|1. CANADA - Significant new changes are effective for the Québec Skilled Worker Program and the Labour Market Opinion application process; other news.|
|2. FRANCE - France has made changes in the right of residence for foreign students and researchers. Requirements for naturalization have been eased. Also, transitional measures have been implemented for Croatian nationals, following the entry of Croatia into the European Union.|
|3. MEXICO - Extensive efforts to reduce backlogs and improve processing time frames are evident eight months after enactment of the new Migration Act.|
|4. SPAIN - The "Act for Entrepreneurs" regulation took effect on September 30, 2013.|
|5. UNITED KINGDOM - Various new developments have been announced.|
|6. New Publications and Items of Interest - New Publications and Items of Interest|
|7. Member News - Member News|
Significant new changes are effective for the Québec Skilled Worker Program and the Labour Market Opinion application process; other news.
New Québec Skilled Worker Program Requirements
On August 1, 2013, several important legislative changes came into effect to the Québec Regular Skilled Worker Program and the Québec Experience Program for Temporary Workers. These changes will remain effective until March 31, 2014. The Québec Regular Skilled Worker Program requires applicants to attain a sufficient number of points to be issued Québec Selection Certificates enabling applications for Canadian permanent resident status. The Québec Experience Program for Temporary Workers and for graduating students is an accelerated program that permits qualifying workers who hold full-time skilled jobs in Québec for at least one year, and certain graduating college and university students, to be issued Québec Selection Certificates for permanent resident status.
One major change to the Québec Regular Skilled Worker Program is the lifting of the educational requirement for applicants under the List of Areas of Training of the Québec Ministry of Immigration and Cultural Communities (MICC). While applicants will continue to be attributed points if their education is on the list, it is no longer required to qualify for the Québec Regular Skilled Worker Program. A maximum number of 20,000 skilled worker applications will be accepted.
A new order of priority for application processing has been established. Applications are processed in the following priority order: (1) applications to the Québec Experience Program; (2) applications to the Québec Regular Skilled Worker Program that include a validated employment offer; (3) applications to the Québec Regular Skilled Worker Program from applicants who are attributed points for their area of education; and (4) all other applications submitted under the Québec Regular Skilled Worker Program.
The French language requirements have increased for the Québec Regular Skilled Worker Program and the Québec Experience Program. For the Québec Regular Skilled Worker Program, points are now awarded for both oral and written knowledge of French, instead of the previous requirement of exclusively oral knowledge of French. Applicants only receive points for their knowledge of French if they demonstrate an advanced intermediate level. For the Québec Experience Program, applicants can only qualify now if they demonstrate an advanced intermediate-level oral knowledge of French, instead of the previous requirement of an intermediate-level oral knowledge of French.
More information on these changes and answers to frequently asked questions are available at the QUÉBEC MICC WEBSITE.
New Changes to the Work Permit Labour Market Opinion Application Process
Effective July 31, 2013, Service Canada introduced a number of significant changes to the labour market opinion (LMO). These latest amendments to the Immigration and Refugee Protection Regulations have introduced a new language assessment factor. As a result, only English and French may be identified as a job requirement in advertisements and LMO requests, unless it can be demonstrated that another language is essential for the position.
Additionally, employers now must make greater efforts to hire Canadians before they will be eligible to apply for temporary foreign workers. Employers must advertise an available position for at least four weeks before applying for an LMO, and must continue to actively seek qualified Canadians to fill the position until the LMO has been issued. Employers must also advertise on the national Service Canada Job Bank website and use at least two other recruitment methods consistent with the advertising practices for the occupation.
A new LMO application form has also been released, including additional questions intended to assist program officers in assessing the impact on the Canadian labor market and curbing the practice of using foreign workers in Canada temporarily to facilitate the outsourcing of Canadian jobs.
Another change is that an application fee of CAD $275.00 must be paid for each position requested to cover processing.
Immigrant and Non-Immigrant Applicants (and Their Lawyers) Relieved As Foreign Service Workers To Return To Full-Time Work At Canadian Visa Offices
Canada's foreign service has reached a deal on a new contract with the Canadian federal government, ending a lengthy dispute and rotating strikes that have created an extensive backlog to visa processing and other consular services abroad. The government agreed to increase base pay for senior ranks of the foreign service, bringing it more in line with what the union had argued were comparable positions elsewhere in government. The government had previously resisted salary increases by taking the position that the jobs were already well-paid.
The Federal Skilled Trades Program—Expedited Immigration Processing
The government of Canada launched the Federal Skilled Trades Program (FSTP) in January 2013 to facilitate the immigration of skilled tradespeople who meet Canada's current and evolving trade needs. Applicants are assessed on relevant criteria such as language ability, practical training, and work experience, rather than on formal academic education.
The FSTP was also created in response to requests from Canadian employers for skilled workers to fill labor shortages, particularly in the natural resources and construction sectors. Eligible applicants include carpenters, plumbers, contractors and supervisors of electrical trades, construction trades, installers, repairers and servicers, supervisors of logging and forestry or mining and quarrying, contractors and supervisors of oil and gas drilling services, and logging machinery operators, among various other trades.
To attract and retain qualified, in-demand candidates, Citizenship and Immigration Canada's (CIC) goal is to process applications in this category as quickly as possible. Current processing time for FSTP applications is three to four months. While this outcome is excellent for Canada's trade industry, it is unfortunate that business owners and skilled, top-tier management employees essential to some of the largest companies in Canada continue to await receipt of permanent residence in queues of up to three years.
Parent and Grandparent Super Visas—How Super is This Visa?
Parents and grandparents of Canadian citizens and permanent residents, whether visa exempt or not, can apply for a Parent and Grandparent Super Visa to visit their children and grandchildren in Canada.
The benefit of applying for this visa is that it is valid for up to 10 years and allows an applicant to remain in Canada for up to 24 months at a time without the need for renewal of status. The process for getting a Super Visa is not simple, however. Applicants must provide proof that the host child or grandchild meets a minimum income level, demonstrate that they have purchased comprehensive Canadian medical insurance (which can involve a cost of $20,000), and undergo immigration medical examinations. Moreover, extensive background, residence, travel, and security information is required.
Although the government is issuing more than 1,000 Super Visas monthly, this new application process has created an extraordinarily expensive mandatory medical insurance requirement for parents and grandparents who are not visa exempt or, if visa exempt, for parents or grandparents wishing to remain in Canada for more than six months. It has created a lucrative new insurance market for Canadian insurance companies. The new Super Visa has also resulted in high refusal levels for traditional visa applications as well as visitor record renewals.
Citizenship Law Changes
Citizenship Testing Procedures Amended
Citizenship applicants who fail their first citizenship test will now have the opportunity to rewrite the test rather than wait for an appointment with a citizenship judge. In the past, individuals who failed their knowledge test would be required to wait a number of months for an appointment with a citizenship judge, who would then make a final decision on their case. Under this new procedure, applicants will be informed of their results immediately following their test. Individuals who fail but who have met all other criteria will be provided with a date to rewrite the test a few weeks later. Those who pass their test will be scheduled for a citizenship ceremony. Additionally, individuals who are currently waiting to see a citizenship judge because they had previously failed the test will also be invited to rewrite the test.
Citizenship Applications To Be Separated For Approval
All family members listed on one application no longer must be approved at the same time. Previously, there were cases where all family members who had applied together were held up in obtaining citizenship when only one family member had failed a knowledge or language test. Successful applicants will now be informed that they may have their applications processed independently of other family members. This means that fewer people will need to wait for their applications to be processed and can proceed directly to being granted citizenship.
Government Hires More Citizenship Judges
In an attempt to reduce the growing citizenship backlog, the government of Canada announced an investment of $44 million over two years toward improving citizenship processing. It is hoped that these funds will assist the government to address the growing backlog on straightforward citizenship applications that are currently in a queue of 25 months or more. The government is also increasing the number of citizenship judges in Canada so they can make more decisions on citizenship applications and hold more citizenship ceremonies.
New Citizenship Test Preparation Resource
The citizenship eligibility test study guide, Discover Canada: The Rights and Responsibilities of Citizenship, has now been made available as an integrated audio eBook download, for a more efficient way to learn about Canada's history, values, symbols, and important institutions. The audio eBook allows people to hear the text of the guide being read aloud as they follow along on their e-readers, smart phones, or tablets. CIC was the first Canadian government department to produce an eBook. It has been downloaded almost 60,000 times in the past year and a half. Well-known Canadians have lent their voices for portions of the eBooks in English and French.
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France has made changes in the right of residence for foreign students and researchers. Requirements for naturalization have been eased. Also, transitional measures have been implemented for Croatian nationals, following the entry of Croatia into the European Union.
Changes in the Right of Residence for Foreign Students and Researchers
The "Act of 22 July 2013" on higher education and research amends several sections of the Code of Entry and Stay of Aliens and Asylum (CESEDA) with respect to the duration of the provisional admission, also known as APS (Article L311-11 CESEDA), and multi-annual residence (Article L313-4 CESEDA ) issued to foreign students. The law also now applies involuntary deprivation of employment (Article L311-8 CESEDA) to scientists and researchers. A circular issued on July 30, 2013, implements these new provisions.
Easing of provisional admission (APS) of foreign students includes the following:
- Increase in the duration of the APS issued to foreign graduates from 6 to 12 months. The duration now has a term of 12 months (non-breakable, non-renewable). However, the 11 bilateral agreements providing for APS derogatory terms continue to apply (this means that the 11 bilateral agreements stipulate APS durations that will prevail over the length under this law). Pending the amendment of AGDREF2 (AGDREF2 is a databank containing information on documented foreign nationals) by the end of 2013, prefects are asked to deliver APS for 6 months, renewable for a second period of 6 months in the absence of new instructions.
- Removal of conditions related to returning to the country of origin and participating in economic development. It is no longer necessary that the foreign student applicant intend to return to the home country, or that the first professional experience in France directly or indirectly benefit the economic development of both countries. The letter of intent is no longer necessary.
- Broadening the definition of first professional experience. The first professional experience is no longer limited to a single job or a single employer. A change of employment or employer no longer must lead to refusal to renew an "employee" or "temporary worker" residence permit obtained following an APS when the new job is in line with the training. However, according to the Labour Code, a change in the terms of initial work authorization during the first two years of validity of the employee's stay must be authorized in advance. In an exception, the labor market test will not be taken into account during the adjudication of the renewed work permit.
Issuance of the Multi-Annual Stay for Foreign Students
Foreign students are now eligible for a multi-annual stay at the end of a long-stay visa (VLS-TS). An initial one-year temporary residence permit is not required before a multi-annual residency permit is issued.
Scientists and Researchers Subject to Involuntary Unemployment
Article L311-8 of the CESEDA provides that a residence permit may be withdrawn if the conditions on issuance are no longer fulfilled. However, an exemption was provided for employees, temporary workers, and EU Blue Card holders when the foreign employee has involuntarily lost employment. The "Act of 22 July 2013" added "scientist-researchers," thus expanding the exception.
Situations recognized as involuntary loss of employment under the "Convention of 6 May 2011" and the "Circular of 7 July 2011" on unemployment benefits include:
- Bi-lateral termination
- The termination of fixed-term employment
- A resignation considered legitimate under an administration agreement
- Termination of the contract for cause under Article L1233-3 of the Labour Code
Requirements Eased for Naturalization
After several months of implementation of the Circular of October 16, 2012, the Interior Minister proposed in the Circular of June 21, 2013, to relax the criteria for naturalization. The Interior Minister drew the attention of Prefects to three points in particular: employability, the conduct of the applicant, and the absence of the offense of aid to undocumented foreign nationals:
- The approach to employability should take into account the evolution of the labor market. Neither periods of unemployment nor the succession of temporary contracts should be automatically considered negative factors in relation to employability. It is "the manifestation of consistency and perseverance in meeting professional goals" that must be taken into account, where earlier mere periods of unemployment or a succession of temporary contracts led to rejections or systematic postponement of naturalization applications. The circular also emphasizes the need to adjudicate with greater flexibility applications from graduates or students in the disciplines needed to benefit France economically.
- The assessment of the applicant's conduct must not be disproportionate. The Minister called for a careful examination of the nature and length of any charges (including criminal charges). Minor breaches (such as in relation to income taxes) or isolated failures must be assessed differently from "repeated behavior."
- Aid to undocumented foreign nationals should not be penalized if exempt. Under the circular, only cases constituting an offense under Articles L. 622-1 CESEDA must be taken into account. An applicant should not be penalized if he or she aided in the illegal entry of persons exempted under Article L. 622-4 of the same code, including aid given to spouses and children having entered France outside the family reunification legal framework.
Transitional Measures for Croatians Following Croatia's Entry Into the European Union
Croatia entered the European Union on July 1, 2013, and became the 28th member. In this context, France has decided to implement the first phase of the transitional period (July 1, 2013, to June 30, 2015) to limit access to the labor market by Croatian nationals.
Maintenance of National Measures for Croatian Employees
During the transitional period, Croatian employees wishing to work in France must first obtain a work permit. However, the issuance of work permits is not subject to labor market tests for jobs on the list of 291 occupations determined by the ministerial decree of October 1, 2012. For access to non-listed occupations, France applies all the criteria of Article R.5221-20 of the Labour Code in processing applications for work permits (i.e., labor market tests). The residence permit marked "EU - all professional activities" for a period equal to that of the activity is issued for any labor contract of more than three months and less than one year. The holder is exempt from the reception and integration contract (CAI). The residence permit marked "EU - all professional activities" for a period of five years is issued for any labor contract exceeding one year. Croatian nationals in France who received a degree equivalent to a master's degree are not subject to residence and work permit requirements.
Freedom of Establishment and Freedom To Provide Services
Freedom of establishment is available to self-employed Croatian workers (commercial, industrial, trade, and professional occupations) from the date of accession. Self-employed Croatian nationals receive an EU residence permit, entitled "all occupations except employment," valid up to five years.
In addition, Croatian companies benefiting from the freedom to provide services may do so through their Croatian employees (including non-EU nationals). Such Croatian employees are not subject to prior work permits but still must hold a residence permit during the transitional period. The residence permit, valid for a maximum stay of three years, will be marked "employee of a service provider."
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Extensive efforts to reduce backlogs and improve processing time frames are evident eight months after enactment of the new Migration Act.
After considerable backlogs accumulated during the first half of 2013, the National Immigration Institute (INM) has taken significant steps to enhance the processing time frames in all regional INM offices in Mexico.
Noteworthy changes include the acquisition of printers in all Mexican INM offices to issue new Temporary and Permanent Residence ID cards on site, to reduce delivery time frames. Formerly, the ID cards were issued at the National Printing Office and eventually sent to the INM for collection, taking 5 weeks on average, compared to the 1-3 business days it takes with the new process.
In addition, the INM office in Mexico City has created special desks to process visa renewal applications and registrations for foreigners who arrive with pre-approved immigration status as temporary or permanent residents. This has reduced the processing times to 1 week on average, compared to the 4 to 6 weeks it used to take.
A new immigration regime has been in existence in Mexico since November 9, 2012, after almost 40 years under the previous scheme.
The changes in the law have caused significant processing delays in visa applications submitted at the INM, also given the immediate change in the Mexican presidency less than a month after the enforcement of the new law, which was followed by the substitution of many of the officers at the INM. Such drastic change in the regime resulted in processing delays due to new policies and ambiguities in the law. As a result, the new officers variously interpreted the criteria as they got used both to their new roles and the changed policies.
Delays also resulted from the massive dismissal of public servants working at the INM for failure to pass compliance and trust tests, as part of the Mexican government's anti-corruption efforts. Official sources announced in July of this year the dismissal of more than 620 people working at the INM during the current administration, which has been in office for 6 months.
In addition, the government offered special training by mid-July to immigration officers who are transferring from the Ministry of Foreign Affairs to work in Mexican consulates. The training is designed to prepare consular staff to adjudicate visa applications. There have been delays as the consulates acclimated to their new role. Training is expected to help make the process more efficient.
A steady application of the law has become evident during the second half of 2013, and we expect a stricter application of the law, its regulations, and the guidelines that support the practical application of the new Migration Act. Many of the policies initially contemplated in the Act have yet to be enforced, such as the negativa ficta (i.e., a work visa application is considered denied if no official response is received within 20 business days), the implementation of a new points-based system that grants direct access to permanent resident status for highly qualified foreigners, and the quota system.
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The "Act for Entrepreneurs" regulation took effect on September 30, 2013.
The Act for Entrepreneurs and its internationalization was published in the BOE (Spanish Official Gazette) on September 28, 2013, and took effect September 30, 2013.
The regulation is intended to facilitate the entry and stay in the country for economic reasons of foreign nationals seeking to enter, reside, or remain in Spain provided they belong to one of the following groups:
Two million euros in public debt securities, 1 million euros in shares of Spanish companies or bank deposits in Spanish financial entities
Real estate with a value equal to or over €500,000 free of all liens and encumbrances
Business project carried out in Spain and considered of general interest justifying one of the following circumstances:
- Creation of jobs
- Investment with a substantial socioeconomic impact in the geographical area where the activity will be carried out
- Significant contribution to scientific and/or technological innovation
Entrepreneurial activity includes innovation with a special economic interest for Spain and based on a positive report from the central government
Highly Qualified Professionals
Managerial staff or highly qualified personnel if the company or group of companies meets one of the following requirements:
- An average staff of more than 250 employees in the three months before the submission
- Annual turnover over €50 million, total equity or shareholders' equity over €43 million
- An average gross foreign investment of €1 million within the last three years
- Stock value or position over €3 million
- Company operating in a strategic sector
Managerial staff or highly qualified personnel involved in a business project of general interest and in which one of the following circumstances are met:
- Direct increase in employment
- Maintenance of positions
- Significant increase in jobs in the sector of activity or geographical area in which the activity will be carried out
- An extraordinary investment with a socioeconomic impact within the geographical area where the activity will be carried out
- Grounds of interest for the trade and investment policies of Spain
- Substantial contribution to scientific and/or technological innovation
Graduates and post-graduates from leading universities and business schools
Research staff included in section 13 of the first additional provision of Act 14/2011
Scientific and technical personnel to conduct works of scientific research, development, and technological innovation in companies or R&D centers
Researchers participating within the framework of an agreement by public or private research organizations
Lecturers of universities, bodies or institutions of higher education, and research or business schools established in Spain
Foreigners who are transferred to Spain within the framework of an employment or professional relationship or for professional training purposes with a company or group of companies established in Spain or abroad
The following must be shown:
- Existence of a real activity and business group
- A university degree or equivalent or an experience of at least three years
- Prior employment or professional relationship within companies of the group for a period of three months
- Documentation of the company justifying the transfer
- Accompanying spouse or children under 18 years or children of legal age who are not able to meet their needs due to their health condition
The consulates adjudicate visas related to all of these applicants within 10 business days, and the "Large Companies Immigration Office" processes the residence applications within 20 days.
The temporary residence authorization under this Act is processed under the provisions established in the EU directive 2011/98 (single permit).
The labor market test is not applicable.
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|5. UNITED KINGDOM|
Various new developments have been announced.
New Changes to the Immigration Rules
On September 6, 2013, a number of changes to the Immigration Rules were announced and set before Parliament. The changes, effective October 1, 2013, will mean greater flexibility for businesses and workers and include:
- removing the English language requirement for intra-company transferees when they extend their stay in the UK after three years;
- making it easier for graduate entrepreneurs to switch into Tier 2;
- waiving share ownership restrictions for senior staff earning more than £152,100; and
- allowing some students to work as interns for up to 12 months under the Tier 5 government-authorized exchange scheme.
Tourists and business visitors will benefit from the following changes:
- allowing them to study for up to 30 days, including English language in some cases, where it is not the main purpose of their visit;
- expanding the activities a business visitor can perform in the UK; and
- removing the prospective student route.
Further changes include:
- expanding checks to ensure applicants for work and student visas are genuine, and that they intend to meet the conditions of leave for which they apply;
- introducing the authority to refuse Tier 4 extension applications where the applicant cannot speak English;
- introducing a scheme that allows some locally engaged staff in Afghanistan to relocate to the UK;
- setting new youth mobility scheme numerical limits (quotas) for 2014 and adding Hong Kong to the list of participating countries;
- enabling those who demonstrate exceptional promise in the arts to apply under Tier 1 (Exceptional Talent);
- changing how the Home Office deals with applications for refugees who have committed crimes, and adding the power to curtail leave for persistent or serious offenders;
- introducing temporary Immigration Rules so participants and personnel can come to the UK during the 2014 Commonwealth Games; and
- minor changes and clarifications to the Immigration Rules, including those relating to family life.
Beginning on October 28, 2013, there will also be changes to the way applicants for indefinite leave to remain in the UK must demonstrate their knowledge of the English language and of life in the UK.
MINISTERIAL STATEMENT TO PARLIAMENT OF THE CHANGES
Changes to the Police Registration Procedure
On September 2, 2013, the UK Home Office introduced some changes to the police registration procedure for certain migrants arriving to live, work, or study in the London area. If registration is required, this will be written in the passport. A new requirement is that all relevant migrants staying in the Metropolitan Police area may register only at the Overseas Visitors Records Office (OVRO) in London at the following address:
Overseas Visitors Records Office
180 Borough High Street
London SE1 1LH
It is still necessary to register within seven days of arrival in the UK and additional documentation must now be taken to OVRO. A pro forma application form has also been published. The Home Office advises that this be printed and completed before arrival.
The required documentation includes:
- any Home Office letters/forms
- fee of £34 payable by cash or credit/debit card
- two passport-sized photographs
- a copy of the Visa page from the passport
- a copy of the Biometric Card (if applicable)
Migrants not staying in the Metropolitan Police area should continue to register with their local police stations.
Change to the Premium Booking Appointment Process
As of August 18, 2013, those booking a premium appointment at a Public Enquiry Office (PEO) are now asked to pay the entire fee when booking an appointment online. This includes the premium fee of £375 and the appointment fee of £100.
This replaces the previous arrangement whereby representatives with pre-allocated Representative slots for their clients could book appointments directly with the PEO and only pay the £100 appointment fee in advance at the time of the booking. The balance was paid when attending the appointment.
Appointments may be managed through an online account. If an applicant fails to attend his or her appointment, or cancels it with five or fewer working days' notice, the £100 appointment fee will not be refunded.
For those sponsors who currently use a Representative service to accompany applicants at the PEO, the Home Office has confirmed that it will continue to accept Representative cases at all of the PEOs and it is merely changing the booking process.
Further details on the new process can be found on the HOME OFFICE WEBSITE.
Expansion of Priority Visa Services
The following is an update with additional locations offering Priority Visa Services, in addition to those reported before. The visa fee quoted is in addition to the usual visa processing fee (SEE CHART).
Early Passport Return for Tier 2 (ICT) applications
The Home Office has confirmed that a separate application for the return of the Biometric Residence Permit (BRP) must be submitted. Those Tier 2 Intra-company transfer migrants who have submitted an application via the postal route and require the early return of their BRP must e-mail Tier2ICTBRPReturn@homeoffice.gsi.gov.uk.
Launch of Registered Traveller Scheme
On September 24, 2013, the Home Office announced that the Registered Traveller Scheme is now effective. Selected individuals traveling to the UK as visitors from Australia, Canada, Japan, New Zealand, and the United States can be processed as "Registered Travellers" provided they have traveled to the UK four or more times in a preceding 52-week period. They must also have previously been registered under the now defunct "IRIS" immigration registration system. The program will initially operate at Heathrow and Gatwick airports before being rolled out at other ports across the UK.
Once enrolled in the program, users will be eligible for expedited clearance at the border. They will be processed at the Immigration Desk similarly to the clearance process for European Economic Area (EEA) nationals, except that they will be given leave to enter every time they arrive at the UK border. They will also be able to access a faster-moving queue than the standard one for non-EEA nationals before reaching the Immigration Desk.
The nationalities eligible for the program were selected on the basis of low risk and high volume. The Home Office will review them on a regular basis. The period between now and April 2014 is a pilot phase and the program is expected to operate on a permanent basis beginning on April 1, 2014. An annual fee is expected to begin on that date, but in the meantime it is free.
Eligible individuals must APPLY ONLINE.
Changes to "Knowledge of Language and Life" Requirements
Beginning on October 28, 2013, unless they are exempt, applicants for settlement or naturalization as a British citizen must meet the knowledge of language and life requirement by:
- Passing the life in the UK test; and
- Having a speaking and listening qualification in English at B1 CEFR or higher, or its equivalent
For an application for citizenship to be considered under the pre-October 28 requirements, the application must be received by UK Visas & Immigration (formerly the UK Border Agency) by Friday, October 25, 2013 (the last working day before the change).
DETAILS OF THE NEW REQUIREMENT
Commentary: Minimum Salary Requirement Challenged
Nearly a year to the day after it was introduced, the high court in Birmingham handed down a judgment addressing legal challenges to the minimum income threshold. (This section was previously published in The Law Society Gazette and reprinted with their permission. Minor edits have been made.)
In MM, Javed and Majid v Secretary of State for the Home Department  EWHC 1900 (Admin), three claimants (two British citizens and one Lebanese refugee) sought to quash the minimum salary requirements. As articulated by Justice Blake, the central issue was "whether the minimum income provisions of the maintenance rules when applied to sponsors who are British citizens or refugees whose incomes and savings combined do not meet them are a disproportionate interference with the right to respect for family life."
The court considered the effect of the income requirement when combined with additional associated conditions, including:
- the prohibition on the use of savings to enhance a shortfall in income unless the savings amount to more than £16,000;
- the use of a 30-month period for income projection instead of 12 months;
- the prohibition on the use of third-party funds to supplement maintenance; and
- the prohibition on the use of the future earning capacity of the spouse.
While the high court held that the minimum income requirement was not unlawful on the basis of discrimination or due to any discord with the doctrine of the best interests of a child, it concluded that, when viewed alongside one or more of the above conditions, the aggregate effects were "so excessive in impact as to be beyond a reasonable means of giving effect to the legitimate aim."
The court declined to quash the rules, instead leaving it to the secretary of state to decide what amendments would be needed to satisfy the requirements of proportionality. This decision offers some hope to families affected by the July 9, 2012, changes and, for the time being, seems to have put the minimum income requirements on hold. After the judgment was handed down, the Home Office issued a statement that it had paused decisions on related spouse/partner and child settlement applications to consider the holding, and that a further announcement was forthcoming.
It is unclear whether the government will appeal. What is clear, however, is that the pitch of the government's policies appear to be tuned more to the frequencies of political rhetoric than positive reform. Unfortunately, this short-term view, which is not informed by outcomes, promises to continue to create a hostile environment for both valuable migrants and UK citizens alike.
Commentary: "Firms Have a Duty To Hire Britons" - What Are the Employer Implications?
Employers have a social responsibility to take on and train local young people, rather than taking the "easy option" of employing skilled workers from overseas, a Tory minister has said. In recent media interviews, skills minister Matthew Hancock said businesses that give local youngsters on-the-job training end up with more loyal and motivated workers, and stand to get a significant return on their investment.
His controversial comments are reminiscent of Gordon Brown's 2007 call for "British jobs for British workers"—and sparked similarly fierce debate. Surely such an approach amounts to discrimination? Or is it time for UK employers that rely on migrant workers to rethink their recruitment culture?
The government has effectively said yes, the time has come. Its sights are firmly set on coming to grips with immigration, as its divisive new "Illegal immigrants? Go home or face arrest" campaign suggests, and it has backed the minister's comments. So what should employers do? Can recruitment processes be tweaked to boost local employment without falling afoul of the law? And should they be?
The first thing worth noting is that European Union (EU) nationals have the right to be treated as equal to UK nationals with regard to access to employment. This means that UK employers cannot simply target jobs to people from the local population; with limited exceptions, posts also must be open to applications from EU nationals. In the same vein, the resident labor market test that is used to give UK residents a degree of priority over migrants for sponsored skilled positions also extends its protections to European nationals. Any change to this approach would be likely to create conflict between domestic immigration policy and EU legislation.
So there is little scope for employers to reduce their reliance on European workers, who make up around 70 percent of the UK's migrant workforce. The 30 percent of migrant workers who hail from beyond the EU cannot be marginalized in favor of local workers either. All UK employers are subject to the terms of the Equality Act 2010, which protects individuals from discrimination on the basis of race (including nationality or national origin). Advertising positions exclusively for EU nationals could amount to race discrimination. Employers could potentially justify such a move if they can show it to be a proportionate means of achieving a legitimate aim, but case law in this area is limited, so it is a risky measure.
The government is expanding its apprenticeship scheme and launching a traineeship scheme, both of which are available to people living in England only, so businesses are being given more incentive to recruit locally. But beyond initiatives of this kind, there is little that employers can do within the bounds of the law to reduce their reliance on migrant workers. It falls to the government to provide adequate immigration controls and systems of education and training to support the "local young people" they are supposedly campaigning for.
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|6. New Publications and Items of Interest|
UK immigration law seminar. Kingsley Napley will sponsor "Immigration Law Wash-Up and Surgery" on November 7, 2013. Doors open at 4 p.m. The event will begin at 4:30 p.m. and refreshments will follow around 6 p.m. The event will include a summary of key immigration law changes introduced in 2013. Gillian Brownlee, Katie Newbury, and Stephen Hall will discuss removing the English-language requirement for intra-company transferees; changes to the knowledge of language and life in the UK requirement for settlement and naturalization; waiving ownership restrictions for some senior staff entering the UK under Tier 2 (General); allowing students to work as interns under the Tier 5 government authorized exchange scheme; expanding the activities a business visitor can do; and allowing a main applicant to change in-country to dependent status. At the end of the session, participants will have the opportunity to discuss their organizations' immigration issues and ask questions.
RSVP. For more information, e-mail email@example.com.
Several ABIL members co-authored and edited the Global Business Immigration Practice Guide, released by LexisNexis. The Practice Guide is a one-stop resource for dealing with questions related to business immigration issues in immigration hotspots around the world.
Latchi Delchev, a global mobility and immigration specialist for Boeing, called the guide "first-rate" and said the key strong point of the book is its "outstanding usability." She said she highly recommends the book and notes that it "is helpful even to seasoned professionals, as it provides a level of detail which is not easily gained from daily case management.
Mireya Serra-Janer, head of European immigration for a multinational IT company, says she particularly likes "the fact that the [guide] focuses not just on each country's immigration law itself but also addresses related matters such as tax and social security issues." She noted that the India chapter "is particularly good. The immigration regulations in India have always been hard to understand. Having a clear explanation of the rules there helps us sort out many mobility challenges.'
This comprehensive guide is designed to be used by:
- Human resources professionals and in-house attorneys who need to instruct, understand, and liaise with immigration lawyers licensed in other countries;
- Business immigration attorneys who regularly work with multinational corporations and their employees and HR professionals; and
- Attorneys interested in expanding their practice to include global business immigration services.
This publication provides:
- An overview of the immigration law requirements and procedures for over 20 countries;
- Practical information and tips for obtaining visas, work permits, resident status, naturalization, and other nonimmigrant and immigrant pathways to conducting business, investing, and working in those countries;
- A general overview of the appropriate options for a particular employee; and
- Information on how an employee can obtain and maintain authorization to work in a target country.
Each chapter follows a similar format, making it easy to compare practices and procedures from country to country. Useful links to additional resources and forms are included. Collected in this Practice Guide, the expertise of ABIL's attorney members across the globe will serve as an ideal starting point in your research into global business immigration issues.
Order HERE. International customers who do not want to order through the bookstore can order through Nicole Hahn at (518) 487-3004 or Nicole.firstname.lastname@example.org.
ABIL on Twitter. The Alliance of Business Immigration Lawyers is now available on Twitter: @ABILImmigration. Recent ABIL member blogs are available on the ABIL Blog.
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|7. Member News|
The following ABIL members have been ranked among the top lawyers in the United States, in the following categories:American Lawyer Media and Martindale-Hubbell 2013 Top Rated Lawyers in Immigration Law:
Top 25 Attorneys in EB-5 by the EB-5 Investors Magazine:
H. Ronald Klasko
Martindale Hubbell AV Rated:
H. Ronald Klasko
The following ABIL members were selected by their peers for inclusion in the 20th Edition of The Best Lawyers in America in the practice area of Immigration Law:
H. Ronald Klasko
Jacqueline Bart has announced these upcoming events:
- Program President and Speaker, "Global Citizenship and Nationality Trends," Union Internationale des Avocats 57th Annual Congress, November 2013, Macau, PRC
- Speaker, "Immigration—Clash of Cultures," 6th Biennial International Bar Association Immigration Conference, November 22, 2013, London, UK
- Speaker, "Following the Money Trail? Strategic Positioning in the Global Investment Market," Immigration and Nationality Law Committee, International Bar Association Annual Conference, October 9, 2013, Boston, Massachusetts, USA
- Speaker, "The Growing Importance of Corporate Immigration and International Employment Law in Transactions: Getting it Right When Moving Personnel Between Entities, In-Country or Across Borders," Immigration and Nationality Law Committee, International Bar Association Annual Conference, October 10, 2013, Boston, Massachusetts, USA
Steve Clark presented on representing EB-5 immigrant investors at a Boston Bar Association CLE on October 1, 2013.
H. Ronald Klasko was named one of the "Most Powerful Employment Attorneys in Immigration Law" in the United States by Human Resource Executive magazine. The magazine so named 20 lawyers in the country in its June 16, 2013, edition.
Mr. Klasko was appointed chair of the EB-5 Investor Committee of the American Immigration Lawyers Association. This was his fourth appointment to chair this committee.
Mr. Klasko discussed "What’s Next? EB-5 Trends and Developments" at the CDFA/IIUSA Intro EB-5 Finance WebCourse on September 19. Mr. Klasko reviewed trends and developments related to the EB-5 program and highlighted important statistics to consider when using this form of financing. Topics discussed included capital and job formation, actions taking place at USCIS, the federal agency that administers the program, and legislative reforms that could affect the program. MORE DETAILS.
Mr. Klasko will visit the Wharton Business School of the University of Pennsylvania on Tuesday, October 8, 2013. He will discuss topics of interest to entrepreneurial business students.
Mr. Klasko presented at the Practising Law Institute's 46th Annual Immigration & Naturalization Institute program in New York City on September 3, 2013. The topic was "Challenges to Entrepreneurs Coming to the United States."
Mr. Klasko was a contributing author to the American Immigration Lawyers Association's Immigration Practice Toolbox, 4th Edition (June 2013). The Toolbox contains a collection of articles, templates, samples, and updates to supplement a practitioner’s knowledge of immigration law.
Charles Kuck has published a new blog entry. "Georgia Businesses and E-Verify—The Perfect Storm Has Arrived"
Mr. Kuck was quoted in the Wall Street Journal in an article published on October 1, 2013, on the U.S. government furloughs hitting U.S. immigration courts. Mr. Kuck noted that Atlanta's court was packed on a recent day even though four of its five judges were furloughed. "Congress is wreaking havoc with people's lives," he said, predicting that his clients scheduled for an October 1 hearing would have to wait at least a year to be rescheduled.
Robert Loughran was the discussion leader for the ILW EB-5 Summit for Attorneys and Developers and spoke on "Developing the I-924 Application For Regional Center Under the Immigrant Investor Pilot Program" and "Documenting Job Creation Through the I-829 Petition by Entrepreneur to Remove Conditions." The EB-5 Summit was held at the Westin O’Hare in Chicago on Friday, September 6, 2013. The discussion was open to anyone interested in learning more about the EB-5 visa.
Mr. Loughran provided an "Update on Increased Government Investigations" at the 2013 FosterQuan Corporate Compliance Seminar held at the Westin Memorial City in Houston, Texas, on September 10, 2013. The seminar featured government representatives and other experts discussing immigration challenges facing all employers. Timely updates, strategic advice for immigration compliance, and best practices critical to all employers were provided, including Form I-9 Compliance and issues related to mergers and acquisitions and discrimination; E-Verify; and ICE/HSI investigations.
Mr. Loughran spoke on August 8, 2013, at the West Texas Legislative Summit on the campus of Angelo State University on "Proposed Legislative and Procedural Changes to Immigration Law."
Mr. Loughran presented on August 2, 2013, on "Potential Changes to Immigration Law in the Second Obama Term and Implications for Employers"; "Strategizing Short-Term Assignments: Limitations for Visitors"; and "How To Turn Your Immigration Program Into a Key Retention Tool" at the Austin Human Resource Management Association's annual "Playbook for Success" conference in Austin, Texas.
Mr. Loughran spoke on July 11, 2013, on nonimmigrant visas and immigration basics at the Texas Association of School Personnel Administrators' 2013 conference in Austin, Texas. The presentation included an overview of employment-based immigration and its three-step process, including a look at the employer's role in sponsoring visas.
Marco Mazzeschi presented a lecture at Southwest University of Political Science and Law, Chongqing (China).
Sharon Mehlman presented an AILA webinar on "I-9 Compliance, Auditing & Settlements—Lessons from OCAHO" on September 24, 2013.
Ms. Mehlman presented an American Immigration Lawyers Association (AILA) webinar on "I-9 and E-Verify Compliance for Multi-State Employers" on September 10, 2013.
Ms. Mehlman presented an "Immigration Law Update" at the Balch & Bingham Employment Law Conference in Birmingham, Alabama, on September 13, 2013.
Cyrus Mehta recently co-authored or authored several new blog posts: "Can An Undocumented Lawyer Practice Immigration Law?" "America’s Role In Syria After the Chemical Weapons Attack And Immigration Reform""Nearly 12 Years After 9/11 Applicants Perceived as Muslims Still Targeted Under a Secret Immigration Program""The Lazarus Effect: How Comprehensive Immigration Reform Can Survive the House GOP and Come Back to Life" "How California's AB 1159 Will Hurt Immigration Lawyers and Their Clients: A New York Immigration Lawyer's Perspective"
Mr. Mehta spoke at the following recent events:
- "Ethics and Professional Responsibility—When You Leave Your Comfort Zone," Northern Border Immigration Fall Conference, American Immigration Lawyers Association's Upstate New York Chapter and the Albany County Bar Association, Albany, New York, September 20, 2013
- "Ethics in Immigration Practice: Where Zealous Representation Starts and Ends," Practising Law Institute, New York City, September 3, 2013
- "Ethical Issues In Removal Proceedings, Defending Immigration Removal Proceedings 2013," Practising Law Institute, New York City, August 12, 2013
- "Careers in Immigration Law," New York City Bar, Summer Series, July 18, 2013
Angelo Paparelli recently co-authored a new article, "Prosecutors, Aim Your Weapons—Targeting Fraud Upon Immigrants."
Mr. Paparelli has authored several new blog posts: "The L-1 Intracompany Transferee Visa Facing Attack—From All Branches of the Federal Government (Part I)" "RNC Hoisted on Its Own Immigration Petard in Opposing Path to Citizenship""Immigration Mystery Revealed: The Occult Process Behind Nonimmigrant Visa Waivers"
Mr. Paparelli was quoted in the Washington Post on August 3, 2013, in an article on how some employers help immigrants naturalize. Mr. Paparelli noted that although high-tech companies frequently sponsor foreign workers for visas or green cards, most companies have not gotten involved in the naturalization process. He said their involvement usually ends at getting work authorization, unless the employee needs to travel extensively overseas or obtain a national security clearance only available to a U.S. citizen.
Pearl Law Group won the Bronze Stevie® Award in the 2013 International Business Awards for "Most Innovative Company of the Year" in North America. The firm was considered among more than 3,300 nominees in more than 50 nations.
Bernard Wolfsdorf co-authored a blog entry, "8 Issues That Must Be Addressed When Documenting Source of Funds for Chinese EB-5 Cases"
Mr. Wolfsdorf moderated a panel, "EB-5—$500,000/$1M Investor Green Cards" at a conference on August 14, 2013. The session delved into the EB-5 immigrant investor landscape with a particular focus on hot topics and tips, and how to avoid pitfalls.
Stephen Yale-Loehr was quoted in a recent Univision article about the complexity of the EB-5 program.
Mr. Yale-Loehr spoke on EB-5 immigrant investor issues on a webinar sponsored by the Council of Development Finance Agencies on September 18, 2013. Topics will include direct EB-5 vs. EB-5 regional center programs, minimum investment requirements, securities regulations, and business plans and economic reports. MORE DETAILS.
Mr. Yale-Loehr was interviewed on August 14, 2013, on the Kojo Nnamdi show on WAMU radio in Washington, DC, about the EB-5 immigrant investor green card program. The EB-5 program is now part of Virginia's gubernatorial race because Terry McAuliffe, the Democratic candidate for governor, is linked to a car company that made use of those visas to solicit foreign investment.
Mr. Yale-Loehr was quoted in USA Today on September 27, 2013, in an article on immigration reform. "I think it's the conventional wisdom that immigration reform is dead in the House. But I think there could still be a surprise."
Mr. Yale-Loehr was quoted in BloombergBusinessweek, on September 24, 2013, in an article on immigration software. He noted that automated systems won’t necessarily help all applicants, because one of the things an immigration lawyer does is help clients choose from among the various avenues to a visa or green card. "A person may have more than one option to get a green card." He noted that software can be useful "once you know what route you should take."
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