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.
Comprehensive Economic and Trade Agreement (CETA) Opens Channels for Certain EU Travelers to Canada
On September 21, 2017, the Comprehensive Economic and Trade Agreement (CETA) was enacted between the European Union and Canada. CETA is a trade agreement to make available Canada’s goods, services, and public procurement markets; help protect labor rights and the environment; and enable EU companies to export more to Canada. CETA reduces over 98 percent of Canadian customs duties, thereby boosting competition. CETA also provides a framework for the European Union and Canada to recognize professional qualifications in certain professions, including accounting, engineering, law, and architecture. In addition, CETA simplifies immigration requirements for certain visitors to Canada:
- Business Visitors: CETA broadens the list of permissible activities for business visitors to include meeting and consultation, marketing research, research and design, sales, purchasing, trade fair and exhibition, training seminar, after sales/after lease service, tourism, and translation and interpretation. Citizens of EU member states are permitted to stay in Canada for a period of up to 90 days in a given six month period.
- Contractual Service Suppliers and Independent Professionals: CETA exempts certain EU citizen contractual service suppliers and independent professionals from having to obtain a Labor Market Impact Assessment (LMIA). To qualify, the individual must possess a university degree, possess relevant professional experience, and be traveling to Canada for a period not to exceed 12 months. For contractual service suppliers to qualify, they must be engaged in the provision of services on behalf of a company pursuant to a service contract, have been employed by the EU-based company for at least one year prior to the date of application, have at least three years of relevant professional experience, and be paid by the foreign employer. Independent professionals may work in Canada provided they have a contract to supply a service to a Canadian consumer and have at least six years of relevant professional experience.
- Intracompany Transferees and Key Personnel: Senior personnel, specialists, and trainees must be employed by a qualifying entity in Europe for at least one year prior to being transferred to work for a qualifying entity in Canada. Senior personnel and specialists are eligible for an initial work permit valid for up to three years or the duration of the contract, whichever is shorter. Extensions of up to 18 months may be granted. Eligible trainees must possess a university degree and be temporarily transferred to a qualifying Canadian entity for the purpose of career development or to receive training in business techniques or methods. Trainees are eligible for a work permit valid for a period of 12 months or the duration of the contract, whichever is shorter.
United States Trump Administration Issues New Travel Ban
On September 24, 2017, President Trump issued a proclamation imposing nationality-based travel restrictions. The new country-specific restrictions will affect travel to the United States by nationals of Chad, Iran, Libya, North Korea, Somalia, Syria, Venezuela, and Yemen. Sudan, which had been included in the first two “travel ban” executive orders, has been removed from the list.
Unlike the two previous “travel ban” executive orders, the presidential proclamation is intended to be “tailored, as appropriate, given the unique conditions in and deficiencies of each country, as well as other country-specific considerations.” The country-specific restrictions are as follows:
|Chad||Entry into the United States as immigrants and as business visitors (B-1) or tourists (B-2) is suspended indefinitely.|
|Iran||Entry into the United States as immigrants and as nonimmigrants is suspended indefinitely, except for students (F and M) and exchange visitors (J). Student and exchange visitors will be subject to enhanced screening and vetting requirements.|
|Libya||Entry into the United States as immigrants and as business visitors (B-1) or tourists (B-2) is suspended indefinitely.|
|North Korea||Entry into the United States as immigrants and as nonimmigrants is suspended indefinitely.|
|Somalia||Entry into the United States as immigrants is suspended indefinitely. Nonimmigrants will be subject to enhanced screening and vetting requirements.|
|Syria||Entry into the United States as immigrants and as nonimmigrants is suspended indefinitely.|
|Venezuela||Entry into the United States of certain Venezuelan government officials and their immediate family members as business visitors (B-1) or tourists (B-2) is suspended indefinitely.|
|Yemen||Entry into the United States as immigrants and as business visitors (B-1) or tourists (B-2) is suspended indefinitely.|
H-1B Visa Category Facing Higher Scrutiny
H-1B petitioners are being challenged by the US Citizenship and Immigration Services (USCIS) at the highest rate since 2009. Data provided by USCIS show a 45 percent increase in the issuance of Requests for Evidence (RFEs) over the same time period last year. Recent trends show that USCIS is challenging whether the beneficiary is qualified for the position and whether the position is in fact a specialty occupation. RFEs have also been issued challenging the offered salary, with USCIS asserting that the salary is too low given the complexity of the job duties. In addition, USCIS seems to have taken the position that entry-level positions are not specialty occupations.
The recent influx of RFEs is believed by some to be an attempt by the Trump administration to make it more difficult for foreign nationals to work in the United States. Not only do RFEs lengthen the USCIS processing time, thus delaying the issuance of visas, but the increased legal expenses could deter US employers from hiring foreign workers. In fiscal year 2016, USCIS approved 87 percent of all H-1B petitions filed. By June of this year, USCIS had approved only 59 percent of all H-1B petitions filed.
Employment-Based Immigrant Visa Applicants Required to Attend In-Person Interviews
In an effort to detect and prevent fraud, US Citizenship and Immigration Services (USCIS) recently announced that effective October 1, 2017, certain green card applicants, including employment-based adjustment of status applicants and relatives of a refugee or asylee, will be required to attend an in-person interview at a USCIS Application Support Center. USCIS is planning to phase in the interview requirement across other visa categories. This new requirement aligns with Executive Order 13780, “Protecting the Nation from Foreign Terrorist Entry Into the United States,” and will serve as an opportunity for USCIS officers to verify information provided in the original petition, obtain new and relevant information, and establish credibility of visa applicants. Previously, there was no interview requirement for employment-based adjustment of status applicants or relatives of a refugee or asylee.
Premium Processing Reactivated for All H-1B Cases
US Citizenship and Immigration Services (USCIS) resumed premium processing on October 3, 2017, for all H-1B “specialty occupation” petitions, including initial filings, H-1B amendment, change-of-employer, and extension petitions. Effective April 3, 2017, USCIS had suspended the premium processing service for all H-1B petitions received at its Service Centers, including those subject to the fiscal year 2018 annual quota (the “cap”). On July 24, 2017, the agency lifted the suspension for certain H-1B cap-exempt petitions and on September 18, 2017, reinstated premium processing for H-1B visa petitions subject to the cap (see Mayer Brown’s Legal Update, “Premium Processing Reactivated for H-1B Cap Cases”).
The agency’s premium processing service provides expedited processing for certain employment-based petitions and applications for a fee of $1,225. USCIS will conclude processing of premium processing cases within 15 calendar days, or, if it exceeds that timeframe, refund the $1,225 premium processing service fee. If the fee is refunded, USCIS may still expedite processing of the application.
New LIMOSA Declaration Reporting Requirements Added
Starting October 1, 2017, Belgian companies employing foreign nationals will be required to appoint a designated representative to liaise with the Belgian inspection services. In addition to being responsible for providing documents, the representative must be designated on the mandatory LIMOSA declaration filed with the Belgian government at the start of a work assignment. Specifically, the LIMOSA declaration must include the representative’s name, data of birth, official title, mailing address, email address, and phone number. Representatives can be employed by the Belgian company, but are not required to be, and may reside outside of Belgium.
In addition, companies employing foreign nationals will be required to retain certain documents in paper or electronic format and have the documents available for inspection for the duration of the assignment and one year thereafter. Documents that must be retained include copies of employment contracts (or a similar document); timesheets; pay slips; documentation pertaining to additional compensation, including allowances and benefits; and documentation of the conditions for repatriation. The Belgium government may, at its discretion, request a translation of the documents into one of Belgium’s official languages (Dutch, French, and German) or English.
Qatar to Grant Permanent Resident Status to Certain Foreign Nationals
The Qatari state news agency recently announced that the government is in the process of implementing new laws to provide an avenue for legal permanent residency for certain foreign nationals, including children of Qatari women married to foreign nationals; individuals who have performed “great services” for Qatar; and individuals with special skills that are in high demand.
Individuals who are granted permanent residency will be afforded many of the same rights as Qatari citizens. They will have access to health care and education, can exercise the right to own property, and will receive priority treatment for occupations in the civil service and military.
Employers Now Able to Pay Monthly Fee to Satisfy Sponsorship Requirements
The Saudi Arabian government has eased block visa sponsorship requirements for companies seeking to hire foreign national employees in Saudi Arabia. In September, the government introduced changes to block visa sponsorship requirements that compelled companies to meet a higher ratio of local Saudi workers to foreign workers. Proving to be overly burdensome for companies, the government is now giving companies otherwise unable to meet the ratio the option to pay a monthly fee for each local employee they would have otherwise needed to hire to satisfy the ratio requirement. This change will enable companies to increase their foreign national employee population without having to hire local employees.