Monday, May 26, 2014

South Africa - Immigration Reforms Take Effect May 26

May 23, 2014

The President of the Republic of South Africa has proclaimed that new immigration laws will come into effect on May 26, 2014. The implementation of the new laws is expected to result in significant delays and other case processing issues.


In an unexpected move, the President of South Africa has determined that a package of immigration reforms that had been delayed for public consultation will now take effect on May 26, 2014. The reforms will make changes to immigration requirements, procedures and even terminology, and their sudden introduction is likely to lead to delays and other case processing issues as the Department of Home Affairs (DHA) works to implement the changes. 

Centivu is reviewing the published regulations and accompanying forms to assess the impact of the reforms on clients and the extent to which the new laws vary from previous announcements relating to the changes. Those changes indicated that reform measures were likely to include new labor market testing requirements and new restrictions for General Work Permits, corporate permits and permits for accompanying unmarried partners; extensions of the validity of intracompany transfer work visas to four years; new restrictions on in-country changes of status; replacements for two work permit categories; and the introduction of new application forms, application fees, and penalties for non-compliance. 

What This Means for Employers 

Employers are advised to immediately work with their Centivu representative to review how the reforms will affect both existing and upcoming immigration cases for South Africa. Employers should be aware that case processing for South Africa will likely be quite unpredictable for the next several months as consular and DHA officials adjust to the new processes, and should be prepared for significant delays.
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Turkey - Additional Documentation Now Required for Dependent Residence Permits

May 22, 2014

Employers will need to plan ahead for new document requirements, including background clearances as well as proof of accommodations, medical insurance, and sufficient financial support, in cases where foreign workers in Turkey will be accompanied by dependent family members.

Employers should plan ahead for document gathering in cases where foreign workers in Turkey will be accompanied by dependent family members. Over the past several weeks, authorities have been clarifying these requirements, which include background clearances as well as proof of accommodations, medical insurance, and sufficient financial support, on a case-by-case basis. 

As previously reported, guidance on how dependent residence permit applicants can meet new document requirements was not specified when the immigration reform law that introduced the requirements took effect on April 12. Since then, the local police stations that process these permit applications have only provided additional guidance orally on a case-by-case basis. Because some of the required documents can take some time to obtain, employers should plan document gathering efforts early in the application process. 

Though requirements may not be consistent across all local police stations, the following documents are now generally being requested for dependent residence permit applications:

  • Background Clearances: A police clearance certificate for the principal showing an absence of family violence crimes that covers the five years prior to the date of application. Currently in our experience, local police stations are requesting a clearance certificate from Turkey only, regardless of how long the principal has been in Turkey. However, police stations are expected to soon require clearance certificates from all jurisdictions where the principal has resided in the prior five years. 
  • Proof of Accommodations: In most cases, a notarized copy of the lease agreement for the principal’s place of residence in the principal’s name. But because Turkish residential leases commonly reference an informal or incorrect address, the principal must also provide the residence’s Deed of Trust or a Municipality Address Registration document (Belediye Numartaj Kayiti). Note that if principal is accompanied by an unmarried partner or an adult dependent child, a lease that also references these family members may be requested as well. 
  • Proof of Medical Insurance: For each dependent, either: registration in Turkey’s national health system, or private medical coverage from a Turkish entity, evidenced by an official insurance letter that includes details of the coverage. Local police stations currently are not accepting international medical insurance policies if there is no local entity, but may do so in the future. 
  • Proof of Sufficient Financial Support: A payroll record for the principal that is signed and sealed by a signature authority of the principal’s employer, either the Turkish or overseas entity.

What This Means for Employers and Foreign Nationals

If a foreign worker will be accompanied by dependent family members while in Turkey, he or she and the employer should begin gathering the necessary documents well in advance. Some documents, such as notarized leases and other proof of accommodation, may take several weeks to procure.
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Malaysia - Reminder: Employers Must Register for E-Filing System

May 22, 2014

Employers are strongly urged and reminded to register for Malaysia’s new e-filing system, which is required before they can complete the initial stage of the employment pass application process. The registration process may take up to two months.


Employers applying for new employment passes with the Malaysian Immigration Department (MID) are reminded that they must complete an online registration process before they can use the new e-filing web portal. Employers must use the new online portal to submit applications for approval to fill an open position with a foreign national candidate (Stage 1 of the employment pass application). 

The online registration process may take up to two months. Companies that are not already registered can expect delays of approximately two months in the processing of new employment passes. 

What This Means for Clients 

Employers that have not already registered to use the new e-filing system should take immediate steps to do so. Employers may have to postpone start dates for upcoming assignments in Malaysia due to the expected delays. For registered employers, processing of employment pass applications continues to average five to eight weeks. 

Though the new online filing system is creating new administrative burdens and delays for employers, it is expected to help MID processing become more efficient and reduce application wait times in the long term.
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Australia - Subclass 457 Visa Compliance: Compulsory Retirement Contribution Rate Increases on July 1

May 21, 2014

Australia’s mandatory superannuation contribution rate will increase 0.25 percent to 9.5 percent on July 1, 2014. Employers considering reducing the salary component of a foreign national’s total compensation package will need to consider how such a change will affect their obligation to pay at market rate and will need to notify the Department of Immigration and Border Protection of any downward change to the employee’s salary with a new nomination application.


Australia’s compulsory employer superannuation contribution rate – the amount employers are required to contribute toward employee retirement funds – will increase 0.25 percent to 9.5 percent on July 1, 2014 as part of a program of increases designed to raise the rate to 12 percent by 2020. This superannuation rate last increased, by 0.25 percent, on July 1, 2013. 

Employers who choose to reduce the salary component of the total salary package of a foreign national rather than increase the package by 0.25 percent (providing this is permitted under the employment contract) will need to notify Department of Immigration and Border Protection of the change. Before making any decision to reduce the salary component, an employer must ensure that the adjusted salary will continue to satisfy the market rate requirement. 

What This Means for Employers 

Employers should develop strategies for how they will account for increases in superannuation contribution rates. Employers should also review their subclass 457 visa holders’ contracts of employment to determine whether the contracts permit them to adjust employees' salaries to account for higher superannuation rates. Employees will need to be notified of the change in superannuation rates and how it will impact them. 

Employers that take on the expense of additional superannuation payments will not be required to take any action. A new subclass 457 nomination will only be required if the salary component of the salary package is reduced to accommodate for the increase in superannuation contribution rate.
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Monday, May 19, 2014

South Africa - Streamlined Short-Term Work Authorization Process

May 16, 2014

Short-term work authorization applications are now processed by South Africa’s consular posts rather than the Department of Home Affairs and will be adjudicated concurrently with the foreign national’s entry visa application, if a visa is required. This change is expected to shorten overall processing times.

Employers are no longer required to submit applications for short-term work authorization, known as Section 11(2) visas, to the Department of Home Affairs in South Africa (DHA). These applications are now processed by South Africa’s consular posts and will be adjudicated alongside foreign nationals’ visa applications.

Section 11(2) Visas are valid for work for up to 90 days and cannot be renewed.

Visa Nationals
Previous Procedure
New Procedure
Step 1
Application to the DHA Head Office in Pretoria for authorization to work in South Africa
Application to South African consular post for authorization to work and visa for travel
Step 2
Application to South African consular post for visa
Foreign national travels to South Africa with work authorization visa endorsed in passport prior to entering South Africa
Step 3
Foreign National travels to South Africa with work authorization visa endorsed in passport prior to entering South Africa

Visa-Exempt Nationals
Previous Procedure
New Procedure
Step 1
Application to the DHA Head Office in Pretoria for authorization to work in South Africa
Application to South African consular post for authorization to work in South Africa
Step 2
Foreign national travels to South Africa and receives work authorization endorsement upon entry
Foreign national travels to South Africa and receives work authorization endorsement upon entry


What This Means for Employers

This change streamlines the Section 11(2) visa application process by removing a step, which should reduce processing times overall. However, processing times and consistency in decision-making will likely vary across different consular posts.

The change also indicates that the DHA is showing an interest in immigration service delivery and client satisfaction.
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United Arab Emirates - Dubai Begins Mandatory Online Filing for Employment Entry and Residence Permit Applications

May 14, 2014

Though an implementation date for the e-filing mandate has not been confirmed, companies with five or more employees should register for the online system and begin using it by May 18 at the latest. Online filing will be mandatory in mainland Dubai only; there are no filing changes in Free Trade Zones.

All new and renewal Employment Entry and Residence Permit applications from companies with more than five employees will soon have to be filed online using Dubai Immigration’s eDNRD e-services platform. Paper applications submitted at Dubai Immigration counters will no longer be accepted. The online filing requirement applies to entities operating in mainland Dubai only; there are no changes for filing in Free Trade Zones.

The exact implementation date for the e-filing mandate has not been confirmed. However, Dubai officials had previously indicated that employers had to register for the new system by May 18, and employers are advised to register and start using the system by that date.

Employers must register and create an account before they can file applications in the online system. The following documents/requirements are necessary to create an eDNRD account: 
  • A copy of the sponsoring entity’s Trade License and Immigration Establishment Card, 
  • A copy of the entity’s authorized signatory’s passport information page and Emirates ID card, 
  • An application completed in English and Arabic, and 
  • An authorization letter.

Employers may also require a valid e-wallet (Noqodi) account for payment of processing fees.

The online filing system allows for employers to create multiple user accounts that are authorized to login and create applications in the system.

What This Means for Employers

Employers should register to use Dubai Immigration e-services as quickly as possible to avoid application delays.

In the short term, the new online filing system may create some administrative burdens for employers, who will have to register for the online portal and set up an appropriate payment system to allow them to submit applications online. In the long term, however, an online filing system is expected to help application processing become more efficient and minimize time spent by the authorized representatives at government offices.
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United Arab Emirates - TECOM Free Trade Zone Requires Updated Foreign Employee Data

May 13, 2014

Employers operating in the Dubai Technology, Electronic Commerce and Media (TECOM) free trade zone have until June 10, 2014 to confirm the names and salaries of all currently sponsored foreign employees working in that area. Failure to do so may result in TECOM freezing an employer’s access to immigration services.


By June 10, all companies operating in the Dubai Technology, Electronic Commerce and Media (TECOM) free trade zone are required to confirm the names and salaries of all currently sponsored foreign employees and notify TECOM of necessary updates. Failure to do so will result in a suspension of a company's ability to receive any government services through TECOM, including the processing of employee visas, residence permits, and renewals.

The information request is part of a TECOM Authority effort to update its databases for all companies that operate within its jurisdiction, and it could lead to the roll out of new online application systems in the free zone.

All TECOM-based entities should soon receive an email notification about the data request, followed in the mail by a hard-copy list of the company's sponsored and non-sponsored foreign employee details. Employers must review this list, reconcile it with their internal HR records and return it to TECOM with any amendments. Employers will be required to provide updated salary details for each foreign employee.

If an individual is listed as an active employee but is no longer employed, the employer will need to provide proof that it canceled the individual’s residence permit. Failure to cancel a permit may result in penalties and a declaration that the affected individual is an absconder, opening him or her up to deportation.

Once an employer returns the list to TECOM, the list will be considered the final roster of the entity’s active foreign employees.

What This Means for Employers

Employers should begin reviewing the TECOM-provided list of sponsored foreign employees immediately to ensure compliance with the June 10 deadline.

TECOM’s data collection effort should also serve as an important reminder of the importance of complying with immigration sponsorship requirements, in particular with resident permit cancellation requirements. Additional enforcement actions from TECOM, such as worksite inspections, are also possible following the data review.
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Dominican Republic - Resident Permit Applications Must be Submitted Within 30 Days of Entry

May 12, 2014

Employers should plan to file foreign employees’ residence permit applications quickly after entry into the country to avoid delays, in light of a new 30-day filing window.


Foreign nationals seeking to work and reside in the Dominican Republic are now required to submit their residence permit applications within 30 days of entering the country.

Foreign nationals who will reside in Dominican Republic first must obtain a residence visa prior to traveling to the country. After entry, they must submit an application for a residence permit. Previously there was no time limit for when the residence permit application had to be filed.

What This Means for Employers

Employers should begin gathering supporting documentation in advance of foreign employees’ entry in order to allocate sufficient time to prepare the application and collect the necessary company and foreign national signatures. Advance planning will enable employers to file resident permit applications as quickly as possible after entry.
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Czech Republic - Combined Work and Residence Permit, Other Reforms to Be Implemented

May 12, 2014

Foreign nationals seeking to work in Czech Republic under a local employment contract may soon obtain a combined work and residence permit. Employers will no longer be required to submit a separate work permit application to the labor office.


The Czech Republic will soon implement a combined work and residence permit called an employment card, under recently approved legislation. Once the employment card is introduced, employers will no longer be required to submit a separate work permit application to the labor office, except for intracompany transferees who will still require separate work permits.

Though separate work permits will no longer be required, existing labor market testing requirements will remain unchanged. In order to file the employment card application, employers must still await approval from the labor office to fill a position with a non-EU national. Additional details on the combined permit are expected in the coming weeks.

In addition, the green card program, which allows foreign specialists to obtain work authorization without employer sponsorship, will be eliminated.

The Czech government is required to implement a combined permit under an EU directive. The recently approved legislation is expected to also introduce a number of other immigration reforms that have yet to be announced. One potential change is a six-month work permit exemption for intracompany transferees seeking to conduct on-the-job training at a related entity.

What This Means for Employers

In many EU states, the introduction of combined work and residence permits has resulted in temporary processing delays, and employers can expect the same in Czech Republic. However, the introduction of a single permit and application process should eventually streamline the work authorization process for foreign nationals and their employers.
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Poland - Immigration Reforms Include Implementation of Combined Work and Residence Permits

May 9, 2014

An immigration reform package that took effect on May 1 introduces a new combined work and residence permit that requires in-person submission of fingerprints. Also part of the immigration reforms are new employer notification requirements and new filing periods for permit renewal applications. Employers should expect temporary processing delays for the next several weeks as the new programs are implemented.

A series of immigration reforms took effect in Poland on May 1, 2014, as part of the country’s implementation of a combined work and residence permit as required by an EU directive. Employers should expect temporary processing delays for the next several weeks as the new programs are implemented.

The reforms introduce a combined work and residence permit that requires in-person submission of fingerprints. Also part of the reforms are new employer notification requirements and new filing periods for permit renewal applications. Additional changes are also expected but have yet to be officially announced.

Combined Work and Residence Permits

Third-country nationals intending to work in Poland under a local employment contract will now apply for a combined work and residence permit rather than being required to apply for a separate work permit. Applications for the combined permit may be filed from within Poland at the provincial governor’s office with jurisdiction over the applicant’s residence. Applicants must submit fingerprints in person, which was not required previously.

The new combined permit process, with the new fingerprinting requirement in particular, is expected to result in processing delays for the next several weeks as officials adjust to the new procedures. However, the introduction of a single permit and application process should eventually streamline the work authorization process for foreign nationals and their employers.

Employer Notification Requirements

Employers are now required to notify labor officials within seven days of any of the following in connection with any work permits they have sponsored:
·         If the employer’s registered name or address changes, or if any part of the employer has been taken over by another entity;
·         If the Polish employer’s work permit point of contact person changes (in intracompany transfer cases);
·         If a foreign national has not started working in Poland within three months of the work permit’s issuance date;
·         If a foreign national stops working for a period exceeding three months; and
·         If a foreign national’s employment ends more than three months before the work permit’s expiration date.
·         Failure to make the notification may result in cancelation of the work permit.


Filing Periods for Renewal Applications

Mandatory filing windows for residence permit and visa renewal applications have been eliminated. Applications to renew residence permits or visas can now be filed up to and on their expiration dates. Previously, residence permit renewals had to be filed no later than 45 days before the existing permit expired, and visa renewals had to be filed at least three days prior to expiration.
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Switzerland - Work Permit Requirements Remain for EU Nationals Despite Expiration of Quota Limits

May 9, 2014

Though quotas are to be eliminated for most EU nationals seeking to work in Switzerland, work permits will still be required. Bulgarian, Croatian and Romanian nationals will continue to require work permits and remain subject to quotas.

As reported in our May 2 client alert, the Swiss government will not renew its annual quotas on the employment of most EU nationals, but EU nationals seeking to work in Switzerland will still require work permits. Bulgarian, Croatian and Romanian nationals must still obtain work permits and will continue to be subject to annual quotas.

The expiring quotas limited the number of long-term B-Permits that could be issued to most EU nationals for work under Swiss employment contracts. The quotas expired on April 30 for EU-8 states and will expire on May 31 for EU-17 states.

The EU-8 countries are the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Slovakia and Slovenia. The EU-17 countries are Austria, Belgium, Cyprus, Denmark, Finland, France, Germany, Greece, Ireland, Italy, Luxembourg, Malta, the Netherlands, Portugal, Spain, Sweden, and the United Kingdom.

What This Means for Employers

Once the quotas expire, there will no longer be a limit on the number of EU nationals who can enter Switzerland for work, at least until the Swiss government implements a February referendum that seeks to limit immigration from EU states.


In practice this means that, depending on the Swiss canton, most EU nationals who will work under local employment contracts can begin working immediately after completing in-country registration, even if their permit application is still in process. Those who will work while remaining on their home employment contract must obtain a permit prior to starting work in all cantons. Bulgarian, Croatian and Romanian nationals must wait for an approved work permit before they can start working in Switzerland.
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United States - June 2014 Visa Bulletin: Significant and Unexpected Retrogression for EB-3 China

May 7, 2014

The EB-3 China priority date cut-off will retrogress by six years, to October 1, 2006, while EB-2 China will advance modestly by five weeks, to May 22, 2009. For most other countries, EB-3 will retrogress by 18 months, to April 1, 2011.

According to the State Department’s June Visa Bulletin, the EB-3 category will retrogress significantly for China next month. The cut-off date for China EB-3 professionals and skilled workers will retrogress by six years, to October 1, 2006, while the EB-3 other worker category will retrogress nine years, to January 1, 2003.

For most other countries, EB-3 will retrogress by 18 months, to April 1, 2011, but will advance by two weeks for India, to October 15, 2003, and by two months for the Philippines, to January 1, 2008.

The EB-2 category will advance by five weeks for China, to May 22, 2009, but will remain unchanged for India, at November 15, 2004.


What the China EB-3 Retrogression Means for Employers and Foreign Nationals

For the last several months, the State Department has advanced the EB-3 China priority date cut-off so that it has been far ahead of the cut-off date for EB-2 China. Many foreign nationals in the China EB-2 subcategory have sought new I-140 immigrant worker petitions in order to be reclassified to EB-3 and benefit from greater immigrant visa availability. The result has been a significant surge in demand for EB-3 China immigrant visa numbers, bringing the category close to exhausting its annual quota. Agency officials do not expect EB-3 China to move forward again until the next fiscal year, which begins on October 1.

The severity of next month’s retrogression is unexpected. Though the State Department suggested that retrogression was possible, agency officials had until now indicated that the China EB-3 cut-off date was likely to remain ahead of EB-2 for the foreseeable future. That prediction has not been borne out.

June 2014 Priority Date Cut-Offs

In June 2014, EB immigrant visa priority date cut-offs will be:

EB-1
Current for all countries.

EB-2
China: May 22, 2009
India: November 15, 2004
All other countries: Current

EB-3 Professionals and Skilled Workers
China: October 1, 2006
India: October 15, 2003
Philippines: January 1, 2008
All other countries: April 1, 2011

EB-3 Other Workers
China: January 1, 2003
India: October 15, 2003
Philippines: January 1, 2008
All other countries: April 1, 2011

EB-5
Current for all countries and subcategories.
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United Kingdom - Passport Return Service Expands to Additional Tier 2 Applicants

May 7, 2014

Applicants for permanent residence under Tier 2 will now have their passports and biometric residence permits returned to them within seven to ten days of filing, under an expanded Passport Pass-Back pilot program.


Individuals applying for Indefinite Leave to Remain, the UK term for permanent residence, under Tier 2 of the Points-Based System will now have their passports and biometric residence permits returned to them within seven to ten days of submitting their applications. The Home Office expanded the Passport Pass-Back pilot program to cover these applicants on May 6, 2014.

Passports and biometric resident permits will be returned automatically. Applicants do not need to request that these documents be returned.

The passport return service launched as a pilot in July 2013 for applicants in the Tier 2 (ICT) category. The pilot is being expanded to additional Tier 2 applicants following positive feedback from individuals and Home Office staff.

What This Means for Foreign Nationals

The pilot program is a significant benefit to eligible Points-Based System migrants who travel frequently for business and work. By having their passports returned quickly, these applicants may travel abroad or apply for visas to other countries while awaiting adjudication of their UK application, provided that their current UK visa remains valid and that they have valid immigration status to remain in the UK.
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Singapore - Employers Should Review Salaries of Self-Sponsored Employees Before Year-End Compliance Deadline

May 6, 2014

A significant increase in the salary minimum for the Personalized Employment Pass (PEP) will take effect December 31, 2014. Employers should begin reviewing the salaries of PEP employees and evaluating options for those who may not meet the new minimum by the deadline.


In anticipation of a significant increase in the minimum salary for employees holding Personalized Employment Passes (PEP), employers should begin reviewing the salaries of affected employees and evaluating options for those who do not meet the minimum. Effective December 31, the minimum PEP salary will increase fourfold to SGD 144,000, from SGD 34,000.

The PEP is a self-sponsored form of work authorization that is not tied to any specific employer. It is issued only once for a non-renewable three-year period. PEP holders may generally work for any employer and can remain in Singapore for up to six months in between jobs to evaluate new employment opportunities.

Who Is Subject to New Salary Requirements?

As previously reported, most individuals who obtained a PEP before December 1, 2012 must earn a fixed annual salary of at least SGD 144,000 in order to maintain their PEP status after December 31, 2014. Affected PEP holders who are unable to meet the increased salary requirement will need to change to a different immigration status, such as permanent residence or a company-sponsored employment pass, before December 31 to continue working and residing in Singapore.

The SGD 144,000 salary threshold already applies to individuals who obtained a PEP after December 1, 2012. There is no change for these PEP holders.

For PEP holders who are unlikely to meet the SGD 144,000 salary requirement, arrangements should be made to obtain permanent residence or employment passes before December 31. Employers should avoid last-minute filings at year-end when employees and their families would usually take leave for the holidays.

Exemption from the Salary Requirement

PEP holders who obtained a PEP before December 1, 2012 are exempt from the increased salary requirements if their passes will expire between January 1, 2015 and June 30, 2015. These PEP holders will be allowed to stay in Singapore until their PEP expires, provided they continue to meet the eligibility criteria under which their pass was issued.

Employers should ensure that these PEP holders will continue to meet the requirements that applied when their pass was issued. If these employees will continue working for the company beyond their PEP expiry date, then steps must be taken to apply for company-sponsored employment passes for them.

Dependents of PEP Holders

Dependents of current PEP holders will be allowed to stay in Singapore as long as their sponsor’s pass is valid and they entered Singapore on or before December 1, 2012.

What This Means for Employers and Foreign Nationals

Because PEP holders obtain their passes without employer sponsorship, it may be difficult to distinguish them from employment pass holders and permanent residents. Employers may need to update their records before they can identify affected PEP employees. Salary records for intracompany transferees may also need to be updated to identify PEP holders and enable a full review.
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United States - USCIS to Begin Full-Scale Implementation of L-1 Site Visit Program

May 5, 2014

During the first phase of implementation, the USCIS Fraud Detection and National Security Directorate will focus on worksite inspections of L-1A managers and executives who have extended their stays in the United States. Inspections relating to L-1B employees and other L-1 case types are expected to begin at a later stage of the program.


USCIS’s Fraud Detection and National Security (FDNS) Directorate is expected to begin full-scale implementation of an L-1 site inspection program in the near future, agency officials announced last week.

In meetings with business immigration stakeholders, FDNS leadership confirmed that the initial phase of the program will focus on the worksites of L-1A managers and executives who have obtained extensions of stay from USCIS Service Centers. This includes those who originally obtained L-1A status through a consular application under their employer’s blanket L petition or an L-1 application at the U.S. border, but later on had their stay extended through a USCIS petition.

In a later phase of the program, USCIS plans to inspect the worksites of L-1B extension beneficiaries, but has not specified when this will begin.

It is not known whether the agency will remain focused on verifying Service Center L-1 petitions exclusively. FDNS officials have not addressed whether the program will be expanded to include L-1 applications adjudicated by U.S. consulates under blanket petitions or Canadian L-1 cases approved by U.S. Customs and Border Protection.

USCIS announced its intention to conduct inspections of L-1 employers last year, after a report of the DHS Inspector General urged the agency to more closely scrutinize L-1 petitions. Earlier this year, a small number of employers reported L-1 site visits, which were likely a part of the agency’s testing of the new initiative.

What L-1 Site Inspectors Will Review

USCIS is expected to select L-1 petitions at random for site inspection. As with H-1B site visits, FDNS officers will typically arrive at the workplace unannounced and spend 30 to 90 minutes conducting the inspection. The officer usually asks to speak to an employer representative, such as a human resources manager, as well as the foreign beneficiary of the petition in question and his or her direct supervisor or manager.

The officer is likely to ask questions about the nature of the employer’s business, the foreign national’s job duties and salary and the employer’s use of other immigration programs. In some cases, the officer will ask to tour the employer’s premises and the foreign national’s work area, and may want to photograph the premises. The employer may be asked to provide documents like payroll records or paystubs for the foreign national.

After the inspection, the FDNS officer may contact the employer and foreign national by phone or email to request additional information. If there appears to be any discrepancy between the information provided in an immigration petition and the circumstances at the worksite, USCIS may notify the employer of its intent to revoke the petition and provide the employer with an opportunity to explain any perceived inconsistencies.

What the Site Visit Expansion Means for Employers

As USCIS prepares to launch the L-1 site visit program, many questions remain about the scope of the initiative. Though site inspections will initially be limited to Service Center L-1 extension petitions, the program could be expanded to a much broader group of cases, including those initially adjudicated by U.S. consulates or Customs and Border Protection officers. Stakeholders in the business immigration community are seeking clarification from USCIS about whether it will partner with those agencies to conduct site verifications of this larger group of L-1 case types.

Employers could also face new site visit challenges because of the special complexity of the L-1 visa program. For instance, an L-1 beneficiary may work at a client site, may work only intermittently in the United States, or may be transferred to a related U.S. entity without the need for notice to USCIS – circumstances with which site visitors may be unfamiliar, especially in the early stages of the inspection initiative. In these circumstances, employers may need to take extra steps to demonstrate that they and their L-1 employees are complying with program rules.
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Switzerland - No Work Permit Quotas for Most EU Nationals

May 2, 2014

Most EU nationals will again have the unrestricted ability to work in Switzerland, as the Swiss government has announced that it will not renew the annual work permit quota program. The quotas expired on April 30 for EU-8 states and will expire on May 31 for EU-17 states. Bulgarian, Croatian and Romanian nationals will continue to require work authorization and to be subject to quotas.


Most EU nationals will soon be able to work in Switzerland without restriction when work permit quota limits introduced last year expire. The Swiss government has announced that it will not renew the quotas for long-term work permits – known as B-Permits. The quotas expired on April 30 for EU-8 states and will expire on May 31 for EU-17 states. Bulgarian, Croatian and Romanian nationals will continue to require work authorization and to be subject to quotas.

Though Swiss voters in February approved a referendum that will eventually reintroduce annual quotas for EU and European Free Trade Area (EFTA) nationals, it will take Swiss lawmakers months or even years to write and approve legislation to implement the initiative. The long-term impact remains unclear at this time and will largely depend on how the initiative is ultimately implemented by Swiss lawmakers.

The EU-17 countries are Austria, Belgium, Cyprus, Denmark, Finland, France, Germany, Greece, Ireland, Italy, Luxembourg, Malta, the Netherlands, Portugal, Spain, Sweden, and the United Kingdom. The EU-8 countries consist of the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Slovakia and Slovenia.

What This Means for Employers

Once the quotas expire, most EU nationals will be allowed to enter Switzerland and begin working without restrictions. These EU nationals will still be required to register with local authorities with jurisdiction over their place of residence in Switzerland, but no further immigration formalities will be necessary.

Bulgarian, Croatian and Romanian nationals will still have to apply for work authorization and wait for an approval before they can start to work in Switzerland. Work authorization for these nationals will continue to be subject to annual quotas.
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United States - Reminder: Travel Tips for Foreign Students Awaiting a Change of Status to H-1B

May 1, 2014

F-1 students planning to travel abroad between now and the time an H-1B petition takes effect should carefully consider whether their travel is necessary. Traveling internationally during this time can pose significant risks and result in delays.

Are you an F-1 student who is the beneficiary of an H-1B petition and a request to change status to H-1B for employment starting on October 1, 2014? If you are planning to travel abroad between now and October 1, you should carefully consider whether your travel is necessary.

Traveling internationally during this time can pose significant risks and result in delays, depending on whether you are in an ongoing course of study or period of optional practical training (OPT) or whether you are in the “cap gap” – the period between the end of your course of study or OPT and October 1, the date that a timely-filed H-1B petition and change of status will take effect.

If you cannot postpone travel until after October 1, you should be aware that you may not be able to reenter the United States in F-1 status during the months before your H-1B petition takes effect. Instead, you may need to wait outside the United States and apply for an H-1B visa to reenter in time for your H-1B employment start date. If you do decide to travel abroad, you must make sure to have all necessary travel documents and be prepared for possible delays at U.S. consulates and ports of entry.

The following are some frequently asked questions and important tips to consider if you are thinking about leaving the United States before October 1.

1. My H-1B petition and application to change status to H-1B have been filed and are pending with USCIS. May I travel internationally while they are pending?

If you leave the United States before your change of status is approved by USCIS, you will have to take extra steps to assume your H-1B status on October 1.

According to a longstanding government policy, if you travel abroad while your H-1B petition and request to change status are being processed, the change of status portion of your case will be considered abandoned. USCIS could still approve the H-1B petition itself, but you would not automatically change to H-1B status on October 1. Instead, you would have to leave the United States again and apply for an H-1B visa at a U.S. consulate or, if otherwise permissible, have your employer submit a new petition to change status to H-1B after your return. If you apply for an H-1B visa abroad, you could be subject to a long wait overseas during the visa application process, which could delay your return to the United States and your ability to begin your H-1B employment on time. See below for more information about the visa application process.

2. I am an F-1 student who is still in school and I am not applying for optional practical training. After my H-1B petition and application to change status are approved, can I travel abroad before October 1?

After your change of status is approved but before it takes effect on October 1, you should be able to travel abroad and reenter, as long as your course of study is not finished and you are coming back to the United States to resume your studies. (If you will be finished with school by the time you travel, see Question 3.)

When you travel, make sure you are carrying a valid passport with a valid F-1 visa stamp and a Form I-20 that is endorsed for travel. If your F-1 visa is no longer valid and you will need to get a new one to reenter in F-1 status, you should expect delays during the visa application process. If you have an approved H-1B petition, it may be difficult for you to demonstrate nonimmigrant intent, which is a requirement for F-1 students. See Question 6 for more information about these issues.

3. I am finished with my F-1 course of study and I am not applying for optional practical training. After my H-1B petition and change of status are approved, will I be able to travel abroad?

You cannot return to the United States in F-1 status if you travel abroad after your studies are finished. As long as your H-1B petition was filed before your F-1 student status expired, you can remain in the United States during the cap gap period between the end of your F-1 period of stay (including 60-day grace period) and October 1. But an F-1 student who travels abroad during the grace period or the cap gap cannot be readmitted to the United States in F-1 status. If you must leave the United States, you will have to apply for an H-1B visa to return, and will not be able to work until October 1. See Question 7 for more information about H-1B visa application procedures and delays.

4. I am a J-1 exchange visitor who is the beneficiary of an approved H-1B petition for employment starting October 1, 2014. May I remain in the United States until then?

It depends. As a J-1 exchange visitor, you are authorized to remain in the United States for the duration of your exchange program, plus a grace period of 30 days. If your J-1 period of stay and grace period end before September 30, 2014, you must depart the United States and apply for an H-1B visa abroad. You are not eligible for a change of status to H-1B because there will be a gap between the end of your period of authorized stay and the day your H-1B petition takes effect. Unlike F-1 students, J-1 exchange visitors are not eligible for cap gap benefits.

However, if your J-1 period of stay (including grace period) remains valid through the start date of your approved H-1B petition and application to change status to H-1B, you may remain in the United States in J-1 status before your change of status takes effect.

5. I am an F-1 student awaiting a change of status to H-1B and my OPT has expired. If I travel before October 1, what are the risks?

If you travel abroad after your OPT has expired, you cannot return to the United States in F-1 status. As long as your H-1B petition was filed before your OPT expired, you can remain in the United States and work during the cap gap period between the end of OPT and October 1. But if you have completed studies and OPT and you travel abroad during the cap gap, you cannot be readmitted to the United States in F-1 status.

If you must leave the United States, you will have to wait to apply for an H-1B visa to return. You will not be able to work again in the United States until October 1. See Question 7 for more information about H-1B visa application procedures and delays.

6. I am currently in a valid period of OPT and I have a valid employment authorization document. Is international travel possible if my change of status petition has been approved?

Yes, if you are in valid OPT, have a valid EAD and your change of status to H-1B has been approved before you leave, you should be able to return to the United States in F-1 status, as long as you have the appropriate documents and are able to show visa and immigration officers that you intend to comply with F-1 rules, including having nonimmigrant intent. If your H-1B change of status is approved before you depart the United States, the change of status will take effect on October 1 as long as you have returned to the United States before that day.

You will need the following documents to reenter in F-1 status:
  • A valid passport with a valid F-1 visa stamp. If you need to apply for a new F-1 visa stamp to reenter the United States as a student, you should expect delays at the U.S. consulate and at the port of entry (see Question 7 for more details);
  • A Form I-20 that is endorsed for travel by a designated school official;
  • A valid EAD. If you are applying for an extension of your OPT on the basis of a degree in a designated science, technology, engineering or mathematics (STEM) field, you should not leave the United States until you receive your new EAD for the extension period; and
  • A letter from your OPT employer that verifies your employment. You must have an OPT job or job offer before you leave the United States. If you go abroad before you find a job, your OPT period will be terminated and you will not be able to return to the United States unless and until you obtain an H-1B visa.

If you travel abroad while on OPT, caution is advised. In particular, pay attention to the number of days you spend outside the United States, because that time could be counted against the regulatory limit on unemployment during the OPT period. USCIS rules require an F-1 student to have no more than 90 days of unemployment during OPT (or 120 days for F-1s who have received an OPT extension based on a STEM degree). This includes time spent outside the United States, unless international travel takes place during leave that is authorized by your OPT employer or is part of your OPT employment.

7. Before October 1, I plan to leave the United States and reenter in my F-1 status, but I will need to apply for a new F-1 visa while I am abroad. What should I expect during the visa application process and at the port of entry?

You should be prepared for possible delays and difficulties when you apply for a new F-1 visa and when you are inspected at the border.

First, like any visa applicant, you could be required to go through a security clearance before your visa can be issued. If your name, personal details or travel history match or are similar to information in government security databases or travel watch lists, the State Department will not be able to issue a visa until it confirms that you are not the same person as an individual who appears on a security list. Many security clearances get resolved in a matter of weeks, but if you have a common name, your clearance could take several months or longer. If this occurs, your reentry to the United States could be delayed.

Second, officials at U.S. consulates and the U.S. border may question whether you have nonimmigrant intent, i.e., whether you genuinely intend to return to your home country. Having a foreign residence that you do not intend to abandon is a requirement for F-1 status. If you have an approved H-1B in the system, consular and border officials will know that you have a professional job in the United States – a possible indication of strong ties to the United States. If a consular or border officer questions your intentions, you could have your visa or entry denied or delayed, and may have to wait overseas until you can apply for an H-1B visa to enter and start your H-1B employment. Having a foreign residence is not a requirement for an H-1B visa.

8. If I decide to leave the United States before October 1, how soon can I apply for my H-1B visa and enter the United States in H-1B status?

You can generally apply for your visa up to 90 days before your H-1B petition start date, according to State Department rules. If your start date is October 1, 2014, you would be able to apply for your H-1B visa no earlier than July 3, 2014. But procedures differ among U.S. consulates, so you should check with the consulate where you will apply for specific instructions on when you can submit your visa application. Contact information for U.S. embassies and consulates is available at http://usembassy.gov/

Once you have applied for your H-1B visa, be prepared for a possible security clearance. As discussed in Question 7, if your name, personal details or travel history match information in government security databases or on travel watch lists, the State Department will not be able to issue your visa until it confirms that you are not the same person as a listed individual. A security clearance may also be required if you will work in high technology, engineering or the sciences, or with products or services that have both commercial and military applications (known as "dual use" technologies). Security clearances typically get resolved in a matter of weeks, but can take several months or longer depending on the circumstances.

Once you have received your H-1B visa, you may enter the United States up to ten days before your H-1B petition start date. If your start date is October 1, 2014, you can enter as early as September 21, 2014. The extra ten days allows you to get settled in the United States, but you cannot do H-1B work during this time. You are not authorized to start your H-1B employment until your actual petition start date.
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Tuesday, April 29, 2014

Canada - Suspension of LMO Processing for Food Services Industry

April 25, 2014

There is an immediate moratorium on access to the Temporary Foreign Worker Program by employers in the food services sector, and all new and pending Labor Market Opinion applications for occupations in the food services industry have been suspended indefinitely.

Employment and Social Development Canada (ESDC), the country’s labor authority, has announced an immediate moratorium on access to the Temporary Foreign Worker Program by employers in the food services industry. This moratorium will remain in effect until the Canadian government completes its on-going review of the Temporary Foreign Worker Program.

ESDC will not process any new or pending Labor Market Opinion (LMO) applications related to food services occupations.

What This Means for Employers

Employers will not be able to apply for new or renewed LMOs for restaurant managers, cooks, chefs and related occupations. The affected National Occupation Classification (NOC) codes are those between 0600 and 0699, as well as NOC codes in the 6000s. In addition, any previously approved LMO tied to an unfilled position with a NOC listed above will be suspended.

Though ESDC’s recent announcement pertains to the food services sector only, it serves to remind employers of the Canadian government’s current focus on immigration compliance. Employers of foreign nationals in all sectors should continue to ensure that they maintain accurate records regarding terms of employment; that remuneration levels comply with salary rules and are consistent with representations made in prior applications; that foreign workers are employed in the occupation cited in prior applications; and that foreign employees are working at the location listed on their work permit.
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Malaysia - Travel Restrictions for Certain Employment Pass Holders Undergoing Cancellation Processes

April 25, 2014

Visa nationals should not travel overseas while their employment pass cancellation is in process in order to avoid being refused re-entry in Malaysia. Employment pass holders who are changing employers in Malaysia or changing their job title within the same sponsoring company, regardless of their nationality, should postpone international travel until their new employment pass is approved, to avoid disruptions to their work status in Malaysia.

The Malaysian Immigration Department (MID) is implementing a stricter employment pass cancellation policy that limits the ability of pass holders to travel and re-enter the country while cancellation is in process. While the MID has not issued an official announcement about the change, they have confirmed that it is being implemented with immediate effect.

Under the new policy, once an application to cancel an employment pass is filed, the multiple-entry privileges under the pass are withdrawn and the pass will automatically cease to be valid when the holder exits Malaysia. Upon re-entry, the individual will be issued a Social Visit Pass, which allows social and business activities only. If the individual is a visa national, he or she will be required to present an entry visa. Previously, foreign nationals undergoing employment pass cancellation were allowed to travel as long as they re-entered before the cancellation date in their amended pass.

For foreign nationals who are changing employers in Malaysia, or changing their job title within the same sponsoring company, the MID now requires that their existing employment pass be cancelled after position approval (Stage 1 of the employment pass application) is obtained, and before the work pass application (Stage 2) is lodged. This was not required in the past, although the MID had discretion to do so.

Currently, departing foreign nationals may not get an official confirmation that their employment pass will be voided upon exit as the departure checkpoint officer may not stamp the individual’s employment pass label as void or otherwise warn them that the pass is cancelled upon exit.

What This Means for Employers and Foreign Nationals

Visa nationals who travel out of Malaysia while their employment pass cancellation is in process will need to obtain an entry visa from a Malaysian diplomatic post in order to be readmitted to Malaysia. It will be extremely difficult to obtain such an entry visa before the cancellation date of their amended pass. These individuals should thus avoid international travel until after their cancellation date.


Employment pass holders who are changing employers in Malaysia or changing their job title within the same sponsoring company, regardless of nationality, should also postpone overseas travel until their new employment pass is approved. If they travel while the change application is pending, they will be readmitted on a Social Visit Pass and will not be authorized to work until the new employment pass is issued.
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