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In a surprise announcement aimed at “putting Australians first,” Prime Minister Malcolm Turnbull declared in April of this year that the Australian Government will abolish the Subclass 457 Temporary Skilled Work visa and replace it with a new Temporary Skill Shortage (TSS) visa that more tightly controls the migration and hiring of skilled foreign workers.
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Nigeria has issued Immigration Regulations 2017, the biggest overhaul in 50 years to the country’s immigration rules. The regulations provide a legal framework for implementing the Immigration Act of 2015 and aim to bring Nigeria’s immigration system up to date with current geopolitical issues that range from fostering business and investment to combatting trafficking and other crimes.
SUMMARY: NIGERIA’S IMMIGRATION REGULATIONS 2017
Business-Related Provisions
The Immigration Regulations, released March 21 with immediate effect, contain a number of provisions that affect business immigration. In addition to liberalizing certain rules, such as making all foreign nationals eligible for visas on arrival and providing for in-country renewal of temporary work permits, the regulations also impose new compliance measures on companies and foreign nationals, including mandatory registration of foreigners and stricter penalties against companies and individuals who fail to renew their expatriate quotas or report their foreign worker numbers or commit other immigration-related offenses.
Read the full BAL Backgrounder HERE
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.
The South African Department of Home Affairs has announced that it will present a White Paper on immigration to the Cabinet this month that proposes to overhaul South Africa’s immigration priorities and usher in significant changes to the country’s immigration system.
The White Paper is expected to introduce a points-based system for work permits, new fees on employers who use foreign labor to fund training and education programs for local workers, and heightened workplace inspections and stricter enforcement of companies who hire foreign workers without the proper work authorization.
With high unemployment, sluggish economic recovery and a steady influx of refugees, South Africa has made several indications that it will move to prioritize employment of local workers. Additionally, recent anti-immigration demonstrations have blamed foreigners for loss of jobs, and the Home Affairs Minister has signaled that businesses will be held accountable for illegal working violations.
Read the full BAL Backgrounder here.
President-elect Trump’s early nominations signal a likely shift in high-skilled immigration policy, with an emphasis on compliance and an increased need to compete against other countries to fill skills gaps. An article in the Mercury News yesterday analyzes the recent cabinet-level nominations and what they could mean for U.S. employers that hire foreign workers. Regarding Trump’s as yet unconfirmed pick for attorney general Sen. Jeff Sessions (R-Alabama), BAL Partner Lynden Melmed is quoted as saying that, “the margin of error for companies is going to be narrower” and “the stakes will be higher.” BAL has also released a white paper that provides additional insight on how a Trump administration may approach enforcement and policy development for H-1B, L-1 and other visa categories relied upon by U.S. employers.
Copyright © 2016 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
Media Contact: Emily Albrecht Senior Director — Marketing & Communications ealbrecht@bal.com 469-559-0174
The following is a roundup of recent developments concerning Brexit negotiations and the United Kingdom’s withdrawal from the European Union.
News Summary
Last week, the Supreme Court heard final arguments in a case over whether Parliament must have a say in the triggering of Article 50 EU exit procedures. The government brought the appeal after a High Court ruled that Prime Minister Theresa May could not unilaterally trigger Article 50 without Parliament’s approval. The outcome, expected in early January, will certainly impact the timing and tenor of Brexit proceedings.
The lack of any published Brexit strategy is putting Theresa May’s government under increasing strain. New government figures showing that net migration to the U.K. remains historically high are fueling Brexiters’ demand for change, while all indications from the European Commission and EU leaders show a hardline stance whereby negotiations can only take place within strict Article 50 procedures and timelines, with no flexibility on the issue of the “fundamental” right of free movement for EU citizens.
Immigration
Net migration remains high
Net migration remains at record high levels, hitting 335,000 in the previous year ending in June 2016, according to the most recent government figures. This is the second highest net migration number on record. The Brexit has created a rush to file, and the flow of EU nationals moving to Britain also hit a record number at 284,000. The latest migration figures show that almost 100,000 EU citizens living in the U.K. have applied to the Home Office to secure their status. This surge in applications guarantees that a backlog will develop in a system that has historically processed just 25,500 permanent residence applications per year.
Demand for documentation
Home Secretary Amber Rudd signaled that the U.K. will gradually move to a system that will require EU nationals currently in the U.K. to be documented, rather than allowing them to continue to rely on passports or ID cards alone. Rudd has refused to provide specifics, stating only that there will need to be “some sort of documentation” and that such a system would be introduced “in a phased approach.”
Consequences of new regulations for EEA nationals
The Home Office has implemented new Regulations on EEA Nationals that impose stricter rules on EU/EEA nationals seeking permanent residence permits in the U.K. Applicants should be aware that the Home Office is scrutinizing applications more closely, requesting additional documents, and is expected to reject more applications under these new regulations. As a result of the spike in permanent residence applications, applicants are unlikely to receive decisions within the six-month service standard.
Legal
Supreme Court hears Brexit challenge
The Supreme Court has concluded hearings on an appeal of the successful Brexit challenge. The full eleven-member court will decide the constitutional law question of whether the Government must first get Parliament’s assent before invoking Article 50, or whether powers of royal prerogative are sufficient. The case is not about whether Brexit occurs, but how it occurs. If the Supreme Court upholds the lower court’s decision, as expected, MPs will have a greater role in shaping Brexit negotiations. The ruling is expected in early January.
New legal challenge disputes EEA exit
A fresh legal challenge, meanwhile, alleges that the government cannot use the Brexit referendum to withdraw from the European Economic Area without the consent of Parliament. The think tank British Influence has lodged a complaint asserting that the Brexit referendum was a vote on whether to leave the European Union, not the European Economic Area to which the U.K. also belongs; therefore, the U.K. would need to hold another referendum on EEA membership and get Parliament’s approval to trigger separate withdrawal procedures under Article 127 of the EEA Agreement. The government argues that the U.K.’s membership in the EEA hinges on its EU membership, such that once it leaves the EU it will also no longer be a member of the EEA.
Politics
“Cake and eat too” strategy
A leaked note indicating that the U.K.’s strategy in Brexit negotiations is to “have its cake and eat it,” put the Government on the defensive. The “cake strategy” refers to the Brexiters’ aspirations to benefit from the single market while abrogating freedom of movement.
A tough stance from EU chief negotiator
In his first press conference on Dec. 6, the European Commission’s chief Brexit negotiator, Michel Barnier made clear that the unity and interests of the EU are his priority, not placating the British. He categorically rejected any option that would allow the U.K. to curb free movement of EU citizens while retaining access to the single market: “The single market and four freedoms are indivisible. Cherry-picking is not an option.” He also set out a stringent timetable for negotiations to conclude by October 2018 to allow time for the EU Parliament, the EU Council and U.K.’s Parliament to implement Brexit by March 2019, two years from when article 50 is set to be triggered.
Status of current EEA migrants in U.K.?
The status of EU nationals residing in the U.K. remains a contentious issue. Keir Starmer, shadow secretary for Brexit, has demanded that May unequivocally guarantee the status of EU migrants already living in Britain as a gesture of goodwill prior to invoking Article 50. May, however, has been reluctant to confirm the status of EEA migrants already living in the U.K. unless British nationals who have settled in the EU are assured the same rights. In an open letter to Downing Street, a group called “the3million,” representing the estimated 3 million EU nationals currently residing in the U.K., have asked for a public guarantee that they will not be treated as pawns in the negotiations.
Preparing Your Company
Brexit negotiations can only begin once the U.K. invokes Article 50. However, now is the time to begin preparing your business as much as possible for a more restrictive immigration regime for both existing and future EEA employees.
BAL can assist with a number of services including:
BAL strongly urges clients to provide any feedback to the BAL London Team, which will inform our government relations strategy and allow us to lobby for positive business-friendly reforms, where feasible, on your company’s behalf.
Should you have any questions or require more information on how BAL can help with Brexit strategic planning, please contact us at uk@bal.com.
Copyright © 2016 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.
Donald Trump’s surprise victory in the presidential election has reshaped the policy landscape, and his immigration policies are being closely watched by U.S. employers, immigration professionals, and an anxious immigrant community. The new administration’s policies will not only affect the lives of hundreds of thousands of unlawful immigrants; they will also influence the ability of U.S. companies to access and retain high-skilled foreign workers under legal immigration routes. B·A·L’s Government Affairs team has produced a white paper analyzing Trump’s next moves on immigration and how such changes will impact U.S. companies.
Click HERE to read the full white paper.
Last night, Donald Trump upended U.S. politics and defeated Secretary Hilary Clinton in the presidential election. From day one of his campaign, President-elect Trump made immigration enforcement and control a centerpiece of his political platform, carrying the theme throughout the election. He committed to building a Mexican-financed wall on the U.S.-Mexico border, declared that he would suspend immigration from certain regions, and said that he would “end the use of the H-1B as a cheap labor program.” He also stated, however, that he will welcome immigrants. His companies have leveraged high-skilled and low-skilled visa categories to meet their staffing needs.
Trump’s Immigration Plan
President-elect Trump’s 10 point plan states that, upon assuming the office, he will:
High-Skilled Immigration
Though his platform focuses on immigration enforcement, President-elect Trump often criticized the H-1B program while on the campaign trail. U.S. workers who had allegedly been displaced by companies that leverage high-skilled visa categories frequently spoke at campaign events.
It is therefore expected that President-elect Trump’s administration will seek to modify high-skilled immigration policies. But what the policies will look like, when the policies will be implemented, and whether any changes will survive legal challenge, are questions that will be answered in the weeks, months and years ahead.
BAL Webinar
BAL encourages companies to participate in our upcoming webinar on Wednesday, November 16, to learn about the election and what the implications will be for high-skilled immigration.
Participants in the webinar will include Lynden Melmed, who served as counsel to the Senate Immigration Subcommittee the last time Republicans controlled the White House and Congress, and Scott Corley, one of the leading advocates for high-skilled immigration reform and current Executive Director of Compete America. They will address key questions, including:
What Employers Should Know Today:
Registration:
To Register: Please register for this webinar HERE or at www.bal.com.
For Event Questions: Please contact seminars@bal.com.
By Jeff Gorsky
With the presidential campaign in full swing, few issues are generating more attention than immigration reform. In particular, on the Republican side, much is heard about the need for border security. Donald Trump began his rise to the top of the polls by calling for the creation of a wall on the border, a wall he states will cost eight billion dollars (a figure that has been disputed by many as too low). Ted Cruz quickly outlined his own plans to create fencing all across the Southern border.
Both plans have proved to be popular with GOP voters. But both plans are based on a mistaken and simplistic premise: that building an enormous and very expensive wall on our southern border with Mexico will prevent illegal immigration and significantly bolster our national security. In fact, the wall represents an outdated idea of national borders, and building it will only address—at great expense– a small portion of today’s international immigration.
In the twenty-first century, the border between the United States and the rest of the world is not limited to the lines on a map between the U.S. and its neighbors. The border is every international airport in the United States, as well as every U.S. visa counter all over the world screening potential visa applicants. This border is enormous and very busy: there were seventy-five-million international visitors to the U.S. in 2015 alone.
This travel is vital to the U.S. economy. International visitors are expected to spend over 220 billion dollars in the U.S. this year alone. They are essential to U.S. international trade, they enable companies to invest in the U.S., and all this travel bolsters good ties to the rest of the world and promotes cultural exchange.
While this travel is critical to our economic and national interests, it does present risks. But the risks are not principally from our southern border. There is no evidence that any terrorist act in the U.S. has been committed by someone who crossed the southern border illegally.
Fortunately, Congress and the administrations of both President Bush and Obama have recognized that the true nature of our borders go beyond the line between U.S. and Mexico. Since the terrorist attacks of 9/11, the government has expended enormous resources to help control this extended border.
They have done this in part by taking steps to push the border out. This means extensive screening of travelers before they leave their home countries. For example, the Department of Homeland Security (DHS) established the Electronic System for Travel Authorization (ESTA) which requires screening of visa exempt travelers before they can board a plane. Congress required and the government implemented expanded biometric fingerprint collection for travelers, and the State Department has also been a leader in the use of facial recognition technology. The National Counterterrorism Center and other agencies have significantly expanded the quality of security screening. The result is a virtual wall, with a much greater reach and sophisticated screening ability than a physical fence.
Smarter border security will also address the thousands of immigrants who enter legally each year and then overstay their authorized admission, a problem left untouched by a border wall. The FY 2015 DHS Appropriations Act provided $9.9 million for a new reporting environment for the Arrival and Departure Information System, which will allow the federal government to track entry/exit and overstay data on a monthly or weekly basis, as needed. DHS is in the process of testing several new exit control systems, and technological improvements should allow in the near future for significantly more effective use of exit data to assist in immigration security and control.
Having spent many years at the State Department in the Visa Office, I know that there are legitimate questions about immigration reform to be asked; unfortunately, they aren’t the ones being asked in the GOP campaign. Instead, GOP presidential candidates have fallen back on a sound bite – “build the wall” – and have refrained from presenting any 21st Century solutions to this modern challenge. A real policy debate over immigration and security must move beyond a border wall and candidates should be asked to address how they will implement an entry-exit tracking system and improve security screening at consulates and airports outside of the United States.
Jeff Gorsky is Senior Counsel at Berry, Appleman & Leiden LLP. He previously served as a senior lawyer in the Visa Office at the Department of State.
Click here to view Jeff Gorsky’s article that was published in The Hill.
Approximately 5 million unlawful immigrants to obtain relief from deportation.
In a primetime address tonight, President Obama announced a number of actions that the administration will take to overhaul the immigration system. The most controversial and far-reaching initiatives will provide relief from removal (deportation) for approximately 5 million unlawful immigrants. Specifically, the President will:
The White House has provided few specifics about the initiatives. The Department of Homeland Security is expected to provide additional details in the weeks and months ahead, but the government did release fact sheets and background information that shed light on upcoming changes:
Enforcement Reform
Relief for Undocumented Immigrants
DHS will take action to grant relief from removal (deportation) and work authorization to over 4 million unlawful immigrants. The following is a summary of the two programs that were announced tonight:
Shortly after the Presidential address, Secretary Johnson issued a memorandum to the Director of U.S. Citizenship and Immigration Services and the Acting Director of U.S. Immigration and Customs Enforcement, instructing them to take actions to improve policies related to high-skilled businesses and workers. Specifically, the Secretary wrote that:
Green Cards
Foreign Graduates
Entrepreneurs
L-1 Policy Guidance
Portability for Adjustment Applicants
The White House has also stated informally that other changes to the employment-based immigration system are under consideration, including:
The Department of Labor also issued a Fact Sheet indicating that it will be initiating a review of the PERM program and relevant regulations. The Department will seek input on the following:
Other Changes
BAL Analysis
At this time, the White House and the Department of Homeland Security have offered few details regarding the initiatives that may affect foreign graduates of U.S. universities and high-skilled workers. In particular, the government has provided no timeline for implementation or any prioritization of the numerous initiatives. While some of the concepts could be implemented via policy guidance within a few months, others may require rulemaking that could push implementation into 2016.
BAL has been in extensive discussions with the White House and the agencies over the past few months, and the firm will continue that dialogue as the agency moves from concept development to implementation.