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).

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.

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).

DOL Updates H-1B Labor Condition Application and Worker Complaint Form

The United States Department of Labor (DOL) has announced updates to the H-1B Labor Condition Application form (Form ETA-9035) and the worker complaint form (Form WH-4), intended to promote business compliance and transparency with the H-1B program.

The Labor Condition Application Form will require new details about H-1B worker employment, including the following:

  • All places of employment for H-1B workers, including short-term positions.
  • Estimated number of H-1B workers at each intended place of employment.
  • Clear identification of secondary entities using H-1B workers.
  • Documentation of H-1B workers’ degrees, for employers who claim exemption solely on the basis of education.

The worker complaint form will include new fields for further details about alleged H-1B program violations.

The Office of Foreign Labor Certification will announce the date of the new forms’ availability on their website in the coming weeks.

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).

F-1 Students Waiting on H-1B Petitions No Longer Authorized to Work

As of October 1, 2018, F-1 students who received a “cap-gap” extension and still have pending H-1B petitions no longer have work authorization. The “cap-gap” extension, which is intended to help bridge the gap between F-1 and H-1B status, expired on September 30, 2018.

F-1 students can still remain in the U.S. while they await status changes in their H-1B petitions without accruing unlawful presence, however they cannot be employed. F-1 students with work authorizations that extend past the September 30 deadline, such as an appropriately dated I-765, may continue to work per their authorization guidelines.

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).

Sam Adair Quoted in Quartz on H-1B Visa Spouses

Sam Adair was recently quoted in Ananya Bhattacharya’s Quartz article “In three months, H-1B spouses end up jobless — again.” In the article, Sam discusses the various hurdles that immigrants will face due to upcoming immigration reform, such as increased wait time for visas.
“For an H-4 spouse looking at a 10-year wait to get a green card, that is an incredibly long time to be forced to sit out of the job market,” said Sam.
To read the full article, click here.

USCIS Raises Premium Processing Fee

United States Citizenship and Immigration Services (USCIS) has announced that it will increase the premium processing fee for Form I-129 (Petition for a Nonimmigrant Worker) and Form I-140 (Immigrant Petition for Alien Workers). The fee will increase from $1,225 to $1,410, effective October 1st, 2018.

USCIS states that the fee is increasing in accordance with the percentage change in inflation (14.92%) since it was last changed in 2010. The agency’s Chief Financial Officer Joseph Moore explains that the adjustment will allow USCIS to hire more staff and make improvements in technology “to administer various immigration benefit requests more effectively and efficiently.”

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).

USCIS Extends Suspension of H-1B Petition Premium Processing

United States Citizenship and Immigration Services (USCIS) previously announced that premium processing for cap-subject H-1B petitions for fiscal year 2019 would be suspended until September 10, 2018. However, the suspension has been extended and expanded to cover other H-1B applications and is now expected to last until February 19, 2019.

With very limited exceptions, this new suspension of premium processing will cover almost all H-1B applications, except those outlined below. USCIS states that the suspension will help reduce overall H-1B processing times by prioritizing long-pending and time-sensitive cases. This affects all H-1B petitions filed at the Vermont and California Service Centers, excluding the exemptions noted below.

Exemptions
The premium processing suspension does not apply to the following:

  • Cap-exempt petitions that are filed exclusively at the California Service Center for beneficiaries that will be employed by a cap-exempt employer or a qualifying cap-exempt organization, institution, or entity.
  • Petitions that are filed exclusively at the Nebraska Service Center by an employer requesting “Continuation of previously approved employment without change with the same employer.”
  • H-1B cases that are currently filed under premium processing will continue to be processed until September 11, 2018. At that point, if they are not adjudicated, USCIS may suspend premium processing on those cases and refund the premium processing government filing fees.

Petitioners may submit a request to expedite their H-1B petition if they can provide documentation that they meet at least one of the criteria from the USCIS. If there is a need to expedite a case, please speak with your attorney to submit the expedite request. These requests will be reviewed on a case-by-case basis by the USCIS.

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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