Brexit Update

Summary

The United Kingdom is set to leave the European Union on March 29, 2019. Discussions between the UK and EU surrounding the withdrawal agreement have been unclear as to how the UK will exit the EU. Nonetheless, immigration policy continues to change and develop amidst Brexit discussions. This update reviews the current Brexit status and the development of new Immigration Rules that the Home Office published on March 7, 2019. Additionally, this newsletter highlights the impact of a no-deal Brexit withdrawal agreement on UK citizens living in certain EU member states, and equally, the impact of a no-deal Brexit withdrawal agreement on EU citizens living in the UK.f

Brexit Update

The UK Parliament has voted against a withdrawal agreement on two occasions: January 15, 2019 and March 12, 2019. Most recently, the UK Parliament voted against proceeding with a no-deal Brexit, and in favor of extending the Brexit process. Currently, Prime Minister Theresa May is requesting the EU to postpone Brexit and will soon travel to the EU summit in Brussels to discuss options for the postponement. However, all 27 EU member states must agree to any proposed postponement. As it stands, the UK will leave the EU on March 29, 2019 with or without a deal, unless a postponement is agreed.

Home Office Immigration

On March 7, 2019, the UK Home Office published a policy paper through which new immigration rules under HC 1919 took effect. Employers need to ensure that the proposed salary for jobs for which a Certificate of Sponsorship is assigned from March 30, 2019 and beyond meet the updated rates outlined below. Additionally, the new rates must also be met for indefinite leave to remain applications. HC1919 amends Tier 2 in the following ways:

Tier 2

  • Salary rate updates in Appendix J: the new rates apply where the Certificate of Sponsorship is assigned on or after March 30, 2019;
  • Wage inflation: minimum earning threshold will be £38,000 for indefinite leave to remain applications made from April 6, 2023 and £40,100 from April 6, 2024;
  • Tier 2 General Cap Scoring – The current salary bands will be replaced. From March 30, 2019, one point will be scored for each extra £1,000 of gross salary. The amount will increase the number of applications that may be awarded monthly;
  • Exemption Extensions: For nurses, medical radiographers, paramedics, and secondary school teachers in mathematics, physics, chemistry, computer science and mandarin, the exemption from the £30,000 minimum salary threshold will be extended until the introduction of the post-Brexit immigration scheme.

Additional Notable Changes

  • New Categories: The Home Office introduced new Start-up and Innovator categories replacing the Tier 1 Entrepreneur, and Graduate Entrepreneur, categories from March 29, 2019;
  • Tier 1 Investor: Tier 1 Investor application requirements will be stricter from March 29, 2019;
  • Fees: Super Priority Service will increase from £610 to £800 per person.

Brexit With A Withdrawal Agreement

For EU nationals and their family members living in the UK today, this piece is largely irrelevant as they will have the opportunity to take advantage of a streamlined approach for remaining and working in the UK post-Brexit. However, if you are not within that category, the following may be informative. The Withdrawal Agreement, as it stands and if ratified, generally provides:

  • A transition period for all UK and EU nationals, and their dependents, whereby the current status would remain the same in order to take the necessary steps to ensure their work and residence status complies with Brexit (the transition period would end on December 31, 2020);
  • Arrangements for all citizens across EU member states and the UK will be similar with minor procedural or administrative differences;
  • All EU citizens residing in the UK before the transition period ends will need to register through the EU settlement scheme prior to June 30, 2021 (dependents with a relationship, pre-dating the end of the transition period, with the qualifying individual may join them at a future date);
  • UK nationals residing in an EU member state, before the end of the transition period, will likely be able to remain and work in the EU state provided that they register according to the uniform EU registration scheme.

Brexit Without A Withdrawal Agreement

A no-deal Brexit means that each EU member state would set its own arrangement and policy for UK citizens seeking to travel and/or work in that country, which could be significantly different among member states, following Brexit. Generally, UK nationals wishing to enter EU member states will immediately be classified as third-country nationals. Certain countries have already released contingency plans in anticipation of a no-deal Brexit, and we have identified trends among the proposals, such as, ‘grace periods’ which would allow individuals and employers to make necessary arrangements according to that member state’s registration scheme. However, grace periods and registration schemes will vary among member states, resulting in immigration inconsistencies across all EU member states.

We have summarized certain EU member state contingent positions below. EU member states have released only partial plans and decrees which must still be adopted into law. Please note that this information is tentative and subject to change:

Belgium

Belgium’s contingency plans for the treatment of UK nationals in Belgium after March 29, 2019 generally provides:

  • A grace period between March 30, 2019 and December 31, 2020 which would allow for UK nationals and their dependents residing in Belgium on March 29, 2019 to keep their current residence and work status as EU nationals;
  • Work rights are expected to be granted, but there are no published contingency plans;
  • UK nationals wishing to reside and work in Belgium post-Brexit would be subject to a regime based on reciprocity with the UK.

Finland

Finland’s contingency plans for the treatment of UK nationals in Finland after March 29, 2019 generally provides:

  • UK nationals who have registered their right of residence and are residing in Finland by March, 29, 2019 will have continued rights to remain and reside without additional measures for a certain grace period.

France

France’s contingency plans for the treatment of UK nationals in France after March 29, 2019 generally provides:

  • A grace period between three to twelve months for UK nationals to apply for a residence permit;
  • UK nationals residing in France for more than five years on March 29, 2019 will need to apply for a long-term residence permit;
  • UK nationals residing in France for less than five years by March 29, 2019 will have the opportunity to apply for different statuses depending on their purpose of stay in France;
  • UK nationals who do not qualify for a status will be eligible for visitor status, but no work status, provided they have the means and are covered by medical insurance.

Germany

Germany’s contingency plans for the treatment of UK nationals in Germany after March 29, 2019 generally provides:

  • UK nationals must hold a certain immigration status to continue residing/working in Germany;
  • Germany will waive the need for UK nationals living in Germany to hold a permit between March 30, 2019 and June 30, 2019;
  • UK nationals will retain the right to reside and work in Germany provided that their immigration application is timely filed and pending.

Netherlands

Netherlands’ contingency plans for the treatment of UK nationals in the Netherlands after March 29, 2019 generally provides:

  • A fifteen-month grace period for UK nationals residing in the Netherlands by March 29, 2019 to apply for a residence permit with the Immigration and Naturalization Service;
  • UK nationals residing in the Netherlands for five years or more are eligible to apply for a permanent residence permit under the same requirements as for EU nationals;
  • UK nationals residing in the Netherlands for less than five years will be eligible to apply for a temporary residence permit under the same requirements as for EU nationals residing in the Netherlands for longer than three months;
  • UK nationals wishing to work and reside in the Netherlands post-Brexit would be required to apply for residence and work authorization, however, no entry permit would be required (an application for residency can be submitted after arrival).

Spain

Spain’s contingency plans for the treatment of UK nationals in Spain after March 29, 2019 generally provides:

  • A transitional period where UK nationals will be provided the opportunity to maintain their residence and work rights in Spain with their current registration certificates and ID cards;
  • UK nationals and their dependents in Spain by March 29, 2019 may request a definitive residence document and will be issued a Foreigner Identity Card which will provide work and residence status through a work permit;
  • Spain seeks to safeguard certain social rights, such as, social security, healthcare, and studies, among others. Healthcare is one of the main areas that will be changing whilst Brexit is occurring, healthcare, this includes a change in healthcare cards, if you have lost a healthcare card then you will want to report stolen card, and perhaps order a new one and please note that changes to the card may appear in the future.

Switzerland

Switzerland’s contingency plans for the treatment of UK nationals in Switzerland after March 29, 2019 generally provides:

  • A quota amounting to 3,500 permits for UK nationals on local Swiss employment contracts seeking to enter Switzerland between March 30, 2019 and December 31, 2019;
  • The total quota would be divided between long-term and short-term work permits released on a quarterly basis.

Preparing Your Company

Companies are encouraged to work with Graham Adair professionals to prepare appropriate strategies for EEA employees. We recommend that companies closely monitor their European workforce and update Graham Adair in the event of any employee/employer changes. EEA nationals in the UK should apply for residency now to take advantage of streamlined processes for updating their current permanent residency document to a new residency document after the end of the transition period.

USCIS Announces H-1B Cap Season Start, Premium Processing Changes for FY 2020

United States Citizenship and Immigration Services (USCIS) has announced that Fiscal Year (FY) 2020 H-1B cap-subject petitions will begin being accepted on April 1, 2019. The agency has also announced several changes to the petition process:

Premium Processing

FY 2020 premium processing for cap-subject H-1B petitions will take place in two phases: (1) petitions requesting change of status and (2) all other petitions, such as those filed with consular processing. Petitioners will be able to concurrently file their request for premium processing with their H-1B petition. USCIS will begin processing these concurrent filings by May 20, 2019 at the latest. USCIS anticipates that it will begin processing all other cap-subject H-1B petitions in June 2019.

Employer Data Hub

USCIS will launch the H-1B Employer Data Hub on uscis.gov on April 1, 2019. In an effort to to provide additional transparency into the H-1B program, the public will be able to search for information including which companies sponsored H-1B employees and how many, as well as approval and denial rates.

Cap Selection

Earlier this year, the Department of Homeland Security (DHS) announced changes to the H-1B cap selection process with reference to petitions eligible for the advanced degree exemption. More information on these changes can be found here.

For further guidance or case-specific questions, please contact your Graham Adair representative. For more frequent updates, please follow us on Twitter (@GrahamAdairLaw).

USCIS Resumes Premium Processing for All H-1B Petitions

USCIS has announced that it will resume premium processing this Tuesday, March 12, 2019 for all H-1B petitions. This is the final step of a 3-stage reinstatement of premium processing for H-1B petitions. After the nearly 6-month suspension, which started last August, USCIS first began accepting premium processing on cap-subject H-1B petitions filed last year. Then last month it reinstated premium processing for any H-1B petition filed prior to December 21, 2018.

USCIS’s policy on premium processing suspensions began a year ago in April when it announced that cap-subject H-1B petitions could not be filed with premium processing. It then extended and expanded the suspension in August 2018 to include all H-1B petitions.

It remains to be seen if USCIS will be able to honor premium processing requests on the cap-subject H-1B petitions that will be filed starting April 1. Considering the many backlogged H-1Bs that will certainly interfile premium processing requests, we expect that USCIS will receive thousands of requests in the coming days. Coupled with that is the recent announcement that H-4 EADs will likely be going away soon and the new biometrics requirements for dependent spouses, so many of those corresponding H-1B extensions will likely be filed with premium processing as well.
USCIS’s rate hike on premium processing requests, from $1225 to $1410, is now in effect, so any new requests should be accompanied by the higher fee.
For further guidance or case-specific questions, please contact your Graham Adair representative. For more frequent updates, please follow us on Twitter (@GrahamAdairLaw).

Graham Adair Mentioned in Mercury News Article

The firm was recently mentioned in a Mercury News article entitled “H-1B visa: ‘Premium processing’ resumed for all eligible applications.” The U.S. Citizenship and Immigration Services had suspended the service in April, citing a backlog and surge in applications in recent years. The resumption took effect on March 12, 2019. To read the full article, click here.

USCIS Announces It Will Resume Premium Processing For H-1B Petitions Filed On Or Before Dec. 21, 2018

USCIS has announced that it will resume premium processing this Tuesday, Feb. 19, 2019 for all H-1B petitions filed on or before Dec. 21, 2018. If you requested premium processing service and received a transfer notice for a pending H-1B petition, then you must submit a premium processing request to the service center now handling the petition. If your petition was transferred and you send your premium processing request to the wrong center, USCIS will forward it to the petition’s current location. However, the premium processing clock will not start until the premium processing request has been received at the correct center.

Remember to include a copy of the transfer notice with your premium processing request to avoid delays. If you received a request for evidence (RFE) for a pending petition, you should also include the RFE response with the premium processing request.

USCIS has been slowly reinstating premium processing for H-1Bs, which started on Jan. 28, when USCIS resumed premium processing for FY 2019 cap-subject petitions, including those eligible for the advanced degree exemption. However, the temporary suspension of premium processing remains in effect for applicable H-1B petitions filed on or after Dec. 22, 2018.

If you have any questions, please feel free to contact your Graham Adair representative. For more frequent updates, please follow us on Twitter (@GrahamAdairLaw).

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Swiss-based Employers intending to hire British Citizen Workers could face Quota Restrictions from March 20, 2019

If the UK opts for a disorderly withdrawal from the EU in respect of BREXIT and no agreement is reached on immigration arrangements between Switzerland and the UK, then the current practice of Swiss-based employers hiring British citizen workers without quota restrictions in Switzerland will be disrupted.

To prepare for the above scenario in respect of BREXIT, the Swiss Federal Council intends to allocate separate work permit quotas to British citizens from March 30, 2019. The quotas, to be released quarterly, are slated to include 2100 B long-term permits and 1400 L short-term permits, which would be applicable from March 30 to December 31, 2019.

British citizens who relocate to Switzerland for work for the first time would be subject to the above quota restrictions as well as the Act on Foreign Nationals and Integration (similar to Non-EU/EFTA nationals). Swiss-based employers would thus need to take into consideration the work permit quota contingency for British citizen work-arrangements in Switzerland (and also determine alternatives where work permit quotas are not available).

On a positive note, British citizens already legally residing in Switzerland would remain protected under the Agreement on Free Movement of Persons (AFMP), and thus, the quota would not necessarily apply to them.

Where a withdrawal agreement on immigration arrangements is reached between the UK and Switzerland, a transitional period would ensure that the AFMP would continue to apply for an extended time, such as until the end of 2020. During this transitional period, Swiss-based employers would be able to continue hiring British citizens without the above noted quota-restrictions as new bilateral agreements are formed between Switzerland and the UK.

For the present time being it is uncertain whether or not there will be a BREXIT deal and whether a withdrawal agreement will be reached between the UK and Switzerland in respect of immigration arrangements. Swiss-based employers should plan accordingly and stay apprised of developments in this regard.

If you have any questions, please feel free to contact your Graham Adair representative. For more frequent updates, please follow us on Twitter (@GrahamAdairLaw).

USCIS to Publish Revised Form I-539 and New Form I-539A

The USCIS recently announced that it has revised its Form I-539, Application to Extend/Change Nonimmigrant Status. The new form will be available on the USCIS website on March 11, 2019. After that date, the USCIS will only accept the revised version of Form I-539.

Form I-539 is used for dependents of an H-1B visa applicant, who is changing visa status, or for dependents extending their current H-4 status.

Starting March 11, 2019, USCIS will ONLY accept the revised Form I-539 with an edition date of February 04, 2019. USCIS will reject a Form I-539 dated December 23, 2016 or earlier, and it appears that there is no grace period.

On March 11, 2019, it will also publish a new Form I-539A, Supplemental Information for Application to Extend/Change Nonimmigrant Status. Form I-539A replaces the Supplement A provided in previous versions of Form I-539. Form I-539A can only be submitted with Form I-539; it cannot be filed as a standalone.

According to the USCIS website, the revised Form I-539 will include the following significant changes:

  • Every co-applicant included on the primary applicant’s Form I-539 must submit and sign a separate Form I-539A, which will be available on the USCIS’s Form I-539 webpage on March 11, 2019. Parents or guardians may sign on behalf of children under 14 or any co-applicant not mentally competent to sign.
  • Every applicant and co-applicant must pay an $85 biometric services fee, except certain A, G, and NATO nonimmigrants as noted in the new Form I-539 Instructions to be published on March 11, 2019.
  • Every applicant and co-applicant will receive a biometric services appointment notice, regardless of age, containing their individual receipt number. The biometric services appointments will be scheduled at the Application Support Center (ASC) closest to the primary applicant’s address. Co-applicants who wish to be scheduled at a different ASC location should file a separate Form I-539.
USCIS will reject any Form I-539 that is missing any of the required signatures or biometrics fees, including those required for Form I-539A.
If you have any questions, please feel free to contact your Graham Adair representative. For more frequent updates, please follow us on Twitter (@GrahamAdairLaw).

Finland Immigration Strongly Recommends EU Registration for British Citizens

As Brexit negotiations continue, the Finnish Immigration Service has advised that British citizens currently residing in Finland complete the process of EU Registration as soon as possible in order to retain their right of residence in Finland. This registration is required for British citizens who stay in Finland for longer than three months.

British citizens who have resided legally in Finland for a minimum of five consecutive, uninterrupted years may apply for a Certificate of Permanent Residence as an EU citizen.

If you have any questions, please feel free to contact your Graham Adair representative. For more frequent updates, please follow us on Twitter (@GrahamAdairLaw).

New USCIS H-1B Cap Regulation Will Go Into Effect April 1, 2019

Today, United States Citizenship and Immigration Services (USCIS) published the final rule announcing a change in how the agency will handle the selection process for H-1B applications that are filed under the cap starting April 1, 2019. USCIS also announced that the implementation of the electronic pre-registration process will be delayed until further notice, and will not go into effect this year.

What is changing this year?
Beginning this year, USCIS will first conduct the general lottery drawing for all cases eligible for the 65,000 available H-1B visas. Once that lottery has been completed, USCIS will conduct the selection process for H-1B petitions eligible for the U.S. advanced degree lottery.  According to data from USCIS, this could lead to an increase of up to 16% in the selection of cases for individuals with a master’s degree or higher from a U.S. university.

What is not changing this year? 
There will be no electronic preregistration process for H-1B petitions this year. The process will likely be implemented in the future, but not until testing and vetting has taken place.

If you have any questions, please feel free to contact your Graham Adair representative. For more frequent updates, please follow us on Twitter (@GrahamAdairLaw).

Status of EU Citizens in Event of a “No Deal” Brexit

The UK government has released details on the status of EU citizens after March 29, 2019 in the event of a “No Deal” Brexit. EU citizens and their family members who are already UK residents by March 29, 2019 will be able to apply for Settled or Pre-Settled status, and will need to register by December 31, 2020. Switzerland, Lichtenstein, Iceland, and Norway citizens will also need to apply for Settled or Pre-Settled status after March 29, 2019.

EU citizens entering the UK after March 29, 2019 will be able to enter, but will need to apply for a Leave to Remain through the Home Office for European Temporary Leave to Remain if they intend to stay longer than 3 months. This temporary leave will be valid for up to 36 months, and will cover both work and study, however it will not be extendable, and will not lead to settlement. After these 36 months, EU citizens who intend to stay in the UK to work or study will need to qualify under the new immigration scheme.

If you have any questions, please feel free to contact your Graham Adair representative. For more frequent updates, please follow us on Twitter (@GrahamAdairLaw).

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