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Congress passed a budget late Thursday to avoid another government shutdown and that will continue to fund the federal government for the remainder of fiscal year 2019. The bill provides $1.375 billion for border fencing and barriers, well short of the $5.7 billion President Trump has been seeking for a wall along the U.S.-Mexico border. White House officials reported that Trump signed the bill Friday afternoon, after announcing that he is declaring a national emergency to build the wall without Congressional consent.
Key points:
BAL Analysis: The budget agreement will avert a shutdown and lapses in immigration and other government services until Sept. 30, the end of the fiscal year. Trump’s decision to bypass Congress by declaring a national emergency would shift money from other areas such as disaster relief to build the wall, and is certain to face numerous lawsuits and protracted litigation that would at least delay if not block the executive action.
This alert has been provided by the BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@bal.com.
Copyright © 2019 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries please contact copyright@bal.com.
U.S. Citizenship and Immigration Services (USCIS) announced that beginning Tuesday, Feb. 19, it will resume premium processing for all H-1B petitions filed on or before Dec. 21, 2018.
Background: Premium processing allows petitioners to request faster service for an additional government fee. USCIS must respond within 15 days or refund the fee. USCIS suspended premium processing for H-1B cap cases just before fiscal year 2019 cap season opened in April 2018. In August 2018, the agency expanded the suspension to encompass nearly all H-1B petitions. On Jan. 28, 2019, USCIS lifted the suspension on premium processing for FY2019 H-1B cap subject-petitions only. The agency is now lifting the suspension of non-cap H-1B petitions filed before Dec. 22, 2018.
BAL Analysis: Petitioners who filed H-1B petitions before Dec. 22, 2018 should identify cases that require expedited service and request premium processing as soon as possible. To avoid delays, petitioners should include RFE responses and the transfer notice (if applicable); if the premium processing request for a transferred case sent to the wrong service center, USCIS will forward the request to the correct center but the 15-day clock will only start on the date the petition is received by the correct service center.
IMPACT – MEDIUM
What is the change? Uzbekistan now allows visa-free travel of up to 30 days for nationals of 45 countries.
What does the change mean? Foreign nationals from 45 countries, including Australia, Canada, New Zealand, and European Union member states, will be able to stay in Uzbekistan for up to 30 days visa-free while traveling as tourists. While tourist and business travel is allowed under the visa-waiver program, work activities are not.
Background: Visa-free travel has been granted for nationals from 45 countries under Presidential Decree No. 5611, dated Jan. 5, 2019. Nationals of the following countries are now eligible for the visa-waiver program, effective Feb. 1:
Eligible Nationals
Analysis & Comments: The visa-waiver program will ease travel procedures for nationals of 45 countries traveling to Uzbekistan for short-term stays. Travelers should note, however, that the visa waiver is appropriate for short-stay tourism and business activities only. Employees staying in Uzbekistan beyond 30 days or conducting work activities must apply for the applicable visa prior to entry.
Source: Deloitte LLP. Deloitte LLP is a limited liability partnership registered in England and Wales with registered number OC303675 and its registered office at 1 New Street Square, London EC4A 3HQ, United Kingdom.
What are the work-permit enforcement trends? While Ugandan authorities continue to issue Special Pass permits for short-term assignments of up to five months, they are no longer accepting Special Pass applications for employees intending to work in Uganda longer than five months. Additionally, authorities are increasingly scrutinizing and rejecting work permit applications that do not comply with Ugandan advertising rules.
The details:
Moving forward: Employers sponsoring foreign workers in Uganda will need to apply for a G2-class work permit prior to entry for all types of assignments and can no longer rely on approval of Special Passes for assignments longer than five months. Employers are on notice that advertising and training requirements are stringently enforced for all types of work permits, especially the G2-Class permit.
IMPACT- HIGH
What is the Brexit news? The Swiss Federal Council has approved a temporary quota scheme that would allow U.K. nationals to apply for work authorization in Switzerland in the event of a no-deal Brexit.
What does the news mean? The temporary quota scheme offers a temporary solution for U.K. nationals who would no longer be covered by the Agreement on the Free Movement of Persons and would be considered third-country nationals. The Swiss government would offer 3,500 work permits—2,100 residence permits and 1,400 short-stay permits—to these nationals between March 30 and Dec. 31. The cantons would be notified on a quarterly basis of the maximum number of U.K. nationals they could admit.
Background: Last month, the Swiss Federal Council approved a bilateral Swiss-U.K. agreement to administer the status of U.K. nationals in Switzerland and Swiss nationals in the U.K. Under the agreement, U.K. nationals registered in Switzerland and Swiss nationals registered in the U.K. before the Swiss-U.K. agreement goes into force, as well as their dependents, will preserve their status under the EU-Swiss Agreement on the Free Movement of Persons. The agreement also covers cross-border workers in both countries, such as G-permit holders working in Switzerland.
Analysis & Comments: While the Swiss-U.K. bilateral agreement announced last month provided some certainty to employers as well as to U.K. and Swiss nationals residing in each other’s country, it did not provide details on immigration procedures for U.K. nationals arriving post-Brexit. The council’s decision to offer a temporary quota scheme for U.K. nationals provides additional clarity and gives employers the option to recruit and hire U.K. nationals following a no-deal Brexit. More details regarding the number of work permits available by canton are expected by the end of March as the Federal Department of Justice and Police will draft amendments to the Ordinance on Admission, Period of Stay and Employment.
U.S. Citizenship and Immigration Services will publish a revised Form I-539 Change/Extension of Status on March 11 and will begin requiring biometrics appointments for applicants. Form I-539 is required for change or extension of status for certain visa holders and for derivative family members of nonimmigrant visa holders, including H-4 spouses of H-1B workers.
Background: Form I-539 Extend/Change Nonimmigrant Status is filed by dependents of nonimmigrant visa holders, including H, L, E, O and others such as B-1/B-2 visitors, as well as individuals changing to F, J or M status. The full list is available on the instructions to Form I-539.
BAL Analysis: H-1B employees and other nonimmigrant visa holders and their family dependents should be prepared to work with their BAL professional to sign the new forms soon after they are released on March 11, particularly H-4 spouses, as the release date of the form leaves only three weeks to gather all signatures before H-1B cap season opens on April 1. Derivative family members filing the new Form I-539/I-539A will need to appear in person for their biometrics appointments and should anticipate delays, as USCIS introduces the new process. Processing of Employment Authorization Documents (EAD’s) when filed concurrently with I-539 applications may also be delayed.
What are the updates? Immigration appointments for residence permit applications are now being scheduled within five business days after all relevant application documents have been uploaded to the online system. Additionally, a new office has been set up to process expedited criminal record certificate requests.
What do the updates mean?
RADEX appointments. The online residence visa application system (RADEX) is now allotting immigration appointments more regularly and with shorter notice after applicants submit the necessary documents online. Immigration appointments are scheduled within five business days following submission of the required documents through the RADEX system. Once the appointment time is assigned, it cannot be rescheduled and employees will have to attend their appointment to finalize their residence permit.
Expedited criminal record certificates are now available. Expedited criminal record certificate requests may now be submitted through a new Registro Nacional de Residencia office and will be issued within one hour. Expedited certificates are available at a service charge of 500 Argentine pesos (about US$13) from 1 to 5 p.m. Monday through Friday. Employers should check if the service is available in their jurisdiction.
Analysis & Comments: The changes will shorten processing times for residence permit applications, as appointments will be easier to obtain through the online system, although employers will have to ensure that employees are able to attend appointments that may be booked on short notice. Employees who require criminal record certificates from Argentina will now have the option of expediting the document and receiving it within one hour.
The Labor Department has posted processing times current as of Jan. 31 for permanent labor certification (PERM) applications and prevailing wage determination (PWD) requests.
PERM Processing: Applications filed in October and earlier are now being adjudicated, according to the department. Audit reviews are being conducted on applications filed in July and earlier, and appeals filed in October and earlier are being reviewed for reconsideration.
Average PERM processing times in January:
PWD Processing: The National Prevailing Wage Center is currently processing requests filed in September and earlier for H-1B and PERM cases. Redeterminations are being considered on appeals filed in November and earlier for H-1B and PERM cases. Center director reviews are being conducted on appeals filed in December and earlier for PERM cases. The department reported that it had no center director reviews pending for H-1B cases.
Average times for issuance of prevailing wage determinations:
The Labor Department reports PERM and PWD processing time frames on its iCERT page.
BAL Analysis: BAL’s internal case tracking is mostly consistent with the Labor Department’s published processing times. BAL is seeing approvals for PERM applications filed in October and earlier, but is seeing PWDs for requests filed in October, as well as September and earlier.
Copyright © 2018 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries please contact copyright@bal.com.
IMPACT – HIGH
What is the Brexit news? The Swiss Federal Council has approved a bilateral Swiss-U.K. agreement that will administer the status of U.K. nationals in Switzerland and Swiss nationals in the U.K.
What does the news mean? The effective date of the agreement depends on the outcome of negotiations between the EU and the U.K.
Key points of the Swiss-U.K. agreement:
Background: While many EU member states are currently establishing unilateral measures to protect U.K. citizens’ rights under a no-deal Brexit, Switzerland must take a bilateral approach to its Brexit planning, as the country’s immigration regime does not fully fall under EU mobility regulations. Switzerland is not part of the EU but is a member of Schengen, a peculiarity which distinguishes Switzerland’s immigration regime from that of its European neighbors.
Switzerland has established various bilateral agreements that support free movement to and from the country. Currently, relations between the U.K. and Switzerland are governed by FMOPA. After Brexit, the U.K. will no longer be an EU member and the agreement will not cover U.K. citizens.
Analysis & Comments: The agreement, if ratified by both countries, will provide some certainty to employers as well as to U.K. and Swiss nationals residing in each other’s country. While some post-Brexit and post-transition procedures remain unclear, it is likely that employees will be able to continue working and residing in their respective host country based on their current status. Employers should ensure that sufficient preparation is afforded to those nationals who will require work and residence permit in a post-Brexit scenario.
What is the Brexit news? The Danish government has released plans on how it would administer the status of U.K. citizens in Denmark in the event of a “no deal” Brexit.
Background: The U.K. is set to leave the European Union on March 29, and although the U.K. and the EU have negotiated a draft withdrawal agreement, the U.K. Parliament has not approved it. EU member states are releasing plans on how they will address the end of EU free movement as applied to U.K. citizens.
Analysis & Comments: The government’s contingency plan provides some certainty to employers and U.K. citizens in Denmark, as the transition period would allow employees to continue working and living in the country while awaiting clarification by the government regarding their permanent status. Though the status of U.K. citizens and their families after the transition period is unclear at this time, they will most likely need to apply for residence permits during the transition period. Employees should register with local authorities and obtain an EU registration certificate before March 29 to prove that their residence status was originally issued in accordance with EU free movement laws.