ABIL Global Update • October 2019

In this issue:

1. BREXIT NO-DEAL CONTINGENCY PLANS: AN OVERVIEW – This article provides an overview of contingency plans in several countries in the event of a possible “no-deal Brexit.”

2. ITALY -The new government proposes changes to the citizenship law.

3. RUSSIA -This article provides an update on immigration-related legislative developments in Russia

4. UNITED KINGDOM -The UK government has announced some helpful autumn rule changes for Tier 2.

5. New Publications and Items of Interest -New Publications and Items of Interest

6. ABIL Member / Firm News -ABIL Member / Firm News

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ABIL Global Immigration Update – October 2019

1. BREXIT NO-DEAL CONTINGENCY PLANS: AN OVERVIEW

This article provides an overview of contingency plans in several countries in the event of a possible “no-deal Brexit.”

Belgium

The federal Belgian authorities have prepared emergency legislation for a no-deal Brexit.

An Act dated April 3, 2019 (hereafter “the Brexit Act”) regulates the right to reside in Belgium for United Kingdom (UK) citizens and their family members between, in principle, the withdrawal date and December 31, 2020. Apart from one section regarding economy/insurance, the Brexit Act, and thus also its immigration rules, will take effect on the date confirmed by Royal Decree. This date will, logically speaking, be the withdrawal date in the event of a no-deal Brexit. The Brexit Act immigration rules will cease to be applicable on December 31, 2020, or an earlier date confirmed by Royal Decree.

The Belgian government has not yet issued a Royal Decree to confirm the date on which the Brexit Act will take effect. They await the outcome of the pending Brexit discussions.

The Brexit Act immigration rules can be annulled, amended, completed, or replaced by a Royal Decree. They can, in principle, be summarized as follows:

UK citizens and their family members who hold a right to reside in Belgium before the withdrawal date maintain this right after the withdrawal date. Residence permits expiring between the withdrawal date and, in principle, December 31, 2020, will be extended until, in principle, December 31, 2020;
UK citizens and their family members who do not yet have a Belgian residence permit should apply for a residence permit prior to the withdrawal date. Applications that are still pending on the withdrawal date will be processed under the pre-Brexit rules;
Applications for residence permits filed after the withdrawal date will be processed according to the rules for third-country nationals, unless these applications are filed by family members of UK citizens, who are eligible to reside under the above-mentioned rules (they hold a right to reside on the withdrawal date or they have filed a residence permit application before the withdrawal date).

The Belgian government has also prepared Royal Decrees granting the right to work to UK citizens who reside in Belgium on the withdrawal date and who can continue to reside in Belgium after Brexit pursuant to the Brexit Act, until, in principle, December 31, 2020. This legislation has not yet been approved.

For UK citizens not protected by the Brexit Act, all three regions (Flanders, Brussels, and Wallonia) have implemented a three-month work permit (for employees)/professional card (for self-employed) exemption during the transition period, i.e., between the withdrawal date and December 31, 2020.

The Flanders region has issued a no-deal Brexit decree, dated March 22, 2019. This decree holds that “a provision…exempts UK nationals who wish to pursue economic activities on the territory of the Flemish Region after Brexit from a work permit or professional card during the transition period, provided their performance is limited to a maximum of ninety days. If their performance exceeds the maximum of ninety days, UK nationals will have to request a work permit or professional card, according to the procedure for third country nationals. However, an accelerated procedure will then be provided.”

A similar provision is included in a decree for the Walloon region, dated April 4, 2019: during the transition period (this means until December 31, 2020), UK nationals can work as an employee or self-employed without a work permit or professional card, provided their work in the Walloon region does not exceed 90 days.

A similar short-term exemption during the transition period in a no-deal scenario has been implemented by a decree for the Brussels region, dated March 28, 2019. The text states that the exemption can be invoked “for a term of maximally 90 days, starting at the latest on 31 December 2020, in any 180-day period…provided a reciprocity measure exists.”

Italy

With decree 25 March 2019, n. 22, the Italian government has outlined the measures that will apply if the United Kingdom (UK) leaves the European Union (EU) without a deal. In particular, article 14 refers to the residency rights of British nationals and their non-EU family members living in Italy, and article 15 refers to Italian citizenship applications. The legislative measures taken by the Italian government ensure that UK nationals legally resident in Italy at the time of Brexit will have the right, and sufficient time, to obtain long-term resident status under EU Directive 2003/109.

Details: See https://www.mazzeschi.it/category/british-citizens-rights-in-italy-after-brexit/; https://www.mazzeschi.it/eventi/brexit-immigration-podcast-a-view-from-italy/.

United Kingdom

On the same day the House of Commons voted to try and rule out the possibility of a no-deal Brexit, the Home Office released on September 5, 2019, an updated policy paper on no-deal immigration arrangements for EU citizens arriving after Brexit, currently scheduled for October 31, 2019.

In a no-deal scenario, EU citizens resident in the UK before that date are expected to be able to continue to reside in the UK and apply under the EU Settlement Scheme. On that basis, practitioners are advising that when possible EU citizens wishing to reside in the UK seek to arrive in the UK before October 31, 2019.

There has been ongoing uncertainty. For example, since August 19, 2019, when Home Secretary Priti Patel announced that there would effectively be an end to free movement after October 31, 2019, there has been concern in relation to what will happen to EU citizens who arrive in the UK for the first time after October 31, 2019, if there is a no-deal Brexit.

Details: Alert on Brexit, https://www.kingsleynapley.co.uk/insights/news/no-deal-brexit-policy-update-provides-some-relief-for-employers-and-eu-citizens; UK policy paper,

2. ITALY

The new government proposes changes to the citizenship law.

The Italian government is proposing a bill to introduce significant changes
to current Italian Citizenship law (Law 91 of 1992) with regard to the
citizenship acquisition process for children.

If the bill is approved, citizenship could be adjudicated for: (i) foreign
children born in Italy who have at least one parent holding a European
Union permit for long-term residents; (ii) children who immigrated to Italy
before the age of 12 and have spent at least five years in the country’s
education system. Additionally, a minor child who acquires or reacquires
Italian citizenship will become an Italian national even if not living with
the parents.

The draft law was discussed by the Parliament in early October.

3. RUSSIA

This article provides an update on immigration-related legislative developments in Russia.

Starting October 1, 2019, Invitation Letters To Be Issued in E-Form Only

According to the Internal Affairs Ministry Moscow immigration office, starting October 1, 2019, all invitation letters for foreign citizens and stateless persons will be issued in Moscow in e-form only. Additionally, payment certificates must be filed immediately along with the application package.

Corrections will be made only in case of a mistake made by Internal Affairs Ministry officials and only if the mistakes are in the spelling of a foreign citizen’s name or in the place of birth. Such corrections will take approximately 1-2 business days. A corrected invitation letter will be also sent to the appropriate consulate. Corrections will not be made in the date of intended entry and exit or the place of the visa application—Russian consulate abroad.

A foreign citizen can apply for a visa on the basis of the invitation letter, issued in e-form only to the consulate, as mentioned in the application for the invitation letter.

E-Visas: List of Countries Whose Citizens Can Use E-Visas to Enter Russia Through Border Posts in St. Petersburg and Leningradskaya Region Approved

The list of countries whose citizens can use e-visas to enter Russia through border posts in St. Petersburg and the Leningradskaya region has been approved.

The following types of visas will be issued in e-form:

One-entry ordinary business
Tourist
Humanitarian

There are 53 countries on the list.

At the moment there is no information regarding through which border control posts entry with e-visas will be possible in St. Petersburg and the Leningradskaya region.

New Out of Quota Positions List

The Ministry of Labor and Social Development has approved a new list of job positions for qualified foreign specialists, who can be employed for up to one year without a quota.

The new list consists of 80 positions and is effective as of September 8, 2019.

Positions excluded from the list:

Quality engineer
Manager (in public nutrition and hotel service)
Head waiter (administrator of the shop floor)
Technical literature translator
Chef-cook

Positions added to the list:

Dispatcher
Regime planning engineer
Engineer-programmer
Repair of the technological equipment master
Technological installations operator
Fitter for the repair of technological installations
Electrician for the repair and maintenance of electrical equipment

The list still contains various managerial positions, as well as engineering and creative professions.

New Highly Qualified Specialist (HQS) Application Form, Notifications on Foreign Citizens Performing Labor Activities in Russia

On August 29, 2019, an Order of the Internal Affairs Ministry was published, effective September 9, 2019, which approves new:

Application form and regulations for the HQS work permit process. This application form is submitted personally by the foreign citizen.

The application form for an HQS work permit by the employer has not changed;

Notification form and regulations regarding employment of a foreign citizen, submitted by an organization rendering job search and employment services to foreign nationals in Russia;
Notification form and regulations regarding salary payments to HQS;
In relation to foreign citizens who are studying full-time in college or university in Russia:

Notification form on signing of a labor or civil agreement;
Notification form on termination of a labor or civil agreement;
Notification form regarding granting of unpaid leave for more than one month within one calendar year;
Regulations for filing of the above-mentioned notifications by employers and customers;

Notification form regarding completion or termination of studies by a foreign citizen who is performing work activities in Russia and studies in Russia full-time, as well as regulations for filing by the educational organization;
Notification form regarding signing of a labor agreement with a foreign national;
Notification form regarding termination of a labor agreement with a foreign national; and
Regulations on filing notifications regarding signing and termination of labor agreements with foreign nationals.

There have been slight changes in these notification forms, and abbreviations and reductions are no longer acceptable on the forms (except official ones).

In relation to this, because the form fields may be insufficient, additional pages are included where employers must enter data for which there was not enough space on the form itself.

Additional pages are completed when necessary. On the additional page, it is necessary to state the number and name of the field in the form for which information is being added, as well as the full name of the foreign citizen for whom the notification is filed.

Notifications and additional pages, which may consist of two or more pages, must be attached together and numbered, and on the last page of the notification an additional page certification record must be made.

Notification Regarding Termination of Foreign Citizenship or Right for Permanent Stay in a Foreign Country (for Russian Citizens)

On October 17, 2019, amendments to the Federal Law from 31.05.2002, N 62-FL “on Russian citizenship” come into force. These amendments concern Russian citizens who have citizenship from a foreign country or a document granting the right of permanent stay in a foreign country.

Previously there was a legally established duty to file a notification in the territorial department of the Internal Affairs Ministry regarding receipt of foreign citizenship or permanent residence in a foreign country or other document granting the right to a Russian citizen of permanent stay in a foreign country.

Starting October 17, 2019, if foreign citizenship or the right of permanent stay in a foreign country have been terminated, the Russian citizen has the right to file a written notification regarding this. The amendments give the right (but do not establish a duty) to the Russian citizen to file such a notification. Written notification is filed by the Russian citizen (or their legal representative) in the territorial department of the Internal Affairs Ministry depending on their permanent or temporary residence address within Russia.

Project: Increasing Use of Electronic Visas

The Russian government has filed a bill of the Federal Law to the State Duma that will amend articles 25 and 25.17 of the Federal Law, “On entering and exiting Russian Federation,” and article 11 of the Federal Law, “On legal status of foreign citizens in Russia.” The amendments are concerned with the use of electronic visas.

The Ministry for the Development of the Russian East has launched a project that provides for an increase in the use of electronic visas. Electronic visas will also be used in automobile, river, and mixed border control points situated in the territory of the Far Eastern Federal District.

Electronic visas have already been introduced at the following points of entry:

Free port Vladivostok;
Territory of the free economic zone in the Kaliningradskaya region;
Through air points of entry determined by the Russian government and situated in the territory of the Far Eastern Federal District.

Starting October 1, 2019, foreign citizens can apply for e-visas to enter Russia through immigration posts located in St.-Petersburg and the Leningrad region.

Application for e-visas to enter through immigration posts in St.-Petersburg and the Leningrad region will be possible for foreign citizens from 53 countries whose citizens can enter and exit the Russian Federation through immigration posts in St. Petersburg and the Leningrad region on the basis of one-entry standard business, tourist, and humanitarian visas, issued in electronic format.

For details on how to apply, see http://electronic-visa.kdmid.ru/index_en.html.

4. UNITED KINGDOM

The UK government has announced some helpful autumn rule changes for Tier 2. (For an update on Brexit no-deal contingency plans in the United Kingdom, see the feature article in this issue, above.)

The Home Office has announced various rule changes set to start in October 2019. The statement of changes runs to some 102 pages. The key changes to be aware of for Tier 2 include:

As anticipated, the government has confirmed the expansion of the shortage occupation list as of October 6, 2019. This is good news for employers who use Tier 2 because it means that more applications—including for architects and IT roles such as web design and development professionals, IT business analysts, programmers, and software development professionals—can be submitted without the need for prior advertisements as part of the Resident Labour Market Test;
PhD-level occupations will be exempt from the monthly quota as of October 6, 2019;
Where a Tier 2 worker in a PhD-level occupation has absences from the UK for research linked to their employment, those absences will not count in an Indefinite Leave to Remain (ILR) application as of October 1, 2019;
Changes have been made so that as of October 1, 2019, Tier 2 workers who are absent from work due to sickness, statutory parental leave, assisting in a national or international humanitarian or environmental crisis, or engaging in legal strike action may still apply for ILR even if those absences cause their salary to fall below the required threshold; and
As of October 1, 2019, Tier 4 (General) students have the right to work for the Tier 2 sponsor when they switch into the Tier 2 (General) category within 3 months of completion of their degree course.

If an application for leave has been made before those dates, it will be decided in accordance with the rules in force the day before.

Separately, the current government announced its intention to bring back a previously deleted category called Post Study Work. As with the previous category, the intention would be that when a student completes their UK degree, they can apply for leave valid for two years in order to “bridge the gap” between study and work. This category used to fit into Tier 1 of the Points Based System and was a very useful tool for employers to employ graduates without first sponsoring them under Tier 2. The current government has indicated that the Post Study Work category would be available to graduates who start degree-level courses next year onwards.

Details: See https://www.kingsleynapley.co.uk/insights/news/tier-2-some-helpful-autumn-rule-changes-announced.

5. New Publications and Items of Interest

Alliance of Business Immigration Lawyers: · The latest immigration news is at https://www.abil.com/news.cfm. · The latest published media releases include:

ABIL Says Proposed Change to Public Charge Rule Would Exclude Immigrants from Government Programs: https://www.prweb.com/releases/abil_says_proposed_change_to_public_charge_rule_would_exclude_immigrants_from_government_programs/prweb15737932.htm
New Data Show Increase in H-1B Denials and RFEs: https://www.prweb.com/releases/new_data_show_increase_in_h_1b_denials_and_rfes/prweb15673632.htm
ABIL Urges Administration to Change “Buy American and Hire American” Executive Order: http://www.prweb.com/releases/2018/05/prweb15485457.htm
ABIL Member Kuck Baxter Immigration Commercial Nominated for an Emmy: http://www.prweb.com/releases/2018/05/prweb15485460.htm

– ABIL Members Note Immigration Threats for Employers in 2018: http://www.prweb.com/releases/2018/03/prweb15261255.htm

ABIL is available on Twitter: @ABILImmigration.
Recent ABIL member blogs are at http://www.abilblog.com/.

6. ABIL Member / Firm News

Joseph Law Firm, P.C. has a new partner and a new name. It is now Joseph & Hall P.C. See https://www.immigrationissues.com/.

Partners H. Ronald Klasko, William A. Stock, and Elise A. Fialkowski have been included in 26th edition of Best Lawyers in America in the area of immigration law.

Robert Loughran (bio: https://www.abil.com/lawyers/lawyers-loughran.cfm) was named the Best Lawyers 2020 Immigration Law “Lawyer of the Year” in Austin, Texas, for the third year. Recognition was based on the consensus of almost 50,000 leading lawyers about the professional abilities of their colleagues within the same geographical area and legal practice area. Mr. Loughran is the Managing Partner of Foster LLP‘s Austin office with a concentration in corporate immigration, investor immigration, and emigration to third countries. Mr. Loughran presents frequently before legal, professional, and academic organizations on the topics of U.S. and foreign work authorization, employer sanctions, maintenance of status, and changes in government proceedings.

Cyrus Mehta (bio: https://www.abil.com/lawyers/lawyers-mehta.cfm) was quoted by Law360 in “Attys Face Greater Urgency After High Court OKs Asylum Bar.” Mr. Mehta said that if he were to represent someone who had perhaps sneaked into the U.S. but would have been subject to the asylum bar—which only applies to those who entered the U.S. after July 15—he would treat that person as a withholding of removal or CAT relief case, and advise the migrant of the limitations. But he said he could also bring an asylum claim on the person’s behalf and challenge the legality of the regulation. For example, if the migrant had applied for asylum in a third country but hadn’t been formally denied, the case could be made that a lack of response constitutes a “de facto refusal” in a country without a functioning asylum system. The article is available by registering at https://www.law360.com/articles/1198444/attys-face-greater-urgency-after-high-court-oks-asylum-bar.

Mr. Mehta has authored a new blog entry. “Poursina v. USCIS: Federal Courts May Not Have Last Word in Reviewing Denial of a National Interest Waiver” is at http://blog.cyrusmehta.com/2019/09/poursina-v-uscis-federal-courts-may-not-have-last-word-in-reviewing-a-denial-of-a-national-interest-waiver.html.

Stacy Caplow and Maryellen Fullerton, of Cyrus D. Mehta & Partners PLLC, have co-authored a new blog entry. “Migrant ‘Protection’ Protocol: A Report From the Front Lines” is at http://blog.cyrusmehta.com/2019/09/migrant-protection-protocol-a-report-from-the-front-lines.html.

David Isaacson, of Cyrus D. Mehta & Partners PLLC, authored a new blog entry. ” ‘An Act of Cruel Injustice’: If the Trump Administration is Relying on Grudging Court Acceptance of Cruel Results as Support for the New Public Charge Rule, What Does That Say About the Rule?” is at .

Cora-Ann Pestaina, of Cyrus D. Mehta & Partners PLLC, has authored a new blog entry. “Recent H-1B Case Brings Hope that Reliance of the Umbrella ‘All Other’ Occupational Classification Need Not Be Fatal” is at .

Greg Siskind, of Siskind Susser, has been included in the 26^th edition of Best Lawyers in America in the area of immigration law.

Siskind Susser, PC, has received this year’s InnovAction award from the College of Law Practice Management (along with Suffolk Law School) for its Visalaw.ai initiative. This is one of the legal field’s top awards for practice management innovation, and Siskind Susser PC is the first immigration firm to receive it in the two decades it has been awarded. See http://www.visalaw.com/siskind-susser-receives-2019-innovaction-award/.

Stephen Yale-Loehr (bio: https://www.abil.com/lawyers/lawyers-loehr.cfm?c=US) was quoted by the Houston Chronicle in “Trump Administration Blocks Most Asylum Seekers in ‘Profound’ Change to System as Legal Fights Continue.” He noted that Supreme Court justices historically have been more deferential to presidential power in immigration than in most other areas. But, recalling outrage over migrant family separation that caused the Trump administration to announce an end to the policy before a federal judge forced it to do so, he noted, “The court of public opinion is just as important as courts of law.” See https://www.houstonchronicle.com/news/houston-texas/houston/article/Trump-administration-blocks-most-asylum-seekers-14439089.php.

Mr. Yale-Loehr was also quoted in the following media:

Wall Street Journal, “AI Workers Deserve Special Visa Consideration, Group Says” (Mr. Yale-Loehr said that proposals by a global group focused on artificial intelligence that is calling on governments to revamp their visa policies to make it easier for AI professionals to move around the world are unlikely to succeed in the United States. “I wish them well, but a lot of these things I do not think are going to be implemented in the United States,” he said. See https://www.wsj.com/articles/ai-workers-deserve-special-visa-consideration-group-says-11568107802
· Times of India, “Deloitte, Apple, Cognizant Biggest Filers of LCAs in FY 2019” (Mr. Yale-Loehr said the decline in H-1B filings is not limited to Indian companies. “Overall, the number of LCAs filed by the top 10 employers in the third quarter of 2019 was 218,906, down from 374,951 in the same quarter of 2018. The percentage decline is slightly higher for Indian companies, but the more significant finding is the overall decline,” he said. See https://timesofindia.indiatimes.com/business/india-business/deloitte-apple-cognizant-biggest-filers-of-lcas-in-fy2019/articleshow/71060708.cms·
Law360 (available by registration), “Future of Asylum Bar Remains Uncertain, Despite Court Block.” Mr. Yale-Loehr noted that another restricted injunction could also lead to asylum seekers becoming “savvy” and deliberately entering the United States within the Ninth Circuit only. “Here with the stakes so high, I think that there are particularly compelling reasons to decide this issue nationwide and not circuit by circuit,” he said.

See https://www.law360.com/publicpolicy/articles/1196922/future-of-asylum-bar-remains-uncertain-despite-court-block

Stephen Yale-Loehr (bio: https://www.abil.com/lawyers/lawyers-loehr.cfm?c=US) was quoted in several publications about the new indefinite-detention rule:·

NPR, “New Trump Policy Would Permit Indefinite Detention of Migrant Families, Children,” https://n.pr/2Hl3I3T (“Federal courts have struck down almost every effort this administration has made to curtail the rights of immigrants. When will President Trump realize that immigrants in the U.S. have due process rights?”·
Bloomberg News, “Trump Faces Long-Shot Bid to Jail Migrant Families Indefinitely,” https://bloom.bg/2zwAjQ1 (President Trump can claim that he tried to fix our broken asylum system, but that those liberal judges in California prevented him from doing so,” Yale-Loehr said. “This will be a [political] win for Trump, even if he loses in court.”)·
Washington Times, “Trump Aims to Stop Surge With Family Detentions: ‘They won’t come. And many people will be saved,” (“Federal courts have struck down almost every effort this administration has made to curtail the rights of immigrants. When will President Trump realize that immigrants in the U.S. have due process rights?”)·
Law360, “Trump Rule To Detain Migrant Kids Unlikely To Survive Courts,” (available by registration) (Mr. Yale-Loehr said courts might find the rule to be an “arbitrary and capricious” agency action under the Administrative Procedure Act because it fails to abide by the spirit of the decades-old Flores agreement)

Mr. Yale-Loehr was interviewed in the Capitol Pressroom podcast on August 20, 2019, “Trump Immigration Changes,” http://www.wcny.org/august-20-2019-trump-immigration-changes/.
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