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
DACA Debate Temporarily on Hold
On February 26, 2018, the US Supreme Court declined to consider the government’s request to review a preliminary injunction issued last month by a federal court in California temporarily reinstating the Deferred Action for Childhood Arrivals (DACA) program and requiring US Citizenship and Immigration Services (USCIS) to accept DACA renewal applications. On January 13, 2018, USCIS announced its process for accepting renewal applications. In a petition filed by the Justice Department on January 18, 2018, the government asked the Supreme Court to take the unusual step of bypassing the US Court of Appeals for the Ninth Circuit and reviewing the injunction directly. The Supreme Court declined, thus leaving the lower court’s order in place.
Under the district court's temporary injunction, the DACA program will continue to be operated under the terms that were in place before it was rescinded on September 5, 2017, except that USCIS is not accepting requests from individuals who have never before been granted deferred action under DACA and the agency will not accept nor approve advance parole requests from DACA recipients (also known as “DREAMers”). Those DACA beneficiaries whose deferred action expired on or after September 5, 2016, may file their DACA request as a renewal. Those DACA recipients whose deferred action expired before September 5, 2016, or whose DACA status was terminated at any time, must follow the instructions for filing a new, initial request.
USCIS Removes "Nation of Immigrants" from Its Mission Statement
With new senior leadership, US Citizenship and Immigration Services (USCIS) has announced that the agency is stripping the phrase "nation of immigrants" from its mission statement. USCIS Director L. Francis Cissna stated that the agency's mission is more "simple and straightforward" and emphasized that immigrants are not "customers" of USCIS in the news release announcing the change. As of February 22, 2018, the new mission statement reads: "U.S. Citizenship and Immigration Services administers the nation's lawful immigration system, safeguarding its integrity and promise by efficiently and fairly adjudicating requests for immigration benefits while protecting Americans, securing the homeland, and honoring our values."
In the release, Director Cissna indicates that the change is part of a common goal that agency employees share and are "passionate about," which is "upholding the rule of law." He emphasized that deletion of the term "customers" was important because "the referring to applicants and petitioners for immigration benefits, and the beneficiaries of such applications and petitions, as ‘customers' promotes an institutional culture that emphasizes the ultimate satisfaction of applicants and petitioners, rather than the correct adjudication of such applications and petitions according to the law. Use of the term leads to the erroneous belief that applicants and petitioners, rather than the American people, are whom we ultimately serve."
Media reports indicate that the agency change was not mandated by President Trump, but was instead the result of debate within the agency.
USCIS Issues Policy Memo on H-1B Petitions Involving Third-Party Worksites
US Citizenship and Immigration Services (USCIS) recently issued a memorandum intended to be used to guide determinations by all USCIS adjudicators of H-1B petitions. The memo is intended to be read together with USCIS's memo dated January 8, 2010, entitled "Determining the Employer-Employee Relationship for Adjudication of H-1B Petitions, Including Third-Party Site Placements." The new memo addresses USCIS's ultimate goal of protecting the wages and working conditions of both US and H-1B workers by preventing fraud or abuse. Specifically, it focuses on contracts and itineraries that petitioners are required to submit as evidence of an existing employer-employee relationship and to demonstrate that the beneficiary will be employed in a specialty occupation. According to the memo:
When a beneficiary will be placed at one or more third-party worksites, the petitioner must demonstrate that it has specific and non-speculative qualifying assignments in a specialty occupation for the beneficiary for the entire time requested on the petition. The petitioner will need to show that:
- The petitioner has a specific work assignment in place for the beneficiary;
- The petition is properly supported by a Labor Condition Application (LCA) that corresponds to such work; and
- The actual work to be performed by the H-1B beneficiary will be in a specialty occupation based on the work requirements imposed by the end-client who uses the beneficiary's services.
The memo also states that when a beneficiary will be assigned to more than one location, an itinerary including the specific dates and locations (including names, addresses, and telephone numbers) of the services to be provided must be submitted to USCIS. Furthermore, the petitioner must provide corroborating evidence for all of the above.
Finally, the petitioner must establish that the terms and conditions of employment will continue to exist throughout the duration of the requested H-1B validity period. When requesting an extension of stay, petitioners are now required to submit evidence that H-1B requirements have been met for the entire prior approval period.
Trump Administration to Establish National Vetting Center
On February 6, 2018, President Trump issued a memorandum directing the establishment of a National Vetting Center (the "Center"), subject to oversight by a National Vetting Governance Board (the "Board"), to coordinate screening and vetting of individuals seeking to enter the United States. Led by the Department of Homeland Security, in coordination with the secretary of state, the attorney general, and the director of national intelligence, the Center will be tasked with integrating and improving the work of federal intelligence agencies in screening foreign visitors and immigrants. The agencies have a six-month deadline to establish the Center.
While neither the Center nor the Board will be funded, the intelligence agencies will assign members to the Center, including a full-time director from DHS and deputy directors detailed from the Departments of State and Justice, respectively. The Center will be given access to databases, data sets, knowledge bases, systems, and technical architectures controlled by the federal government, within the confines of governing laws and cybersecurity requirements.
In the past 10 months, we have encountered multiple instances of aberrational security checks for longstanding visitors to the United States with unblemished records. A central function that enhances inter-agency reviews could focus the government on identification of high-risk threats and mitigate the instances where low-risk candidates are subjected to lengthy or redundant security checks.
Australia Amends List of Eligible Skilled Occupations
Effective January 17, 2018, new occupations were added to, and several removed from, the list of eligible skilled occupations. Several occupations were also moved between the Medium and Long-term Strategic Skills List (MLTSSL) and the Short-term Skilled Occupation List (STSOL) for visa programs. In addition, caveats were amended for certain occupations already on either the MLTSSL or STSOL. Changes include:
- Adding occupations to the STSOL, including Property Manager, Psychotherapist, and Real Estate Representative
- Removing occupations such as Building Associate
- Moving the occupation of Management Consultant from the STSOL to the MTLSSL
A summary of the key caveats is provided below:
Excludes clerical, book keeper, and accounting clerk positions; positions in businesses with an annual income of less than AUD$1M; and positions in companies with fewer than five employees.
Excludes positions that have a nominated base salary of less than AUD$90,000; positions in businesses that have an annual income of less than AUD$1M; and positions in companies with fewer than five employees.
Supply and Distribution Manager
Excludes positions based in a front-line retail setting; positions that predominately involve direct client interaction on a regular basis; positions in businesses that have an annual income of less than AUD$1M unless they involve an intra-corporate transfer to which an international trade obligation applies; and positions that have a nominated salary of less than AUD$65,000 unless they involve an intra-corporate transfer to which an international trade obligation applies.
Excludes clerical, book keeper, and accounting clerk positions; positions in companies with an annual income of less than AUD$1M; and positions in companies with fewer than five employees.
Beijing-Based Companies Sponsoring Foreign Nationals Required to Electronically Resubmit Information in Exit-Entry Bureau
Effective immediately, all companies in Beijing that sponsor foreign nationals must re-submit their company information to the local Exit-Entry Bureau. Employers must complete the update before preparing any new applications with the Beijing Public Security Bureau.
E-Services Offered to Foreign Nationals Residing in Certain FRRO Jurisdictions
Starting February 12, 2018, India's Bureau of Immigration started offering online services to foreign nationals residing within the jurisdiction of the following FRROs: Mumbai, Delhi, Bengaluru, and Chennai. With the introduction of online services, foreign nationals may now complete online certain visa services, including in-country registration and visa extension applications. The introduction of online services provides relief to foreign nationals as they no longer need to travel to the FRRO to complete the processes. However, the FRROs will continue offering in-person appointments to foreign nationals within these jurisdictions.
It is anticipated that additional FRROs will implement online services to foreign nationals in the future.
Oman Halts Issuance of Certain Work Visas
On January 29, 2018, the Sultanate of Oman passed a new regulation imposing a six-month ban on the issuance of work visas for expatriate employees in the following 10 sectors, effective immediately:
- Information technology
- Finance and accounting
- Marketing and sales
- Administration and human resources
- Information and media services
- Medical services
- Airport services
- Other technical professions (as determined by the Ministry of Manpower)
According to Oman's National Centre for Statistics and Information, the expatriate workforce in the country has almost tripled in the last decade alone, rising from 660,950 expats in 2007 to 1,825,603 expats in 2016. The move by the Ministry of Manpower aims to protect the local labor market by encouraging companies to hire more Omani nationals for skilled positions and is a recognition that the private sector needs to do more to hire Omanis over expat employees. The new regulation carves out SMEs that are registered with the Public Authority for Small and Medium Enterprises Development, the country's register for SMEs, and insured with the Public Authority for Social Insurance (PASI), the country's social security agency.
This is the first of maybe several moves by the Omani government to encourage the employment of Omanis in light of the increasing presence of expatriate employees in the country. The country has taken a step further in contrast with the UAE and Saudi Arabia, which have historically resorted to statutory benefits and other tools to encourage companies to employ and train local nationals.
In light of this development, multinational and regional companies will need to assess any plans for the deployment of employees to Oman over the next six months based on the sectors in which they operate. Mayer Brown's Global Mobility team will continue to monitor this and other immigration developments in the region.
SMART Visa Introduced to Attract Foreign Talent to Thailand
A SMART Visa has been implemented in Thailand targeting executives, entrepreneurs, investors and foreign experts working in 10 designated industries, including next-generation automotive; smart electronics; affluent, medical and wellness tourism; agriculture and biotechnology; food for the future; automation and robotics; medical hub; digital; biofuels and biochemistry; and aviation and logistics.
The SMART Visa will exempt qualified applicants from obtaining work permits or reentry permits. Dependent family members are also eligible to receive residence permits with work authorization for the duration of the primary visa holder's stay. Visas are issued for a maximum period of up to four years.
To qualify, applicants must meet the following eligibility criteria:
- Highly Skilled Experts: Must possess expertise in science/technology in a relevant industry; earn a minimum salary of 200,000 baht (US$6,386); and have a minimum one-year contract.
- Senior Executives: Must earn a minimum salary of 200,000 baht; have at minimum of a bachelor's degree in a relevant field; be serving in a senior management position; and have a minimum one-year contract.
- Investors: Must make a direct investment of at least 20 million baht (US$638,600) in a Thai company that uses technology as the basis for goods or services.
- Entrepreneurs: Must be participating in an incubator or accelerator program or in a joint venture and own at least 25 percent of the company or be a director. The applicant must set up the enterprise within one year and have at least 600,000 baht savings, 180,000 baht for the accompanying spouse and each child, and health insurance.