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It’s June 29, and this is your BAL Immigration Report.
“When you start saying someone is fully remote, you start opening yourself up to potential pushback or even rejections at an immigration stage if an immigration officer finds that there truly is no reason for them to be in this country other than the fact that they think it would be nice to live there.”
—Jonathan Nagel, BAL Senior Associate
The State Department provided clarification on the upcoming India employment-based third preference, or EB-3, priority date retrogression.
Officials said that India is currently oversubscribed for immigrant visas because the total demand for this fiscal year’s family and employment-based visas exceeds the country’s allocated limit. Estimates indicate that all EB-3 visas available to applicants in India fiscal year 2023 will be used by July 1. The department expects the Final Action Date for India to advance when the annual limits reset in fiscal year 2024, which begins Oct. 1, 2023.
The State Department provided guidance for U.S. citizens traveling to Australia and New Zealand this summer for the FIFA Women’s World Cup.
Travelers are encouraged to check the U.S. embassies’ websites for Australia and New Zealand for the most up-to-date travel information, including additional entry and exit requirements. U.S. citizens should have a valid passport and hold a visa or approved Electronic Travel Authority for the country they intend to enter. Travelers should also review guidance on items they are permitted to bring into Australia and New Zealand. The Women’s World Cup takes place from July 20 through Aug. 20.
Part two of our conversation with BAL Partner Mark Yelich and BAL Senior Associate Jonathan Nagel on remote work compliance questions.
BAL Immigration Report: Last week, we heard about the general remote work considerations and some specific challenges employers in the U.S. face. We pick up this week with a question for Nagel about remote work outside the United States.
Nagel: There’s two ways to look at this, and we’re talking about remote work and rest of world. The first is, within each individual country, there’s a question mark around how remote work impacts foreign nationals and visa holders. There’s a whole host of countries where there’s either no policy or process on this or they just simply have no interest in worrying or tracking or caring about this. Then, on the flip side, there’s a number of countries where understanding the work locations — similar to the U.S. — can sometimes have minimal impact or sometimes have critical impact on the compliance of the individual as well as the company at large.
So from one perspective, there’s a need to review country by country what the policy and process and impact is when it comes to having a foreign national be remote. But from another side, when we’re talking about cross-border remote work, it presents a much larger question in terms of how to manage those individuals and how to manage the policy with the company when you have someone going from one location to another to be a remote worker.
BAL: Nagel says Canada is one example that comes up time and time again.
Nagel: It’s fairly common, especially with the freedom of movement that we see within the U.S. and the need for keeping time zones in terms of folks that might lose the U.S. immigration status, and it’s not uncommon to have someone go to Canada to get a work permit. And with the growing remote work environment, it’s not uncommon for companies to have policies that either are accepting or even promoting the idea of not going into the office. Canada, along with a handful of other countries, are much more strict in terms of how they review and appreciate someone that would be considered a fully remote worker. What I mean by that is they perhaps don’t want to have someone fully remote sponsored on a visa, because then the suggestion is why do they need to be in that country to begin with?
Some countries, they have no concern around that, whereas others are looking for some type of nexus or care of control or reason for the individual employee to be in Canada, not simply because they have a particular fondness for Northern Italy or the Vancouver metropolitan area and that there, in fact, is a need or a business need for them to be there. When you start saying someone is fully remote, you start opening yourself up to potential pushback or even rejections at an immigration stage if an immigration officer finds that there truly is no reason for them to be in this country other than the fact that they think it would be nice to live there.
BAL: Yelich and Nagel spoke on a panel on remote work at the SHRM annual conference in Las Vegas earlier this month. We asked Yelich what questions he heard while he was there.
Yelich: A lot of the meeting attendees were asking questions and sharing their own experiences, and it was clear that remote work just brings a host of challenges, not only limited to immigration but corporate tax consideration, employment tax, employment law and benefits and rewards — everything that comes with employing someone, particularly in a state or country where perhaps that company doesn’t have an entity yet set up. So they’re thinking about, do they create a new entity or do they work through some kind of third-party employer of record or similar structure.
In the U.S., it’s particularly challenging from an immigration perspective because — and I’m sure our audience will recognize this as well — just over the decades immigration law is sometimes passed in reaction to something or in an effort to solve one discrete problem and probably explains why, despite all the talk about comprehensive immigration reform over the years, we’ve never had anything passed. And so what that leads to is this patchwork quilt of legislation and rules and interpretations — and, unfortunately, a lot of gray areas that companies have to navigate because we come across unintended consequences and downstream effects that really weren’t contemplated at the time the particular law was passed. And it just makes it all the more complicated and challenging for companies to navigate through that and try to do the right thing in terms of compliance.
Canada has enacted special immigration measures for individuals affected by wildfires across the country. Canadian nationals as well as permanent and temporary residents who are directly impacted by the wildfires can receive free replacements for permanent resident cards, citizenship certificates, passports and other travel documents.
Additionally, international students, temporary foreign workers and other visitors directly affected by the wildfires and whose status expires by Sept. 30 can apply, restore or extend their status in Canada free of charge. The special immigration measures are in effect until Sept. 30, 2023.
In Denmark, authorities have announced that some third-country nationals will need to replace their residence cards. Beginning in August, residence cards issued before 1998 to third-country family members of EU citizens who have the right to permanent residence in Denmark will no longer be valid. Such residence cards issued 1998 to 2011, as well as many issued from 2016 to 2021 will no longer be valid starting in 2026. The government is requiring these individuals to replace their residence cards due to new safety requirements for the cards.
In New Zealand, the government has announced changes to several visa categories. Beginning Oct. 9, the Skilled Migrant Category Resident Visa’s qualification requirements will be replaced with a simplified point system that offers several ways for individuals to demonstrate their skill level. And the Accredited Employer Work Visa’s validity will be extended from three to five years to align with the introduction of a five-year maximum continuous stay limit for visa holders. Individuals who want to apply for a new visa must live outside of New Zealand for at least 12 months if they have lived in the country continuously for five years.
Follow us on X, and sign up for daily immigration updates. We’ll be back next week with more news from the world of corporate immigration.
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