Premium Processing Resumes for FY 2019 H-1B Cap Petitions

On Monday, January 28, United States Citizenship and Immigration Services (USCIS) will resume premium processing for all fiscal year (FY) 2019 H-1B cap petitions. This includes petitions eligible for advanced degree exemption. If a petitioner receives a request for evidence (RFE), they should include their response to the RFE with their request for premium processing. Premium processing for all other types of H-1B petition is still temporarily suspended, and USCIS will announce when the suspension is lifted.

What is premium processing?
Premium processing guarantees a processing time of 15 days for H-1B petitions. If certain action has not been taken within that 15 day window, the petitioner’s premium processing fee is refunded and the petition continues on an expedited processing track.

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

France’s New Immigration Law Increases Restrictions on Intra-Company Transfers

Employers of foreign workers in France should take note of increased restrictions placed on Intra-Company Transfer (ICT) Work Permits (Secondment) pursuant to the implementation of France’s 2018 Asylum and Immigration Law, which will go into effect on March 1, 2019.

The ICT Work Permit (Secondment) provides an avenue of mobility for an employee from a company outside of France to be transferred to a company in France that belongs to the same corporate group.

Under the 2018 Asylum and Immigration Law, restrictions on the ICT Work Permit (Secondment) will be increased as follows:

  • Assignee must have at least six (6) months of seniority within the group companies outside of France (comparison: changed from at least three (3) months);
  • The maximum time period for the corresponding residence permit is three (3) years and such residence permit is nonrenewable (comparison: previously the nonrenewable aspect for residence permits was not clearly stated); and
  • For an assignee to undertake a follow-up secondment, there must be a cool-off period of at least six (6) months where the assignee has resided outside of France (comparison: previously there was no cool-off period requirement).

Employers of foreign workers in France should identify which current and potential employees may be affected by the increased restrictions in respect of ICT Work Permits (Secondment) and plan accordingly.

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

UK: Public Test Phase of EU Settlement Scheme Goes Live and Fee Removed

The first public test phase for the EU Settlement Scheme went live on January 21, 2019.

At present, eligible applicants only include (i) EU citizens who have a passport embedded with a biometric chip; and (ii) non-EU family members who have UK residence cards embedded with biometric chips.
Irish citizens may apply during the current phase, but are not required to do so. Citizens of Norway, Switzerland, Liechtenstein, and Iceland (and family members) cannot apply until a later stage.

Eligible applicants must use the EU Exit: ID Document Check App on an Android smart device to check their biometric chip embedded passport or UK residence card. If the biometric chip is damaged or defective, the respective applicant may send identity documents to the Home Office for inspection. Upon the EU Settlement Scheme being fully rolled out, the EU Exit: Document Check App will then become optional and applicants can choose to post identity documents to the Home Office instead of using the app.

In respect of applications, the Home Office will work to verify eligibility for settled or pre-settled status by cross-checking residency in the UK according to National Insurance numbers, HMRC, and/or DWP records. Where documentation is insufficient to confirm eligibility, uploading of additional supporting documentation may be permitted within limits.

In related news, in a recent speech at the House of Commons, Prime Minister Theresa May stated that when the EU Settlement Scheme is rolled out in full on March 30, 2019, the UK government will waive the application fee. Further, for EU citizens who have already applied during the pilot phase, fees paid will be reimbursed. The intent of these changes is to remove financial barriers for EU citizens seeking to stay in the UK.

If you have any questions, please feel free to contact your Graham Adair representative.

Brexit Deal or No Deal – Transition Period in Netherlands may Soften Impact on Resident British Nationals under No Deal Scenario

Current and future employers of British nationals in the Netherlands will likely be impacted by the Brexit deal or no deal scenarios between the EU and UK.

At present, British nationals and their non-EU family members are not required to obtain residence permits in the Netherlands, although EU citizens are required to register as EU citizens. However, this arrangement would likely change if no deal is reached regarding Brexit between the EU and UK.

If a Brexit deal is not reached, British nationals (and their non-EU family members) residing and working in the Netherlands will be required to obtain residence permits. Accordingly, under this scenario, the Netherlands Immigration and Naturalization Service (IND) would commence a transition period for British nationals and their non-EU family members, starting from Brexit Day, March 29, 2019, and lasting until July 1, 2020.

During the transition period, British nationals and their non-EU family members would be allowed to maintain residency, employment, and study rights in the Netherlands. Prior to March 29, 2019, Dutch authorities intend to send out official letters, which would serve as proof of temporary residence. These official letters would remain valid until July 1, 2020. However, after July 1, 2020, British nationals would be required to have obtained Dutch residence permits in order to work in the Netherlands. The application process for such residence permits would mean that British nationals would be required to meet the same eligibility requirements as EU citizens (including sufficient income, health insurance, payment of applicable fees, and so on).

To facilitate the application for residence permits under the no deal scenario, Dutch authorities intend to send out a notice letter by April 1, 2020, notifying individuals to apply for residence permits. Non-EU family members of British nationals who are also living in the Netherlands would also likely be required to obtain residence permits.

Employers of British nationals in the Netherlands must stay abreast of developments in any Brexit agreement, and ensure proper measures are timely taken so that British national employees and their non-EU family members maintain proper immigration status in light of the Brexit situation.

Regarding EU citizens in the UK, pursuant to a UK government policy paper dated December 6, 2018, EU citizens residing in the UK by March 29, 2019 will remain eligible to participate in the EU Settlement Scheme even under a “no deal” scenario. Accordingly, those EU citizens residing in the UK by March 29, 2019 will have until December 31, 2020 to apply and register for “Settled” (if they have lived in the UK for more than five years) or “Pre-Settled” status (if they have lived in the UK for less than five years). Other EU citizens who enter the UK after March 29, 2019 will be treated differently in that only British laws will apply to them in respect of their immigration status.

If you have any questions, please feel free to contact your Graham Adair representative.

Government Shutdown Would Impact Immigration

A partial government shutdown could occur tonight at midnight if Congress and the President do not reach an agreement on a spending bill or continuing resolution. Although the House passed a spending bill on Thursday night, the Senate will likely reject the spending bill, since it includes $5 billion for the proposed U.S.-Mexico border wall.

If there is a shutdown, it will have the most significant impact on our clients who are starting H-1B petitions or have PERM applications in the works, as the Department of Labor will be shut down. This will most likely lead to delays in case processing. The impact of the delays will depend largely on how long the shutdown lasts. 

We are following this situation carefully. Shutdowns can harm persons seeking immigration benefits. We are undertaking measures to ensure any impact to our clients is minimal. For more frequent updates, please follow us on Twitter (@GrahamAdairLaw).

EU Settlement Scheme and Immigration Impact

Companies with European Union (EU) citizen employees in the United Kingdom (UK) and/or with UK citizen employees in the EU need to be aware of the impact of the potential deal reached between the UK government and the EU, the EU Settlement Scheme.

If the EU Settlement Scheme is approved by the UK Parliament (set to take place by Dec 21, 2018), after the UK leaves the EU on March 29, 2019, then EU citizens residing in the UK and UK citizens residing in the EU would be able to continue to be residents in the UK or EU, respectively, without material impediment.

The approval or non-approval of the EU Settlement Scheme could result in varying scenarios. 

Scenario One: EU Settlement Scheme Approved

For those EU citizens who entered the UK prior to Dec 31, 2020 (and have no serious criminal convictions), such persons would be eligible to obtain pre-/settled status. The EU Settlement Scheme is slated to become operational from March 30, 2019, and would likely give EU citizens (and their family members) a grace period to apply for pre-/settled status until June 30, 2021.  

Scenario Two: EU Settlement Scheme Not Approved

If there is not a deal reached, EU citizens residing in the UK by March 29, 2019 would still have their rights fully protected by the UK government. For EU citizens, however, there would not be an implementation period and EU citizens would only have until Dec 2020 to complete an application. 

Close Family Members of EU Citizens

Spouses and children of EU citizens with settled status can be joined in the UK until March 29, 2022, only if the relationship existed by March 29, 2019 (and continued to exist up to the time of application).  

To join EU citizen family members after March 29, 2022, the spouses and children will need to apply under UK Immigration Rules.  

Benefits and services will still be accessible for those EU citizens and family members lawfully residing in the UK by March 29, 2019. 

EU Identity Cards & UK Entry

Although EU identity cards will remain valid after January 1, 2021, after the UK government introduces its new immigration system, it is uncertain that EU citizens will still be able to use their national ID cards for UK entry. 

For further information on how this may affect your business, please consult with our attorneys. For more frequent updates, please follow us on Twitter (@GrahamAdairLaw).

Changes to Singapore S Pass Qualifying Salaries

Singapore’s Ministry of Manpower (MOM) has provided new minimum qualifying salary requirements for S Pass eligibility. Companies sponsoring foreign workers with S Passes in Singapore should note the following changes and their effective dates:

  • Effective January 1, 2019, the minimum qualifying salary for an S Pass will increase from SGD 2,200 to SGD 2,300 per month.
  • Effective January 1, 2020, the minimum qualifying salary for an S Pass will increase from SGD 2,300 to SGD 2,400 per month.

Companies should also note the following S Pass renewal requirements:

  • S Passes set to expire between January 1 and June 30, 2019 may be renewed for up to one year.
  • S Passes set to expire between July 1 and December 21, 2019 may be renewed if they meet the new minimum qualifying salary of SGD 2,300 per month.

Companies can use the MOM’s Self-Assessment Tool to check employee S Pass eligibility. For further information on how this may affect your business, please consult with our attorneys. For more frequent updates, please follow us on Twitter (@GrahamAdairLaw).

Chad Graham Quoted in San Francisco Chronicle on Proposed H-1B Visa Changes

Chad Graham was recently quoted in Melia Russell’s San Francisco Chronicle article “H-1B visa shift may favor tech companies.” In the article, Chad discusses the steps employers should take to comply with the upcoming changes to the H-1B program. He also comments on USCIS’ relatively short notice and public comment period, saying it likely “means they want to push it for this year.”

To read the full article, click here.

DHS Proposes Rule Affecting H-1B Selection Process

Today, the Department of Homeland Security (DHS) announced a notice of proposed rulemaking that affects all H-1B visa petitioners subject to the cap.

Electronic Registration
The proposed rule would require H-1B visa petitioners to electronically register with U.S. Citizenship and Immigration Services (USCIS) during a registration period. It is important to note that this rule provides significant leeway for USCIS to not implement this registration requirement for H-1B cap cases filed in April 2019. Considering the mandatory notice and comment period, followed by system testing, there likely will not be much advance notice. Companies should plan accordingly and be prepared for either scenario. USCIS anticipates that this change would help reduce the wait time for notifying applicants of cap selection.

Reversal of Selection Order for Advanced Degree Holders
The proposed rule also reverses the order by which H-1B petitions counted towards the cap are selected. Currently, when the H-1B cap and advanced degree exemption are both reached within the first five days of the filing period, petitions towards the advanced degree exemption are selected first. Under the proposed rule, all registrations or petitions would be counted towards the H-1B cap first. Once the cap is reached, USCIS would select registrations or petitions towards the advanced degree exemption. According to USCIS, the proposed change would lead to an estimated increase of up to 16 percent, or about 5,340 workers, in successful H-1B petitioners with a master’s degree or higher from a U.S. institution.

For further information on how this may affect your business, please consult with our attorneys. For more frequent updates, please follow us on Twitter (@GrahamAdairLaw).

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