Mayer Brown's Global Directions is a summary of recent immigration and mobility trends arising in key jurisdictions around the globe. This high-level overview alerts recipients to select changes in law and practice that may affect their global mobility programs.
USCIS Updates Policy Guidance for Certain Requests for Evidence and Notices of Intent to Deny
US Citizenship and Immigration Services ("USCIS") posted a policy memorandum on July 13, 2018, providing guidance to its adjudicators regarding their discretion to deny an application, petition, or request without first issuing a Request for Evidence ("RFE") or Notice of Intent to Deny ("NOID") when initial evidence is not provided or if the evidence fails to establish eligibility. This shift in policy will be effective starting September 11, 2018.
Consistent with USCIS practice and regulations, adjudicators may issue denials, when appropriate, without issuing an RFE or NOID first. This would include any filing in which the applicant, petitioner, or requestor has no legal basis for the benefit/request being sought; submits a request for a benefit that has been terminated; or fails to provide sufficient initial evidence to establish eligibility at the time of filing.
According to USCIS, the immigration system has been bogged down by frivolous or meritless claims that slow down processing for everyone. This policy change is an attempt to discourage frivolous filings, ensure government resources are not wasted, and improve the agency's ability to efficiently and fairly adjudicate legitimate requests.
USCIS Delays New NTA Guidance Until Further Notice
On July 30, 2018, USCIS announced that it will postpone its June 28, 2018 guidance for the issuance of Notices to Appear ("NTA") to commence removal proceedings in certain cases. For the time being, USCIS will delay activating the new NTA policy until the agency determines an implementation plan. However, USCIS did not indicate a timeline or date by which it will publish its NTA operations plan, an agency function traditionally held by US Immigration and Customs Enforcement ("ICE").
Although USCIS NTAs are on hold until further notice, employers can take practical steps now to prepare for the agency's eventual implementation, specifically by assessing if any of their foreign national employees may be at risk of a potential removal or deportation proceeding. For example, student employees should have their most current address on file with USCIS in case they receive an RFE, otherwise they will not be able to respond to USCIS and could unknowingly receive an NTA if they fail to provide a response. Similarly, for employees whose work authorization relies on a non-immigrant visa category, such as an H-1B visa, employers may renew or extend the non-immigrant status beginning six months in advance of the visa expiration. Renewing a non-immigrant visa status as early as possible allows both the employer and the employee more time to respond to an RFE, or concurrently strategize other immigration options that may be available, and minimize a disruption of work.
USCIS Issues Final Guidance on Unlawful Presence for Students and Exchange Visitors
On August 9, 2018, USCIS published a revised final policy memorandum on how unlawful presence is calculated for F, J, and M visa holders who overstay the authorized period of stay or violate the terms of their visas. Effective August 9, 2018, F-1, J-1, or M-1 visa holders, and their dependents, will begin to accrue unlawful presence starting the day after they overstay or violate the terms of their visas. For example, a foreign student who is no longer properly enrolled in school is considered to be violating the terms of his or her visa and will begin to accrue unlawful presence starting the day after they fail to properly enroll in school.
For the purposes of calculating unlawful presence, an application to reinstate F or M visa status is timely filed if the applicant has not been out of status for more than five months at the time of filing. The accrual of unlawful presence will cease upon filing an application to reinstate status. Should the application ultimately be denied, the accrual of unlawful presence will resume the day after the application is denied.
Visa holders who are unlawfully present for more than 180 days or more than one year are subject to a three-year or ten-year bar, respectively, on entering the United States unless they are granted a waiver of inadmissibility.
This change came following the publication of the Department of Homeland Security's FY 2017 Entry/Exit Overstay Report, which concluded that F, J, and M nonimmigrant visa holders have a significantly higher overstay rate than other nonimmigrant visa categories.
China, People's Republic of
China Work Permit Requirements for Hong Kong, Taiwan, and Macao Residents Eliminated
The State Council of China agreed to waive work permit requirements for Taiwan, Hong Kong, and Macao permanent residents (of Chinese citizenship status) working in mainland China. Specifically, the waiver applies to holders of a Mainland Travel Permit for Taiwan Residents or a Mainland Travel Permit for Hong Kong and Macau Residents. In doing so, the State Council grants these workers the same rights and benefits as local Chinese residents, including labor rights protections and access to employment services, medical insurance, social security, and unemployment registration. The waiver of work permit requirements for this group of people was just one of 17 administrative permit eliminations made to bolster business, boost economic development, and attract new talent to mainland China.
India to Offer Visas on Arrival to South Korean Citizens
Starting October 1, 2018, India will begin issuing visas on arrival to South Korean citizens. The visas will be valid for a duration of stay up to 60 days and will allow up to two entries. Participating airports include Bengaluru, Chennai, Delhi, Hyderabad, Kolkata, and Mumbai. Visitors entering at any other airport will need to obtain a visa stamp prior to traveling to India.
Skilling Australians Fund Legislation in Effect, Additional Changes to Labour Market Testing Requirement
Effective immediately, companies filing any subclass 482, 186, and 187 nomination applications are now required to make payments to the Skilling Australians Fund ("SAF").
In addition, the Department of Home Affairs has also implemented and confirmed several changes to the Labour Market Testing ("LMT") requirement for nominations lodged on or after August 13, 2018. Key changes:
- Advertisements must run for four weeks. The previous requirement was 21 calendar days.
- The salary or a salary range for the position must be disclosed in the ad if the annual salary is less than AU $96,400. Previously, employers were required to disclose the salary if it was lower than the Fair Work High Income salary threshold (currently AU $145,000).
- A few more exemptions from the LMT requirement are now codified in legislation (listed below).
If any of the following apply to a specific nomination application, employers will be exempt from the LMT requirement:
- An intra-corporate transfer
- A nominee who will earn an annual salary greater than AU $250,000
- A nominee who has an internationally recognized record of exceptional or outstanding achievement in a profession
- A medical practitioner (except a general practitioner), ambulance officer, or paramedic
- A nomination to which an International Trade Obligation applies—for example, a case in which a Free Trade Agreement is in operation
For all other nomination applicants, the LMT requirements are still in force.
France Approves Immigration Bill Aimed at Attracting Highly Skilled Talent
French Parliament approved an immigration bill aimed at attracting highly skilled researchers and experts, recent graduates, and students. At the same time, the new law makes the eligibility requirements for intra-corporate transfers ("ICT") more stringent. The new law will bring these changes:
- A requirement that ICT permit applicants have a minimum of six months of experience with a related entity outside France, as opposed to the previous requirement of three months' experience. In addition, ICT permit holders must, at the end of their assignment, leave France for at least six years before seeking reentry.
- The introduction of a new residence permit to allow researchers and university graduates to remain in France to seek employment or create a business in France. Graduates who completed their studies within the past four years may be eligible for this residence permit.
- Allowing qualifying companies to obtain pre-authorization for work permits for their employees, resulting in a simplified application process and faster processing times.
- The implementation of a new Talent Passport category for non-EU national researchers and higher education professionals working in another EU member state to allow them to undertake limited work activities in France. Also, certain start-up enterprises can sponsor employees who are internationally recognized as experts in their field to participate in the French economy and promote French interests.
- Allowing children of a principle work permit holder's partner to be included as a dependent of the work permit holder and thus eligible for a residence permit. Previously, only children of the principle work permit holder were considered for dependent status.
Additional modifications are expected as French authorities begin to enforce the new law.
Originally published 15 August 2018
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This Mayer Brown article provides information and comments on legal issues and developments of interest. The foregoing is not a comprehensive treatment of the subject matter covered and is not intended to provide legal advice. Readers should seek specific legal advice before taking any action with respect to the matters discussed herein.