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

The Migration Advisory Committee (MAC) has recommended to Parliament that the shortage occupation list under Tier 2 of the United Kingdom’s point-based immigration system be reduced to cover 190,000 employees (not migrants) – by comparison, in 2007 the number was 1,000,000. MAC has recommended eliminating 29 job titles from the list (e.g., veterinary surgeons, obstetrics and gynecology consultants) and adding 33 job titles (e.g., actuaries, high integrity pipe welders). If the recommendations are accepted, the listed occupations would be the only positions open to migrants from outside the European Economic Area under Tier 2’s shortage occupation route, which has an annual limit of 20,700.

The full 252-page report is available here (pdf).

Photo credit: Alina Hart

• Email This
• Print
• Trackbacks
• Share Link

The U.S. Department of State has released the September 2011 Visa Bulletin, which summarizes visa availability. As compared to the June 2011 Visa Bulletin, some movement occurred in the oversubscription date (i.e., the date on which the availability quota was met) for employment-based visa categories, including:

• EB-2 (professionals with advanced degrees or persons of exceptional ability): The oversubscription date for Indian and Chinese nationals progressed to April 15, 2007, from October 15, 2006.
• EB-3 (skilled workers and professionals): The most significant development concerned the oversubscription date for Mexican nationals, which advanced almost a full year, from December 22, 2004 to November 22, 2005. Advances of several weeks occurred for nationals of: China, from May 15 to July 15, 2004; the Philippines, from September 15 to November 22, 2005; and India, from April 22 to July 8, 2002.
• EB-3 (other workers): The oversubscription date for nationals of Mexico and the Philippines advanced two years, from November 8, 2003, to November 22, 2005. 

• Email This
• Print
• Trackbacks
• Share Link

Australia’s Department of Immigration and Citizenship announced that, as of July 1, 2011, thirteen occupations (e.g., medical physicist, barrister, retail pharmacist) will be added to its Skilled Occupation List, while four will be removed (optometrist, orthoptist, panel beater, and vehicle painter). The amended list is the result of independent expert advice that identified specialized occupations of high value to Australia. The updated list will apply to new independent or unsponsored skilled migration applications submitted on or after July 1, 2011, subject to certain exceptions concerning transitional arrangements.

• Email This
• Print
• Trackbacks
• Share Link

The U.S. Department of State has released the June 2011 Visa Bulletin, which summarizes visa availability. Some movement occurred in the oversubscription date (i.e., the date on which the availability quota was met) for employment-based visa categories, including:

• EB-2 (professionals with advanced degrees or persons of exceptional ability): The oversubscription date for Indian and Chinese nationals progressed to October 15, 2006, from July 1 and August 1, 2006, respectively.
• EB-3 (skilled workers and professionals): The oversubscription date for Mexican nationals advanced 3.5 months, from September 8 to December 22, 2004. A one-month advance occurred for Chinese nationals, from April 15 to May 15, 2004, with a one-week advancement for Indian nationals, from April 15 to 22, 2002, and three weeks’ progression for Philippines nationals, from August 22 to September 15, 2005.
• EB-3 (other workers): The oversubscription date for nationals of Mexico and the Philippines advanced two months, from September 8 to November 8, 2003.

Photo credit: David Pedre Loureiro

• Email This
• Print
• Trackbacks
• Share Link

The UK Border Agency has announced its annual update to the occupation codes of practice for sponsored skilled workers, with an effective date of March 1, 2011. To sponsor a migrant worker from outside Europe under Tier 2 or Tier 5 of the points-based immigration system, employers must use the codes of practice to: (1) check the skill level and appropriate pay for the job; and (2) determine where in the United Kingdom the job must be advertised before it can be offered to a migrant worker. Employers also must consult the latest version of the codes of practice before issuing a certificate of sponsorship.

• Email This
• Print
• Trackbacks
• Share Link

Beginning January 1, 2011, skilled and professional foreign workers in the United Arab Emirates (UAE) will no longer need to obtain a no-objection certificate from their former employer in order to take a new position elsewhere, reports The National. Instead, the only requirement will be to obtain a visa stamp from the Ministry of Labour. The change is significant: previously, employers could refuse to issue a no-objection certificate, which forced workers to exit the UAE for six months before they could take a new position.

As for unskilled and semi-skilled workers, the employer’s consent is required for a worker to change jobs, but only during the first two years of employment. Also, the consent requirement is waived if the employer does not meet basic employment standards.

• Email This
• Print
• Trackbacks
• Share Link

On December 17, 2010, the UK High Court held that the Home Office’s temporary cap on the number of non-EU citizen skilled workers allowed entry to the UK was introduced unlawfully. As reported by the BBC, the High Court found that ministers had “sidestepped” Parliamentary scrutiny by implementing the measure without a vote. Due to this ruling, the temporary cap for two tiers of job applicants—which was intended to stay in place until the permanent cap takes effect in April 2011—is no longer in effect.

• Email This
• Print
• Trackbacks
• Share Link

The UK Government has announced the figures for the permanent cap on non-European Union migration to the United Kingdom. In its bid to reduce net migration to the tens of thousands by 2015, the Home Secretary Theresa May announced a figure of 21,700 as the yearly limit on migrants entering the UK from outside the EU. However, this cap excludes the categories for "Tier 2" intra-company transfers. To learn more about the cap and its implications for employers, please continue reading at our collaborative blog, Global Employment Law.

• Email This
• Print
• Trackbacks
• Share Link

India has removed the 1% cap on visas for foreign nationals on project workforces, the Hindustan Times reports. The cap was introduced in order to cut back the large numbers of Chinese nationals working on infrastructure projects in India and to increase domestic employment. According to The Economic Times, the number of Chinese workers decreased after India streamlined its immigration processes by only issuing employment visas to skilled Chinese nationals, so the cap was no longer necessary.

• Email This
• Print
• Trackbacks
• Share Link

The State Department has released the September 2010 Visa Bulletin, which summarizes visa availability. Some movement occurred in the oversubscription date (i.e., the date on which the availability quota was met) for employment-based visa categories, including:

• EB-2 (professionals with advanced degrees or persons of exceptional ability): The oversubscription date for Indian and Chinese nationals progressed two months from March 1, 2006, to May 8, 2006.
• EB-3 (skilled workers and professionals): The oversubscription date for nationals of the Dominican Republic and the Philippines advanced six months, from June 1, 2004, to December 15, 2004. A one-month advance occurred for Chinese nationals, from September 22 to October 22, 2003, but there was no movement concerning the date for Indian nationals, which remains at January 1, 2002.
• EB-3 (other workers): The oversubscription date for nationals of China, the Dominican Republic and the Philippines advanced 10 months, from May 15, 2002, to March 22, 2003.

• Email This
• Print
• Trackbacks
• Share Link

The State Department has released the August 2010 Visa Bulletin, which summarizes visa availability. Some movement occurred in the oversubscription date (i.e., the date on which the availability quota was met) for employment-based visa categories, including:

• EB-2 (professionals with advanced degrees or persons of exceptional ability): The oversubscription date for Indian and Chinese nationals changed from October 1, 2005, and November 22, 2005, respectively, to March 1, 2006. As previously discussed, considerable movement concerning the oversubscription date for Indian nationals was reported in the July 2010 Visa Bulletin.
• EB-3 (skilled workers and professionals): The oversubscription date for nationals of the Dominican Republic moved from August 15, 2003, to June 1, 2004. For Indian nationals, the date edged forward slightly from November 22, 2001, to January 1, 2002.
• EB-3 (other workers): The previous oversubscription date of June 1, 2001 progressed to January 1, 2002 for Indian nationals, and to May 15, 2002 for nationals of China, Mexico, and the Philippines.

• Email This
• Print
• Trackbacks
• Share Link

U.S. Citizenship and Immigration Services (USCIS) announced that it is continuing to accept H-1B nonimmigrant visa petitions for Fiscal Year 2011 (October 1, 2010 to September 30, 2011). The agency began accepting petitions on April 1, 2010, and after one week had received approximately 13,500 petitions subject to the general cap and 5,600 petitions subject to the advanced degree exception. It took approximately nine months for USCIS to receive enough applications to meet the FY 2010 cap, with the bulk of petitions being filed by the end of October 2009.

The H-1B program allows businesses to employ foreign workers in specialty occupations that require theoretical or technical expertise in specialized fields, e.g., science, engineering, computer programming. The program allows for 65,000 regular-cap visas, and an additional 20,000 visas for petitioners with advanced degrees (master’s degree or higher).

• Email This
• Print
• Trackbacks
• Share Link

Canada is on the verge of a backlog of skilled immigrant applications, reports the Toronto Star. Recent government data shows that the average processing time is seven and a half years. Currently, 600,000 applications have been submitted for the 80,055 available 2010 skilled immigrant visas, more than half of which were submitted after March 2008.

• Email This
• Print
• Trackbacks
• Share Link

The United States Citizenship and Immigration Services (USCIS) recently issued a guidance memo to its adjudication officers, Determining Employer-Employee Relationship for Adjudication of H-1B Petitions, Including Third Party Site Placements. The Memo clarifies what constitutes a valid employer-employee relationship in the context of petitions for H-1B visas, which are commonly used by IT staffing agencies and consulting groups for placing skilled workers at third-party worksites. For an analysis of the Memo and its implications for employers, continue reading Littler's ASAP Recent USCIS Memo on Employer-Employee Relationship Requirements for H-1B Visa Petitions: Regulation by Memorandum? by Jorge R. Lopez, Shin-I Lowe and Neil Grindstaff.

• Email This
• Print
• Trackbacks
• Share Link

As this blog previously noted, as of January 6, 2010, the UK Border Agency (UKBA) has started issuing identity cards to skilled foreign workers and their dependents. The identity card confirms the holder's identity, nationality, and immigration status in the UK, and also indicates whether the holder is authorized to work or study under the country’s points-based immigration system.

• Email This
• Print
• Trackbacks
• Share Link

The Times of India reports that India’s tightening of restrictions for Business Visas (BV) and Employment Visas (EV) for foreign workers has delayed completion of numerous infrastructure projects. To remedy the situation, the home ministry has proposed a Project Visa (PV) that will allow foreign nationals to work on specific projects, mainly infrastructure and those of strategic importance. Currently the proposal is being examined by a government committee.

• Email This
• Print
• Trackbacks
• Share Link

Responding to proposals by the Migration Advisory Committee, the UK Border Agency (UKBA) has announced that before employers may hire migrant workers for a job under Tier 2 of the points-based system, they must advertise the position for four weeks. Previously, the test required two weeks of advertising, or one week’s advertising for jobs with salaries of £40,000 or more. The change is intended to better support British nationals looking for skilled jobs as the country comes out of the economic downturn.

The change will take effect December 14, 2009. To provide flexibility to employers, the four weeks of advertising will not need to run continuously. Employers that have already advertised positions need not re-advertise to meet the requirement.

Updated guidance for Tier 2 sponsors will be provided on UKBA’s website on December 14.

• Email This
• Print
• Trackbacks
• Share Link

gantdaily.com reports that Canada will cut its immigrant visa quota by 3,000 while keeping the 2010 permanent resident visa quota at current levels of between 240,000 and 265,000. The lower immigrant visa quota is based on the 18-month processing time for applications of refugee status claimants. The quota, however, may go up again in 2011 and 2012 because vacancies on the Immigration and Refugee Board will soon be filled.

• Email This
• Print
• Trackbacks
• Share Link

The UK Border Agency announced it is three months ahead of schedule in issuing identity cards to skilled migrants renewing their visas. Issuance of identity cards to Tier 2 skilled workers will begin January 2010, which will add 30,000 foreign nationals per year to the list of individuals assigned identity cards. Ninety thousand cards have been issued to date, mainly to students under Tier 4 and to individuals renewing marriage visas.

To provide foreign nationals with alternate and more accessible venues for submitting fingerprints, these services will be made available, on a trial basis, at 17 Crown post offices, beginning October 2009. Applicants must pay a fee of £8 if they choose this option (by contrast, no fee is required when submitting fingerprints at a UK Border Agency or Identity & Passport Service Office).

Identity cards for skilled migrants and temporary workers under Tiers 1 and 5, originally scheduled to commence in 2011, will begin in 2010. 

• Email This
• Print
• Trackbacks
• Share Link

Australia has amended the requirements for its subclass 457 visa (Temporary Business – Long Stay) for the stated purpose of preventing exploitation of foreign workers and ensuring that they are not brought in to undercut national wages. Subclass 457 visas are the most commonly used visa for sponsoring foreign workers in Australia. The visas can be valid for a period between three months and four years.

Under the amended rules, employers sponsoring foreign employees on subclass 457 visas are required to pay the market rate for the position. Employers currently paying below the market salary rate to existing subclass 457 visa holders will have until January 1, 2010 to commence paying market rates.

Where an Australian national occupies a similar position, a foreign worker’s rate will be based on that employee’s salary, benefits, etc. Where no equivalent Australian employee exists, employers must review outside collective agreements, salaries, etc. to establish the market rate.

In addition, if an employee’s salary is $180,000 AUD ($155,275 USD) or more, the employer will be exempt from the market rate requirement. Also, subclass 457 visas will not be issued for positions with salaries below $45,220 AUD ($39,008 USD).

Previous significant changes to the 457 visa were made in April; specifically:

• An increased English language requirement for trade occupations and chefs;
• The introduction of formal skills assessments for all trade occupation applicants from countries that are not considered low-risk;
• A requirement that employers attest to a strong record of, and commitment to, employing local labor and non-discriminatory employment practices;
• The development of formal training benchmarks for sponsors; and
• A requirement that labor agreements be in place for ASCO (Australian Standard Classification of Occupations) five to seven occupations.

• Email This
• Print
• Trackbacks
• Share Link

 Increased unemployment, coupled with immigration restrictions and delays has resulted in many skilled foreign workers electing to leave the United States. A recent study found that of those surveyed, 72% of Chinese nationals and 56% of Indian nationals who emigrated to the United States and then returned home thought professional opportunities were better in their home country, even though wages might not necessarily compare. Researchers estimate that possibly 200,000 skilled Indian and Chinese workers will return home over the next five years, compared with approximately 100,000 over the past 20 years.
 

Obtaining permanent residency can be a long process because only 9,800 green cards per country are awarded annually. BusinessWeek reports that applications from Indian and Chinese nationals can take almost a decade and, while applicants wait, visa restrictions prohibit them from changing positions, companies, or starting their own business without obtaining a separate visa. Although the Obama administration has vowed to push for immigration reform, it remains uncertain how skilled immigrants will be affected.

• Email This
• Print
• Trackbacks
• Share Link

As reported by The Economic Times, due to an aging workforce and gaps in its IT, engineering, and medical sectors, Australia is encouraging skilled Indian professionals to apply for permanent residency. Indian nationals already comprise the second largest immigrant population in Australia, and currently the country’s medical system relies considerably on Indian healthcare professionals.

Although Australia recently decreased the number of available visas to skilled workers because of the economic downturn, this move is seen as temporary and numbers are expected to increase once the economy recovers. Australian officials note that even at lower numbers it is still running one of its biggest skilled migration programs in years.

Australia is also cracking down on scholastic institutions, particularly vocational schools, that do not provide adequate skills and language training to Indian students. Because a skills test will be required next year in addition to the English language test, the aim is to ensure that international students receive quality schooling that eventually will allow them to apply for permanent residency.

• Email This
• Print
• Trackbacks
• Share Link

As reported by The Moscow News Weekly, over the past several months it has become more difficult for companies to hire and retain foreign employees in Russia. A major issue cited by various foreign business associations is that the enforcement of migration rules can be unpredictable. For example, the Federal Migration Service has become stricter in enforcing certain rules: Two years ago, diplomas attesting to the applicant's educational qualifications were required only for language teachers, but since October 2008, the rule is being enforced for all professions.

There also are concerns about the quota system for work permits and the bureaucratic obstacles that employers sometimes encounter with the system. One possible solution is to give certain white-collar employees from the European Union, the United States and Japan "green cards" that would exempt card holders from the quota system. The Federal Migration Service has drafted a bill along these lines that may be introduced in the Duma in July.

Another reason for the difficulties is the procedure by which representative offices hire foreign workers. A representative office is issued a permit by an accrediting body (such as the Chamber of Commerce and Industry or the State Registration Chamber) which states how many foreign employees the representative office may hire. Under this arrangement, foreign employees working for the representative office do not receive work permits, but rather an accreditation card from the accrediting body. Recently there have been reports of police officers questioning the validity of these accreditation cards during their routine document checks in the streets. The Japan Business Club and the Association of European Businesses have been advising their members to obtain work permits for accredited foreign employees working in representative offices.

• Email This
• Print
• Trackbacks
• Share Link

The United Kingdom’s Home Secretary, Jacqui Smith, has announced three significant changes intended to support domestic workers and raise the bar for foreign workers wishing to enter the country. As of April 1, the UK government will:

• strengthen the resident labor market test for tier two skilled jobs so that employers must advertise jobs to resident workers before bringing in a worker from outside Europe;
• use each shortage occupation list to trigger skills reviews that focus on training resident workers for these occupations; and
• tighten new criteria against which highly skilled migrants seeking entry to the United Kingdom are judged, by raising the educational qualifications and salary required for tier 1 (General) of the points-based system.

Home Secretary Smith said: 

“Just as in a growth period we needed migrants to support growth, it is right in a downturn to be more selective about the skill levels of those migrants, and to do more to put British workers first.”

• Email This
• Print
• Trackbacks
• Share Link

The UK Border Agency has temporarily reinstated the skilled worker category for representatives of overseas newspapers, news agencies and broadcasting organizations. The skilled worker category is one of several being deleted as part of the changes to the United Kingdom's immigration system. The reason for the temporary reinstatement is that, although most representatives of overseas newspapers, news agencies and broadcasting organizations will be eligible to apply under tier two of the new points-based system, a small number of individuals may not be eligible because they do not have a sponsor based in the United Kingdom. The Border Agency will introduce a more permanent solution later in 2009 so that representatives whose employers are not established in the United Kingdom can apply under tier two.

• Email This
• Print
• Trackbacks
• Share Link