Global Immigration Counsel : Immigration Lawyer & Attorney : Littler Mendelson Law Firm : Permanent Residence, Labor Certification : Global Immigration Counsel

Currently, the Immigration and Nationality Act permits the issuance of approximately 140,000 employment-based visas each year. The percentage of available visas that may be awarded to nationals of any one country is capped, i.e., visas issued to individuals of one country cannot exceed 7% of the total number of visas available.

Under the Fairness for High-Skilled Immigrants Act (H.R. 3012), introduced by Rep. Jason Chaffetz (R–UT), the per-country limitation for employment-based visas would be removed. Additionally, the following transitional rules would apply to employment-based visas:

• Fiscal Year (FY) 2012 (Oct. 1, 2011-Sept. 30, 2012): 15% of visas would be allocated to immigrants who are natives of a foreign state or dependent area that was not one of the two countries with the largest numbers of natives obtaining permanent resident status during FY 2010.
• FY 2013: 10% of visas would be allocated to immigrants who are natives of a foreign state or dependent area that was not one of the two countries with the largest numbers of natives obtaining permanent resident status during FY 2011.
• FY 2014: 10% of visas would be allocated to immigrants who are natives of a foreign state or dependent area that was not one of the two countries with the largest numbers of natives obtaining permanent resident status during FY 2012.

Additionally, H.R. 3012 increases, from 7 to 15% of the total number of available visas, the per-country restrictions for family-sponsored immigrants.

The bill has been referred to the House Judiciary Committee’s Subcommittee on Immigration Policy and Enforcement.

• Email This
• Print
• Trackbacks
• Share Link

By George Koureas of Lewis Silkin

The UK Border Agency’s permanent immigration cap came into force on 6 April 2011. Under the annual limit, UK employers will only be able to hire 20,700 non EEA nationals based outside the UK to work in skilled professions under Tier 2 (General) of the UK's Points Based System. A further 1,000 visas will also be made available to people of 'exceptional talent' whom experts believe will make the biggest contribution to science and the arts in the UK.

New hires under Tier 2 (General) coming to the UK will also need to have a graduate level job, speak an intermediate level of English and meet specific salary and employment requirements. Those earning a salary of £150,000 or more will not be subject to the limit.

• Email This
• Print
• Trackbacks
• Share Link

In a July 2010 proposal, the European Commission proposed a directive that would create a uniform standard for all 27 member states concerning international intra-corporate transfers (ICTs) of highly skilled employees. The proposal permits managers and specialists to remain in a member state for up to three years (trainees for up to one year), and to bring their family along. Many businesses, currently confronted with different applicable standards among member states, support the proposal, which many believe would increase competitiveness by allowing companies to bring their best and brightest overseas—albeit temporarily—to develop, strengthen and expand EU operations. Moreover, because ICT costs, including relocation, transportation and insurance, can be burdensome, uniform rules permitting longer stays would potentially offset front-end expenditures.

Support, however, is lacking among union representatives, according to EurActiv.com. One trade union official expressed concern that ICTs will permit companies to “flood labor markets with cheap labor that undermine local conditions.”

European Parliament and member states are expected to discuss the proposed ICT directive during the first half of 2011.

• Email This
• Print
• Trackbacks
• Share Link

Less than one month into the new session, the 112th Congress continues to introduce labor and employment-related bills at a rapid pace, including proposals relating to immigration. Representative Jeff Flake (R-AZ) re-introduced the Stopping Trained in America Ph.D.s From Leaving the Economy (STAPLE) Act of 2011 (H.R. 399), a bill that would exempt from visa quotas foreign students who have earned a Ph.D. degree in science, technology, engineering, or mathematics from a U.S. university and have a job offer in the United States. Senator Harry Reid (D-NV) introduced the Reform America's Broken Immigration System Act (S. 6), which calls for no specific reforms, but rather declares certain immigration-related goals. To learn more about the bills and their potential implications for employers, please continue reading at Littler's Washington D.C. Employment Law Update blog.

• Email This
• Print
• Trackbacks
• Share Link

The United State Citizenship and Immigration Services (USCIS) announced that, as of December 10, 2009, 62,500 H-1B petitions had been filed for fiscal year 2010, inching closer to the general H-1B cap of 65,000. Although the H-1B cap of 20,000 for petitioners with advanced degrees already has been reached, USCIS will continue to accept those applications until the general cap is met.

• Email This
• Print
• Trackbacks
• Share Link

A master’s degree will no longer be required for highly skilled workers seeking employment in the UK under Tier 1 of its points-based immigration system, according to the Financial Times. The move came in response to strong lobbying by business interests, who argued that the restrictions blocked access to the best talent as the UK tries to emerge from the global recession.

• Email This
• Print
• Trackbacks
• Share Link

The UK Border Agency announced that the Migration Advisory Committee (MAC) has completed its review of Tier 1 of the UK’s points-based immigration system. The MAC report recommends that:

• salary multipliers used to convert previous earnings (from outside the UK) into a UK equivalent should be rapidly and thoroughly reviewed;
• migrants with a bachelor's degree but no master's degree should be allowed to come to the UK if their previous earnings are sufficiently high;
• professional qualifications (e.g., law or accountancy) should be considered the equivalent of a master's degree;
• the pay thresholds should be substantially increased, with no points for previous annual earnings below £24,000;
• migrants with previous annual earnings of at least £150,000 should not need to meet the education requirements;
• applicants should receive points for their age if they are 39 or under; and
• successful applicants should initially be allowed to come to the UK for two years -- not three years -- with the possibility of a three-year extension if they are in highly skilled employment.

• Email This
• Print
• Trackbacks
• Share Link

New Zealand’s Minister of Immigration recently announced that a new visa scheme has been created to attract highly skilled individuals between the ages of 20 and 35. The “Silver Fern” policies, which will take effect in April 2010, create two types of permits.

• A “job search” permit allows qualifying individuals entry to New Zealand for nine months to seek skilled employment. Initially, permit availability will be limited to 300 per year.
• A “practical experience visa/permit” grants those who gain employment the right to work and reside in New Zealand for a further two years. There will be no annual limit to the number of applicants for this type of permit.

Image credit: ButterStick

• Email This
• Print
• Trackbacks
• Share Link

As reported recently on this blog, the Government of India's Ministry of Home Affairs has released guidance on permissible use of Business Visas and Employment Visas by foreign nationals visiting India. This development has significant implications for multinational corporations sending employees to India on short-term assignments. For an update regarding this uncertain legal development based on feedback from companies whose employees have been directly affected by this situation, continue reading Littler's ASAP "India Guidance on Its Visa Regimes May Create Major Change for Companies Doing Business in India," written by Ian Macdonald.

• Email This
• Print
• Trackbacks
• Share Link

India's Ministry of Home Affairs (MHA) has released an FAQ (pdf) to clarify the two types of visas available for work-related visits to India: business visas (“B” visas) and employment visas (“E” visas).

• Email This
• Print
• Trackbacks
• Share Link

As reported by Reuters, Silicon Valley is experiencing a brain drain of foreign-born students, many of whom are returning to their home countries due to immigration hurdles. The very long waiting time for US permanent residency, combined with comparatively attractive job markets in India and China, is driving the trend.

Observers warn that the flow of foreign students out of the United States will eventually damage its high-tech industry competitiveness. More than half of the Silicon Valley start-up companies established between 1995 and 2005 had a founder who was a foreign national. In addition, foreign nationals earn half of the masters degrees and 71% of the doctorates in electrical engineering at US universities.

• Email This
• Print
• Trackbacks
• Share Link

Secretary of State Hillary Clinton, speaking before the U.S.-India Business Council, outlined her plans for a “dramatic expansion” in U.S./India relations and touched upon concerns voiced by the Indian IT community and the Indian government that proposed restrictions on the H-1B visa program are a form of protectionism. As reported at Computerworld.com, Clinton remarked that both countries should "work through any issues in our relationships and differences in our perspectives by focusing on shared objectives and concrete results." Meera Shankar, India's ambassador to the United States, stated that India's IT talent has helped U.S. firms become more competitive globally, while also stimulating the U.S. economy by creating jobs and increasing profits.

• Email This
• Print
• Trackbacks
• Share Link

Canada’s Citizenship, Immigration and Multiculturalism Minister, Jason Kenney, has announced  the release of “The Employer’s Roadmap,” which helps guide employers in hiring, assimilating, and retaining internationally trained workers.

The Roadmap is a tool for employers, human resources professionals, recruiters and managers in small to medium-sized enterprises and covers topics such as:

• the benefits of hiring internationally trained workers;
• how to hire and recruit such workers;
• how to assess qualifications; and
• how to integrate and retain employees with different professional and cultural backgrounds into the workforce.

This resource is one of several measures that the Canadian government is taking to help newcomers quickly and successfully integrate into the Canadian labor market. Another measure is Canada’s Economic Action Plan, which includes an investment of $50 million (Canadian) to help develop a common approach to foreign credential recognition.

• Email This
• Print
• Trackbacks
• Share Link

The European Union has formally adopted a work authorization program intended to attract highly skilled foreign workers and modeled after the United States’ Green Card program. The “Blue Card” will allow immigrants to work in any EU member state (except Great Britain, Ireland and Denmark) and will entitle card holders to limited social and welfare rights, for a renewable period of one to four years, EUobserver.com reported. Blue Card holders will receive equal treatment with nationals as to working conditions, including pay and dismissal, and will have some ability to move between EU member states. The program also includes penalties for employers who hire illegal immigrants.

• Email This
• Print
• Trackbacks
• Share Link

Former Federal Reserve Chairman Alan Greenspan, appearing before a Senate subcommittee, commented that illegal immigrants make a “significant” contribution to U.S. economic growth by increasing the flexibility of the workforce. As reported at Bloomberg.com, Greenspan also spoke in support of reforming the U.S. immigration laws, calling changes that would create legal avenues for workers to enter the country “badly needed.”

Greenspan was speaking before the Senate Judiciary Subcommittee on Immigration, Refugees and Border Security, which has commenced hearings on revisions to immigration policies. During his remarks, Greenspan also stated that, because U.S. schools do not produce enough skilled workers, the H-1B visa program should be expanded in order to fill the gap with immigrants who hold advanced degrees. 

• Email This
• Print
• Trackbacks
• Share Link

Effective March 31, 2009, the United Kingdom’s immigration rules covering highly skilled migrant workers have changed, raising the requirements of two categories in Tier 1 of the points-based system. Following the change, anyone applying for permission to enter the UK in the Tier 1 (General) category for the first time, or who applies to switch into the Tier 1 (General) category from another category, will need to have a Master's degree and a minimum salary of £20,000 to score points for qualifications and earnings respectively. Migrants applying to extend their permission to stay under Tier 1 (General) will not be affected by the changes.

The Tier 1 (Post-Study Work) category has also changed. Anyone applying in this category will not be awarded points for Postgraduate Diplomas or Postgraduate Certificates other than Postgraduate Certificates in Education (or PGDEs in Scotland only).

New versions of the Tier 1 (General) and Tier 1 (Post-Study Work) application forms, as well as revised guidance for applicants in these categories, are available on the UK Border Agency website.
 

• Email This
• Print
• Trackbacks
• Share Link

New United Kingdom (UK) Immigration Rules raising the academic and financial requirements for highly-skilled foreign workers applying for entry into the T1 (General) and T1 (Post-Study Work) categories will become effective for all applications submitted on or after March 31, 2009. The changes will apply to applicants seeking permission to enter the UK in this category for the first time, or who are applying to transfer into the Tier 1 (General) category from another category.

The resident labor market test, which prevents employers from offering skilled jobs to foreign workers without first advertising them to workers who have already settled in the UK, will also be strengthened. Effective March 31, 2009, an employer wishing to sponsor a foreign worker to do a job under Tier 2 (General) must first advertise the job:

• to settled workers in Jobcentre plus; and
• use one other method permitted by the relevant code of practice.

Full details of these changes are available in the revised guidance for sponsor applications.
 

• Email This
• Print
• Trackbacks
• Share Link

A recent posting to the Bits Blog (hosted by NYTimes.com) calls the bank bailout legislation’s provision discouraging banks from recruiting skilled foreign workers “a political gesture, understandable and probably empty.” The real problem is the great number of “bright, ambitious” immigrants leaving the United States and returning home. This problem is the topic of a report released on March 2, “America’s Loss Is the World’s Gain” (PDF). The principal author of the report estimates that over the next five years 100,000 immigrants from India and China will leave the United States, as compared to 50,000 over the past two decades. Of the 1,203 Indian and Chinese workers who were surveyed for the report, growing demand for their skills and promising career opportunities back home were cited by 87% of the Chinese and 79% of the Indians as the major professional reason for returning.

• Email This
• Print
• Trackbacks
• Share Link

As noted in our previous blog entry, UK Home Secretary, Jacqui Smith, has announced significant changes to UK immigration laws and policies regarding foreign workers and visitors coming to the UK from outside the European Economic Area (EEA). For analysis of this development, please see Littler's ASAP Changes in UK Immigration Rules by Ian R. Macdonald and Shin-I Lowe.

• Email This
• Print
• Trackbacks
• Share Link