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News from the Alliance of Business Immigration Lawyers Vol. 9, No. 4 • September 04, 2019

September 04, 2019/in Global Immigration Update /by ABIL

Headlines:

1. REMOTE WORK IN COLOMBIA: AN OVERVIEW -This article provides an overview of remote work policies and practices in Colombia.

2. CANADA -The Entry/Exit Program is a significant development that has been many years in the making.

3. COLOMBIA -There have been several developments.

4. ITALY -The working holiday visa will soon be available bilaterally between Italy and Hong Kong.

5. RUSSIA -There have been a variety of developments.

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

7. ABIL Member / Firm News -ABIL Member / Firm News


Details:

1. REMOTE WORK IN COLOMBIA: AN OVERVIEW

This article provides an overview of remote work policies and practices in Colombia.

In Colombia, the immigration law establishes that those foreign individuals who work remotely and enter into a local agreement must apply for a visa whether or not they enter Colombia.

Likewise, and according to Decree 1067 of 2015, any natural or legal person who joins, employs, or admits a foreign individual through any modality, especially a labor, cooperative, or civil relationship that generates a profit, must require a visa that allows the activity, occupation, or trade declared in the visa application. Moreover, all foreigners who provide any type of service through local contracts must be registered in the platforms of Migration Colombia (SIRE) and the Ministry of Labor (RUTEC) to comply fully with the current immigration regulations. Additionally, they need to register their visas and be issued the foreigners’ ID card, which must be processed in Colombia.

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2. CANADA

The Entry/Exit Program is a significant development that has been many years in the making.

Part of the Beyond the Border Action Plan, the Entry/Exit Program is a joint Canada-U.S. initiative that establishes a coordinated entry/exit information system to facilitate the exchange of traveler biographic information (such as name and date of birth). Collected upon entry at the common land border between the two countries, a record of entry into one country is now considered a record of exit from the other. In addition to the exchange of this data with the United States at land borders, the Canada Border Services Agency (CBSA) will collect exit data on all travelers leaving by air. Air carriers will begin sharing their data in 2020 and 2021. Consequently, overstay indicators will not begin appearing within the entry/exit search results for temporary residents who have overstayed their allowable time in Canada until the air carrier information is shared.

Details: http://www.cilf.ca/2019/07/22/exit-entry/

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3. COLOMBIA

There have been several developments

Present and Future of the Mercosur Visa

Colombia, as of 2004, became an Associated State of the Southern Common Market (MERCOSUR), which has not only dealt with trade matters but has also come to regulate the mobility of people in the region. A clear example of this is the Mercosur visa, which is granted by the mutual reciprocity principle, and which seeks to authorize nationals of the countries that are part of the agreement to transit through these countries and, among others, to develop tourism and business activities.

Details: http://www.tannus.co/en/present-and-future-of-the-mercosur-visa/

The Practice of Regulated Professions by Foreign Workers

In Colombia, it is common for human resources (HR) departments to handle the employment of foreign workers. This is why it has become indispensable for HR staff to know the requirements for such workers to be legally employed, not only from the perspective of labor and social security, but also with respect to migration. Under the immigration regulations, the following, among others, must be taken into account: the visa, the registration of the visa, the foreigner ID card, notifications in SIRE and RUTEC, and permits to perform regulated professions.

Details: See http://www.tannus.co/en/the-practice-of-regulated-professions-by-foreign-workers/

Start of PEP Renewal

Migration Colombia has begun the process of renewing Special Permits for Permanence (PEP) that are about to expire for those Venezuelan nationals who are in the national territory.

Details: See http://www.tannus.co/en/start-of-pep-renewal/

Migration Flexibility for Venezuelans

The exodus of Venezuelan nationals to Colombia and the world continues, motivated by the unfortunate situation of the neighboring country, which is still going on and does not seem to have a short-term solution. For this reason, the flow of migrants is increasing, especially to South American countries, and therefore some nations have decided to modify their immigration laws. Countries such as Peru and Chile have tightened their controls and recently decided to request visas for all Venezuelans. On the contrary, Colombia continues to ease requirements and grant benefits for the entry and stay of these migrants.

Details: See http://www.tannus.co/en/migration-flexibility-venezuelans/

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4. ITALY

The working holiday visa will soon be available bilaterally between Italy and Hong Kong.

On July 5, 2019, Italy and Hong Kong signed an agreement to mark the establishment of a bilateral Working Holiday Scheme (WHS).

Under the WHS between Hong Kong and Italy, youths aged between 18 and 30 years from each country may apply for a visa that will allow them to stay in the other country for up to 12 months. During that period, they may work to finance their stay or study short-term courses. The annual quota from each side will be 500.

The agreement was signed by the Secretary for Labour and Welfare of the Government of the Hong Kong Special Administrative Region (HKSAR), Dr. Law Chi-kwong, and the Under Secretary of State, Ministry of Foreign Affairs and International Cooperation of the Government of the Italian Republic, Manlio Di Stefano, at the Central Government Offices, Tamar.

Details: Visa application procedures for applicants from Hong Kong will soon be available on the website of the Consulate General of Italy in Hong Kong at https://conshongkong.esteri.it/consolato_hongkong/en/

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5. RUSSIA

There have been a variety of developments:

Russian Government Approves Agreement With Republic of Croatia

The Russian government has approved an agreement with the Republic of Croatia, which amends a previously signed agreement on citizens of one country visiting the other. According to the agreement, the citizens of one country will be able to visit the other country without a visa for 90 days out of every 180 days, provided they have a valid identity document. The agreement is under discussion between the two countries.

Quota for Engaging Foreign Labor Slightly Increased

The Ministry of Labor and Social Development has slightly increased the quota for engaging foreign labor this year. The increase was made in all Russian regions, although it was not large, at 6 to 10 percent on average.

Updated High-Migration Risk Countries List

The high-migration risk countries list has been updated. Inclusion of a country on the list means that documents filed for the work permits, visas, invitations, and other purposes for citizens of these countries will be additionally reviewed by government officials, which will almost always result in delays in processing as well as denials of applications and/or the necessity to undergo additional administrative procedures; for example, a general manager of the inviting company may be required to be interviewed.

E-Visas to be Introduced Starting January 2021

Russian President Vladimir Putin has ordered the Prime Minister and heads of several responsible government agencies (Foreign Affairs Ministry, Internal Affairs Ministry, and Federal Security Service) to introduce a unified e-visa for foreign citizens to enter Russia starting January 1, 2021.

This will be a short-term visa (up to 16 days) and will combine several possible purposes of entry: tourist, business, humanitarian, and guest. A visa fee will be levied.

The unified e-visa will be issued for those visiting all territories of the Russian Federation (with the exception of special zones, organizations, and places where foreign nationals need special permission to enter).

Foreign Citizens Now May Enter Kaliningrad Region Using Electronic Visas

As of July 1, 2019, foreign citizens of certain countries can apply for an electronic visa to enter the Special Economic Zone in the Kaliningrad region.

Entry using electronic visas is allowed only through certain border control posts:

  • Air border control post in Kaliningrad (Hrabrovo);
  • Sea border control post in Kaliningrad: Kaliningrad, Baltiysk, Svetliy;
  • Road border control posts in Bagrationovsk, Gusev, Mamonovo, (Gzhehotki), Mamonovo (Gronovo), Morskoye, Pogranichniy, Sovetsk, and Chernyshevskoye;
  • Rail border control posts in Mamonovo and Sovetsk.

Also, the International Affairs Ministry was expected to update the website where foreign nationals can submit applications for electronic visas. It is possible to file documents for an electronic visa through https://evisa.kdmid.ru/ru-RU.

Electronic visas have been issued in Russia since August 1, 2017. On the basis of such visas, it is already possible to visit the Primorskiy Region, Kamchatka, and Sakhalin. According to International Affairs Ministry data, more than 37,500 people from 18 countries have visited Russia since the introduction of the procedure.

At the moment, according to the information from the International Affairs Ministry’s Consular Department, citizens of designated countries can apply for electronic visas (entry should be made through the specified border control posts. A list of such posts is published on the Consular Department webpage at https://evisa.kdmid.ru/ru-RU).

For the application, the electronic visa applicant does not need an invitation letter, and a personal appearance at the consulate is not required. This visa is issued free of charge. The average waiting time is 20 minutes. To apply for an electronic visa, it is necessary only to visit the International Affairs Ministry Consular Department website, complete the application form with passport data, and attach a photo.

Electronic visas are issued only for short-term visits. Such visas are only issued for 30 calendar days, starting from the issuance date. The allowed stay is up to 8 days only within the validity period. The validity period or the allowed stay cannot be extended.

Bill Simplifying Regime of Stay for Foreign Citizens Who Work in Cultural Pursuits Filed to Federation Council

The bill introduces the following:

  1. Issuance of ordinary business visas up to 30 days to foreign citizens who are entering Russia for not more than 30 calendar days for participation in performances (organization of performances and/or events on the basis of civil agreements for an agreed fee or free of charge) during which such foreign citizens perform literary works, art, or folk art, or are entering Russia on the invitation of government cultural institutions to participate in art, educational, scientific, or pedagogical work.

This category of foreign citizens does not require a work permit, work visa, or patent, and the inviting party does not require permission for engaging foreign labor.

  1. Issuance of ordinary business visas up to 1 year, and in case of reciprocity up to 5 years, to foreign citizens who are entering Russia to perform scientific research or teach upon the invitation of scientific and higher education organizations (with the exception of religious education organizations) for higher education programs that have government accreditation.

Bill Simplifying TRP (Temporary Residence Permit) and PRP (Permanent Residence Permit) Procedures for Certain Categories of Foreign Nationals is Under Review

The State Duma is reviewing a bill to simplify procedures for certain categories of foreign nationals applying for TRP and PRP in Russia.

As in the previous versions of the bill, the following is suggested:

  • The possibility for Ukrainian nationals to apply for TRP without the need to first receive a quota for the TRP application filing, provided they are refugees;
  • Documents for TRP processed within 4 months instead of 6 months;
  • The possibility for a foreign national to apply for annulment of the TRP;
  • Specific comment that TRP or PRP will be annulled in case the foreign national spends more than 6 months in a calendar year (in total) outside of Russia;
  • Several categories of foreign nationals to have the ability to file PRP applications without the need to apply for the TRP first: foreign citizens who were born in RSFSR, who are native speakers of the Russian language, who have relatives or spouses permanently living in Russia, who were deported from Crimea, and qualified foreigners as well as HQS (highly qualified specialists);
  • PRP to have unlimited validity (except for PRPs issued to qualified specialists and HQS, who will receive PRP for 3 years).

Chinese Border Control Officers Checking Contents of Smart Phones of Russian Citizens Who Enter China

It has been reported recently that Chinese authorities are checking the contents of smart phones belonging to Russian citizens crossing the China-Russia border in Guangzhou. In particular, popular messenger apps, email, and photos were checked. Checks were explained as an attempt to find those having compromising information, although there are no details on what information can be considered compromising, other than noncompliance with immigration laws. At the same time, Russian citizens have been detained who tried to enter China on the basis of business visas with the real aim of performing work activities in China.

Based on the principle of reciprocity, the Russian government may unofficially introduce the same kinds of checks.

Maldives: Agreement on Visa-Free Entry Has Come Into Force

Effective July 25, 2019, an agreement with the Government of Maldives on visa-free entry has come into force.

According to the agreement, citizens of either country may enter the other country and stay for up to 90 days. The total limit of stay will be determined by legislation of each country.

If the citizens of one country wish to stay longer in the territory of the other country or to perform work, study, or obtain permanent residence, they must apply for the appropriate visa from the authorities of the country where they wish to stay.

Andorra: Government Approves Agreement Providing for a Visa-Free Regime

Russia now has an agreement with the Government of Andorra to introduce a visa-free regime between the countries. According to the agreement, citizens of either country will be able to enter the other country and stay for up to 90 days out of every 365 days, starting from the first entry.

If the citizens of one country wish to stay longer in the territory of the other country or to perform work or commercial activities, they must apply for the appropriate visa from the authorities of the country where they wish to stay.

Botswana: Government Approves Agreement Providing for a Visa-Free Regime

Russia now has an agreement with the Government of Botswana to introduce a visa-free regime between the countries. According to the agreement, citizens of either country will be able to enter the other country and stay for up to 30 days, the total limit of stay being 90 days out of every 180 days.

If the citizens of one country wish to stay longer in the territory of the other country or to perform work, study, or obtain permanent residence, they will be required to apply for the appropriate visa from the authorities of the country where they wish to stay.

China: Government Approves Agreement Providing for a Visa-Free Regime for Tourist Groups

Russia has approved an agreement with the Government of China to introduce a visa-free regime between the countries for tourist groups.

According to the draft of the agreement, “tourist groups” are a group of citizens of the other country, from three up to 50 persons, headed by a representative of a tourist organization who enters with tourism purposes.

Members of the tourist group can travel only with the group, accompanied by the group leader (representative of the tourist organization) and according to a travel plan approved in advance (travel plan and other information about the trip must be confirmed by documentation).

The overall stay of foreign citizens in the territory of the receiving country cannot exceed 21 days.

Professional Mastership Championships

An organization approved by the Russian Government to represent Russia in the “Worldskills International Championship” will be able to hire foreign nationals without the need to receive corporate employment permission for the period of preparation and the events of the organization in the territory of Russia.

Foreign nationals will be able to work at championships in Russia without the need for a work permit or patent. Invitation letters to such foreigners will be issued irrespective of the allocated quota. The list of championships is determined by the Russian Government.

Visa Formalities Simplified for Artists and Scientists

According to a new law, a standard business visa valid for 30 days can be issued to foreign citizens who enter Russia for a period of not more than 30 days:

  • For an artistic tour (organization of performances and/or events on the basis of civil agreements for an agreed fee or free of charge) during which such foreign citizens perform literary works, art, or folk art; or
  • Upon invitation of government cultural institutions to participate in art, educational, scientific, or pedagogical work.

These categories of foreign nationals do not need to apply for a work permit or patent as well as a work visa.

Employers can engage such foreign citizens without applying for a corporate employment permit (Law: On the status of foreign citizens in Russia).

Year of Theatre: Visas for Guests are Free of Charge

The Russian Government has issued an order under which foreign participants and guests of events of the Year of Theatre 2019 can receive visas to Russia free of charge. Mass media participating in the events can also apply for Russian visas free of charge at Russian consulates abroad.

Applications for visas are filed by the Ministry of Culture and members of the Year of Theatre 2019 organization committee.

2019 Quota Amended

The Ministry of Labor and Social Development has again redistributed the quota for foreign labor for this year. Quotas have been insignificantly raised for almost all Russian regions, including Moscow.

Citizenship for Qualified Specialists

Qualified specialists soon will be able to apply for Russian citizenship after only one year of working in Russia, starting October 2019. These include foreign citizens and stateless persons who work in Russia as qualified specialists.

To be eligible a foreign citizen must work in a specific position (the list of occupations is approved by the Ministry of Labor and Social Development), and his or her employer must have made the necessary payments to the Russian Pension Fund.

The list is lengthy, including occupations such as midwife, veterinarian, doctor, laboratory assistant, psychiatrist, statistician, gas welder, chief project engineer, chief metallurgist, director of economics, various types of engineer, mathematician, nurse, medical laboratory technician, process pipeline installer, pharmacy laboratory specialist, locksmith, ship repairman, pharmacist, electrician, medical assistant, grinder, drilling technician, and others.

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6. 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
    • New Data Show Increase in H-1B Denials and RFEs
    • ABIL Urges Administration to Change “Buy American and Hire American” Executive Order
    • ABIL Member Kuck Baxter Immigration Commercial Nominated for an Emmy
    • ABIL Members Note Immigration Threats for Employers in 2018
  • ABIL is available on Twitter: @ABILImmigration.
  • Recent ABIL member blogs are at http://www.abilblog.com/.

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7. ABIL Member / Firm News

Charles Foster, of Foster LLP, was featured along with some of the nation’s experts on immigration reform in the “Rational Middle Immigration Documentary Series, exploring how to solve the United States’ immigration challenges and remake the U.S. economy while protecting U.S. values, workers, and families. The first season is a collection of short films and is available by clicking here.

Klasko Immigration Law Partners was named for the fourth year in a row to the 2019 Best Places to Work annual list published by the Philadelphia Business Journal.

William Stock, of Klasko Immigration Law Partners, LLP, was placed on Human Resource Executive Magazine’s and Lawdragon’s annual joint publication of the “best of” lawyer list for its 12th year. In 2018, the firm’s managing partner, H. Ronald Klasko, was inducted into Lawdragon’s Hall of Fame. For more information, see Klasko Law Partners, LLP website, as well as Lawdragon.

Charles Kuck was quoted by the Atlanta Journal Constitution in “Georgia’s Immigration Court Judges Among Toughest in Nation for Asylum.” “I have never seen [immigration] courts as dire as these ones [in Georgia] in the context of granting asylum, which seem to be so far out of the mainstream, not just of other courts around the country but of the actual law itself of asylum,” he said.

Mr. Kuck was quoted by the Atlanta Journal Constitution in “New Details: ICE Detainee From Mexico Dies in South Georgia.” “It is unconscionable. It should be shut down,” Mr. Kuck said of the Stewart Detention Center.

Mr. Kuck recently discussed “the flawed logic of the new Expedited Removal reg, and 9 things we can do to protect ourselves from ICE over-enforcement! We also talk about the Padilla/Matter of M-S- ruling on asylum bonds.” See #TheImmigrationHour on Twitter.

Mr. Kuck was quoted by the New York Times in “What Happens After an ICE Raid? Explaining the Deportation Process.” Mr. Kuck noted that authorities in the past have used ruses to coax their targets into cooperating, like pretending to be looking for someone else.

Mr. Kuck has released a new podcast series, the Immigration Hour. The latest episode discusses the “raids” that did not occur, the economic impact of the current climate, the role of Ken Cuccinelli as new Director of USCIS, and the “new” anti-asylum regulations. The podcast is available at Stitcher.

Kuck Baxter Immigration LLC has opened a new office in Adel, Georgia, near the Irwin, Folkston, and Stewart Detention Centers, which hold more than 5,000 detained immigrants. The new office will be run by Elizabeth Matherne, who is the former Southern Poverty Law Center’s director for the Irwin Detention Project.

Robert Loughran presented “Update on Nonimmigrant Visa Processing at U.S. Consulates Abroad” on May 18, 2019, at the Federal Bar Association’s Immigration Law Conference in Austin, Texas.

Mr. Loughran presented “How Employment-Based Immigration Practice Has Evolved Under the Current Administration to Include Litigation” on June 13, 2019, at the State Bar of Texas Annual meeting in Austin.

David Isaacson, of Cyrus D. Mehta & Partners PLLC, has authored a new blog entry, “Expansion of Expedited Removal: Why Pushing to the Limits of the Statute Unconstitutionally Deprives People of Due Process of Law.”

Cyrus Mehta and Stephen Yale-Loehr were quoted by the Times of India in “As U.S. EB-5 Visas Become Expensive, Indian Applications Expected to Slump.” Mr. Yale-Loehr said, “The new EB-5 changes will affect investors from India in a variety of ways. First, I predict a surge of EB-5 petition filings until November 21. After that, I expect a sharp decline in EB-5 petitions, as fewer people will be able to satisfy the new minimum investment amount.” Mr. Mehta noted that many of the attractive projects that are designated in targeted employment areas in metropolitan areas may no longer receive such a designation after November 21, so the investment will go from $500,000 currently for such a project to $1.8 million. “Under the current RBI [Reserve Bank of India] guideline of only allowing $250,000 to be remitted out of India per financial year, the higher investment amounts will serve as a further disincentive. I predict that there will be a rush to file EB-5 applications before the rule change on November 21.

Cyrus Mehta has published a new blog entry, “Save Optional Practical Training for Foreign Students.”

Bettina Offer and Gabriele Mastmann, of Offer & Mastmann, and Gunther Mävers were nominated by Best Lawyers in Germany and Handelsblatt for immigration.

Angelo Paparelli was quoted by Law360 in “How Attorneys Can Brace for Rising EB-5 Compliance Checks.” Mr. Paparelli said that unannounced site visits can be unstructured, but a regional center should establish a formal procedure for communicating with officials from U.S. Citizenship and Immigration Services (USCIS) and take charge of the process. He said a designated representative from the center should ask officers to identify themselves, whether they have a judicial subpoena or warrant, and what specifically they are seeking. He said they should also engage counsel and suggest following up via email to provide requested documentation in an organized manner. A lawyer can then act as an intermediary to narrow the scope of the site visit, asking whether USCIS is interested in a particular investor or investment project, he noted. The article is available by registering at Law360.

Mr. Paparelli was profiled in the Los Angeles Daily Journal. The profile notes, among other things, that along with compliance audits, counsel and due diligence in mergers, acquisitions and corporate restructuring, Mr. Paparelli focuses on newly developed problems with sponsored worker immigration issues. “This is a time of historically unprecedented executive branch opposition to the legal, employment-based process for sponsorship of highly skilled noncitizens and intense immigration-related work site enforcement,” he said, noting that it is essential to maintain clients’ confidentiality due to fears of government retaliation. The article is available by subscription at https://www.dailyjournal.com/.

Rodrigo Tannus has authored several new articles in Diario la República:

  • “Presente y futuro de la visa Mercosur“
  • “Profesiones reguladas por trabajadores extranjeros“
  • “Flexibilizacion migratoria para venezolanos“

Stephen Yale-Loehr was quoted by Axios in “Lutheran Denomination Claims it is the First ‘Sanctuary Church Body’.” Mr. Yale-Loehr noted that although U.S. Immigration and Customs Enforcement officers frequently stay out of a church if undocumented immigrants are staying there, churches do not provide federal legal sanctuary. “I think for publicity reasons, immigration enforcement does not like to go into churches,” he said.

Mr. Yale-Loehr was quoted by Reuters in “U.S. to Expand Rapid Deportation Nationwide With Sweeping New Rule.” Mr. Yale-Loehr said the new policy will create chaos and fear in immigrant communities and could have unintended consequences. “U.S. citizens could be expeditiously removed by error. You don’t have a lot of room to challenge that. You can’t go before an immigration judge,” he noted.

Mr. Yale-Loehr was quoted in several other media outlets about the expansion of expedited removal:

  • New York Times: “Trump Administration Expands Fast-Tracked Deportations for Undocumented Immigrants“
  • Law360: “DHS Vastly Expands Deportation Authority,” available by registering here.

Mr. Yale-Loehr was quoted by Tampa Bay Times in “Despite Trump’s Claims, ICE Is Arresting Way More Immigrants Without Criminal Records—Especially in Florida.” Immigration enforcement agents can now “round up anybody they could find, whether they had a criminal conviction or not,” he noted.

Stephen Yale-Loehr was interviewed by Raw Story in “Immigration Expert Explains Why Trump’s Migrant Policy Won’t Work.” Among other things, in response to a question asking for his thoughts on U.S. Immigration and Customs Enforcement, he said, “All countries need some kind of immigration enforcement agency. The question is how to manage immigration enforcement humanely and effectively. Moreover, Congress will never appropriate enough money to round up and deport all 11 million undocumented immigrants estimated to be in the United States. We should focus our limited priorities on removing terrorists, not people who simply overstayed their visas.”

Mr. Yale-Loehr discussed “Immigration Meritocracy,” regarding his new research project studying merit-based immigration, what a “merit-based” immigration system means, and how it would work in the United States, in a podcast presented by the Everyday Immigration Podcast, produced by LionCeau Productions.

Mr. Yale-Loehr was quoted by a variety of news outlets regarding reports of possible immigration raids:

  • Voice of America: U.S. immigration raids planned. Mr. Yale-Loehr said, “Given the inefficiencies in the immig ration court system, many people may have been ordered deported illegally because the immigration agency didn’t have their correct address to notify them about their immigration court date. In such cases, they may have the right to reopen their immigration case,” he said. Mr. Yale-Loehr noted that undocumented people living in the U.S. have certain constitutional rights. “Immigration agents are not legally allowed to forcibly enter a home [without authorization]. Immigrants can refuse to open the door when an agent approaches, unless the agents have a valid search warrant.”
  • Reuters (several newspapers): “Two thousand people deported is not that large in the annual scheme of things,” said Stephen Yale-Loehr, pointing out that the administration of former President Obama deported more than 400,000 people a year during his first term. “On the other hand, the mere fact that they are announcing these raids is sending fear among immigrants and is causing them to hide or take other actions,” he said. The article notes that President Trump will want to show his supporters that he is delivering on campaign promises to crack down on illegal immigration, a signature policy objective of his administration. “He’s been trying to do something for months,” Mr. Yale-Loehr said.

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

  • Lawandcrime.com: ICE scheduling raids to arrest alleged undocumented immigrants – what to know
  • Daily Mail: Trump-backed ICE raids have already started in California ahead of thousands of immigrants being rounded up nationwide this weekend, claim lawyers
  • Quartz: The best ways to help immigrants in the US caught up in ICE raids
  • Syracuse.com: On eve of planned immigration raids, Syracuse advocates remind people of their rights
  • City & State: New York’s limited power to resist ICE raids
  • Business Insider: Immigrants have rights when ICE comes to arrest them, but experts warn this only goes so far
  • Univision: Did you know that a deportation order can be challenged? (Spanish)
  • Marketplace

https://www.abil.com/cygnus/wp-content/uploads/2021/09/ABIL_Logo-2021.png 0 0 ABIL https://www.abil.com/cygnus/wp-content/uploads/2021/09/ABIL_Logo-2021.png ABIL2019-09-04 10:54:372019-10-21 10:59:57News from the Alliance of Business Immigration Lawyers Vol. 9, No. 4 • September 04, 2019

News from the Alliance of Business Immigration Lawyers Vol. 9, No. 3 • June 28, 2019

June 28, 2019/in Global Immigration Update /by ABIL

Headlines:

1. PASSPORTS: AN OVERVIEW -This article provides an overview of passport policies and practices in several countries.

2. FRANCE -The French government has issued a decree to implement an ordinance specifying the conditions for issuing residence permits to British nationals to continue their stay in France after the Brexit date, in the event of no exit agreement being reached between the UK and EU.

3. ITALY -The Italian government has announced the numbers of foreign workers to be allowed into Italy in 2019. Also, there has been a new Italian citizenship scam, with more than 1,500 cases involved.

4. RUSSIA -There has been a variety of developments.

5. TURKEY -There have been several developments: The General Migration Directorate is eliminating postal filing of residence permit renewal applications. Turkey has increased efforts to attract foreign investment. Foreigners must now obtain “E-devlet” online accounts to obtain certain documents and information.

6. UNITED KINGDOM -Eligible nationals of the United States and six other countries can now use electronic passport control gates when they enter the United Kingdom.

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

8. ABIL Member / Firm News -ABIL Member / Firm News


Details:

1. PASSPORTS: AN OVERVIEW

This article provides an overview of passport policies and practices in several countries.

Canada

General guidance. There is no requirement for travel to Canada that a passport must be valid for at least 6 months. Instead, the general rule is that anyone seeking to enter Canada as a temporary resident (to visit, work, or study), regardless of age (including newborns) or nationality, must travel with a passport valid for the duration of their proposed stay. Immigration officers will not issue visitor records, work permits, or study permits valid past the expiration date of the passport. There is an exception to this rule for U.S. citizens, under section 52(1) of the Immigration and Refugee Protection Regulations. Not all immigration officers are familiar with this rule and U.S. citizens applying for a temporary resident document may need to remind officers of this provision. Otherwise, they may receive a document valid only until the expiration date of the passport.

Entering Canada by air. It is important to remember that while Canadian immigration authorities may allow certain individuals to enter Canada without a passport, airlines set their own rules regarding what documentation is required to board a plane. It is therefore highly recommended that all travelers carry a valid passport when flying to Canada.

All Canadian citizens, including dual citizens, must present a valid Canadian passport to fly to Canada. This is because Canadian citizens and permanent residents cannot be issued an Electronic Travel Authorization (eTA) or a temporary resident visa. Airlines may refuse to board any passenger who does not have a valid eTA, temporary resident visa, Canadian permanent resident card, or Canadian passport. Dual Canadian-U.S. citizens with a valid U.S. passport are exempt from this requirement and may enter Canada with the valid U.S. passport, but a best practice for dual American/Canadian citizens is to use their U.S. passport for entry to the United States and their Canadian passport for entry to Canada.

Entering Canada by land. U.S. citizens may enter Canada with proof of citizenship and identity, such as by presenting a valid U.S. passport card, NEXUS card, or Enhanced Driver’s License. It is nonetheless recommended that U.S. citizens enter Canada at a land border with a valid U.S. passport because U.S. border officials on re-entry to the United States will counsel U.S. citizens on the need to have a passport. Commercial carriers (buses and trains) may have their own rules and refuse to transport passengers without a valid passport.

Citizens of other countries must present a valid passport (and a visa, if required).

Applying for permanent residence. Those applying for permanent residence are asked at the final stage of processing to provide a passport that is valid for at least 6 months.

Canadian passport validity period. Canadian passports for children (under 16 years old at the time of application) are valid for up to 5 years, and adult passports are valid for up to 10 years.

Colombia

The Colombian Ministry of Foreign Affairs states that the Ordinary Electronic Colombian Passport holds 32 pages and has a validity of 10 years. Colombian nationals can obtain the passport by completing a form from the Ministry and presenting the original Cedula de Ciudadania, which is the local identification. For minors, one of their parents must be present for such a request and bring the minor’s birth certificate.

The Colombian passport can be requested in a variety of scenarios, such as a voluntary change, for rectification of data in the identity document, for expiration, for damage that prevents its use, for theft or loss, when the current passport does not have enough pages, or for reaching the age of majority (18 years old). A Colombian national cannot hold two passports at the same time.

Italy

The Italian passport is both a travel and an identification document. It is issued by the Police (Questura) in Italy (for Italian nationals residing in Italy) or by the embassies/consulates abroad (for Italian nationals residing outside Italy).

The standard passport is called an “Ordinary Passport” and its validity depends on the age of the holder.

There are no specific timelines for requesting a new passport; the application can be filed well before the current passport expiration date. Under some circumstances, it is possible to apply for a second passport.

Details

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2. FRANCE

The French government has issued a decree to implement Ordinance No. 2019-76 of 6 February 2019, which specifies the conditions for issuing residence permits to British nationals to continue their stay in France after the Brexit date, in the event of no exit agreement being reached between the United Kingdom (UK) and the European Union.

Decree no. 2019-264 of 2 April 2019 was published in the Journal Officiel on 3 April 2019. The following are the principal conditions of issuance of the residence permits to British nationals and their family members.

Transition period of 12 months. UK nationals and family members continuing their stay and professional activities beyond the Brexit date may do so for a maximum period of 12 months after the Brexit date. During this transition period, they do not need to possess a residence permit.

Residence permit application to be requested within 6 months following the Brexit. UK nationals who wish to remain in France beyond this transition period will have 6 months after the Brexit date to apply for one of the appropriate residence permits.

How to apply for a residence permit. The decree details the documents that UK nationals and their family members will provide in support of their application according to the appropriate residence permit for which they are eligible.

Tax amount. The amount of the tax due for the issuance of a residence permit is reduced to 100 euros for British nationals and their family members instead of 269 euros applicable to third-country nationals.

Details: Client alert

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3. ITALY

The Italian government has announced the numbers of foreign workers to be allowed into Italy in 2019. Also, there has been a new Italian citizenship scam, with more than 1,500 cases involved.

Numbers of foreign workers announced. The Italian government has announced a cap of 30,850 on the number of workers from outside the European Economic Area to be allowed into Italy for 2019. The decree, dated March 12, 2019, was published in the Official Gazette of April 9, 2019.

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

More than half of the total is reserved to entries for seasonal work (18,000); the majority of the remainder is reserved to permit conversion (9,850) for foreign citizens already in possession of a residence permit in Italy or the European Union (study, seasonal work, permanent) intending to change status, i.e., to convert the existing permit into a permit for employment/self-employment.

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

Citizenship scam. The Public Prosecutor’s Office in Rome and the Rome Police recently shut down an organized crime group run by an official in the Ministry of the Interior, which granted Italian citizenship to people who were not entitled to it by exploiting access to the SICITT computer system used by the Department of Civil Liberties and Immigration in the Ministry of the Interior to process Italian citizenship applications.

The President of the Italian Republic has already revoked the status of some of these new Italian citizens by stripping them of their Italian citizenship because they did not meet the legal requirements. Those desiring Italian citizenship are warned to be wary of any agencies or advisors offering to help obtain Italian citizenship easily or in a very short period of time, and regardless of the applicant’s residency in Italy for the necessary minimum time required, criminal history, or insufficient income.

Details: Numbers of foreign workers; citizenship scam (in Italian)

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4. RUSSIA

There has been a variety of developments: Companies inviting foreign nationals will soon have more responsibilities. President Putin has simplified the citizenship process for certain categories. Deported foreign citizens will have to compensate Russia for expenses related to their deportation. There are also updates on admission for the International Tchaikovsky Competition in Moscow and St. Petersburg, visa-free travel between Russia and Cape Verde, and UEFA Euro 2020 (soccer competition) migration issues. Also, there are new state fee payment certificate requirements for invitation letters. HIV Certificate requirements were recently approved by the Ministry of Health. Visa formalities between Iranians and Russians have been simplified for entrepreneurs. Visa-free travel for Russian citizens is now allowed to Suriname. The Federal Penalty Execution Service will be added to the list of agencies that can decide on the desirability of stay of foreign citizens in Russia, and the Ministry of Justice will be removed, starting January 1, 2020. The application process for residence permits has been simplified for certain categories of foreign nationals. The Economic Development Ministry has proposed lowering the minimum salary level for Highly Qualified Specialists. A new accreditation card will allow participants in certain international cultural mass events to enter Russia visa-free for the defined period of such events.

Companies Inviting Foreign Nationals Will Soon Have More Responsibilities

New procedures to be followed by companies inviting foreign nationals has been submitted for governmental review and final approval. In particular, the new regulations require that companies sponsoring visas for foreign nationals must take several measures to ensure that the invited foreign national complies with restrictions on the purpose of stay established by the visa, as well as the authorized period of stay, and exits Russia in a timely manner.

Among other things, companies will need to notify an invited foreigner staying longer than 10 days about these requirements, and issue reminders of visa expiration and the need to leave Russia. If an invited foreigner does not comply, the company must notify the Ministry of Internal Affairs.

These requirements will not be applied to embassies and consulates of foreign countries or representative offices of international organizations.

Putin Simplifies Citizenship Process for Certain Categories

President Vladimir Putin issued Order #187 on April 29, 2019, which introduced new categories of foreign citizens and stateless persons who can apply for Russian citizenship following a simplified procedure. Also, on April 24, 2019, President simplified the procedure for obtaining Russian citizenship for residents of Donetsk and Lugansk.

The simplified procedure for obtaining Russian citizenship means that an application for Russian citizenship can be filed regardless of the time during which the foreigner lived in Russia and/or had a Residency Permit.

Apart from residents of Donetsk and Lugansk Republics, the following categories of foreign nationals received the right to apply for Russian citizenship following the simplified procedure:

Ukrainian nationals, stateless persons and their children (including adopted), spouses and parents:

  1. who don’t have citizenships of other countries, and
  2. who were born and permanently reside in the territories of Crimea and Sevastopol, and
  3. who exited these territories until March 18, 2014;

Ukrainian nationals, stateless persons as well as their children (including adopted), spouses and parents who have a:

  1. TRP (Temporary Residence Permit);
  2. PRP (Permanent Residence Permit);
  3. Refugee Certificate;
  4. Certificate confirming the grant of temporary refuge; or
  5. Certificate of the participant in the state program for the returning of compatriots, residing abroad, to Russia

AND

  1. Who permanently resided in the territories of Donetsk and Lugansk Republics before the April 7, 2014, and April 27, 2014, respectively;

Foreign citizens and stateless persons as well as their relatives, if they were unlawfully deported from Crimea;

Citizens of the Islamic Republic of Afghanistan, Republic of Iraq, Yemen Republic, and Syrian Arab Republic and their children (including adopted), spouses and parents:

  1. who were born on the territory of the former RSFSR; and
  2. had USSR citizenship.

The Presidential Order also introduces the application form that must be filed by the foreign citizens listed above. Applications must be filed at the local offices of the Ministry of Internal Affairs depending on the applicant’s resident address.

The application must be supported by the following documentation:

  • Confirmation of the person’s ID and citizenship or statelessness;
  • Medical test results confirming that the person is not addicted or infected and does not have HIV (there are exceptions to this requirement);
  • Confirmations of family relationships (e.g., birth certificate, marriage certificate);
  • Confirmation of authorization for the foreigner’s stay in Russia (e.g., visa, migration card, TRP, PRP);
  • Confirmation of residency in certain territories (e.g., extract from the tenant’s book, copy of the utilities bill if there is no residency confirmation in the ID document).

An application for Russian citizenship can be denied if the foreign citizen or stateless person:

  • Calls for violent change of the constitutional order;
  • Participated in armed conflicts;
  • Participated in extremist activities and poses a danger to the security of the Russian Federation and its citizens;
  • Is banned from entering Russia;
  • Used falsified documentation or supplied false information;
  • Was a member of the armed forces of a foreign country or served in foreign security agencies;
  • Has a criminal record that has not been expunged or has not expired yet;
  • Is criminally prosecuted;
  • Serves jail time;
  • Participates in activities of an organization, including the list of organizations and persons who are considered to be involved in extremist activities and terrorism;
  • Is the subject of a decision by an inter-department coordination council, which functions to prevent financing of terrorism, to block this person’s accounts or properties; or
  • Is the subject of a court decision blocking this person’s bank account transactions and other operations with funds and property.

Applications must be reviewed within three months.

More on simplified procedures for Russian citizenship and residence permits. On May 7, 2019, the Russian government approved a number of bills that introduce simplified procedures for obtaining Russian citizenship as well as TRPs (Temporary Residence Permits) and PRPs (Permanent Residence Permits).

Qualified foreign specialists who have worked in Russia for 1 year will have the right to apply for Russian citizenship following a simplified procedure. Currently, such foreign citizens must work in Russia for 3 years before their citizenship applications can be considered. A list of professions of qualified foreign citizens and stateless persons is issued by the Ministry of Labor. For example, this list contains professions in high demand in the Russian labor market, such as doctors of various medical specialties, other medical professionals, engineers, locksmiths, technical professionals, electricians, and others.

The following categories of foreign citizens will be able to apply for Temporary Residence Permits without a quota:

  • Residents of Ukraine; and
  • Stateless persons who permanently reside in Ukraine and who received refugee status or obtained refuge in Russia.

Also it is suggested that the following categories of foreign nationals will receive the right to apply for PRPs without having to apply first for TRPs:

  • Foreign nationals who were born in the RSFSR and who had USSR citizenship;
  • Foreign nationals who were deported from Crimea as well as their relatives;
  • Foreign nationals who were born in Russia and were adopted by foreign nationals (including highly qualified specialists) and others.

Finally, the bills introduce PRPs that will be issued for an unlimited period of time, with the exception of PRPs issued to HQS (Highly Qualified Specialist) work permit holders as well as qualified specialists and their family members. They will be issued 3-year PRPs.

A foreign citizen who receives an unlimited PRP will need to notify the local office of the Ministry of Internal Affairs regarding their residence in Russia annually. Once every 5 years, such notification must be filed in person. If the foreign citizen fails to file this notification 2 years in a row, the PRP will be annulled.

It is not yet clear when these bills will come into force.

Deported Foreign Citizens to Compensate Russia for Related Expenses

Currently, if a foreign citizen is deported or administratively removed from Russia, he or she must cover the costs of the procedure. If the foreign citizen lacks the funds, the “inviting party” must cover the costs, for example, a company or organization that issued the invitation letter. If the appropriate inviting party is not found, the federal budget covers the expenses. New proposed legislation under review says that in cases where federal funds are used, the foreign citizen must compensate the Russian government after their deportation/removal is complete. Such expenses may include flight/train/bus tickets for the foreign citizen and official accompanying him or her; the foreign citizen’s stay in a facility until the deportation/removal is executed; and paperwork and other expenses related to the procedure.

International Tchaikovsky Competition

The 16th International Tchaikovsky Competition, which occurs every four years, will be held June 17 through 29, 2019, in Moscow and St. Petersburg. To simplify migration formalities for participants, the government has introduced a bill to the State Duma that amends FL-115, “On the legal status of foreign citizens in Russia.”

During the competition, the administration of the competition will not be required to apply for permission to employ foreign citizens to serve as jury members. Jury members will also not be required to obtain a work permit or patent to work in Russia.

Visa-Free Travel Between Russia and Cape Verde

On April 26, 2019, the Russian government issued an order to the International Affairs Ministry to sign, after the necessary negotiations take place, an agreement with the Cape Verde Republic that will allow visa-free travel between the countries.

According to the draft of the agreement, citizens of the two countries will be able to travel visa-free to the territory of the other country. The period of stay will not exceed 60 calendar days. The total period of stay within the specified timeframe will be set according to the legislation of each country. Russia uses the common rule of 90/180, which means that Cape Verde citizens would be able to stay in Russia for 90 days out of each 180 days.

Article 8 of the agreement draft provides that countries can deny entry or shorten the period of stay for the citizen of the other country if the presence of the foreign national would be considered undesirable.

Also, if citizens of one country decide they wish to perform work activities, study, or reside in the other country, they will be required to apply for the appropriate visa.

UEFA Euro 2020 Migration Issues

Legislation was amended in May 2019 to provide for the preparation and management of an upcoming soccer event, the European Cup UEFA (Union of European Football Associations) 2020. Migration formalities will be simplified for the participants, volunteers, and spectators of UEFA Euro 2020.

The “UEFA Euro 2020 preparation period” is from June 1, 2019, until the date defined as 1 month before the date of the first match of UEFA Euro 2020. The “UEFA Euro 2020 period” is calculated from the date when the preparation period is over until December 31, 2020.

Foreign citizens participating in UEFA Euro 2020 (organizers) will receive multiple-entry ordinary business/work visas at Russian consulates abroad for a period of up to 1 year with the possibility to extend work visas in Russia. Applications must be filed on the basis of invitation letters, which in turn will be issued on the basis of applications from the Russian Football Association or its local organization, provided that applicants are included on official FIFA/UEFA lists. Visa applications will be processed within three business days, and payment of consular fees or other processing fees will not be required. Extension of work visas will be based on the application from the Russian Football Association or its local organization.

Such foreign citizens will be able to work in Russia without the need to obtain work permits or patents.

Sportsmen (competition participants) will receive multiple-entry ordinary humanitarian visas at Russian consulates abroad. Applications must be filed on the basis of invitation letters, which will in turn be issued on the basis of applications from the Russian Football Association or its local organization, provided that applicants are included on official FIFA/UEFA lists. Applications will be processed within three business days, and payment of consular fees or other processing fees will not be required.

Such foreign citizens will not need to obtain work permits or patents.

Foreign citizens will be able to use public transport in St. Petersburg and Leningradskaya Region for free during the competition period.

Volunteers will receive either 1-entry or 2–entry ordinary humanitarian visas at Russian consulates abroad for a period of up to three months or multiple-entry ordinary humanitarian visas for a term of up to one year with the possibility of a continuous stay of not more than 180 days. Visas will be issued on the basis of invitation letters that will be based on applications from the Russian Football Association or its local organizations.

Volunteers will be able to perform work activities in Russia without a work permit. Organizations that will use their labor will not be required to apply for permission to engage foreign labor. Such organizations will not need to file any notifications to authorities connected with employment of volunteers.

Spectators will be able to enter Russia without a visa during the period starting 14 days before the first match in St. Petersburg until the day of the last match in St. Petersburg plus 10 calendar days after that date.

To enter Russia as a spectator without a visa, the person must bring a passport and a personal spectator card (Fan ID).

UEFA Euro 2020 spectators will be able to use public transport for free in St. Petersburg and the Leningradskaya region during the competition period.

For UEFA Euro 2020 suppliers, media specialists, and other employees of such organizations, companies that will supply products or services for UEFA Euro 2020 as well as media organizations will be able to apply for the permission to engage foreign labor using a simplified procedure. Processing of such applications will be accelerated. Also, foreign employees of such organizations will be able to apply for work permits and patents using simplified and accelerated procedures. Government fees for processing applications for such permits as well as invitation letters will not be charged.

Workers of accredited media organizations will be able to use public transport in St. Petersburg and the Leningradskaya region free of charge during the competition period.

Address registration during UEFA Euro 2020

For the period of UEFA Euro 2020, the following categories of foreign nationals will not have to be registered:

  • Foreign citizens and stateless persons participating in UEFA Euro 2020 events;
  • Sportsmen; and
  • FIFA representatives.

Currently, registration rules for other foreign citizens during UEFA Euro 2020 are not changed. During FIFA Cups 2017 and 2018, for security reasons, the rules were changed by presidential order. For example, during FIFA Cup 2018, all foreign citizens regardless of visa type were required to register address within three calendar days of arrival (including highly qualified specialists and their family members). Also, registrations through the Post Office were banned.

No amendments to this presidential order have been issued, although it is highly likely that in 2020 similar security measures will be introduced.

New State Fee Payment Certificate Requirements for Invitation Letters

According to the Internal Affairs Ministry Moscow office, as of May 27, 2019, documents for invitation letters are being accepted only with the state fee payment certificate showing that the fee has been paid directly from the inviting company’s bank account.

It is not mandatory (but preferred) to provide the original payment certificate verified by the bank that made the transfer. It is allowed to provide the state fee payment certificate with the original inviting company’s stamp. The full name of the invited person on the payment certificate is also required, but it is possible to enter the name by hand.

Also, the payment certificate can be filed not only with the application for the invitation letter but also when collecting the approved invitation letter, except when the application is filed for the so-called electronic invitation letter (when the immigration authority sends an approved electronic invitation letter directly to the consulate through official channels of the Ministry of Foreign Affairs). In such cases, the payment certificate should be filed exclusively with the application forms.

HIV Certificate Requirements

HIV Certificate requirements were recently approved by the Ministry of Health. The Ministry of Health Order was registered by the Ministry of Justice on May 6, 2019. The document introduces the unified HIV Certificate template, which must be used from now on. Information in the Certificate will be presented both in Russian and in English. The validity remains the same, three months.

Iran—Simplification of Visa Formalities for Entrepreneurs

As of May 8, 2019, visa formalities for entrepreneurs have been simplified between the Islamic Republic of Iran and the Russian Federation. Previously, to confirm the purpose of the visit of an Iranian national to Russia, entrepreneurs and representatives of organizations of entrepreneurs had to obtain a letter from the inviting national association of manufacturers and entrepreneurs, such as the Trade and Industry Chamber or Russia Union of manufacturers and entrepreneurs. Now to confirm the purpose of such a visit, it is enough to get a letter from the inviting party (legal entity, its branch, government, or local authority).

Suriname—Visa-Free Travel

As of May 13, 2019, Russian citizens can travel to Suriname without a visa and stay in that country for up to 90 calendar days. Suriname citizens can also travel to Russia visa-free and stay for up to 90 calendar days out of every 180 days. Citizens of one country who would like to stay or reside in the territory of the other country for more than 90 calendar days, or perform work or commercial activities, must apply for a visa.

Russia to Add Agency to List of Those Deciding on Desirability of Stay of Foreign Citizens

The Russian government will add the Federal Penalty Execution Service (FPES) to the list of governmental agencies that can issue decisions on the desirability of stay of foreign citizens in Russia (except for cases when such a decision is issued due to a threat to public health). The Ministry of Justice was charged with the task of issuing decisions on the desirability of stay of foreign citizens in Russia who committed serious crimes while staying in the country or who were in prison in Russia for committing such crimes. Now these rights will be transferred to the FPES as of January 1, 2020.

Residence Permit Process to be Simplified for Certain Foreign Nationals

A bill that introduces a simplified procedure for TRP (temporary residence permit) and PRP (permanent residence permit) applications for several categories of foreign nationals has been submitted to the State Duma for review. The State Duma representative confirmed that it intends to review the bill as a high priority.

Apart from amendments suggested earlier by the government in this area, such as Ukrainians receiving TRPs without the need to apply for the TRP quota place first, as well as shortening the application review period to four months, the bill makes clear one of the most popular bases for TRP application rejection: when a foreign national is confirmed to have spent more than six months outside of Russia. Thus, the bill provides that a TRP application will be rejected and an issued TRP will be annulled if a foreign national has spent more than six months in total outside of Russia during one calendar year (with an exception for cases when the foreign national could not leave the territory of the foreign country due to emergency medical treatment or serious illness, or death of a close relative, as well as for cases when a foreign national spent more time outside of Russia due to work).

Additionally, the bill provides for a foreign national to apply for the annulment of a TRP. At present, this procedure is not clarified by law, which leads to complexities in cases when, for example, a TRP holder has to work in another Russia region than the one where he or she was issued the TRP and apply for the work permit there. Ordinarily, a TRP holder can only perform work activities in the Russian region where he or she was issued the TRP.

The bill also introduces a list of categories of foreign citizens who have the right to apply for the PRP without the need to first file for the TRP and live for one year on its basis in Russia.

Economic Development Ministry Proposes Lowering Minimum Salary Level for Highly Qualified Specialists

To attract more qualified foreign labor, the Economic Development Ministry has proposed that a minimum salary level for HQS (Highly Qualified Specialists) should be lowered. At the moment, the minimum salary level, with exception of those working in special economic zones and scientific institutions, is 167,000 RUB gross per month.

The Ministry also proposed that one should be able to receive HQS status via the Internet on the basis of work experience information. Additionally, the Ministry would prefer that HQS be offered Russian citizenship without the need to renounce their current citizenship.

Finally, the Ministry has proposed that foreign nationals who graduated from Russian universities should be able to apply for Russian citizenship following a simplified procedure, again without the need to renounce their current citizenship.

Accreditation Card to Allow Visa-Free Entry for International Cultural Mass Events

A Ministry of Culture Order has introduced the accreditation card, which will allow participants in international cultural mass events to enter Russia visa-free for the defined period of such events. The list of the events during which visa-free travel is allowed is confirmed by the government, including:

  • International Tchaikovsky Competition
  • Saint-Petersburg International Cultural Forum
  • Moscow International Education Salon
  • International Championship «Worldskills»

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5. TURKEY

There have been several developments: The General Migration Directorate (MD) is eliminating postal filing of residence permit renewal applications. Turkey has increased efforts to attract foreign investment. Foreigners must now obtain “E-devlet” online accounts to obtain certain documents and information.

Elimination of Postal Filings of Residence Permit Renewals

Further to this end, the MD has closed its office in Bakirkoy, Istanbul, which had been the only office designated to handle postal renewal applications of residence permits in Istanbul. According to officers there, renewal applications already received will be transferred to the Vatan (Istanbul) main office.

Practitioners say this is a surprising development, as it appears to be a step to significantly alter the way renewal applications are handled. They recommend not pursuing postal renewal applications and instead filing new initial applications via interview to extend residence permits.

Details (Turkish): Istanbul government site

Increased Efforts to Attract Foreign Investment

Turkey wishes to increase foreign investment, so has “jumped on the bandwagon” to utilize immigration laws to do so. Regarding residency through investment, Turkey has a category of residence permit based on real estate investment, but this category is rarely used because the benefit over other residence permit categories is minimal. Most foreigners can qualify for a short-term residence permit without an investment in real estate or a business.

Turkey’s citizenship regulations allow those wishing to pursue Turkish citizenship to do so under several categories, such as capital investments, government debt instruments, investing in a business that employs 50 Turkish nationals, and venture capital investments. The threshold amounts required for investment were lowered in 2019, and real estate investments as low as US $250,000 now qualify. Clearly, investment in real estate has captured interest internationally because the threshold amount in Turkey is lower than for most other investment citizenship programs.

Citizenship by investment is a five-step process: (1) obtaining a Valuation Report, (2) issuance of a Certificate of Compliance, (3) filing a Residence Permit application, (4) filing address registration, and (5) filing a citizenship application. For those applicants who have already purchased a qualifying real property or made another qualifying investment, the process from valuation report to citizenship grant can be as little as 6 months.

New Requirement for E-devlet Accounts for Foreigners

The Populations Registry has stated that foreigners must obtain an “E-devlet” account to obtain certain documents and information, such as renewed address registrations. The Populations Registry will no longer issue renewed address registration confirmations in person. Foreigners must now obtain a renewed address registration online via E-devlet as Turkish nationals do.

E-devlet is an online system maintained by the Interior Ministry that allows individuals in Turkey to have access to much of their personal information generated by various Turkish government agencies. The E-devlet system includes the account-holder’s Turkey-related information such as address registration, police and court background, Social Security records, retirement information, tax records, property ownership, and educational degree information. In general, information related to non-Turkey institutions or agencies is not included.

A foreigner with a Turkish ID number may obtain an E-devlet account by visiting a local PTT (Turkish post office) with his or her work permit card and requesting issuance of a password. Upon issuance of a password, the assignee uses it to log into the E-devlet system and create an account. Unfortunately, the E-devlet website is only in the Turkish language, and the PTT officers rarely speak any language other than Turkish. Therefore, most foreign assignees will need assistance.

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6. UNITED KINGDOM

Eligible nationals of the United States and six other countries can now use electronic passport control gates when they enter the United Kingdom (UK).

The new electronic passport control system is intended to speed entry to the UK for people traveling on business or for tourism. In addition to nationals of the United States, e-gates are now open to passport holders of Australia, Canada, Japan, New Zealand, Singapore, and South Korea.

Business travelers and their employers are advised to bear in mind that the same restrictions apply to people entering as visitors regardless of whether they are stamped in by an Immigration Officer or use an e-gate. Visitors are not allowed to work or study in the UK except in very limited circumstances. They also cannot live in the UK for extended periods.

The Home Office already collects entry and exit data from airlines and other carriers taking people to and from the UK. Anyone using e-gates can also expect to have their movements tracked. If a visitor appears to be spending most of their time in the UK, they will run into trouble, whether or not they use e-gates.

Details: Immigration Update

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7. 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
    • New Data Show Increase in H-1B Denials and RFEs
    • ABIL Urges Administration to Change “Buy American and Hire American” Executive Order
    • ABIL Member Kuck Baxter Immigration Commercial Nominated for an Emmy
    • ABIL Members Note Immigration Threats for Employers in 2018
  • ABIL is available on Twitter: @ABILImmigration.
  • Recent ABIL member blogs are at http://www.abilblog.com/.

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8. ABIL Member / Firm News

In Chambers USA 2019, a guide to leading lawyers in the United States:

  • 25 ABIL lawyers were ranked in the top bands
  • ABIL lawyers represent half of the top-ranked (“Band 1”) attorneys in immigration

This means that an Alliance of Business Immigration Lawyers (ABIL) lawyer is over 15 times more likely to be ranked in the top band than the average immigration attorney. More information

Several members of ABIL have authored articles for the inaugural AILA Law Journal, a publication of the American Immigration Lawyers Association:

  • Kehrela Hodkinson, “Renunciation of U.S. Citizenship: Why Would a Client ‘Give It All Up?’ “
  • Cyrus Mehta, “The Curse of Kazarian v. USCIS in Extraordinary Ability Adjudications Under the Employment-Based First Preference”
  • Angelo Paparelli, “USCIS’s Fraud Detection and National Security Directorate: Less Legitimate Than Inspector Clouseau, But Without the Savoir Faire“

All three of the ABIL members listed above are also on the publication’s Board of Editors, along with William Stock, of Klasko Immigration Law Partners, LLP. The publication

Dagmar Butte was quoted by Wired in “Visa Rejections for Tech Workers Spike Under Trump.” Ms. Butte said she began noticing a spike in denials shortly after President Trump took office. In 2017, she said, she filed numerous applications on behalf of one IT client, only to have them all rejected, a first in her nearly three-decade career. “I thought: Did I suddenly get stupid?”, she said. In her experience, the article notes, the H-1B visa holders who have been hardest hit are systems analysts and quality assurance analysts employed through outsourcing firms. These applicants are increasingly being told that their jobs are not considered specialized, although those determinations appear to be applied unevenly, she noted. In one instance, she filed 16 applications for systems analysts; all had the same expertise and educational attainment but two were denied. Ms. Butte noted that it would have been dangerous to challenge the denials on the basis that other similarly skilled applicants were approved. “If I were to point that out, they would not approve the two denied cases; they would just reopen and deny the 14 approved cases,” she noted, adding that this has happened to some of her firm’s clients. “When the denials come, it’s devastating. They leave everything behind.” The article

Ms. Butte was quoted by Recode in “New Immigration Rules Could Prevent Our Next Elon Musk.” The article notes that although Silicon Valley is focused more on experience and entrepreneurship than on advanced degrees, USCIS is actively increasing the percentage of master’s degree candidates selected for the H-1B program. Ms. Butte noted that “[t]ech companies spend a lot of time looking at skill sets which may or may not be tied to a degree. Usually they are experiential as opposed to being part of an advanced degree.”

Laura Devine Solicitors won several awards recently:

  • Immigration Law Firm of the Year award by Citywealth Magic Circle Awards. Details
  • Corporate Immigration Lawyer of the Year (Laura Devine) by Who’s Who Legal. Details
  • Commendation for immigration by The Times Best Law Firms. Details

Ronald Klasko, of Klasko Immigration Law Partners, LLP, has authored a new blog entry on the immigration law ramifications of unlawful presence litigation. A positive development in unlawful presence litigation occurred this week when Judge Loretta C. Biggs rejected the government’s Motion to Dismiss. Her decision also enjoins the implementation of USCIS’s unlawful presence policy issued on August 9, 2018, nationwide because of the “likelihood of success” of the plaintiffs’ challenges. Mr. Klasko, co-counsel and an immigration subject matter expert on this litigation, provides background on the issue, the ramifications of this decision, and what it means for affected institutions and foreign nationals. Additionally, he examines the nationwide impact of this decision and what that means for a litigation strategy on other issues of significant importance. The blog

Klasko Immigration Law Partners, LLP, announced that the final installment in its blog series, “Strategies for Success Series: Analyzing AAO Decisions,” is available now. The is titled, “To Extraordinary and Beyond.” The second blog in the series was “Sink OR Swim: Strategies for Outstanding Researcher Success“. The first blog in the series was “Learning O-pportunities: Strategies for
O-1 Success”

Mr. Mehta has authored several new blog entries: “Making the Case for Expanding a Foreign National’s Interest in an I-140 Petition“; “Judge Issues Nationwide Preliminary Injunction in Unlawful Presence Case: What Does the Injunction Mean for Current F, J, and M Nonimmigrants?“; “Positive Changes to 90-Day Misrepresentation Guidance in the Foreign Affairs Manual—Especially for Foreign Students“; “Are the Canadian and U.S. Refugee/Asylum Processes Really ‘Similar Enough’? How the New Refugee Bar in Bill C-97 Is Based on a Misunderstanding of U.S. Asylum Law“; and “Is the USCIS Improving or Undermining the Immigration System Through Its Top Ten Ways?”

Sophia Genovese, of Cyrus D. Mehta & Partners PLLC, has authored a new blog entry, “G Barr Cannot Ignore the Constitution: The AG’s Latest Attack on Asylum Seekers in Matter of M-S-“.

David Isaacson, of Cyrus D. Mehta & Partners PLLC, has authored a new blog entry, “Challenges to Expedited Removal Orders Against Returning Nonimmigrants: How Recent Case Law Supports Habeas Petitions Even After Removal.”

Cyrus Mehta and Rebekah Kim co-authored a new blog entry, “Questions Arising From Foreign Entity Changes After an L-1 Petition is Approved.”

Mr. Paparelli has authored a new blog entry, “Immigration Haunting: Social Security Administration Resumes Issuing No-Match Notices.”

Rodrigu Tannus has authored several new articles in Diario la Republica:

  • “Beneficios migratorios de acuerdos comerciales“
  • “Reforma migratoria en Colombia“

Stephen Yale-Loehr was quoted in various publications regarding President Trump’s legal immigration reform plan:

  • Time.com: “It would be a big departure from our current system. Right now two-thirds of all immigrants who are admitted are based on some kind of family characteristic.”
  • Daily Mail (UK)
  • Agence France Presse (AFP): many publications, including this article
  • Hindustan Times
  • Business Recorder
  • Business Insider

Mr. Yale-Loehr was quoted by the Associated Press in “Border Patrol Expands Fingerprinting of Migrant Children,” which was published in many outlets. “DHS may claim that they can get around this bar [against taking biometric data from children] by getting parental permission, but that interpretation is subject to court challenge. To do this legally, DHS needs to go through the rulemaking process to change the regulation.”

Mr. Yale-Loehr was quoted by Mercury News in “South Bay Pair Gamed EB-5 Visa Program for Millions in Profit from Wealthy Investors.” Mr. Yale-Loehr noted that the United States issues 10,000 EB-5 green cards each year. Most go to investors’ family members, he said, but that still leaves thousands of investors who each pour at least $500,000 into U.S. companies. “You can do the math — that’s a lot of money that helps, or at least can help, stimulate the U.S. economy and create jobs for U.S. workers. But it is complex and it has to be done well.” Congress reauthorized the EB-5 program through September 2019. Mr. Yale-Loehr noted that as the expiration date approaches each year, “Congress talks about revamping the EB-5 program,” but then “the political gridlock sets up and they can’t get an agreement on substantive changes, so they kick the can down the road.”

Mr. Yale-Loehr was quoted by the Guardian in “Trump Administration Moves Spark Fears of New Immigration Crackdown.” He noted that without action by Congress, which has declined to join Trump in most of his immigration initiatives, the administration’s legal options for altering policy are limited. The fastest way to accelerate the deportation of asylum seekers could be by expanding expedited removal, which could allow removals of migrants within 100 miles of the border up to 14 days after crossing. “But they would have to do that through a rule – they couldn’t just announce it. And so it would take some time to go through the rulemaking process.” He added, ” This administration doesn’t seem to have a coherent policy. It seems that the president simply wants to score political points by seeming to be tough on immigration without really thinking through the best way to get to the root cause of why people are fleeing violence in Central American countries to come to the United States. The rules are already stacked against immigrants trying to stay in the United States, and this administration is trying to make it even harder but without thinking through the consequences.”

Mr. Yale-Loehr was quoted by Syracuse.com in “Path for International Basketball Players at Syracuse Requires Patience, Hope.” The article notes that embassy officials want to ascertain whether students will return to their home countries once they complete their educations. “That can be either easy or hard to prove depending on what country you’re coming from. We usually give the benefit of the doubt to Canadians and say, ‘I think you will go back.’ If it’s an African country, it may be very hard to get a student visa because the consular office does not think the person really plans on going back.”

Mr. Yale-Loehr was quoted in several publications regarding President Trump’s threat to close the U.S. border with Mexico:

  • CNN: Mr. Yale-Loehr noted that the President would run into problems if he closed the entire border to green card holders and U.S. citizens: “They could argue that doing so violates their First Amendment rights to freedom of association and travel.”
  • Univision (Spanish): “Las amenazas de Trump en la frontera y el corte de la ayuda a los países centroamericanos (como castigo por no detener las oleadas de inmigrantes en busca de asilo) pueden ser ilegales y, desde luego, una tontería.”
  • Sinclair Broadcast Group, many newspapers: “Any effort to close the U.S.-Mexico border or cut off aid is doomed to failure. It is like stopping funding for cancer research on the theory that fewer cancers will occur. We need more foreign aid, not less, to attack the root conditions of poverty and violence in Central America so fewer people in those countries will flee to the United States.”
  • Law360: Mr. Yale-Loehr noted that the first version of President Trump’s travel ban raised similar concerns. If the President issued a narrower proclamation closing the border only for asylum-seekers, they could argue that this violates INA 208(a)(1), which provides that any migrant physically present in the United States or who arrives in the United States, whether or not at a designated port of arrival, can apply for asylum. Content available by registering or subscribing.
  • USA Today: “We’d be shooting ourselves in the foot by closing the border. It’s like stopping funding for cancer research on the theory that we’ll get fewer cancers.”
  • Business Insider: “The legal challenges to a border declaration will depend on what President Trump does. If President Trump closed the border to green card holders and U.S. citizens, they could argue that doing so violates their First Amendment rights to freedom of association and travel.”

Mr. Yale-Loehr was quoted by WENY regarding a failed EB-5 project in upstate New York.

Mr. Yale-Loehr was quoted by Bloomberg Law regarding a 10 percent immigration surcharge proposal in the Trump administration’s budget request to Congress. It “seems minimal,” he noted, but “would have a real detrimental impact on many people who can ill afford these increased filing fees.” He said the surcharge is likely “dead on arrival,” noting that even the Trump administration thinks “that such a change will only occur with congressional approval” and “the Democrats would never agree to this.” Further, he noted, “Some employers already are balking at the high filing fees for needed employees. Adding a 10 percent surcharge will make it even more financially onerous. We may see fewer H-1B petitions being filed as a result.” Content is available by registering or subscribing.

Mr. Yale-Loehr was quoted by Voice of San Diego in an article about a California county’s asylum policy lawsuit. Mr. Yale-Loehr agreed that the federal government’s failure to follow rulemaking procedures was the county lawsuit’s most potent argument. “I think it’s a good lawsuit and they raise serious allegations. We’ll just have to wait to see which judge they get.”

 

https://www.abil.com/cygnus/wp-content/uploads/2021/09/ABIL_Logo-2021.png 0 0 ABIL https://www.abil.com/cygnus/wp-content/uploads/2021/09/ABIL_Logo-2021.png ABIL2019-06-28 11:01:032019-10-21 11:04:14News from the Alliance of Business Immigration Lawyers Vol. 9, No. 3 • June 28, 2019

News from the Alliance of Business Immigration Lawyers Vol. 9, No. 2 • April 15, 2019

April 15, 2019/in Global Immigration Update /by ABIL


Headlines

1. DOCUMENT RETENTION POLICIES AND PRACTICES: AN OVERVIEW -This article provides an overview of document retention policies and practices in Canada and Italy.

2. COLOMBIA -This article summarizes several developments in Colombia: All visa procedures must now be completed online; the Migrant Mercosur visa for Chilean nationals has been suspended due to a lack of reciprocity; there has been a breakdown of diplomatic relations between Colombia and Venezuela that has affected migratory processes; and there are new conditions for Venezuelans traveling to Colombia with expired passports.

3. EUROPEAN UNION -As part of “red tape” reduction for European Union (EU) citizens living or working in another Member State, the apostille is no longer required on public documents issued by EU authorities.

4. FRANCE -A government order has established the rights of United Kingdom (UK) nationals continuing to stay in France in case of a “hard Brexit.”

5. ITALY -A new decree outlines measures that will apply if the UK leaves the EU without a deal.

6. UNITED KINGDOM -This article provides updates on the fast-changing Brexit situation. Also, new “e-gates” are now open to U.S. citizens and others.

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

8. ABIL Member / Firm News -ABIL Member / Firm News


Details:

1. DOCUMENT RETENTION POLICIES AND PRACTICES: AN OVERVIEW

This article provides an overview of document retention policies and practices in Canada and Italy.

Canada

In Canada, rules related to law firms retaining client documents and information are governed by provincial and territorial law societies. Accordingly, there are potentially 13 different sets of professional rules of conduct that govern document retention. Generally speaking, the provincial and territorial law societies will not set a firm rule but instead will make a recommendation for a best practice. In Ontario, lawyers are advised to keep client documents for 7 years, except Trust Account documents, which must be kept for 10 years. Trust Accounts are used in Canada to receive client fees in advance of work being completed and can also be used to hold client funds pending the completion of commercial or real estate transactions where the funds are applied to the purchase price. For this reason, lawyers are held to a higher standard of record-keeping for all documentation dealing with the handling of client funds. The Canada Revenue Agency also requires that businesses keep tax records for 7 years.

Recently, there have been a number of government initiatives and changes in legislation related to compliance with respect to immigration applications to support hiring foreign workers in Canada. These include Administrative Monetary Penalties against employers for non-compliance. Businesses that hire foreign workers must keep records related to the hiring and employment of the foreign worker, including copies of work permits, payroll documents, job descriptions, and timesheets for up to 6 years from the date of hire. In light of this requirement, immigration law firms providing legal services to businesses that hire foreign workers should also be keeping records for at least 6 years.

Italy

In Italy, an attorney must collect and store only the data that are necessary (not superfluous) for the achievement of the client’s objectives.

The data can be deleted or returned at the client’s request. There is no mandatory requirement to keep data for a certain time, unless it is necessary for the file’s completion. However, lawyers are subject to malpractice claims for 10 years, and it is therefore advisable to keep the necessary data and documents until the expiration of the statute of limitation for a possible claim.

Regarding immigration-related documents, the law does not set forth a specific term, but considering that immigration compliance is also linked to tax and social security issues, it is advisable to store documents for at least 7 years, the statute of limitation for any tax claims.

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2. COLOMBIA

COLOMBIA

This article summarizes several developments in Colombia: All visa procedures must now be completed online; the Migrant Mercosur visa for Chilean nationals has been suspended due to a lack of reciprocity; there has been a breakdown of diplomatic relations between Colombia and Venezuela that has affected migratory processes; and there are new conditions for Venezuelans traveling to Colombia with expired passports.

Changes in the Visa Application Process

The Ministry of Foreign Affairs has announced that all visa procedures must now be completed online. Foreign nationals can only approach the Ministry when they are summoned by the authority or when they have received approval of their visa and they need the visa sticker stamped on the passport.

This change will affect processing times for all visas, Visitor (V), Migrant (M), and Resident (R), taking into consideration that in the past a visa could be obtained in person in a couple of hours. It will now be necessary to obtain approval of the application online, which takes approximately five business days.

Mercosur Visa Temporarily Suspended for Chilean Nationals

The Ministry of Foreign Affairs has suspended the issuance of the Migrant Mercosur visa for Chilean nationals. This decision was made due to the failure to apply the principle of reciprocity, because the Mercosur visa is not being issued for Colombian nationals in Chile.

Chilean nationals who are in the process of obtaining a Mercosur visa and continue to have a need to enter Colombia must reevaluate the existing migratory alternatives and proceed with a request for a different type of visa to enter and remain in the country in regular migratory status.

However, for foreign nationals who still hold a visa in this category, its validity will be respected and they should not make any changes at this time.

Breakdown of Diplomatic Relations Between Colombia and Venezuela and Its Impact on Migratory Processes

Due to the breakdown of diplomatic relations between Colombia and Venezuela, consular services in both countries have stopped and no further requests will be processed until further notice.

To provide an avenue for the migration of Venezuelan nationals to Colombia, the Ministry of Foreign Affairs has enabled its online platform for Venezuelans who wish to apply for a Colombian visa so they can proceed with their request.

On the other hand, Colombian nationals who require a visa or other processes through any Venezuelan consulate in Colombia will need to wait for these offices to resume their normal activities. They may wish to consider searching for an alternative, even if that will mean the process is completed in Venezuela or before a consulate abroad.

New Conditions for Venezuelans Traveling to Colombia with Expired Passports

The Ministry of Foreign Affairs has authorized Venezuelan nationals to enter, transit through, and leave the national territory of Colombia, even when their passports have expired. Passports in this condition may continue to be used for two years from the due date.

Likewise, Venezuelan passport holders under the conditions mentioned above may receive an Entry and Stay Permit granted by Migración Colombia upon entering the country. Exceptionally, those passports with an entry stamp will be valid as identification documents in the national territory of Colombia.

For visa processes, the Ministry has established that Venezuelan nationals who are holders of expired passports may request the issuance of a visa as long as it complies with the other provisions in force for the issuance of the corresponding visa.

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3. EUROPEAN UNION

EUROPEAN UNION

As part of “red tape” reduction for European Union (EU) citizens living or working in another Member State, the apostille is no longer required on public documents issued by EU authorities.

As of February 16, 2019, the entry into force of Regulation 2016/1191 simplifies the circulation of certain public documents in the EU. A number of bureaucratic procedures will no longer be necessary when presenting public documents issued in one EU country to the authorities of another EU country.

Remarkably, public documents issued by the authorities of an EU country must now be accepted without the need of an apostille (authenticity stamp). Also, the regulation simplifies the rules concerning translation requirements.

A European Commission press release on this topic is available here.

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4. FRANCE

FRANCE

A government order has established the rights of United Kingdom (UK) nationals continuing to stay in France after March 29, 2019, in case of a “hard Brexit.”

The French government published an order determining the right of UK nationals continuing to stay in France after the Brexit date of March 29, 2019, in the most probable event of no exit agreement being reached between the UK and the European Union (EU). Such UK nationals will be allowed three to 12 months to acquire permanent residency if they have been in France for five years or more as of March 30, 2019, or acquire the appropriate permit to stay, if they have been in France as of that date for less than five years. [Update: The EU has given the UK another six months to leave the EU, to October 31, 2019.]

Ordonnance n° 2019-76 of 6 February 2019 was published in the Journal Officiel on February 7. The following are the principal terms affecting the immigration rights of UK nationals.

A transition period of 3 to 12 months. UK nationals continuing their stay and professional activities beyond the Brexit date may do so, as before such date, for a minimum period of three months from the Brexit date. A decree will be published that will set the final end date of the transition, which will be within 12 months of the Brexit date. Beyond this final end date, UK nationals must be in possession of the appropriate permits covering their stay and professional activities in France (Article 1 of the Order).

Presence of less than five years. UK nationals having resided for less than five years as of the Brexit date must apply for the various permits to stay according to their status (e.g., student, employee, temporary worker, posted worker, independent professional, unemployment beneficiary, family member, long-term visitor). Such permits, when allowing work, will not be conditioned on labor market tests (Article 2).

Presence of five years or more. UK nationals having resided for five years or more in France as of the Brexit date will be entitled to the Residency Card, with 10-year validity (Article 3).

UK nationals practicing law in France. UK nationals who exercise the profession of lawyer (avocat) in France, based on their EU rights, may continue to do so for a period of 12 months from the Brexit date. Such lawyers may benefit from the disposition of Article 89 of the law of 31 December 1971 (Article 13).

Article 89 of the law of 31 December 1971 facilitates the registration of foreign lawyers with a French bar association after showing that they “effectively and regularly practiced French law on [French] national territory for a period of at least 3 years.” Such activity must be demonstrated to the French bar association with which the foreign lawyer wishes to register. If over the three-year period the practice of French law was for a shorter period, the bar association will have discretion to determine if the foreign lawyer can practice French law.

Subsidiaries of law firms formed under UK law and registered with a French bar association on the Brexit date may continue to pursue their activities in France beyond that date, even if no lawyer registered under a UK qualification is still practicing within that structure. No new structure under UK law may be created in France after the Brexit date (Article 16).

Reciprocity required. The Order states that the preferential treatment provided for UK nationals can be suspended by a State Council decree, after three months following the Brexit date, if the French government observes that the UK government has not taken equivalent dispositions toward French nationals (Article 19).

Other areas. The 10-page order is quite dense. It touches on many areas (such as recognition of professional qualifications, cross-border service provision, welfare, health coverage, and jobs reserved for French and EU nationals). A decree to implement this order will soon be published.

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5. ITALY

ITALY

A new decree outlines measures that will apply if the UK leaves the EU without a deal.

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 UK nationals and their non-EU family members living in Italy, and article 15 refers to citizenship applications.

UK citizens residing in Italy and their non-EU family members can apply for EU residence permits for long-term residents by December 31, 2020, if upon the date of Brexit they have regularly resided in Italy for at least five years. UK citizens residing in Italy and their non-EU family members can apply for EU residence permits “for residency” (per residenza), valid for five years, if upon the date of Brexit they have regularly resided in Italy for less than five years.

Starting on January 1, 2021, UK citizens and their non-EU family members who do not comply with these provisions will be subject to the same sanctions applicable to all noncompliant non-EU nationals.

UK citizens who are regularly residing in Italy for at least four years upon the date of Brexit can apply for Italian citizenship until December 31, 2020. Applications filed after that date will be processed under the same regulations applicable to all other non-EU nationals.

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6. UNITED KINGDOM

UNITED KINGDOM

This article provides updates as of press time on the fast-changing Brexit situation. Also, new “e-gates” are now open to U.S. citizens and others.

Brexit Update: EU Extends Deadline to October 31

In a tumultuous period for British politics, the House of Commons rejected Prime Minister (PM) Theresa May’s Brexit deal for a second time on March 12, 2019, by a wide margin of 149 votes. The following day, in a legally non-binding but politically significant motion, Parliament rejected leaving the EU without a Withdrawal Agreement and a Framework for the Future Relationship.

On March 14, House members rejected a series of amendments to the UK government’s motion to extend Article 50. The first amendment to hold a second referendum was overwhelmingly defeated 334 to 85 (with the Labour party abstaining from the vote). The second, to enable the House to debate on the next steps in Brexit on March 20, was narrowly rejected 314 to 312. And the third amendment, which would have instructed the PM to request additional time from the EU in order to find a majority of support for an alternative approach, also failed to garner enough support in a vote of 318 to 302.

Among other things, following the amendments’ defeat, the House passed the government’s motion to extend Article 50 until June 30, 2019, by a wide margin of 412 in favor to 202 against. Subsequently, the EU extended the Brexit deadline to October 31, 2019, giving the UK another six months. As of press time, there was a range of potential future scenarios and the outcome was far from certain. The UK remains a member of the EU for the time being, but the ongoing uncertainty has created problems for businesses and investors in the UK. Stay tuned.

E-Gates

As of March 11, 2019, nationals of the United States and six other countries (Australia, Canada, Japan, New Zealand, Singapore, and South Korea) can now use electronic passport control gates when they enter the UK. People from these countries who do not already have a visa will automatically be granted entry as a standard visitor for six months, with the usual prohibition on employment and recourse to public funds.

The new system was announced in October 2018, and the legislation enabling it was passed in February 2019.

At the moment, electronic passport control gates—known as e-gates or ePassport gates—can be used by British and EU nationals aged 12 and over.

The following groups of people should not use e-gates:

  • People who are entering the UK for the first time on a different type of visa, such as a spouse visa. These people must get their visa stamped by an Immigration Officer the first time they enter the UK.
  • People who do not have a visa and are seeking entry for a different purpose; for example, under the Tier 5 (Temporary Worker) Creative and Sporting category or the Visitor (Permitted Paid Engagements) category. These people must see an Immigration Officer and ask to be stamped in under the appropriate category.
  • People who have had immigration problems in the UK and are hoping to slip in without being questioned. Passengers using e-gates are checked against Border Force systems. If the person is flagged on these systems, the gate will not open and they will be taken aside for questioning.

The new system will make entry to the UK much quicker for people traveling on business or for tourism.

Business travelers and their employers should bear in mind that the same restrictions apply to people entering as visitors regardless of whether they are stamped in by an Immigration Officer or use an e-gate. Visitors are not allowed to work or study in the UK except in very limited circumstances. They also cannot live in the UK for extended periods. The Home Office already collects entry and exit data from airlines and other carriers taking people to and from the UK. Anyone using e-gates can also expect to have their movements tracked. Visitors who appear to be spending most of their time in the UK will run into trouble, whether or not they use e-gates.

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7. 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
    • New Data Show Increase in H-1B Denials and RFEs
    • ABIL Urges Administration to Change “Buy American and Hire American” Executive Order
    • ABIL Member Kuck Baxter Immigration Commercial Nominated for an Emmy
    • ABIL Members Note Immigration Threats for Employers in 2018
  • ABIL is available on Twitter: @ABILImmigration.
  • Recent ABIL member blogs are at http://www.abilblog.com/.

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8. ABIL Member / Firm News

The Alliance of Business Immigration Lawyers (ABIL) was named the top immigration legal network by Chambers Global. Chambers noted, “[ABIL] is an association of legal providers based in over 20 countries, including 24 U.S. cities, providing a single contact point for management of global immigration needs. It assists with processing, filing, invoicing and online client case tracking. Members share information on important legislation, take part in joint training and collaborate on projects to provide a unified service offering. The network also maintains an up-to-date blog collating information on multiple jurisdictions.” In addition, ABIL members and firms were disproportionately top-rated in almost all of their jurisdictions relative to other immigration firms. ABIL encompasses two-thirds of Chambers USA’s top band (ranking tier) in California out of thousands of California immigration law firms.

Below are ABIL firms and individual members and associates who were honored in Chambers Global and Chambers USA:

FIRMS

United States

Cyrus D Mehta & Associates PLLC

Foster, LLP

Fredrikson & Byron

Klasko Rulon Stock & Seltzer

Kuck Baxter

Maggio & Kattar

Miller Mayer

Parker, Butte Lane

Pearl Law Group

Seyfarth Shaw

Siskind Susser, PC

Wolfsdorf Rosenthal LLP

 

Canada

Corporate Immigration Law Firm

Gomberg Dalfen

 

Global

Alliance of Business Immigration Lawyers

Laura Devine Solicitors

Bener Law Office (Europe, Global – for Corporate/M&A)

Dorda (Europe, Global, High Net Worth)

Kingsley Napley (UK, US, Global, High Net Worth)

Laura Devine Solicitors (UK, US, Global, High Net Worth)

Sagardoy Abogados (Europe – for Employment)

Raczkowski Paruch (Europe – for Employment)

Tannus & Asociados (Latin America)

INDIVIDUALS

United States

Jim Alexander

Robert Aronson (US and Global)

Dagmar Butte

Charles Foster

David Fullmer

Anna Gallagher

  1. Ronald Klasko (US and Global)

Charles Kuck (US and Global)

Judy Lee

Cyrus Mehta (US and Global)

John Meyer

Christy Nguyen

Angelo Paparelli

Julie Pearl

Jan Pederson

Gregory Siskind (US and Global)

Jennifer Stevens (US and Global)

William Stock

Anastasia Tonello

Bernard Wolfsdorf

Stephen Yale-Loehr (US and Global)

 

Canada

Jean-Philippe Brunet

Barbara Jo Caruso

Seth Dalfen

Avi Gomberg

 

Global (see also individual listings above under United States)

Sophie Barrett-Brown

Ilda de Sousa

Laura Devine

Nicolas Rollason

Jennifer Stevens

Rodrigo Tannus

More information on rankings and areas of specialty are available here. Bios of ABIL members are available at https://www.abil.com/.

 

Robert Aronson and Debra Schneider, of Fredrikson & Byron, P.A., have co-authored “A Bridge Over Troubled Waters: The High-Skilled Worker Rule and Its Impact on Employment-Based Immigration,” published in 44 Mitchell Hamline L. Rev. 935-969 (2018) and available online here.

Dagmar Butte will be speaking at the following events:

  • AILA Rome Chapter Conference in Berlin, Germany, on April 30, 2019, on the effect of marijuana legalization at the state level on federal immigration law
  • Federal Bar Association National Conference in Austin, Texas, on May 17, 2019, on “Fundamentals of Business Immigration Law”
  • American Immigration Lawyers Association Annual Conference in Orlando, Florida, on June 19, 2019, on “Changes to Immigration Law Via Trump Administration Memos”
  • Chair of Business Track for AILA Annual Conference in Orlando (see above)

Laura Devine Solicitors has won the LexisNexis 2019 Award for Wellbeing. The award recognizes the law firm or other legal organization that “has demonstrated the strongest commitment to providing or promoting a working environment that supports the mental and physical health of its staff, members or colleagues and enables them to maintain a healthy balance between their work pressures and home life.” Details

Robert Loughran, partner at Foster LLP, recently spoke on a panel in Austin, Texas, at the South by Southwest (SXSW) Conference. “How Foreign Entrepreneurs Thrive in Trump’s America: It’s (Not So) Complicated” focused on the immigration, corporate, and financial/tax implications foreign entrepreneurs face when setting up a business in Texas and the United States in light of the Trump administration’s new immigration policies. More information

Mr. Loughran and Matthew Myers presented on U.S. immigration considerations specific to Japanese investors, companies, and employees, to representatives of 19 Japanese companies visiting San Antonio, Texas, as part of an economic development delegation at a dinner hosted by the San Antonio Economic Development Foundation. The event took place March 7, 2019.

Charles Foster and John Meyer, chairman and partner, respectively, at Foster LLP, attended the EB-5 & Uglobal Immigration Expo hosted by EB-5 Investors Magazine on February 11, 2019, in Dubai, United Arab Emirates. Mr. Foster presented an overview of the EB-5 Immigrant Investor Program and its latest developments to representatives of leading EB-5 regional centers, migration agencies, and potential investors. More information

Mr. Foster delivered the keynote address at the immigration seminar, “Struggling With Your Immigration Status: Is Canada a Solution?,” hosted by The Aga Khan Economic Planning Board and Indo-American Chamber of Commerce of Greater Houston on December 15, 2018, in Houston, Texas. Mr. Foster spoke about the EB-5 Investment Program as a possible alternative to the H-1B visa backlog. More information on this event

Mr. Meyer was a guest speaker for “Investing and Doing Business in Texas,” an event hosted by Invierta en USA on January 30, 2019, in Mexico City, Mexico. Mr. Meyer spoke about the EB-5 Immigration Investor Program concerning how to obtain business and investment visas to immigrate to the United States. The audience included Mexican entrepreneurs who want to invest in, establish, and expand businesses in Texas. More information

Klasko Immigration Law Partners, LLP, has released “Avoiding Status Violations in the Side Gig Economy,” which is Episode 12 of the podcast series, “Statutes of Liberty.”

Anu Nair, of Klasko Immigration Law Partners, LLP, served as a panelist for “U.S. Immigration and IRS Update,” a Business After Hours event sponsored by Gray Robinson Attorneys at Law and hosted by the Indian American Chamber of Commerce on January 15, 2019, in Orlando, Florida. She provided an overview of the EB-5 Immigrant Investor Program and spoke on the latest developments. She included an update on the impending visa backlog for Indian foreign nationals. More information

Charles Kuck is the attorney for Grammy-nominated rapper 21 Savage, whose real name is She’yaa Bin Abraham-Joseph. Mr. Abraham-Joseph, who was born in England in 1992 and has been living in the United States since the age of seven, was detained recently on immigration charges by U.S. Immigration and Customs Enforcement (ICE) in Atlanta, Georgia. Mr. Kuck was quoted by Reuters in “Rapper 21 Savage Being Held Unfairly, Attorneys Claim.” Mr. Kuck noted that “ICE has not charged Mr. Abraham-Joseph with any crime. As a minor, his family overstayed their work visas, and he, like almost two million other children, was left without legal status through no fault of his own.” He said, “This is a civil law violation, and the continued detention of Mr. Abraham-Joseph serves no other purpose than to unnecessarily punish him and try to intimidate him into giving up his right to fight to remain in the United States.” Mr. Kuck also said that ICE was refusing to release his client on bond based on “incorrect information about prior criminal charges.” The article. Additional details of Mr. Abraham-Joseph’s case are at TMZ, NYTimes, The New Yorker, Time, and Rolling Stone.

Cyrus Mehta has authored several new blog entries. “The Best Way for Trump to Offer “Love and Sympathy’ is to Repeal the Muslim Ban“; “Advancing a ‘Social Group Plus’ Claim After Matter of A-B-“; “Trump Administration Imposes Another Unnecessary Obstacle: USCIS to Issue New Version of Form I-539 and New I-539A on March 8“; and “Don’t Always Suck Up to Buy American Hire American.”

David Isaacson, of Cyrus Mehta‘s office, has authored a new blog entry. “Not Sure Whether to Laugh or Cry: How the Border Patrol’s Harassment of a Comedian Shows Why It Should Not Be Checking Documents in the United States.”

Angelo Paparelli has authored a new blog entry, ” ‘Sue the miscreants!’—Challenging Unjust Work-Visa and Green-Card Denials with Flood-the-Zone and Head-Fake Immigration Strategies.”

Mr. Paparelli and William Stock spoke at the 2019 American Immigration Lawyers Association’s Spring Federal Court Litigation Conference in Chicago, Illinois, on March 12, 2019. More information

Rodrigo Tannus has authored several new articles published in Diario la Republica:

  • “Golden Visa“
  • “Nacionalización colombiana y sus efectos“
  • “Permiso de ingreso y permanencia de tránsito temporal“

Stephen Yale-Loehr was quoted in several publications regarding President Trump’s threat to close the U.S. border with Mexico:

  • CNN: Mr. Yale-Loehr noted that the President would run into problems if he closed the entire border to green card holders and U.S. citizens: “They could argue that doing so violates their First Amendment rights to freedom of association and travel.”
  • Univision (Spanish): “Las amenazas de Trump en la frontera y el corte de la ayuda a los países centroamericanos (como castigo por no detener las oleadas de inmigrantes en busca de asilo) pueden ser ilegales y, desde luego, una tontería.”
  • Sinclair Broadcast Group, many newspapers: “Any effort to close the U.S.-Mexico border or cut off aid is doomed to failure. It is like stopping funding for cancer research on the theory that fewer cancers will occur. We need more foreign aid, not less, to attack the root conditions of poverty and violence in Central America so fewer people in those countries will flee to the United States.”
  • Law360: Mr. Yale-Loehr noted that the first version of President Trump’s travel ban raised similar concerns. If the President issued a narrower proclamation closing the border only for asylum-seekers, they could argue that this violates INA 208(a)(1), which provides that any migrant physically present in the United States or who arrives in the United States, whether or not at a designated port of arrival, can apply for asylum. Available by registering or subscribing.
  • USA Today: “We’d be shooting ourselves in the foot by closing the border. It’s like stopping funding for cancer research on the theory that we’ll get fewer cancers.”
  • Business Insider: “The legal challenges to a border declaration will depend on what President Trump does. If President Trump closed the border to green card holders and U.S. citizens, they could argue that doing so violates their First Amendment rights to freedom of association and travel.”

Mr. Yale-Loehr was quoted by WENY regarding a failed EB-5 project in upstate New York.

Mr. Yale-Loehr was quoted by Bloomberg Law regarding a 10 percent immigration surcharge proposal in the Trump administration’s budget request to Congress. It “seems minimal,” he noted, but “would have a real detrimental impact on many people who can ill afford these increased filing fees.” He said the surcharge is likely “dead on arrival,” noting that even the Trump administration thinks “that such a change will only occur with congressional approval” and “the Democrats would never agree to this.” Further, he noted, “Some employers already are balking at the high filing fees for needed employees. Adding a 10 percent surcharge will make it even more financially onerous. We may see fewer H-1B petitions being filed as a result.” Available by registering or subscribing.

Mr. Yale-Loehr was quoted by Voice of San Diego in an article about a California county’s asylum policy lawsuit. Mr. Yale-Loehr agreed that the federal government’s failure to follow rulemaking procedures was the county lawsuit’s most potent argument. “I think it’s a good lawsuit and they raise serious allegations. We’ll just have to wait to see which judge they get.”

Mr. Yale-Loehr was quoted by CNN in “Supreme Court Will Take Up Immigration-Related Case Next Term.” The case, Kansas v. Garcia, concerns Kansas’ prosecution of three immigrants for using stolen Social Security numbers for employment. The Kansas Supreme Court overturned their convictions, ruling that federal immigration law preempts a state from prosecuting undocumented immigrants when the claim is based on information culled from federal immigration forms. If the Supreme Court takes up the case and overturns the Kansas court’s decision, he noted, “all states could prosecute noncitizens for identity theft more easily. The Supreme Court largely struck down Arizona’s similar efforts in 2012. Given the change in Supreme Court members since then, it will be interesting to see how the court revisits the issue.”

Mr. Yale-Loehr was quoted by the New York Times in “Ninth Circuit Appeals Court Grants More Protections for Asylum Seekers.” In response to the court’s decision that immigration authorities can no longer swiftly remove asylum seekers who fail an initial screening, Mr. Yale-Loehr said, “This is a historic decision. But the government will surely appeal this to the Supreme Court.” The article

Mr. Yale-Loehr was quoted by CNN in “Meet the Immigrant Who Got a Second Chance from Justice Neil Gorsuch.” The article notes that Justice Gorsuch sided with the Supreme Court’s liberals in invalidating a provision of federal law that requires the mandatory removal of immigrants who have been convicted of some “crimes of violence,” agreeing that the law was unconstitutionally vague. Mr. Yale-Loehr noted that Justice Gorsuch’s vote did not necessarily make him pro-immigrant in every case, as evidenced by some of his other opinions. “But like his predecessor, Justice Scalia, he hates vague laws. This case shows that Congress needs to be more careful when it drafts immigration laws,” Mr. Yale-Loehr said.

Mr. Yale-Loehr was quoted by Bisnow South Florida in “EB-5 Fund USIF Sued for Racketeering by Representative of Chinese Investors.” The U.S. Immigration Fund bundles foreign money to be loaned to developers for U.S. based projects. The Chicago-based Chinese-American researcher who filed the suit, Xuejun Makhsous, also known as Zoe Ma, alleges that Chinese investors were led to believe that they were backing a five-year loan with a real estate development as collateral, but they were actually purchasing limited partnership interests in a fund not secured by real estate. “It’s an interesting but novel argument. It remains for the court to decide whether it has validity.” The article

Stephen Yale-Loehr was quoted by CNN in “Trump Says Alabama Woman Who Joined ISIS Should Not Return to U.S.” Mr. Yale-Loehr said Hoda Muthana’s situation was “not clear-cut. It would depend on the facts, if the State Department argues that her father’s diplomatic status was still in effect. The family argues it expired. So ultimately, it may be up to a court to sort this out.” Ms. Muthana’s family has filed a lawsuit challenging the U.S. government’s assertion that she is not a U.S. citizen, the article notes. The CNN article. The lawsuit

Mr. Yale-Loehr was quoted by Bisnow South Florida in “Inside the Wild Legal Battle Over EB-5 Fraud, Defamation and a $2.5B Times Square Project.” Mr. Yale-Loehr noted that the EB-5 program was established as a part of a bigger overhaul of legal immigration in the early 1990s, “in part because Australia and Canada had similar programs.” Noting that it was enacted as a pilot program and still needs to be reauthorized periodically, he said redeployment has become contentious as processing times for visas have grown. Contracts can be structured various ways, he said, with all the money from a group being moved together at one time or in tranches. The article

Mr. Yale-Loehr was quoted by the Cornell Daily Sun in “Tompkins County Deputy Called ICE to Report Mexican Man in U.S. Illegally, Drawing Sheriff’s Ire.” Mr. Yale-Loehr said, “I agree that it is a close call, but the county resolution explicitly states that nothing in the resolution bars a sheriff’s officer from sending a statement of a person’s immigration status to federal immigration authorities.”

https://www.abil.com/cygnus/wp-content/uploads/2021/09/ABIL_Logo-2021.png 0 0 ABIL https://www.abil.com/cygnus/wp-content/uploads/2021/09/ABIL_Logo-2021.png ABIL2019-04-15 11:04:222019-10-21 11:06:59News from the Alliance of Business Immigration Lawyers Vol. 9, No. 2 • April 15, 2019

News from the Alliance of Business Immigration Lawyers Vol. 9, No. 1 • February 15, 2019

February 15, 2019/in Global Immigration Update /by ABIL

Headlines:

1. Feature Article: ENTERTAINERS AND SHORT-TERM ENTERTAINERS: AN OVERVIEW -This article provides an overview of provisions for entertainers and short-term entertainers in Canada and Italy.

2. EUROPEAN UNION -This article provides a summary of highlights of “Brexit” and the outlook for the near future with respect to the free movement of affected workers.

3. ITALY -Italy has passed a decree on security and immigration. This article also briefly summarizes the plans for British citizens residing in Italy in the event of a Brexit no-deal.

4. TURKEY -This article discusses the process for citizenship in Turkey by real estate investment.

5. UNITED KINGDOM -This article discusses how the British government intends to treat European Union (EU) citizens, other European Economic Area (EEA) nationals, and Swiss nationals arriving in the United Kingdom (UK) after March 29, 2019, if the UK leaves the EU without a deal; the EU settlement scheme’s opening for a public test phase; plans for British citizens living in the EU in the event of a no-deal Brexit; the UK government’s plans for a single, skills-based immigration system that marks the end of free movement; and a new online system for right-to-work checks

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

7. ABIL Member / Firm News -ABIL Member / Firm News


Details:

1. Feature Article: ENTERTAINERS AND SHORT-TERM ENTERTAINERS: AN OVERVIEW

This article provides an overview of provisions for entertainers and short-term entertainers in Canada and Italy.

Canada

Canada is known as a popular destination for filmmakers and performing artists. Canada’s immigration law permits many entertainers and those working in the entertainment industry to work in Canada without a work permit or to obtain a work permit relatively easily by exempting them from obtaining a Labour Market Impact Assessment (LMIA).

Exemption from Work Permit

Section 186 of the Immigration and Refugee Protection Regulations outlines several situations in which a foreign national may work without a work permit. The ones relevant to the entertainment industry are:

  • 186(a): Film producers employed by foreign companies for commercial shoots, and essential personnel (e.g., actors, directors, technicians) entering Canada for short durations (typically no longer than two weeks) for a foreign-financed commercial (i.e., advertising) shoot (for television, magazines, or other media).
  • 186(g): A performing artist appearing alone or in a group in an artistic performance—other than a performance that is primarily for a film production or a television or radio broadcast—or as a member of the staff of such a performing artist or group who is integral to the artistic performance, if (i) they are part of a foreign production or group, or are a guest artist in a Canadian production or group, performing a time-limited engagement, and (ii) they are not in an employment relationship with the organization or business in Canada that is contracting for their services.
  • 186(m): A judge, referee, or similar official at an international cultural or artistic event.

There is also a short-term work permit exemption based on the Global Skills Strategy public policy (15 calendar days once every 6 months or 30 calendar days once every 12 months) available to those working in highly skilled occupations (National Occupational Classification (NOC) Skill Type 0 or Skill Level A). Producers, directors, choreographers, and film editors are considered NOC A occupations.

Exemption from LMIA

There are several LMIA exemptions applicable to those in the entertainment industry:

  • Exemption code C14 (Significant Benefit—Television and film production workers) targets foreign nationals in the television and film industry whose position or occupation is essential to a TV or film production. Two support letters are required: one from the production detailing the significant economic benefit to Canada of the TV or film production, and the other from the union or guild confirming that the proposed work is subject to a collective agreement and that it has no objection to the proposed work arrangement.
  • Exemption code C10 (Significant Benefit—General Guidelines) applies to any foreign national whose employment in Canada would create significant social, cultural, or economic benefit (examples include national or international awards, membership in organizations requiring excellence of its members, and general renown). Applications also must demonstrate that the foreign national’s employment will result in a neutral or positive impact on the Canadian labor market, and that the circumstances justify the issuance of a work permit in a timeframe shorter than that required to obtain an LMIA.
  • Exemption code C23 (Reciprocal Employment—Performing Arts) targets key creative personnel and talent associated with Canadian nonprofit performing arts companies and organizations in the orchestral music, opera, live theater, and dance disciplines. The employer must be a current recipient of core or composite funding from the Canada Council for the Arts or of financial support via parliamentary appropriation, such as the National Arts Centre. The application must include evidence from the applicable Canadian performing arts representative or service organization that reciprocal international opportunities exist for Canadians in the discipline. Examples of organizations include the Canadian Actors’ Equity Association, the Canadian Federation of Musicians, and the Canadian Actors’ Equity Association.
  • Exemption code C20 (Reciprocal Employment—General Guidelines) permits foreign nationals to obtain a work permit if similar reciprocal opportunities abroad exist for Canadians and if the foreign national’s employment would result in a neutral labor market impact. A Canadian performing arts organization that has a cultural exchange program with a foreign performing arts organization may be able to use this exemption code if it can show that Canadian members are currently participating in the exchange program abroad. Exact reciprocity (one Canadian member abroad for one foreign member in Canada) is not required but the general order of magnitude of exchanges should be reasonably similar on an annual basis.

All LMIA-exempt work permits require the employer to submit an Offer of Employment through the Employer Portal and pay a $230 employer compliance fee. The foreign national must pay a $155 work permit processing fee and, if not a U.S. citizen, an $85 biometrics fee.

Lastly, individuals who do not fit into either of the above categories would require a work permit based on an LMIA. While this would typically require the employer to publicly post the position for at least four weeks, there are certain situations in which the employer would be exempt from the advertising requirement, such as if the position is for a specific occupation in the entertainment sector where a worker is often hired for a very limited number of days, in a specific location, and on very short notice.

There is a $1,000 processing fee for the LMIA, which must be paid by the employer. Once issued, the foreign national must pay a $155 work permit processing fee and, if not a U.S. citizen, an $85 biometrics fee.

 

Italy

The information below summarizes the process for foreign performing artists, entertainers, and entertainment industry personnel wishing to work in Italy.

Artistic Subordinate Employment

Entry into Italy for the purpose of artistic subordinate employment is not subject to the “immigration quota” (i.e., the number of authorized entries for work reserved to foreign nationals set each year by the government) imposed each year by the Italian government and is regulated by Article 27, c.1 (l, m, n, o) of Italian immigration law. This means that subordinate work permit applications for entertainers can be applied for at any time of the year without being subject to limits. However, non-EU-national performing artists, entertainers, and entertainment industry personnel coming to Italy to perform their activities are not exempt from applying for work authorization and a related visa and permit. The following categories of artistic workers can apply for this type of work permit:

  • Circus workers and other traveling performers
  • Artistic and technical personnel for lyrical, theatrical, concert, or dance performances
  • Dancers, artists, and musicians working in established entertainment venues
  • Artistic and technical personnel for music, television, film, radio, and cultural production companies

The guidelines and requirements to apply for work permits for entertainment staff are outlined in Ministry of Labour and Social Policy circular letter n. 34 of December 13, 2006.

The work permit application is filed with a specific office within the Ministry of Labour and Social Policy. The crew/artists/staff/entertainers must be sponsored by an Italian entity/co-producer, even if they remain employees of the foreign company. In this case, the Italian entity/co-producer must be previously appointed by the foreign employer by means of a notarized “contract of agency” (Mandato di rappresentanza). It is vital that the sponsor/host entity in Italy provide evidence of compliance with fiscal and social security obligations. Artists, even if remaining hired above, must comply with the relevant social security obligations in Italy, unless otherwise established by bilateral social security agreements.

The work authorization is issued for an initial period not exceeding 12 months. An extension is possible under specific conditions. Once the work permit is issued and no later than 120 days from the date of issuance, applicants must obtain the relevant visa from the Italian consulate having jurisdiction over their place of residence abroad, then travel to Italy and apply for the residence permit within 8 days of arrival. In the case of artists/staff to be employed for no longer than 3 months, the work permit application can be filed even if the worker is already in Italy.

 

Steps of the process:

  1. Work permit application. This is filed by the Italian company sponsoring the application. The Work Permit must be applied for directly at the Ministry of Labor’s relevant office in Rome.
  2. Visa application. Once the work permit is issued, the visa application is filed by the applicant in person at the Italian consulate having jurisdiction over the applicant’s place of residence.
  3. Entry into Italy. Within 8 days of arrival visa holders must register with authorities and file the residence permit application. Residence permit (permesso di soggiorno) application is filed at the Post Office which issues (1) postal receipt – official document until the actual residence permit (permesso di soggiorno) card is issued and (2) an appointment for identification & fingerprints at Police office.
  4. Residence permit card. After fingerprints, the residence permit (permesso di soggiorno) card is processed; personal attendance is mandatory to collect the residence permit (permesso di soggiorno) card once issued.

Self-Employment

In case of entry for self-employment, a visa can be issued only to internationally well-known and highest-repute artists, artists of recognized high professional qualification, or artists who are hired by well-known Italian theaters, important public institutions, public television or well-known national private television entities (requirements set in Visa Decree May 11, 2011, n.850). This type of visa is subject to the “quota” limits.

Short-term visas (maximum 90 days) for artistic self-employment are issued outside the quota limits.

To be eligible for obtaining a self-employment visa as an internationally well-known and highest-repute artist, the applicant must:

  • Be an Internationally well-known and highest-repute artist or be an artist of recognized high professional qualification or be an artist hired by well-known Italian theaters, important public institutions, public television (RAI), or well-known national private television entities
  • Have self-employment contract(s) in place with an Italian impresario, company, institution, etc., with a compensation well above the minimum set forth for workers employed in the same sector in Italy
  • Not become an employee in Italy but work as a freelancer/self-employed
  • Obtain a clearance from the Italian Immigration Police
  • Have a suitable accommodation in Italy
  • Be covered by private health insurance

Steps of the process:

  1. Obtain relevant supporting documents (e.g., self-employment contract, labor authority declaration) and submit them to obtain a police clearance from the relevant police office in Italy
  2. Within three months from the date of issuance of supporting documents and the police clearance, file the visa application at the Italian consulate of reference
  3. With the work visa, the applicant travels to Italy. Within eight days he or she must apply for a residence permit (permesso di soggiorno)
  4. The residence permit (permesso di soggiorno) application is filed at the Post Office, which issues: (1) a postal receipt—an official document until the actual residence permit (permesso di soggiorno) card is issued; and (2) an appointment for identification and fingerprints at the police office. After fingerprints, the residence permit (permesso di soggiorno) card is processed; personal attendance is mandatory to collect this card once issued.

Back to Top


2. EUROPEAN UNION

This article provides a summary of highlights of “Brexit” and the outlook for the near future with respect to the free movement of affected workers.

It has now been over two and a half years since the United Kingdom (UK) resolved in a referendum held on June 23, 2016, by a slim majority (51.9% to 48.1%), to leave the European Union (EU). Following submission of the written Withdrawal Declaration to the European Council on March 29, 2017, effective after two years, negotiations on the terms and conditions of the withdrawal were initiated with some delay. An initial breakthrough in the negotiations was achieved about a year ago, and the first draft of the UK-EU Withdrawal Agreement was presented in the spring. The debate nevertheless continued to be highly controversial. Finally, in November 2018, despite all the adversity, a decisive breakthrough was achieved. On November 14, 2018, the EU and the UK reached an agreement on the revised version of the Withdrawal Agreement, which includes a transitional arrangement until December 31, 2020, which may be extended once by mutual agreement for a period that has not been specified.

However, this arrangement can only enter into force once it has been ratified by both the UK and the EU. Unless the Council agrees otherwise with the withdrawing Member State, Article 50, para. 3, TEU, states that European contracts will no longer apply after two years from the date of the formal application, i.e., after March 28, 2019, unless all Member States mutually agree on an extension. This is commonly referred to as “hard BREXIT” or “no deal” and would be accompanied by significant trade barriers between the UK and mainland Europe, with huge economic ramifications.

All of this is reason enough to take a closer look at the effects of the withdrawal from a residency law perspective and to appraise the (probable) future legal situation.

What is the law now and what will it be in the future? “The deal”

With regard to the freedom of movement (for workers), it is first necessary to bear in mind the regulations that will continue to apply until at least March 29, 2019, under the current legal situation and what would (probably) change in the future under the Withdrawal Agreement.

Legal Situation Before the Withdrawal

UK citizens continue to be (even after the Withdrawal Declaration on March 29, 2017) EU citizens or, more precisely, citizens of the Union. Article 17 of the Treaty on the Functioning of the European Union (TFEU) states that any person who is a citizen of a Member State is also a citizen of the Union. This is the situation until two years after the declaration of withdrawal, i.e., until March 28, 2019. At present, this means that the privileges granted to UK citizens with regard to the right to free movement and residence (for workers) continue to apply. This includes the right of workers:

  • To apply for jobs offered on the market
  • To move unrestrictedly within the territory of the Member States for that purpose
  • To reside in a Member State in order to pursue employment there in accordance with the laws, regulations, and administrative provisions applicable to employees in that State
  • To remain within the territory of a Member State after having been employed there under conditions laid down by the Commission by means of regulations

However, these privileges with regard to the right to free movement and residence of workers will continue to apply without restriction for a period of two years (subject to a mutually agreed extension of this period) after the UK submitted its declaration of withdrawal.

Anticipated Legal Situation After the Withdrawal

The Withdrawal Agreement includes transition provisions (“Implementation Period”) until December 31, 2020, to mitigate the effects of the withdrawal on Union citizens and British citizens and contains the following detailed regulations:

Free Movement of Workers

EU citizens residing legally, temporarily, or permanently in the UK at the time of the EU withdrawal may continue to live, work (or become unemployed with no fault of their own, self-employed, study or seek employment within the meaning of Article 7(3) of the Free Movement Directive), or study in the UK. The same applies to British citizens who live in an EU member state.

Persons living temporarily or permanently in the United Kingdom at the time of the withdrawal or the date of the Withdrawal Agreement may also remain in the country. The same applies analogously to British citizens who are legally residing in an EU member state, including persons living with them in non-marital relationships. EU negotiators rejected a request by negotiators from the United Kingdom that a regulation be provided for with regard to British citizens who move to an EU member state after the date of record, stating that they had no mandate to provide for such regulation and that such matters would be provided for in a later agreement.

EU and UK citizens must be legal residents in the host Member State at the end of the transitional period in accordance with EU law on the free movement of persons. However, the Withdrawal Agreement does not require a personal presence in the host country at the end of the transitional period—temporary absences do not affect the right of residence, and longer absences that do not restrict the right of permanent residence are permitted.

According to the Withdrawal Agreement, the above rights will not expire after the transitional period. This means that Union citizens retain their right of residence essentially under the same substantive conditions as under the EU right of free movement, but must apply to the UK authorities for a new UK residence status. After five years of legal residence in the UK, the UK residence status will be upgraded to a permanent status with more rights and enhanced protection.

The same applies to British citizens who continue to legally reside in an EU Member State after a period of five years.

Family Members

EU citizens who are already legal residents in the UK either temporarily or permanently, at the time of the country’s withdrawal from the EU, have a right to family unification, including with family members who do not live with them yet. In addition to spouses (or persons with equivalent status), this also concerns parents and children (including children born after the date of record). The applicable regulations under national law will apply to any other family members.

Social Security

EU citizens who are already living in the United Kingdom at the time of the country’s withdrawal from the EU, as well as British citizens who live in an EU Member State, will retain their entitlements from health and pension insurance plans, as well as other social security benefits, or these entitlements are mutually taken into account.

Administrative Procedures

The United Kingdom promises its resident EU citizens a special residential status that secures their rights and can be applied for easily and at a low cost. EU citizens living permanently or temporarily in the United Kingdom can have their status clarified by the responsible administrative authorities until two years after the date of record. Decisions are to be made exclusively on the basis of the Withdrawal Agreement, without any further discretionary powers. The procedure is proposed to be quick, simple, convenient, and free of charge.

Case Law

Under the Withdrawal Agreement, the European Court of Justice (ECJ) retains jurisdiction for pending cases and questions referred by British courts until the end of the transitional period. EU citizens can only litigate their rights before British courts; these courts, however, will give consideration to the case law of the ECJ for a transitional period of eight years after the expiration of the transitional period, and may also continue to submit questions to the ECJ.

Right to Permanent Residency

The right of EU citizens to permanent residency after they have been in the UK for five years will be retained, with regulations under European law continuing to be authoritative for the eligibility requirements. Time spent in the country before the withdrawal will be taken into account, and periods of temporary absence (of up to six months within a period of 12 months) from the United Kingdom for important reasons will not count toward this period. EU citizens living outside of the UK will only lose their right of permanent residency after a period of five years. Existing permanent residency permits are proposed to be converted free of charge, subject to an identity check, a criminal background and security check, and the assurance and confirmation of ongoing residency.

The State of Play

The road to the possible conclusion and entry into force of the Withdrawal Agreement remained rocky as of January. To make things worse, all of this played out in a political minefield. Once the EU adopted the Withdrawal Agreement, it was the UK’s turn. The Parliament’s decision on the adoption of the Withdrawal Agreement was initially scheduled for December 11, 2018. In the meantime, however, British Prime Minister Theresa May held a crisis meeting and announced that she was postponing the vote until an unspecified later point in time. This was probably because recent surveys indicated that the Withdrawal Agreement would fail to attract a majority. The British Parliament ultimately rejected Prime Minister May’s Brexit deal on January 15, 2019.

The EU reiterated that the bloc would not be available for renegotiations on the Withdrawal Agreement. In the meantime, Ms. May held talks with German Chancellor Angela Merkel in Berlin and with leaders of other EU member states in Amsterdam, Holland, and Brussels, Belgium. So far, these talks were without success. It was more than symbolic that Ms. May was unable to disembark upon arrival in Berlin due to a technical defect that prevented her car’s door from being opened. The times in which a “handbag” moment (this refers to former UK Prime Minister Margaret Thatcher, who “forced” a decision in a brash appearance in Brussels) is enough to persuade the EU to give in seem to be over. There was unanimous consent on the EU side that renegotiations were categorically excluded. The political pressure on Ms. May’s shoulders remains as heavy as it could possibly be despite having survived the vote of no confidence on December 12, 2018.

A further possible way out of this dilemma that has been suggested by the ECJ did not come as a surprise, given the opinion of the Advocate General published recently. In its judgment handed down on December 10, 2018, the ECJ, on the basis of a referral made at the request of Scotland’s highest civil court in the matter of Wightman et al. vs. Secretary of State for Exiting the European Union (C-621/18), ruled that it is possible under certain conditions for the UK to unilaterally revoke the Withdrawal Declaration issued to the EU on March 29, 2017. It would be possible for as long as there is no binding withdrawal agreement and the period of two years stipulated in Article 50(3) TFEU has not expired, for as long as the revocation is made by a unilateral, unequivocal, and unconditional written declaration to the European Council after the concerned Member State has enacted the revocation decision in accordance with its constitutional requirements. Irrespective of this fundamental possibility established in this judgment, it is questionable whether this would happen before March 29, 2019, as the decision to issue such a revocation would also be subject to a majority in the British Parliament and, in all likelihood, could not ever be validly declared without the consent of the majority of Parliament.

Given all of these circumstances, both sides (but more on the UK side than on the EU side) continue to find themselves under massive pressure. Any extension of the two-year negotiation window, which would only be possible by mutual agreement, seems highly unlikely and would always entail the risk of a Member State “throwing a wrench into things” or demanding significant concessions in other areas before agreeing to such an extension. In this context, the possibility of a unilateral revocation of the Withdrawal Declaration could gain significance.

Assessment—”The Complete Mess”

The current situation seems hopeless from the point of view of the UK. The negotiating partners at the EU are not willing to make any further concessions. The alternative of withdrawing from the EU without a transitional arrangement appears to entail unpredictable economic disadvantages for the UK. On the other hand, the outcome of a second referendum, once again conceivable after the ECJ ruling on the possibility of unilaterally revoking the Withdrawal Declaration, is not as clear-cut as may be suggested in some newspapers. Calling all of this a “complete mess” would probably be a fair assessment.

The history of the EU tells us that the negotiations likely will eventually come to an end with a compromise that is bearable for both sides, even though we cannot predict the details. There might even be a chance that the United Kingdom will in the end remain in the EU. Stay tuned.

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3. ITALY

Italy has passed a decree on security and immigration. This article also briefly summarizes the plans for British citizens residing in Italy in the event of a Brexit no-deal.

Security and Immigration Decree Passed

The Security and Immigration decree (“Salvini decree”) has been converted into law, confirming the amendments to Immigration and Citizenship law already in force since the publication of Law decree October 4, 2018, n. 113. With the conversion into law, the Parliament has also introduced further amendments to the initial version of the Law Decree.

In particular, the main changes to Law no. 91/1992, citizenship law, are as follows:

  • A new requirement for citizenship by marriage and naturalization applicants. It will be necessary to prove “adequate” knowledge of Italian language (at least level B1 of Common European Framework of Reference for Languages [CEFRL]). Those who have an EU long-term residence permit and those who comply with the Integration Agreement provisions are exempted from this requirement.
  • An increase in processing time for citizenship by marriage and naturalization applications (from 24 to 48 months). This also applies to applications already in process.
  • Citizenship applications by marriage can now be rejected even after 48 months (maximum processing time) from submission. Previously, it was not possible to reject a citizenship application by marriage after the maximum processing time.
  • An increase in the application fee for marriage, naturalization, and reacquisition from €200 to €250.
  • Citizenship acquired by marriage and naturalization can now be revoked in case of a final conviction for terrorism-related offenses and offenses related to public security.
  • Processing time for issuing civil status certificates (e.g., birth, marriage) requested for the purpose of filing a citizenship application is 6 months.

Regarding the changes to the Immigration Act, one of the most important amendments is the abolishment of permits for humanitarian reasons (previously granted to those who were not eligible to obtain refugee or subsidiary protection status). Instead, certain categories of applicants (e.g., victims of exploitation and domestic violence, people from countries hit by natural disasters, people in need of medical care) will be issued “special reasons” permits.

Plans for British Citizens Residing in Italy in the Event of a Brexit No-Deal

The Italian government is working on legislation that will be in place by March 29, 2019—the official Brexit date—in the event that no deal is reached. British citizens regularly residing in Italy will remain legal residents of the country also in this circumstance.

The legislative measures that will enter into force in case of a no-deal Brexit will ensure that British citizens residing in Italy as of March 29, 2019—that is to say, registered as a resident with their local registry office (anagrafe) at their town hall (comune) —will be granted enough time to apply for long-term resident status under EU Directive 2003/109/EC. In this way, British nationals will continue to enjoy rights such as access to healthcare, social benefits, employment, education, and family reunification.

British citizens living and working in Italy are advised to register with their town hall before March 29, 2019.

For more on Italy’s plans with respect to British citizens, see “Italy” below in the article under “United Kingdom.”

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4. TURKEY

This article discusses the process for citizenship in Turkey by real estate investment.

Immigration investment programs have become very popular as a source of foreign investment in real estate in countries such as Canada, Greece, Grenada, and Moldova. Some programs focus on investment for residency purposes (e.g., Portugal, Greece) and others for citizenship (e.g., several Caribbean nations, Cyprus). Turkey’s investment immigration program focuses on citizenship and may particularly attract those citizens from emerging economies looking for a passport that allows them to travel more easily than their current passport. As of 2018, Turkish nationals enjoy visa-free or visa-on-arrival status in more than 100 countries or territories, including Singapore, Japan, Ukraine, Brazil, Korea, Mexico, and many countries in Africa, the Caribbean, and Latin America. Turkey’s program may also be popular with Arab nationals who were already investing significantly in Turkish real estate over the last several years.

Turkey’s citizenship regulations as of January 2017 allow investors to pursue Turkish citizenship through several categories, including capital investments, government debt instruments, investing in a business that employs 50 Turkish nationals, and venture capital investments. In September 2018, the threshold amounts were significantly lowered. With regard to real estate, investments of US $250,000 now qualify. Clearly, investment in real estate in Turkey has sparked interest internationally as the threshold amount is lower than that of many other investment citizenship programs.

For a real estate investment of US $250,000 to qualify, several restrictions apply. First, the purchase must have occurred after the change in the regulations (see specifics below). Additionally the property must not be sold by the applicant for at least three years. Note the following additional restrictions for real estate investments:

  • If the real estate is subject to a mortgage, the remaining part shall be taken into consideration by deducting the mortgage fee in determining the value.
  • The value in the official deed cannot be lower than the amount listed in the valuation report.
  • The applicant must show official receipts (by bank) showing the transfer of sales fee.
  • The real estate must be registered in the name of the applicant (foreign real person, may include spouse or minor children).
  • The real estate must not have been purchased by the applicant before December 1, 2017. If before September 18, 2018, the old regulations and thresholds apply.

The process of citizenship-by-investment is governed by the Foreign Investor Citizenship Application Special Joint Office (FICO). FICO is a new government agency under the Ministry of Interior that joins representatives from the Populations Registry Directorate, Migration Directorate, and Land Registry/Cadastre Directorate. FICO is currently set up in Istanbul and Ankara and will be rolled out in other locations across Turkey soon. FICO offices are set up to have desks with representatives of each of the Directorates to facilitate processing of cases from start to finish.

Citizenship by investment is a five-step process: (1) obtaining a Valuation Report; (2) issuance of a Certificate of Compliance; (3) filing a Residence Permit application; (4) filing an address registration; and (5) filing a citizenship application. Note that those foreigners who already lawfully reside in Turkey may have already completed steps 3 and 4.

Step 1: Valuation Report

Applicants must first have the real property intended to meet the citizenship application threshold be officially assessed for fair market value. This can only be done by a valuation firm authorized by the Capital Markets Board. A list of authorized firms is available here.

The valuation report can be issued before or after the acquisition of the real estate. It is sufficient to request a report with a copy of the deed, as the original or notarized deed is not needed. The valuation firm will need the consent of the property owner in order to study the property (site review) for a valuation report.

Step 2: Certificate of Compliance

Once the valuation report is complete, assuming it meets the regulatory financial thresholds, the applicant must then seek a Certificate of Compliance (CoC) from the Foreign Services Department of Land Registry and Cadastre Directorate (Foreign Cadastre). The Valuation Report, Title Deed, and proof of fund transfer to the seller are presented by the applicant to the Land Registry office that has jurisdiction over the location of the property purchased. The Land Registry office scans the documents in the packet and transfers them to the TAKB?S (Land Registry and Cadastre Information System) via EBYS (Electronic Document Management System). The Foreign Cadastre then issues a CoC to the applicant if all criteria are met. Processing time is approximately one week to receive approval electronically.

Step 3: Application for Residence Permit

Once the applicant is issued a CoC from the Foreign Registry, they may apply for a special Residence Permit for themselves and their legal dependents. Normally the Migration Directorate (MD) requires several steps to book appointments for filing residence permits. However, FICO’s Migration Directorate desk will allow qualified applicants and their dependents to streamline this process. The MD requires most of the documents typical for a tourist residence permit, but for this special investor residence permit, the MD additionally requires a copy of the CoC.

Qualified applicants are issued special category residence permits valid for one year. Note that this category of residence card does not permit the applicant to work in Turkey.

Step 4: Address Registration

Upon delivery of the residence card, the applicant must also complete an address registration at the Populations Registry desk at FICO. This is a procedure in which applicants officially register their place of residence in Turkey. The original title deed must be provided to complete the address registration process of the applicant and his or her dependents. Applicants will then be issued written confirmation of the registration of their residential address.

Step 5: Application for Turkish Citizenship

Once the applicant and his or her dependents have been issued residence permits and obtained their address registration documents, they may move on to the final step: filing citizenship applications. Aside from the standard citizenship application documents, investment applicants must additionally present the CoC and title deed to the property.

The Populations Registry desk at FICO sends the citizenship application file to the General Directorate of Population and Citizenship Affairs. The Directorate then conducts a background check and research (particularly related to national security and public order considerations). An interview is not necessarily required if applicants were interviewed previously for their residence permit applications.

A commission has been established within the Ministry of the Interior to monitor the progress of investment citizenship applications. In the event that an applicant clears background checks, the Ministry of Interior forwards the application to the Office of the Presidency. The citizenship application is then granted upon the decision of the President. Following a grant, the Ministry of Interior returns the approved application to the General Directorate of Population and Citizenship Affairs for final processing. Applicants are then invited to the Population Directorate to be issued their Turkish ID cards and apply for passports.

This article is not intended as specific legal advice and each investment application should be reviewed by an attorney. Contact your Alliance of Business Immigration Lawyers (ABIL) attorney for advice in specific situations.

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5. UNITED KINGDOM

This article discusses how the British government intends to treat European Union (EU) citizens, other European Economic Area (EEA) nationals, and Swiss nationals arriving in the United Kingdom (UK) after March 29, 2019, if the UK leaves the EU without a deal; the EU settlement scheme’s opening for a public test phase; plans for British citizens living in the EU in the event of a no-deal Brexit; the UK government’s plans for a single, skills-based immigration system that marks the end of free movement; and a new online system for right-to-work checks.

How New Arrivals Will Be Treated If UK Leaves EU With No Deal

The British government has outlined how it intends to treat EU citizens, other EEA nationals, and Swiss nationals arriving in the UK after March 29, 2019, if the UK leaves the EU without a deal.

According to an announcement and a policy paper published on January 28, 2019, if that happens, the following arrangements will be put in place:

  • Free movement will end immediately.
  • The UK will operate a transition period for EEA nationals arriving in the UK between March 30, 2019, and December 31, 2020.
  • During the transition period, EEA nationals will be able to enter the UK upon production of a valid EEA passport or identity card. If they have a biometric passport, they will be able to use e-gates as they do now. On arrival, they will automatically be granted leave to enter for three months with permission to work and study.
  • EEA nationals who want to stay for longer than three months will need to apply for a new status called European Temporary Leave to Remain. There will be a fee for this. Subject to criminality and security checks, they will be granted leave to remain for 36 months with permission to work and study. This status cannot be extended. EEA nationals who want to stay beyond 36 months will need to apply under whatever immigration system will be introduced as of January 1, 2021. Some of these people may not qualify under the future immigration system, in which case they will need to leave the UK at the end of the 36 months.
  • EEA nationals arriving on or after March 30, 2019, will be able to bring non-EEA nationals who are their “close family members,” meaning a spouse or partner and dependent children under 18. Those family members will need to apply in advance for a “family permit.”
  • During the transition period, employers carrying out right-to-work checks will not have to distinguish between EEA nationals who arrived on or before March 29, 2019, and those who arrived afterwards. A valid EEA passport or identity card will be enough to satisfy a right-to-work check.

These proposed arrangements will not apply to Irish citizens. They will continue to be free to live and work in the UK without restriction.

The arrangements will also not apply to EEA nationals who arrive in the UK by March 29, 2019. They will be eligible to apply for permission to stay under the EU Settlement Scheme (more about this below). Any EEA national planning to move to the UK in the next few months would be wise to arrive on or before March 29, 2019, if possible so they can be sure of qualifying for the EU Settlement Scheme. They should keep their travel ticket as evidence of when they arrived.

The UK announcement

The UK policy paper

EU Settlement Scheme Open for Public Test Phase

The EU Settlement Scheme opened for a public test phase on January 21, 2019. EU citizens living in the UK will need to apply under the EU Settlement Scheme if they want to stay in the UK after the planned Brexit transition period ends on December 31, 2020. The scheme is intended to implement the rules on citizens’ rights set out in the draft UK-EU withdrawal agreement—and in some ways it is more generous than those rules. The British government has said in a policy paper published in December 2018 that it will still go ahead with the scheme if the UK leaves the EU on March 29, 2019. with no deal.

The following are questions and answers on the EU Settlement Scheme:

What is the deadline for applying for the EU Settlement Scheme?

The deadline for applying is June 30, 2021, if the UK leaves under a version of the current draft withdrawal agreement, or December 31, 2020, if the UK leaves with no deal.

Until December 31, 2020, EU citizens will be able to rely on an EU passport or identity card as evidence of their right to live and work in the UK. After that, they will need to have either pre-settled or settled status granted under the EU Settlement Scheme.

Who can apply for the EU Settlement Scheme?

The following people can apply during the public test phase:

  • Resident EU citizens with a valid EU passport
  • Their non-EU citizen family members with a biometric residence card

Other European Economic Area (EEA) nationals (nationals of Norway, Iceland, Liechtenstein, and Switzerland) cannot apply during the public test phase. They must wait for the EU Settlement Scheme to become fully open in March 2019.

How do you apply for the EU Settlement Scheme?

To take part in the test phase, you need access to an Android phone (not iPhone) with NFC (Near-Field Communication) contactless technology.

Download the EU Exit: ID Document Check app and use it to scan your passport and your face. After using the app, complete an online application. You will need to enter your National Insurance number, answer some basic questions, and pay the application fee by credit card.

How much does it cost to apply to the EU Settlement Scheme?

The application costs £65 for an adult and £32.50 for a child. It is free for people who already have a permanent residence document. UK Prime Minister Theresa May has announced that these fees will be scrapped when the scheme is fully open on March 30, 2019, and that anyone who applies during the test phase will have their fees reimbursed.

What happens after you apply to the EU Settlement Scheme?

The Home Office will carry out automated checks with HMRC (Revenue & Customs) and DWP (Department for Work and Pensions) on your tax and benefits records, and a criminal record check.

If the automated checks indicate that you have been living in the UK for a continuous five-year period and you do not have a serious criminal record, you will be granted settled status. Settled status is a type of indefinite leave to remain and will allow you to live in the UK permanently.

If the checks indicate that you have been living in the UK for less than five years, you will be offered pre-settled status. Pre-settled status is a five-year temporary status. You will be able to convert pre-settled status into settled status after completing five years’ continuous residence in the UK.

If you are offered pre-settled status but in fact you have lived in the UK for a continuous five-year period, you can upload copies of documents showing this. The Home Office has published a list of the documents it accepts as evidence of residence. You do not have to rely on the last five years. You can rely on any five-year period as long as you have not been absent from the UK for more than five years since the end of the five-year period.

You will not receive a document confirming your status. Instead you will be able to use an online service to view your status and to share the details with other people, such as employers and landlords.

Do you have to apply now for the EU Settlement Scheme?

You do not have to apply now. Assuming the UK does actually leave the EU, you will need to apply by June 30, 2021 (or December 31, 2020, if there is no deal). But in the current climate, many people will want to apply sooner rather than later.

Plans for British Citizens Living in the European Union in the Event of a No-Deal Brexit

A number of EU countries have started to publish their plans for the treatment of British citizens in the event of a no-deal scenario after the United Kingdom (UK) leaves the European Union (EU) on March 29, 2019.

British citizens will immediately lose their free movement rights across the EU if there is no deal, but these plans mean that British citizens already living in an EU Member State will at least be allowed to continue living and working in that country.

In summary, the proposals are as follows:

Czech Republic. On January 7, 2019, the Czech government adopted a draft law protecting the position of British citizens in the Czech Republic in the event of no deal. They will be given until December 31, 2020, to apply for a certificate of temporary stay in the Czech Republic, provided the UK takes a similar approach toward Czech citizens living in the UK. The British government has already indicated in a policy paper published on December 6, 2018, that it will take such an approach toward all EU citizens living in the UK.

More information on the Czech draft law

The UK government’s policy paper

France. France is due to enact a project de loi (enabling legislation) that will allow the government to pass regulations allowing British citizens who are legally resident in France on or before March 29, 2019, to continue living and working in France. In the meantime, British citizens living in France are strongly advised to apply for a carte de séjour as soon as possible, by March 29, 2019, at the latest.

France’s project de loi

Germany. According to the Berlin local government website, if there is a no-deal Brexit, British citizens will be given a three-month grace period to apply for a German residence permit. Their application must be submitted at their local Foreigners Registration Office by June 30, 2019. In the meantime, and while the application is being processed, they can continue to live and work in Germany.

The main concern will be for those who wish to naturalize as German citizens. British citizens who acquire German citizenship on or before March 29, 2019, will be able to keep their British citizenship. However, if they become German after that date, they must renounce their British citizenship because Germany does not allow dual citizenship with a non-EU country.

The Berlin local government’s website

More information on these issues

Italy. Italy was the first EU27 country to announce its plans, with the Italian government confirming on December 21, 2018, that it would introduce legislation allowing British citizens resident in Italy on March 29, 2019, to remain and maintain their existing rights to work in the event of no deal being reached. The intention is to create a path for all British citizens living in Italy to request long-term resident status under EU Directive 2003/109.

British citizens living in Italy are strongly advised to register with their town halls before March 29, 2019, to ensure they are legally resident.

More information on Italy’s plans

See also the article under “Italy” in this issue, above.

Netherlands. The Dutch government announced on January 7, 2019, that British citizens legally residing in the Netherlands on March 29, 2019, can continue doing so after Brexit in a no-deal scenario.

There will be a national transition period from March 29, 2019, to July 1, 2020, during which British citizens will retain their right to reside, work, and study in the Netherlands. This also applies to non-EU family members of British citizens.

The Dutch Immigration and Naturalisation Service has sent letters to British citizens who are registered with their municipality inviting them to apply for temporary residence permits before March 29, 2019. They will then receive a further letter inviting them to apply for a new national residence permit after the transitional period. This can be obtained if the British citizen meets the same residence conditions that apply to EU citizens, and will allow British citizens the right to work and study in the Netherlands.

The Dutch government’s announcement

Poland. The Polish government has announced that if there is a no-deal Brexit, it will introduce a 12-month grace period starting on March 30, 2019, for British citizens living in Poland on or before March 29, 2019. British citizens who have lived in Poland for five years will be able to apply for a permanent residence permit. Those who have lived in Poland for less than five years will be able to apply for a temporary permit.

The Polish government’s announcement

Sweden. According to reports, the Swedish government is proposing a 12-month grace period for British citizens to give them time to apply for permission to stay in the country if the UK leaves the EU without a deal.

For one such report, see Reuters

Switzerland. Switzerland is not in the EU, but Swiss nationals have free movement rights in the EU, including in the UK, and British citizens have similar rights in Switzerland. The UK and Switzerland have reached an agreement that protects the rights of Swiss nationals living in the UK and British citizens living in Switzerland. In a no-deal scenario, British citizens lawfully residing in Switzerland on March 29, 2019, will be able to continue exercising the same rights as they currently have, including rights of residence, access to healthcare, education, pensions, and social security coordination.

The agreement between the UK and Switzerland

Other Member States. We do not know yet how other EU Member States intend to treat British citizens living in their territory if there is a no-deal Brexit. More British citizens live in Spain than anywhere else in the EU. Many have applied for Spanish citizenship, but there is a big backlog, and so far there is no sign of a no-deal Brexit plan for them.

What should employers and their UK staff working in the EU be doing to prepare for a no-deal Brexit?

Employers should ensure that any British citizens living and working in the EU are aware of the relevant local immigration provisions and deadlines or grace periods so they can prepare the necessary documents for them and their families in the event that an application for residence or other paperwork needs to be filed.

British citizens who have lived in other EU countries for five years or more should consider applying for confirmation of their acquisition of permanent residence, which they are entitled to do under the Citizens Directive.

While many EU countries already require British citizens to register their residence, where this is not a legal requirement, it is advisable that this be done before March 29, 2019.

UK Government’s Plans for a New Single, Skills-Based Immigration System

On December 19, 2018, the UK Home Secretary, Sajid Javid, published a White Paper setting out the government’s plans for a new single, skills-based immigration system that marks the end of free movement.

This is the culmination of over two years of Brexit planning, starting with the Brexit vote in June 2016 to leave the EU. Promises to release this White Paper have come and gone throughout this period, but at long last we have the blueprint for what will be the new UK immigration system once the transition period comes to an end in December 2020. This will represent the biggest shake-up in immigration since the introduction of the Points-Based System (PBS) in 2008. The change is precipitated by the need to bring EU nationals within the UK immigration rules. Of course 2020 is some way off, and until then, there are likely to be changes, particularly with regard to the controversial proposed £30,000 salary cap.

The main provisions largely follow the recommendations of the Migration Advisory Committee published in September 2018.

Main Provisions

The new immigration system will introduce a new route for skilled workers that will apply to all nationalities equally, will not favor one nationality over another, and purports to treat all nationalities equally. Is this possible?

At present, the proposed salary cap for skilled workers is £30,000, but due to the likely impact of this new system on a number of sectors employing EU nationals earning significantly less, it will be subject to a public consultation. Skilled workers under the current Tier 2 Scheme need to be skilled to RQF 6 (degree level); however, it is proposed that this will now include those skilled to at least RQF 3 (A level standard).

It is also proposed that the annual cap on the number of Tier 2 General Restricted work visas issued will be removed. The cap has remained at 20,700 for the last few years. The Tier 2 cap has been particularly controversial because it caused significant recruitment issues for UK businesses when the cap was reached between December 2017 and July 2018, thus preventing employers from sponsoring the migrants they needed. Due to the problems with the cap being hit, the Home Secretary removed doctors and nurses from the quota.

One of the changes is that the Resident Labour Market Test (RLMT), the requirement for employers to test the market, will be removed, which many practitioners have campaigned for. This along with the removal of the Tier 2 cap will be very welcome by businesses as the requirements were very time-consuming and made the recruitment process stressful and often contrived.

There will also be a new route for workers at any skill level for a temporary period. The 12-month visa will provide access to the labor market but no access to benefits. This is an odd statement as migrant workers were never entitled to access benefits, so it is clearly aimed at European nationals. People arriving via this route will not be able to bring family members with them, will not accrue rights to settle in the UK, and will have a 12-month cooling-off period once their visa expires. These proposals will be subject to a consultation with businesses and other stakeholders as part of a planned extensive engagement program.

The Youth Mobility Scheme (YMS) allowing people aged 18 to 30 to come to the UK for two years for work or study will be expanded to encompass a UK-EU YMS scheme. This may go some way toward addressing the concerns surrounding a salary cap of £30,000, if significant numbers of EU nationals are able to come to the UK to take up lower-skilled work under this Scheme.

The White Paper proposals will also ensure that there is no limit on the number of bona fide international students who can come to the UK to study. Proposals extend the time they can stay post-study to find employment to six months for those who have completed a bachelor’s or master’s degree and 12 months for those who have completed a PhD.

The White Paper also proposes:

  • Creating a single, consistent approach to criminality by aligning EU and non-EU criminality thresholds
  • Ending the use of national ID cards as a form of travel documentation for EU citizens as soon as is practicable
  • Introducing an Electronic Travel Authorisation (ETA) scheme to allow vital information to be collected at an earlier stage before visitors who do not require a visa travel
  • Allowing citizens from Australia, Canada, Japan, New Zealand, the United States, Singapore, and South Korea to use e-gates to pass through the border on arrival, alongside EU and UK citizens

The Immigration and Social Security Coordination (EU Withdrawal) Bill published in December 2018 ends free movement and creates the legal framework for the future borders and immigration system. It also creates the legal framework for a future, single benefits system that will apply to both EU and non-EU nationals and maintains the Common Travel Area between the UK and Ireland.

The new immigration and borders system will be implemented in a phased approach beginning in 2021, following an extensive 12-month program of engagement with businesses, stakeholders, and the public by the Home Office.

For Sponsors of Tier 2 migrants, the White Paper is a mixed blessing. Certainly the removal of the notorious Tier 2 cap and the time-consuming RLMT will be welcome. However, for those employers who have hitherto hired a high percentage of EU nationals in the past and perhaps do not currently have a Tier 2 Sponsor Licence, the changes will be significant. At present it is relatively straightforward to hire EU nationals as no work visa requirements apply. With the proposed changes, the administrative burden and costs of having to apply for a Sponsor Licence and then comply with Tier 2 Sponsor obligations will be onerous. The changes are likely to have a particularly significant negative impact on smaller and medium-sized businesses, due to the increased costs and administrative burdens associated with having to apply for work visas.

The proposed consultation and stakeholder engagement with respect to some items within the White Paper is welcome.

The White Paper

New Online System for Right-to-Work Checks

Immigration Minister Caroline Nokes announced that starting on January 28, 2019, employers can rely on an online Right to Work Checking Service to demonstrate compliance with work authorization requirements. Although the information at this link currently states that employers will also be required to conduct a right-to-work check in person, this will not be necessary effective January 28, 2019, when the new online Right to Work Checking service goes live.

The checking service

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6. 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
    • New Data Show Increase in H-1B Denials and RFEs
    • ABIL Urges Administration to Change “Buy American and Hire American” Executive Order
    • ABIL Member Kuck Baxter Immigration Commercial Nominated for an Emmy
    • ABIL Members Note Immigration Threats for Employers in 2018
  • ABIL is available on Twitter: @ABILImmigration.
  • Recent ABIL member blogs are at http://www.abilblog.com/.

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7. ABIL Member / Firm News

Robert Aronson and Debra Schneider, of Fredrikson & Byron, P.A., have co-authored “A Bridge Over Troubled Waters: The High-Skilled Worker Rule and Its Impact on Employment-Based Immigration,” published in 44 Mitchell Hamline L. Rev. 935-969 (2018) and available here.

A Forbes article quotes Dagmar Butte, Vic Goel, and William Stock. The article discusses how the combination of denials, long wait times, and suspension of premium processing is making it more difficult for H-1B professionals to change jobs. It concludes that the administration’s policies have made employers, H-1B professionals, and U.S. workers all worse off. The article: “U.S. Policies Harming Labor Mobility of H-1B Professionals.”

Charles Foster and John Meyer, chairman and partner, respectively, at Foster LLP, attended the EB-5 & Uglobal Immigration Expo hosted by EB-5 Investors Magazine on February 11, 2019, in Dubai, United Arab Emirates. Mr. Foster presented an overview of the EB-5 Immigrant Investor Program and its latest developments to representatives of leading EB-5 regional centers, migration agencies, and potential investors. More information

Mr. Foster delivered the keynote address at the immigration seminar, “Struggling With Your Immigration Status: Is Canada a Solution?,” hosted by The Aga Khan Economic Planning Board and Indo-American Chamber of Commerce of Greater Houston on December 15, 2018, in Houston, Texas. Mr. Foster spoke about the EB-5 Investment Program as a possible alternative to the H-1B visa backlog. More information on this event

Mr. Meyer was a guest speaker for “Investing and Doing Business in Texas,” an event hosted by Invierta en USA on January 30, 2019, in Mexico City, Mexico. Mr. Meyer spoke about the EB-5 Immigration Investor Program concerning how to obtain business and investment visas to immigrate to the United States. The audience included Mexican entrepreneurs who want to invest in, establish, and expand businesses in Texas. More information

Anu Nair, of Klasko Immigration Law Partners, LLP, served as a panelist for “U.S. Immigration and IRS Update,” a Business After Hours event sponsored by Gray Robinson Attorneys at Law and hosted by the Indian American Chamber of Commerce on January 15, 2019, in Orlando, Florida. She provided an overview of the EB-5 Immigrant Investor Program and spoke on the latest developments. She included an update on the impending visa backlog for Indian foreign nationals. More information

Charles Kuck is the attorney for Grammy-nominated rapper 21 Savage, whose real name is She’yaa Bin Abraham-Joseph. Mr. Abraham-Joseph, who was born in England in 1992 and has been living in the United States since the age of seven, was detained recently on immigration charges by U.S. Immigration and Customs Enforcement (ICE) in Atlanta, Georgia. Mr. Kuck was quoted by Reuters in “Rapper 21 Savage Being Held Unfairly, Attorneys Claim.” Mr. Kuck noted that “ICE has not charged Mr. Abraham-Joseph with any crime. As a minor, his family overstayed their work visas, and he, like almost two million other children, was left without legal status through no fault of his own.” He said, “This is a civil law violation, and the continued detention of Mr. Abraham-Joseph serves no other purpose than to unnecessarily punish him and try to intimidate him into giving up his right to fight to remain in the United States.” Mr. Kuck also said that ICE was refusing to release his client on bond based on “incorrect information about prior criminal charges.”

The Reuters article

Additional details of Mr. Abraham-Joseph’s case:

  • Statement
  • New York Times
  • The New Yorker
  • Time
  • Rolling Stone

Mr. Kuck was quoted by Talking Points Memo in “Trump’s Companies Boosted Foreign Worker Visa Use to 10-Year High.” He said that the Trump Organization’s heavy reliance on visa programs flies in the face of the President’s political rhetoric and actions otherwise. “If in fact he wanted to ‘buy American, hire American,’ he’d say ‘we’re not going to use the immigration system, we’re going to go out and bring our workers down from West Virginia or from Kentucky or Maine and set them up and give them jobs. Why aren’t they recruiting in West Virginia? It’s hypocrisy.” The article

Mr. Kuck recently spoke about President Trump’s border wall efforts and the politics of immigration, on “Political Rewind.” Video, audio, and a related article are available at Political Rewind.

Robert Loughran and Matthew Myers, both of Foster LLP, provided an overview on December 4, 2018, of employment-based immigration strategies in the United States for small businesses and entrepreneurs from Latin America at the offices of Velocity Texas’ Global Accelerator Program, an initiative to incubate and accelerate competitively selected international companies in San Antonio, Texas.

Cyrus Mehta has authored several new blog entries: “Trump Can Provide a Potential Path to Citizenship for H-1B Visa Holders“; “Top 10 Most Viewed Posts Published on the Insightful Immigration Blog in 2018“; and “The Curse of Kazarian v. USCIS in Extraordinary Ability Adjudications Under the Employment-Based First Preference.”

Sophia Genovese, of Mr. Mehta‘s office, has authored a new blog entry, “The Trump Administration’s Lawlessness at the Border: Stories from Tijuana.”

David Isaacson, of Cyrus Mehta‘s office, has authored a new blog entry, “Not Sure Whether to Laugh or Cry: How the Border Patrol’s Harassment of a Comedian Shows Why It Should Not Be Checking Documents in the United States.”

Stephen Yale-Loehr was quoted by the Cornell Daily Sun in “Tompkins County Deputy Called ICE to Report Mexican Man in U.S. Illegally, Drawing Sheriff’s Ire.” Mr. Yale-Loehr said, “I agree that it is a close call, but the county resolution explicitly states that nothing in the resolution bars a sheriff’s officer from sending a statement of a person’s immigration status to federal immigration authorities.” The article

Mr. Yale-Loehr was quoted by Knowledge@Wharton, University of Pennsylvania, in “Exploring Immigration: Will the U.S. See Reform in 2019?” He said, “Congress came close in 2013 with a comprehensive immigration reform package that was passed bi-partisanly through the Senate and was 1,200 pages, but it failed to clear the House of Representatives. It has been historically hard to get immigration through any Congress and it has become only harder in this more politicized environment.” He also commented, “People in Congress are saying if we could combine funding for border security, plus some relief for DACA recipients and some protection for people who have temporary protected status, we could see some movement on immigration. I hope that would be the case, but politically we may be unlikely to achieve that.” Mr. Yale-Loehr concluded, “We need comprehensive immigration reform. There are many broken parts to the immigration system. Just trying to fix one of them, whether it’s asylum or illegal immigration, isn’t going to work. We need to have an overall approach. The Senate tried to do this in 2013. We need to have a national conversation about what is the role of immigration and when immigration can help the United States so that we can come up with a new overall comprehensive framework. Then we can untangle some of the mess that we’ve gotten ourselves into.” The article

Mr. Yale-Loehr was quoted by Voice of America regarding a Forbes.com H-1B column (in Vietnamese). The article

Mr. Yale-Loehr was quoted by the Houston Chronicle in “With Inaction, Supreme Court Gives Longer Life to DACA as Shutdown Drags On.” Commenting on the U.S. Supreme Court’s declining to take up the Trump administration’s appeal in a “Dreamers” case, Mr. Yale-Loehr said, “I think it is very unlikely to be considered this term, which means DACA lives another 10 months.” The article

Mr. Yale-Loehr was quoted by several media outlets on possible upcoming Supreme Court cases:

  • “Will The Supreme Court Fast-Track Cases Involving Trump?,” published by 538.com. Commenting on the ongoing litigation over Deferred Action for Childhood Arrivals (DACA), Mr. Yale-Loehr said it would be somewhat unusual for the high court to intervene at this stage. He added that the DACA case lacks the “immediacy” of the travel ban case, where thousands of people were being prevented from entering the country, so there’s not the same sense of urgency for the Supreme Court to act.
  • “Major Immigration Cases Ahead In 2019,” published by Law360. Mr. Yale-Loehr said that the U.S. Supreme Court’s decision earlier this year in Trump v. Hawaii upholding the president’s travel ban could have an impact on litigation over the recent asylum policy as it circulates through the appellate courts. “If this case goes to the Supreme Court, the court will have to decide the scope and possible limits of its travel ban decision,” he said. The article is available by registration.

Mr. Yale-Loehr was quoted in “Sanctuary Policies Criticized Again After Officer’s Slaying. Here’s a Look at the Issues,” published by the San Francisco Chronicle. Commenting on whether police and sheriffs’ deputies ask about immigration status when making an arrest, Mr. Yale-Loehr said that varies among police departments and individual officers in California and elsewhere. If a suspected drunken driver lacked a license, for example, “or the driver’s license looked fishy, or the individual looked or sounded foreign,” some officers might contact U.S. Immigration and Customs Enforcement to ask about the individual’s legal status, he said.

Mr. Yale-Loehr was quoted in “What Did Donald Trump’s Tweet About H-1B Visas Mean?,” published by Forbes. He said that sometimes people can read too much into President Trump’s tweets and statements. He advised people to focus instead on concrete policy actions. “This tweet runs counter to what the administration has actually done against H-1B workers. Ever since the President issued his ‘Buy American and Hire American’ executive order in April 2017, U.S. Citizenship and Immigration Services (USCIS) has made it harder for employers to hire H-1B workers and to keep them.” He noted a National Foundation for American Policy report that showed a 41% increase in denials of H-1B petitions in the 4th quarter of FY 2017. “Just last week, a company sued USCIS in federal court after the agency denied a company’s extension request for an H-1B employee, even though the agency had approved four H-1B petitions before for the same person in the same job. In effect, the President has built an invisible wall against H-1B workers. Given all that, why should we believe this apparent about-face? Even if President Trump is serious about making it easier for H-1B workers to stay permanently in the United States, his administration cannot do that unilaterally. Congress would have to pass a law.” He pointed out that Congress is divided on immigration issues, making this type of reform, particularly in isolation, difficult to picture in the current environment.

Mr. Yale-Loehr was quoted in the South China Morning Post in “U.S. Investor Visa Programme Backlog Puts Chinese Capital at Risk” regarding the EB-5 immigrant investor green card program. Mr. Yale-Loehr said, “It’s a guessing game. Everybody is trying to figure out what to do and it’s a huge problem.” He noted that “the industry and investors need clarity, but nobody is holding their breath. They desperately need Congress to act on increasing the quota to alleviate the backlog, but that’s not anywhere on the horizon either. Unfortunately, I don’t see the light at the end of the tunnel.”

Mr. Yale-Loehr was quoted in two articles about a new federal court ruling blocking the Trump administration’s efforts to restrict asylum for people fleeing domestic violence and gangs. Both contain the same quote: “Although the government will almost certainly appeal, in the meantime … the federal court ruling ensures that people fleeing domestic violence or gang violence will have a fair shot.”

  • Los Angeles Times
  • Voice of America

Mr. Yale-Loehr was quoted by Law360 in “The Top Immigration Cases of 2018.” Commenting on Jennings v. Rodriguez, a Supreme Court decision that certain immigrants held in mandatory detention during removal proceedings are not entitled to bond hearings after six months in custody, Mr. Yale-Loehr said the case pits two contrasting high court decisions against each other. In 2001, in Zadvydas v. Davis, the Court interpreted an immigration statute to require periodic bond hearings for immigrants detained after a removal order because allowing indefinite detention of a noncitizen could cause a serious constitutional problem. Just two years later, however, in Demore v. Kim, the court upheld a provision requiring detention of immigrants awaiting their removal hearings. “If Jennings goes back to the Supreme Court, the court will have to determine which decision controls. The issue is now more important than ever, with the growing number of immigrants in detention and the long backlogs in immigration courts,” he said. The article is available with registration here.

https://www.abil.com/cygnus/wp-content/uploads/2021/09/ABIL_Logo-2021.png 0 0 ABIL https://www.abil.com/cygnus/wp-content/uploads/2021/09/ABIL_Logo-2021.png ABIL2019-02-15 11:07:352019-10-21 11:10:51News from the Alliance of Business Immigration Lawyers Vol. 9, No. 1 • February 15, 2019

News from the Alliance of Business Immigration Lawyers Vol. 8, No. 6 • December 15, 2018

December 15, 2018/in Global Immigration Update /by ABIL

Headlines:

1. ELECTRONIC DEVICE SEARCHES UPON ENTRY INTO CANADA: AN OVERVIEW -This article provides an overview of electronic device searches upon entry in Canada.

2. BELGIUM -Belgium will implement new gross salary thresholds in January. Also, implementation of the single permit is expected soon.

3. COLOMBIA -Colombia’s Ministry of Labor has implemented a Unique Registry of Foreign Workers in Colombia, or RUTEC, to better track foreign labor and foreign workers’ employment status, and to monitor employer compliance with working conditions.

4. GERMANY -The German Federal Ministry of the Interior, Building and Community has introduced a draft law on corporate immigration that clearly defines the country as open for employee migration and welcomes qualified workers.

5. ITALY -The work holiday visa is a special type of visa, issued for 12 months, that allows the holder to travel to Italy and work there for up to six months. It is an opportunity for youth of each participating country to experience the language, lifestyle, culture, and job environment of the receiving country.

6. TURKEY -Turkey has announced several new developments, including updated employment agreements being requested for work permit renewals, the replacement of the visa-on-arrival (sticker visa) with the electronic visa, rejection of most in-person filings, the likely removal of the 5:1 exemption for Syrians in lawful work or residence status, and year-to-date totals for work permit approvals.

7. UNITED KINGDOM -This article discusses the implications for EU citizens living in the UK following the November acceptance by EU leaders of the terms of the UK withdrawal and the political declaration for a post-Brexit trade agreement between the EU and UK. Also, the Immigration Health Surcharge is being doubled.

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

9. Member News -Member News


Details:

1. ELECTRONIC DEVICE SEARCHES UPON ENTRY INTO CANADA: AN OVERVIEW

This article provides an overview of recent developments in Canada with respect to device searches upon entry.

Canada Border Services Agency (CBSA) officers routinely search the electronic devices of individuals entering Canada, both randomly and in a targeted fashion.

The Customs Act grants the CBSA broad powers to search people and goods entering Canada. The definition of “goods” includes “any document in any form,” which encompasses files stored on an electronic device. The Immigration and Refugee Protection Act (IRPA) allows the CBSA to conduct a warrantless search of the “luggage and personal effects” of a person seeking to enter Canada, if the officer has reasonable grounds to believe that the individual has hidden information relevant to his or her admissibility, or is involved with document fraud or human trafficking. CBSA is also known to conduct targeted searches based on undisclosed indicators. Single men traveling alone, those exhibiting nervousness or agitation, those in possession of multiple electronic devices, and those who have traveled to higher-risk destinations may be more likely to be subject to a random search.

While the Charter of Rights and Freedoms applies to border crossings, and the CBSA has policy guidelines dictating the scope of searches, not every search is conducted in compliance with these safeguards. Further complicating the issue is the fact that the courts have not taken a clear position on what border officers can and cannot do when searching or seizing an electronic device. Travelers who have refused to provide their passwords have been threatened with arrest and with hindering or obstructing a CBSA officer (a criminal offense carrying a sentence of up to $50,000 in fines and five years’ imprisonment), even though it is not clear whether travelers are legally required to do so.

What is clear, though, is that searches of electronic devices may result in anything from an inconvenient delay at the border to a huge intrusion on personal privacy. There are also concerns that these searches may result in breaches of confidentiality, if the device contains sensitive company data or privileged material. Therefore, it is important to keep some best practices in mind. The best safeguard against an electronic search is not to carry the data at all when entering Canada. Consider dedicating a device for travel purposes and do not store any sensitive data on it. Remember that deleted data on an electronic device, while not easily accessible by an officer, can likely be retrieved with the use of recovery software. Keep in mind that data stored in the cloud, once accessed by a device, may be stored on the device and may be accessible without an Internet connection. If you must bring in such material, separate privileged and confidential documents and label them accordingly, and inform the officer conducting the search that you are in possession of sensitive documents.

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2. BELGIUM

Belgium will implement new gross salary thresholds in January. Also, implementation of the single permit is expected soon.

New Gross Salary Thresholds as of January 1, 2019

One of the requirements for certain Belgian fast-track work permits B, as well as for the Blue Card, is a salary threshold. The annual gross remuneration must meet the threshold amount, which is adjusted/indexated on a yearly basis.

The new salary thresholds effective January 1, 2019 will be:

  • For highly skilled work permits: 41,739 € (40,972 € for 2018);
  • For executive level work permits: 69,637 € (68,356 € for 2018);
  • For Blue Cards: 53,971 € (52,978 € for 2018).

The Ministries will only issue a fast-track work permit B or Blue Card if it is clear that the employee’s salary will meet the threshold amount. The Ministries will only take into account amounts that will definitely be paid in consideration for the employee’s work; a discretionary bonus cannot be taken into account when processing the work permit application. COLA (Cost of Living Allowances) as well as most other allowances are not taken into account either. Some benefits in kind can be taken into account, up to a certain extent and if clearly mentioned and assessed/quantified in the employment contract/assignment letter.

Furthermore, correct salary payment will be crucial for a work permit renewal.

Single Permit as of (Probably) January 1, 2019

The single permit will be implemented, probably on January 1, 2019. In the federal and regional areas (three regions: Brussels, Flanders, and Wallonia), authorities are finalizing the new rules and practical arrangements. The final rules are expected imminently.

The single permit will be a document authorizing work and residence for more than 90 days. It will be a residence permit with confirmation of the right to work. Paper work permits will no longer be issued for more than 90 days.

The single permit application file must contain not only the documents currently required for a work permit application but also those currently required for a visa/residence permit application (including proof of payment of levy (350 €); police clearance; medical certificate for visa/residence; possibly health insurance). This may require a longer preparation time. In some countries, it can take a long time to obtain a police clearance.

The maximum processing time for the single permit application would be four months after notification by the authorities that the application is complete.

If an application for more than 90 days will be filed before the effective date of the single permit (probably January 1, 2019), the current “dual permit” system will still apply. If it will be filed after the effective date of the single permit, the single permit system will apply.

To be clear, the single permit only relates to applications for a permit of more than 90 days. For short-term work (90 days or fewer), the current system will in principle (there may be minor changes) continue to apply: the employer applies for employment authorization; a paper work permit is issued; the employee can enter with a visa or on a visa waiver.

The Flanders region has prepared work permit legislation to implement the ICT Directive. This legislation, which will probably also extend the maximum duration of some work permits from one year to three years, will probably also take effect on January 1, 2019.

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3. COLOMBIA

On October 9, 2018, Colombia’s Ministry of Labor implemented a Unique Registry of Foreign Workers in Colombia, or RUTEC, to better track foreign labor and foreign workers’ employment status, and to monitor employer compliance with working conditions. Labor authorities may use the information collected in the new registry as a basis for creating or changing the country’s policies affecting immigrant labor.

To whom does the registration apply?

All foreign nationals working in Colombia in the public or private sector must be registered by their Colombian employers. Self-employed foreign workers must also register themselves. Dependent and independent foreign workers who are working in the country must be registered, including workers with a Special Permit of Permanence (PEP). Also, the personnel of the embassies and consulates in Colombia must be registered.

What are the deadlines and validity time?

Foreign national workers must be registered within 120 days of the commencement of the employment contract or assignment. Companies have 120 days from the issuance of Resolution 4388 to register their existing foreign workers. Registration is valid for the length of the employment contract, and any changes must be reported within 30 calendar days. Penalties for non-compliance are between one and five thousand times the Minimum Legal Monthly Wages (SMMLV). The SMMLV for 2018 is reportedly US $252.

SIRE vs. RUTEC

Employees who are already registered in SIRE (Information System for the Report of Foreigners) must also register in the new RUTEC system, as they are separate databases and maintained by different government agencies. SIRE is administered by immigration authorities and RUTEC is administered by labor authorities.

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4. GERMANY

The German Federal Ministry of the Interior, Building and Community has introduced a draft law on corporate immigration that clearly defines the country as open for employee migration and welcomes qualified workers. The new draft law has been published for discussion of the civil associations and will be put forth into the regular lawmaking process in December.

The draft law does not change the existing rules on the immigration of highly qualified workers, acclaimed by the Organisation for Economic Co-operation and Development (OECD) as being a very good immigration law. It also keeps the notion that immigration in principle requires an employment contract before entering Germany and that all foreign workers must be employed with working conditions at least equal to those of German personnel. The draft law does introduce new categories for qualified workers without an academic education, reflecting the shortage of employees currently experienced by German employers. Workers with limited vocational training may obtain required additional qualifications within a period of several years after arrival in Germany during employment.

The new law also introduces a fast track to expedite worker migration and streamlines processing. Finally, it enables workers with vocational training as well as those with academic qualifications to enter Germany for a limited period of six months to search for employment if they can sustain their living costs with sufficient funds. The draft also introduces an obligation to employers to notify the authorities if an employment relationship ends prematurely and clarifies that the work permit contained in the immigration visa/permits is to be automatically transferred to allow employment with a new employer when corporate restructuring affects the employment relationship.

As noted above, with the draft law, Germany clearly defines the country as open for employee migration and welcomes qualified workers. The draft provides some answers to the administrative problems and shortcomings that employee migrants currently experience in the process. Hopes are high that employee migration to Germany will improve in the coming years.

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5. ITALY

The work holiday visa is a special type of visa, issued for 12 months, that allows the holder to travel to Italy and work there for up to six months. It is an opportunity for youth of each participating country to experience the language, lifestyle, culture, and job environment of the receiving country.

Italy has bilateral agreements on work holiday visas with New Zealand, Australia, Canada, and South Korea. Each bilateral agreement sets the conditions for participation in the program and also the maximum number of visas that can be issued in a year.

The procedure consists of two steps:

  • File the visa application at the Italian consulate having jurisdiction over the place of residency abroad
  • Once in Italy, file the residence permit application within 8 days of arrival

If and when the applicant finds an employer willing to hire him or her, a work permit is not necessary. The work holiday residence permit allows the holder to work up to a total of 6 months, and up to 3 months with the same employer.

Below are details of the existing agreements with Italy:

New Zealand agreement

Who can apply: New Zealand citizens between the age of 18 and 30

Duration of allowed stay: 12 months, not renewable

Type of work activity allowed: No restrictions but no longer than 3 months with the same employer and 6 months in total

Number of visas per year: Up to 1,000

Australia agreement

Who can apply: Australian citizens between the age of 18 and 30

Duration of allowed stay: 12 months, not renewable

Type of work activity allowed: No restrictions but no longer than 3 months with the same employer and 6 months in total

Number of visas per year: Up to 1,500 for Australian citizens

Canada agreement

Who can apply: Canadian citizens between the age of 18 and 35

Duration of allowed stay: 12 months, not renewable

Type of work activity allowed: No restrictions but no longer than 3 months with the same employer and 6 months in total

Number of visas per year: Up to 1,000

South Korea agreement

Who can apply: South Korean citizens between the age of 18 and 30

Duration of allowed stay: 12 months, not renewable

Type of work activity allowed: No restrictions but no longer than 6 months (up to 6 months with the same employer allowed)

Number of visas per year: Up to 500

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6. TURKEY

Turkey has announced several new developments, including updated employment agreements being requested for work permit renewals, the replacement of the visa-on-arrival (sticker visa) with the electronic visa, rejection of most in-person filings, the likely removal of the 5:1 exemption for Syrians in lawful work or residence status, and year-to-date totals for work permit approvals.

Updated Employment Agreement Now Requested by MOL for Work Permit Renewals

The Ministry of Labor (MOL) has recently begun requesting a copy of a new or updated employment agreement (EA) signed by the sponsor and applicant for work permit renewals. Unfortunately, the MOL is currently not accepting previously executed agreements and requires the agreement to be updated in line with the details in the application for renewal. It is not clear why the MOL has made this document a necessity, as the work permit application itself has been held to create an employer-employee relationship. It is not clear whether a signed protocol update will suffice in lieu of a new EA. Employers should be prepared to execute an updated agreement for all renewals.

Full Elimination of Visa-on-Arrival

Although not yet officially announced on the Ministry of Foreign Affairs website, the Ministry has almost completed the elimination of the visa-on-arrival (sticker visa) with the intention of full replacement by the electronic visa (online “e-visa”). The e-visa system to obtain a visitor visa instantaneously online was formally initiated on April 17, 2013. However, until recently, eligible applicants who had not purchased an e-visa were still able to purchase a visa-on-arrival to Turkey. The Turkish airport counters that previously offered purchase of the visa-on-arrival have now been removed. All eligible visitors to Turkey should evaluate their needs for an e-visa in advance and plan to purchase their e-visas before departure to Turkey.

Rejection of Most Documents Filed In Person with MOL

The Work Permit Directorate recently announced that it will no longer accept most applications or petitions filed in person. Although work permit applications have not been accepted in person for some time, now commencement and cancellation petitions, work permit loss petitions, job title change petitions, and others are no longer accepted in person either. Any acceptance of documents filed in person is discretionary (although Ratio Exemption applications are still accepted in person).

Likely Removal of 5:1 Exemption for Syrians in Lawful Work or Residence Status

Previously, Syrian nationals in Turkey in lawful residence or work status have benefited their prospective employers by a blanket exemption of the 5:1 ratio. However, officers of the Work Permit Directorate recently said that this exemption has been eliminated. This is not pursuant to an official announcement, so confirmation is awaited.

Year-to-Date Work Permit Approvals Announced

Local media have announced that the MOL released its year-to-date totals for work permit approvals. From January through October 2018, 97,991 work permits were granted. This number is out of a total of 122,115 submissions within the 10-month period. Syrian national applicants are the most common. This announcement makes clear that there is a steady rise in work permit grants, as 87,182 were granted in all of 2017 and 59,873 were granted in all of 2016.

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7. UNITED KINGDOM

This article discusses the implications for European Union (EU) citizens living in the United Kingdom (UK) following the November acceptance by EU leaders of the terms of the UK withdrawal and the political declaration for a post-Brexit trade agreement between the EU and UK. Also, the Immigration Health Surcharge is being doubled.

On November 25, 2018, EU leaders formally accepted the terms of the UK’s withdrawal from the EU and the political declaration for a post-Brexit trade agreement between the EU and the UK. Prime Minister Theresa May will now need to persuade the British Parliament to accept the deal that has been negotiated. A vote was due to take place December 10, 2018, but Prime Minister May postponed it, acknowledging that it would have been “rejected by a significant margin.” Meanwhile, the European Court of Justice ruled that the UK could cancel Brexit without the agreement of the other EU members, although Brexit Secretary Steve Barclay reportedly said there was “absolutely no intention” to do that.

The Prime Minister has conducted a countrywide publicity campaign to garner support for the agreement from the British public. Now is an appropriate moment to reflect on the implications for EU citizens living in the UK in the event of a worst-case scenario with the UK potentially crashing out of the EU on March 29, 2019, without a deal.

Under the terms of the Withdrawal Agreement, provision has been made for EU citizens living in the UK to obtain settled status in the UK or limited leave to remain under the EU Settlement Scheme, which now forms part of the Immigration Rules. EU citizens, including those arriving after Brexit Day, will have until June 30, 2021, to apply for this new status during a transition period, which will run from March 30, 2019, until December 31, 2020. Under the terms of the Withdrawal Agreement, EU citizens and their family members will be able to continue to come to the UK to live and work under the specified provisions throughout the transition period.

Although the Home Office press office has issued various assurances that the EU Settlement Scheme will remain in place in the event of a no-deal Brexit, there still has been no formal confirmation of this. While the ongoing rights of EU nationals currently living in the UK to continue to live in the UK post-Brexit is more certain (the Prime Minister has stated on numerous occasions that they will not be forced to leave the UK following Brexit Day), it is still unclear what the position will be for new EU arrivals in the UK after Brexit in the event of a no-deal scenario. The government has remained completely silent on whether the EU Settlement Scheme will remain in its current format or will apply only to EU citizens living in the UK up to Brexit Day.

This all begs a number of questions for employers, who first need to know whether they can continue to recruit EU nationals arriving in the UK after Brexit Day and, if so, on what terms, and second, need to know how they will be able to differentiate between those who arrived before and those who arrived after Brexit when conducting right-to-work checks.

So what will happen to EU nationals living in the UK if the Withdawal Agreement is rejected by Parliament?

Information on this issue was first gained during the questioning of Immigration Minister Caroline Nokes, when she was called to address the Home Affairs Select Committee on October 30, 2018, on this very point.

The Minister said nothing to appease employers’ concerns since she would not confirm that employers would not need to differentiate between EU nationals arriving pre- and post-Brexit. She was particularly vague about whether there would still be a transition period and, if so, how long this would last. More specifically, the Minister stated that the Immigration Bill due to be published later this year would be brought forward and also suggested that a registration scheme for new arrivals could be introduced for those wishing to stay more than three months.

Unsurprisingly, this received a great deal of press coverage due in no small part to the uncertain position this would leave employers. An announcement by Hilary Bagshaw of the Home Office swiftly followed. She stated that following Brexit, citizens will continue to be able to evidence their right to work by showing a passport or national identity card. This provided some needed clarity for employers conducting right-to-work checks and was subsequently confirmed by Home Secretary Sajid Javid during an interview.

But what about free movement? Ms. Bagshaw said that free movement will end when the UK leaves the EU, but most observers believe that until the new immigration system is rolled out following the publication of the Immigration Bill, the most likely scenario is that free movement will effectively continue in all but name. Mr. Javid also vaguely referred to the need for a sensible transition period, but he would not specifically confirm that the status quo would be maintained until December 30, 2020.

Increase in the Immigration Health Surcharge

On November 21, 2018, the House of Commons approved an order to double the immigration health surcharge on every non-EU migrant from £200 to £400 per year. This is expected to come into force at some point in December.

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8. 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
    • New Data Show Increase in H-1B Denials and RFEs
    • ABIL Urges Administration to Change “Buy American and Hire American” Executive Order
    • ABIL Member Kuck Baxter Immigration Commercial Nominated for an Emmy
    • ABIL Members Note Immigration Threats for Employers in 2018
  • ABIL is available on Twitter: @ABILImmigration.
  • Recent ABIL member blogs are at http://www.abilblog.com/.

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9. Member News

The following Alliance of Business Immigration Lawyers member firms were listed in U.S. News & World Report’s Best Law Firms:

Chin & Curtis, LLP—National Tier 2; Boston Tier 1

Clark Lau LLC—National Tier 2; Boston Tier 1

Cyrus D. Mehta & Partners PLLC—National Tier 1; New York City Tier 1

Foster LLP—National Tier 2; Austin Tier 1; Houston Tier 1

Fredrikson & Byron P.A.—Des Moines Tier 2; Minneapolis Tier 3

Garfinkel Immigration Law Firm—Charlotte Tier 1

Goel & Anderson, LLC—Washington, DC Tier 3

Joseph Law Firm, P.C. —Colorado Tier 1

Klasko Immigration Law Partners, LLP—National Tier 2; Philadelphia Tier 1

Kuck Baxter Immigration LLC—Atlanta Tier 1

Maggio + Kattar—National Tier 1; San Diego Tier 1; Washington, DC Tier 1

Mark Ivener, A Law Corporation—National Tier 3; Los Angeles Tier 2

Pearl Law Group—San Francisco Tier 2

Seyfarth Shaw LLP—National Tier 1; Atlanta Tier 1; Boston Tier 1; Houston Tier 1; Los Angeles Tier 2; Washington, DC Tier 3

Siskind Susser PC—Memphis Tier 1; Nashville Tier 2

Wolfsdorf Rosenthal LLP—National Tier 1; Los Angeles Tier 1; New York City Tier 2

The national rankings are at https://bestlawfirms.usnews.com/immigration-law. The regional rankings are under each firm’s profile.

Dagmar Butte and Vic Goel were quoted by Forbes in “New H-1B Lawsuit: USCIS Lacks Authority to Limit Visa Duration.” The article notes that companies and attorneys have said they are now regularly getting H-1B approvals that last 6 months or less. “It happens all the time,” Mr. Goel said, particularly with any company providing information technology services. Ms. Butte noted, “We are getting approvals of 6 months or less. We have to immediately turn around and file an extension, which means more legal fees and filing fees and less certainty for the beneficiary and the company.” The Forbes Article

Vic Goel (Goel & Anderson, LLC) and Lawrence Lorber (Seyfarth Shaw LLP) were quoted by Forbes in “Trump Labor Department to Use New H-1B Form Against Tech Companies.” Mr. Goel said, “This revision to the labor condition application is nothing more than an attempt to discourage contracting out for services by U.S. companies whose contractors employ H-1B professionals.” The article notes that the Department of Labor used the term “secondary employer” on the form to describe the worksite where an H-1B visa holder would perform services. “Calling someone a secondary employer is nonsense. It raises a lot of issues in the joint-employer context, which is a major policy issue,” Mr. Lorber noted. The article is at Forbes.com.

Avi Gomberg spoke on “Investor Immigration to Québec, Canada” at the New York State Bar Association conference held in Montréal, Canada, on October 24, 2018.

Klasko Immigration Law Partners, LLP is expanding its business litigation practice with its experienced attorney team. H. Ronald Klasko, managing partner, is also leading the new Administrative Litigation Task Force formed within the American Immigration Lawyers Association. Mr. Klasko’s goals are to initiate impact litigation on key immigration issues and policies and to educate other immigration attorneys on how to litigate visa denials where they believe the law was misinterpreted. He is currently co-counsel for a lawsuit challenging the new USCIS policy on unlawful presence for foreign students and exchange visitors. Daniel Lundy is involved in significant litigation work, both in the EB-5 arena and with regard to employment-based immigration applications and petitions. He has frequently been involved in litigation on behalf of EB-5 investors, regional centers, and projects that are facing USCIS actions or delays, regional center terminations, or SEC litigation. More information here.

Klasko Immigration Law Partners, LLP has issued a client alert and blog by William A. Stock and Steven R. Miller, “Lessons for Universities and Companies from Wright State University’s Nonprosecution Agreement.”

Cyrus Mehta has authored several new blog entries: “H-1B Visa Contest: US Master’s Degree v. Foreign Degree,” “New Mutant H-1B Gene: Undifferentiated Engineering Degrees,” and “Labor Certification: Musn’t the U.S. Job Applicant Be Able to Perform the Job Even if Qualified on Paper?”

Mr. Mehta and Sophia Genovese, of Mr. Mehta’s office, co-authored a new blog entry,”Trump Is Not King. He Cannot Change the U.S. Asylum System Through Executive Orders.”

Rodrigo Tannus has authored several new articles in Diario la República: “Circulación laboral en la Alianza del Pacífico (III),” and “Implementación del Registro Único de Trabajadores.”

Mr. Tannus was included in Chambers Latin America and Legal 500 Latin America. Tannus & Asociados undertakes labor advice, audits, due diligence, trainings, and procedures before various entities. The team is helping Intertug grow its operations in Jamaica, Bolivia, Mexico, Brazil, and Venezuela by developing labor and immigration bases for managerial and operational staff.

Mr. Tannus was quoted by Diario la República: “[L]os nacionales venezolanos que no acaten los deberes y obligaciones descritos en la normatividad migratoria colombiana, pueden ser sujetos de sanciones económicas, que oscilan entre medio y 40 salarios mínimos legales mensuales vigentes; o incluso ser objeto de deportación o expulsión del país. Además, argumentó que las medidas no tienen diferencias con otras nacionalidades, salvo un trato preferencial para nacionales ecuatorianos y países miembros del Mercado Común del Sur (Mercosur).”

Stephen Yale-Loehr was quoted by Deutsche Welle in “Can Donald Trump Use Force Against the ‘Migrant Caravan’?” Mr. Yale-Loehr commented on President Trump’s new proclamation mandating that individuals claiming asylum can do so only at official ports of entry. Those entering the country without authorization are barred from seeking asylum, but can apply for two alternative forms of relief known as “withholding of removal” and relief under the United Nations Convention Against Torture, he noted. “The Trump administration claims that allowing people to apply for those other forms of relief satisfies our international obligations not to return people to countries where they might face persecution”, said Mr. Yale-Loehr, adding that to decide whether President Trump’s argumentation is correct and the order legal, the courts will have to weigh competing considerations. “Courts have traditionally ruled that presidents have large discretion on immigration issues, since immigration touches on national sovereignty. However, the United States has signed the United Nations protocol on refugees, which bars countries from returning people to countries where they might be persecuted. And the U.S. asylum statute explicitly allows people to apply for asylum no matter how they enter the United States. The president cannot repeal the asylum statute; only Congress can do that.” The Deutsche Welle article

 

Mr. Yale-Loehr was quoted by the New York Times in “Federal Judge Blocks Trump’s Proclamation Targeting Some Asylum-Seekers.” Mr. Yale-Loehr said the court’s ruling shows that Presidential discretion has limits. “The ruling is a significant blow to the administration’s efforts to unilaterally change asylum law. Ultimately this may have to go to the Supreme Court for a final ruling,” he said. The New York Times article

Mr. Yale-Loehr was quoted by the Voice of America in “EB-5 Program: American Citizenship Door for International Students.” “I can say there are hundreds of EB-5 students a year. No one knows for sure,” he said. “I compare [EB-5] to a Rubik’s cube. The migration component must be in harmony with the investment component, harmonized with the employment component…Sometimes, if the students study business, they are very sophisticated.” The article (in Vietnamese)

Mr. Yale-Loehr was quoted by U.S. News & World Report and other publications (via Reuters) in ” Trump Demand That Asylum Seekers Wait in Mexico May Turn on Legal Clause.” The Trump administration will likely argue that the U.S. Constitution’s due process clause only applies in U.S. territory, Mr. Yale-Loehr noted. The U.S. News & World Report article

Mr. Yale-Loehr was quoted by National Real Estate Investor in “As the EB-5 Program Comes Up for Another Extension, Recent Litigation Puts the Spotlight on the Program’s Flaws.” He explained that there are two types of litigation in the EB-5 world. One scenario is fraud from the outset: the project developer takes the money and runs. The other scenario is where the developer is trying to do everything correctly, but because of a change in the project, the developer is unable to finish it on time or needs to re-deploy the foreign investors’ funds in another way. With a years-long process to get permanent residence coupled with the need to keep funds at risk and create permanent jobs, there are more windows for problems to crop up. “That’s not necessarily fraud,” he said. “I predict that Congress will extend EB-5 again without any changes … maybe in the spring everybody can agree on a reform package that Congress can enact,” Mr. Yale-Loehr said. The article

Stephen Yale-Loehr moderated a panel on immigration court reform at “A Tribute to Juan Osuna: Access to Justice, Due Process, and the Rule of Law in the U.S. Immigration System: Present Realities and a Vision for the Future,” on November 15, 2018, at Hogan Lovells in Washington DC. More information on the event, sponsored by the Center for Migration Studies, is available here.

Mr. Yale-Loehr was quoted through the AFP Internacional wire service in numerous articles around the world, many in Spanish, about the possibility of U.S. immigration reform in the coming year. Mr. Yale-Loehr sent the following quote to the AFP: “Immigration reform is theoretically possible. Indeed, the White House offered a four-point plan for immigration reform last January. However, that plan had too many poison pills, such as increased border enforcement and a reduction in family immigration, for the Democrats to accept. I doubt the two sides will be able to agree on immigration reform.” One of the articles, “¿Una reforma migratoria saldrá del nuevo Congreso de EEUU? Poco probable,” is available here.

Mr. Yale-Loehr was quoted by Reuters in “Trump Signs Order Limiting Migrant Asylum at U.S.-Mexico Border,” which was published in numerous media outlets. He said the administration may struggle to justify the national security concerns underpinning the order, as the flow of migrants across the southern border has fallen in recent years. “We also have an obligation under international law not to return people to a country where they fear persecution,” he noted. The article is available at Reuters.

Mr. Yale-Loehr was quoted in several other recent publications:

  • Politifact, in “Donald Trump Falsely Says Democrats Invite Migrant Caravans“: The article noted that a 1982 U.S. Supreme Court case said that immigrants, regardless of immigration status, are allowed free elementary and secondary education. “But immigrant children can’t access that right if they are detained waiting for their asylum hearings, except in a few family detention centers,” Mr. Yale-Loehr noted.
  • Law360, in “Midterms Won’t Break Immigration Reform Gridlock, Attys Say.” “Immigration is so controversial right now that it will be almost impossible to get any major immigration reform bill through Congress, no matter which party is in power. Even if the Democrats win control of both the House and Senate and manage to pass an immigration reform bill, President Trump would veto the measure. We won’t see immigration reform until 2021 at the earliest.” Available by registering at law360.com.
  • Newspaper in Taiwan re possible proposal to eliminate duration of status for students (in Chinese). More
  • Raw Story, “How Everyone Can Help Blunt Trump’s Racist Lies Instead of Amplifying Them.”
  • Univision, re birthright citizenship (Spanish), “¿Puede Trump quitar la ciudadanía a hijos de indocumentados nacidos en EEUU? Respondemos tus preguntas.”
  • Video interview with the NBC TV affiliate in Atlanta, about birthright citizenship, “Verify: Did the Authors of the 14th Amendment Not Intend to Offer Birthright Citizenship to People Born of Foreign Parents?”

 

https://www.abil.com/cygnus/wp-content/uploads/2021/09/ABIL_Logo-2021.png 0 0 ABIL https://www.abil.com/cygnus/wp-content/uploads/2021/09/ABIL_Logo-2021.png ABIL2018-12-15 11:11:042019-10-21 11:13:51News from the Alliance of Business Immigration Lawyers Vol. 8, No. 6 • December 15, 2018

News from the Alliance of Business Immigration Lawyers Vol. 8, No. 5 • October 15, 2018

October 15, 2018/in Global Immigration Update /by ABIL

Headlines:

1. DATA PROTECTION IN INDIA: AN OVERVIEW -This article provides an overview of data protection in India.

2. CANADA -Canada has expanded biometric information collection for foreign nationals.

3. HONG KONG -A landmark decision by Hong Kong’s highest court means that same-sex spouses and partners may now receive dependent visas.

4. ITALY -A security and immigration decree, making substantial changes to the immigration and citizenship law, has been signed.

5. SPAIN -Spain has implemented an EU directive on research and student permits.

6. TURKEY -Turkey has lowered financial thresholds for Citizenship by Investment.

7. UNITED KINGDOM -The UK’s Migration Advisory Committee has published its long-awaited recommendations for work migration post-Brexit, following a call for evidence from employers and other stakeholders.

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

9. Member News -Member News


Details:

1. DATA PROTECTION IN INDIA: AN OVERVIEW

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

India has not yet enacted specific legislation on data protection. Until now, the accepted legal framework for the Indian technology sector is the Information Technology Act, 2000 (ITA). The ITA was amended in 2008 to include Section 43A and Section 72A, which came into force on October 27, 2009. and stipulated a right to compensation for improper disclosure of personal information. Under Section 43A of the ITA, the Indian central government subsequently issued the Information Technology (Reasonable Security Practices and Procedures and Personal Sensitive Data or Information) Rules, 2011 (Rules), which came into force on April 11, 2011. The Rules have imposed additional requirements on commercial and business entities in India relating to the collection and disclosure of sensitive personal data or information. While the Rules apply only to a body corporate or any person located within India, the provisions of the ITA also apply to any offense committed by a person outside India using a computer, computer system, or computer network located in India. Entities in regulated sectors such as financial services and telecommunications are subject to obligations of confidentiality under sectoral laws that require them to keep personal information of customers confidential and use it only in the manner agreed upon with the customer for prescribed purposes.

Personal data under the Indian laws and rules is termed “personal information.” Personal information has been defined under the Rules as “any information that relates to a natural person, which either directly or indirectly, in combination with other information available or likely to be available with a body corporate, is capable of identifying such person.”

Sensitive personal data exists as the concept of sensitive personal data or information under the Rules. It means personal information that consists of: (i) passwords; (ii) financial information such as bank account, credit or debit card, or other payment instrument details; (iii) physical, physiological, and mental health conditions; (iv) sexual orientation; (v) medical records and history; (vi) biometric information; (vii) any detail relating to the above items provided to a body corporate for providing services; and (viii) any of the information received under the above items by a body corporate for processing that is stored or processed under a lawful contract or otherwise. Sensitive personal data or information does not include information that is freely available or accessible in the public domain or furnished under the Right to Information Act, 2005, or any other applicable law.

The Rules contain specific provisions regarding the collection of sensitive personal data or information. The key rules on collection are: (i) it is necessary to obtain the consent of the provider of information prior to the collection. The provider of information must be given an option not to provide the requested sensitive personal data or information and to withdraw its consent by informing the body corporate in writing; (ii) sensitive personal data or information can only be collected where necessary for a lawful purpose that is connected with a function or activity of the body corporate or any person on its behalf; and (iii) the body corporate should provide additional information to the provider of information. The body corporate must also comply with other general requirements, such as not keeping sensitive personal data or information for longer than is required and ensuring it is kept secure or applying reasonable security practices and procedures which contain managerial, technical, operational and physical security control measures to protect sensitive personal data and information.

Additional rules apply to the disclosure of sensitive personal data and information. The body corporate and any person acting on its behalf are not allowed to publish any sensitive personal data or information. Further, the disclosure of sensitive personal data or information to any third party requires the prior permission of the provider of information. The only two exceptions to this requirement are: (i) when such disclosure has been agreed upon in the contract between the body corporate and the provider of information; or (ii) when it is necessary to disclose the information in compliance with a legal obligation. The third party that receives such sensitive personal data or information shall not disclose it further and must be based in a country offering the same levels of data protection as India. The body corporate is allowed to share information with government agencies mandated under the law to obtain information.

Indian courts have developed indirect safeguards relevant to the protection of personal data. In a landmark judgment, Justice K. S. Puttaswamy vs Union of India, delivered on August 24, 2017, the Supreme Court of India recognized the right to privacy as a fundamental right under Article 21 of the Constitution of India as a part of the right to life and personal liberty. The court held that informational privacy is a facet of the right to privacy and, thus, information about a person and the right to access that information should be given the protection of privacy. The court stated that every person should have the right to control commercial use of his or her identity and that “the right of individuals to exclusively commercially exploit their identity and personal information, to control the information that is available about them on the internet and to disseminate certain personal information for limited purposes alone” emanates from this right. This is the first time that the Supreme Court has expressly recognized the right of individuals concerning their personal data and overruled its previous judgements in Kharak Singh vs The State Of U. P. & Others and M. P. Sharma And Others vs Satish Chandra, which had held that there is no fundamental right to privacy under the Indian Constitution. Moreover, this landmark judgement has opened the gates for far-reaching implications with respect to the daily lives of Indians. On September 6, 2018, the Supreme Court of India in Navtej Singh Johar v. Union of India unanimously struck down a 157-year-old law criminalizing gay sex, further reaffirming the right to privacy.

In July 2017, the Indian Ministry of Electronics and Information Technology (MEIT), recognizing the importance of data protection and keeping the personal data of citizens secure and protected, constituted a Committee of Experts under the chairmanship of Justice B. N. Srikrishna, Former Judge of the Supreme Court of India. The Committee of Experts has submitted its 176-page report and draft Personal Data Protection Bill, 2018. MEIT solicited feedback from the public on the draft until September 30, 2018.

The key recommendation made by the Committee of Experts is that companies processing large amounts of data might have to register themselves as significant data fiduciaries to the Data Protection Authority for greater accountability. This will most likely increase compliance costs that include periodic company audits and the need for data protection specialists, among others. The draft bill borrows significantly from the recently implemented General Data Protection Regulation (GDPR) in Europe and, as experts claim, “comes with ambiguities and has its own pain points.”

Today India is one step closer to having its own data protection law. Even as recommendations and the draft bill continue to stir debate, all stakeholders are united in their stance for a law that should safeguard customers and support India’s fast-growing digital economy.

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2. CANADA

Canada has expanded biometric information collection for foreign nationals.

On July 31, 2018, amendments to the Immigration and Refugee Protection Regulations providing for the expansion of biometric information collection for foreign nationals seeking to enter or remain in Canada entered into force.

As such, since July 31, 2018, the Canada Border Services Agency; the Royal Canadian Mounted Police; Shared Services Canada; and Immigration, Refugees and Citizenship Canada have begun collecting biometric information for all foreign nationals between the ages of 14 and 79 applying for work permits, study permits, temporary resident permits, temporary resident visas, or Canadian permanent residence, regardless of whether visas are required. regardless of whether they are visa-requiring or visa-exempt nationals. These rules do not apply to U.S. nationals seeking to enter Canada on a temporary status (permanent residence applications will require biometrics for U.S. nationals) as well as visa-exempt nationals seeking to enter Canada solely as visitors with valid Electronic Travel Authorization (eTA) documents.

The expansion of biometric collection is being rolled out in two phases. Since July 31, 2018, citizens of most countries in Europe, Africa, and the Middle East (and some Asian countries) must provide biometric information. The second phase is set to begin on December 31, 2018, and will add countries from both Asia and the Americas (including Australia and New Zealand). In practice, biometric information is being collected directly at Canadian ports of entry for visa-exempt nationals eligible to present their temporary resident applications upon arrival in Canada and at Visa Application Centers for visa-requiring nationals presenting their temporary resident applications from abroad.

To facilitate this increased biometric collection, the government of Canada has announced the implementation of “biometric collection service points” at approximately 57 ports of entry across Canada (which includes all major airports) as well as the addition of numerous biometric collection service points around the world. The biometric information collected is valid for a 10-year period. Foreign nationals who have already provided biometric information will not be subject to this new regulation until their biometric information expires. Similarly, applicants applying to renew their temporary resident status from within Canada will not need to provide biometric information until the implementation of in-Canada enrollment services expected some time in February 2019.

The objective behind this biometric expansion project is to help Canada protect the safety of its borders and the security of all Canadians by providing the relevant authorities with the tools necessary to effectively screen temporary and permanent resident applicants before they enter Canada. It is unclear whether the benefits of the Biometric Expansion Project will outweigh potential frustrations associated with a more cumbersome application process, especially for visa-exempt nationals who may be unaccustomed to these types of increased security measures.

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3. HONG KONG

A landmark decision by Hong Kong’s highest court means that same-sex spouses and partners may now receive dependent visas.

In a landmark decision on July 4, 2018, the Court of Final Appeal, Hong Kong’s highest court, ruled that the Hong Kong Immigration Department must issue a dependent visa to a same-sex partner for immigration purposes. Accordingly, while the definition of “marriage” as between a man and a woman under Hong Kong law remains unchanged, marital status and civil union partnerships of same-sex couples entered into in a jurisdiction that recognizes such relationships are now recognized in Hong Kong for the purpose of applying for a dependent visa if the other partner holds permanent resident status or an employment visa.

The ruling was welcomed by a host of global financial institutions, law firms, executive search firms, and other businesses. This ruling strengthens Hong Kong’s ability to attract global talent and its competitiveness as recruiting and relocating talent to Hong Kong had sometimes been hampered because of the immigration restrictions on same-sex couples.

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4. ITALY

A security and immigration decree, making substantial changes to the immigration and citizenship law, has been signed.

After being approved by the Italian government, a new Law Decree was signed by the President and published in the Italian Official Gazette (n. 113) on October 4, 2018. The Law Decree entered into force October 5, 2018.

The decree must be converted into law by the Parliament within 60 days of its publication. Failure to do so will result in the decree becoming retroactively ineffective from the publication date. The Parliament may introduce amendments to the decree upon conversion into law.

Main Changes to Immigration Law

  • A permit for humanitarian reasons (granted to those who cannot obtain refugee or subsidiary protection status but are recognized to be in danger if repatriated) will no longer be issued. Instead, “special reasons” permits can be issued to certain categories of applicants, such as victims of exploitation and domestic violence, people from countries hit by natural disasters, people in need of medical care. and those performing “acts of civic value.”
  • The decree widens the range of criminal offenses that can result in revocation of international protection and refugee status.
  • Migrants can be kept in pre-removal detention centers (CPR) up to 180 days (instead of 90 days).
  • More funds will be available for repatriating migrants who have no right to stay in the country.

Main Changes to Citizenship Law

  • The decree increases the processing time for citizenship by marriage and naturalization applications (48 months).
  • It introduces the possibility for citizenship by marriage applications to be rejected after the 48-month period.
  • The application fee has been increased (from €200 to €250).
  • Citizenship acquired by marriage or naturalization will be revoked for people convicted of terrorism-related offenses or offenses related to public security.

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5. SPAIN

Spain has implemented an EU directive on research and student permits.

Spain has finally implemented, or “transposed,” European Union (EU) Directive 2016/801/EC through the Royal Decree-Law 11/2018, effective September 4, 2018. The Directive’s goal is to continue to attract talented and skilled people to the EU.

The transposition introduces into the Spanish legal framework the regulation of an EU research permit granting the right to intra-EU mobility, with validity for 12 months to enable researchers to seek employment once the research permit has expired.

Regarding students, the transposition introduces a permit valid for 12 months for students to seek employment once their student permits have expired, the possibility of their obtaining student permits through an in-country process (skipping the visa step process), and sponsoring of the student permit application by the Study Center instead of by the student. Also, a new training permit for students is valid for up to two years after obtaining a university degree.

In a nutshell, new permits have been implemented under Spain’s legal framework to facilitate foreign nationals’ research activity in Spain and their intra-EU mobility and to facilitate the training of foreign students and, under certain circumstances, their incorporation into the Spanish labor market.

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6. TURKEY

Turkey has lowered financial thresholds for Citizenship by Investment.

On September 18, 2018, Turkey announced a lowering of the financial thresholds for Citizenship by Investment in Turkey. For a comparison with the previous levels for each type of investment (e.g., real estate, bank deposit, government bonds), please see the chart below.

It is hoped that these new lower thresholds will allow the investment program to lead to more citizenship filings and approvals.

Turkish Citizenship by Investment Level
(5627 Regulation on the Implementation of the Turkish Citizenship Law)

https://abil.sharefile.com/d-s5a17ae8d9d240669

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7. UNITED KINGDOM

The Migration Advisory Committee (MAC) has published its long-awaited recommendations for work migration post-Brexit, following a call for evidence from employers and other stakeholders during the summer of 2017.

The key recommendations of the United Kingdom’s (UK) MAC include:

  1. The general principle behind migration policy changes should be to make it easier for higher-skilled workers to migrate to the UK than lower-skilled workers. This is in line with proposals in a leaked government document publicized in 2017, where the government indicated it was in favor of granting long-term visas for highly skilled European Union (EU) migrants and shorter-term visas for low skilled migrants, subject to a salary cap.
  2. There should be no preference for EU citizens unless this forms part of an agreement between the UK and the EU. As the UK government and the EU are still in negotiations to determine the nature of a future UK/EU agreement, it is possible the UK government will concede some preferential treatment for EU citizens as part of any final agreement.
  3. Abolish the cap on the number of migrants under Tier 2 (General). For more on this, see https://www.kingsleynapley.co.uk/insights/blogs/immigration-law-blog/scrap-the-cap-why-its-time-for-the-tier-2-immigration-cap-to-go.
  4. Tier 2 (General) should be open to all jobs at RQF3 and above. This would bring many more non-graduate-level, medium-skilled occupations back into the SOC codes (occupation list), which have been excluded since the threshold for inclusion in the occupation list was raised first to RQF level 4 and later to RQF level 6. The Shortage Occupation List will be fully reviewed in the MAC’s next report in response to the SOL Commission. If a job appears on the SOL, there is no requirement for employers to advertise the role before offering a job to a non-EU migrant. Furthermore, extra points are awarded to migrants under the Tier 2 cap if they will be performing shortage occupation roles.
  5. Maintain existing salary thresholds for all migrants in Tier 2. The MAC believes that this will avoid downward pressure on salaries.
  6. Retain but review the Immigration Skills Charge (ISC). This is currently set at £1,000 per annum and was set to double to £2,000 at some point.
  7. Consider abolition of the Resident Labour Market Test (RLMT). If not abolished, extend the numbers of migrants who are exempt through lowering the salary required for exemption.
  8. Review how the current sponsor licensing system works for small and medium-sized businesses.
  9. Consult more systematically with users of the visa system to ensure it works as smoothly as possible.
  10. For lower-skilled workers, avoid Sector-Based Schemes (with the potential exception of a Seasonal Agricultural Workers scheme). The government has already introduced a visa scheme for fruit and vegetable growers on a pilot basis to run until the end of December 2020.
  11. If a SAWS scheme is reintroduced, ensure upward pressure on wages via an agricultural minimum wage to encourage increases in productivity.
  12. If a “backstop” is considered necessary to fill low-skilled roles, extend the Tier 5 Youth Mobility Scheme.
  13. Monitor and evaluate the impact of migration policies.
  14. Pay more attention to managing the consequences of migration at a local level.

Although the report does contain some positive recommendations, particularly regarding the scrapping of the Tier 2 cap, some observers say it is difficult to see how the government can entertain the prospect of bringing EU migrants within Tier 2 without massively increasing its resourcing of the Home Office.

Currently, EU migrants can come to the UK and immediately take up a job with minimal bureaucracy and no involvement of the immigration services. Even if the government were to introduce a more simple and streamlined application process with no RLMT and no Tier 2 cap, this would still be a substantial administrative burden for many employers.

Now that the government has the MAC’s recommendations, it is expected that a White Paper will be published shortly on the architecture of the UK’s post-Brexit immigration system.

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8. 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
    • New Data Show Increase in H-1B Denials and RFEs
    • ABIL Urges Administration to Change “Buy American and Hire American” Executive Order
    • ABIL Member Kuck Baxter Immigration Commercial Nominated for an Emmy
    • ABIL Members Note Immigration Threats for Employers in 2018
  • ABIL is available on Twitter: @ABILImmigration.
  • Recent ABIL member blogs are at http://www.abilblog.com/.

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9. Member News

Dagmar Butte was quoted by Forbes in “The Next Harmful Move Against H-1B Visas.” Commenting on what might be included in an upcoming Trump administration regulation to make it more difficult for employers to hire H-1B workers, Ms. Butte said, “I think they will eliminate the Level 1 wage. That would be contrary to the statute, which mandates 4 wage levels. This would definitely buy them a lawsuit unless Congress changes the statute. I also think they will attempt to eliminate certain kinds of third-party employment or require formal co-employment. However, I am not sure how they’ll do it…. All of this will hit employers and ‘entry-level’ foreign national workers the hardest.” Ms. Butte explained that most new graduates, whether foreign-born or native-born, are considered entry-level workers. “If the Level 1 or entry level wage is eliminated, employers are not likely to hire an entry-level worker at the next wage level, which in almost all H-1B occupations is significantly greater when you look at the DOL wage ranges. Therefore, a foreign student would not be able to obtain entry-level work in the U.S. upon graduation. This would be true even for many advanced degree graduates.” She also warned that revising the definition of a specialty occupation to include achievement beyond the existence of a degree would make the process arbitrary for employers. She noted that a separate problem would emerge if a revised definition were to focus narrowly on the title of the degree and overlook the individual’s body of knowledge because that would ignore what employers seek in a competitive labor market.

The Forbes article

Charles Foster, chairman of Foster LLP, is the driving force behind an effort to build a monument to Lyndon B. Johnson in Houston, Texas. An article about this effort is available here.

Corporate Immigration Law Firm and Gomberg Dalfen, S.E.N.C., were named by Canadian Lawyer to its Top Ten Immigration Boutiques list. They are the firms of ABIL members Barbara Jo Caruso and Avi Gomberg, respectively. For more information, see Canadian Lawyer.

Several attorneys from Gomberg Dalfen, S.E.N.C., were listed in Who’s Who Legal: Canada 2018: Avi Gomberg, Seth Dalfen, Geneviève Hénault, and Isabelle Owston (see Who’s Who Legal). Also listed was Barbara Jo Caruso (see Who’s Who Legal).

The following attorneys from Gomberg Dalfen, S.E.N.C., were listed in the 2019 Canadian Legal Lexpert® Directory: Avi Gomberg, Seth Dalfen, and Geneviève Hénault.

Klasko Immigration Law Partners, LLP, was included in the 2018 Best Places to Work by the Philadelphia Business Journal. The firm was named a Best Place to Work for the third consecutive year. Klasko issued a statement: “Given the emotionally charged climate surrounding immigration, the firm is honored to have continued the tradition of consistently fostering a rewarding and positive work environment.”

Klasko Immigration Law Partners, LLP, has released a new episode in its “Statutes of Liberty” series. Episode 10: The Best, Brightest, and Backlogged discuss the backlog, who it affects, how to read the Visa Bulletin, and strategies for EB-1 visas.

Ronald Klasko and William Stock earned placement in Human Resource Executive and Lawdragon’s annual joint publication of their “best of” lawyers list for the 11th year. In addition to Mr. Stock’s repeated recognition, which is bestowed on 216 lawyers, Mr. Klasko has been inducted into the publication’s Hall of Fame. The standard for this honor is high, with only 16 inductees this year, needing a minimum of 35 years of practicing law and consistently high recognition. More information.

Mr. Klasko, Mr. Stock, and Elise A. Fialkowski have been included in The Best Lawyers in America© 2019 in the area of immigration law. Mr. Stock was named the Best Lawyers® 2019 Immigration Law “Lawyer of the Year” in Philadelphia. It is the second time he has received this honor.

Mr. Klasko was quoted by Law360 in “4 USCIS Policies Changing the Face of Business Immigration.” He said he is mustering plaintiffs to launch a lawsuit against a new USCIS policy on unlawful presence, accusing the agency of violating the Administrative Procedure Act’s requirements to provide notice and an opportunity for the public to comment on a new agency rule: “We’re very concerned about this because the immigration service has overturned a legal interpretation and policy that has been in place for 21 years without APA notice and comment rulemaking. The implications are huge.” It could mean that universities would have to take on massive liability, he noted. If, for example, a foreign student adviser incorrectly counsels a student that he or she can work extra hours on a campus job without violating visa status and accruing unlawful presence, that student may have grounds to sue, Mr. Klasko said. He noted that the policy does not necessarily change his strategy for filing visa applications. He said he already submits extensive documentation with every application to cover every possible issue. He is, however, more cautious about ensuring that he establishes a good record with that initial filing in the event the case needs to be litigated. The article is available by registering at law360.

Klasko Immigration Law Partners, LLP, welcomes associate Natalia Gouz. Ms. Gouz, a graduate of New York Law School, has extensive experience in both nonimmigrant and immigrant matters. She assists clients from a broad spectrum of industries including the financial sector, information technology, telecommunications, higher education, healthcare, logistics, and hospitality.

Kuck Baxter Immigration is working with Emory Law School and the Church of Jesus Christ of Latter-Day Saints on an Immigrant Services Initiative law clinic, inaugurated August 8, 2018, in Chamblee, Georgia. The article is available by registering at law.com.

Robert Loughran has authored “5 Steps Businesses Can Take as U.S. Ramps Up Immigration Audits,” published by Austin Business Journal. The article is available at Foster Global or by subscription here.

Mr. Loughran addressed immigration options and unique port-of-entry considerations for musicians during a panel presentation on International Touring Development & Logistics at the Austin-Toronto Music City Alliance Summit. The panel, held October 11, 2018, was designed to focus on development of management/venue/promoter/agent networks between Canada and the United States, including establishing additional touring routes for Austin and Toronto artists, as well as current and evolving best practices for securing visas.

Cyrus Mehta received the Advocate Award at the annual gala of the Northern Manhattan Improvement Corporation (NIMC) on October 4, 2018. Since 1979, NMIC has been a source of support and opportunities for the most vulnerable community members in upper Manhattan, and now the Bronx. NIMC provides immigration services, preserves and develops affordable housing, and supports survivors of intimate partner violence. For more information, see NIMC.

Mr. Mehta has authored several new blog entries: “Recipe for Confusion: USCIS Says Only the Final Action Date in Visa Bulletin Protects a Child’s Age Under the Child Status Protection Act,” “Suspension of Premium Processing: Another Attack on the H-1B Program,” and “Artificial Reproductive Technology and Transmission of American Citizenship: Is There Any Need For a Biological Link After Jaen v. Sessions?”

Mr. Mehta spoke at the New York City Bar on “Stress Testing International Law: A Time of Archipelagos, Moats, and Walls” on October 9, 2018. For more information, see NYC Bar Association.

Mr. Mehta was quoted extensively by the Times of India in “Tough Policy for International Students in U.S.” The article is here. He was also quoted in “Sponsoring U.S. Green Card for Parents to Get Tougher,” and “Draft Proposes Fresh U.S. Immigration Curb.”

Sophia Genovese, of Cyrus D. Mehta & Partners PLLC, has authored several new blog entries: “Expecting Asylum Seekers to Become US Asylum Law Experts: Reflections on My Trip to the Folkston ICE Processing Center,” and “Indirect Refoulement: Why the U.S. Cannot Create a Safe Third Country Agreement with Mexico.”

David Isaacson, of Cyrus D. Mehta & Partners PLLC, has authored a new blog entry, “Jaen v. Sessions: The Second Circuit Reminds Us That Government Manuals Aren’t Always Right.”

Cora-Ann V. Pestaina, of Cyrus D. Mehta & Partners PLLC, has authored a new blog entry, “F-1 Cap Gap Students In Limbo from October 1, 2018 Onward If Their H-1B Cases Have Not Been Approved.”

Angelo Paparelli has authored several new blog entries: “The Long-Lived ‘Con Job’ Structural Injustice in the Immigration ‘Courts’,” “Where is the U.S. Citizenship and Immigration Services Director?“, and “California Can Revive the Immigrant Worker Protection Act by Challenging the Authority of U.S. Citizenship and Immigration Services’ ‘FDNS’ Enforcement Officers.”

Rodrigo Tannus has authored several new articles in Diario la República: “Circulación laboral en la Alianza del Pacífico (I),” and “Circulación laboral en la Alianza del Pacífico (II).”

Karl Waheed was quoted by Bloomberg in “France: New Immigration Law Would Ease Some Visa Requirements for Foreign Professionals.” Law No. 2018-778 of Sept. 10, 2018, for Managed Immigration, an Effective Right of Asylum, and Successful Integration, published September 11, 2018, “for the most part aimed to make the asylum process more restrictive for asylum seekers, but it also includes a handful of very business-friendly immigration measures for the corporate world,” he said. The article, which includes additional quotes, is available here.

Bernard Wolfsdorf was quoted by MarketWatch in “U.S. Immigration Fund: Washington Update: EB-5 Regional Center Program Reauthorization Extended to December.” Mr. Wolfsdorf said that “while Congress has attempted to reform the EB-5 program for several years, my view is the stars are now in alignment and we can expect to see new legislation before the end of 2018. I am hopeful Congress will provide meaningful reform including a long-term extension, reasonable grandfathering of TEA rules and a moderate increase in the minimum investment amount so that the already diminished demand is not cut off. Most important, I am hopeful Congress will correct the program to 10,000 investors, not only allow 3,000 investors and their family annually.” The article is at MarketWatch.

Stephen Yale-Loehr coordinated Cornell Law School’s conference on Deferred Action for Childhood Arrivals (DACA) held at the New York City Bar Association building on October 5, 2018. The conference presented a comprehensive overview of the legal and political situation around DACA and other forms of temporary immigration status. Expert panelists explored the origins of the “Dreamer” population, the administrative and litigation responses to the situation, and where we go from here, both for Dreamers and others in tenuous immigration situations. Mr. Yale-Loehr moderated the first panel, “Politics, Passions, Parents: How the DREAMers Gained Momentum.” For more information, see Cornell Law School.

Mr. Yale-Loehr was quoted by the Voice of America in “International Students Can Use U.S. Investor Visa to Gain Green Card.” “I would think several hundred students” get an EB-5 visa each year, he said. “But nobody knows for sure. It may only be a hundred.” The article notes that although parents and families typically provide the money, students sometimes decide where to invest. “That is probably the most daunting part of the EB-5 process for many investors. I compare it to a Rubik’s Cube,” he explained. “The immigration component has to line up with the [investment] component, which has to line up with the job creation element. … Sometimes, if the students are majoring in business, they’re very savvy.” The article is at Voice of America.

Mr. Yale-Loehr was quoted by Inside Higher Ed in “A Dream Denied.” Commenting on what’s known in immigration law as “nonimmigrant intent,” which is a common reason why prospective students are denied visas to come to the United States, Mr. Yale-Loehr noted, “It’s hard because it is subjective. It’s really up to the individual consular officer to determine whether they think the individual will go back to their home country after they finish their studies. For some countries it is harder than others: it’s a lot easier to show nonimmigrant intent if you’re from a Western European country than if you’re from a West African country. It’s always been the case, and this is just the latest example of that. There’s no magic bullet or document that will necessarily satisfy a consular officer. The more evidence that an individual has, such as a job offer or owning land or being married to someone who is staying behind in the home country, the better the chances that someone will satisfy that ‘nonimmigrant intent’ requirement. But for many students, they’re not married, they don’t own land and if they’re the first one in their family to be going to college, it can be hard to prove that they really do intend to return home after they finish their studies.” The article is at Inside Higher Ed.

Mr. Yale-Loehr was quoted by Univision in “Unos 100,000 cónyuges de visas H-1B están a punto de perder sus permisos de trabajo” [“100,000 Spouses of H-1B Visa Holders are on the Verge of Losing Their Work Permits”]. He noted (in Spanish), that Trump’s executive order of April 18, 2018 “is too simple a solution to a complex problem.” He added that changes in immigration laws should be monitored “to make sure that companies pay the right salary, but that they do not damage innovation in the process.” The article is at Univision.

Mr. Yale-Loehr participated in an hour-long panel discussion on the Syracuse PBS TV station about how President Trump’s immigration changes are affecting people in New York. A recording is available at WCNY.

Mr. Yale-Loehr was quoted by the San Jose Mercury News in “H-1B: U.S. Officials Cracking Down on Indian Citizens, Report Says.” “Cases that used to be approved without a second thought are now receiving requests for evidence and are being denied,” he noted. Mr. Yale-Loehr said that the Trump administration’s H-1B crackdown could ultimately hamper U.S. firms’ ability to hire U.S. workers: “They may not be able to continue to grow their companies the way they would like. It may make larger companies more likely to set up overseas operations rather than expand in the United States, and that ultimately hurts U.S. workers.” On the issue of whether Indian citizens are being singled out by the U.S. government, Mr. Yale-Loehr said that was unclear. “It could just be because Indians are over-represented among computer professionals; therefore they’re over-represented in these requests for evidence and denials,” he noted. The article is at San Jose Mercury News.

Mr. Yale-Loehr was quoted by ABC News in “First Lady Melania Trump Sponsored Parents’ Green Card Application.” He noted, “The most obvious way that they would have become green card holders is by being the parents of a U.S. citizen—i.e., Melania Trump.” The article is at ABC News.

Mr. Yale-Loehr was quoted by the Miami Herald in “Venezuelan Military Deserter Faces Deportation Back to Government U.S. Calls Dictatorship.” Mr. Yale-Loehr, who has represented military deserters seeking asylum in the United States and co-directs the asylum clinic at Cornell Law School, said that in the past those who have fled the military from governments of U.S. adversaries have been more likely to gain asylum. “If you’re fleeing a government that the United States supports, like Canada, you’re more likely to lose asylum,” he noted. “But if you’re fleeing a government like Venezuela that the United States opposes then you’re more likely to win asylum, even if the facts are similar.” The article is at Miami Herald.

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

  • Fox News, re reduction in migrant deaths along the U.S.-Mexico border: “I don’t know if reducing the number of deaths is or is not a deterrent to entering the Unites States—from a humanitarian perspective anything that can be done to reduce the number of deaths is to be applauded.” The Fox News story
  • Univision, re public charge rule (in Spanish)
  • Law360, re public charge rule: Denying Green Cards Over Benefits Would Invite Lawsuits: Mr. Yale-Loehr said immigrants should not panic over the proposed rule yet. The public will have 60 days to comment. Moreover, the administration will need to review the thousands of comments it will receive before it can finalize its rule. “Even then, litigation could prevent the final rule from ever taking effect.” Article available by registering at Law360.
  • Marketplace, re public charge rule (available here; the story starts at about the 3:45-minute mark)

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