of TSS visas relating to MLTSSL occupations are entitled to be nominated for an Employer Nomination Subclass 186 Permanent Visa. This provision has caused substantial angst. After criticism, certain revisions of the lists have already taken place and occupations previously on the STSOL have been removed and inserted on the MLTSSL.

Nomination

For a nomination to be approved, the following criteria must be met:

  • It must be made by an approved sponsor;
  • It must relate to an occupation appearing on one of the two lists;
  • There must be no adverse information relating to the business of the sponsor;
  • The position must be genuine and full-time;
  • The sponsor must establish that the salary is a market rate salary; and
  • There must be evidence of labor market testing.

As mentioned above, labor market testing is now required for all 482 visas subject to certain exemptions relating to international trade obligations. At present, under the regulations, the relevant position must have been advertised twice within the last six months for at least 21 days on two separate occasions. Amendments to this provision specifying a one-month period of advertising within the last four months have been passed by the Upper House but not yet implemented.

A further change that has passed the Senate is the introduction of the Skilling Australians Fund, which took effect on August 12, 2018. Under the previous 457 Program, an employer had to demonstrate that it met certain training benchmarks by providing evidence that it had spent the equivalent of 1% of its payroll in training Australian employees. Alternatively, if the employer was unable to establish the 1% requirement, it could pay an amount equivalent to 2% of its payroll to a registered training body to meet this benchmark.

The Skilling Australians Fund legislation replaces the training benchmark provisions with the requirement that, at time of nomination, an employer having a turnover of greater than $10 million pay to the Fund the sum of $1,800 for each year of the TSS visa. For sponsors having a turnover of less than $10 million, the amount is $1,200. The approved amendments also provide for a cap on the contributions payable by a sponsor.

Visa Application

The following are now the requirements for a TSS visa:

  • The visa applicant must be the subject of an approved nomination;
  • In certain circumstances, the visa applicant must have completed a skills assessment;
  • The visa applicant must meet the English language requirement, unless exempted; and
  • The visa applicant must meet health and character requirements.

English language requirement. Applicants who are not subject to an exemption must meet the English language requirement. Note that the English language scores required for those visa applicants applying for occupations appearing on the MLTSSL are higher than those appearing on the STSOL.

Health criteria. The TSS regulations now require medical examinations for all TSS visa applicants.

Character requirements. The TSS regulations now require all TSS visa applicants to provide police clearances. However, visa applicants sponsored by an accredited sponsor are not required to obtain these certificates.

Prior work experience. Both the STSOL and MLTSSL require evidence that the visa applicant has worked in the nominated occupation or a related field for at least two years before filing the application. This provision effectively excludes recent graduates from being sponsored for a TSS visa.

The visa applicant who applies for a STSOL occupation must demonstrate that the application is genuine.

EMPLOYER NOMINATION—SUBCLASS 186 VISA

Below is a brief summary of the requirements for the Subclass 186, Employer Nomination Visa. Certain transitional provisions apply to holders of either a TSS or 457 Visa granted prior to April 2017.

The structure of the Subclass 186 visa is unaffected and still consists of three streams: the Temporary Residence Transition (TRT) Stream; the Direct Entry (DE) Stream, and the Labour Agreements Stream. This brief overview does not discuss the latter.

TRT Stream

The following are the current requirements:

  • The applicant must hold a TSS as a nominee for an occupation appearing on the MLTSSL. Transitional arrangements continue to apply to those visa applicants who were granted visas prior to April 2017.
  • The applicant must have worked for the employer for at least three of the previous four years in the same position for which he or she has been nominated.

Eligibility for All Streams

The applicant must:

  • Have been nominated by an Australian employer within the six months prior to application;
  • Be under 45 years at the date of application;
  • Have the required skills and qualifications at the time of application;
  • Have at the time of application the required English language skills;
  • Meet health and character requirements; and
  • Generally be less than 45 years old at the time of application. However, certain exemptions apply for those applicants applying for an ENS through the Temporary Residence Transition Stream who have been working for the nominating employer as the holder of a TSS or 457 visa for at least three years and who, in each of those years, have received a salary over $142,000.

English language requirements. Applicants, unless exempted, must prove that they have “competent English”.  This means that IELTS Level 6 is required in all 4 categories.  Other English language tests have been approved.

Skills requirements. All applicants must demonstrate at least three years of relevant work experience and, in the case of the Direct Entry Stream, a valid Skills Assessment in the nominated position.

 
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3. HONG KONG
 

This article provides an overview of the acquisition of Chinese nationality in the Hong Kong SAR and related tax issues.

The immigration landscape has evolved a great deal and many wealthy and successful businesspeople in Asia now seek citizenship in a jurisdiction with lenient or no residence requirements for citizenship as a hedge against political uncertainty in their home countries and as an alternative to uprooting themselves to settle in a destination country.

These popular "citizenship by investment" programs include Malta, Cyprus, and a number of countries in the Caribbean, including St. Kitts and Nevis, Grenada, Dominica, Antigua and Barbuda, and St. Lucia.

Although Hong Kong SAR does not have a "citizenship by investment" program and permanent residence requires seven years of continuous "ordinary residence," for many businesspeople who have established businesses or settled in Hong Kong or who have been on extended employment assignments there, the acquisition of Hong Kong permanent residence or "right of abode" and Chinese nationality have become increasingly attractive options.

With its proximity to China and its low-tax regime, Hong Kong is a strategic gateway into business opportunities in mainland China. In addition to its well-established infrastructure, Hong Kong has a simple and low tax regime. It has no capital gains tax, no tax on dividends and interest income, no sales tax, and no estate tax. Assessable profits of corporations is at 16.5% while the standard salaries tax, at 15%, is among the lowest in the world.

This has made Hong Kong a top location for commerce, investment, and trade. Moreover, Hong Kong is a common-law jurisdiction. These characteristics have consistently attracted multinationals to set up Asia Pacific regional headquarters in Hong Kong, and foreign expatriates around the world have been drawn to work in Hong Kong and to take part in growing economic opportunities in Asia, including global talent in the areas of finance, banking, marketing, information technology, telecommunications, and management.

Some of these executives and businesspeople are native-born Americans while others are skilled professionals originally from Taiwan, mainland China, Korea, and India who settled in the United States after studies there and became naturalized U.S. citizens and then were assigned by their multinational employers to work in Hong Kong.

As Hong Kong only taxes its residents on salaries and profits from a Hong Kong source, while the United States taxes its citizens on a worldwide basis, some Americans are taking a hard look at the costs and benefits of keeping their U.S. citizenship and contemplating acquiring another nationality should they decide to relinquish their U.S. citizenship.

Under Article 7 of the Chinese Nationality Law, a foreign national or a stateless person who is willing to abide by China's Constitution and Laws may apply for naturalization as a Chinese national if:

  • They have near relatives who are Chinese nationals;
  • They have settled in China; or
  • For other legitimate reasons.

Under Article 18, Annex III to the Basic Law of the Hong Kong SAR of the People’s Republic of China, the Nationality Law of the People's Republic of China applies in the Hong Kong SAR effective July 1, 1997.

Under Cap 540 S 3, the Chinese Nationality (Miscellaneous Provisions) Ordinance, nationality applications in the Hong Kong SAR are filed with the Immigration Department of the Hong Kong SAR (Hong Kong Immigration Department).

Factors Considered in the Application for Naturalization

There are many factors considered in an application for naturalization, and each application will be considered on its own merits. These factors include whether:

  • The applicant has a near relative who is a Chinese national with the right of abode in Hong Kong;
  • The applicant has the right of abode in Hong Kong;
  • The applicant’s habitual residence is in Hong Kong;
  • The principal members of the applicant’s family (spouse and minor children) are in Hong Kong;
  • The applicant has a reasonable income to support himself and his family;
  • The applicant has paid taxes in accordance with the law;
  • The applicant is of good character and sound mind;
  • The applicant has sufficient knowledge of the Chinese language;
  • The applicant intends to continue to live in Hong Kong once the naturalization application is approved;
  • There are other legitimate reasons to support the application.
  • The Hong Kong Immigration Department has a great deal of discretion in adjudicating naturalization cases, with emphasis given to different factors at different points in time based on policy and security considerations.

Under Cap 540 S 5 of the Chinese Nationality Law (Miscellaneous Provisions) Ordinance, the discretionary decision of the Director of Immigration in naturalization applications is not subject to appeal to, or review in, any court, and there is no requirement for the Director to assign any reason for the decision, but the discretion is to be exercised without regard to the race, color, or religion of any person who may be affected by its exercise.

A successful applicant is granted a certificate of naturalization on payment of the prescribed fee. The Director of Immigration may cancel the certificate of naturalization if the Director is satisfied on reasonable grounds that the certificate was obtained by fraud, false representation, or the concealment of any material facts.

In 1997, when Hong Kong first reverted to the People's Republic of China, it was virtually impossible for a foreigner to acquire Chinese nationality unless the applicant had a Chinese spouse and had Chinese language proficiency. Now, however, many foreign nationals successfully naturalize even if they do not have close relatives who are Chinese nationals and lack Chinese language proficiency, especially if they are highly educated senior business executives who pay substantial taxes in Hong Kong or entrepreneurs who have shown their commitment to Hong Kong and have been permanently settled for many years there and are of benefit to and an asset to the Hong Kong community.

Dual Nationality Not Recognized

The present processing time for a naturalization application filed at the Hong Kong Immigration Department is about 10 to 12 months. A case can only be "approved in principle," subject to the applicant furnishing proof that he or she has renounced his or her present nationality. This is because Article 3 of the Nationality Law of the People's Republic of China provides that dual nationality is not recognized for any Chinese national. More to that point, Article 8 of the Nationality Law states that any person who applies for naturalization whose application has been approved shall not retain foreign nationality. Thus, a successful applicant for naturalization as a Chinese national must renounce his or her present nationality before he or she can become a Chinese national. This is so even if the successful applicant's present country of nationality permits and recognizes dual nationality.

Some U.S. citizens who originally had Chinese nationality and the right of abode in Hong Kong made a "Declaration of Change of Nationality" with the Hong Kong Immigration Department when they returned to Hong Kong in order to be treated as foreign nationals in the Hong Kong SAR for the purpose of consular protection.

Such persons, after the declaration of change of nationality has been approved by the Hong Kong Immigration Department, may continue to enjoy the right of abode in Hong Kong so long as they had such a right before July 1, 1997, or they return to settle in Hong Kong within 18 months from July 1, 1997, or on the date they return to settle in Hong Kong have not immediately before that date been absent from Hong Kong for a continuous period of more than 36 months. They are, however, no longer entitled to Hong Kong SAR passports as such passports are only issued to Chinese nationals with the right of abode in Hong Kong.

A successful U.S. citizen applicant for Chinese nationality must renounce his or her U.S. nationality pursuant to Section 349(a)(5) of the Immigration & Nationality Act, 8 USC § 1481(a)(5), before a Certificate of Naturalization as a Chinese national and a Hong Kong SAR passport can be issued.

At one time, the U.S. consulate in Hong Kong refused to permit U.S. citizens to renounce their nationality because they would be rendered stateless if they did not have another nationality. Thus, prospective renunciants were required to present the passport of another country before their applications for renunciation would be processed.

Upon clarification with the U.S. Department of State's Office of Policy Review and Interagency Liaison Office of the Overseas Citizenship Division (now renamed the Office of Legal Affairs of the Overseas Citizen Services), the Director opined that an individual's resulting statelessness will not, in and of itself, necessarily preclude the approval of the renunciant's Certificate of Loss of Nationality. However, the Department will take note of that status in determining whether or not the individual has manifested the requisite intention to relinquish his or her citizenship. It thus seems clear that a U.S. citizen may proceed with renouncing his or her U.S. citizenship before being granted naturalization by his or her new country of nationality.

There is also judicial and administrative precedent to support the position that statelessness will not preclude a person from the legal right to renounce citizenship. In Davis v. District Director, 481 F. Supp. 1178 (DDC 1979), the U.S. District Court for the District of Columbia held that a U.S. citizen can renounce citizenship without acquiring another nationality even if the expatriation results in statelessness.

Furthermore, in Matter of Davis, 16 I&N Dec. 514 (BIA 1978), the Board of Immigration Appeals pointed out that even the United Nations Convention on the Reduction of Statelessness (to which the U.S. is not a signatory) allows for the voluntary renunciation of citizenship with resulting statelessness if the renunciant gives "definite evidence of his determination to repudiate his allegiance."

The right to renounce despite being rendered stateless is now clearly stated in 7 FAM 1215e, which states, "We will accept and approve renunciations of persons who do not already possess another nationality."

For foreign nationals who have acquired the right of abode in Hong Kong, naturalization as a Chinese national may be an attractive option, as, under the "One Country, Two Systems" formula, Hong Kong has a totally different tax regime from China, and Chinese nationals who hold the right of abode in Hong Kong are entitled to a Hong Kong SAR passport, which, unlike a People’s Republic of China passport with extremely limited visa-free privileges, accords the bearer visa-free or visa-on-arrival privileges to some 147 countries and territories.

In an increasingly globalized world, many naturalized or natural-born U.S. citizens who are permanent residents in Hong Kong and who have developed very successful careers in Asia have discovered that for them, it makes sense to give up their U.S. citizenship and to become naturalized Chinese citizens in Hong Kong and to obtain Hong Kong SAR passports.

In calendar year 2017, a total of 1,534 applications for naturalization as Chinese nationals were received by the Hong Kong Immigration Department. See here for more information.

 
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4. ITALY
 

Italy has implemented a new directive on the conditions of entry and residence of third-country nationals for certain purposes. There are new rules for non-EU/EEA students and researchers.

By means of legislative decree 11 May 2018, n. 71 (date of entry into force July 5, 2018), Italy has implemented Directive (EU) 2016/801 on the conditions of entry and residence of third-country nationals for the purposes of research, studies, training, voluntary service, pupil exchange schemes, educational projects, and au pairing.

In accordance with the directive, the new regulations provide for enhanced mobility rights for researchers and students and introduce the possibility for researchers to remain in Italy after the completion of a research program for the purpose of finding a job or setting up a business.

Below is an overview of the main features of the new regulations:

  • Students holding a valid permit issued by a European Union (EU) Member State, covered by mobility programs/agreements, can enter and stay in Italy for a period of up to 360 days to carry out part of their studies, with no need to apply for a residence permit;
  • Upon completion of the research program, researchers may apply for a permit for the purpose of job-searching or entrepreneurship, valid up to 12 months. Such a permit can be converted into a permit for work;
  • There are shorter processing times for entry clearance, visas, and permits for researchers;
  • Researchers (and their family members) holding a valid permit issued by one EU Member State can stay in Italy to carry out part of the research for a period of up to 180 days in any 360-day period, with no need to apply for a residence permit (short-term mobility). For stays longer than 180 days in any 360-day period, the normal procedure applies and researchers will receive a residence permit with the wording "researcher-mobility" (long-term mobility).
 
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5. RUSSIA
 

A new federal law changes the rules for address registrations of foreign nationals and stateless persons in the Russian Federation.

In accordance with the Federal Law of June 27, 2018, N 163-FZ, "On amendments to the Federal Law 'On address registration of foreign nationals and stateless persons in the Russian Federation,' " as of July 8, 2018, the rules for address registrations of foreign nationals and stateless persons in the Russian Federation are changing.

The Federal Law of June 27, 2018, was developed to execute the resolution of the Constitutional Court of the Russian Federation of July 19, 2017, ? 22-P. This resolution:

  1. Clarifies the definition of "place of stay" of a foreign national or stateless person in the Russian Federation and the definition of "host party" for the foreign national or stateless person in the Russian Federation; and
  2. Sets out article 21 of the Federal Law in the new edition, fixing the list of places of stay that can be used for address registration for foreign nationals and stateless persons in the Russian Federation.

Place of stay of a foreign national or stateless person in the Russian Federation means the residential or other premises in which a foreign national or stateless person actually lives (regularly uses for sleep and rest);

Host party for the foreign national or a stateless person in the Russian Federation means a Russian national, foreign national, or stateless person permanently residing in the Russian Federation (i.e., having a residence permit in the Russian Federation); a legal entity; a branch; or a representative office of a legal entity. The foreign national or stateless person must use the residential or other premises for actual residence.

According to the adopted changes, legal entities will not be able to act as a host party and issue the address registration at the company's office address (except when a foreign employee actually lives at the employer's address or at the employer's premises that do not have registered address data).

HQS employees can be considered as a host party with respect to their family members, if they own the residential premises in the territory of the Russian Federation and use them for an actual residence.

Address registration should be carried out at the address of the actual residence of a foreign national or stateless person in the territory of the Russian Federation by the owner of the residential premises (e.g., house, apartment, room), except in cases fixed by the Federal Law (e.g., staying in a hotel or in another organization providing hotel services, sanatorium, holiday house, or staying in a social services organization or in an institution that performs administrative punishment).

Currently, VFBS clarifies the law enforcement practice regarding:

  • The procedure for foreign national address registration if the foreign national resides in the apartment rented for an employee by the employer;
  • The possibility of foreign national address registration at the place of residence on the basis of a power of attorney issued by the owner of the residential premises (if the owner for any reason is not able to fulfill the obligations of address registration and visit the immigration authority in person); and
  • The possibility of foreign national address registration if the foreign national owns the apartment  and actually lives there, but does not have a permanent residence permit in the territory of the Russian Federation.

The territorial immigration authorities in Moscow may have different requirements with respect to the documents required to be provided for address registration as of July 8, 2018, which may be clarified on a case-by-case basis.

Address registration is carried out at the address of the actual residence of a foreign national in the territory of the Russian Federation (apartment or hotel).

 
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6. UNITED KINGDOM
 

This article discusses next steps for the "Windrush Generation"; details of the Brexit settlement scheme, including a toolkit for employers; and good news for employers of Tier 2 migrants: the easing of pressure on the Tier 2 cap.

What Now for the Windrush Generation?

The United Kingdom (UK) government's "hostile environment" policy was introduced in 2014 with the intention of identifying migrants in the UK without immigration permission with the ultimate purpose of removing those deemed to be without lawful status from the UK. This was achieved by restricting access to employment, housing, and vital public services such as health care, as well as detaining individuals who could not provide evidence of their immigration status. Unfortunately, it had a wider impact on those who were lawfully in the UK but had not previously been required to hold documentary evidence. One such group was the "Windrush Generation"—Commonwealth citizens who arrived in the UK before 1973 and who were given indefinite permission to reside in the UK by virtue of the Immigration Act 1971. Many came from the Caribbean in 1948 on a ship called the "Empire Windrush," and more came in subsequent years. They did not need a document to prove their status; their initial date of entry was deemed to be sufficient. Children born in the UK to Windrush parents were also automatically born British.

There are reports of a number of individuals being wrongfully caught by the hostile environment policy by, for example, being prevented from returning to the UK following overseas travel, facing bankruptcy and destitution as a result of losing jobs and access to benefits, or having their housing taken away.

Following media pressure, the government committed to "swiftly put right the wrongs that have been done." A new task force has handled more than 13,000 queries to date and guidance has been published for affected individuals. Concessions have been made for those who wish to naturalize as British citizens. Application fees have been waived for confirmation of immigration or nationality status.

In terms of the hostile environment policies, guidance for employers and landlords has been updated to deal with undocumented Commonwealth citizens. The government has also suspended a series of other policies, including checks on bank accounts and data-sharing with the revenue and customs, driver and vehicle licensing, and work and pensions agencies. A compensation scheme designed to help those wrongfully affected is to be set up shortly.

While it seems that much has been done to help those affected by the hostile policies, the government's response was unacceptably slow after much of the damage had been caused. Not only should lessons be learned from this, but the system as a whole needs to be reviewed seriously, with transparency and public consultation, if the government wants to stop this from happening again.

Brexit Update: Further Details of the Settlement Scheme Announced

On June 21, 2018, the UK government published a Statement of Intent outlining details of the new European Union (EU) Settlement Scheme. Under the Scheme, EU citizens and their family members resident in the UK before December 31, 2020, will be able to apply for UK immigration status. The new application will be rolled out in phases starting in late 2018 and will be subject to an initial private beta test phase commencing shortly. The Scheme will be fully open by March 30, 2019.

The Scheme encompasses two new application types, which will be added to the Immigration Rules:

  • A pre-settlement application where limited leave to remain will be granted for up to five years; and
  • A settlement application where indefinite leave to remain (ILR) will be granted once an applicant can demonstrate continuous residence in the UK for five years.

The main criteria for eligibility under the Scheme will be continuous residence in the UK, which means that applicants will not be required to show they meet all the requirements of the current free movement rules, such as any requirement to have held Comprehensive Sickness Insurance or generally to detail the exercise of specific rights (e.g., the right to work) under EU law.

What does continuous residence mean?

  • For those who have resided in the UK for less than five years, it means they must not have been absent from the UK for more than six months in any 12-month period. Up to 12 months' absence is permitted for exceptional reasons such us pregnancy, childbirth, ill health, study, or vocational training;
  • For those who have resided in the UK for five years, they must not have been absent from the UK for five years or more since completing the five-year period;
  • EU nationals who are temporarily absent from the UK on December 31, 2020, will still be considered residents for the purposes of the Scheme, provided they can meet the continuous residence criteria.

Eligibility for ILR after less than five years

  • Some people will be eligible for ILR after less than five years' residence, including:
  • Those who have worked in the UK for at least three years and subsequently left to work in another EU Member State and have maintained a place of residence in the UK, to which they return at least once a week;
  • Those who have worked prior to retirement for at least 12 months and have resided in the UK for at least the last three years;
  • Those who have stopped work due to incapacity, having been continuously resident for more than the previous two years;
  • Bereaved family members of an EU citizen who had been resident in the UK as a worker or self-employed at the time of death, provided the EU citizen was continuously resident in the UK for at least two years before their death (unless their death was the result of a work-related incident) and the family member was resident in the UK with the EU citizen immediately before their death and is continuously resident in the UK;
  • Children under 21 who are continuously resident in the UK, provided their EU parent is being granted ILR.

Requirements for a valid application under the Scheme

The application must:

  • Be filed in the UK using the required digital application process;
  • Include payment of a fee of £65 or £32.50 for children under 16;
  • Include proof of identity and nationality: EU citizens must provide a valid passport or national identity document, and non-EU family members must provide either a valid passport, biometric residence card, or Biometric Residence Permit (BRP). Alternative evidence is acceptable in compelling or compassionate circumstances;
  • Include submission ("enrolment") of a facial image via the uploading of a new passport photo (not previously used in a passport). Non-EU family members who do not have a BRP must attend an application center in the UK to submit ("enrol") their fingerprints and facial image.

How will the application process work?

  • There will be an online application form, which will be short, simple, and user-friendly;
  • Where possible, the application process will help the applicant establish continuous residence, and whether or not it amounts to five years, by using data held by HMRC and later, by the DWP;
  • If the applicant can demonstrate five years' continuous residence, then, subject to criminal and security checks, the applicant will be granted ILR;
  • For those who have previously been issued a document certifying permanent residence (PR), they can exchange this free of charge for ILR under the Scheme, subject only to criminal and security checks and to confirm that their status has not lapsed due to absence from the UK for more than five years;
  • Where automatic checks do not indicate the EU citizen has been continuously resident for five years, or has been continuously resident for less than five years, applicants can upload documentary evidence of their continuous residence (or evidence they are in one of the categories eligible for ILR with less than five years of continuous residence). Where appropriate, they will be granted ILR, subject to criminal and security checks;
  • Otherwise, applicants will be granted limited leave to remain for up to five years;
  • Non-EU family members not previously issued PR will also have access to the automated process and, where necessary, documents can be uploaded by the applicant. They will also need evidence of their relationship to the EU family member for the relevant period and evidence of that person's continuous residence in the UK during that period;
  • Evidence of status will be given in digital form and no physical document will be issued. Non-EU family members will have both a digital means of evidencing their status, plus a BRP, where they do not already hold a BRP;
  • EU citizens granted either limited leave to remain or ILR will be able to be joined by close family members resident overseas at the end of the transitional period (December 31, 2020), if the relationship existed at that date and it continues when that person wishes to come to the UK.

Those who still wish to apply for PR under the EU provisions may continue to do so at this time.

On May 25, 2018, in its response to the Home Affairs Select Committee's report on the Home Office delivery of Brexit, the UK government provided further clarification with respect to the rights of EU citizens after Brexit.

Specifically it has confirmed:

  • As previously advised, a new EU Exit Settlement Scheme will be launched by the end of 2018. Under the Scheme, EU applicants and their family members who have lawfully resided in the UK for at least five years will be granted ILR. The government had previously described it as a "new settled status" and it was surprising that the government has opted to describe the new status as ILR, given that it will be a significantly enhanced version of the ILR currently granted to non-EU nationals;
  • An example of one of the enhancements is that ILR granted under the Scheme will lapse after five years’ absence from the UK, not the usual two; 
  • A further example is that this ILR status, granted under UK law, will sit alongside free movement rights before exit and for the duration of the transition period; 
  • The full enjoyment of free movement rights include the ability to have direct family members join EU nationals in the UK, without having to show that they meet the domestic British Immigration Rules;
  • For those EU citizens who have already acquired PR and since left the UK, provided they have retained their PR status by returning to the UK at least every two years, they may apply for the new settled status (ILR) if they return to take up residence in the UK at any point prior to the end of the transitional period (December 30, 2020);
  • Any applicant whose application for ILR is initially rejected will have the right to appeal the decision and may re-apply at any time before June 30, 2021;
  • EU citizens living in the UK as students or self-sufficient people will not have to prove that they have held Comprehensive Sickness Insurance (CSI) to qualify for ILR. However, the government has clarified that any EU citizen traveling to the UK during the transition period and who is not ordinarily resident in the UK will continue not to be eligible for National Health Service-funded care and will need to have the necessary CSI, such as a European Health Insurance Card or an SI form.

Toolkit for Employers on EU Settlement Scheme

On July 25, 2018, the Home Office published a toolkit for employers on the EU Settlement Scheme. This consists of a number of useful documents that provide details about the proposed roll-out of the new digital EU settlement scheme application process, the timing of the roll-out, and how employees and their family members may qualify under the Scheme. The documents are designed to be shared by employers with all appropriate stakeholders, including human resources staff, line managers of EU citizen employees, and EU citizen employees.

The toolkit

Good News for Employers of Tier 2 Migrants: Easing of Pressure on the Tier 2 Cap

After considerable lobbying by the health minister Jeremy Hunt and other ministers, the UK Home Secretary recently announced changes to the Immigration Rules, which include measures to ease pressure on the Tier 2 visa cap. The main change is that all NHS doctors and nurses will no longer be subject to the restrictive Tier 2 visa cap, thus freeing up the visas to be taken up by employers in other business sectors, as of July 6, 2018.

These NHS staff will be able to apply for the unrestricted Tier 2 visas, which will enable the health sector to fill the many vacant positions, while employers in other sectors will see the benefit of additional visa availability in restrictive certificate-of-sponsorship allocations.

This is very welcome news as the Tier 2 cap salary threshold has peaked as high as £60,000 during the past six months, preventing many employers from securing Tier 2 visas for their staff earning less. There is a severe recruitment crisis being experienced by employers in many sectors—particularly lower-salary sectors including engineering, IT, and architecture—that have not been able to secure Tier 2 visas for their staff.

Not to downplay the significance of this announcement, although this change will ease the pressure on the cap, it will only partially improve the availability of restricted Tier 2 visas because the overall cap of 20,700 visas per annum will remain in place. Given the level of oversubscription each month since the cap was first reached last December, it is likely that the monthly quota will still be oversubscribed, but by not as much. So although the minimum salary to qualify for a Tier 2 restrictive visa will fall with the removal of NHS staff from the quota, there will still be significant numbers of higher earners applying for these visas and thus using up the monthly quota.

Previously, some of these higher earners would have been doctors, so their removal from the cap would free up visas for other employers to use, but many doctors reportedly failed to secure a visa because their role was not on the shortage occupation list and did not attract a salary in excess of around £55,000 (on the other hand, nurses and a handful of other medical occupations are on the shortage occupation list; such roles would have qualified for a visa due to the additional points awarded for shortage occupation roles). So the numbers of nurses, shortage occupation doctors, and higher-salaried doctors who were previously receiving the visas will determine how many extra visas will be available.

The government has said that there will effectively be 8,000 more of these visas available each year, but we will have to await data on visa allocation decisions to find out what the minimum salary will be to qualify. It will vary each month as the monthly quota of these visas varies throughout the year, with more being available during the peak recruitment season over the summer.

 
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7. New Publications and Items of Interest
 

Toolkit for employers on EU Settlement Scheme. On July 25, 2018, the UK Home Office published a toolkit for employers on the EU Settlement Scheme. This consists of a number of useful documents that provide details about the proposed roll-out of the new digital EU settlement scheme application process, the timing of the roll-out, and how employees and their family members may qualify under the Scheme. The documents are designed to be shared by employers with all appropriate stakeholders, including human resources staff, line managers of EU citizen employees, and EU citizen employees. The toolkit is available here.

Alliance of Business Immigration Lawyers:

 
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8. Member News
 

The following were included in Chambers USA (bio links are included for ABIL members):

Nationwide – Firms

Klasko Immigration Law Partners, LLP

Seyfarth Shaw LLP

 

Nationwide – Ranked Lawyers

Robert Aronson (Fredrikson & Byron, P.A.)

Charles Foster (Foster LLP)

H. Ronald Klasko

Charles Kuck

Cyrus Mehta

Angelo Paparelli

Gregory Siskind (Siskind Susser PC)

William Stock (Klasko Immigration Law Partners, LLP)

Bernard Wolfsdorf

Stephen Yale-Loehr

 

By State – Firms

Cyrus D. Mehta & Partners, PLLC

Kuck Baxter Immigration

Maggio & Kattar

Miler Mayer, LLP

Pearl Law Group

Seyfarth Shaw

Wolfsdorf Rosenthal LLP

 

By State – Ranked Lawyers

Jim Alexander (John Nahajzer's partner)

Sharon Cook Poorak (Angelo Paparelli's partner)

David Fullmer (Mark Ivener's partner)

Anna Gallagher (John Nahazjer's partner)

David Isaacson (Cyrus D. Mehta & Partners, PLLC)

Sameer Khedekar (Julie Pearl's partner)

James King (Angelo Paparelli's partner)

Charles Kuck

Carolyn Lee (Miller Mayer, LLP)

Cyrus Mehta

Angelo Paparelli

Julie Pearl

Cora-Ann Pestaina (Cyrus Mehta's partner)

Bernard Wolfsdorf

Stephen Yale-Loehr

 

The following were included in Who's Who 2018 (bio links are included for ABIL members):

Thought Leaders (Corporate Immigration):

Enrique Arellano

Bernard Caris

Laura Devine

Kehrela Hodkinson

H. Ronald Klasko

Jelle Kroes

Charles Kuck

Gunther Mävers

Marco Mazzeschi

Cyrus Mehta

Bettina Offer

Angelo Paparelli

Nicolas Rollason

Gregory Siskind (Siskind Susser PC)

William Stock (Klasko Immigration Law Partners, LLP)

Karl Waheed

Bernard Wolfsdorf

Stephen Yale-Loehr

 

Listed (ABIL members and affiliated) (bio links are included for ABIL members):

Allison-Claire Acker

Jim Alexander

Erik Anderson

Enrique Arellano

Robert Aronson

Joseph Barnett

Meredith Barnette

Sophie Barrett-Brown

Dustin Baxter

Matthew Beatus

Naveen Rahman Bhora

Robert Blanco

Delisa Bressler

Jean-Philippe Brunet

Dagmar Butte

Bernard Caris

Barbara Jo Caruso

Maria Celebi

Ryan Chargois

Natasha Chell

Francis Chin

Eugene Chow

Steven Clark

Arnold Conyer

Philip Curtis

Laura Danielson

Davy Day

Ilda de Sousa

Dyann DelVecchio Hilbern

Robert Lee DeMoss II

Laura Devine

Meagan Dziura

Rami Fakhoury

Elise Fialkowski

Charles Foster

Todd Fowler

Hilary Fraser

Avi Friedman

David Fullmer

Bryan Funai

Anna Marie Gallagher

Steven Garfinkel

Ana Garicano Sole

Hiba Ghalib

Vic Goel

Avi Gomberg

Sander Groen

Elspeth Guild

Thomas Gunnerson

Geneviève Hénault

Janeen Hicks

Kehrela Hodkinson

Loan Huynh

Mark Ivener

Priscilla Jones

Jeff Joseph

Kirby Gamblin Joseph

Mounia Jrabi

Sameer Khedekar

Linda Kim

James King

H. Ronald Klasko

Jelle Kroes

Charles Kuck

Avalyn Castillo Langemeier

Vincent Lau

Carolyn Lee

Judy Lee

Hannah Little

Lisa Locke

Marcia Longdon

Robert Loughran

Dawn Lurie

Gabriele Mastmann

Gunther Mävers

Rosanne Mayer

Marco Mazzeschi

Cyrus Mehta

John Nahajzer

Christy Nguyen

Bettina Offer

Ariel Orrego-Villacorta

Isabelle Owston

Kristal Ozmun

Angelo Paparelli

Julie Pearl

Cora-Ann Pestaina

Sharon Cook Poorak

Hendrik Pretorius

John Quill

Elizabeth Quinn

William Reich

Kimberley Best Robidoux

Nicolas Rollason

Cliff Rosenthal

Nestor Rosin

Iñigo Sagardoy

Gina Sales-Cengiz

Ari Sauer

Gunnar Sievert

Gregory Siskind

Joel Stewart

William Stock

Lynn Susser

Rodrigo Tannus Serrano

Elissa Taub

Andrew Tingley

Yvonne Toy

Kim Vowden

Karl Waheed

Chris Watters

Robert White

Bernard Wolfsdorf

Stephen Yale-Loehr

Richard Yemm

Lisa Yu

 Charles Kuck was quoted by PRI in "Deporting Asylum-Seekers Without Giving Them a Chance to Make Their Case Would Violate U.S. and International Laws." He said, "The reason why asylum-seekers are exempted from immediate removal from the United States is because of our international treaty obligations. The United States has a long history, prior to the signing of the Refugee Convention in 1967, of turning away asylum-seekers. We turned away boatloads of Jews during World War II and we didn't want to go back to that time." The article is at pri.org.

Robert LoughranVic Goel, and Angelo Paparelli presented on "Multinational Executives, Managers and Specialists—No Longer Favored Categories" on a panel at the Council for Global Immigration 2018 Symposium in Arlington, Virginia, in June. They focused on the distinct challenges to the L-1A and L-1B categories and current enforcement activity related to compliance. For more information, see cfi.org.

Mr. Loughran was interviewed and quoted by the San Antonio Business Journal in "Volume of H-1B Tech Visas Drop in SA, But Demand for Help Remains High." Specifically, he outlined the continued demand for foreign workers due to the low unemployment rate, and creative U.S. immigration strategies used by employers due to the H-1B cap. The article is at bizjournals.com.

Mr. Loughran recently participated in the State Bar of Texas meeting of the Committee on Laws Relating to Immigration & Nationality, which included a report from the Assistant U.S. Attorney for the Southern District of Texas in Houston responsible for prosecuting false claims to U.S. citizenship, denaturalization, smuggling, unlawful entry, and illegal reentry.

Along with Bryan Funai and Mr. PaparelliMr. Loughran recently presented to the Alliance of Business Immigration Lawyers (ABIL) on the immigration impact of mergers and acquisitions and how practitioners can prepare to address immigration issues in advance of corporate reorganizations.

Mr. Loughran recently presented on "Adapting to New Procedures Under the 'Buy American, Hire American' Executive Order" at the University of Texas System Benefits & Human Resources Conference.

Mr. Loughran was interviewed and quoted by the Houston Chronicle in "Fate of Visa Program for Startups in Limbo," commenting on the Trump administration's efforts to rescind the International Entrepreneur Rule and its impact on venture capitalists and individual entrepreneurs. The article is at houstonchronicle.com.

Marco Mazzeschi authored "Workers Mobility Within Schengen: A Comparative Study of 17 Countries' Requirements," which summarized current European Union provisions regulating the mobility of third-country nationals performing work within the Schengen Area. The article was published in the February 2017 edition of the Global Journal of Human Resource Management.

Mr. Mazzeschi also authored "Not Just Business as Usual in the EU: A Comprehensive Analysis of Immigration and Tax Issues Related to Business Trips in 17 Schengen Countries," which undertakes a comparative analysis of doing business in the European Union's Schengen Bloc vis-à-vis working in the Schengen Bloc. Through a critical review of what may constitute business activities versus work in all 17 Schengen member states, the article establishes how international companies can minimize unintentional exposure to immigration noncompliance as well as possible tax liabilities. The article was published on February 8, 2018, by Sciedu Press.

Cyrus Mehta was quoted by the BBC in "Travel Ban: Trump Hails 'Tremendous' Supreme Court Ruling." Mr. Mehta said the majority opinion "gave in to President Trump's hate and bigotry and will be viewed as a blemish." The article is at bbc.com.

Mr. Mehta participated in a show on TV Asia, "Skilled Immigrants: To Stay or Not?," that highlights the plight of skilled immigrants and their families caught in green card backlogs. The show is available here.

Mr. Mehta and Sophia Genovese have co-authored a new blog entry. "Threading the Needle: Challenging Trump's Travel Ban Despite Trump v. Hawaii" is at The Insightful Immigration Blog.

David Isaacson of Mr. Mehta's office has authored a new blog entry, "Another Brick in the (Virtual) Wall: Implications of USCIS's New Policy Regarding Removal Proceedings Against Denied Applicants Who Are Not Lawfully Present".

Angelo Paparelli has authored a new blog entry, "From the Jails to the Streets, Courthouses and Worksites: California Takes on the Federal Immigration Police".

Mr. Paparelli was quoted by Bloomberg Law in "Judge Gives Calif. Lawyers 'Breathing Room' on Immigration." He said that California’s Immigrant Worker Protection Act (A.B. 450) "created a lot of confusion" for employers trying to comply with both state and federal authorities. With the court's order, he said, "I think we are back to square one," and you "can take your immigration lawyer off speed dial." With respect to site visits by USCIS's Fraud Detection and National Security Directorate (FDNS), he said the "standard process is to get access to the workplace of the individual" whose visa petition was the basis for the visit. The idea is to ensure that the foreign worker's job location, job duties, and other information match up with what the employer listed on the petition. "That is where there is a clear conflict with A.B. 450." If an employer won't allow the FDNS agent to view the employee's work space without a warrant, or the employee's paperwork without a subpoena, the agency will revoke the petition, he said. If the employer allows an FDNS agent in, it could face fines from the state. The article is at Bloomberg Law.

Mr. Paparelli was quoted by Law360 in "USCIS Memos Signal Sea Change for Business Immigration." He said that attorneys should file for renewal up to six months before the current expiration of status so that applicants do not fall out of status before the agency adjudicates their petitions, which would make them vulnerable to removal proceedings. He also advised referencing USCIS regulations on initial evidence required in visa petitions, creating a record of the exact evidence provided to satisfy each element in anticipation of potential federal court litigation. The article is available by registering at law360.com.

Rodrigo Tannus of Colombia recently joined the Alliance of Business Immigration Lawyers. Mr. Tannus lived in Denmark for several years, where he got his first taste of international culture. This formative experience led him to travel around the world, attend various conferences and symposiums, and eventually spend more than 10 years practicing immigration law. Mr. Tannus is a founding partner of Tannus & Asociados and directs the firm's Labor/Employment and Immigration practices. He represents domestic and multinational companies, advising them on the development of migration and labor strategies for the management of workers in Colombia and abroad. He heads a team of experienced attorneys and consultants who advise clients in a variety of industrial sectors on numerous aspects of employment and immigration law. He has published articles on immigration and labor law best practices in Colombia and is an active lecturer on binational chambers, ProColombia, LEGIS, Worldwide ERC, and the International Bar Association, among other national and international guilds. Mr. Tannus teaches immigration and employment law at the Universidad de la Sabana. He has been recognized by Best Lawyers, Chambers and Partners, Who’s Who, and Legal 500 as a leading employment and immigration lawyer.

Mr. Tannus has authored a new article published in Diario la República and La Nota Económica, "El cumplimiento de obligaciones migratorias."

Stephen Yale-Loehr spoke about "Our Broken Immigration System and How to Fix It" at Dartmouth's Osher Lifelong Learning Institute in Hanover, New Hampshire on August 2, 2018, as part of a series, "Our Divided Country: How to Find Common Ground." For more information or to register, see dartmouth.edu.

Mr. Yale-Loehr was quoted by Reuters in "U.S. Judge Says Government Must Reunite Immigrant Families or Face Penalties." Mr. Yale-Loehr said fines amount to a "slap on the wrist" since the government would be paying itself, but a finding of contempt of court would be embarrassing and might lead to compliance. "Nobody likes to be held in contempt of court," he said. The article is at nasdaq.com.

Mr. Yale-Loehr was quoted by Voice of America in "Proposed [Public Charge] Rule May Affect U.S. Legal Immigration." Mr. Yale-Loehr said, "This is not a new issue. The United States has prohibited the entry of paupers and people likely to become public charges since 1882. Most potential immigrants must show that they earn at least 125 percent of the federal poverty income guidelines before they are granted green cards, or have sponsors assume financial responsibility for them." He also noted that of the more than 1 million people granted permanent residence in fiscal year 2017, only 3,237 were found ineligible based on public charge concerns. The article is here.

Mr. Yale-Loehr was quoted by USA Today in "How a Judge Can Punish Trump Administration Over Separated Families." Legal experts say the judge could threaten contempt of court and jail time against lower-ranking members of federal agencies, could order hefty fines, or could order the agency heads to appear in court as a form of public shaming. He said the somewhat symbolic finding of contempt of court, without much punishment attached, may be the limit of the judge's ruling. "The court of public opinion, and the admonition by the judge, may be about as much as anyone can practically do at this point." The article is at usatoday.com.

Mr. Yale-Loehr was quoted recently by various media outlets:

On the family reunification court hearing:

  • Univision
  • Agence France-Presse
  • Pacific Standard: Mr. Yale-Loehr noted that if the government misses the deadline, the federal judge has little means to enforce the order. "You can't throw the government in jail. It's hard to do too much as a court, other than keep the hearings public…and try to urge the government to reunify the families as soon as possible."

On the EB-5 program:

  • Pacific Standard, "Amid Immigration Uproar, Trump Keeps Mum on the EB-5 Immigrant Investor Program." Mr. Yale-Loehr said, "In March, Congress considered making significant changes to the EB-5 program, such as increasing the minimum investment amount to $800,000 and making it harder to put EB-5 projects in major metropolitan areas. Because of the mid-term elections this fall, I suspect that Congress will again kick the EB-5 can down the road and extend the program for another year without making any changes."

On the decline in optional practical training (OPT) applications:

  • San Jose Mercury News, "H-1B Visa Alternative 'OPT' Sees Big Drop in Growth." The shrinkage is likely a result of moves by the White House to limit immigration; the Trump administration has "declared war" on legal immigrants, leading to worries among foreign students about the future, said Mr. Yale-Loehr. "Foreign students are concerned about whether they'll be able to work in the United States after they graduate, either on OPT or on an H-1B after OPT. We may be seeing more international students returning home after they graduate, rather than applying for OPT. We're shooting ourselves in the foot by dissuading international students from staying in the United States. In effect, we're telling the best and the brightest to go back home and set up companies in their countries that will compete with U.S. companies.

On ICE tactics:

  • NBC News, "Numbers Show ICE is Using Tougher Tactics in New York Under Trump, Says Report." Mr. Yale-Loehr said, ""ICE feels more liberated in arresting people than under the prior administration." He noted that courthouse arrests make immigrants afraid to report crimes. "It makes immigrants fearful about reporting crimes to the police, showing up for cases that they are supposed to be involved with or testify in or attend because they have a relative in the case. It's the same kind of concern that police officers have about ICE enforcement priorities generally."
  • Daily Mail, "ICE More Than Tripled Its U.S. Work Place Investigations in 2018." Mr. Yale-Loehr said, "I question whether this takes away resources that really should go after criminal gangs and other serious criminal aliens. The administration is trying to instill fear among undocumented immigrants."

On U.S. asylum:

  • Voice of America, "Questions, Answers About Seeking Asylum in U.S." Mr. Yale-Loehr said that asylum-seekers "need to be better prepared than ever before, and they need to make sure their testimony is consistent. …People can still win asylum if they have well-prepared cases. In my experience, most people who apply for asylum do so out of desperation, not because they're trying to game the system. We have an international commitment to make sure people are not sent back to the place [where] they would be persecuted. It's not just something nice to do, it's our obligation to protect those people."

Mr. Yale-Loehr was quoted by numerous media outlets regarding the Supreme Court's entry ban decision, including:

Mr. Yale-Loehr was quoted by several media outlets about the prospects for abolishing the U.S. Immigration and Customs Enforcement agency:

 
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