Earlier this week USCIS published its final rule introducing an online pre-registration process for H-1B cap petitions and changing the order of the two lotteries for visa beneficiaries. In reaction to USCIS’s announcement, Law360 spoke with immigration practitioners, including Mayer Brown’s Paul Virtue, about the impact of these changes on employers and the business community. Read more at Law360.
Grace Shie is a partner in Mayer Brown’s Washington DC office and a member of the Employment & Benefits group focusing on global mobility and immigration. She advises multinational companies on employee mobility and management of the work corps across the globe, including in major financial centers and emerging markets. Grace’s background includes five years in Hong Kong where she managed a top-ranked immigration practice covering Greater China and coordinated matters for clients in the Asia-Pacific region. Grace, who is fluent in Mandarin, continues to maintain a practice focus on inbound expatriate movement into China and Hong Kong, as part of Mayer Brown’s new global worksite initiative. In addition, she has a longstanding command of US immigration and manages global immigration matters across all worldwide regions.
As the final Brexit date approaches, EU-member state governments are putting in place specific plans for British nationals living within the EU after March 29, 2019. Earlier this week the Dutch Immigration and Naturalisation Service (“IND”) shared a template letter it will begin sending to UK nationals legally residing in the Netherlands regarding the continuation of residence post Brexit in case there is no withdrawal agreement ratified between the UK and the EU. Key points contained in the letter include:
- There will be a transition period (March 29, 2019 – July 1, 2020) during which UK nationals and their qualifying dependents will maintain their rights to residence, employment, and study in the Netherlands. Continue Reading Dutch Government Implements Plan for British Nationals in Netherlands Post Brexit
In a recent Bloomberg Law article discussing what 2019 has in store on the immigration front, Liz Stern remarks on the changing landscape of business immigration as USCIS challenges and narrows the definition of the H-1B specialty occupation visa category. Although comprehensive immigration reform is not likely, Stern anticipates more litigation as businesses become increasingly frustrated with the shift in adjudication patterns, new regulations, and changes to specific immigration categories and benefits. For more on what’s in store in the new year, read the article.
Last week the German newspaper, Süddeutsche Zeitung, published an article detailing a preliminary draft for a new immigration law in Germany. Although the draft is not publicly available, the newspaper revealed that the new immigration law is set to be approved by Angela Merkel’s cabinet on December 19, 2018. According to Süddeutsche Zeitung the key aspects of the law are as follows:
- Any foreign national who signs an employment contract and meets qualification requirements (or their equivalent) will be permitted to work in Germany. The new draft would strip away a key requirement of the current law – no longer requiring a “priority check” of whether a German or EU citizen is available to fill the same position.
- Skilled workers will be provided the opportunity to move to Germany for a period of six months to search for employment. Skilled workers will be issued a residence permit that provides permission to work or to seek employment. Applicants will be required to demonstrate sufficient knowledge of the German language, the ability to pay for the cost of living in Germany, and the attainment of “equivalence” of their qualification (e.g., academic or other credentials).
- The draft law also contains certain provisions governing refugees, including the ability to work in Germany for two years after having completed their qualification training in Germany.
Additional details are expected to be made publicly available once the new law is approved.
Mayer Brown attorneys, including partner Paul Hughes, filed a lawsuit in the US District Court of the Middle District of North Carolina, challenging the legality of the August 9, 2018 USCIS policy memorandum on the accrual of unlawful presence for F, J, and M visa holders.
If an individual accrues more than 180 days of unlawful presence, she is subject to a 3-year reentry bar. That bar grows to 10 years if the individual is unlawfully present for 365 days or more. Previously, USCIS calculated unlawful presence as beginning the day after an immigration officer or immigration judge determined that the holder of an F, J, or M visa is out of status. That policy provided necessary notice to individuals, providing them an opportunity to cure any status violation prior to the imposition of a reentry bar. This policy has controlled for more than 20 years.
On August 9, USCIS issued a policy memorandum that purports to create a fundamentally different policy regarding unlawful presence. Now, USCIS will backdate unlawful presence, beginning the clock on the date of the factual situation which rendered an individual out of status. Thus, when an immigration officer or judge determines that an individual is out of status, the result is an automatic 3- or 10-year reentry bar if more than 180 days have elapsed from the underlying factual circumstances, which is often the case.
Plaintiffs include Haverford College, The New School, Guilford College, and Foothill-De Anza Community College District, among others. The universities argue that the revised policy is “intentionally designed to impose tens of thousands of reentry bars” of up to 10 years on holders of visas typically granted for academic purposes. The complaint states that now it is “impossible for an individual to know with certainty what conduct will trigger such a reentry bar. An individual may commit conduct that he or she has no reasonable way of knowing will later cause an USCIS officer or immigration judge to later declare him or her ‘out-of-status,’ and—because of the new policy of backdating—will be immediately subject to a reentry bar once that decision is made.”
In an article appearing in Law360, Lisa Pino offers expert analysis on the key points from USCIS’s new Notice to Appear (“NTA”) policy. In the article, Pino notes that although the new NTA policy does not currently impact employment-based petitions, it nevertheless “is of concern to unauthorized immigrants.” Pino writes that “unless applicants seeking immigration benefits are confident that their respective applications will be approved, their chances and risk of facing an NTA and a subsequent deportation proceeding in court have now significantly grown.” Read the article here.
In June 2018, USCIS circulated a new policy memo providing guidance on when cases should be referred for deportation proceedings and when Notices to Appear (“NTAs”) should be issued in instances where applicants are deemed inadmissible or deportable. Implementation of the new policy was delayed as USCIS determined how exactly the new policy would be put into action. While we have yet to see how implementation will take shape, the policy is now in force and will be incrementally rolled out.
Law360 discusses what the new policy means for foreign nationals whose status-bearing applications are denied. The article quotes Paul Virtue who states that the memo is “clearly designed to ensure that a decision not to issue an NTA should rarely be taken.” Read the article here. USCIS has also released Q&As from its September 27, 2018 stakeholder teleconference on the new policy memo.
USCIS announced today that it is expanding its temporary suspension of premium processing to include additional types of H-1B petitions such as change of employer petitions and amendment petitions. Currently, the suspension impacts only cap-subject H-1B petitions which continue to be adjudicated under regular processing. Effective September 11, 2018, all other H-1B petitions will be subject to the same suspension except for the following: (1) cap-exempt petitions filed exclusively with the California Service Center because the employer is cap exempt or because the beneficiary will be employed at a qualifying cap exempt institution, entity, or organization; or (2) petitions filed exclusively with the Nebraska Service Center requesting continuation of previously approved employment without change with the same employer, with a concurrent request for either a visa notification (consular notification) or extension of stay. This means that premium processing is suspended for H-1B change of employer petitions by which a foreign worker may transfer or “port” from one employer to another, as well as for H-1B amendments based on changes in employment such as job location changes. The suspension is expected to last until February 19, 2018.
Mayer Brown is pleased to welcome María (“Maru”) Ferré as counsel in our Global Mobility group within the firm’s Employment & Benefits practice located in our Northern California offices. Maru focuses on immigration compliance and risk management.
In addition to enhancing the firm’s Global Mobility & Migration and Employment & Benefits capabilities in the Bay Area, Maru brings impressive experience in creating and managing immigration compliance products for clients doing business around the world.
Prior to joining Mayer Brown, Maru developed and implemented a mobility compliance program for 26 jurisdictions outside the United States, as well as global strategies and best practices to facilitate the movement of personnel around the world. In addition to her direct development of risk management, compliance and advisory services, she managed the local network of counsel in the global locations of major clients. A native Spanish speaker, Maru is particularly familiar with employer mobility needs and challenges in Latin America and Asia. She is also experienced in addressing clients’ needs in Europe, the Middle East and North America, including US immigration.
The Court of Justice of the European Union (ECJ) has ruled that spouses of the same sex are covered under the EU law providing for freedom of residence to EU citizens and their family. In a June 5, 2018 Press Release, the ECJ explains “[a]lthough the Member States have the freedom whether or not to authorize marriage between persons of the same sex, they may not obstruct the freedom of residence of an EU citizen by refusing to grant his same-sex spouse, a national of a country that is not an EU Member State, a derived right of residence in their territory.”
The ECJ’s judgment arises from a case brought by a Romanian national who was unsuccessful in securing residency rights in Romania (which does not legally recognize same-sex marriage) for his same-sex spouse, a US citizen whom he had married in Brussels. The residency request was based on an EU Directive guaranteeing the freedom of movement and residence to EU citizens and their families; this EU directive allows the non-EU “spouse” of an EU citizen to join his or her EU spouse in the member state in which the EU spouse is living. The couple brought an action before the Romanian courts, which then asked the ECJ to decide whether a same-sex spouse may be regarded as the “spouse” of an EU citizen under the freedom of movement directive. In its June 5 press release, the ECJ states that “in the directive on the exercise of freedom of movement the term ‘spouse,’ which refers to a person joined to another person by the bonds of marriage, is gender-neutral and may therefore cover the same-sex spouse of an EU citizen.”