Australia Updates: Temporary Skill Shortage (TSS) Visa & Skilled Occupation List

As we are now well aware, the Temporary Skill Shortage (TSS) visa is scheduled to replace the Subclass 457 visa in March 2018. There will be 3 streams available under TSS, and they are as follows:

(1) Short-term stream: this is for employers to source genuine temporary overseas skilled workers in occupations included on the Short-term Skilled Occupation List (STSOL) for a maximum of 2 years (or up to 4 years if an international trade obligation applies); OR

(2) Medium-term stream: this is for employers to source highly skilled overseas workers to fill medium-term critical skills in occupations included on the Medium and Long-term Strategic Skills List (MLTSSL) for up to 4 years, with eligibility to apply for permanent residence after three years; OR

(3) Labour Agreement stream: this is for employers to source overseas skilled workers in accordance with a labour agreement with the Commonwealth, on the basis of a demonstrated need that cannot be met in the Australian labour market and standard visa programs are not available, with the capacity to negotiate a permanent residence option.

NOTE: the Australian Department of Home Affairs (DHA) has confirmed that Labour Market Testing (LMT) exemptions based on occupation will NOT be available under the TSS visa.

However, LMT will not apply if it conflicts with Australia’s international trade obligations. For example, LMT exemptions will still apply if the worker nominated is a citizen/national of China, Japan or Thailand, or is a citizen/national/permanent resident of Chile, South Korea, New Zealand or Singapore.

In order to streamline processing of TSS and other temporary skilled work visas, measures are in place that include: a new standard 5-year sponsorship agreement period, a new streamlined renewal process for existing sponsors, and an automatic approval of lower-risk nomination applications lodged by accredited sponsors.

In addition, provisions are in place to assist with the transition to TSS visa. Notable provisions include:

  • All Subclass 457 nominations and visa applications lodged prior to TSS implementation will be processed under the current framework.
  • If a Subclass 457 nomination application is lodged without an associated 457 visa application being lodged before the commencement of TSS, it will effectively become “redundant” as Subclass 457 nominations cannot be linked to TSS visa applications. This applies even where the nomination has already been approved.
  • Employers who are already approved standard business sponsors for Subclass 457 will be immediately able to sponsor skilled overseas workers under the TSS visa program.
  • Subclass 457 visa holders who are to change occupations or need a new visa will be required to lodge a new TSS visa application and reference a new TSS nomination application.
  • Subclass 457 visa holders that will change employer after the implementation of TSS visa can have their new employer lodge a TSS nomination application and link it to the existing 457 visa.
  • Dependents will be able to lodge TSS visa dependent visa applications linked to pending 457 visa applications or linked to current 457 visa holders.

Skilled Occupation Lists 

Updates to the skilled occupation lists for both temporary and permanent skilled visas went into effect on January 17. These updates will only apply to applications lodged after January 17 and will not apply to pending applications. More details can be found directly at the DHA website at https://www.homeaffairs.gov.au/trav/work/work/2018-changes-of-eligible-skilled-occupations.

We can expect the next set of occupations lists to be published in March 2018. For more frequent updates, please follow us on twitter (@GrahamAdairLaw).

Immigration Issues and Government Shutdowns

At midnight on Saturday January 20, 2018, the federal government went into a limited shutdown because Congress failed to pass an appropriations bill. As of the time of this email the Senate has voted to reopen the government through February 8, 2018. Although most agencies remain shut down today, we anticipate that they will reopen starting tomorrow.

The bill passed today will fund the government through February 8, 2018. Between now and then it is expected that Congress will take up some contested issues around immigration. Because these high-profile issues are at the forefront, we could see a series of short-term funding bills to keep pressure on both sides to negotiate a final resolution of these immigration issues. This could lead us to other shutdowns in the coming weeks.

We are monitoring this situation very closely. When there are shutdowns, it can harm those seeking immigration benefits. We are taking precautions to be sure the impact to our clients is minimal. For more frequent updates, please follow us on twitter (@GrahamAdairLaw).

Sam Adair Talks to Bloomberg BNA About the Travel Ban’s Impact on Businesses

Sam Adair was recently quoted in Laura Francis’s Bloomberg BNA article “More Uncertainty for Businesses Now That Travel Ban Allowed.” In the article, Sam explains how businesses and employers will be impacted by the Supreme Court’s decision to put President Trump’s travel ban into effect, and discusses which countries will be affected the most. “This is really the first of the travel bans that’s going to be allowed to take essentially full effect,” he says.

Click here to read the full article.

Supreme Court Rules to Allow President Trump’s Travel Ban to Take Full Effect

The Supreme Court of the United States (SCOTUS) has lifted the injunctions on President Donald Trump’s travel ban, which targets people from six countries, while legal challenges continue in lower courts. The 4th and 9th U.S. Circuit Court of Appeals will be holding arguments on the legality of the ban this week. What is not clear today is whether previous exemptions for those with a significant tie to the U.S. (through employment or immediate family members) would be applicable in this case. We will be providing updates here as they become available.  

Read our previous update for more information about the travel ban.

Switzerland: Increased Work Permit Quotas for 2018

The Swiss Federal Council has released the following work permit quotas effective January 1, 2018:

 

Non-EU (European Union)/EFTA (European Free Trade Area) Nationals

  • B Permits: 3500 long term permits (an increase of 500);
  • L Permits: 4500 short term permits (no increase);

EU/EFTA Nationals

  • B Permits: 500 long term permits (an increase of 250);
  • L Permits: 3000 short term permits (an increase of 1000).

 

The above permits apply for assignments of greater than four months or 120 days. 

In light of the increased and consistent demands for work permits in Switzerland, the increase in quota levels may still not be enough to meet the demand.  Shortages are still expected towards the end of the next calendar year once the quota levels run low.

Please reach out to the attorney overseeing your case or Meg Jalandoni for advice on next steps, and follow us on Twitter for real-time updates as they become available.

Suspension of Non-Immigrant Visas for U.S. Citizens to Turkey

The United States and Turkey have both suspended all non-immigrant visas effective immediately on October 8, 2017. The indefinite suspension prevents Turks from traveling to the US, and vice versa, on non-immigrant visas, which include tourist, business, student, and official/diplomatic visas. This applies to all sticker visas, electronic visas, and border visas.

The suspensions were prompted by the recent arrest in Istanbul of a U.S. consulate employee, who is a Turkish national. The arrest was made in connection with the employee’s alleged ties to cleric Fethullah Gulen, who has been in exile from Turkey and living in the U.S. since 1999. The Turkish president has blamed Gulen for last year’s military coup attempt in the country, and has pushed for the US to extradite him.

Please reach out to the attorney overseeing your case or Sam Adair for advice on next steps, and follow us on Twitter for real-time updates as they become available.

Graham Adair Named a 2017 Fastest Growing Private Company in Silicon Valley

Graham Adair has been recognized by the Silicon Valley Business Journal as one of the top 50 fastest growing private companies in Silicon Valley for 2017. The rankings of these companies, based on percentage growth from 2014 to 2016, will be announced on October 19.

Every year, the Silicon Valley Business Journal compiles a list of the 50 fastest growing private companies in Silicon Valley. In 2016, Graham Adair was ranked as the 20th fastest growing private company.

See the complete, unranked list of fastest growing private companies for 2017 here.

Presidential Proclamation Further Restricts Travel into United States

On Sunday, September 24, 2017, the president, Donald J. Trump, issued a Proclamation that will have an impact on some of our clients. This Proclamation replaces the previous Executive Orders restricting admissions to the U.S. of citizens of certain designated countries.

Who is Impacted

The new Proclamation will restrict admission to the United States for an indefinite period for certain citizens of the following countries: Chad, Iran, Libya, North Korea, Syria, Venezuela, Yemen, and Somalia. The travel restrictions under this proclamation vary depending on the country of citizenship and will be outlined in more detail below for each country.

  1. Chad: The entry into the U.S. of nationals of Chad is suspended for both immigrants, and as nonimmigrants on business (B-1), tourist (B-2), and business/tourist (B-1/B-2) visas.
  2. Iran: The entry into the U.S. by Iranian nationals as both immigrants and nonimmigrants is suspended. One exception to this for Iranian nationals are those who are coming to the U.S. on valid student (F and M) and exchange visitor (J) visas.
  3. Libya: The entry into the U.S. of nationals of Libya is suspended for both immigrants, and as nonimmigrants on business (B-1), tourist (B-2), and business/tourist (B-1/B-2) visas.
  4. North Korea: The entry into the U.S. of nationals of North Korea as immigrants and nonimmigrants is suspended.
  5. Syria: The entry into the U.S. of nationals of Syria as immigrants and nonimmigrants is suspended.
  6. Venezuela: The entry of certain government employees of the government of Venezuela and their immediate family members are suspended as well as nonimmigrants on business (B-1), tourist (B-2), and business/tourist (B-1/B-2) visas. Other travelers from Venezuela will be subjected to additional security measures which will likely mean delays in visa issuance and secondary inspection upon arrival at the airport.
  7. Yemen: The entry into the U.S. of nationals of Yemen is suspended for both immigrants, and as nonimmigrants on business (B-1), tourist (B-2), and business/tourist (B-1/B-2) visas.
  8. Somalia: The entry of nationals of Somalia as immigrants is suspended. Additionally, visa adjudications for nationals of Somalia and decisions regarding their entry as nonimmigrants will be subject to additional scrutiny and delays. They are likely to face secondary inspection upon arrival in the U.S.

The order specifically exempts the following categories of people:

  • Lawful permanent residents of the United States;
  • Any foreign national who is admitted to or paroled into the United States on or after the effective date of this order;
  • Any foreign national holding a document other than a visa that is valid on the effective date of this order or issued at any time there after that permits travel to the U.S. (such as an advanced parole document);
  • Any dual national of a designated country who travels to the U.S. on their passport from a non-designated country;
  • Any foreign national who has been granted asylum; any refugee who has already been admitted to the United States; or anyone granted coverage under the Convention Against Torture; or
  • Anyone traveling on a diplomatic or diplomatic-type visa.

The proclamation does list out possible waivers available in limited circumstances that may be available to those impacted by this travel ban, however, at this time it is not clear what the process will be to apply for a waiver and how regularly or freely they will be given. We will continue to monitor developments on this front and update clients accordingly. If you have questions about whether you are covered under this travel ban you should reach out to the attorney overseeing your case or Sam Adair for advice on next steps. Graham Adair is closely monitoring any new developments and we will release information as it becomes available. Please check back to our website for further updates and follow us on Twitter for real time updates as they become available.

USCIS Resumes Premium Processing for Some Categories of Applicants Seeking H-1B Visas

U.S. Citizenship and Immigration Services (USCIS) has resumed premium processing of all H-1B visa petitions that fall under the Fiscal Year 2018 cap. Set at 65,000 visas, the 2018 cap was reached in April. Premium processing was also resumed for the 20,000 petitions annually set aside for workers with a master’s degree or higher educational degree from the United States.  If your H-1B petition was filed under the FY2018 cap and has not yet been adjudicated it is now eligible for premium processing.  

Additionally, USCIS had previously resumed premium processing for H-1B petitions filed on behalf of physicians under the Conrad 30 waiver program, H-1B cap exempt employers and for interested government agency waivers. Processing for all other H-1B petitions remains temporarily suspended; however, USCIS indicates that premium processing for other H-1B applications will resume in the near future.  

Please reach out to the attorney overseeing your case or Sam Adair for advice on next steps, check our website for further updates, and follow us on Twitter for real-time updates as they become available.

Trump Rescinding DACA

It was announced on September 5, 2017 that the executive order on the Deferred Action on Childhood Arrivals (DACA) would be rescinded by the Trump Administration on March 5, 2018. This summary is provided to employers who may have employees currently working on Employment Authorization Documents (EADs) that were issued pursuant to DACA. This summary only addresses issues relating to employees who currently hold work authorization pursuant to DACA and not to any new potential applicants for DACA.

First, the rescission of DACA will go into effect on March 5, 2018. The USCIS will continue to accept DACA EAD extension requests until October 5, 2017. Any currently valid EAD cards will continue to be valid through their current expiration dates. Any applications that are filed and received by October 5, 2017 for extensions of previously approved DACA EADs should be granted for an additional two years. These applications for extensions can be filed 180 days prior to the expiration date on the current document.

We recommend that no one who has been granted DACA travel outside of the U.S. even if they are in possession of a valid Advanced Parole document that was previously issued. All pending Advanced Parole travel document applications will be administratively closed and refunded. The administration seems to be signaling that travel is not advisable and since we cannot control the risk here, we are advising against any international travel.

We recommend that you attempt to identify any employees currently working pursuant to DACA, and that they be informed that they can speak to one of the attorneys at Graham Adair about their status in order to determine what steps, if any, can be taken to protect their status going forward. This should happen as soon as possible to ensure that all eligible extensions are filed by October 5, 2017.

While this does give Congress some time to act and to legislatively protect the work authorization and status of these individuals, it is not a significant amount of time and therefore any employees currently working pursuant to DACA may be forced off of payroll when their EAD cards expire. We recommend that companies confirm that their I-9 re-verification processes are active and in place to catch any potential issues with expiring work authorization cards.

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