ABIL Global Update • October 2024
Headlines:
1. BELGIUM – Each region now has its own law regarding work authorization and work permits.
2. CANADA – The Canadian government has acted to further limit the number of temporary residents in Canada.
3. SCHENGEN AREA – The Entry/Exit System (EES) will begin operations on November 10, 2024.
4. UNITED KINGDOM – On September 10, 2024, the Home Office released details of the full rollout of the Electronic Travel Authorisation scheme.
New Publications and Items of Interest – New Publications and Items of Interest
ABIL Member / Firm News – ABIL Member / Firm News
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ABIL Global Immigration Update – October 2024
Details:
1. BELGIUM
Each region now has its own law regarding work authorization and work permits.
In Belgium, the authority to issue work authorizations and work permits to employees and professional cards to the self-employed is regional. There are three regions in Belgium: Flanders, Brussels, and Wallonia. Each region now has its own legislation regarding work authorizations/work permits:
- The Flanders law took effect January 1, 2019;
- The Wallonia law took effect June 1, 2019, but was updated recently as of September 1, 2024;
- The Brussels region has implemented a new law effective October 1, 2024. The aim is to facilitate the employment of foreign nationals, but there is also an increased focus on compliance.
The current salary and professional qualification eligibility requirements for “fast track” (no resident labor test is required) permits for highly skilled employees, in particular the standard highly skilled permit and the Blue Card, are summarized below:
Highly Skilled Permit
| Salary/Qualifications | Flanders Region | Brussels Region | Wallonia Region |
| Salary threshold (amounts for 2024) | Annual gross salary threshold – General: 46,632.00 € – Exception: | Monthly gross base salary threshold 3,591.12 € | Annual gross salary threshold – General: 50,310.00 € – Exception: |
| Professional qualifications | Higher education degree | Higher education degree | At least 1 of 3 requirements below: – Higher education degree – ICT manager or ICT specialist – At least 3 years of relevant professional experience during 7 years preceding the application |
Blue Card
| Salary/Qualifications | Flanders region | Brussels region | Wallonia region |
| Salary threshold (amounts for 2024) | Annual gross salary threshold: 60,621.60 € | Monthly gross base salary threshold 4,604.00 € | Annual gross salary threshold – General: 65,053.00 € – Exception: |
| Professional qualifications | – Higher education degree, or – At least 3 years of relevant professional experience during 7 years preceding the application in/for function as ICT manager (ISCO-08 code 133) or ICT specialist (ISCO-08 code 25) | – Higher education degree, or – At least 3 years of relevant professional experience during 7 years preceding the application in/for function as ICT manager or ICT specialist | – Higher education degree, or – At least 3 years of relevant professional experience during 7 years preceding the application in/for function as ICT manager or ICT specialist |
2. CANADA
The Canadian government has acted to further limit the number of temporary residents in Canada.
As the Canadian government continues its drive to reduce the number of temporary residents in Canada amid continued high costs of living, continued housing unaffordability, and increasing unemployment, particularly among youth, it has announced new measures to do so. The government target is to reduce the number of temporary residents from 6.5% of Canada’s total population to 5%.
Caps on International Students
As part of the overall plan, the Canadian government is clearly reducing the number of international students in Canada. It implemented a number of measures earlier this year to do so. It introduced a cap to be distributed across the provinces and territories based on their population sizes. It also implemented a measure requiring study permit applicants to have more funds, at least $20,635, available to meet the cost of living in Canada. Recently, the government announced that it intends to reduce the number of study permits issued to 437,000 in 2025.
The government will allocate 12% of study permit spaces to master’s and doctoral students. Master’s and doctoral students will now also be required to submit a provincial or territorial attestation letter when applying.
Changes to Canadian Post-Graduation Work Permits
An announcement earlier this year confirmed that foreign students who graduate from a program under a Public College-Private Partnership are not eligible for Post-Graduation Work Permits (PGWPs). The new announcement will require those who wish to apply for PGWPs to complete a designated English or French language proficiency test, which includes CELPIP, IELTS, PTE Core, TEF Canada, or TCF Canada, and achieve a minimum level of language proficiency. Graduates of universities will need to achieve a Canadian Language Benchmark (CLB) level of 7, which is roughly equivalent to an adequate intermediate level. Graduates of colleges will need to achieve a CLB level of 5, which is roughly equivalent to an initial intermediate level. This new requirement comes into effect November 1, 2024.
To help address labor shortages, particularly in the skilled trades, the government has announced that graduates of public colleges in fields where there are long-term shortages will now be eligible for PGWPs of up to three years.
Open Work Permits for Spouses or Common-Law Partners of Workers
Eligibility of spouses of foreign workers to work in Canada will be limited to those who are working in management or professional occupations or in sectors with labor shortages. Details have not been provided yet, but this could have potentially far-reaching consequences, with many foreign workers choosing to come to Canada to work only because they knew their spouses would be allowed to work as well. As they say, “the devil is in the details.” It is possible that eligibility could be limited to training, education, experience and responsibilities (TEER) category 0 (managerial) or TEER 1 (usually requiring a university degree) occupations, but until we receive details from the government, it is difficult to know how significant this initiative will be and how it might affect employers and families. It is also unknown which sectors will be designated as those with labor shortages, but occupations recently being targeted for the purpose of permanent residence are likely to be included, such as health care; science, technology, engineering, and mathematics; trade; transport; and agriculture and agri-food.
Open Work Permits for Spouses or Common-Law Partners of Students
Earlier this year, the Canadian government limited the eligibility of open work permits for spouses of international students to those in master’s and doctoral programs only. The government has now announced a further limitation. Specifically, open work permits will now only be available to spouses of international students enrolled in master’s and doctoral programs that are at least 16 months in duration. Spouses of students in master’s degree programs that are only 12 months in duration will no longer qualify for an open work permit.
An Era of Fewer Immigrants
After record temporary and permanent resident levels in 2022 and 2023, the government is clearly focused on reducing the number of temporary residents in Canada. To achieve this, clearly fewer temporary residents, whether foreign students or foreign workers, will be admitted. September’s announcements will certainly have a cooling effect on the popularity of Canada’s foreign student program and potentially on the ability of companies to attract foreign talent to Canada. It is unlikely that the permanent resident targets will be reduced significantly when immigration levels are announced on November 1, since another reason to reduce the number of temporary residents in Canada is to ensure that they are able to transition to permanent resident status. Unfortunately, though, some foreign students and foreign workers already in Canada will not have a path to permanent residence and will likely elect to leave Canada. Over the next few years, we can expect fewer overall numbers of temporary residents in Canada.
The government’s policies will make it more difficult for many people to come to Canada and for many people to stay in Canada. Many thousands of temporary residents and employers will be affected by these measures.
3. SCHENGEN AREA
The Entry/Exit System (EES) will begin operations on November 10, 2024.
European Union (EU) Commissioner Ylva Johansson officially announced that the Entry/Exit System (EES) will begin operations on November 10, 2024. This system, a key part of the EU’s strategy to strengthen its borders, will begin tracking the entry and exit of non-EU nationals visiting the Schengen Area starting on that date.
The EES is designed to replace the traditional method of manually stamping passports with a more advanced digital system. It will collect and store biometric data, such as fingerprints and facial images, along with details of the traveler’s entry and exit, to better monitor and manage the flow of visitors. This new system aims to enhance border security, prevent illegal stays, and streamline the border-crossing process.
The launch of the EES is just the beginning of the EU’s broader border management transformation. Following closely, the next major step will be the introduction of the European Travel Information and Authorization System (ETIAS), which is scheduled to go live in 2025.
ETIAS will require visa-exempt non-EU nationals to obtain travel authorization before entering the Schengen Area.
4. UNITED KINGDOM
On September 10, 2024, the Home Office released details of the full rollout of the Electronic Travel Authorisation (ETA) scheme.
Nationals of non-European Union (EU)/European Economic Area (EEA) countries (including the United States, Canada, Australia, and New Zealand) who want to visit the United Kingdom (UK) without a visa will need an ETA starting on January 8, 2025. Nationals of EU and EEA countries plus Switzerland—but not Ireland—will need an ETA starting on April 2, 2025.
What is the ETA scheme?
The UK is implementing a U.S.-style electronic pre-travel authorization scheme of its own. The ETA will require non-visa nationals (those who do not require a visa before travelling to the UK as a visitor, and so are not on the visa national list) to apply for electronic pre-travel authorization.
Non-visa nationals will need an ETA if they are entering as a visitor and do not have a visa. If they have a Skilled Worker visa or a family visa, they will not need to apply for an ETA. For UK employers, the biggest impact will be on people entering the UK as business visitors.
The ETA started in October 2023 for Qatari nationals before extending to nationals of Bahrain, Jordan (although a new rule change means Jordanians must apply for a visa to visit the UK), Kuwait, Oman, Saudi Arabia, and the United Arab Emirates in February 2024.
Timing of the Full Rollout
It has been confirmed that the ETA will be rolled out to the remaining applicable countries as follows:
- On or after January 8, 2025 (applications for an ETA can be submitted starting on November 27, 2024) for all applicable non-EU/EEA countries (the United States, Australia, Canada, and New Zealand; Antigua and Barbuda; Argentina; Barbados; Belize; Botswana; Brazil; Brunei; Chile; Colombia; Costa Rica; Grenada; Guatemala; Guyana; Hong Kong Special Administrative Region (including British National (Overseas)); Israel; Japan; Kiribati; Macao Special Administrative Region; Malaysia; Maldives; Marshall Islands; Mauritius; Mexico; Federated States of Micronesia; Nauru; Nicaragua; Palau; Panama; Papua New Guinea; Paraguay; Peru; St. Kitts and Nevis; St Lucia; St Vincent and the Grenadines; Samoa; Seychelles; Singapore; Solomon Islands; South Korea; Taiwan; the Bahamas; Tonga; Trinidad and Tobago; Tuvalu; and Uruguay.
- On or after April 2, 2025 (applications for an ETA can be submitted starting on March 5, 2025), all applicable EU and EEA countries plus Switzerland—but not Ireland—including Andorra; Austria; Belgium; Bulgaria; Croatia; Cyprus; Czechia (Czech Republic); Denmark; Estonia; Finland; France; Germany; Greece; Hungary; Iceland; Italy; Latvia; Liechtenstein; Lithuania; Luxembourg; Malta; Monaco; Netherlands; Norway; Poland; Portugal; Romania; San Marino; Slovakia; Slovenia; Spain; Sweden; Switzerland; and Vatican City.
How can an ETA be refused and what does it mean?
For most people, applying for an ETA will be nothing more than an administrative hurdle—much like submitting an application through the Electronic System for Travel Authorization before traveling to the United States. But for some it will cause serious difficulties and mean that they may not be able to travel to the UK.
There are various “suitability” requirements when applying for an ETA, including, for example, whether the applicant has a criminal conviction, has previously overstayed the period of admission on a UK visa, or has previously had a UK visitor visa application refused. To date, non-visa nationals may have been granted entry to the UK as a visitor despite a criminal conviction. The ETA will change that because criminal convictions will need to be declared. If the ETA is refused because the applicant has a criminal conviction, they will need to apply for a visitor visa before traveling to the UK. Such an application may still be refused owing to the same/similar criminality rules.
5. New Publications and Items of Interest
The Cornell International Law Journal will host “The (Im)possibility of Immigration Reform?,” a symposium celebrating the career of Stephen Yale-Loehr and his contributions to the field of immigration law. The symposium will be held at Cornell Law School on November 8, 2024, from 9:30 a.m. to 4 p.m., followed by a reception. Register to attend the symposium in person, or if you are unable to attend in person, there is a webinar option.
Join a panel of experts from the Cornell Law School immigration law and policy research program to learn what immigration laws and policies might change, both in the lame-duck session after the election and in 2025. The free webinar will be on Wednesday, November 20, 2024, from 1-2 p.m. ET. To register, go to https://ecornell.cornell.edu/keynotes/overview/K112024/. If you can’t attend the webinar live, you can register to get the recording afterwards. The webinar is sponsored by the Cornell Migrations Initiative, the Cornell Population Center, the Cornell Jeb E. Brooks School of Public Policy, Catholic Charities Tompkins/Tioga Immigrant Services Program, and the Cornell Law School Migration and Human Rights Program.
Alliance of Business Immigration Lawyers:
- ABIL is available on X (formerly Twitter): @ABILImmigration
- Recent ABIL member blogs are at http://www.abilblog.com/
ABIL Member / Firm News
Loan Huynh was quoted by Bloomberg Law in Foreign Farmworker Safeguards in Doubt as DOL Tests Its Power. Parts of the regulations will offer clarity to employers navigating the H-2A program, such as provisions addressing withholding of worker documents, but the limited geographic scope of the injunction in Kansas v. DOL will likely lead to more confusion among agricultural employers, she said: “I would advise my employers that they need to follow the rule until we get guidance from the Department of Labor otherwise.”
Klasko Immigration Law Partners, LLP, has published several client alerts: DHS Implements ‘Keeping Families Together’ Parole-in-Place Program, Texas Files Complaint and H-4 Spousal Work Authorization Wins Against Legal Challenge.
Alison Li, of Klasko Immigration Law Partners, LLP, has authored a blog post: Complex Issues Encountered to Remove Conditions on an EB-5 Green Card.
Charles Kuck and Stephen Yale-Loehr were quoted by Bloomberg Law in GOP States Sue to Overturn Biden Immigrant Parole Program. “The logic of the challenge, that single parent households and separating families is better for a state than keeping families together, is something that can only come out of the mind of a true nativist and hater of immigrants,” he said. Mr. Kuck and Mr. Yale-Loehr noted that parolees admitted under the program would be eligible for benefits, including Medicaid and Food Stamps. Mr. Yale-Loehr said that claims that the program exceeds agency authority echo challenges to the Deferred Action for Childhood Arrivals program.
Mr. Kuck was quoted by CNN in Elon Musk is One of Immigration’s Harshest Critics. He Once Described His Past Immigration Status as a “Gray Area.” Commenting on Elon Musk’s remark that his early immigration status in the United States was a “gray are,” Mr. Kuck said, “Actually, there are no gray areas in immigration.” Instead, he said, there are people who get caught for violations and people who don’t. “I will tell you, as somebody who’s done immigration law for 35 years, that a lot of immigrants leave their immigration history behind, right? They want to move on to their new life. But when you speak out against other people’s immigration journey, then yours becomes subject to scrutiny. … If you live in a glass house, you shouldn’t throw stones.”
Mr. Kuck was quoted by the Times of India in USCIS’ New Insignia Features the Statue of Liberty With the Tagline: Upholding America’s Promise. Mr. Kuck said, “You spent money and time on this? Why? It’s a LOGO! Just do your job and adjudicate the applications.”
Mr. Kuck authored a new blog post: How Will Trump Destroy the U.S. Legal Immigration System.
Mr. Kuck was a guest on Episode 7 of the Immigration Ain’t Easy podcast.
Cyrus D. Mehta & Partners PLLC announced its acquisition of Claudia Slovinsky and Associates, PLLC, significantly expanding and deepening its immigration law practice. Both law firms are renowned for providing exceptional legal representation in a wide range of immigration matters. They have developed equal expertise in addressing the needs of both corporations and individuals. Both firms are deeply committed to delivering the highest quality legal services to immigrants, their families, and employers. They believe in the importance of positive outcomes. As part of this transition, Cyrus D. Mehta & Partners is pleased to welcome Dominic Kong, a highly skilled and experienced immigration attorney with deep expertise in employment-based immigrant and nonimmigrant visa petitions. The firm also welcomes Reynaldo Pabon, who comes with law firm management experience and is joining as a management analyst to enhance workflow and technology.
Cyrus Mehta authored a new blog post: Making the Case of the Manager under the L-1A Visa Whose Subordinates Are AI Bots.
Mr. Mehta and Kaitlyn Box co-authored several blog posts: While the Dogs and Cats of Springfield, OH are Safe, the Haitian Immigrants Are Not; Parole in Place – A Means to an End or An End in and of Itself?; The Perils of Claiming the Foreign Earned Income Exclusion When Sponsoring an Immigrant on an Affidavit of Support; and Court Upholds Regulation Issuing Employment Authorization to H-4 Spouses Even After the Demise of Chevron Deference.
Mr. Mehta and Ms. Box were invited speakers at a Strafford Webinar, “Immigration Law After Loper Bright Decision: Anticipated Agency Impact, Ramification for Attorneys and Clients,” on September 26, 2024. The speakers discussed the ramifications of the Loper Bright decision on immigration law. Specifically, the speakers explored Loper Bright‘s impact on the interpretation of immigration statutes and policies and its impact on clients. A recording of the event is available.
Angelo Paparelli of Seyfarth Shaw LLP authored a blog post: Pound Wise, Penny Foolish—Federal Court Affirms Employer Choice of Immigration Filing Fees.
Mr. Yale-Loehr was quoted by Newsweek in Trump Has Pledged to Deport Some Legal Immigrants. Could He Do That? Mr. Yale-Loehr said, “In general, deportation is for people who lack immigration status. People here on parole or temporary protected status have a status, so they shouldn’t be put into deportation proceedings unless a separate ground of deportability (e.g., a criminal conviction) applies to them.”
Mr. Yale-Loehr co-authored an article, The New D3 Waiver Process: A Tool to Help Over One Million Dreamers, published in 29 Bender’s Immigration Bulletin 1585 (Sept. 15, 2024).
Mr. Yale-Loehr co-authored an op-ed,“Building Startups, Not Walls: High-Skilled Immigration Policy Changes in the US,” in The Well News, highlighting the International Entrepreneur Parole program.
Mr. Yale-Loehr spoke at a webinar, Preparing for Change: How a New Administration Could Impact DACA Recipients, on September 25, 2024. The webinar was sponsored by Immigrants Rising, Cornell Law School’s Path2Papers, and the Immigration Institute of the Bay Area. It was geared toward Deferred Action for Childhood Arrivals (DACA) recipients in the San Francisco Bay Area, but speakers also discussed how a Harris or Trump administration could impact immigration status and legal options for DACA recipients. The webinar explored a range of topics including family, humanitarian, and employment-based options, as well as mental health resources offered through Immigrants Rising.
Mr. Yale-Loehr was quoted by the Gothamist in President Biden Spares 20,000 New Yorkers From Deportation With Executive Action. Commenting on the new “Keeping Families Together” program, he predicted that “fewer people will get approved than originally thought.” Mr. Yale-Loehr said, “People may be hesitant to provide information to the government in case they are denied and then put into deportation proceedings.” Mr. Yale-Loehr pointed out that those who have criminal records, including felonies and certain misdemeanors, would be disqualified. The article notes that he co-authored a letter signed by more than 100 law professors arguing that the Biden action was constitutional.
Mr. Yale-Loehr was quoted by Newsday in New Immigration Court Cases Plummet on [Long Island], Across U.S. Since Biden Policy Change. He said the long-term legal viability of President Biden’s order restricting the eligibility for asylum of unauthorized migrants who cross the U.S. border remains undetermined. “Immigrants’ rights advocates are challenging the new restrictions as illegal, but it may be some time until a court decides their lawsuit,” he said.
Mr. Yale-Loehr was quoted by the Chicago Tribune (available by subscription) in Chicago Not Expecting Migrant Surge Ahead of DNC, City Official Says. Commenting on a drastic drop in the expected numbers of migrants to be bused from Texas to Chicago in time for the Democratic National Convention, which has been attributed to President Biden’s policy at the border of denying asylum to anyone crossing into the United States without authorization, Mr. Yale-Loehr said, “There just aren’t that many people to send.”
Mr. Yale-Loehr was quoted extensively by Newsweek in Growing Backlog in Immigration Courts Could Slow Trump’s Mass Deportations. Among other things, Mr. Yale-Loehr noted that the “average wait time right now for an asylum case in immigration court is about five years, so that causes a lot of problems. He noted that “[w]e have not funded the immigration court system adequately to be able to keep up with this increase.” Mr. Yale Loehr noted that “Trump said in the first administration that he wanted to deport more people and he didn’t really do that. You just cannot deport people without a hearing. Due process is embedded in the Constitution and it applies to everyone in the United States, not just U.S. citizens. So you can’t just round them up and send them across the border.” The article notes that Mr. Yale-Loehr co-wrote a report in 2023 that recommends sweeping changes. “You certainly could also have more judges at the border,” he suggested. “If you had people who came in and had their asylum claims judged at the border within the first couple of months and then quickly deported,” that “would not add to the backlog and people would have a decision more quickly.” He observed that people “have problems hanging on for that long, or they evaporate into the shadows. [So] even if they are ordered deported, nobody can find them.”
Mr. Yale-Loehr was quoted by the Chronicle of Philanthropy (registration required) in As Election Nears, Four Freedoms Fund Seeks $5 Million to Support Immigrants. Among other things, the article discusses Path2Papers, a nonprofit project at Cornell University Law School, which recently received $1.5 million from the Crankstart Foundation to offer free consultations to Deferred Action for Childhood Arrivals (DACA) recipients in the San Francisco, California, area who are seeking work visa options. The article notes that Path2Papers “has done more than 400 consultations, finding that more than half of DACA recipients it worked with may be eligible for a work visa.” “While that is a great start, it is a drop in the bucket compared to the over 500,000 DACA holders in the U.S.,” Mr. Yale-Loehr said. He also noted that courts consider immigration cases very complex to adjudicate.