Department of Homeland Security Publishes Updated Regulatory Agenda
At the end of October 2018, the Department of Homeland Security ("DHS") published an updated regulatory agenda that aligns with President Trump's "Buy American and Hire American" executive order. Areas that will see key changes with the agenda include:
- H-1B lottery program: The proposed rule would require companies to preregister for the H-1B lottery prior to submission of petitions. Only companies selected for the lottery would be permitted to submit cap-subject petitions. In addition, the agency has proposed reversing the order of the bachelor's and master's cap lotteries so that beneficiaries with a master's degree have better odds of being selected. Finally, DHS has proposed a new prioritization scheme where petitions are prioritized based on wages, education requirements, and other key criteria.
- H-1B eligibility criteria: Changes include revisions to the definitions of "specialty occupation," "employment," and employer-employee relationship," with the aim of attracting the "best and the brightest foreign nationals."
- H-4 employment authorization: The proposed rule would eliminate H-4 visa holders' eligibility for employment authorization.
- F-1 visa duration: The proposed rule would change the maximum period of stay for F-1 visa holders by eliminating the "duration of status" and imposing visa end dates.
- Biometrics: Biometrics would be collected for all foreign nationals when entering and exiting the United States, and photographs would be captured for use by facial recognition technology. In addition, a second rule proposes expanding the use of facial recognition technology for all travelers, including US citizens.
In addition, it is anticipated that USCIS will publish a new fee schedule in February 2019.
Legalization of Marijuana in Canada May Present Challenges to Adult Residents When Seeking Entry into the United States
On October 17, 2018, the purchase, use, and possession of marijuana by adults became legal across Canada under the Cannabis Act (Bill C-45), which was approved by the Canadian Senate in June 2018. Though dozens of US states have legalized marijuana for medical or recreational purposes, the use, possession, cultivation, and distribution of marijuana remain illegal under US federal law, which regulates immigration and controlled substances and supersedes state law. Under the federal Immigration and Nationality Act ("INA"), marijuana users traveling to the United States may face severe consequences, including a permanent bar from entering the country, on health-related or criminal grounds.
Although Customs and Border Protection ("CBP") has yet to issue any formal guidance on whether legal use of marijuana in Canada is considered a de facto basis for inadmissibility, media reports indicate that Canadians traveling to the United States who admit to marijuana use may be denied entry. In response to the Cannabis Act, CBP issued a statement advising that "any arriving alien who is determined to be a drug abuser or addict, or who is convicted of, admits having committed, or admits committing, acts which constitute the essential elements of a violation of (or an attempt or conspiracy to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance, is inadmissible to the United States."
Qatar Eliminates Exit Permit Requirements for Foreign Workers
In an effort to relax its strict rules imposed on employers who hire foreign workers, the Qatari government recently announced that it would no longer require companies to file exit visa applications on behalf of foreign workers prior to repatriation. Employers may still require certain foreign workers to obtain permission prior to leaving the country, but the number of employees required to obtain an exit visa prior to departure has been capped at 5 percent of the company's foreign workforce. This change took effect on October 28, 2018.
Vietnamese Government Issues New Regulations on Foreign Workers
On October 8, 2018, the Vietnamese Ministry of Labor, Invalids, and Social Affairs ("MOLISA") issued Decree 140/2018/ND-CP, which implements a number of changes to the country's work permit rules. Key changes include:
- Notarized passport copy no longer required: Work permit applicants are no longer required to submit a notarized passport copy with their work permit applications. MOLISA will now accept a regular photocopy. However, the Ho Chi Minh City labor department continues to require certified copies of passports.
- Elimination of work permit cancellations: Work permit holders are no longer required to cancel their work permits prior to leaving the country.
- Faster processing times: The processing time for a work permit application is now five days, as opposed to seven. In addition, the chairman of the provincial People's Committee is no longer the only authorized body to approve work permit applications. Instead, the actual provincial People's Committee is now authorized to approve applications, thereby making the application process more efficient.
- Broader work permit requirement exemptions: The decree establishes that certain foreign nationals are exempt from work permit requirements. These include foreign nationals who are responsible for establishing a commercial presence in Vietnam, including an economic organization with foreign investment capital, a representative or branch office of a foreign trader, and an operating office of a foreign investor pursuant to a business cooperation agreement.
Aimed at promoting business opportunities in Vietnam, these are welcome changes, although implementation at the local provincial level may vary.
Irish Authorities Clarify Rule on Temporary Work Permission
Effective immediately, the Irish government will grant temporary work permission to non- European Economic Area ("non-EEA") foreign nationals who seek temporary work authorization upon arrival in Ireland. In these instances, work permission may be granted for a maximum period of 14 days and is limited to once in a 90-day period. With temporary permission to be granted at the discretion of border agents, applicants are not guaranteed entry under this scheme. If non-EEA foreign nationals are required to work in Ireland for more than 14 days in a given 90-day period, they must obtain a work permit through the proper channels.
Spanish Immigration Authorities Restrict the Scope of Intracompany Transferee Permits
The Spanish government recently announced that it was limiting the use of intracompany transferee permits ("ICT"). Going forward, only highly qualified individuals working in a "specialist" capacity are eligible for an ICT work permit. Previously, employers could sponsor workers in non-managerial or non-specialist positions under this visa scheme. In addition, companies must now provide a justification for seeking to employ a foreign worker as opposed to a local worker and must have a compelling reason why a local worker could not reasonably perform the duties of the specific position. This change is an effort to promote local hiring.
Turkey Will No Longer Provide Visas on Arrival
The Turkish government is in the process of canceling its visa-on-arrival system. Effective immediately, foreign nationals who were previously permitted to obtain visas on arrival must now purchase an e-visa online prior to arrival. Visas should be obtained at least 48 hours prior to departure. All e-visa holders must carry a copy of their valid e-visa, along with a visa passport, when entering Turkey. This new requirement will increase fee collection and data collection and will facilitate arrival processing when entering Turkey, ultimately reducing the amount of wait time at ports of entry. This change impacts citizens of 37 countries, including Australia, Austria, Bahamas, Bahrain, Belgium, Canada, Hong Kong, Indonesia, Ireland, Mexico, the Netherlands, Norway, Oman, Poland, Portugal, Spain, the United States, and the United Kingdom.
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