Headlines:

1. RED FLAGS IN EMPLOYMENT LAW RELATED TO IMMIGRATION: AN OVERVIEW – This article provides an update on red flags in employment law related to immigration in several countries.

2. ITALY – On November 13, 2023, the European Union (EU) Council adopted new rules to allow online filing of Schengen visa applications. Also, a measure has been introduced under which some non-EU citizens can pay a fee to register for the Italian National Health Service. In other news, the Philippine consulate is cautioning Filipinos against falling victim to illegal recruitment schemes targeting Italy.

3. RUSSIA – The Russian government has changed the migration registration rules.

4. SPAIN – Spain has partially implemented European Union (EU) Directive 2021/1883 concerning the conditions of entry and residence for highly qualified employment of third-country nationals.

5. UNITED KINGDOM – As expected, UK Visas and Immigration fees increased on October 4, 2023.

New Publications and Items of Interest – New Publications and Items of Interest

ABIL Member / Firm News – ABIL Member / Firm News

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ABIL Global Immigration Update – December 2023

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1. RED FLAGS IN EMPLOYMENT LAW RELATED TO IMMIGRATION: AN OVERVIEW

Italy

To apply for a work permit for a foreign national, a company must be legally registered in Italy. It is possible to use a professional employer organization/employer of record (PEO/EOR) company under certain conditions:

1. The PEO/EOR company must be registered in Italy as a branch or subsidiary (it cannot use a company registered in another European Union (EU) country);

1. The PEO/EOR company must be authorized by the Italian Labor Agency and have a license as Agenzia per il Lavoro; and
2. There must a contract signed between the PEO/EOR and the final customer (the company where the worker will be assigned to work) (in accordance with article 30, law Decree n. 81/2015). Companies can hire workers as “temporary agents” only if they execute a contract with the company where the worker is assigned to work.

When intending to hire a foreign worker, the employer must always make sure the foreign worker holds a permit type that allows him or her to work. There are no formal, government-mandated procedures or systems for verifying an employee’s right to work in Italy. The employer must verify independently that the person holds a visa/permit with the required permission to work.

Entry into the country for work purposes (either as subordinate employed or self-employed job) is subject to the specific quotas released by the government for the intake of foreign workers. An exception to the quota system is for certain categories of workers (e.g., highly skilled workers). Two cases are possible when an Italian employer is willing to hire a foreign worker:

1. The non-EU candidate already resides in Italy. In that case, it is the employer’s duty to check that the worker has a permit that allows work (e.g., permit for work, permit for family reasons); or
2. The non-EU candidate resides outside Italy. In that case, when quotas are available or anytime in case of a quota-exempt category of worker, the Italian employer must obtain a work permit clearance from the immigration authorities (average three-month processing time) for the employee to be eligible to apply for a work visa at the Italian consulate in his or her country of residence, enter Italy, and complete the in-country immigration procedures. The Italian employer is authorized to hire the worker only after the worker has obtained the work permit and visa and arrived in Italy. The employee can therefore be hired while the residence permit application is pending or, in the context of a renewal, during the renewal process, provided the application has been filed within 60 days after the permit expiration date and the foreign worker has the renewal receipt.

Netherlands

The intersection of employment law and immigration law in the Netherlands is critical for employers to navigate. As in most jurisdictions, employers play a central role in obtaining and supporting work-related visas for their foreign workers. In addition, most work visas issued are for highly skilled workers, which can only be obtained if the employer is a recognized sponsor that has stricter obligations than other sponsors. There is high scrutiny of labor conditions and salary thresholds.

Red flags include:

1. Awareness of exemptions. Non-European Union (EU)/European Economic Area (EEA)/Swiss employees need work authorization. Note that the United Kingdom is no longer a member of the EU or the EEA.
2. Inadequate verification of resident status: Employers should verify the resident status of foreign employees. Without exception, they must identify the employee on the work site and with the original residence card or (in the case of EU/EEA/Swiss) passport. They must make a photocopy of this document and keep it in their personnel files for five years after the employee has stopped working for the company.
3. Non-compliance with minimum salary requirements. In particular, highly skilled migrant (HSM) permits are subject to strict minimum salary requirements. Employers must continue to meet these requirements to comply with immigration laws. Non-compliance can lead to penalties and can affect the validity of the employee’s permit. In practice, companies in the Netherlands often seem to be more concerned about the potential revocation of their employee’s residence permit than about the financial penalties, which are not excessively high for what qualifies as administrative infractions, not criminal offenses.
4. Lack of reporting to immigration authorities. Employers must report relevant changes in the employment status of foreign workers to the immigration authority, Immigratie en Naturalisatiedienst (IND). Failure to fulfill reporting obligations can result in penalties.
5. Inadequate management of permit renewal. Employers should systematically monitor the expiration dates of residence permits and initiate the renewal process in a timely manner to avoid interruptions in employment. No less important, salary thresholds change every year. When a permit is renewed, the salary must meet the current threshold amount. A renewal can therefore lead to the necessity of meeting a higher salary threshold than the employee would otherwise have been awarded.
6. Amendment of salary due to leave situations. In case of sick leave, employers in the Netherlands must continue making salary payments for a maximum of 24 months before being allowed to terminate the employment contract. The minimum percentage of the employee’s salary that must be paid is 70 percent of the regular salary. In practice, some employers pay the full salary; others stipulate a decrease in the employment contract. If the decrease is 70 percent, for example, this could make the salary drop below the applicable threshold. In case of short, temporary sick leave, the HSM permit cannot be revoked; in case of long-term sickness, the permit can be revoked. The IND does not clearly distinguish between short- and long-term sick leave. Unpaid leave is even more problematic. Only unpaid parental leave is allowed.
7. Incomplete or inaccurate documentation. Proper recordkeeping of foreign employees’ documents and status is one of the obligations of employers, particularly in the case of recognized sponsors. Incomplete or inaccurate completion of immigration-related paperwork, such as for residence permits or work permits, can lead to sanctions.
8. Foreign employees on a partner visa. Employers may have foreign employees for whom they are not the sponsor; dependent visas in general include full work authorization in the Netherlands. If the employee’s relationship ends, the visa may be revoked. It is therefore advisable to check with the employee on a regular basis to ascertain whether their permit is still valid and/or agree with the employee that the employer is granted power of attorney to check the employee’s status with the IND.

More generally, employers in the Netherlands should seek legal advice to ensure they are aware of and compliant with the latest immigration laws and employment regulations. Immigration laws can be complex and subject to change, so staying informed and proactive is crucial for avoiding legal issues.

Turkey

Turkey’s immigration procedures are very entwined with local employment law, as is the case in most countries. Issues related to employment law, social security law, and tax must be considered by the Turkish employer sponsoring the work permit.

To start, the Turkish sponsoring company will be considered as the employer of the foreigner regardless of whether the person is “posted” to Turkey from a company outside Turkey while remaining on the foreign payroll and therefore “employed” abroad. This means that a fully executed Turkish employment agreement between the employee and the Turkish entity sponsor must be filed. Proof of an employment agreement with the sending company abroad or an offer letter will not suffice.

The terms and conditions of employment in Turkey apply to a work permit holder, including the employer’s provision of social security and health insurance contributions, and the employer’s restrictions on termination according to Turkish employment law. Also, data privacy for foreigners on work permits must be protected by the sponsoring employer according to Turkey’s Data Protection Law (which is quite similar to the European Union’s General Data Protection Regulations).

Additionally, as the work permit is adjudicated by a directorate under the Ministry of Labor (MoL), any non-compliance perceived during the work permit filing/renewal process or observed in an MoL inspection, will be forwarded to the appropriate directorate within the MoL, such as Social Security, Employee Health and Safety, or National Health Care, as applicable.

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2. ITALY

On November 13, 2023, the European Union (EU) Council adopted new rules to allow online filing of Schengen visa applications. Also, a measure has been introduced under which some non-EU citizens can pay a fee to register for the Italian National Health Service. In other news, the Philippine consulate is cautioning Filipinos against falling victim to illegal recruitment schemes targeting Italy.

New Rules for Online Filing of Schengen Visa Applications

The new rules for online filing of Schengen visa applications (two regulations) will be published in the Official Gazette of the EU and will enter into force on the twentieth day after publication. The date on which the new rules will enter into force depends on when technical work on the visa platform and the digital visa has been concluded.

The two regulations:

• Establish an EU visa application platform, where, with some exceptions, Schengen visa applications will be submitted. Through this platform, applicants can input all relevant information, upload electronic copies of their travel documents and supporting materials, and complete their visa fee payments.
• Eliminate the need for physical visits to the consulate in most cases. Generally, in-person appearances will only be required for first-time applicants, individuals with expired biometric data, and those holding a new travel document.
• Substitute the existing visa sticker with a cryptographically signed barcode for enhanced security.

EU Blue Card: New Rules for Highly Qualified Workers

On October 16, 2023, the Italian Council of Ministers approved a legislative decree implementing Directive (EU) 2021/1883 and introducing new rules on the entry and residence of highly qualified foreign workers (EU Blue Card) approved by the government. The new rules are expected to simplify entry and residence conditions, guarantee more flexibility, and facilitate family reunification. The decree will enter into force after publication in the Official Gazette.

Healthcare Measure Introduced

The Italian Government has approved a draft budget law for 2024 that introduces a measure by which some non-EU citizens will have the option to register for the Italian National Health Service (NHS) by paying an annual contribution of 2,000 euros.

The Ministry of Health clarified that this rule applies to specific categories of non-EU citizens who are not entitled to compulsory registration with the Italian NHS. The categories include students and au pairs staying in Italy for less than three months, individuals with a residence permit for elective residence, religious personnel, diplomatic and consular staff, non-EU seconded employees of companies, foreigners participating in volunteer programs, and parents over the age of 65 for family reunification.

The rule does not affect those who are already compulsorily registered with the NHS, such as individuals with various types of residence permits, unaccompanied foreign minors, and individuals awaiting the issuance of their first residence permits.

Warning About Illegal Recruitment Schemes

In response to an announcement by the Italian government about the admission of 452,000 foreign nationals for employment over the next three years, the Philippine consulate is cautioning Filipinos against falling victim to illegal recruitment schemes targeting Italy.

Philippine Consul General Elmer Cato, based in Milan, has issued an advisory urging Filipinos to exercise caution due to the potential for unscrupulous individuals to exploit the Italian government’s announcement. The consulate’s warning comes after the Department of Migrant Workers revealed that more than 200 Overseas Filipino Workers allegedly became victims of two Milan-based companies.

Initial reports indicate that the modus operandi of these agencies involves targeting Filipinos in Italy and offering jobs in Europe to their unemployed relatives in the Philippines. However, victims are allegedly coerced into paying significant processing fees.

The Consul emphasized the consulate’s commitment to preventing further victimization, stating, “We do not want any more of our compatriots to fall prey to the predatory practices of certain individuals and agencies here in Milan who may exploit this announcement to defraud others.” The consulate has been actively addressing complaints from Filipinos who have paid exorbitant fees to individuals and agencies in Milan in exchange for nonexistent jobs. The Consul confirmed that investigations are underway, with efforts focused on gathering evidence, identifying witnesses, and collaborating with local authorities.

Investor Visa Program Suspended for Dual Nationals With Russian or Belarusian Citizenship

On July 14, 2023, the Italian Government re-introduced a suspension of the Italy Investor Visa Program for Russian and Belarusian citizens. According to reports, this measure has now been extended also to those Russian and/or Belarusian nationals who applied and obtained the Ministry clearance using a second citizenship.

The extension may also affect applicants who have already received the investor visa and are waiting for the issuance of their residence permit cards.

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3. RUSSIA

The Russian government has changed the migration registration rules.

In accordance with amendments to Federal Law No. 109-FZ of July 18, 2006, “On Migration Registration of Foreign Citizens and Stateless Persons in the Russian Federation,” which entered into force on October 26, 2023, foreign citizens can submit directly to the migration authority a notification of arrival at the place of stay in the following cases:

1. The foreign national lives in premises owned by a citizen of the Russian Federation (except a hotel, rest home, medical organization, etc., and except at the address of the organization in which a person carries out work). Both parties must have a confirmed personal account on the portal gosuslugi.ru: the foreign citizen to submit a notification of his or her arrival in electronic form and for children under 18, and the owner of the residential premises to confirm consent;
2. The foreign national resides in the premises as stated in the application for a letter of invitation to the Russian Federation as the intended place of stay (in case of entry to Russia on a visa). A foreign national submits such a notification to the migration registration authority in person. This rule does not apply to cases of accommodation in a hotel, rest home, medical organization, etc., or at the address of the organization in which a person carries out work;
3. The foreign national and the receiving party conclude a residential lease agreement. A foreign national submits to the migration registration authority directly in person or in electronic form a notification of arrival at the place of stay and arrival at the same place for children under 18 years specified in the residential lease agreement.

These changes have expanded the list below according to which a foreign national can submit in person a notification of arrival at the place of stay to the Ministry of Internal Affairs:

1. If there are documents confirming reasons that prevent the receiving party from sending a notification of the arrival of a foreign national at the place of stay to the migration registration authority, this notification should be submitted according to the established regulations to the migration authority by that foreign national;
2. If a foreign national owns residential premises on the territory of Russia, he or she may, if actually living at that address, declare it as his or her place of residence. In this case, he or she would submit a notification of arrival at that place to the migration registration authority directly in person, in electronic form, or through a multifunctional center;
3. The receiving party, which is the owner of the residential premises, is located outside Russia (for example, a Russian citizen permanently residing outside the Russian Federation, a foreign citizen, a foreign legal entity). A foreign national must personally notify the migration authority of arrival at the place of stay, additionally providing notarized consent of the receiving party.

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4. SPAIN

Spain has partially implemented European Union (EU) Directive 2021/1883 concerning the conditions of entry and residence for highly qualified employment of third-country nationals.

This implementation is being carried out through amendments to Spain’s Entrepreneurs Act 14/2013, establishing two schemes for highly qualified professionals (HQPs) within the Large Companies Unit. The most substantial features are:

National Residence Permit for Highly Qualified Professionals

This category already exists, but the permit’s requirements have been updated to include individuals with qualifications equivalent to at least level 1 of the Spanish Qualifications Framework or with professional experience of at least three years comparable to the required qualification. The labor market test does not apply.

The permit validity aligns with the employment contract duration plus an additional three months, with a maximum period of three years.

Residence Permit for Highly Qualified Professionals—EU Blue Card

This category is for third-country nationals with higher education qualifications of at least three years (equivalent to level 2 of the Spanish Qualifications Framework or level 6 of the European Qualifications Framework) or at least five years of relevant professional experience. For Information and communications technology managers and professionals, the required experience is reduced to three years within seven years before applying for an EU Blue Card. The labor market test does not apply.

The salary threshold ranges between 1.0 and 1.6 times the average gross annual salary, with a possibility of applying at 80 percent of the threshold under specific circumstances.

The permit validity aligns with the employment contract duration plus an additional three months, with a maximum period of three years.

Holders of an EU Blue Card from another Member State can stay up to 90 days in any 180-day period in Spain without authorization. To stay longer, they must apply for the EU Blue Card in Spain, with a streamlined process allowing them to start working upon application submission.

Dependents of EU Blue Card holders can apply for a residence permit in Spain unless they hold international protection status in Spain.

The implementation provides pathways for highly qualified professionals to work and reside in Spain, with adjustments made to existing permits and the introduction of the EU Blue Card system to facilitate mobility within the EU for qualified workers.

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5. UNITED KINGDOM

As expected, UK Visas and Immigration (UKVI) fees increased on October 4, 2023.

The precise timing of the Immigration Health Surcharge (IHS) increase was unknown. It is now known from the draft legislation that the IHS will increase no sooner than January 16, 2024. Assuming both Houses of Parliament approve it, the increase will start on that date or 21 days after the legislation is passed, whichever is later.

The IHS headline rate will increase from £624 to £1,035 per year of the visa. The discounted rate (for students, Youth Mobility Scheme applicants, and under 18s) will increase from £470 to £776.

Those who have any UK visa applications in the pipeline should submit them before January 16, 2024, if possible.

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5. New Publications and Items of Interest

Alliance of Business Immigration Lawyers:

• ABIL is available on X (formerly Twitter): @ABILImmigration
• Recent ABIL member blogs are at http://www.abilblog.com/

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ABIL Member / Firm News

Dagmar Butte and Cyrus Mehta were quoted by Forbes in Apple Settles $25 Million DOJ Immigrant Lawsuit, Regardless of PERM. Ms. Butte said, “The Apple settlement highlights the disconnect between real-world recruitment practices and the artificial nature of the mandated recruitment steps under PERM. This is especially true when you consider that most modern recruitment practices did not exist when PERM was rolled out in 2005.” She noted that even if the PERM recruitment structure is an invention of the Department of Labor, the underlying good-faith test of the labor market seems to require treating PERM positions no less favorably in the breadth of recruitment than regular positions. “I tell my clients to remember that this system was designed to protect U.S. workers, and not to facilitate hiring foreign nationals and they should view recruitment from that perspective. I also always ask them to tell me how they would recruit for the job if PERM were not a part of the process and make that part of the optional steps for professional positions.” Mr. Mehta said, “The safest course is for employers to hew as closely as possible to their non-PERM recruitment practices. Thus, while it is lawful for employers to ask applicants to send resumes only by postal mail under the PERM regulations, if the employer otherwise allows applicants to send their resumes electronically, the employer should be consistent and require applicants even responding to PERM recruitment to send their resumes electronically.” He said employers are caught between the conflicting requirements of two federal agencies.

Avi Gomberg was listed in Who’s Who Legal Canada 2023 and recognized as a Thought Leader and Global Leader for Corporate Immigration.

Charles Kuck spoke with the Atlanta Journal-Constitution and WABE News in Listen: Why Were Videos Leaked in Fulton Election Case? (available by subscription).

Mr. Kuck authored a new blog post: The Visa Apocalypse is Upon Us—Welcome to the Future.

Mr. Mehta authored a new blog post: While the Proposed H-1B Rules Have Many Positive Features, They May Also Result in Requests for Evidence and Denials.

Mr. Mehta and Kaitlyn Box co-authored several new blog posts: SpaceX’s Constitutional Challenge May Nix DOJ’s Ability to Bring Discrimination Claims Against Employers under Section 274B of the Immigration and Nationality Act, Including in the Labor Certification Context; Will the Immigration Provisions in the AI EO Bring About Meaningful Change Or Be Mere Window Dressing?; and Emerging Immigration Issues Arising from Violence in the Middle East.

Mr. Mehta and Ms. Box were cited by Forbes in SpaceX Court Win Could End DOJ Immigrant Lawsuits. The article cited their blog in explaining that “[t]he Appointments-Clause challenge by Space X, if not overturned by the Fifth Circuit or Supreme Court, could provide a pathway for other employers to fend off investigations and lawsuits by the [Immigrant and Employee Rights Section of the Department of Justice’s Civil Rights Division] when they conduct recruitment under the foreign labor certification program.”

Mr. Mehta and Jessica Paszko co-authored a new blog post: How Prosecutorial Discretion Saved Our Client.

Mr. Mehta was quoted by Bloomberg Law’s Daily Labor Report in Apple’s Hiring Bias Case Reveals Big Tech Foreign Worker Dilemma. He said it’s hard to know how much of an enforcement focus the PERM process will receive beyond the two tech giants. He noted, however, that a recent court victory for Elon Musk’s SpaceX may open a pathway for other companies to challenge Department of Justice (DOJ) investigations. “One wonders why Apple and Facebook copped a settlement rather than contesting the lawsuit like SpaceX did,” Mr. Mehta said.

Mr. Mehta received the Corporate Immigration Lawyer of the Year award from Who’s Who Legal (WWL) on November 9, 2023, at a ceremony in London, England. He is also a WWL Global Elite Thought Leader.

Mr. Mehta and Greg Siskind were quoted by Law360 in DHS Rule To Thwart H-1B Visa Lottery Abuse Earns Praise (available by registering). Mr. Siskind said, “I’m glad USCIS proposed this fix. It really should solve the problem and also improve, overall, the lives of both H-1B visa beneficiaries and U.S. workers, who will see their wages increase as H-1B workers have more bargaining power.” Mr. Mehta said he was concerned about an element of the proposed rule that would add language to further define what constitutes a specialty occupation. He said that provision could unfairly exclude some foreign workers with MBAs from getting H-1B visas. Under the proposed rule, he said, an MBA degree-holder offered a job in marketing or finance, for example, would need to prove that the degree was specialized in those areas. “Undoubtedly there are MBA degrees where you can show that your coursework or whatever was in finance or marketing, but I don’t see why a business administration degree has been singled out as generalized as opposed to a law degree or a medical degree,” he said.

Mr. Mehta was quoted in the Times of India in Proposed H-1B Rule: Redefining Specialty Occupation, the Employee’s Degree Must Co-Relate to the Job. Among other things, Mr. Mehta said, “There are some features in the proposed rule that will incentivize the USCIS to issue requests for evidence and potentially deny the H-1B application. A job-position will not be considered a specialty occupation for H-1B purposes if attainment of a general degree, such as business administration or liberal arts, without further specialization, is sufficient to qualify for the position.”

Angelo Paparelli authored AI to the Rescue of U.S. Immigration, published on LinkedIn.

Mr. Paparelli authored a new blog post: Tipping the Scales of Immigration Justice.

WR Immigration has published a new blog post: Time to Feast: EB-5 Visa Outlook in FY 2024.

WR Immigration will host a webinar, December Investor Visa Outlook, as part of its “Chatting With Charlie” series.

Stephen Yale-Loehr was quoted by The Guardian in Abbott Slated to Sign Law Allowing Arrest of Anyone Crossing Texas Border Without Papers. He said, “Part of the reason for passing this law is to send a message to the Biden administration that Texas is going to go as far as it dares, and they don’t care whether they lose in court, they’re making a political statement.” Mr. Yale-Loehr said that a legal challenge against the Texas law, SB4, would probably succeed, but court battles can take several years. He said he is especially concerned about the new law’s interim effect on asylum seekers.

Mr. Yale-Loehr was quoted by the New York Daily News in Hochul Says NY Will Not Give State Work Permits to Migrants: “I’m Constrained by the Law.” He said that no state has ever tried to supersede the federal government’s role as the dispenser of work papers. He noted that the approach Hochul described would have invited long-running litigation and would not have helped the state in the short-term.

Mr. Yale-Loehr was quoted by AM New York in Tales of Survival: NYC Migrants Face Bureaucratic Challenges to Gain Work Visas After a Long Journey to America. “It seems to be hit or miss as to who gets parole versus being told just to file an asylum application,” he said. He noted, among other things, that migrants are confronted with a slew of legal obstacles when trying to avoid deportation and build a life in the United States. “There are so many challenges they have. Just on the legal front, understanding the work permit complexities, depending on what status they are. Trying to find an immigration lawyer or other advocate who can help them navigate this process. While the number of applications filed by a clinic in Lower Manhattan is impressive, he said, New York City needs to be more consistent in its efforts to help migrants apply for work permits, and it needs to step up its outreach so a greater number of newcomers are aware of the legal help available to them: “We need to have more money, and train more paralegals and more lawyers to be able to do this on an ongoing basis.”

Mr. Yale-Loehr was quoted by Univision in Academics Urge Congress to Enact Specific Immigration Reforms as Soon as Possible. The article discusses a white paper, Immigration Reform: A Path Forward, which Mr. Yale-Loehr co-authored. “We designed our proposals to address three areas where we see public support and support from a bipartisan Congress. Even in a gridlocked Congress, these targeted immigration reforms can be implemented,” he said. The article is in Spanish with English translation available.

Mr. Yale-Loehr was quoted by MarketWatch in Bipartisan Calls Grow to ‘Fix’ U.S. Border Before Approving $75 Billion to Defend Israel, Ukraine. He said that there are incremental changes to immigration law that could garner bipartisan support and address the migrant situation at the border, which is being driven by relatively new trends. The article notes that Mr. Yale-Loehr helped to convene a conference earlier this year that brought together activists, business and labor leaders, and a bipartisan group of former government officials to craft a set of reforms that could appeal to both sides of the political spectrum. “Ten years ago, the majority of people who were apprehended at the border were young males traveling by themselves primarily coming for work. Now with the breakdown of various governments in Central America, Haiti, Cuba, and Venezuela, you see families coming, fleeing just desperate situations, and that has changed the dynamic of people trying to cross into the United States.” The article notes that he and his colleagues at Cornell University Law School published a recent white paper, Immigration Reform: A Path Forward, which outlines proposals including reformation of the U.S. asylum system. Mr. Yale-Loehr said that lawmakers need to recognize the “new normal” conditions at the border and adjust how the U.S. processes asylum claims, in part by reforming immigration law and creating asylum and immigration centers outside the United States at embassies and consulates so applications can be processed outside the country.

Mr. Yale-Loehr and colleagues will hold a call on Thursday, November 9, 2023, at 12 noon ET to discuss their recent white paper in which they offer three sets of interlocking proposals structured to maximize bipartisan support: (1) strengthening border security; (2) adding work visas; and (3) offering deportation protection to DREAMers. The speakers will assess the political landscape, describe their proposals, and outline why they believe the proposed reforms should—and could—be enacted. RSVP to [email protected] for dial-in details. The participant toll-free number is 800-225-9448 (primary); the participant direct/international number is 203-518-9708 (alternate); and the conference ID is CORNELL.

Mr. Yale-Loehr and colleagues’ white paper was discussed in a recent article in Forbes, Border Bill’s Immigration Demands Would Likely Doom Aid to Ukraine.

Mr. Yale-Loehr was quoted by CBS News in Trump Eyes Radical Immigration Shift If Elected in 2024, Promising Mass Deportations and Ideological Screenings. Mass deportations on the scale Trump envisions “would require a massive amount of money appropriated by Congress,” he said. Mr. Yale-Loehr also noted that such an operation would raise significant legal and humanitarian concerns. U.S. law affords immigrants in deportation proceedings due process, he noted. Many immigrants who could be deportable have U.S. citizen spouses or children, raising the specter of large-scale family separations. “It would be a significant change. But there’s only so much you can do through executive action. Many of the things he tried before were immediately tied up in litigation, and were ultimately struck down by the courts.”

Mr. Yale-Loehr was quoted by Politico in ‘There Is No More Room in Mexico’: Mayor Adams Takes Mexico. He noted that “a single trip by a politician will not dampen the flow. Mayor Adams would do better to work cooperating with the Biden administration on this complex issue, rather than striking out on his own foreign policy pursuits.”

Mr. Yale-Loehr was quoted by PolitiFact in Ask PolitiFact: How many people on the terrorist watchlist are coming into the United States? He said an increase in encounters with people on the terrorist watchlist “means that there is better coordination between government agencies than before. It does not necessarily mean that more terrorists are trying to enter the country.”

Mr. Yale-Loehr was quoted by the Bangor Daily News in Why Maine’s Rush to Get Asylum Seekers Employed Won’t Work. The article notes that immigration law experts have said that the work authorization timeline for asylum seekers cannot get changed without an act of Congress, with the partisan divide between the Republican-controlled House and Democratic-led Senate meaning bills must have broad bipartisan support to pass. “Given our dysfunctional Congress these days, that is unlikely to happen,” Mr. Yale-Loehr said.

Mr. Yale-Loehr will moderate a seminar, “The Migrant Surge: What’s Different About It This Time?,” on November 7, 2023, from 12:15 p.m. to 1:15 p.m. at Cornell Law School. Mr. Yale-Loehr and Muzaffar Chishti, of the Migration Policy Institute, will discuss the history of recent migrant flows to the U.S. border, the current migrant surge at the border, its impact on cities and states beyond the border, and possible effects on federal immigration policy. Register to attend via Zoom at https://cornell.zoom.us/webinar/register/WN_RwEvxopRTWOfcootUY5-qA#/registration.

Mr. Yale-Loehr was quoted by the Cornell Daily Sun in Dyson Students’ “Pathways of Belonging” Initiative Partners With Local Human Rights Office. The article discusses a panel held at Cornell on the immigration process and its effects on migrants. The article notes that during the panel discussion, Mr. Yale-Loehr introduced the idea of the broken immigration system, discussing the challenges immigrants face as they try to find a sense of belonging amid the journey toward U.S. citizenship. He highlighted the overwhelming volume of pending cases, exacerbated by a shortage of judges. Mr. Yale-Loehr said the backlog subjects many immigrants to years of waiting for crucial decisions, particularly in their pursuit of asylum, making the process exceptionally challenging.

Mr. Yale-Loehr was quoted by the New York Times in They Fled Climate Chaos. Asylum Law Made Decades Ago Might Not Help (available by subscription). He said, “The general public is becoming less accepting of asylum as a remedy because there are so many people being creative in applying for it. When people think of asylum, they imagine a government official pointing a gun at someone’s head. They don’t think of crop failures or sea levels rising because of climate change.”

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Headlines:

1. ARTIFICIAL INTELLIGENCE IN IMMIGRATION DECISION-MAKING: AN OVERVIEW – This article provides an overview of artificial intelligence considerations in immigration decision-making in the European Union.

2. CANADA – Applications are now open for the new H-1B Specialty Occupation visa holder work permit. Also, restrictions on foreigners’ authorized studies have been temporarily removed.

3. HONG KONG – New schemes have been announced for capital investment entrants and top talent.

4. ITALY – Work can start before a foreigner signs the contract of stay. Work can start before a foreigner signs the contract of stay. Also, there is a new directive on third-country nationals carrying out highly skilled work, and there is a general shortage of Permit of Stay application kits across Italy.

5. RUSSIA – Amendments have been made regarding the legal status of foreign citizens in the Russian Federation

6. UNITED KINGDOM – Immigration fees are expected to be raised soon. Also, the European Court of Justice has ruled against UK citizens requesting an annulment of Brexit-related EU decisions.

New Publications and Items of Interest – New Publications and Items of Interest

ABIL Member / Firm News – ABIL Member / Firm News

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ABIL Newsletter – Global – August 2023

1. ARTIFICIAL INTELLIGENCE IN IMMIGRATION DECISION-MAKING: AN OVERVIEW

This article provides an overview of artificial intelligence (AI) considerations in immigration decision-making in the European Union.

European Union

AI in the EU: General Background

As part of its digital strategy, the European Commission and the European Parliament have been working on how to introduce and regulate AI at various aspects and levels of the European Union (EU). The use of AI in the EU is expected to be regulated by the “AI Act.”

The AI Act has not been adopted yet, but an agreement is expected by the end of this year. On June 14, 2023, the European Parliament adopted the “Parliament negotiating position on the AI Act,” which will be discussed by the EU Member States at the Council to define the final form of the law.

The AI Act will follow a risk-based approach and aims to promote the uptake of human-centric and trustworthy artificial intelligence and to ensure a high level of protection of health, safety, fundamental rights, democracy and rule of law and the environment from harmful effects of artificial intelligence systems in the Union while supporting innovation and improving the functioning of the internal market.

AI and the EU Immigration Scheme

Based on the proposed AI Act and the previous in-depth analysis carried out by the European Parliament, it is clear that the EU foresees introducing AI to the EU immigration scheme.

In addition, the EU has been developing AI software to predict migration flows to better manage them by mitigating risks of tension between migrants and EU citizens. The project is called “ITFLOWS.” While many are optimistic about the introduction of this new learning algorithm, some expressed concerns about human rights risks. So far, not much information has been disclosed regarding this project, however.

Details:

• EU AI Act: First Regulation on Artificial Intelligence. European Parliament. EU AI Act: first regulation on artificial intelligence
• Artificial Intelligence at EU Borders: Overview of Applications and Key Issues. European Parliament. Artificial intelligence at EU borders
• ITFLOWS: IT Tools and Methods for Managing Migration Flows. https://www.itflows.eu/

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2. CANADA

Applications are now open for the new H-1B Specialty Occupation visa holder work permit. Also, restrictions on foreigners’ authorized studies have been temporarily removed.

New H-1B Specialty Occupation Visa Holder Work Permit

The government of Canada announced that applications are now open for the H-1B visa holder work permit that was announced on June 27, 2023, by the Honourable Sean Fraser, Minister of Immigration, Refugees and Citizenship as part of initiatives related to the Government of Canada’s Tech Talent Strategy.

Under this temporary measure, H-1B holders can apply for an open work permit of a duration of up to three years. If their passport expires in less than three years, their work permit will expire at the same time as their passport. There are no extensions under this initiative.

This policy will remain in effect for one year or until Immigration, Refugees and Citizenship Canada (IRCC) receives 10,000 applications. The 10,000 application cap was reached on July 17, 2023.

Who can apply for an H-1B visa holder work permit?

To be eligible under this policy, individuals must:

• Have a valid H-1B specialty occupation visa; and
• Currently live in the United States.

Accompanying family members currently living in the United States may include a spouse, a common-law partner, and/or dependent children. They will be eligible to apply for a work permit or study permit, as needed. If a family member does not qualify under this policy, they may be eligible as a family member of a highly skilled worker.

How do you apply for an H-1B visa holder work permit?

To apply for the H-1B visa holder work permit, the applicant must present a copy of their current H-1B visa, Form I-797/I-797B, Notice of Action, and proof that they currently live in the United States, such as Form I-94, Arrival/Departure Record, a recent utility bill, or an income tax report.

Applications must be submitted through the IRCC Portal (eApp). The principal applicant must complete an application for each family member they wish to include in their application and can submit them all at once. If the principal applicant has already submitted their application, accompanying family members can apply using their account once the principal applicant has received their port of entry letter of introduction, which is an approval letter stating that the applicant is allowed to work in Canada.

Processing times for these applications are approximately 2 months. Biometrics will also be required after the application is submitted.

Restrictions on Foreign Workers’ Authorized Studies Temporarily Removed

Mr. Fraser announced that as of June 27, 2023, the government of Canada is implementing a new temporary measure allowing temporary foreign workers to study full-time or part-time without a study permit, without any restrictions or limits on the length of the study program. Before implementation of this new temporary measure, temporary foreign workers were not permitted to enroll in a study program of six months or longer unless they obtained a valid study permit.

Temporary foreign workers who hold a valid work permit and temporary foreign workers who have submitted an application to renew their work permit on or before June 7, 2023, may benefit from this new temporary measure. The new temporary measure will remain in effect for a temporary period of three years.

Under this new measure, temporary foreign workers may enroll in any study program on a full-time or part-time basis, regardless of the length of the study program, while their work permit remains valid or until this new temporary policy expires. Temporary foreign workers who wish to study beyond the validity of their work permit must apply for a study permit.

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3. HONG KONG

New schemes have been announced for capital investment entrants and top talent.

Capital Investment Entrant Scheme

The Capital Investment Entrant Scheme (CIES), which had permitted investors to acquire Hong Kong residency by making a passive investment, was suspended by the Hong Kong Special Administrative Region (HKSAR) government in 2015. Before the suspension, the latest version of the CIES in 2010 had removed investing in real estate as a qualifying investment but permitted an applicant who invested HKD 10 million (about USD 1.25M) in authorized financial products in Hong Kong to qualify for residency. This version of the CIES was then suspended on January 15, 2015, but the Immigration Department continued to process applications received on or before the suspension date. As of December 31, 2021, formal approval had been granted to 35,000 applicants to reside in Hong Kong, bringing a total investment amounting to HKD 316.9 billion.

On April 19, 2023, the HKSAR government announced in its 2023/2024 Budget Report that a new CIES will be introduced. The new scheme is expected to generate high demand for financial and related professional services, and to create more employment opportunities in wealth and asset management to facilitate Hong Kong’s position as an international wealth and asset management hub. In the new scheme, it is anticipated that new asset categories benefiting the long-term development of Hong Kong in innovation and technology sectors will be included, apart from the traditional financial asset types.

The government is formulating details of the new scheme, which will generally adopt the framework and application criteria of the original CIES, with possible adjustments to the investible areas in Hong Kong, and the new CIES investment threshold will be increased to a multiple of the previous requirement. Apart from financial assets, an applicant will be able to invest in new asset categories benefitting the long-term development of Hong Kong (including the innovation and technology sector), with a view to attracting new capital and talent to Hong Kong, bringing new impetus to the economy and fostering the development of industries in Hong Kong at the same time.

Top Talent Pass Scheme

The Top Talent Pass Scheme (TTPS) was launched on December 28, 2022, to attract highly skilled global talent to enter Hong Kong without employment conditions. Successful applicants can enter Hong Kong for two years without a sponsoring employer and will be permitted to work, change employers, or establish a business in Hong Kong. To extend their stay after the initial two years, the applicant must present documentary evidence that they have secured a professional job and remuneration package at the prevailing market level or joined a business.

To qualify for entry under TTPS, the applicant must meet one of three categories:

Category A: Persons with an annual income of HKD 2.5 million or more or its equivalent in foreign currency in the year preceding the date of application.

Category B: Persons who have obtained a bachelor’s degree from one of the world’s top 100 universities and who have at least three years of work experience over the past five years immediately preceding the date of application.

Category C: Persons who have obtained a bachelor’s degree from one of the world’s top 100 universities within the past five years immediately preceding the date of application but have less than three years of work experience, subject to an annual quota of 10,000 to be allotted on a first-come, first-served basis.

This program was launched to attract talent to Hong Kong and is a key priority for Hong Kong to remain competitive as an international financial center because of the wave of emigration on the heels of the Hong Kong government’s COVID-19-related restrictions, which have now been lifted, as well as enactment of the National Security Law.

According to Chief Executive John Lee, more than 100,000 applications have been received so far, with 61,000 approved and 10,000 arrivals, with the latest official figure for the first half of the year to be released soon. The scheme was intended to counteract a “brain drain,” which saw a net outflow of 60,000 residents in 2022.

In response to a lawmaker’s query, Director of Immigration Au Ka-wang said that nearly 95 percent of applicants for the Top Talent Pass Scheme were from mainland China, with only three percent coming from Canada, Australia, the United States, and Singapore.

Whether the persons with approvals will actually come to Hong Kong and whether these arrivals will be able to meet the needs of companies in Hong Kong to attract global talent who have left or are planning to leave remains to be seen.

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4. ITALY

Work can start before a foreigner signs the contract of stay. Also, there is a new directive on third-country nationals carrying out highly skilled work, and there is a general shortage of Permit of Stay application kits across Italy.

Work and Contracts of Stay

Under the new regulations introduced in the Immigration law (Article 6-bis), it is now possible for a foreigner to start working even before signing a contract of stay at the immigration office. Therefore, once a work permit (nulla osta) is issued and the foreign employee/assignee has obtained a visa and entered Italy, work can start.

Per the government website, this applies to all cases of entry for subordinate work, including seasonal work. It also applies to all cases under Article 27 (entries outside the immigration quotas) such as Blue Card holders, intra-corporate transfers, and others.

Before this amendment in the law (introduced with the so-called decreto Cutro (DL 20 March n. 23 converted into law 5 May 2023 n. 50), it was only possible to start working in Italy after (1) the work permit (nulla osta) had been issued, (2) the worker had obtained the entry visa and entered the country, and (3) the worker had signed the contract of stay (contratto di soggiorno).

New Directive on Third-Country Nationals Carrying Out Highly Skilled Work

The Council of Ministers has approved, in a preliminary examination, a legislative decree to implement Directive (EU) 2021/1883 on the conditions of entry and residence of third-country nationals intending to carry out highly skilled work (European Union [EU] Blue Card).

The scope of the directive is to create a more attractive system for third-country-national highly skilled workers by broadening the range of situations or categories to which the directive applies and introducing faster procedures and more flexible and inclusive admission criteria to facilitate easier mobility within the EU.

Key Changes Introduced by the Directive

• The possibility of issuing the EU Blue Card to seasonal workers who meet the requirements for highly skilled work, allowing them to be considered outside the maximum quotas for foreigners admitted for subordinate work in the country.
• Facilitating the entry of managers and specialists in information and communication technology services.
• Promoting innovative entrepreneurship, enabling foreign citizens with the EU Blue Card to engage in self-employment activities alongside their subordinate work.
• More favorable conditions for family reunification and access to the labor market for the family members of the EU Blue Card applicant.

Shortages/Delays of Permit of Stay Application Kits

There is a general shortage of Permit of Stay application kits across Italy and some delays during the various phases of immigration processing. The main issues include:

• In some cities, application receipts (Ricevute Postali) are getting more and more difficult to source.
• In many cases, police offices (Questura) are having difficulties in scheduling the fingerprint appointments. Many applicants must wait for an invitation to be sent via regular mail to their home address.
• In many cases, fingerprint appointments are being scheduled several months (even 6 to 8 months) after the date of the Permit of Stay application.

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5. RUSSIA

Amendments have been made regarding the legal status of foreign citizens in the Russian Federation.

The amendments were made to Federal Law No. 115-FL of July 25, 2002, “On the Legal Status of Foreign Citizens in the Russian Federation.” For example:

An amendment, effective January 6, 2024, provides for issuance of an indefinite residence permit to a highly qualified specialist (HQS) and family members, upon receipt of which a foreign specialist may continue working in the Russian Federation without having to apply for renewal of the work permit. The condition for obtaining an indefinite residence permit for this category will be residence in the territory of the Russian Federation for at least two years with a residence permit issued on the basis of the status of the HQS. At the same time, during the specified period of employment, the personal income tax must have been accrued and paid.

For members of the HQS family to qualify for an indefinite residence permit, they also must live in the Russian Federation for two years on the basis of a residence permit issued on the basis of the HQS status.

An amendment, effective March 1, 2024, provides for an increase of the minimum salary for HQS status from 167,000 rubles per month (before taxes) to 250,000 rubles per month (before taxes). At the moment, there are no clarifications regarding the HQS with whom contracts are concluded before March 1, 2024—how the increase in the minimum wage will affect their status.

It is always possible to apply for a standard work permit for a foreign employee. A standard work permit is issued for one year on the basis of the corporate work permit, and the minimum salary is equal to the minimum salary for all working individuals in certain regions of the Russian Federation.

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6. UNITED KINGDOM

Immigration fees are expected to be raised soon. Also, the European Court of Justice has ruled against UK citizens requesting an annulment of Brexit-related EU decisions.

Fees to be Raised Soon

On July 13, 2023, the Prime Minister indicated the government’s intention to partly fund public sector pay increases by raising immigration fees. Full details of the increases have not yet been announced, but in a Treasury statement in the House of Commons, the government said the increases could apply to two types of visa fees:

• UK Visas and Immigration visa application fees. Fees for work (presumably including Skilled Worker) and visitor visas are set to rise by 15%. Fees for certificates of sponsorship (including for Skilled Worker applications, currently costing £199) are due to rise by 20%, as are other non-work category visa fees including applications submitted inside and outside the UK, applications for settlement (indefinite leave to remain), British citizenship and priority visas; and
• The Immigration Health Surcharge. This is a payment toward the National Health Service, and the headline fee for adults is currently £624 per year of the visa. The headline rate is due to increase to £1,035 per year of the visa. The discounted rate (for students, Youth Mobility Scheme applicants and those under 18) is due to increase from £470 to £776 per year of the visa.

As a result, to avoid the fee increases, you may wish to consider fast-tracking any visa applications you have in the pipeline. It is not yet known when the higher fees will start.

ECJ Rules Against UK Citizens Requesting Annulment of Brexit-Related EU Decisions

The European Court of Justice (ECJ) has dismissed three cases brought by UK citizens that challenged the loss of their rights as European Union (EU) citizens as a result of Brexit.

In March and April 2022, some UK citizens brought three separate actions for total or partial annulment of the decisions regarding the UK withdrawal from the EU, as it “deprives them of their status as EU citizens and their rights arising therefrom.”

The ECJ dismissed the appeal, explaining that “the loss of the status of citizen of the European Union, and consequently the loss of the rights attached to that status, is an automatic consequence of the sole sovereign decision taken by the United Kingdom to withdraw from the European Union, and not of the withdrawal agreement or the Council’s decision approving that agreement.”

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New Publications and Items of Interest

Alliance of Business Immigration Lawyers: https://www.abil.com/

ABIL is also available on Twitter: https://twitter.com/abilimmigration

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ABIL Member / Firm News

Business Today’s Top 10 Most Influential Business Lawyers in the USA 2023 includes the following members of ABIL law firms:

Marketa Lindt (bio: https://www.abil.com/abil-lawyers/marketa-lindt/)

William Stock (bio: https://www.abil.com/abil-lawyers/william-stock/)

Dagmar Butte (bio: https://www.abil.com/abil-lawyers/dagmar-butte/)

Charles Kuck (bio: https://www.abil.com/abil-lawyers/charles-kuck/)

1. Ronald Klasko (Klasko Immigration Law Partners, LLP)

For more information, see https://businesstoday.news/top-10-most-influential-immigration-business-lawyers-in-the-usa-2023/

Charles Foster (of Foster, LLP), Robert Loughran (bio: https://www.abil.com/abil-lawyers/robert-f-loughran/), Angelo Paparelli (bio: https://www.abil.com/abil-lawyers/angelo-paparelli/), and Bernard Wolfsdorf (bio: https://www.abil.com/abil-lawyers/bernard-wolfsdorf/) were listed by Business Today in “Top 10 Most Influential Immigration Lawyers Revolutionizing USA’s Nationwide Policies.” https://businesstoday.news/top-10-most-influential-immigration-lawyers-revolutionizing-usas-nationwide-policies/

Charles Kuck (bio: https://www.abil.com/abil-lawyers/charles-kuck/) released a new podcast on H-1B issues, including the results of his H-1B Freedom of Information Act request for FY 2022 (for which he received FY 2023 data), the percentages of approval and submission, and what that means for the FY 2024 lottery. The podcast also includes discussion about the H-1B Canada program and a new bill in the U.S. Congress to double the H-1B numbers. https://soundcloud.com/user-474250731/the-immigration-hour-podcast-for-july-26-2023-1

Charles Kuck has authored a new blog post: “The Coming Apocalypse for Employment-Based Immigrants: What the Current Backlog in PERM Labor Certifications, DOL Prevailing Wage Requests, and Pending and Approved I-140s Means for Future Visa Bulletin Movement in the EB-2 and EB-3 Categories.” https://www.immigration.net/2023/06/15/the-coming-apocalypse-for-employment-based-immigrants/

Mr. Kuck, Mr. Paparelli, and Stephen Yale-Loehr (bio: https://www.abil.com/abil-lawyers/stephen-yale-loehr/) were quoted by Bloomberg Law in “SCOTUS Ruling and DACA.” Mr. Kuck said, “States don’t get to dictate federal enforcement policy. DACA is enforcement policy. It’s exactly the same thing the Supreme Court just ruled on.” Mr. Kuck said the federal government also clearly had authority to issue work permits after promulgating DACA regulations. Mr. Paparelli said, “I don’t know if DACA will survive in light of US v. Texas. I think it should because DACA is an example of deferred action. This is exactly what prosecutorial discretion means.” Mr. Yale-Loehr said the work permits offered through DACA could be the issue that conservative judges use to ignore the earlier Supreme Court ruling finding that benefits extended to immigrants could lead to further analysis of standing in a case. “The Supreme Court hinted in the Texas prosecutorial discretion case that they might come out the opposite way in DACA litigation because it concerns more than simply enforcement discretion; it also includes work authorization and Medicare eligibility,” Mr. Yale-Loehr said. https://www.bloomberglaw.com/login?target=https%3A%2F%2Fwww.bloomberglaw.com%2Fcitation%2FBNA%252000000183a948d0f5ab93effc90d30001 [subscription required]

Cyrus Mehta (bio: https://www.abil.com/abil-lawyers/cyrus-d-mehta/) was quoted by Bloomberg Law in “Lawmakers Push Biden to Allow Earlier Green Card Applications.” He said that it’s unclear whether all employment-based immigrants have been deemed eligible for green cards at the start of the fiscal year but noted that the Department of Homeland Security (DHS) “has adopted a flexible interpretation of visa availability before.” Filing a green card application would protect visa holders’ dependent children from aging out of legal status when they turn 21, Mr. Mehta said. The article notes that in February, the Biden administration “said it would ‘freeze’ a dependent child’s age based on the date a parent applied for permanent residency; previously DHS used the date a visa was deemed officially available.” Mr. Mehta said, “This relief can be provided by a stroke of a pen advancing the filing dates and allowing many more people to apply for adjustment of status.” https://news.bloomberglaw.com/daily-labor-report/lawmakers-push-biden-to-let-immigrants-seek-green-cards-earlier

Mr. Mehta has authored several new blog posts: “Eliminate H-1B and Green Card Caps!,” http://blog.cyrusmehta.com/2023/07/eliminate-the-h-1b-and-green-card-caps.html; “Advancing the Dates for Filing in the State Department Visa Bulletin Will Restore Balance and Sanity to the Legal Immigration System,” http://blog.cyrusmehta.com/2023/07/advancing-the-dates-for-filing-in-the-state-department-visa-bulletin-will-restore-balance-and-sanity-to-the-legal-immigration-system.html; “While Supreme Court Holds That States Have No Standing to Challenge Federal Immigration Enforcement Priorities in United States v. Texas, How Does This Bode for DACA and Other Immigration Policies?,” https://rb.gy/2us90

Mr. Mehta and Kaitlyn Box co-authored several blog posts: “DHS’s Family Reunification Parole Initiative Can Serve as Template for Other Bold Executive Actions to Reform the Immigration System Without Fear of Being Sued by a State,” https://tinyurl.com/2p833exs; “USCIS Broadens Compelling Circumstances Parameters for Skilled Immigrants in the Green Card Backlogs So That They Can Continue to Work in the U.S. Even After Job Loss,” http://blog.cyrusmehta.com/2023/06/uscis-broadens-compelling-circumstances-parameters-for-skilled-immigrants-in-the-green-card-backlogs-so-that-they-can-continue-to-work-in-the-us-even-after-job-loss.html

Mr. Mehta was quoted by the Times of India in “U.S. Appeals Court Upholds Filing of Amended H-1B Applications on Change in Work Location.” Mr. Mehta shared his views on why filing H-1B amendments each time a worker moves outside the area of employment—even to a new home worksite—can be painful and burdensome for employers and H-1B workers. https://timesofindia.indiatimes.com/nri/us-canada-news/us-appeals-court-upholds-filing-of-amended-h-1b-applications-on-change-in-work-location/articleshow/101542599.cms?from=mdr

Mr. Mehta and Kaitlyn Box were quoted by Forbes in “Immigration Agency Releases Guidance for H-1B Visa Holders.” They said, “Recipients of [a work permit] based on compelling circumstances will likely need to look for other solutions if they wish to remain and work in the U.S. on a long-term basis until they obtain permanent resident status.” They said that a new employer must file a new labor certification and I-140 petition, and “could recapture” the old priority date. Consular processing might be possible when the priority date is available, the article notes. “A new employer could also file a new H-1B visa petition for the foreign worker alongside the new labor certification and I-140 petition,” according to Mr. Mehta and Ms. Box. https://www.forbes.com/sites/stuartanderson/2023/06/20/immigration-agency-releases-guidance-for-h-1b-visa-holders/?sh=3adcb12651d8

Mr. Mehta and Ms. Box co-authored “Wage Transparency Laws Add Extra Layer of Complexity to Labor Certification Recruitment,” published by PLI Chronicle. https://plus.pli.edu/Details/Details?fq=id:(378500-ATL5)

Mr. Mehta was quoted extensively in the Times of India on the USCIS policy broadening the compelling circumstances parameters for Employment Authorization Documents. He said, for example, that the new compelling circumstances measure “is of a very limited scope and can only be used as a stopgap measure when a loss of a job would derail the foreign worker’s life in the U.S. It will allow the concerned individual to remain in the U.S. lawfully and not face the re-entry bars owing to overstay. However, it is not a nonimmigrant visa like the H-1B that allows for an extension of status and the ability to adjust this status to a permanent residence (aka green card).” Mr. Mehta also noted that USCIS relaxed the standard on June 14, 2023, “by allowing persons who have lived in the U.S. with family for a significant amount of time to demonstrate that due to job loss they would be forced to sell their home, pull their children out of school, lose their health insurance and [be] forced to relocate to their home country.” He noted other technical issues and compelling circumstances, such as “instances where the individual has maxed out of the six-year H-1B visa limit and cannot extend it, or the company’s ownership structure has changed and the individual cannot remain in L-1status.” In such cases, he said, the employer “would need to show that the resultant job loss would negatively impact projects and result in significant monetary loss or other disruption to the employer.” https://timesofindia.indiatimes.com/nri/us-canada-news/laid-off-workers-in-us-could-benefit-from-broadening-of-compelling-circumstances-norms/articleshow/101068686.cms?from=mdr

David Isaacson, of Cyrus D. Mehta & Partners PLLC, has authored a new blog post: “Canada Announces New Program for Holders of H-1B Visas—But Do They Mean Visas, or H-1B Nonimmigrant Status?” http://blog.cyrusmehta.com/2023/06/canada-announces-new-program-for-holders-of-u-s-h-1b-visas-but-do-they-mean-visas-or-h-1b-nonimmigrant-status.html

Mr. Paparelli has authored two new blog posts: ” ‘Imagine’ the Improbable: John Lennon, the Supreme Court, and the Resurrection of Prosecutorial Discretion in Immigration Cases,” https://www.nationofimmigrators.com/2023/06/imagine-the-improbable-john-lennon-the-supreme-court-and-the-resurrection-of-prosecutorial-discretion-in-immigration-cases/; and “America is Losing on Business Immigration,” https://www.nationofimmigrators.com/2023/06/america-is-losing-on-business-immigration/

WR Immigration will present a webinar on Thursday, August 10, 2023, at 11 a.m.: “Confused About the I-9 Changes? Your COVID-19 Flexibilities and Other I-9 Questions Answered.” The host will be Kimberley Best Robidoux, Partner. https://wolfsdorf.com/i-9-alternative-procedure/

WR Immigration announced that many of its clients from offices in Boston, New York, Santa Monica, San Diego, and Oakland were selected in the second round of the H-1B lottery. “It would be sad to send some of the best and brightest graduates in STEM, healthcare, and other critical fields back to their countries of origin after graduation,” said managing partner Bernard Wolfsdorf. “These are some of the top graduates from our universities. We need these bright young people to help to grow our economy and keep the US strong.” He cautioned that green card waiting lines are getting longer and said employers are advised to file their PERM applications as soon as possible. “The H-1B work visa is a dual intent visa, so there is no reason not to get started by filing the PERM green card application,” he said. https://wolfsdorf.com/wr-immigration-celebrates-clients-selected-in-second-round-of-h-1b-lottery/

WR Immigration has posted a new Q&A: “USCIS Announces Second H-1B Lottery for FY 2024.” https://wolfsdorf.com/h1b-lottery/

WR Immigration has published its Immigration Update, with the latest news on filing windows for H-2B applications, new H-2A hourly wage rates, the CIS Ombudsman’s annual report, and more. https://wolfsdorf.com/immigration-update-20230703/

Farshad Owji, WR Immigration partner and president of the American Immigration Lawyers Association (AILA), was quoted on the announcement of new family reunification parole processes for Colombians, Salvadorans, Guatemalans, and Hondurans: “AILA applauds the administration’s wise expansion of the Family Reunification Parole programs to nationals from Colombia, El Salvador, Guatemala, and Honduras. The program permits qualified individuals residing in their home country to more quickly reunite with their U.S. citizen and legal resident family members in the United States. By applying its legal authority to reunite families, the administration is building on its strategy of providing legal pathways for migration and recognizing a primary driver of migration: the basic desire to live with family. Today, the administration has strengthened all American communities by reinforcing family reunification as the cornerstone of U.S. immigration policy.” https://www.aila.org/advo-media/press-releases/2023/aila-president-welcomes-implementation-of-new

Mr. Owji was elected AILA President for 2023. Based in San Francisco, California, Mr. Farshad is a member of the Florida, Minnesota, and District of Columbia bars, as well as the Istanbul Bar Association in Turkey. Born in Tehran, Iran, Mr. Owji received a law degree from Ankara University in 1994 and worked at the United Nations High Commissioner for Refugees (UNHCR) Branch Office in Ankara, Turkey. He obtained his J.D. and LL.M. from the University of Florida’s Fredric G. Levin College of Law in 2000. Mr. Owji was a Senior International Associate at Deloitte, LLP, and in 2002, opened his immigration practice in San Francisco’s Jackson Square. https://wolfsdorf.com/farshad-owji-elected-aila-president-2023/ (WR Immigration release); https://www.aila.org/advo-media/press-releases/2022/aila-elects-new-officers-for-2022-23-term (AILA release)

Miki Kawashima Matrician, a Co-Managing Partner of WR Immigration’s Boston office, has been elected to the position of Chair-Elect of the New England Chapter of the American Immigration Lawyers Association (AILA New England). Among her other honors, she was selected for inclusion in Best Lawyers in America® in 2023, as well as Best Lawyers’ Ones to Watch for 2021 and 2022. She was also recognized as a Super Lawyers Rising Star from 2013 to 2021. She is an immigrant and a native of Nara, Japan. https://wolfsdorf.com/wr-immigration-partner-miki-matrician-elected-chair-elect-of-american-immigration-lawyers-association-new-england-chapter/

David Isaacson, of Cyrus D. Mehta & Partners PLLC, authored a new blog post: “Canada Begins New Program for Holders of U.S. H-1B Visas, And They Really Do Mean H-1B Visas, Not H-1B Status, Although Family Members Need Not Have Any Kind of H-4.” http://blog.cyrusmehta.com/2023/07/canada-begins-new-program-for-holders-of-u-s-h-1b-visas-and-they-really-do-mean-h-1b-visas-not-h-1b-status-although-family-members-need-not-have-any-kind-of-h-4.html

Greg Siskind, partner at Siskind Susser PC, was quoted by Bloomberg Law’s Daily Labor Report in “AI Makes Its Way to Immigration With New Tool to Aid Attorneys.” He said, “We think [Visalaw.Ai] will be a tremendous time saver for lawyers conducting research on a regular basis.” Mr. Siskind is a co-founder of Visalaw.Ai. The article notes that reliance on open-source artificial intelligence (AI) software can lead to bogus results and potentially expose confidential client information. Mr. Siskind said the Visalaw.Ai platform will include a private feature allowing members to draw on information from the platform without sending client information back. Partnering with the American Immigration Lawyers Association (AILA) will also address quality issues by feeding the tool specific information related to immigration law that is drawn from a huge legal library of regulations and secondary sources, he said. Access will be subscription-based. The tool incorporates a vast immigration law library, including major primary law materials as well as AILA’s Practice and Procedures Manual (“Cookbook”), co-written by Mr. Siskind. “We can stand on the sidelines and let somebody else shape the future for us. Or we can get engaged and determine how this should affect the immigration bar and the practice of immigration law. In this environment, nobody can afford to stand on the sidelines.” He noted that Visalaw.Ai is “set to be conservative in how it answers.” https://www.visalaw.ai/ (Visalaw.Ai); https://news.bloomberglaw.com/daily-labor-report/ai-makes-its-way-to-immigration-with-new-tool-to-aid-attorneys (article); https://www.aila.org/advo-media/press-releases/2023/visalawai-and-aila-unveil-gen-a-groundbreaking-a (AILA press release)

William Stock (bio: https://www.abil.com/abil-lawyers/william-stock/) has authored a blog post: “Worksite Ambiguity in the Rise of Work From Home.” https://thinkimmigration.org/blog/2023/06/14/worksite-ambiguity-in-the-rise-of-work-from-home/

Stephen Yale-Loehr (bio: https://www.abil.com/abil-lawyers/stephen-yale-loehr/) co-authored a report, ” At the Breaking Point: Rethinking the U.S. Immigration Court System,” published by the Migration Policy Institute. The report traces the factors that have driven the immigration court system to crisis. It assesses steps taken to improve the courts’ functioning and offers recommendations that the executive branch could implement to address massive backlogs and improve the pace and quality of decision-making. https://www.migrationpolicy.org/research/us-immigration-courts

Mr. Yale-Loehr was quoted by PolitiFact in “A New Program to Obtain a ‘Green Card’ Has Not Been Approved.” He said, “There is no new program that makes the process of obtaining a green card easier and only USCIS and the Department of State can issue the cards.” https://www.politifact.com/factchecks/2023/jul/12/facebook-posts/no-se-ha-aprobado-un-programa-nuevo-para-obtener-u/ (Spanish, with English translation available)

Mr. Yale-Loehr was interviewed on the podcast “This Week in Immigration” about recent immigration cases. He discussed the Supreme Court’s latest decision to uphold the Biden administration’s deportation priorities in U.S. v. Texas, and upcoming cases related to the future of the Deferred Action for Childhood Arrivals program and the administration’s new asylum restrictions. https://bipartisanpolicy.org/podcast-episode/episode-148-this-week-in-immigration/

Mr. Yale-Loehr was quoted by USA Today in “Biden Promised to End Family Separations. So Why is DOJ Fighting Relief Claims in Court?” He said, “It’s ironic that while candidate Biden said that family separation was abhorrent, as a president he’s allowing his Justice Department attorneys to fight these cases.” But, he said, “every administration wants to preserve its flexibility and discretion on immigration, because immigration affects our sovereignty and foreign affairs.” https://www.usatoday.com/story/news/investigations/2023/06/26/separated-families-biden-trump-zero-tolerance/70350466007/

Mr. Yale-Loehr was quoted by National Public Radio in “The Supreme Court Sides With the Biden Administration in a Fight Over Immigration.” He said, “The court’s decision was pretty narrow. From a larger legal perspective, it doesn’t really resolve the issue of when states can and cannot sue to challenge federal policies, whether they’re immigration or otherwise. And so the battle will continue on those fronts.” https://www.npr.org/2023/06/23/1182015382/supreme-court-ruling-immigration

Mr. Yale-Loehr was quoted by Newsday in “Most Asylum-Seeking Migrants Arriving in New York City Unlikely To Be Able To Stay in U.S. Legally.” He said, “I’d say [U.S. Immigration and Customs Enforcement] simply doesn’t have enough enforcement resources to be able to find everyone who is here illegally and pick them up, so some percentage of people will be able to live out their lives in the United States, even though they don’t have legal status.” Regarding credible fear screenings, Mr. Yale-Loehr said, “If somebody says, ‘I was fleeing gang violence in El Salvador,’ then maybe that person has a potential claim,” but “if someone says, ‘I’m here because I want to make money for my family in El Salvador because they’re poor,’ that’s simply not an asylum claim and therefore that person would not pass the credible-fear interview and would be expeditiously removed.” If they’re denied asylum, he said, “I’d say the vast majority would not be able to stay, because they’ve exhausted their bases for trying to stay legally.” https://www.newsday.com/news/nation/migrants-asylum-petitions-approval-pi1dubg1

Below is a list of ABIL Members and lawyers who are serving on American Immigration Lawyers Association (AILA) National Committees as of June 2023:

DOL Liaison Committee: Vincent Lau (chair), Loan Huynh, William Stock

USCIS Headquarters Committee: Dagmar Butte

DOS Liaison Committee: Magaly Cheng, Elissa Taub

CBP Liaison Committee: Janice Flynn

ICE Liaison Committee: Aaron Hall (chair)

USCIS Field Ops Liaison Committee: Jason Susser

USCIS Case Assistance Committee: Adam Cohen, Johnna Main-Bailey

Asylum Liaison Committee: Stephen Yale-Loehr

Investment Committee: William Stock (chair)

EB-5 National Committee: Kristal Ozmun, John Pratt

H-1B Task Force: Dagmar Butte

EB-4 Backlog Task Force: William Stock

Global Migration Section: William Hummel (chair)

National Amicus Committee: David Isaacson

Benefits Litigation Committee: Marketa Lindt (co-chair), Charles Kuck, Ira Kurzban, Cyrus Mehta, Zachary New

USCIS Benefits Policy Committee: Dagmar Butte, Angelo Paparelli

Ethics Committee: Cyrus Mehta (chair)

Inclusion and Diversity Committee: Loan Huynh

Innovation and Technology Committee: Vic Goel, Hannah Little, Julie Pearl

Media Advocacy Committee: Jennifer Howard

Distance Learning Committee: James Hollis

National Law Student Engagement Committee: Nam Douglass

Lawyer Well-Being Committee: Jennifer Howard

Business Section Steering Committee: Vic Goel

AILA Law Journal Editorial Board: Cyrus Mehta (Editor-in-Chief), Dagmar Butte, William Stock

2023-2024 Member Engagement Committee: Vi Nguyen

Technology Innovation Summit Planning Committee: Hannah Little, Julie Pearl

AILA 2024 Annual Conference Committee: Elise Fialkowski (Chair, Fundamentals), Helena Tetzeli

AILA Fall Conference Committee: Elissa Taub

AILA Spring Conference Planning Committee: Aaron Hall

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In this issue:

1. SELF-EMPLOYMENT VISAS: AN OVERVIEW – This article provides an overview of self-employment visas in several countries.

2. AUSTRALIA – Australia is granting thousands of refugees permanent visas after a decade of uncertainty.

3. CANADA – The government of Canada has announced forthcoming new Post-Graduation Work Permit measures.

4. ITALY – The Italian government has approved a new immigration law decree.

5. MEXICO – This article provides a summary of the non-lucrative Temporary Resident Visa.

6. SCHENGEN AREA – This article answers frequently asked questions about the Schengen visa-free system.

7. UNITED KINGDOM – New immigration rules are being implemented. Also, some updates from sponsors are now automated.

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

9. ABIL Member / Firm News – ABIL Member / Firm News

Download:

ABIL Global Immigration Update – April 2023

1. SELF-EMPLOYMENT VISAS: AN OVERVIEW

This article provides an overview of self-employment visas in several countries.

Canada

Interested in working as a self-employed person in Canada? The visa options might be more narrow than you think. As of April 1, 2021, the Ministry of Immigration, Refugees and Citizenship Canada (IRCC) removed the Owner/Operator category from the Temporary Foreign Worker Program (TFWP). The Owner/Operator program enabled applicants to apply for a work permit in Canada without having to comply with the job advertisement regulatory requirements listed under the Labour Market Impact Assessment (LMIA). Unlike a regular high-wage/low-wage LMIA, the Owner/Operator LMIA was an opportunity for entrepreneurs to work in and immigrate to Canada while simultaneously receiving 200 Comprehensive Ranking System (CRS) points for Express Entry—essentially guaranteeing the opportunity to apply for permanent resident status in the future. The end of the owner/operator LMIA means those perks are off the table and the immigration landscape for self-employed persons in Canada has shifted. So, with the Owner/Operator program gone for almost two years, what has filled that void?

Currently, the closest alternative to the Owner/Operator LMIA is the Self-Employed Persons Program, which allows a person to immigrate to Canada permanently as self-employed. The catch? To immigrate as a self-employed person, you must have relevant experience in cultural activities or athletics—a criterion that many do not happen to meet. In this context, relevant experience refers to a minimum of two one-year periods being self-employed or participating at a world-class level in cultural activities or athletics. The two years of relevant experience must be completed during the period starting five years before the day you apply and ending on the day the IRCC makes a decision on your application. While there is no net worth requirement for the program, applicants must satisfy a visa officer that they have enough money to settle in Canada with their dependents and finance the cultural or athletic work on which their selection was based.

For those who have dual intent to immigrate to Canada as a temporary worker and then eventually as a permanent resident, the C11 Entrepreneur Work Permit, under the International Mobility Program (IMP), is a good alternative. The C11 work permit is suitable for three groups of people: (1) self-employed individuals who would like to start a business in Canada; (2) entrepreneurs who would like to buy a business or franchise in Canada; and (3) individuals who were selected under any of the Entrepreneur streams of the Provincial Nominee Program. In each case, all applicants are required to own a minimum of 50% of the company. Under section 183 of the Immigration and Refugee Protection Regulations (IRPR), applicants must satisfy the officer that they have the ability and willingness to leave Canada once their temporary work permit expires. Self-employed applicants who are solely seeking temporary residence have the additional burden of proving that their business would generate significant economic, social, or cultural benefits, or opportunities for Canadian citizens. Significant benefits refer to significant economic stimulus, as well as advancement of the Canadian industry in which the person works, both of which may be hard to prove to visa officers.

On the other hand, applicants seeking eventual permanent residence under the C11 work permit, not including Québec, may apply for a work permit under the actual or potential provincial nominees undertaking business activities portal. A key eligibility requirement under this stream is that the foreign national must have a letter of support from the respective province or territory of which they are seeking residency that indicates the significant economic, social, or cultural benefit that the person will bring to Canada. With that being said, all work permits issued under IMP C11 can only be issued for a maximum period of two years. Once this period has elapsed, an extension can only be granted if an application for permanent residence is being processed or in exceptional circumstances, i.e., for significant investment projects or applicants for whom a provincial nomination certificate is still pending. If the latter is true, the applicant also requires an additional letter of continued support from the province or territory where they reside. However, extension approvals are hard to come by.

Ultimately, there are no great visa options for self-employed persons wishing to immigrate to Canada. Since the cessation of the Owner/Operator LMIA, the Self-Employed Persons Program, and the C11 Entrepreneur Work Permit have sought to act as the recommended pathways for self-employed persons to obtain a work permit in Canada. However, despite the aforementioned visa options, it’s clear that there are many gaps in the system—leaving many skilled self-employed persons, working in various industries, behind.

Going forward, the IRCC needs to create a streamlined pathway for self-employed persons to be able to work in Canada. Self-employed workers shouldn’t need to jump through a multitude of hoops to bring business to Canada; they deserve better.

Italy

The type and number of self-employment (Lavoro Autonomo) authorizations available to non-European Union (EU) nationals are set by the quota decree (decreto-flussi). Not all self-employment categories are available each year. The most common categories available each year are:

• Entrepreneurs intending to implement an investment plan of interest for the Italian economy, involving an investment of at least €500.000 and creating at least three new jobs in Italy. https://www.mazzeschi.it/self-employment-visa-for-entrepreneurs-intending-to-implement-an-investment-plan-in-italy/
• Freelancers/independent contractors who intend to practice regulated or controlled professions (i.e., individuals belonging to a professional association or enrolled with an official/public register) or professions that are not non-regulated but are considered representative at the national level and are included in the lists edited by the Public Administration.
• Holders of corporate office or administrative/controlling positions (e.g., Chairman, CEO, member of board of directors, auditor) in an Italian company, active for at least three years (requirements set in Visa Decree May 11, 2011 n. 850).
• Foreign citizens who intend to set up innovative start-up companies, under certain conditions, who will have a self-employment relationship with the start-up. https://www.mazzeschi.it/italy-startup-visa/ https://medium.com/agileinsider/italys-start-up-visa-6a442a9fdbd1
• Internationally well-known and highest-repute artists, artists of recognized highly professional qualification, or artists who are hired by well-known Italian theaters, important public institutions, public television, or well-known national private television (requirements set in Visa Decree May 11, 2011 n. 850).

General eligibility requirements include:

• Suitable accommodation in Italy;
• Financial resources exceeding the minimum level set by law for exemption from the healthcare contribution (€8,500);
• Police Clearance (Nulla Osta) in Italy; and
• Certificates, documents, or attestations as required for the type of self-employment activity to be performed (applicants must meet the legal requirements for the performance of the activity in question, including, when required, the prerequisites for entering into professional registers).

Some categories of self-employment visas are issued outside the quota decree (e.g., translators and interpreters, university professors, lecturers, managers in an intra company framework).

Details:

“Italy Self-Employment Visa,” Mazzeschi S.r.l. https://www.mazzeschi.it/italy-self-employment-visa/

“Italy’s Freelance Visa: Not as Easy as it Sounds!,” Mazzeschi S.r.l. https://www.mazzeschi.it/italys-freelance-visa-not-as-easy-as-it-sounds/

“Can You Work Remotely While on Holiday in Italy? How Much ‘Remote Work’ Is Allowed If You Do Not Have a Work Visa?,” Mazzeschi S.r.l. https://mm-63015.medium.com/can-you-work-remotely-while-on-holiday-in-italy-3d5ce4eeabd

Mexico

In general terms, Mexico does not allow a visa based on self-employment. The government believes that if the self-employment visa were an option for foreigners to enter Mexico, a considerable number of foreigners would be coming to Mexico to live and work by themselves.

However, there are some exceptions to authorize this type of activity, for example, for economic dependents provided that their main activity continues to be economic dependence on the principal; self-employed work can be authorized as a secondary activity. If an economic dependent decides to be self-employed, he or she must request a work permit from the National Immigration Institute.

For permanent residents, self-employment is allowed. In fact, permanent residents may carry out any legal activity in Mexico. Mexican immigration law establishes an obligation to notify authorities about new activities within a 90-day period after the new work begins.

A foreigner may incorporate a company in Mexico—a small enterprise, for example—then register the company before the immigration authorities and request a work permit.

Netherlands

Dutch immigration rules for independent entrepreneurs are based on the concept of added value for the Dutch economy. This translates into a points-based system (PBS). U.S. and Japanese nationals are exempt from the PBS. Also exempt previously were high net worth individuals investing at least €1.25 million, but this scheme was discontinued in 2022 for lack of interest.

Entrepreneurs (e.g., self-employed, business owners, contractors) are those who own 25% or more of the stake in a company, run entrepreneurial risk, and can influence the level of their own salary. They are not eligible for employee permit categories, which are generally more straightforward than the PBS, which in some cases is a high threshold to meet.

The allocation of points is administered by RVO (Rijksdienst voor ondernemend Nederland), an agency of the Ministry of Economic Affairs. The processing time is around three to six months. Applicants receive a residence permit for two years, renewable as long as the business is kept active and generates an income equal to at least the national statutory minimum wage. Points can be earned for personal experience, business plan, and added value. In each of these categories, 30 points (out of a potential 100 per category) must be obtained, or, alternatively, 45 points in categories 1 and 2. A detailed business plan and accountant-verified financial forecasts are essential for a successful application.

As noted above, U.S. nationals and Japan are exempt from the PBS. The 1956 Treaty of Friendship and Trade allows U.S. entrepreneurs to obtain a residence permit, provided that “substantial” capital is invested in the business. The policy guidelines explicitly quote €4,500 as a substantial amount. Comparable criteria apply to Japanese entrepreneurs, based on the 1913 bilateral Trade and Seafaring Treaty. This makes the entrepreneur scheme a particularly attractive scheme for these nationalities.

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2. AUSTRALIA

Australia is granting thousands of refugees permanent visas after a decade of uncertainty.

On February 12, 2023, the Australian government announced that refugees who arrived in Australia before 2013 can now transition to a permanent Resolution of Status (RoS) visa. Approximately 19,000 refugees who have essentially lived in indefinite limbo over the past decade will now be able to build their lives in Australia with certainty.

The RoS visa allows for immediate Social Security payments, and access to the national disability insurance scheme and higher education loans. Once the residence requirements have been met, these refugees also can apply for Australian citizenship. Being granted a permanent visa also means that applications can be submitted for separated family members to come to Australia.

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3. CANADA

The government of Canada has announced forthcoming new Post-Graduation Work Permit measures

On March 17, 2023, the Honourable Sean Fraser, Minister of Immigration, Refugees, and Citizenship, announced that the government of Canada will be passing special measures that will allow eligible former international students who hold a Post-Graduation Work Permit (PGWP) to apply for an extension or renewal of their permit of up to 18 months.

Beginning April 6, 2023, former international students whose PGWP expired or is expiring in 2023 can apply for an extension to their PGWP of up to 18 months. Former international students who applied for an extension to their PGWP under the 2022 special measures can apply for an additional PGWP extension of up to 18 months under the new 2023 measures. Furthermore, eligible former international students whose PGWPs already expired and who need restoration of status can apply to restore their status even if they are beyond the 90-day restoration period, and can apply for a new work permit and receive interim work authorization during the processing of their new PGWP application.

Below is a summary of these developments:

No extension to PGWPs before COVID-19

Before the COVID-19 pandemic, PGWPs could not be extended. As such, former international students who had obtained a PGWP at the completion of their studies usually had to apply for either permanent residence or another type of work permit if they wished to continue working and remaining in Canada after the expiration of their PGWP.

Special measures for PGWPs following COVID-19

Since COVID-19, the Government of Canada passed a set of measures to address labor shortages in Canada, and to help employers find and retain talented and qualified foreign workers.

Among the measures implemented during the COVID-19 pandemic were those allowing former international students with PGWPs expiring between September 20, 2021, and December 31, 2022, to apply for an extension to their PGWP of up to 18 months. The measures also included the option to apply for interim work authorization for all holders of a PGWP expiring between September 20, 2021, and December 31, 2022, and an authorization for those who needed to restore their status to do so even if they were beyond the 90-day restoration period.

3. Additional special measures for PGWPs

As stated in the announcement of the Honourable Sean Fraser of March 17, 2023, the government of Canada will be implementing additional special measures as of approximately April 6, 2023, that will allow certain former international students who hold a PGWP that expired or is expiring in 2023, and who meet the eligibility criteria, to apply for an extension or renewal of their work permit of up to 18 months. Moreover, certain eligible former international students who held a PGWP will benefit from a special authorization allowing them to apply for a new work permit, receive interim work authorization during the processing of their application, and restore their status even if they are beyond the 90-day restoration period.

The government of Canada stated that PGWP holders who are eligible to apply under the new 2023 PGWP special measures will receive a communication in their Immigration, Refugees and Citizenship Canada (IRCC) Secure Account informing them of their eligibility.

More detailed instructions and information are to follow in the coming weeks.

4. Closing remarks

The Government of Canada announcement of March 17, 2023 represents another important step to address Canada’s labour shortage and help Canadian employers in their efforts to find and retain qualified workers and talent. The 2023 PGWP special measures are also in line with recent initiatives led by IRCC such as the recent temporary pilot project to lift the 20-hour off campus work cap for certain qualifying international students. As we have throughout the years, the Gomberg Dalfen team will continue to keep you updated about recent and new developments in Canadian immigration law.

Details:

Post-Graduation Work Permit Program—[R205(c)-C43]—International Mobility Program, Government of Canada. https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals/temporary-residents/study-permits/post-graduation-work-permit-program.html

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4. ITALY

The Italian government has approved a new immigration law decree.

On March 9, 2023, the Italian government approved a new immigration law decree that includes interesting updates to Italian immigration law. The decree will be converted into law by the parliament within 60 days after its publication in the official gazette (March 10, 2023).

The points indicated below are not yet confirmed, as the parliament may modify the decree before converting it into law.

Major changes include:

• Residence permits for work and family reasons can be renewed for three years instead of two years.
• It will be possible to convert study residence permits into work permits without being subject to the quota limitations, also for those students not graduating in Italy.
• The “quota” will be issued every 3 years (Decreto Flussi will be published every three years instead of every year).
• Foreign nationals may engage in work-related activities while waiting for the contract of stay to be signed.
• There are restrictions to the rules for special protection permits.
• Tougher punishments are being introduced for traffickers who contribute to the bodily harm or death of people being transported illegally.

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5. MEXICO

This article provides a summary of the non-lucrative Temporary Resident Visa.

The COVID-19 pandemic has had a significant impact on the way people work, with many companies and employees shifting to remote work to comply with social distancing guidelines and stay-at-home orders. Overall, the pandemic has accelerated the trend toward remote work, and it is likely that remote work will continue to be a more common and accepted way of working in the future.

From an immigration perspective, many countries are exploring the possibility of offering a “nomad” visa, and some others have already updated their laws and now offer a nomad visa. Mexico is not offering a specific “nomad visa” or program, but it does offer a Temporary Resident Visa that can be obtained for a variety of purposes, including studying, working, or retirement.

While the Temporary Resident Visa’s non-lucrative activities are not specifically designed for digital nomads, the visa can be a viable option for those who wish to live and work in Mexico for an extended period and continue working remotely. The Temporary Resident Visa for non-lucrative activities, in general terms, will be the appropriate immigration visa for foreigners coming to Mexico to work remotely, provided that they continue to receive their salaries or income from abroad.

Moreover, the non-lucrative visa is a type of visa that allows individuals to live in Mexico for an extended period without engaging in any paid work or remunerative activities. This type of visa is typically intended for individuals who have sufficient financial resources to support themselves while living in the host country and who wish to spend an extended period of time there for leisure or other non-work-related purposes.

To obtain a non-lucrative visa to work remotely and live in Mexico, foreigners must meet certain requirements, such as proof of economic solvency, demonstrating that they have a steady source of income or savings to support themselves during their stay in Mexico, explaining the activities to be carried out, and identifying the city where they plan to live, among others.

This type of visa is requested directly at the Consulate General of Mexico of the foreigner’s choice as the first step of the process. The second and final stage of the process is to convert the consular visa to the temporary resident card for non-lucrative activities.

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6. SCHENGEN AREA

This article answers frequently asked questions about the Schengen visa-free system.

1. In which countries does the visa waiver apply?

The visa-free regime applies to stays in the territories of the European Union (EU) Member States, except for the United Kingdom and Ireland. The EU Member States covered by the visa waiver are:

• The EU Member States that are part of the Schengen area: Austria, Belgium, the Czech Republic, Croatia, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Italy, Latvia, Lithuania, Luxembourg, Malta, the Netherlands, Poland, Portugal, Slovakia, Slovenia, Spain, and Sweden;
• The EU Member States that do not yet fully apply the Schengen acquis (those who are not yet part of the Schengen area without internal borders): Bulgaria, Cyprus, and Romania. Stays in these states are not calculated in the overall period of stay for the Schengen area. Instead, the 90-day limit is calculated individually for each of these states. For example, after a 90-day stay in the Schengen area, a person can immediately travel to Bulgaria and stay for another 90 days there;

The visa waiver, in principle, also applies to the associated Schengen states: Iceland, Liechtenstein, Norway, and Switzerland.

2. Does the visa waiver include the French and Netherlands overseas territories?

Regarding France and the Netherlands, visa-free travel applies only to the European territory of these Member States. The visa regime between the overseas territories of these Member States and the six countries remains subject to bilateral arrangements between the countries concerned or to national legislation.

The overseas territories of France are Guadeloupe, Martinique, French Guiana, Réunion, French Polynesia, New Caledonia, Mayotte, Saint Pierre and Miquelon, Wallis and Futuna, Saint Barthélemy, Saint Martin, Clipperton Island, and the French Southern and Antarctic Lands.

The overseas territories of the Netherlands are Aruba and the Netherlands Antilles (consisting of Bonaire, Curaçao, Saba, Saint Eustatius, and Saint Martin).

3. How long can I stay without a visa in the Schengen area?

• The date of entry is considered as the first day of stay in the Schengen territory.
• The date of exit is considered as the last day of stay in the Schengen territory.
• The 180-day reference period is not fixed. It is a moving window, based on the approach of looking backward at each day of the stay (be it at the moment of entry or at the day of an actual check, such as inland police control or border check upon departure).
• Absence for an uninterrupted period of 90 days allows for a new stay of up to 90 days.

Periods of the previous stay authorized under a residence permit or a long-stay visa are not taken into account in the calculation of the duration of visa-free stay. Residence permits and long-stay visas are subject to different rules, and the above explanations and calculations do not apply to them.

4. Can I enter the Schengen area more than one time during that period?

Yes, you can. However, you must carefully calculate your days of stay; the overall period of stay must not exceed the overall total of 90 days of stay within any 180-day period (see above).

5. What travel documents are needed to enjoy visa-free travel to the Schengen area?

You will need a passport issued within the previous 10 years and valid for at least three months after the intended date of departure from the Schengen area.

6. Does the visa waiver include the right to enter the territory of the Schengen States?

The visa waiver does not give an unconditional right of entry and stay. The Member States have the right to refuse entry and stay in their territories if one or more of the entry conditions are not met.

For stays not exceeding 90 days in any 180-day period, the entry conditions for third-country nationals include:

• Possession of a valid travel document (see question 4, above) or documents authorizing them to cross the border;
• Justification for the purpose and conditions of the intended stay, and having sufficient means of subsistence, both for the duration of the intended stay and for the return;
• Not being a person for whom an alert has been issued in the Schengen Information System (SIS) for the purpose of refusing entry; and
• Not being considered to be a threat to public policy, internal security, public health, or international relations with any of the Member States, in particular where no alert has been issued in Member States’ national databases for the purposes of refusing entry on the same grounds.

7. What documents do I need to show to the immigration officer at the port of entry?

You need to show your passport. In addition, you might be asked to show documents proving your purpose and conditions of stay (for example, tickets for further journeys and return tickets; reservations for accommodation; an invitation letter in case of visits, conferences or events; a school enrollment certificate in case of study) as well as evidence of sufficient means of subsistence (see below).

8. How much money do I need to have with me to travel to the Schengen area?

According to Article 5(3) of the Schengen Border Code, “means of subsistence shall be assessed in accordance with the duration and the purpose of the stay and by reference to average prices in the Member State(s) concerned for board and lodging in budget accommodation, multiplied by the number of days stayed.” To assess the means of subsistence, the reference amounts set by each Schengen State must be taken into account.

The verification of sufficient means of subsistence may be based on cash, travelers’ checks, and credit cards in the third-country national’s possession. Declarations of sponsorship, where such declarations are provided for by national legislation and letters of guarantee/invitation from hosts, as defined by national legislation, in the event that the third-country national is staying with a host, may also constitute evidence of sufficient means of subsistence.

A credit card’s validity may be verified by contacting the issuing company or by using other facilities available at the border crossing point (e.g., exchange offices). An invitation from hosts may be verified by contacting the host directly or by verifying the host’s good faith through national contact points of the Member States in which the host resides.

9. Is travel medical insurance always necessary for travel in the Schengen area?

Travel medical insurance is not mandatory for visa-free third country nationals. However, it is recommended for travel to the Schengen countries.

10. For what purposes can I travel without a visa to the Schengen area?

You can come as a tourist, to visit friends or family, to attend cultural or sports events or exchanges, for business meetings, for journalistic or media purposes, for medical treatment, for short-term studies or training, and for any similar activities. The visa waiver does not apply to persons traveling for the purpose of carrying out a paid activity in the Member States, i.e., for those who are coming to work in the EU (see question below).

11. Do I need a visa to work in the Schengen area for less than 90 days?

Yes, most of the Member States require a visa and a work permit if you intend to work there, even if it is for less than 90 days. Contact the embassy/consulate of the Member State where you intend to work to ask whether a special type of visa and work permit are needed.

12. If I plan to visit a friend or relative living in the Schengen area, will I need to provide any specific information about this person at the border?

You may be asked to provide information on this person. It is recommended to have at least the address and contact number.

13. Will I need to apply for a visa and/or study permit if I plan to travel to the Schengen area for short-term studies?

You will need to apply for a study permit only if you intend to undertake studies exceeding 90 days of stay in the Schengen area within a period of 180 days. For longer studies, you must apply for a study permit, and the rules vary from country to country. It is recommended to consult the embassy/consulate of the country in which you intend to study.

14. Once the visa-free travel applies, can I travel from one Schengen country into another country?

There are no border controls between countries in the Schengen area. Border controls are carried out between the Schengen countries and Bulgaria, Cyprus, and Romania (the EU Member States that do not yet fully apply the Schengen acquis). Controls are also carried out between Schengen countries and Ireland (which does not belong to the Schengen Area).

Non-EU citizens must fulfill all entry conditions (see question 5) and might need to demonstrate that at possible ad hoc controls in the Schengen area.

15. If I stay beyond 90 days (without a residence permit or a long-term visa) or work in the Schengen area (without a working permit), what could happen?

A non-EU national who stays in the Schengen area beyond 90 days (without a residence permit or long-stay visa) is illegally present, which can result in a re-entry ban to the Schengen area. Working in the Schengen area without a work permit is also illegal (even if less than 90 days) and can likewise result in a re-entry ban to the Schengen area. Depending on the Member State, administrative penalties may also apply.

Details:

Italian Immigration & Citizenship, Mazzeschi S.r.l., Mar. 2023. https://www.mazzeschi.it/mazzeschi-asiadesk/wp-content/uploads/2023/02/Mazzeschi-Italian-Immigration-and-Citizenship-magazine-March-2023_compressed.pdf

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7. UNITED KINGDOM

New immigration rules are being implemented. Also, some updates from sponsors are now automated.

New Immigration Rules

New Immigration rules were set forth recently by the United Kingdom (UK). The main changes and implementation dates are below, including important updates for sponsors.

Sponsored Worker Salary Thresholds and Related Changes

The minimum salary requirements to sponsor staff under the Skilled Worker and Senior or Specialist Worker (previously known as Intra-Company Transfer [ICT]) categories will change for all applications where the Certificate of Sponsorship (CoS) is assigned on or after April 12, 2023:

• Skilled Worker. For most applications, sponsors must pay the higher of the general salary threshold, the going rate for the role, or the hourly rate:

• General salary threshold: up from £25,600 to £26,200. A lower general threshold may apply if, for example, the applicant is a new entrant (such as a student or someone under 26 years old) or the role is in a shortage occupation. The lower general threshold is increasing from £20,480 to £20,960.
• Going rates. The going rate for each type of job (occupation code) is changing. The new rates are shown starting on page 39 of the statement of changes. Going rates are currently prorated based on a 39-hour work week. Starting on April 12, this will change to a 37.5-hour work week.
• Hourly rate: up from £10.10 to £10.75.

• Senior or Specialist Worker. The general threshold is increasing from £42,400 to £45,800 (and Graduate Trainee applications from £23,100 to £24,220). The going rates for a Skilled Worker are also changing.
• Irregular working patterns. In a new development, the rules will account for those being sponsored to work a pattern where their regular hours are not the same each week, resulting in uneven pay.
• Absence from work. Normally, if a sponsored worker is absent from work without pay for more than four weeks during a calendar year, their sponsorship must end. Under the new rules, jury service and attending court as a witness are added to the list of permitted reasons for absences that will not count toward the four-week period.

Given that some minimum salary thresholds are increasing, sponsors may wish to assign any CoS for upcoming applications by April 11, 2023.

Other Changes

• Electronic Travel Authorisation (ETA) scheme. The UK is implementing a U.S.-style electronic pre-travel authorization system of its own. The ETA will require non-visa nationals (those who do not require a visa before traveling to the UK as a visitor, and therefore are not on the visa national list) to apply for electronic pre-travel authorization. If the authorization is refused due to a criminal conviction, for example, the traveler will need to apply for a visitor’s visa. The ETA will start in November 2023 for Qatari nationals before extending to nationals of Bahrain, Jordan, Kuwait, Oman, Saudi Arabia, and the United Arab Emirates in February 2024 and thereafter will be extended to all other non-visa nationals (including U.S., Australian, and Canadian nationals).
• Youth Mobility Scheme. As of April 12, 2023, New Zealanders applying for the Youth Mobility Scheme will be eligible if they are ages 18-35 (it is normally 18-30) and will receive a three-year visa instead of the normal two years.
• Innovator Founder replaces Start-Up. As of April 13, 2023, applicants seeking to establish an innovative business in the UK can apply for the new Innovator Founder route. The new route has no minimum investment funds requirement (currently £50,000). Unlike under the Start-Up route, Innovator Founders will be permitted to undertake employment in skilled roles (RQF Level 3 or above), outside the running of their business.
• Long residence settlement (indefinite leave to remain) applications. It is possible to apply for settlement after 10 years of continuous lawful residence in the UK. In a change starting on April 13, 2023, prospective applicants should be aware that time spent in the UK as a visitor or short-term student, or on the seasonal worker routes, will not count toward long residence. Applicants who have spent time as a visitor (or on other temporary permission) who are later granted permission on another basis will still be able to qualify for long residence settlement, but they will need to wait longer to do so.

UKVI Automates Some Updates From Sponsors

In other news, UK Visas and Immigration (UKVI) recently notified sponsors that they no longer need to wait many weeks or pay a priority service fee to replace their Authorising Officer or Key Contact, or to add a level 1 user. This type of update now takes effect as soon as the request has been made in the Sponsor Management System (SMS), provided that the postcode of the person to be added matches the postcode of the sponsor or their representative as shown in the SMS. A signed submission sheet still must be sent to UKVI for a change of Authorising Officer.

Also, annual allocation renewals for most types of Certificates of Sponsorship (CoS) will be automated as of June 24, 2023. Sponsors will be granted the number of CoS they assigned during the previous year. Sponsors whose annual allocation expires before June 24 will need to submit a renewal request through the SMS unless they have had automatic renewals in previous years.

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8. New Publications and Items of Interest

Alliance of Business Immigration Lawyers: https://www.abil.com/

• ABIL is also available on Twitter: https://twitter.com/abilimmigration

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9. ABIL Member / Firm News

Several Gomberg Dalfen, S.E.N.C. lawyers were named in the 2023 edition of the Canadian Legal Lexpert Directory, including Seth Dalfen, Avi Gomberg (bio: https://www.abil.com/abil-lawyers/avi-gomberg/), Genevieve Hénault, and Lisa Middlemiss. They are ranked lawyers based on the Lexpert® peer Survey. This year, the overall national response rate from law firm practitioners to the survey was 76 percent.

IMMpact Immigration Litigation (Joseph & Hall, PC, Kuck Baxter, Siskind Susser PC, and Bless Litigation LLC) announced a call for plaintiffs in prevailing wage determination litigation. IMMpact will represent individuals who filed Forms ETA 9141, Application for a Prevailing Wage Determination (PWD), before October 1, 2022. IMMPact plans to sue the Office of Foreign Labor Certifications (OFLC) and the Department of Labor because “the OFLC is failing to work on these applications in a timely manner.” IMMpact notes that OFLC is currently processing Forms ETA-9141 that were filed in January 2022. “The failure to adjudicate these applications in a timely manner adversely impacts employers’ ability to hire needed employees, threatens those in H-1B classification with losing their status, and adversely affects the ability of institutions of higher education to meaningfully take advantage of the special handling procedures implemented to ensure the most qualified professors are hired,” IMMpact said. https://www.immpactlitigation.com/prevailing-wage-determination-litigation-plaintiff-onboarding/

Klasko Immigration Law Partners, LLP, has launched a new website that is responsive to mobile and tablet devices. https://klaskolaw.com/

Charles Kuck (bio: https://www.abil.com/abil-lawyers/charles-kuck/) was included on the Top 100 list of Georgia Super Lawyers, as the only immigration lawyer on the list.

Robert Loughran (bio: https://www.abil.com/abil-lawyers/robert-f-loughran/) presented “Nonimmigrant Options for Singaporeans,” hosted by Enterprise Singapore on March 13, 2023, during SxSW Interactive in Austin, Texas. The presentation reviewed U.S. immigration classifications, options, timeframes, red flags, and trends available to a delegation of companies and startups from Singapore.

Cyrus Mehta (bio: https://www.abil.com/abil-lawyers/cyrus-d-mehta/) was quoted by the Times of India in “USCIS New Guidelines on Employer’s Ability to Pay May Help Startups Retain Talent.” Mr. Mehta said, “The new ‘Ability to Pay’ (ATP) guidance may help employers who may not have sufficient net income or be able to show that the difference between the net current assets exceed[s] the next current liabilities in their tax returns. The guidance allows for an analysis of ‘other factors’ to demonstrate the employer’s ability to pay especially when companies operate at a loss for a period to improve their business position in the long run.” Mr. Mehta added that the new guidance “might thus help startups to demonstrate their ability to pay by submitting other evidence including bank statements, personnel records, credit lines, gross sales and revenues as well as media accounts about the company and its overall reputation.”

Mr. Mehta authored a new blog post: “The Dates for Filing Chart in the Visa Bulletin Not Only Protects Children from Aging Out But Can Be Dramatically Advanced to Allow Many More Backlogged Immigrants to File Adjustment of Status Applications.”

Mr. Mehta and Kaitlyn Box co-authored several new blog postings:

• “Khedkar v. USCIS Affirms That Employee Also Has an Interest in an I-140 Petition Filed by Employer,” http://blog.cyrusmehta.com/2023/02/khedkar-v-uscis-affirms-that-employee-also-has-interest-in-an-i-140-petiiton-filed-by-employer.html
• “Making Sense of USCIS’s Twitter Posts on Applying for Jobs or Attending Interviews While in Visitor Visa Status,” http://blog.cyrusmehta.com/2023/04/making-sense-of-usciss-twitter-posts-on-applying-for-jobs-or-attending-interviews-while-in-visitor-visa-status.html
• “Second Circuit Upholds Trump Era Interpretation on Administrative Closure Even Though Biden Has Changed It. Does This Leave Open Possibility that Biden Era Interpretation May Also Be Upheld if Future Administration Changes It?”
• “Dealing with Section H.10-B Labor Certification Denials,” http://blog.cyrusmehta.com/2023/03/dealing-with-section-h-10-b-labor-certification-denials.html

Mr. Mehta and Jessica Paszko co-authored several new blog postings: “Pathways for H-1B Workers Who Want to Become Entrepreneurs,” http://blog.cyrusmehta.com/2023/03/pathways-for-terminated-h-1b-workers-who-want-to-become-entrepreneurs.html; and “National Interest Waiver for STEM Graduates and Entrepreneurs, Along with Premium Processing, Will Benefit H-4 Spouses Seeking Work Authorization.” http://blog.cyrusmehta.com/2023/02/national-interest-waiver-changes-for-stem-graduates-and-entrepreneurs-along-with-premium-processing-will-benefit-h-4-spouses-seeking-work-authorization.html

Mr. Mehta and Stephen Yale-Loehr (bio: https://www.abil.com/abil-lawyers/stephen-yale-loehr/) were quoted by the Times of India in “Laid-Off H-1B Workers to Get 6-Month Reprieve.” The article discusses a recommendation by a presidential advisory panel to extend the grace period for laid-off H-1B workers from 60 to 180 days. In the past six months, the article notes, many laid-off H-1B employees have highlighted on social media their plight of trying to find another job within the 60-day grace period after a layoff. Mr. Yale-Loehr said that U.S. Citizenship and Immigration Services (USCIS) “is not required to follow that recommendation.” Moreover, he said, even if USCIS were to extend the grace period, the agency “might have to go through the normal rulemaking process to do that. That could take months.” Also, he noted, if USCIS extends the grace period, “expect a lawsuit by U.S. workers challenging the change as beyond the immigration agency’s authority. Finally, a grace period extension wouldn’t apply retroactively to help H-1B workers already laid off. In sum, laid-off H-1B workers should not get their hopes up yet.” Mr. Mehta called the recommendation “good news” and said the extended period would not take effect immediately. “The actual regulation at 8 CFR (Code of Federal Regulations) needs to be amended, which is a process, since the administration must allow for notice and comment to the public before changing a rule,” he said. https://timesofindia.indiatimes.com/business/international-business/laid-off-h-1b-workers-may-get-6-month-reprieve/articleshow/98679904.cms?from=mdr

Angelo Paparelli (bio: https://www.abil.com/abil-lawyers/angelo-paparelli/) discussed immigration history, law, politics, and related issues in “Episode 34: Immigration Law: Outspoken Changemaker in a Convoluted Maze,” part of the “Fill to Capacity” podcast series. https://www.nationofimmigrators.com/2023/01/outspoken-changemaker-in-a-convoluted-maze/

Greg Siskind, of Siskind Susser, PC, spoke on an American Bar Association (ABA) Techshow panel recently and was quoted by the ABA Journal on artificial intelligence (AI) tools and platforms for lawyers: “There are lower tech, low-code or no-code platforms available to build automation tools. When we’re talking about AI for lawyers, we’re basically talking about automating tasks in your practice.” He said his firm uses Afterpattern, which allows firms, legal aid organizations and courts to create document and workflow automations. The article notes that Mr. Siskind has used the platform to build an app that screens Ukrainians for Temporary Protected Status eligibility. He has also used it as a drafting tool, which the article says enables him to onboard hundreds of plaintiffs in mass immigration litigation in a short amount of time. “The whole thing happens in a matter of minutes. Before, we put tons and tons of labor into getting that information and drafting the declarations. Now, we can start onboarding for a case and file it two weeks later,” he said. Mr. Siskind added that he has used Afterpattern for Form I-9 digitization and auditing and for generating retainers. In the past few months, he also began to use Casetext’s CoCounsel to conduct research for his mass immigration litigation, the article notes. “Everything that I hate about ChatGPT is like, ‘It’s nice it said that, but what is that based on?’ ” Siskind said. “But this tool basically produced a 20-page memo that had all the cases that discussed a particular issue, links to those cases and summaries under each citation telling us what that particular case was about. It was wonderful for the amount of time it saved.” https://www.abajournal.com/web/article/how-can-lawyers-use-ai-to-improve-their-practice

Mr. Siskind appeared on an MSNBC “Morning Joe” segment with the co-founders of Casetext. https://www.msnbc.com/morning-joe/watch/first-ever-a-i-legal-assistant-makes-its-debut-164266565592

WR Immigration, a nationally ranked Tier 1 law firm, was named a 2023 Legal Technology Trailblazer by the National Law Journal. The annual list recognizes companies pioneering in the legal industry by developing technology that improves how legal professionals and law firms operate. WR Immigration was recognized for its proprietary Immigration Management System, WRapid™—a centralized, cloud-based platform and Enterprise Resource Planning solutions software for business immigration. https://wolfsdorf.com/wrapid-recognized-as-legal-technology-trailblazer-by-the-national-law-journal-for-best-immigration-software/

WR Immigration will present a webinar on the Department of Homeland Security’s (DHS) announcement of a new process to protect undocumented whistleblowers, on Thursday, May 11, 2023, at 11 a.m. PT. WR Immigration and Hirschfeld Kraemer LLP will discuss what employers need to know. Attorneys will share their insights on what employers can expect in the months ahead, including likely claims and how employers can prepare in light of the new DHS policy. https://wolfsdorf.com/us-department-of-homeland-security-announces-new-process-to-protect-undocumented-whistleblowers/ (article); https://us02web.zoom.us/webinar/register/5916790874887/WN_Ko4qkNdRQAyCpRpYWxfbow (webinar)

WR Immigration published “USCIS Issues Policy Alert on Evidence for Employers’ Ability to Pay Proffered Wage.” https://wolfsdorf.com/uscis-issues-policy-alert-on-evidence-for-employers-ability-to-pay-proffered-wage/

WR Immigration published “Celebrating Black History Month: WR Recognizes Two Important Figures.” WR showcased two prominent figures in the black immigrant community in the United States “who have made an amazing impact through their civil advocations and humanitarian efforts: Miriam Makeba and Dikembe Mutombo.” https://wolfsdorf.com/celebrating-black-history-month-wr-recognizes-two-important-figures/

In the latest edition of “Chatting with Charlie” on the May Visa Bulletin outlook, WR Immigration Director of Visa Consulting Charlie Oppenheim, Partner Charina Garcia, and Senior Associate Laura Bloniarz update HR professionals with the latest employment-based green card processing information from the April and May Visa Bulletins. https://wolfsdorf.com/chatting-with-charlie-webinar-unpacking-the-april-and-may-visa-bulletins/

WR Immigration recently presented a webinar, “Alternatives to the H-1B Lottery.” Ms. Garcia and Audrey Lustgarten discussed what to do when considering global alternatives, including alternative U.S. options, a review of immigration options to confirm eligibility, non-immigration factors, and more. https://wolfsdorf.com/webinar-alternatives-to-the-h-1b-lottery/

Mr. Yale-Loehr co-authored “DACA, Public Health, and Immigrant Restrictions on Healthcare in the United States,” which was published in the May 2023 edition of the Lancet Regional Health-Americas, a leading medical journal. The article discusses the consequences of court developments for Deferred Action for Childhood Arrivals (DACA) and broader efforts to expand access to healthcare for immigrant populations in the United States. https://www.sciencedirect.com/science/article/pii/S2667193X23000674?via%3Dihub

On February 24, 2023, Cornell Law School sponsored “Immigration Reform: Lessons Learned and A Path Forward,” a conference held at the National Press Club in Washington, DC. Both in-person and over Zoom, about 220 people attended the conference, which explored targeted legislation and other policy changes that could be enacted in 2023. Panels focused on three topics: work visa changes to help alleviate high-skilled and low skilled-labor shortages, border security and asylum reforms, and a permanent path forward for Dreamers, farmworkers, and others. “Major reforms require the convergence of a widely recognized problem, policy solutions, and sufficient political will, ” said Mr. Yale-Loehr, conference co-organizer and moderator. “Our conference brought together expert scholars, analysts, and advocates to probe ways to clarify key problems, identify achievable policies, and build the political will needed to enact them. We hope to build on the conference discussions to develop constructive proposals that have a realistic chance of enactment this year.” https://www.lawschool.cornell.edu/news/law-school-sponsors-conference-on-immigration-reform-at-national-press-club/

Mr. Yale-Loehr was quoted by the New York Times in “In Rare Victory, Immigrants Prevail in Suit Over Meat Plant Raid.” The article reports on a case involving nearly 100 immigrants who were rounded up during a 2018 raid at a meat processing plant in Tennessee and have reached a $1.17 million settlement against the U.S. government and federal agents, who they said used racial profiling and excessive force during the operation. The article notes that the settlement agreement, approved February 27, 2023, in the U.S. District Court for the Eastern District of Tennessee, is likely the first class settlement over an immigration enforcement operation at a work site, according to immigration experts. In the past, only individual immigrants have reached settlements related to immigration raids, the article says, adding that legal experts have called it a rare victory for undocumented immigrants. Mr. Yale-Loehr said, “It is very hard to win a settlement from the U.S. government and agents in immigration enforcement cases. The outcome is particularly important because federal agents were held accountable for overreaching and racial profiling.” https://www.nytimes.com/2023/02/27/us/meat-plant-raid-immigrants-tennessee.html (subscription required)

Mr. Yale-Loehr was quoted by Univision in ” ‘Cruel,’ ‘Illegal,’ ‘Immoral,’ ‘Disappointment’ … Rain of Criticism Regarding Biden’s New Asylum Immigration Policy at the Border.” Mr. Yale-Loehr said, “The Biden administration is between a rock and a hard place. Congress has failed to reform our broken immigration system, and more and more people are trying to enter the United States for a variety of reasons, including persecution, gang violence, and climate change. The Biden administration hopes its proposed rule will survive a court challenge. I doubt it.”

Mr. Yale-Loehr was quoted by Cornell Law School News in “Asylum and Convention Against Torture Appellate Clinic Celebrates 20th Anniversary.” Mr. Yale-Loehr said, “Because of the complexity of immigration law, it is very hard to win asylum for someone. We are fortunate that we have excellent students who work tirelessly to save their clients from persecution or torture.” He also said, “The clinic has been a highlight of my legal career. I feel honored to have worked with so many excellent students over the years to help persecuted people win asylum and start a new life in the US.” Over 20 years, the article notes, about 200 students have represented close to 100 clients. In a system where the vast majority of asylum seekers lose their appeals, the clinic has won an estimated 66 percent of its cases, the article says. https://www.lawschool.cornell.edu/news/clinic_20th_anniversary/

Mr. Yale-Loehr was quoted by Marketplace in “As Summer Approaches, Labor Shortages Make Summer Hiring Tough.” He said that consumers will notice labor shortages “in terms of increased prices. When you go to a restaurant, because there’s not enough workers, you’re going to see it in terms of reduced hours” at restaurants and at the community recreation center, for example. https://www.marketplace.org/2023/04/14/labor-shortages-make-seasonal-hiring-tough-summer/

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In this issue:

1. BARRIERS TO ELECTRONIC TRAVEL AUTHORIZATION: AN OVERVIEW – This article provides an overview of barriers to electronic travel authorization in several countries.

2. CANADA and ITALY – A new bilateral agreement is in force for Italian and Canadian citizens between the ages of 18 and 35.

3. MEXICO – Mexico has introduced a new online process for the multi-purpose immigration form.

4. RUSSIA – PCR tests upon entry are no longer required. Also, Russia requires notification to the Ministry of Internal Affairs when Russian citizens receive citizenship or permanent residence from a foreign country.

5. SWITZERLAND – Nationals of countries with which Switzerland holds permanent residence agreements now must also show local language proficiency when applying for permanent residence.

6. UNITED KINGDOM – The Home Office has reduced some of the reporting requirements for sponsors and made other helpful changes.

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

8. ABIL Member / Firm News – ABIL Member / Firm News

Download:

ABIL Global Immigration Update – December 2022

1. BARRIERS TO ELECTRONIC TRAVEL AUTHORIZATION: AN OVERVIEW

This article provides an overview of barriers to electronic travel authorization in several countries.

Canada

The Canadian electronic travel authorization (eTA) is an electronic document that is required for most visa-exempt air travelers to Canada, as well as those transiting through Canada by air, with some exceptions. Air travelers to Canada who would otherwise be visa-exempt will face barriers in applying for an eTA in particular circumstances.

Among those who are barred from applying for an eTA are travelers who have been found to be inadmissible to Canada, such as those facing prior criminal convictions captured by the Immigration and Refugee Protection Act (IRPA), including impaired driving or cannabis-related crimes. Such individuals will generally only be allowed to enter the country with an alternative entry document, such as a temporary resident permit, if they are determined to have valid reasons to visit Canada. Individuals who have been granted an eTA and subsequently become the subject of a report on inadmissibility or are issued a temporary resident permit to overcome an inadmissibility become ineligible to hold an eTA, which may then be canceled by an immigration officer.

Applicants may also become ineligible for an eTA when they have received a prior refusal of a temporary resident visa, work permit, or study permit on the basis that the person was unlikely to leave Canada by the end of the authorized stay. Moreover, applicants who were previously issued an eTA and subsequently withdrew their application to enter Canada upon examination by an officer at a port of entry, or those who become the subject of a removal order, may also become ineligible to hold an eTA. Permanent residents (PRs) of Canada are also ineligible to apply for one and instead require a valid permanent residence card, or a permanent resident travel document—generally only valid for one entry—to return to Canada. eTA applications from Canadian PRs may either drop out of the automated process if they appear to be a PR or be manually reviewed by an officer, who should subsequently contact the applicant to determine if they wish to relinquish their status if this is unclear.

Finally, Canadian citizens, including those born abroad holding dual citizenship, cannot apply for an eTA to travel to Canada and require a valid Canadian passport to enter the country. If the automated process identifies an applicant as a Canadian citizen, it will be dropped out. Dual citizens without a Canadian passport with a flight to Canada scheduled in less than 10 days may apply for special authorization. If an applicant meets the eligibility criteria—including proof of citizenship and a valid non-Canadian passport from a visa-exempt country, among others—and is approved, this will enable them to board their flight and will be valid for only 4 days from the date of travel. Canadian-American dual citizens only need one of their passports to fly to Canada, but are recommended to travel with both.

Mexico

The electronic travel system is mandatory for Russian, Ukrainian, and Turkish nationals; recently Brazilians has also joined the list.

The applicant must have a valid passport, with a minimum validity of at least 6 months before traveling to Mexico.

The applicant must complete the application at the National Immigration Institute website: https://www.inm.gob.mx/sae/publico/ru/solicitud.html.

The applicant may receive:

• The electronic authorization to be printed with validity of 30 days to use it;
• A denial of the electronic authorization; or
• An answer stating that the electronic authorization is being reviewed.

A denial is the result of having migratory alerts.

For most minor criminal offenses, individuals are not specifically barred from entering Mexico. Those with outstanding warrants are unlikely to be allowed entry, and individuals on probation or parole are likely to have problems. The nature and history of the criminal record in question determines ease of entry into Mexico. It is also a question of whether the foreign authority, in this case entities like the U.S. Departments of Justice and Homeland Security, has issued an international warning to Mexican authorities on existing problems with an individual.

Schengen Area

Which criminal offenses will need to be reported by travelers under the new European Travel Information and Authorisation System (ETIAS)?

According to the Schengen Rules, entrance can be denied to non-European Union (EU) nationals who “are considered to be a threat to public policy, national security or the international relations of any of the Contracting Parties and in particular where no alert has been issued in Member States’ national data bases and in the Schengen Information System (SIS) (II) for the purposes of refusing entry on the same grounds.”

Each Schengen country also has its own rules, conditions, and requirements for allowing entry to non-EU nationals.

Details:

• “Can You Enter the Schengen Area If You Have Past Criminal Convictions?”, Mazzeschi S.r.l. https://www.mazzeschi.it/can-you-enter-the-schengen-area-if-you-have-past-criminal-convictions/

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2. CANADA and ITALY

A new bilateral agreement is in force since November 1, 2022, for Italian and Canadian citizens between the ages of 18 and 35.

The new Agreement aims to promote, among the new Italian and Canadian generations, a better knowledge of culture, society, and languages through travel experiences, work, and life in the other country.

What does the agreement stipulate?

The bilateral youth mobility agreement between Italy and Canada offers professional training opportunities to young Italian and Canadian citizens between the ages of 18 and 35 who are entering the world of work.

For 2023, there will be 2,000 young people per country who will be able to benefit from this agreement. The new agreement replaces the 2006 Memorandum of Understanding between Italy and Canada on “Working Holidays” and expands its scope, with the Italian extension of the work permit to 12 months and the introduction of new categories of participants.

What new categories are now available?

In particular, the agreement includes the following three categories:

• “Working Holiday,” for those who intend to travel to the host country and temporarily work during their stay;
• “Young worker,” for those who have already obtained an employment contract in the host country, in support of their professional development or pertaining to their previous field of study; and
• “International internship,” aimed at students enrolled in a course at a post-secondary level institute of study who have obtained an internship relevant to their field of study in the host country, as a requirement of their academic curriculum. Visa applicants must have a valid travel document with an expiration date of at least three months longer than that of the requested visa.

Interested parties must be between the ages of 18 and 35, inclusive, on the date on which the application is received.

The validity of the visa will be commensurate with the expected duration of the stay, in any case not exceeding 12 months.

Details:

“Agreement on Youth Mobility Between Italy and Canada,” Italian Government, https://www.esteri.it/en/opportunita/scambi_giovanili/accordo-in-materia-di-mobilita-giovanile-tra-litalia-e-il-canada/

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3. MEXICO

Mexico has introduced a new online process for the multi-purpose immigration form.

Due to recent adjustments implemented by the immigration authorities (National Immigration institute), the FMM form (multi-purpose immigration form that was usually delivered by airlines to travelers to Mexican national territory or handed out at any port of entry) will no longer be delivered and only the usual entry stamp will be stamped in the traveler’s passport indicating the date of entry and the maximum number of days of authorized stay.

Foreigners who require an FMM form to carry out an immigration procedure may scan a QR code that is located at the port of entry. Once the QR code has been scanned and the foreigner has entered the corresponding website, he or she must create an account and provide the requested data and documents to obtain an Electronic Migratory Multiple Form.

Upon entering Mexican territory, the foreigner must clearly state the purpose of the trip to the immigration authorities and show the corresponding documentation. Otherwise, the immigration officer may register an incorrect immigration status that would prevent the foreigner from continuing with the immigration process, if applicable.

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4. RUSSIA

PCR tests upon entry are no longer required. Also, Russia requires notification to the Ministry of Internal Affairs when Russian citizens receive citizenship or permanent residence from a foreign country.

PCR Tests No Longer Required for Entry

As of October 21, 2022, the requirement to provide a negative PCR test for COVID-19 for entry to Russia were abolished for all foreign citizens. Previously, most foreign nationals were required to provide a negative PCR test, taken within 48 hours before crossing the border.

Also PCR tests were abolished for Russian citizens returning from abroad. Previously, they were required to complete the test within three calendar days upon entry into Russia and upload the results to Gosuslugi.

The requirement to complete the arrival questionnaire upon arrival is still in force for both foreigners and Russian citizens.

Notification Regarding Citizenship or Permanent Residence in a Foreign Country

Citizens of the Russian Federation (with the exception of those who permanently reside outside the Russian Federation) must submit written notification of the receipt of a residence permit or other document for the right of permanent residence in a foreign state to the territorial body of the Ministry of Internal Affairs of Russia at the place of residence within 60 days from the date of receipt of the relevant document.

If a citizen is located outside of the Russian Federation, they must submit this notification within 30 calendar days from the date of entry into the Russian Federation.

Failure to file this notification is a criminal offense and is punishable by a fine of up to 200,000 rubles or in the amount of the convicted person’s salary or other income for a period of up to one year or compulsory work for up to 400 hours.

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5. SWITZERLAND

Nationals of countries with which Switzerland holds permanent residence agreements now must also show local language proficiency when applying for permanent residence.

Language competence is generally considered to be the ability to communicate in a national language in everyday life. The Swiss legislature attaches considerable importance to the minimum linguistic integration of foreigners in Switzerland, considering it to be of strong public interest to ensure the acquisition of a minimum knowledge of one of the three official languages: French, German, and Italian. These are central to the integration of immigrant foreigners and to the cohesion of Swiss society.

Foreign nationals who come from a country with which a permanent residence agreement or a settlement treaty exists are entitled to a permanent residence permit after an uninterrupted residence of five years if the integration criteria are met and there are no grounds for revocation.

Switzerland has permanent residence agreements with Belgium, Germany, Denmark, France, Liechtenstein, Greece, Italy, Netherlands, Austria, Portugal, and Spain.

Foreign nationals must prove that they have oral language skills at least at reference level A2 and written language skills at least at reference level A1 in the local official language spoken at their place of residence in order to obtain permanent residence. Nationals of countries with which permanent residence agreements exist must also provide evidence of language skills in accordance with recent case law of the Federal Supreme Court (ruling BGer 2C_881/2021 of 9 May 2022 E. 4.2. and 4.3).

Previously, nationals from the countries noted above did not need to prove language proficiency to obtain a permanent residence permit in Switzerland. This change has been incorporated into the guidelines that the State Secretariat for Migration publishes for the benefit of executing authorities, such as the cantonal migration offices, as well as the interested public, in its newest iteration as of October 1, 2022 (4 Aufenthalt mit Erwerbstätigkeit (admin.ch), available in the three official national languages).

Test results showing local language proficiency at the required levels should be submitted when applying for permanent residence. For those nationals who speak the relevant local language already by virtue of having grown up in a country where the same language is spoken, documentation showing years spent in the schooling system or studying at a university are an alternative.

The language-skill requirement does not always apply. In case of disability, illness, or other weighty personal circumstances, it may be waived. On a last and lighter note, there is no requirement to learn and speak Swiss-German, a dialect which, to the relief of many, is not an official national language.

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6. UNITED KINGDOM

The Home Office has reduced some of the reporting requirements for sponsors and made other helpful changes.

Highlights of the main updates in the new Home Office guidance include:

Delayed Work Start Dates

Many sponsors are familiar with the reporting requirements where the United Kingdom work start date for a Skilled Worker application becomes delayed. Changes in the guidance include:

• Only report if the delay is over 28 days. Rather than always having to report any delayed work start date, now sponsors only need to do so if the delay is over 28 days. The delay must be reported no more than 10 working days after the end of the 28-day period.
• More flexibility for delays over 28 days. Before this new guidance, if the work start date was delayed by more than 28 days, the sponsor needed to cancel the sponsorship. The only exception was if the worker was working out a contractual notice period with their previous employer. The new guidance includes further “acceptable reasons” for a delay over 28 days. The new list includes:

• Travel disruption due to a natural disaster, military conflict, or pandemic;
• The worker must work out a contractual notice period for their previous employer;
• The worker requires an exit visa from their home country and there have been administrative delays; or
• Illness, bereavement, or other compelling family or personal circumstances.

This is not an exhaustive list and each case will be judged on its merits, but sponsors should be aware that the sponsored worker’s permission to work could later be canceled if the reason stated in the delayed start date report is not deemed acceptable by the Home Office.

When the 28-day period starts. The previous guidance stated that once a sponsored worker’s visa application had been approved, they needed to start working in the UK within 28 days of the later of: (1) the start date in their certificate of sponsorship; (2) the valid-from date of the visa; or (3) the date of approval of the application. The new guidance changes the last option from the date of approval to the date on which the worker is notified of the decision.

Other Changes

The new Home Office guidance also includes some other changes for sponsors:

• Sponsored worker on unpaid leave for more than 4 weeks. If a sponsored worker is absent from work and unpaid for over four weeks in a calendar year, the sponsorship needs to end. In the previous guidance there was a defined list of exceptions such as parental leave or sick leave. Now the new guidance goes further, as “compelling or compassionate circumstances” will also be considered. Again, once the reason is stated in the report, it could be that the sponsored worker’s permission to work will be canceled if the Home Office is not satisfied with the reason.

• Immigration Skills Charge concession for certain Senior or Specialist Worker applications. Subject to approval of the legislation (this change is not in effect yet), starting January 1, 2023, the Immigration Skills Charge (normally £1,000 per year of the visa) for certain Senior or Specialist Worker (previously known as Intra-Company Transfer) applications will not need to be paid. This is for international transfers within the same corporate group for up to three years, where the sponsored worker is a European Union (EU) or Latvian non-citizen (not a citizen of Iceland, Norway, Liechtenstein, or Switzerland) and transferring from a business established in the EU.

Details:

• “Workers and Temporary Workers: Guidance for Sponsors, Part 2: Sponsor a Worker,” Gov.UK.

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7. New Publications and Items of Interest

Alliance of Business Immigration Lawyers: https://www.abil.com/

ABIL is also available on Twitter: https://twitter.com/abilimmigration

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8. ABIL Member / Firm News

Charles Kuck (bio: https://www.abil.com/abil-lawyers/charles-kuck/) authored a new blog post: “Attention Georgia Companies: How NOT to Recruit a Foreign Workforce,” published by Global Atlanta as part of Kuck Baxter Immigration‘s sponsorship. https://www.globalatlanta.com/attention-georgia-companies-how-not-to-recruit-a-foreign-workforce/

Mr. Kuck was quoted by Law360 in “Feds Grant Ukrainians, Afghans Immediate Work Authorization.” Mr. Kuck, who helps lead the IMMPact Litigation team representing Ukrainians in a lawsuit, said he was pleased that USCIS changed its policy. However, he said his clients also sought a court order forcing USCIS to repay Ukrainians who had already paid the work permit application fee. “We are exceptionally happy that USCIS finally did almost the right thing [and] we look forward to them doing the complete right thing shortly, or litigation will continue,” he said. The litigation had not covered Afghans who fled Afghanistan, but Mr. Kuck said his team intended to revise the case to include Afghans based on a September 2021 congressional measure that entitled Afghans to refugee benefits. https://www.law360.com/articles/1552063/feds-grant-ukrainians-afghans-immediate-work-authorization (registration required)

Gomberg Dalfen was recognized by The Globe and Mail as one of Canada’s Best Law Firms 2023. https://www.theglobeandmail.com/business/rob-magazine/article-best-law-firms-canada/; company link: https://gombergdalfen.ca/

Klasko Immigration Law Partners, LLP, published a new blog post: “I Have an H-1B Visa and Just Got Laid Off. What Do I Need to Know?” https://www.klaskolaw.com/h-1b-employment/h-1b-layoff-infographic-for-employees/

Mazzeschi S.r.l. launched a new website dedicated to the investor visa for Italy. https://www.investorvisaitaly.it/

Mazzeschi S.r.l. released the November 2022 issue of Italian Immigration & Citizenship. https://www.mazzeschi.it/mazzeschi-asiadesk/wp-content/uploads/2022/10/Magazine-Nov-2022-compressed.pdf

Cyrus Mehta (bio: https://www.abil.com/abil-lawyers/cyrus-d-mehta/) was quoted by the Times of India in “Laid-Off Indian H-1B Workers Plead for Help as Clock Ticks.” He noted that when an H-1B worker is laid off or terminated, they get a 60-day grace period that allows them to remain in the H-1B status to find a new job. “The new employer must file the H-1B within the 60-day period. This 60-day period may not be enough to find a new job. The H-1B worker should negotiate that their employment with the company that is terminating them be extended as long as possible as the 60-day grace period will only trigger when the paid employment is terminated.” An Indian worker, he said, is disadvantaged because of green card backlogs caused by per-country limits. Mr. Mehta said that the Biden administration can help by changing the 60-day grace period rule to allow more time for H-1B workers to remain in the United States, but he noted that a rule change would take time. “The administration must also be inclined to do this,” he said. https://timesofindia.indiatimes.com/business/india-business/laid-off-indian-h-1b-workers-plead-for-help-as-clock-ticks/articleshow/95497003.cms

Mr. Mehta authored several new blog posts: “Guide to Terminated Noncitizen Workers: Preserving Nonimmigrant Status and Permanent Residency Options,” http://blog.cyrusmehta.com/2022/11/guide-to-terminated-nonciitzen-workers-preserving-nonimmigrant-status-and-pemrnaent-residency-options.html; “Why the AILA Law Journal Is Important,” http://blog.cyrusmehta.com/2022/11/3907.html

Mr. Mehta and Kaitlyn Box co-authored several new blog posts: “DOL Fails to Side With H-1B Worker Who Claimed Back Wages Against Employer After Being Terminated,” http://blog.cyrusmehta.com/2022/10/dol-fails-to-side-with-h-1b-worker-who-claimed-back-wages-against-employers-after-being-terminated.html; “A Tale of Two Cases: Washtech v. DHS and Texas v. USA: To What Extent Can the Executive Branch Allow Noncitizens to Remain and Work in the U.S.,” ; and “Layoffs Will Hurt Nonimmigrant Workers the Most, Especially Indian Born, But the Biden Administration Can Provide Relief,” http://blog.cyrusmehta.com/2022/11/layoffs-will-hurt-nonimmigrant-workers-the-most-especially-indian-born-but-the-biden-administration-can-provide-relief.html

Mr. Mehta and Jessica Paszko co-authored a new blog post: “USCIS Guidance Enabling STEM Graduates to Obtain O-1 Extraordinary Visas Should Apply Equally to EB-1 Extraordinary Ability Petitions for Green Cards.”

Cyrus D. Mehta & Partners PLLC published a new blog authored by Stacy Caplow: “Biden’s Pardons: The First Drops in a Big Bucket of Criminal Reform.” http://blog.cyrusmehta.com/2022/10/bidens-pardons-the-first-drops-in-a-big-bucket-of-criminal-reform.html

Siskind Susser, PC announced its formal collaboration with Fastcase on a new case management system built around the content of the Cookbook co-authored by Ari Sauer and Greg Siskind. In addition to checklists, client questionnaires, and process steps, the product will have document templates, sample government forms, “cheat sheets” to help lawyers avoid submitting cases before every necessary step is taken, and detailed overviews of the law applicable to a particular case type. A limited version of the product is expected to be available in early 2023, with full release anticipated later in the year. https://www.fastcase.com/blog/visalaw-immigration-law-firm-partners-with-fastcase-to-develop-novel-ai-software/

Wolfsdorf Rosenthal LLP released a webinar video, “I-9 Form Process & Updates Part 2.” WR immigration attorneys Kimberley Best Robidoux and Michelle Harmon review the process used to complete Form I-9 work authorization verification, especially for foreign national employees and in those unusual instances when individuals provide a receipt notice or documents not specifically listed on the list of Acceptable Documents to show identity and/or work authorization. https://wolfsdorf.com/webinar-i-9-form-process-updates-part-2/

WR Immigration released a webinar video: “H-1B Cap Season—How the Current Economic Climate Will Affect This Season.” Topics include the current labor and recruiting environment; key H-1B registration, lottery, and petition filing timelines; understanding current trends; and organization strategies and tips. https://wolfsdorf.com/webinar-h-1b-cap-season-how-the-current-economic-climate-will-affect-this-season/

WR Immigration was ranked National and Regional Tier 1 in the 2023 U.S. News & World Report’s “Best Law Firms.” WR Immigration was ranked Metropolitan Tier 1 in Boston, Los Angeles, and San Diego, and Metropolitan Tier 2 in New York City and San Francisco. https://wolfsdorf.com/wr-immigration-ranked-in-2023-best-law-firms/

WR Immigration published a new blog post and webinar: “H-1B Cap Season: Employer Considerations in the Event of a Recession.” A link to the webinar is at the end of the blog post. https://wolfsdorf.com/h-1b-cap-season-employer-considerations-in-the-event-of-a-recession/

WR Immigration published a new blog post: “EB-5 Project Due Diligence, After the EB-5 Reform and Integrity Act of 2022.” https://wolfsdorf.com/eb-5-project-due-diligence-after-the-eb-5-reform-and-integrity-act-of-2022/

Stephen Yale-Loehr (bio: https://www.abil.com/abil-lawyers/stephen-yale-loehr/) was quoted by the Wall Street Journal in “Afghan Evacuees in Limbo While Seeking Permanent Legal Status in the U.S.” He said, “While some members of the public think everyone from Afghanistan should get asylum, our system just doesn’t work that way.” https://on.wsj.com/3UKhoZB

Mr. Yale-Loehr was quoted by the Associated Press in “Posts Misrepresent Border Encounters With People on Terror Watchlist.” The article discusses misleading claims by House Republican leader Kevin McCarthy and others that almost 100 people on the watchlist recently entered the United States across the border. The article notes that U.S. Customs and Border Protection (CBP) reported 98 Border Patrol encounters with non-U.S. citizens on the watchlist who crossed the southwest border between U.S. ports of entry in fiscal year 2022. Every person counted as part of that tally, however, was stopped and detained by CBP, and that figure possibly included people who crossed multiple times. “To say that 98 terrorists made it into the U.S. is an exaggeration. These 98 were all caught,” Mr. Yale-Loehr said. https://apnews.com/article/fact-check-border-terrorist-watchlist-630330935018

Mr. Yale-Loehr was quoted by FactCheck.org in “Misleading Attack About Democrats and Criminal Immigrants.” The article discusses an ad from a conservative group, Citizens for Sanity, that misleadingly claims that “every Senate Democrat voted against deporting criminal illegal immigrants,” and mischaracterizes the criminal record of an undocumented person. Mr. Yale-Loehr noted that the Trump administration considered anyone who broke an immigration law to be deportable. On the heels of President Trump’s policy changes, the article notes, the number of such interior arrests rose 30% in fiscal year 2017 and rose again the following year before falling a bit in fiscal 2019, according to the Pew Research Center. But even at its peak, the number was still “far lower than during President Barack Obama’s first term in office.” Mr. Yale-Loehr also pointed out that a rise in people put into immigration proceedings does not mean they were immediately deported, because such cases can take years to adjudicate. https://www.factcheck.org/2022/10/misleading-attack-about-democrats-and-criminal-immigrants/

Mr. Yale-Loehr spoke at a webinar on recent administrative changes to help immigrant workers in STEM fields. The free webinar, sponsored by the American Immigration Council, was held October 25, 2022/ See https://aila-org.zoom.us/webinar/register/WN_DdU_yCSYR5CdNeuUe2145w

Mr. Yale-Loehr and Janine Prantl co-authored an op-ed, “Let Private Citizens Sponsor Refugees,” published in the New York Daily News. https://www.nydailynews.com/opinion/ny-oped-let-private-citizens-sponsor-refugees-20221015-dtepnanthfegnpf6anjirwt3by-story.html

Mr. Yale-Loehr was quoted by the Gothamist in “For New York City ‘Dreamers,’ Now is the Time to Act on Immigration Reform.” He said immigrant rights advocates are “working hard behind the scenes” to get legislation passed after the midterm elections. “One possible legislative package might include [Deferred Action for Childhood Arrivals] plus border security reforms,” he said. https://gothamist.com/news/for-new-york-city-dreamers-now-is-the-time-to-act-on-immigration-reform

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In this issue:

1. VISA OPTIONS FOR TELECOMMUTERS/REMOTE WORKERS: AN OVERVIEW – This article provides an overview of visa options for telecommuters and remote workers in several countries.

2. COLOMBIA – There is a new regime for visa procedures and processing.

3. ITALY – A faster immigration procedure for limited categories of work permits has been introduced. The Italian minister of internal affairs has announced that a new Decreto Flussi will be published soon, with a planned number of 75,000 quotas for work. Also, Italy has introduced a new visa for seafarers (yacht crew).

4. MEXICO – There is a new visa requirement for Brazilian nationals.

5. RUSSIA – There are a variety of new developments: COVID-19 restrictions have been lifted. Ukrainian citizens can receive Russian citizenship through a simplified procedure. The labor code has been amended regarding medical insurance for foreign workers. There are additional developments in medical examination requirements and residence permits. Address registration requirements for citizens of Uzbekistan have been relaxed.

6. SCHENGEN AREA – What’s next in the Schengen Area? This article provides highlights on the new automated Entry/Exit System and the European Travel Information and Authorization System.

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

8. ABIL Member / Firm News – ABIL Member / Firm News

Download:

ABIL Global Immigration Update – August 2022

1. VISA OPTIONS FOR TELECOMMUTERS/REMOTE WORKERS: AN OVERVIEW

This article provides an overview of visa options for telecommuters and remote workers in several countries.

INTRODUCTION

What began during the pandemic as a way for countries seeking to mitigate economic losses due a sharp decline in tourism by introducing digital nomad visas has developed into a broader trend aimed at providing viable options to reflect the economic reality of remote work. This has led to the introduction of new digital nomad visas, the revision of policies connected to existing visa programs, and the rediscovery of existing visa categories conducive to remote work. Below is a brief survey of the new and old remote work visa options in several countries.

Barbados

Barbados was among the early adopters of digital nomad visa programs. The Barbados program remains attractive for its easy application process and low cost. Its 12-month Welcome Stamp digital nomad visa requires only that the foreign national demonstrate evidence of a salary of at least US $50,000 per year for a position with a company based outside Barbados. If this requirement is met, the application can be submitted via a streamlined online process under which application fees are only due once the application is approved. To make the program even more appealing, foreign nationals present in Barbados under the program are not subject to income tax.

Colombia

Resolution 5477, effective October 20, 2022, creates a Visitor Visa for Digital Nomads, among other things. This new category will allow foreigners to work remotely from Colombia, through digital media and the Internet, for foreign companies or create digital content or information technology startups of interest for Colombia, by means of a permit or visa, depending on the particular circumstances.

Italy

Italy is introducing the categories of Digital Nomads and Remote Workers, defined as “citizens of a third country who carry out highly qualified work activities through the use of technological tools that allow work remotely, autonomously, or for a company based outside Italy.”

The Digital Nomad Visa will be under the category of permits of stay that Italy grants to third-country nationals to allow them to carry out their work remotely. The proposal submitted to the Houses of Parliament has been approved and converted into law (L. 55 del 28 Marzo 2022, art. 6-quinquies). The implementing provisions, such as the application requirements and the procedure for granting and issuing the permit, will be transposed into the Italian Consolidated Immigration Law—Testo unico sull’immigrazione (Legislative Decree no. 286 of 1998).

For these categories of workers, it will not be necessary to apply for a work permit before applying for the visa. A visa will be issued on the basis of the availability of comprehensive health insurance, covering all risks in Italy and provided that tax and social security obligations are met.

This permit is expected to apply both to:

• Nationals of a third country who are self-employed or employed for a non-resident company in the territory of the Italian State; and
• Nationals of a third country who carry out their activities in Italy.

To enable this type of visa, the Italian government will issue a decree implementing this decision. Unfortunately, such decree has not been issued yet.

Mexico

Mexico has long had what is essentially a digital nomad visa without the trendy “digital nomad” name. For those foreigners seeking to come to Mexico and continue working remotely for a foreign company, Mexico offers the Non-Lucrative Temporary Resident Card (TRC), which will allow them to reside in Mexico, initially for one year, and up to four consecutive years if the corresponding renewals are requested while they continue on the payroll of a foreign company. Applicants can prove sufficient funds to qualify for the visa by presenting evidence either of a regular monthly salary or of significant liquid funds (e.g., funds in a checking or savings account).

The TRC allows employees to carry out their work remotely. The card gives the employee the right to open bank accounts, lease a house or apartment, and rent a car.

Application for a TRC must be made directly at a Mexican consulate abroad. The applicant must provide evidence to the consular officer who interviews him of the reason why the applicant is coming to Mexico. If the interview is successful, the consular officer will grant a consular visa. Upon arrival in Mexico, the applicant will have his FMM (immigration form received during the flight into Mexico) validated and, immediately afterwards, must exchange the consular visa and FMM for a TRC by visiting the local office of the National Immigration Institute (INM) at the port of entry.

The TRC has historically been a popular option with foreign nationals who need to leave the United States due to immigration issues (e.g., not being selected in the H-1B lottery or maxing out of H-1B time) but wish to remain nearby and be able to perform their U.S.-based work remotely. Although from an immigration perspective this type of visa allows the foreigner to work remotely, employment and tax issues must be considered. A case-by-case assessment is recommended.

Portugal

Portugal has long had the D7 visa for those who wish to spend an extended period of time there, often in retirement. It has historically been granted to those who can demonstrate proof of ongoing stable passive income, such as from a pension, real estate, or investment dividends, together with a clean criminal record and sufficient health insurance, among other requirements. Although Portugal has not introduced a new digital nomad visa, the country has informally relaxed its policies so that it is now possible for foreigners who will have income from remote work (as opposed to passive income from a pension or other non-work source) to obtain the D7 visa. Evidence of monthly income of at least EUR 705 is required to qualify, together with the usual evidence of a clean criminal record and adequate health insurance coverage, as noted above. The low monthly income requirement and affordable cost of living in Portugal make it a particularly attractive option for digital nomads.

Spain

As with Portugal, Spain has long had a residence visa option for retirees/passive income recipients, known as the Non-Lucrative Visa. This option requires proof of income equivalent to 400 percent of the Spanish Public Indicator of Income of Multiple Effects (IPREM), which amounts to a monthly income of approximately EUR 2317. There has been debate over the years as to whether it is possible to work remotely in Spain on a Non-Lucrative Visa, with various Spanish consulates disagreeing on their approach and requirements. It appears that the Spanish government is taking a harder line recently against allowing foreign nationals to qualify for a Non-Lucrative Visa on the basis of remote work. This may be because Spain has now taken action toward introducing a new digital nomad visa type specifically for remote work. This new visa type will allow those who work for a company outside Spain to reside in Spain. It also includes special tax provisions addressing how digital nomads will be taxed, which is helpful as this is unclear in some countries with similar programs. It is not yet possible to apply for the digital nomad visa, so it remains to be seen exactly what Spanish consulates will require for applications, although it is generally expected that requirements will include an employment contract with a company outside Spain evidencing sufficient income to live in Spain, plus the usual evidence of a clean criminal record and adequate health insurance.

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2. COLOMBIA

There is a new regime for visa procedures and processing.

On July 22, 2022, the Ministry of Foreign Affairs issued Resolution 5477 regarding the procedural, administrative, and processing aspects of visas in Colombia. The resolution is effective October 20, 2022.

Among other things, the resolution provides for a digital nomad visitor visa (see feature article above). Also created by the resolution is an Internationalization Promotion Visa, for foreigners with a master’s, doctorate, or postdoctorate degree in basic or applied sciences, engineering, mathematics, or related fields, whose profiles meet Colombia’s priorities or contribute to the adoption and/or adaptation of technologies that strengthen Colombia’s competitiveness. Although the Technical Assistance Visitor Visa will be valid for up to two years, the stay is limited to 180 continuous or discontinuous days in 365 days counted from issuance of the visa. The Resident Investor Visa will disappear, and a foreigner will need to apply for a Migrant Visa and be able to apply for a Resident Visa on the basis of accumulated time. Also, a Seasonal Agricultural Worker Visitor Visa is created, and student visas are regrouped into a single category, the Visitor Visa for Students.

Details:

“15 Things You Should Know About the New Regime Applicable to Visas in Colombia,” Tannus & Asociados, https://tannus.co/en/15-things-you-should-know-about-the-new-regime-applicable-to-visas-in-colombia/

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3. ITALY

A faster immigration procedure for limited categories of work permits has been introduced. The Italian minister of internal affairs has announced that a new Decreto Flussi will be published soon, with a planned number of 75,000 quotas for work. Also, Italy has introduced a new visa for seafarers (yacht crew).

Faster Immigration Procedure for Limited Categories of Work

The procedure for obtaining work permit (Nulla Osta) clearance for non-European Union (EU) citizens in relation to the application for subordinate work under the 2021 and 2022 Decreto Flussi (to be announced soon) has been officially simplified.

This measure has been introduced by the government as Italy is facing a shortage of manpower in many production sectors (e.g., manufacturing, agriculture, catering).

However, the simplification measure does not apply to all types of work permits. Specifically, this procedure will apply to work permit applications for subordinate work submitted under the Decreto Flussi of 2021 and 2022. It does not apply to intra-company permits, Blue Card permits, and other permits for special categories of workers set forth under article 27 of the Immigration Law (e.g., journalists, nurses, translators, researchers).

Details of the simplification procedure:

• Timing:
  1) The work permit will be issued within 30 days, instead of 60 days.
  2) The visa will be issued within 20 days from the day of its request.
• Requirements to start working in Italy:
  The work permit issued under the conditions specified above will be considered as authorization to carry out the work activity on the national territory even without prior signing of the contract of stay and request for a residence permit for work reasons.

This does not mean that the signing of the contract of stay and the request for a residence permit are not required. The simplification procedure allows the foreigner to start working before carrying out these formalities, but they must be completed in the manner requested by the Italian authorities. Furthermore, if the Italian authorities later find out that the foreigner does not comply with all the requirements, the work permit and visa can be revoked.

Decree With Additional Immigration Quotas To Be Approved Soon

The Italian minister of internal affairs has announced that a new Decreto Flussi will be published soon, with a planned number of 75,000 quotas for work. There is a lack of staff in specific sectors of activities, the minister said.

The decree is expected not only to increase the quotas in the unskilled work sector (highly skilled workers are exempt from obtaining quotas so will not be affected by the decree) but also to make available new quotas for conversion from study to work and self-employment, including startup visas.

Visa for Seafarers (Yacht Crew)

Italian Immigration rules for work permits and/or visas are not simple, and the situation for some sectors can be troublesome because legislation does not always provide specific types of work permits. The approval of a new rule is expected to help the immigration process for seafarers. Italy has introduced a new visa for seafarers (yacht crew), which does not require them to apply for a work permit.

Key points include:

• Seafarers will be able to apply for this visa directly at the Italian consulate.
• The visa is for seafarers/crew members who need to board EU or non-EU flagged vessels based in Italian harbors.

Details:

• Articles, Mazzeschi, https://www.mazzeschi.it/insights/articles/

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4. MEXICO

PASTE_TEXT_HERE

There is a new visa requirement for Brazilian nationals.

On August 3, 2022, an agreement was published in the Official Gazette requiring Brazilian nationals to obtain a consular Visitor Visa before entering Mexico. As of August 18, 2022, all Brazilians, including those traveling by air, who wish to enter the Mexican national territory as visitors without remunerated activities (e.g., Tourists or Business Visitors) must apply for a consular visa at the Mexican consulate closest to their residence, which will allow them to enter Mexico for up to 180 days. If a Brazilian national possesses any of the documents or visas listed below, a Mexican consular visa is not needed:

• A valid and in-force visa granted by the government of Canada, the United States, Japan, the United Kingdom, or Northern Ireland, or by any country that is part of the Schengen area;
• Documented permanent residence in the United States, Canada, Japan, United Kingdom, or Northern Ireland, or in any country that is part of the Schengen area or permanent residence in Colombia, Chile, or Peru (countries that are part of the Pacific Alliance); or
• An Asia-Pacific Economic Cooperation (APEC) Business Travel Card.

Details:

• “Mexico’s Ministry of the Interior Issues New Visa Requirement for Brazilian Nationals Traveling to Mexico,” National Law Review, Aug. 7, 2022, https://www.natlawreview.com/article/mexico-s-ministry-interior-issues-new-visa-requirement-brazilian-nationals-traveling

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5. RUSSIA

There are a variety of new developments: COVID-19 restrictions have been lifted. Ukrainian citizens can receive Russian citizenship through a simplified procedure. The labor code has been amended regarding medical insurance for foreign workers. There are additional developments in medical examination requirements and residence permits. Address registration requirements for citizens of Uzbekistan have been relaxed.

COVID-19 Restrictions Lifted

On July 15, 2022, a Government Order came into force that lifted all previously implemented restrictions for entry and exit to and from Russia by Russian citizens and foreign citizens irrespective of their citizenship, as well as purpose, grounds, points of entry, and other conditions implemented in connection with the COVID-19 pandemic.

All foreign citizens are no longer required to be entered into the Ministry of Internal Affairs and the Federal Security Service lists in order to enter Russia. For entry, foreign citizens need all the usual documents (passport, visa if necessary), and additionally it is still necessary to present a negative PCR-test done not earlier than 48 hours before crossing the border. The PCR test requirement does not apply to citizens of the Republic of Belarus or citizens of the EA/EU traveling across land borders into the Russian Federation.

Restrictions for issuance of e-visas for short visits also have been lifted.

Presidential Order: Ukrainian Citizens Can Receive Russian Citizenship Through a Simplified Procedure

On July 11, 2022, a Presidential Order came into force that amended previously issued orders introducing simplified procedures for obtaining Russian citizenship for several categories of foreign nationals. According to the order, Ukrainian citizens and their spouses, parents, and children (including adopted) can apply for Russian citizenship under a simplified procedure. Among other things, it is not necessary to have a source of income in Russia or prove residence in Russia. Submitted applications are reviewed within three months from the date of filing.

Medical Insurance for Foreign Workers: Amendments to the Labor Code

On July 14, 2022, a Federal Law came into force that amended the Labor Code, in part connected with a requirement that foreign nationals who perform labor activities in Russia must be insured.

At the moment, all foreign nationals who perform labor activities in Russia must have voluntary medical insurance. Employers must indicate the voluntary medical insurance certificate (or agreement for provision of voluntary medical insurance) data in the labor agreement signed with the employee.

Starting January 1, 2023, this requirement will be abolished for all foreign workers except for highly qualified specialists who temporarily reside in the territory of the Russian Federation.

It appears, that highly qualified specialists who acquired residence permits on the basis of their HQS work permits will also be exempt from the voluntary medical insurance requirement.

Medical Exams, Residence Permit Simplified Procedure, Temporary Residence Permit for Foreign Students

On July 14, 2022, a Federal Law came into force that amended several laws on the status of foreign citizens in the Russian Federation.

Medical examination of foreign citizens:

• Highly Qualified Specialists now must undergo medical examination not annually but when they apply for a work permit extension.
• Foreign citizens who entered the Russian Federation before December 29, 2021, for purposes not related to their labor activities, for a period exceeding 90 calendar days, or for the purpose of carrying out labor activities, must undergo medical exams, fingerprinting, and photographing procedures within 180 days starting July 14, 2022.
• Foreign citizens who have the right to perform work activities in the Russian Federation without a work permit or patent (citizens of the EA/EU) must undergo medical exams, fingerprinting, and photographing procedures within 30 calendar days from the date of the labor agreement signing (in case they change the purpose of visit), but in any case not later than 90 calendar days from the date of entry to Russia.

Residence permit—simplified procedure:

• Citizens of Ukraine, Kazakhstan, and Moldova can apply for a permanent residence permit, skipping the stage of the temporary residence permit. Additionally, citizens of Ukraine are exempt from the requirement of passing Russian language, history, and basics of legal knowledge tests when applying for temporary or permanent residence.
• Foreign investors can also apply for a permanent residence permit without the temporary residence permit stage. To benefit from this program, they must meet criteria to be established by the government (the criteria have not yet been defined). This will come into force on January 10, 2023.

Change of entry purpose/temporary stay of foreign nationals in Russia:

• The temporary stay of a foreign national in the Russian Federation can be extended if the foreign citizen has filed documents for a temporary residence permit, permanent residence permit, or an application for Russian citizenship based on the fact that he or she is a native speaker of the Russian language, or an employer of the foreign citizen has filed an application for a highly qualified specialist work permit or for extension of the highly qualified specialist work permit.
• Foreign citizens who can enter the Russian Federation without a visa can change their purpose of visit within Russia without having to leave and re-enter the country again and file documents. Documentation for a change of the purpose of visit must be filed at the local migration office of the Ministry of Internal Affairs. Also required are fingerprinting and photographing procedures, as well as a medical examination. The time for application review can be shortened if a foreign citizen has their Tax Identification Number and this number is indicated on the application—in such cases, the application will be reviewed within five business days. If the Tax ID number is not indicated on the application, it will be reviewed within 10 business days.

Foreign students:

A new type of temporary residence permit has been introduced for foreign students who study in Russia under the following conditions:

• The study is full-time

• The study program is for a bachelor’s degree, specialty, master’s degree, residency program, or assistant internship

• The study program has state accreditation or this is a scientific or science teacher program in a graduate school (adjunct)

• The study is in a state educational or scientific organization

• The educational organization is in the territory of the Russian Federation

On this basis, the temporary residence permit is issued for the entire period of study plus 180 days after graduation. The application is reviewed within two months.

Foreign citizens who have received temporary residence permits using this program are exempt from the requirement to file yearly notifications confirming their stay in the Russian Federation.

Within three years after graduation, a foreign student who has a temporary residence permit acquired under this program can apply for a permanent residence permit.

The amendments related to the temporary residence permit for students are effective January 1, 2023.

Agreement With Uzbekistan: Relaxation of Address Registration Requirements

On June 4, 2022, an Agreement between the Government of the Russian Federation and the Government of the Republic of Uzbekistan came into force. According to the agreement, citizens of Uzbekistan have 15 calendar days to file for address registration after entry into the Russian Federation. Previously, address registration had to be obtained within 7 business days of arrival. The 15-calendar-day period is counted from the date of entry as indicated on the migration card.

The same right is enjoyed by Russian citizens entering Uzbekistan.

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6. SCHENGEN AREA

What’s next in the Schengen Area? This article provides highlights on the new automated Entry/Exit System and the European Travel Information and Authorization System.

New automated Entry/Exit System (EES)

The Entry/Exit System (EES) is an automated IT system for registering travelers from third countries, both short-stay visa holders and visa-exempt travelers, each time they cross an EU external border. The EES will replace the current system of manual stamping of passports, which does not allow for the systematic detection of overstayers (travelers who have exceeded the maximum duration of their authorized stay).

It is expected to be operational in 2022 (starting date to be confirmed). The system will register the person’s name, type of travel document, biometric data (fingerprints and captured facial images), and date and place of entry and exit.

The EES is intended to contribute to preventing irregular migration and to identifying overstayers more efficiently (and automatically) as well as cases of document and identity fraud.

European Travel Information and Authorization System

Starting in May 2023, non-European Union (EU) nationals who do not need a visa to travel to the Schengen Area will need to apply for travel authorization through the European Travel Information and Authorization System (ETIAS) before their trip. The system aims to carry out pre-travel screening for security and migration risks of visa-exempt visitors and will be a mandatory pre-condition for entry to the Schengen States.

Applicants will file an online application form, and the system will issue travel authorization in most cases within minutes or, where further checks on the traveler are needed, within 30 days. Applicants will need to submit information to answer questions about the Member State of their first intended stay, the purpose of their trip, background relating to previous criminal records, presence in conflict zones, and orders to leave the territory of a Member State or third countries. The applicant must report any criminal offense listed over the previous 10 years and, in the case of terrorist offenses, over the previous 20 years, including when and in which country.

Details:

• How to Count Your Schengen 90 Days, Marco Mazzeschi, https://medium.com/studiomazzeschi/how-to-count-your-schengen-90-days-ee96f5d25326

“Can You Enter the Schengen Area If You Have Past Criminal Convictions?,” Marco Mazzeschi, https://mm-63015.medium.com/can-you-enter-the-schengen-area-if-you-have-past-criminal-convictions-e2280bcc2ccb

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7. New Publications and Items of Interest

Understanding the UK visa categories. Kingsley Napley has released PowerPoint slides from its first webinar, “Immigration Rules Update – Understanding the UK Visa Categories.”

Alliance of Business Immigration Lawyers: ·

The latest immigration news is at https://www.abil.com/news.cfm. ·

The latest published media releases include:

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

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

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

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8. ABIL Member / Firm News

Klasko Immigration Law Partners, LLP, has released several new episodes in the Statutes of Liberty podcast series. In “Episode 29: EB-5 Regional Centers,” Klasko EB-5 attorneys discuss the latest updates to the EB-5 regional center program and what that means for investors, developers, and brokers. They also address what role they played in recent litigation and give advice on next steps for EB-5 clients. Attorneys Ron Klasko, Dan Lundy, and Allison Li address questions on what a federal district court judge’s preliminary injunction means and more, including:

• Is the regional center program fully operational now?
• Can regional centers file project approval applications now?
• When can investors file I-526s?
• Are there any risks for investors who file I-526 petitions?
• What if an existing regional center wants to change or extend its geographic territory?

In “Episode 28: Introduction to the EB-1 Visa,” , Klasko’s EB-1 attorney team discusses the fundamentals of EB-1, gives an overview on how to prepare for a successful EB-1 petition, and covers ways to increase your chances of approval. Anu Nair, Allie Dempsey, and Nigel James answer these need-to-know questions before starting your EB-1 application:

• Do you need a sponsor?
• What are the benefits?
• What criteria are needed?
• What are some alternative options?

The podcast episodes are available at .

Kristin Peresta, of Klasko Immigration Law Partners, LLP (KILP), was recently awarded the Lisa Felix Award. Lisa Felix was an attorney at KILP who died in 2020 after a long illness. Ms. Peresta, KILP’s Director of Client Communications & Workload, was awarded the inaugural Lisa Felix Award “for her innate ability to spread unconditional, unwavering, and selfless kindness among the KILP community.”

Alison Li has joined Klasko Immigration Law Partners, LLP, as an associate attorney. She has nearly a decade of immigration law experience and works with regional centers, developers, and investors who seek to use foreign investment capital under the EB-5 program to fund job-creating projects. In addition to her work in EB-5, Ms. Li has assisted numerous clients in obtaining E, H, and L visas, among others. She has experience in consular processing through U.S. embassies and consulates worldwide. https://chambers.com/articles/klasko-immigration-law-partners-welcomes-associate-alison-li

Charles Kuck (bio: https://www.abil.com/abil-lawyers/charles-kuck/) was on a panel discussing Georgia’s six-week ban on abortions that is pending in courts. Mr. Kuck was quoted as saying that federal courts have never taken away a right that people already had, which leaves the right up to the states to guarantee. GPB News, June 27, 2022, https://www.gpb.org/news/2022/06/27/political-rewind-georgias-six-week-ban-on-abortions-pending-in-courts-candidates

Robert Loughran (bio: https://www.abil.com/abil-lawyers/robert-f-loughran/) released several Foster LLP announcements:

• Chairman Charles Foster discussed U.S. immigration policy and border protection on a recent episode of KPRC Newsmakers with Khambrel Marshall. Click here to watch the interview:
• Avalyn Langemeier presented “Next Level Immigration Knowledge—Latest Updates and Impacts” at HR Houston’s Gulf Coast Symposium on July 27, 2022. She discussed the latest updates to immigration policy and the impact they will have on the immigration process. https://www.hrhouston.org/mpage/GCS22_Home
• Oxana Bowman and Brenda Hicks presented “Riding the Pandemic Roller Coaster with H-1B Workers—A Review of H-1B Requirements When Employment Terms Change” at HR Houston’s Gulf Coast Symposium on Thursday, July 28. She provided HR professionals with a basic understanding of the special requirements related to changes in the employment of H-1B workers. https://www.hrhouston.org/mpage/GCS22_Home

Cyrus Mehta (bio: https://www.abil.com/abil-lawyers/cyrus-d-mehta/) has been named Editor-in-Chief of the American Immigration Lawyers Association Law Journal. Mr. Mehta is Managing Partner of Cyrus D. Mehta & Partners PLLC in New York City and is a graduate of Cambridge University and Columbia Law School. He has served in varied national roles with AILA, currently continuing his long-time service with AILA’s Ethics Committee as Vice Chair. Mr. Mehta is a board member of the New York Immigration Coalition and is a board member of Volunteers of Legal Services. He is also special counsel on immigration matters to the Departmental Disciplinary Committee, Appellate Division, First Department, New York. https://www.aila.org/advo-media/press-releases/2022/aila-law-journal-welcomes-new-editor

Cyrus Mehta (bio: https://www.abil.com/abil-lawyers/cyrus-d-mehta/) authored several new blog posts: “The Long, Windy, Bumpy, and Outrageous Road to Labor Certification,” http://blog.cyrusmehta.com/2022/08/the-long-windy-bumpy-and-outrageous-road-to-labor-certification-feat-two-sunday-ads.html; and “Considerations When Terminating a Foreign Worker,” http://blog.cyrusmehta.com/2022/07/considerations-when-terminating-a-foreign-worker.html

Mr. Mehta and Kaitlyn Box co-authored several new blog posts: “Justice Barrett and the Fate of the Mayorkas Prosecutorial Discretion Memo,” http://blog.cyrusmehta.com/2022/08/justice-barrett-and-the-fate-of-the-mayorkas-prosecutorial-discretion-memo.html; and “A Practical Guide to Spending the 3 and 10 Year Bars in the United States,” http://blog.cyrusmehta.com/2022/07/a-practical-guide-to-spending-the-3-and-10-year-bars-in-the-us.html

Angelo Paparelli (bio: https://www.abil.com/abil-lawyers/angelo-paparelli/) has authored a new blog post, “A Snitch in Time Saves How Many?—Incentivizing Noncitizens to Report Employment Law Violations.” https://www.nationofimmigrators.com/biden-administration-immigration-policies/a-snitch-in-time-saves-how-many-incentivizing-noncitizens-to-report-employment-law-violations/

Wolfsdorf Rosenthal Immigration and Banias Law filed a complaint in the U.S. District Court for the District of Columbia on August 5, 2022, on behalf of hundreds of Chinese foreign national plaintiffs. The complaint asks the court to compel the Department of State to authorize FY 2022 EB-5 immigrant visa numbers to be allocated to all plaintiffs and their families by September 30, 2022, and to process their immigrant visa applications promptly. https://wolfsdorf.com/press-release-wr-immigration-files-lawsuit-to-stop-wastage-of-eb-5-investor-visas/

Wolfsdorf Rosenthal LLP has posted several new blog entries: “Italy: Faster Immigration Procedure for Limited Categories of Work,” https://wolfsdorf.com/italy-faster-immigration-procedure-for-limited-categories-of-work/; “USCIS Confirms Validity of Previously Designated EB-5 Regional Centers,” https://wolfsdorf.com/uscis-confirms-validity-of-previously-designated-eb-5-regional-centers/; and “Judge Orders USCIS To Begin Accepting New EB-5 Regional Center Investment Applications—FAQ for Investors,” https://wolfsdorf.com/judge-orders-uscis-to-begin-accepting-new-eb-5-regional-center-investment-applications/

Charina Garcia and Melissa Harms, of Wolfsdorf Rosenthal LLP, will moderate two programs at the Worldwide ERC’s Global Workforce Symposium in October 2022. Ms. Garcia will moderate “Relationship Building Through Tech – How Immigration Tech Can Focus on a Workforce’s Well-Being,” a discussion on immigration management technologies and the relationship between mobility technologies, well-being, and human connection. Ms. Harms will moderate “DEIA Global Mobility Playbook: Issues Facing the LGBTQ+, Transgender and Gender Diverse Employee,” a discussion on the emergence of LGBTQ+ inclusive global mobility programs, issues related to relocating internationally to locations that criminalize transgender or sexual preference diversity; the process and impact of changing name or gender markers on national identity documents; and traveling and screening procedures for transgender and gender-diverse/fluid people. https://wolfsdorf.com/wr-immigration-honored-to-lead-two-groundbreaking-discussions-at-wercs-global-workforce-symposium/

Stephen Yale-Loehr (bio: https://www.abil.com/abil-lawyers/stephen-yale-loehr/) was quoted by the Associated Press in “Immigrants Are Not Getting Social Security Numbers at the U.S. Border.” In response to anti-immigrant activists’ claims that Border Patrol agents are handing out social security cards to undocumented immigrants at the border, Mr. Yale-Loehr explained that Border Patrol agents can’t issue social security cards: “Even if they were to do it, it would be illegal for them to do it and they could be prosecuted for doing it. I believe it is a false statement.” https://apnews.com/article/fact-check-social-security-number-border-552180846074

Mr. Yale-Loehr was quoted by CBS News in “Republican States’ Lawsuits Derail Biden’s Major Immigration Policy Changes.” Mr. Yale-Loehr said federal policymaking on immigration is now primarily dictated by federal courts, not Congress or the executive branch. “I think every major policy initiative by Biden that they plan to roll out in the next year is going to be certainly challenged in the courts, and the conservative states have done a good job of judge-shopping to find judges that are likely to agree with these conservative states,” he said, noting that he expects lawsuits will continue to shape federal immigration policy unless Congress inhibits the power of judges to block nationwide initiatives or passes a broad reform of the U.S. immigration system, a prospect that has remained elusive for decades amid intense partisanship. However, he said, “that’s not the way our government is supposed to run,” and the role of the federal court system should be limited to determining whether the actions of the president and Congress are lawful and constitutional. “From the American public’s perspective, when people disagree with a policy, theoretically they can vote that person out of office, whether it’s a member of Congress or the president. But when the judges are making a policy decision that the public disagrees with, they cannot vote that judge out of office,” he noted. https://www.cbsnews.com/news/immigration-biden-republican-states-lawsuits/?intcid=CNM-00-10abd1h

Mr. Yale-Loehr was quoted by the Voice of America about the Department of State’s 2022 Trafficking in Persons Report. The video interview is in Russian at https://www.youtube.com/watch?v=AHIWV9BEAJE. Click on CC and select English to see Mr. Yale-Loehr’s comments subtitled in English. Mr. Yale-Loehr said that human trafficking is a huge and growing problem worldwide, affecting about 25 million people per year. Report: https://www.state.gov/reports/2022-trafficking-in-persons-report/

Mr. Yale-Loehr co-authored the second edition of Immigration and Nationality Law: Problems and Strategies, published by Carolina Academic Press. The book introduces the reader to the legal concepts and experience of practicing immigration law by presenting the material through a series of hypotheticals. It is designed for both law students and attorneys as it covers not only statutory provisions and key immigration law cases but also provides an understanding of the many government agencies involved in the immigration process and how to navigate the wide variety of adjudications that are central to the U.S. immigration system. The book goes beyond doctrine to implications for strategies and policy. For more information, including a video with the authors, or to order, see

Mr. Yale-Loehr was quoted by Scripps Media in “Companies Add Immigration Reimbursement to List of Benefits.” Commenting on new immigrant assistance benefits some companies are offering, Mr. Yale-Loehr said, “This is a new trend because of the tight labor market and employers need to figure out how to both attract and retain workers. And with foreign workers being a growing part of the employment base, [offering] benefits to foreign-born workers is increasingly one way that they can entice people to come work for them or to stay with them.” As examples, he noted that Amazon “has just started a reimbursement program to cover fees for a work permit renewal, which can cost between $410 and $495 every two years. [Tyson Foods], which is the biggest U.S. food processor, is expanding its immigration benefits by offering a program to its workers to give them free legal services ranging from work authorization renewals to green card and citizenship applications.” https://www.ksby.com/news/national/companies-add-immigration-reimbursement-to-list-of-benefits

Mr. Yale-Loehr was quoted by Univision in ” ‘Remain in Mexico’ Is Still in Force and It Is Not Known When and How It Will Be Dismantled.” The article notes that although the Supreme Court determined at the end of June 2022 that the government can “cancel” the Trump administration’s “remain in Mexico” policy, a series of legal requirements must be met to dismantle it and create a replacement protocol. “The Supreme Court ruling is significant for a number of reasons,” Mr. Yale-Loehr said. First, the Court “preserved its right to decide the merits of an immigration dispute, even if immigration law prohibits lower courts from issuing an injunction. Second, the Court held that the immigration statute gives immigration officials discretion over whom to admit into the United States while they await an immigration hearing. And third, the majority noted that by interpreting federal law to require the return of asylum seekers to Mexico, the lower court in the case limited the ability of the executive branch to conduct foreign relations with Mexico.” In short, he said, the Court “upheld the Biden administration’s efforts to end a Trump-era immigration policy,” although the process will take time. https://www.univision.com/noticias/inmigracion/fallo-corte-suprema-interrogantes-programa-mpp-quedate-en-mexico-desmantelamiento (in Spanish, with English translation available)

Mr. Yale-Loehr was quoted by several media outlets relating to the Supreme Court’s decision on the “Remain in Mexico” policy:

• “Explaining the Supreme Court Immigration Ruling on ‘Remain in Mexico,’ ” PolitiFact. He explained that historically, when people believe an immigration policy violates immigration law, they can sue the government, which initiates a court case. However, these cases often take a long time, so the person or group suing can ask the courts to either stop or restart the policy if it is causing immediate harm, which is called an injunction, he noted. https://www.politifact.com/article/2022/jul/07/explaining-supreme-court-immigration-ruling-remain/

“Biden Administration Can Drop ‘Remain in Mexico’ Policy, But What Will it Use Instead?,” Marketplace. He said, “The court today recognized that this is really part of a bigger political problem of not enough funding for our broken immigration system.” https://www.marketplace.org/2022/07/05/biden-administration-can-drop-remain-in-mexico-policy-but-what-will-it-use-instead/

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