RELIEF Act Introduction Brings Both Senate Immigration Bills To Standstill

The journey of H.R.1044/S.386 through the Senate hit another roadblock as S.2603, the Resolving Extended Limbo for Immigrant Employees and Families (RELIEF) Act, was brought up for a vote by unanimous consent. At least one senator objected, blocking the unanimous consent fast-track and stalling both bills for the time being. A unanimous consent vote on H.R.1044/S.386 was originally expected to be held on Thursday, October 17th.

The RELIEF Act was introduced to address the massive green card backlog, with the goal of eliminating the backlog over five years. Building on S.744, the 2013 bipartisan comprehensive immigration reform bill, the bill would clarify spouses and children of Legal Permanent Residents as immediate relatives and exempt “derivative beneficiaries” of employment-based petitions from the annual caps that contribute to the backlog. It would also protect children who qualify based on a parent’s petition from “aging out” while waiting for approval, helping to keep families together.

We will continue to monitor developments and share updates as more information becomes available. If you have any questions, please feel free to contact your Graham Adair representative. For more frequent updates, please follow us on Twitter (@GrahamAdairLaw).

Amended Public Charge Rule Will Not Go Into Effect on October 15th

Earlier this afternoon, a federal judge in New York issued an injunction against the recently amended “public charge” rule. We discussed the amended public charge rule a few weeks ago. People deemed to be a public charge may be prevented from applying for permanent residency. The amended rule altered the definition of “public charge” to include an individual who receives one or more designated public benefits for more than 12 months, in the aggregate, within any 36-month period. Additionally, it was broadened to include many common services, such as public housing assistance, food stamps, supplemental income, and certain Medicaid costs.

The temporary injunction issued today will prevent the amended public charge rule from taking effect on Oct. 15.

The rule is being challenged in several federal courts by immigrants’ rights groups and more than a dozen state attorneys general. While the public charge requirement has been a long-standing rule, it has not previously been defined this specifically.

As the rule continues working its way through the court system, we will continue to monitor it and provide updates. But for now, people filing for permanent residency will not be subjected to the newly amended public charge rule.

For more frequent updates, please follow us on Twitter (@GrahamAdairLaw).

UPDATED: Fairness for High Skilled Immigrants Act Goes Before Senate

UPDATED 9/20/19
H.R.1044/S.386 went before the Senate on Thursday and was blocked by a Senator who expressed unenumerated concerns about how the new rules would impact specific industries. Leading proponents of the bill say they will work to address those concerns and bring it up for a vote again next week. We will continue to monitor developments and share updates as more information becomes available.

9/19/19
After passing the House with 365 bipartisan votes, H.R.1044, the Fairness for High Skilled Immigrants Act will be brought before the Senate today, September 19, 2019 as S.386. U.S. Senators Mike Lee and Kamala Harris have led negotiations with Senator Rand Paul, who agreed to remove his hold on the bill after reaching a reasonable compromise.

H.R.1044/S.386 would remove the per-country quotas for employment-based immigrant visas, reducing the green card backlog. The per-country quota currently remains at 7% of total annual green cards, meaning Iceland (pop. ~338,000) has the same quota as India (pop. ~1.3 billion). The resultant backlog has resulted in extreme wait times and uncertainty for employers that rely on highly-skilled immigrants. Eliminating the quotas and backlog is intended to ensure that the United States continues to attract top talent from around the world.

The bill is expected to be brought up by Unanimous Consent, expediting the process. We will continue to monitor developments and share updates as more information becomes available.

BREXIT: Anticipated Changes Under New PM Boris Johnson

Mr. Boris Johnson was elected as the new PM of the UK in July 2019 after former PM, Theresa May, stepped down. Much of the angst surrounding the UK in light of the PM switch has been how Brexit would be handled.

Previously, under PM Theresa May, the UK was set to leave the EU on March 29, 2019. Theresa May’s government had plans in place in the event of a no-deal Brexit allowing free movement of EU nationals until January 2021 and offering an EU Settlement Scheme. After many failed attempts to pass a resolution, the UK leave date was delayed to October 31, 2019 with, or without, a deal.

Former PM Theresa May’s plans in the event of a no-deal Brexit included free movement until January 2021 and a grace period where EU nationals could apply for settled status up until December 31, 2020. The Government’s previous plans in the event of a no-deal Brexit, however, are now being significantly altered by the PM Boris Johnson’s Government signifying that a no-deal Brexit would include ending free movement immediately on October 31, 2019, and that the UK will absolutely leave no matter what. The Government further notes that it does not have an immigration plan in place on how a new system will impact EU national residents before and after exit day– this poses a chaotic scenario for several UK-based companies with international employees from the EU given that there are only 73 days left until the October 31, 2019 deadline.

As of now, there are no signs as to what a new immigration system would look like that will replace free movement, leaving significant unclarity as to how UK-based companies will move EU national employees into the UK after the deadline. The deadline to apply for settled status is still December 31, 2020. However, there will be many EU nationals traveling after October 31, 2019 who will not be able to establish that they have been a resident in the UK before exit day (a key factor and benefit of “free movement”). In addition to the new changes, it is unclear whether new EU arrivals will be able to work in the UK after October 31 meaning UK businesses will have no idea whether they can recruit EU nationals for openings after the exit date. The UK Home Office indicates that new plans will be announced very soon.

In light of this scenario, UK employers are encouraged to have their EU national employees, and their family members, apply for settled status under the EU Settlement Scheme. Those who have lived in the UK for extended periods of time may be able to apply for Permanent Residence or even citizenship, avoiding the requirements of the new system.

We at Graham Adair Inc. are dedicated to helping businesses support employees through Brexit and are closely monitoring the volatile Brexit changes. Please contact us at Graham Adair Inc. as we are closely connected with our UK Local Office and are open to answering questions.

Brexit Update: Visa-Free Travels From UK to EU

In light of Brexit, the EU has rolled out and approved an immigration-friendly draft law that allows UK nationals to travel to the EU without the need for a visa. The EU approved the draft law on April 04, 2019 in the midst of Brexit discussions. The approved draft law exempts UK nationals from needing a visa to enter the EU for short visits for up to ninety days, in any 180-day period, for business, tourism or to visit relatives or friends. The law does not, however, provide work authorization nor does it permit stays in the EU for longer than 90-days.

This law adds the UK to the list of countries whose nationals are exempted from needing to apply for a short-term visa. Looking into the future, after January 01, 2021, UK nationals will need to apply for ETIAS travel authorization before traveling to the EU. This law will take effect once the UK leaves the EU and is dependent on reciprocity, thus, if the UK requires EU nationals to apply for a visa, then the EU will reintroduce visa requirements for nationals of the UK seeking entry into the EU.

The application of the draft law extends to all EU member states, except Ireland, and extends to the non-EU Schengen countries, Iceland, Liechtenstein, Switzerland, and Norway. UK and Ireland nationals will continue to benefit from the 1949 Ireland Act which provides visa-free travel to Ireland and the UK, even if the UK leaves the EU with or without a deal.

We will continue to monitor updates of this development to determine whether the draft legislation will be formally adopted and published in the Official Journal of the EU.

Brazil Visa Exemption Announcement

Effective June 17, 2019, nationals from the following countries no longer require a visa to enter Brazil for business, tourism, artistic, sporting activities, and activities that are deemed to be in the national interest, for up to 90 days: USA, Australia, Canada, and Japan. Any national from these aforementioned countries will still require a visa up until the exemption takes effect.

PLEASE NOTE: The activities allowed under the visa exemption are very limited. The exempted nationals can only attend business meetings, conferences, and to visit clients, potential buyers, or customers. The exemption does not cover training, technical assistance, transfer of technology, installation, repairs, etc. Violations can result in detainment, deportation, and a significant fine. Please contact our office so that our attorneys may analyze and discuss whether your travels will fall under the exemption.

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.

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).

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).

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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