Legal Briefing

Global legislative update and recent developments

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Human resources | 01 May 2013

Immigration reform has been on president Obama’s agenda since he was first elected president, and he is optimistic that comprehensive legislation will be passed by the end of 2013, if not before.


The president’s plan has four components:

  • Continuing to strengthen border security.
  • Streamlining legal immigration by making legal immigration simple and efficient; providing visas for foreign entrepreneurs looking to start businesses in the United States; helping the most promising foreign graduate students in science and mathematics to stay in the US after graduation; and reuniting families in a timely and humane manner.
  • Earned citizenship, providing undocumented immigrants with a legal way to earn citizenship and holding them accountable by requiring them to pass background checks, pay taxes and a penalty, and learn English. They will have to go to the back of the queue, behind people who have applied for citizenship through the normal immigration process. It requires everyone to play by the same rules.
  • Cracking down on employers hiring undocumented workers. The president’s proposal is designed to stop businesses from exploiting the system by knowingly hiring undocumented workers. It holds these companies accountable, and gives employers who want to play by the rules a reliable way to verify that their employees are in the US legally.

In his State of the Union address on 29 January 2013, president Obama talked of the need ‘to fix the system’. He continued:

‘We have to make sure that every business and every worker in America is playing by the same set of rules. We have to bring this shadow economy into the light so that everybody is held accountable – businesses for whom they hire, and immigrants for getting on the right side of the law. That’s common sense. And that’s why we need comprehensive immigration reform.’

A bipartisan group of senators have been working for months on what would be the biggest shake-up of immigration policy since 1986.

The debate will continue in the Senate after the Easter recess when the bipartisan group is expected to introduce a broad bill, including proposals to allow illegal immigrants to gain legal status and eventually become citizens. The more politically charged aspect of the bill is likely to be the terms of a pathway to citizenship for 11 million undocumented immigrants.

Recent polls have indicated that many Americans are still making up their mind on the issue. In a large national poll released on 21 March by the Public Religion Research Institute and the Brookings Institution, 63% of Americans said immigrants here illegally should be allowed to become citizens if they met certain requirements. In a poll published a week later by the Pew Research Center, only 42% said they would give citizenship to the immigrants, while 24% said the immigrants should be allowed to stay as permanent residents but not citizens.

A poll conducted on behalf of the Small Business Majority found 67% of small business owners in favour of immigration reform, seeing immigrants as a driving force in entrepreneurship.

Senator Rubio, seen as a potential presidential candidate in 2016, said:

‘We will need a healthy public debate that includes committee hearings and the opportunity for other senators to improve our legislation with their own amendments. Eight senators from seven states have worked on this bill to serve as a starting point for discussion about fixing our broken immigration system. But arriving at a final product will require it to be properly submitted for the American people’s consideration, through the other 92 senators from 
43 states that weren’t part of this 
initial drafting process. In order to succeed, this process cannot be 
rushed or done in secret.’

The path to citizenship is likely to divide congress but lawmakers on both sides are facing intense pressure from latino immigrants who have been pushing hard 
for this right. Tens of thousands of immigrant rights advocates attended a rally on 10 April on the West Lawn of the Capitol. The theme of the rally was ‘Citizenship Now’.

‘Since the end of slavery we have not created a second class of Americans,’ said Angelica Salas, executive director of the Coalition for Human Immigrant Rights of Los Angeles, ‘and we should not start now.’

H-1B CAP REACHED FOR FISCAL YEAR 2014

The urgent need for immigration reform

US Citizenship and Immigration Services (USCIS) announced on 5 April 2013 that it has received enough H-1B petitions to 
meet the congressionally mandated H-1B cap for the fiscal year 2014, both in the general category (65,000) and under the ‘advanced degree’ exemption (20,000). 
Any cap-subject H-1B petitions received 
by USCIS after this date, 5 April 2013, will be rejected.

USCIS will now run a computer-generated random selection process or ‘lottery’ of all H-1B petitions received during the 1-5 April 2013 filing period. The selection process for advanced degree exemption petitions will be done first, and all advanced degree petitions not selected as part of the initial quota will be part of the random selection process for the 65,000 general category.

USCIS will begin adjudication of premium processing cases on or about 15 April and will reject and return filing fees for all cap-subject petitions not randomly selected.

Applicants from India and China have traditionally made up the bulk of H-1B recipients. In recent years, several US companies have called on Congress to increase the annual cap, pointing to a shortage of highly skilled workers.

In a statement, Laura Lichter, president of the American Immigration Lawyers Association, said:

‘Reaching the cap so quickly shows that this limit set on recruiting foreign talent just isn’t based on actual labour force demand and the human resource needs of US companies’.

As previously discussed, lawmakers on Capitol Hill are currently working on comprehensive immigration reform legislation and changes to the H-1B program should be part of the eventual bill.

The US vice president, Joe Biden, supported the idea of increasing the quota of H-1B visas. Addressing a meeting of Export-Import Bank of the US, Mr Biden said he supported:

‘… adding additional H-1B visas so that American employers can hire the best and brightest, no matter where they come from, if they can’t be found here.’

The New York mayor, Michael Bloomberg, also stated that this is a missed opportunity to attract talent from across the world.

‘The fact that our supply of H-1B visas was exhausted so quickly is not only emblematic of our broken immigration system – it represents yet another missed opportunity to attract the world’s best and brightest to our shores,’ said John Feinblatt, chief policy advisor to New York City mayor Michael Bloomberg and chairman of the Partnership for a New American Economy.

In the past several years, the H-1B quota has not been exhausted until later in the fiscal year. This is the fastest the cap has been reached since 2008, before the economic crisis hit later that year. A lottery was also last held in 2008 to award H-1B visas. In 2012, it took 73 days to reach the cap, while it took 235 days to receive applications to fill the 65,000 H-1B numbers in 2011; 300 days in 2010, and 264 days in 2009.

In 2008 and 2007 the caps were reached in the first few days.

Absent a change in legislation, however, US employers will not be able to file for H-1B status for employees until 1 April 2014 for a start date of 1 October 2014 (fiscal year 2015).

H-1B petitions are filed by US employers seeking to hire a specific foreign national in a specialty occupation involving the theoretical and practical application of a body of specialised knowledge (such as the sciences, medicine and healthcare, education, biotechnology). The numerical limitation on H-1B petitions for fiscal year 2014 is 65,000. Additionally, the first 20,000 H-1B petitions filed on behalf of foreign nationals who have earned a US master’s degree or higher are exempt from the fiscal year cap.

ELIMINATION OF PAPER FORM I-94, ARRIVAL/DEPARTURE RECORD BY 
THE CUSTOMS AND BORDER 
PROTECTION AGENCY

On 30 April 2013, the Customs and Border Protection Agency (CBP) will begin eliminating the paper form I-94, Arrival/Departure Record that is completed by all foreign travellers at the time they are being processed for entry into the US. Instead, foreign travellers will receive an entry stamp in their passports, which will include their date of entry, class of admission, port of entry and their status expiration date.

CBP is eliminating the paper I-94 form for two reasons:

  • CBP already has access to the information on the card through information provided by the foreign national when submitting an application for a non-immigrant visa at a consulate abroad;
  • CBP expects to save significant time and money by eliminating the form.

Foreign travellers who need a record of their entry to submit to other government agencies when applying for a benefit 
or service, such as USCIS, the Social Security Administration and various state departments will be able to go to www.cbp.gov/I94, and, by entering their biographic information, date of entry and class of admission, will be able to print a paper form I-94, which will include an eleven-digit record number.

CBP began eliminating the paper form I-94 on 30 April 2013 in four phases. Week of 30 April: Charlotte Douglas International Airport, Chicago O’Hare International Airport, Las Vegas Airport, Miami International Airport, Orlando International Airport. Week of 7 May: major air and sea ports in New York, Boston, Buffalo, Baltimore, Detroit, Atlanta, Tampa, Puerto Rico, Miami, Chicago, New Orleans and Houston. Week of 14 May: preclearance inspection stations and major air and sea ports in San Francisco, Tucson, El Paso, Seattle, Portland, Los Angeles, San Diego, Laredo, Alaska, Hawaii and Guam. Week of 21 May: all remaining airports and seaports.

GLOBAL IMMIGRATION

Companies, corporations and economies are becoming increasingly exposed internationally and the need for employees to travel is paramount, in respect of the provision of trade, goods and services.

Global immigration matters are often coupled with the added complexity of the employee being a foreign national (eg an American citizen), residing in a foreign country (eg Germany), whose employer wishes to deploy their services to another country (eg Brazil).

Corporate immigration procedures differ per country and such legislation is fluid. It is essential for all businesses to ensure immigration procedures for an employee’s destination country are adhered to. This will ensure the employees, and their employers, are compliant with the relevant legislation and remain so throughout the duration of their stay.

Once an employer has made the decision to deploy an employee to a particular country, and the applicable work authorisation category has been decided upon, global immigration follows a general three-step process:

  1. Work authorisation: applied for with the relevant governmental department in the destination country.
  2. Entry clearance: applied for by way of a visa in the applicant’s country of residence.
  3. Permission to remain: this is often applied for in the country of destination, also referred to in some countries as a residence permit.

The point at which an employee is legally able to begin working in the country of destination also varies between countries and sometimes even regions.

Keeping up to date with the changes to global immigration legislation is a challenge in itself. For example, please see below for examples of most recent state immigration related legislative amendments.

AUSTRALIA

Subclass 457 visa changes

The Department of Immigration and Citizenship of the Australian government advise that:

‘The purpose of the 457 visa program is to enable employers to fill skill shortages by recruiting qualified overseas workers where they cannot find appropriately skilled Australians.

The 457 visa is a temporary 
visa, intended for filling short to 
medium-term skill shortages, in 
a quick, flexible way to meet business needs. The program contains a number of in-built protections to 
prevent local workers’ conditions 
from being undercut and overseas workers from being exploited.’

Mr Brendan O’Connor, Australian minister 
of immigration and citizenship has 
recently announced details for proposed changes to the 457 visa programme, declaring that:

‘… on 23 February 2013, the minister for immigration and citizenship announced a number of reforms to the subclass 457 program. These reforms are aimed at strengthening the Department of Immigration and Citizenship’s capacity to identify and prevent employer practices that are not in keeping with the criteria of the subclass 457 program.

The measures being brought forward include:

  • Introducing a requirement for the nominated position to be a genuine vacancy within the business.
  • Introducing a provision to allow the department to take action against sponsors who engage in discriminatory recruitment practices.
  • Strengthening the market salary rate requirements to allow discretion when considering comparative salary data for the local labour market when deciding whether a nominated position provides equitable remuneration arrangements. Additionally, the market salary exemption threshold will be increased from $180,000 to $250,000 to ensure that higher paid salary workers are not able to be undercut through the employment of overseas labour at a cheaper rate.
  • Strengthening the English language requirements by removing exemptions for applicants from non-English speaking backgrounds who are nominated with a salary below $92,000. In addition, applicants who were exempt from the English language requirement when granted a visa now require to be exempt from, or to meet the English language requirement when changing employers. Additionally, the definition of English language will be better aligned with the permanent employer sponsored.
  • Strengthening the requirement for sponsors to train Australians by introducing an ongoing and binding requirement to meet training requirements for the duration of their approved sponsorship.
  • Clarifying that 457 workers may not be engaged in unintended employment relationships by requiring workers to be engaged on an employment contract (as opposed to a business contract for services) and not on-hired to an unrelated entity unless they are sponsored under a labour agreement, or in an exempt occupation.
  • Strengthening the existing obligation regarding recovery of costs to ensure that sponsors are solely responsible for certain costs.’

These comprehensive changes to the programme are proposed to be introduced on 1 July 2013. During the interim, the Australian government has advised that detailed information will be made available to assist sponsors and visa holders, as well as their representatives, to assist them to understand the new requirements.

GREECE

Original documents required

The Ministry of Interior Affairs in Athens is shortly expected to announce that original birth and marriage certificates will be required to be submitted in support of Greek residence permit applications for the dependants of foreign nationals. The original certificates are expected to be required as well as the current requirement of legalised Greek translations of the certificates.

NETHERLANDS

Modern migration policy

The government of the Netherlands published the following statement on 8 March 2013:

‘On 1 June 2013, the Modern Migration Policy Act will come into force. Among other things, this Act will combine the application procedures for a provisional residence permit and for the residence permit. For many aliens and for the Immigration and Naturalisation Service (IND) this means no longer having to deal with a double application procedure and review. In addition, regular residence permits can be granted for longer periods, which mean there are fewer renewal procedures. The enactment of the Modern Immigration Policy Act also means that it will become easier, for instance, to switch to a different educational institute without this requiring a new permit. This will lead to faster procedures and a lower administrative burden on citizens and companies, according to State Secretary Teeven of Security and Justice in a letter of today to the Dutch Lower House.’

In short, this policy, which has been a work in progress for more than three years, is aimed to simplify application procedures, yet it will apparently place more responsibility onto the Dutch entity sponsoring the employee’s application, rather than the sending or home company. By way of the Dutch entity having to apply for and be registered as an ‘authorised sponsor’ that will then apply them to facilitate foreign workers.

RUSSIA

Business visa

Foreign qualifying representatives or employees should shortly be able to 
apply for and request a new five-year multiple entry business visa without 
the need to supply an official invitation letter.

Earlier this year, the Russian president, Vladimir Putin, signed a law in respect of this facility. However, Russian consulates abroad are not yet in a position to issue this type of visa.

The Russian Federal Migration Service is scheduled to provide application requirements and procedures to its consulates in due course.

CONCLUSION

The above information is designed to provide you with a synopsis of just some of the most recent global immigration legislative changes.

Therefore, the need to be aware of and to be proactive in relation to immigration procedures is foremost.

It is thus essential for employers and companies alike to be aware that 
legislative changes to the immigration procedures of a country can change 
without notice and such changes 
must be adhered to accordingly, to 
ensure the successful outcome of an application.