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President Jacob Zuma has overhauled his cabinet, moving Malusi Gigaba from his post as Minister of the Department for Home Affairs to Finance Minister. The new Minister of Home Affairs will be Hlengiwe Mkhize, who previously served as Deputy Minister of Telecommunications and Postal Services.
Key Points:
Background: Gigaba was appointed to lead the Department of Home Affairs in 2014. In recent months, he had pushed for immigration reforms and increased workplace inspections targeting businesses that employed undocumented immigrants. He will replace Pravin Gordhan as Finance Minister after Zuma fired Gordhan and other cabinet members in a major personnel shake-up.
BAL Analysis: BAL will continue to follow the proposed immigration reform in South Africa and whether it will change under new leadership in the Department of Home Affairs.
This alert has been provided by the BAL Global Practice group. For additional information, please contact your BAL attorney.
Copyright © 2017 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries please contact copyright@bal.com.
IMPACT – MEDIUM
What is the change? Authorities in the state of Sarawak have announced that they will no longer accept submissions by third parties, such as immigration agents working on behalf of companies, beginning April 15.
What does the change mean? Employers will be required to file applications with immigration authorities themselves and will not be able to use third parties. Employers will be allowed to send a representative from within their company to submit filings, but only if they are unable to do so themselves and provide a letter stating that the representative is acting on the company’s behalf.
Background: Authorities made the announcement last week and said the change is being made to hold employers more responsible for their filings. Immigration agents in Sarawak continue to seek information about the policy shift, but barring any reversal, third-party filings will not be accepted beginning April 15.
BAL Analysis: Companies should take note of the change and adjust their schedules accordingly. Immigration agents continue to engage with the officials for alternatives to a ban on third-party representation. BAL will update clients on any changes or developments from these discussions.
This alert has been provided by the BAL Global Practice group and our network provider located in Malaysia. For additional information, please contact your BAL attorney.
Copyright © 2017 Berry Appleman& Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries please contact copyright@bal.com.
What is the change? The European Union’s visa-free travel agreement with Georgia has entered into force.
What does the change mean? Effective immediately, Georgian nationals who hold biometric passports will be able to travel visa-free to Schengen Area countries for up to 90 days within a 180-day period.
Background: The European Parliament approved the visa waiver for Georgia last month and the agreement was subsequently finalized. The waiver allows travel by Georgian nationals to all Schengen Area countries, including four Schengen candidate countries of Bulgaria, Croatia, Cyprus and Romania. It does not cover travel to Ireland or the United Kingdom, which are not part of the Schengen Area. It does cover travel to Iceland, Liechtenstein, Norway and Switzerland, which are part of the Schengen Area but not the EU.
BAL Analysis: Travelers are reminded that the visa waiver is appropriate for business, family and tourist purposes; those conducting work activities, however, must obtain an appropriate work permit.
This alert has been provided by the BAL Global Practice group and our network partner in Georgia. For additional information, please contact your BAL attorney.
What is the change? Indian authorities have instituted a biometrics requirement for foreign nationals applying for visas or permits in the Foreigners Registration Office (FRO) in Pune – and may expand similar requirements to other FROs and Foreigner Regional Registration Offices (FRROs) in the future.
What does the change mean? Effective immediately, foreign nationals submitting in-country applications at the FRO in Pune will be required to submit fingerprints and eye scans as part of the application process. The biometrics machines will also help authorities preserve passport and visa numbers and other data provided by applicants.
Next steps: Authorities intend to expand the biometrics requirement to other FROs and FRROs, but it may be some time before biometrics are taken at busier offices, such as those in Delhi and Mumbai.
BAL Analysis: The collection of biometrics at the FRO in Pune will add an additional step to application processes. Those affected should be sure to allow extra time when submitting applications.
The legal challenge to the 2016 regulation that expanded the Optional Practical Training (OPT) extension for science, technology, engineering and mathematics (STEM) degrees continues to progress. On Thursday, the court issued an order granting in part and denying in part the Department of Homeland Security’s (DHS) motion to dismiss the lawsuit, and is expected to issue a final order and opinion in the next 30 days. A status conference is scheduled for April 10.
What is the STEM OPT 2016 regulation?
On May 10, 2016, the final rule titled “Improving and Expanding Training Opportunities for F-1 Nonimmigrant Students with STEM Degrees and Cap-Gap Relief for All Eligible F-1 Students” went into effect. The regulation allows foreign students on F-1 visas with qualifying STEM degrees to extend their OPT for an additional 24 months beyond the initial one-year OPT period. Students may also be eligible for one additional STEM extension if they obtain a second U.S. STEM degree at a higher level.
The 24-month extension effectively replaced a 2008 rule allowing the 17-month STEM OPT extension previously available to certain students. The core purpose of the extension is to allow participating students to supplement their academic knowledge with valuable practical STEM experience with a U.S. employer qualified to develop and enhance their skills. The student’s STEM degree must be awarded by an accredited U.S. college or university and be in a subject that DHS recognizes as a STEM field.
The regulation also aims to increase the government’s oversight of the STEM OPT program by requiring formal training plans by employers, adding wage and other protections for STEM OPT students and U.S. workers, allowing extensions only to students with degrees from accredited schools, and requiring employers to enroll and remain in good standing with E-Verify. The rule also keeps in place Cap-Gap relief for any F-1 student with a timely filed H-1B petition and request for change of status.
In the process of implementing the final STEM OPT rule, DHS engaged in required notice-and-comment rulemaking procedures and received 50,500 comments from a range of entities and individuals, including U.S. and international students, U.S. workers, schools, universities, professional associations, labor organizations, advocacy groups, businesses and other interested parties.
What is the current status of the litigation?
When the new STEM OPT regulation took effect in 2016, The Washington Alliance of Technology Workers (WashTech) filed a second lawsuit against DHS challenging the regulation in the U.S. District Court for the District of Columbia. DHS filed a motion to dismiss WashTech’s claims, and the court issued a two-page order Thursday granting that motion in part and denying it in part. The order states that the reasons for the ruling will “be set forth in the Memorandum Opinion to be issued by the Court within the next thirty days, absent extraordinary circumstances.”
A status conference has been postponed twice and is scheduled for April 10, 2017 at 11:30 a.m. before Judge Reggie B. Walton.
What is the history of the litigation?
While the 2008 rule was in effect, a collective-bargaining organization representing STEM workers, WashTech, brought a legal challenge against the 2008 rule extension. WashTech argued that its members had been injured by the OPT program because the program “increases the number of economic competitors” and “exposes WashTech members to unfair competition by allowing aliens to work.” DHS stated that it had issued the 2008 rule without the notice and public comment “to avoid a loss of skilled students through the next round of H-1B filings in April 2008.”
In August 2015, the U.S. District Court for the District of Columbia ruled that the 2008 regulation was invalid due to procedural deficiencies; namely, that the rule had not been subject to the standard rulemaking process allowing for a notice-and-comment period. However, the court gave DHS until Feb. 12, 2016 to issue a replacement rule which would follow the standard rulemaking process. DHS requested an extension of the deadline until May 10, 2016 after receiving an unprecedented number of comments on the proposed new rule published in October.
As the new rule came in effect, the District Court for the District of Columbia threw out the WashTech lawsuit, stating that the case was moot.
BAL Analysis: The court’s order Thursday granting in part and denying in part the government’s motion to dismiss indicates that one or more of WashTech’s legal claims will still proceed, and the lawsuit will continue to progress. Employers should keep in mind that the existing STEM OPT rule remains in place at this time. Employers who require assistance and guidance with STEM OPT extensions should contact their BAL professional for specific advice. BAL continues to monitor this case and will provide updates on new developments.
This alert has been provided by the BAL U.S. Practice group. For additional information, please contact BerryApplemanLeiden@bal.com.
As early as next week, the Trump administration will be required to take a position in federal court on the H-4 spousal work authorization regulation.
The regulation allows spouses of certain H-1B visa holders to obtain work authorization. It was a key policy achievement of the Obama administration, but the Trump administration has signaled that it will seek to rescind or modify the regulation. Changes to the H-4 spousal work authorization regulation are likely to be controversial and could potentially disrupt the work authorization of current employees.
What is the H-4 spousal work authorization regulation?
The H-4 visa is for immediate family members (spouses and children under 21 years of age) of H-1B visa holders. Though federal statute does not explicitly authorize H-4 visa holders to work, the Department of Homeland Security (DHS) promulgated regulations in 2015 allowing certain H-4 visa holders to qualify for employment authorization. To be eligible, H-4 visa holders must be a dependent of an H-1B employee who: (1) is the principal beneficiary of an approved I-140, Immigrant Petition for Alien Worker; or (2) has been granted H-1B status under sections 106(a) and (b) of the AC21 (under which H-1B nonimmigrants seeking employment-based lawful permanent residence may be eligible to work and remain in the United States beyond the six-year H-1B period of admission limitation).
The rule was implemented to alleviate personal and economic burdens placed on H-1B visa holders and their families during their transition from nonimmigrant to lawful permanent status by allowing their family members to work. In the process of implementing the final H-4 work authorization rule, DHS engaged in the required notice-and-comment rulemaking procedures, which provided an opportunity for public comments. The agency received nearly 13,000 comments during the 60-day public comment period. Commenters included individuals, employers, academics, labor organizations, immigrant advocacy groups, attorneys and nonprofit organizations. While opinions varied, a substantial majority (approximately 85 percent) of commenters supported the described rule. Approximately 10 percent of commenters opposed the proposed rule, citing potential adverse effects for the U.S. workforce, including displacement of workers, increased unemployment and decreased wages.
How many individuals have obtained work authorization under the H-4 spousal work authorization regulation?
Not all H-4 visa holders qualify for work authorization. DHS estimated that the rule would add as many as 179,600 people to the U.S. labor force in the first year of implementation, and as many as 55,000 people annually in subsequent years.
What is the status of the litigation?
An organization of information technology workers, Save Jobs USA, challenged the H-4 employment authorization rule in the U.S. District Court for the District of Columbia. The organization alleged that the President does not have the legal authority to issue a rule permitting H-4 dependent spouses to work in the U.S. because the regulation unfairly creates job competition by adding additional foreign workers to the labor force. The court dismissed the complaint without reaching the merits, finding that the tech workers did not demonstrate how they had been injured by the rule, and therefore lacked standing.
The tech workers are currently appealing the dismissal at the U.S. Court of Appeals for the District of Columbia Circuit. DHS requested that the Court hold the case in abeyance for 60 days, up to and including April 2, 2017. The government stated in its request that the extension is necessary to allow “the incoming leadership personnel adequate time to consider the issues.”
Will the government modify or rescind the H-4 spousal work authorization regulation?
It is not yet known how the government will respond regarding the challenged regulation.
How long will it take for the government to modify or rescind the regulation?
Typically, this process takes approximately 6-12 months. The government could seek to move faster by arguing that DHS has good cause to find that the notice-and-comment process would be “impracticable, unnecessary, or contrary to the public interest.”
What will be the impact on H-4 spouses who have already received an Employment Authorization Document (EAD) under the current regulation?
Until the regulation is rescinded or modified, the H-4 regulation remains in effect, and H-4 spouses with EADs will continue to be eligible to work. It is unknown whether any potential change would only have prospective effect or whether it would seek to rescind the previously issued work authorizations.
BAL Analysis: While the Trump administration has signaled that it would like to change or rescind the H-4 spousal work authorization regulation, it has not yet done so. The legal challenge will force the administration to reveal a position on the regulation, possibly as soon as next week. The case is Save Jobs USA v. U.S. Department of Homeland Security, U.S. District Court for the District of Columbia, C.A. No. 1:15-CV-615. BAL will continue to provide updates on significant developments on this case.
What is the change? Brazil has implemented new rules for proving the minimum investment under the Foreign Investors and Foreign Administrators visa categories, according to a normative resolution published Thursday by Brazil’s National Immigration Council.
What does the change mean? Applicants must now present a screen shot from the Brazilian Central Bank’s system (SISBACEN) confirming the Brazilian entity’s current corporate chart, and a currency exchange rate contract issued by the bank that received such foreign investment.
Business impact: The minimum investment amounts have not changed; only the proof required has changed.
Background: The Foreign Investor visa is available to foreign shareholders or members of Brazilian companies who intend to invest a minimum of 500,000 reals (about US$159,400) in a Brazilian entity (150,000 reals for innovative start-ups under the government incentive program). The visa is valid for three years, during which time the foreign national may not recoup the investment or transfer the shares.
The Foreign Administrators visa is available to foreign directors or administrators of a commercial or civil organization in Brazil, where the company has invested a minimum of 150,000 reals and committed to creating at least 10 jobs (or a minimum investment of 600,000 reals if no new jobs will be created). The visa is valid for five years.
Before the change in policy, applicants could prove their investments by presenting an “Electronic Registration Declaration of Direct Foreign Investment in Brazil” from SISBACEN. With the new rules, however, applicants are also required to provide screen shots confirming the Brazilian entity’s corporate chart and currency exchange rate, as described above.
BAL Analysis: Companies and individuals applying for visas under the Foreign Investors or Foreign Administrators visas should make sure that they present the additional proof of their investments.
This alert has been provided by the BAL Global Practice group in Brazil. For additional information, please contact brazil@bal.com.
What is the change? Work permit renewal applicants are seeing significant delays in Sweden as authorities continue to focus resources on the ongoing migrant crisis.
What does the change mean? Work permit renewals are taking four to six months to process, up significantly compared with standard processing times. Swedish officials continue to prioritize new work permit applications, which are taking four to six weeks to process. New work permit applications for foreign nationals who have worked in Sweden previously are taking three to five months.
Background: Sweden was one of the top destinations for migrants fleeing the Middle East and North Africa in 2015 and 2016, and work permit renewal processes remain backed up.
Under normal circumstances, authorities ask that work permit renewal applications be submitted no more than 30 days before a permit’s expiration date. This poses problems, however, because due to the backlog, processing can take up to six months, leaving non-EU nationals with an expired work permit and unable to leave Sweden until they obtain their new permit. Authorities are now accepting applications early, and BAL recommends submitting new applications no later than six months before a permit’s expiration date.
Pay slips and other documentation may be requested for the time between when a renewal application is submitted and when it is approved.
BAL Analysis: Those in need of a work permit renewal should work with BAL to make sure they are leaving enough time to account for the delays in processing. Contact BAL with any case-specific questions.
This alert has been provided by the BAL Global Practice group and our network provider located in Sweden. For additional information, please contact your BAL attorney.
What is the change? Following a two-week suspension of certifications for the Regional Skilled Migration Scheme (RSMS) and State Nominations for the Skilled Nominated (subclass 190) and Skilled Regional (provisional) subclass 489 visas, Western Australia is now accepting new applications to certify positions for RSMS nominations. Authorities have also released a new interim Western Australian Skilled Migration Occupation List (WASMOL).
What does the change mean? Except for the Perth region, new applications to certify positions for RSMS nominations are now being accepted for Western Australia. The full review of the WASMOL is expected to be completed in May, after which a new consolidated list will be made available by the Western Australian State government. Meanwhile, new applications for Western Australian State Nomination will be subject to the interim WASMOL.
Next steps: The interim skilled occupations list is available on the State Government’s website. Foreign nationals working in occupations identified on the interim WASMOL may be eligible to seek Western Australian state nomination for a subclass 190 or subclass 489 visa.
Background: Further to BAL’s client alert from earlier this month, Western Australia’s Department of Training and Workforce Development suspended the Regional Skilled Migration Scheme on 13 March pending review of the region’s skilled occupations list that identifies priority occupations in demand in Western Australia.
Regional certifying bodies are now accepting new applications for RSMS certification for positions in Gascoyne, Great Southern, Kimberley, Mid West, Peel, Pilbara, South West and Wheatbelt. Applications remain suspended for the Perth region at this time.
BAL Analysis: Foreign nationals should consult the interim WASMOL to determine if they are eligible to seek state nomination in Western Australia. Employers looking to nominate individuals for a subclass 187 visa for a position in Western Australia (other than the Perth region) will now be able to proceed with submitting applications for certification.
This alert has been provided by BAL Australia. For additional information, please contact australia@bal.com.
MARN: 0850984
What is the change? The Ministry of Manpower has launched the use of Singapore Corporate Access (CorpPass) for companies using Employment Pass Online.
What does the change mean? Companies using Employment Pass Online for Employment Pass, S Pass and other transactions, should create a CorpPass account. While SingPass can continue to be used for now, there are plans to make the use of CorpPass mandatory for all company-related transactions. No specific timeline has been issued on when this will take effect, but BAL recommends that businesses register for a CorpPass account as soon as possible.
Background: CorpPass is described as “a one-stop authentication and authorisation service, for corporate users to transact with (Singaporean government) agencies online on behalf of their organisations.” It was introduced in the third quarter of 2016 and has since been expanded. MOM is now launching the use of CorpPass for immigration-related services, including Employment Pass Online. Eventually, SingPass will be available for use by individuals, not companies or company representatives.
BAL Analysis: Companies should take note of the change and create a CorpPass account if they have not already done so.
This alert has been provided by the BAL Global Practice group in Singapore. For additional information, please contact singapore@bal.com.