The official 30 June deadline to submit an initial application under the EU Settlement Scheme (“EUSS”) has now passed.  There were a flurry of last minute applications and reports of people being unable to submit their applications due to technical difficulties caused by the number of people logging onto the on-line form.  There is a significant backlog of applications and some applications have yet to arrive with the Home Office as they had to be submitted by post.  Fortunately, whilst an application is pending, an applicant continues to have the right to live and work in the UK.

Whilst the deadline for applications has come and gone, there may still be hope for some who may not have managed to submit an application in time.

Continue Reading Closure Of The EU Settlement Scheme – Not Quite The End . . . Yet

In an eagerly anticipated update, the Home Office has now announced that the Covid-19 adjustment to the right to work (“RTW”) check will no longer end on 20 June 2021 but will be extended to 1 September 2021.

The RTW check seems to be the most frequently changing area of UK immigration law at present as this is now our fourth blog on this topic in the last two months.

As a reminder, the Covid-19 concession allows employers to undertake the RTW check without physically seeing an employee’s original documents.  Details of the adjusted process are set out here.  With the UK Government extending lockdown until 19 July and the continuation of guidance that employees should work from home where possible, we have been waiting for this announcement since Monday.

The generous extension of the concession to 1 September is unexpected and an extremely pleasant surprise.  The Home Office states that it has taken on board feedback from employers and stakeholders that many employers do not expect a full return to the office until September.  The Home Office has also received feedback that many employers will be introducing a new hybrid model of working and need time to introduce new processes to comply with the normal RTW requirements.

The Home Office has also confirmed that there will be no requirement for retrospective checks on anyone who had a Covid-19 adjusted check between 30 March 2020 and 31 August 2021 inclusive.

In keeping with this fast moving area, the Home Office will shortly be releasing new guidance for RTW checks undertaken on or after 1 July 2021.  The new guidance will reflect changes made to the Code of Practice on Preventing Illegal Working with regard to the RTW checks which we discussed here.  We will of course post another update as soon as the Home Office publishes the new guidance so watch this space!

On June 9, U.S. Citizenship and Immigration Services (USCIS) updated its policy guidance on the expedited treatment of pending petitions and applications.  The new updates, now included in the USCIS Policy Manual, restore the ability for IRS-designated nonprofit organizations to request expedited service, when the request “is in furtherance of the cultural and social interests of the United States,” regardless of whether premium processing is available.  Petitioners, regardless of tax status, may also request expedited processing in the following situations:

  • Severe financial loss to a company or person, provided that the need for urgent action is not the result of the petitioner’s or applicant’s failure to file or respond timely to USCIS;
  • Emergencies and urgent humanitarian reasons;
  • U.S. government interests (including urgent cases for federal agencies or other public safety or national security interests); or
  • Clear USCIS error.

A company can demonstrate that it would suffer a “severe financial loss” if it is at risk of failing, losing a critical contract, or required to lay off other employees.

The need to obtain employment authorization, standing alone, without evidence of other compelling factors, does not warrant expedited treatment. According to USCIS, job loss may be sufficient to establish severe financial loss for a person, depending on the individual’s circumstances. For example, the inability to travel for work that would result in job loss might warrant expedited treatment.

USCIS, however, generally does not consider expedite requests for petitions and applications where Premium Processing Service is available.

The new guidance pertains only to USCIS, a component of the Department of Homeland Security.  It does not apply to requests to expedite visa service at an embassy or consulate overseas, a process managed by the Department of State.

The Home Office has finally published its revised Code of Practice on Preventing Illegal Working (the “draft Code”) covering the changes to the right to work check requirements for EEA citizens which come into effect on 1 July 2021.

In this article, we look at the changes that the draft Code introduces, how this will affect UK employers and the areas of continued uncertainty.

Continue Reading UK Government Publishes 1 July Right To Work Guidance

On June 7, 2021, the U.S. Supreme Court ruled that a recipient of Temporary Protected Status (TSP) who entered the United States unlawfully is not eligible under the law to adjust status to lawful permanent residence (LPR) “merely by dint of his TPS.”  Sanchez v. Mayorkas, 593 U. S. ____ (2021).  Eligibility for LPR status generally requires an admission into the country, which means a lawful entry into the United States after inspection by an immigration officer.  The Supreme Court decided that receiving TPS does not eliminate the effect of unlawful entry.  The ruling does not deprive TPS recipients of their protected status or work authorization.

In April 2021, the Social Security Administration (“SSA”) notified the public of its intention to no longer issue Employer Correction Request Notices (“no-match letters”) to employers.  SSA no-match letters advise employers that corrective action needs to be taken to resolve a discrepancy between SSA records and the information provided on one or more Forms W-2 (the wage reporting form filed by an employer with the Internal Revenue Service).  Discrepancies may include, for example, typographical errors that resulted in incorrect social security numbers.  But they also include intentional mismatches between an employee’s name and social security number, which may trigger an obligation by the employer to investigate whether the employee who presented the information at their time of hire was the true identity holder or had produced suspect documents.

Continue Reading Social Security Administration Again Pauses the Issuance of “No-Match” Letters

From June 4, 2021, the Japanese government is to implement stricter quarantine measures for travelers from New York, California, Nevada and 12 other states, as well as certain other countries, due to COVID variant infection rates.  Under the stricter quarantine measures, travelers from the applicable states and countries (regardless of nationality) will be required to stay in a government-designated facility (i.e., hotel room quarantine) for three days and, pending a negative COVID test result, are permitted to spend the remaining 11 days in self-quarantine at a place of their choice.  Such measures will also be in place for travelers from Thailand and Germany effective June 4 and have already been in place for travelers from the United Kingdom, France, Denmark and other countries.  Continue reading at Mayer Brown’s COVID-19 blog.

Starting May 3, South Korea implemented the Korea Electronic Travel Authorization (K-ETA) pilot program, an optional system for foreign nationals from 21 visa-exempt countries, including the United States. In April, the South Korean Ministry of Justice confirmed the pilot program would continue until August, after which the program would become mandatory for visa-exempt foreign nationals in September 2021.

Continue Reading South Korea Will Mandate Electronic Travel Authorizations for Foreign Travelers Beginning in September

The EU plans to launch its EU Digital Covid Certificate (the “Certificate”) across all Member States by 1 July, although some countries, such as Ireland, may implement it at a later date.

As discussed in our previous blog, the Certificate will facilitate travel within the EU by confirming someone has been fully vaccinated with an EU approved vaccine, has had a negative test or has had the virus and recovered. The information will be in the form of a QR code and may be stored on someone’s phone or printed on paper.

Some EU countries are adopting the Certificate or relaxing their restrictions early in order to welcome back tourists as soon as possible. Greece has already successfully tested the Certificate system and has launched it. Spain will be allowing entry of fully vaccinated visitors from any country (including the US and UK) as of 7 June.  Although Spain does not have a date for launching full use of the Certificate, it is anticipated this will happen shortly to further boost the tourist industry. Estonia anticipates having the Certificate system up and running within the first half of June.

In the meantime, travelers should be aware that, even after they have implemented the Certificate, individual EU Member States may still use a “brake” mechanism to impose restrictions if they are concerned about a particular country’s epidemiological status or if there is a variant of concern or interest.  All travelers should check their destination and / or transit country’s travel advice and any restrictions prior to travelling.

The resumption of tourism will be a welcome financial boost to the economies of many EU Member States. With the summer tourist season about to kick off, we will hopefully see more EU countries adopting the Certificate to facilitate increased international tourist and business travel.

On May 26, 2021, US Immigration and Customs Enforcement (ICE) and the Department of Homeland Security (DHS) announced an extension of its remote I-9 verification policy that provides flexibility for employers conducting remote reviews of I-9 supporting documentation.  This extension applies to employees hired on or after June 1, 2021, and remains in effect until August 31, 2021.  As with prior iterations of the policy, employees that are covered by this extension are temporarily exempt from the physical inspection requirements of the Form I-9 verification process until they undertake non-remote employment on a regular, consistent, or predictable basis, or the extension of the flexibilities related to such requirements is terminated, whichever is earlier. Employers must note that this exception only applies to workplaces that are operating remotely.

For a more detailed analysis of the policy, please review our prior blog post on the original policy announcement.