IMPACT – HIGH

What is the change? The Australian Government has provided new information about the forthcoming Temporary Skill Shortage (TSS) visa programme, which will replace the Subclass 457 visa programme in March.

What does the change mean? Among key information made available through the Government’s Skilled Visa newsletter are additional details on visa validity period, streamlined processing measures, transitional arrangements, labour market testing and salary requirements. Many details are not yet finalised, but the information that is available should help employers begin to plan for the switch to the new visa programme in March.

  • Implementation timeframe: Between now and March 2018.
  • Visas/permits affected: Temporary Skill Shortage (TSS) visas.
  • Who is affected: Employers planning on recruiting foreign workers on TSS visas.
  • Next steps: Additional information on the TSS visa programme will continue to come out in February and March. BAL will continue following developments and will alert clients to additional changes once they are announced.

Key information: The Australian Government announced in April 2017 that it would abolish the Subclass 457 Temporary Skilled Work visa and replace it with the Temporary Skill Shortage (TSS) visa programme with an eye toward tighter controls over migration and the hiring of skilled foreign workers. This week, officials released some information that should help employers begin to prepare for the switch. Some key points, as highlighted in the Government’s Skilled Visa newsletter for January, are as follows:

  • The TSS visa programme will, as expected, be launched in March. The TSS visa programme will include separate streams for short-term work, medium-term work and work completed pursuant to labour agreements in Australia. When TSS nomination applications are lodged, employers will be required to select an employment period of one or two years for the short-term stream and one, two, three or four years for the medium-term or labour agreement stream.
  • The TSS visa programme will include streamlining initiatives. These initiatives include:
    • A standard five-year sponsorship agreement period, including for start-up companies.
    • Auto-approval of low-risk nomination applications that are submitted by accredited sponsors.
    • A quicker renewal process for existing sponsors, including a shorter application form and, potentially, auto approval of some sponsorship renewal applications.
    • New online forms for the TSS visa programme and a review aimed at ensuring that TSS correspondence templates are easy to use and understand.
  • Transitional arrangements will be put in place. These arrangements are still being finalised, but it is anticipated that:
    • If Subclass 457 nominations and visa applications are both lodged before the TSS programme is implemented, they will be adjudicated against current criteria (i.e., Subclass 457 criteria).
    • If, at the time of the switch, a Subclass 457 nomination is lodged but the associated visa application is not, the nomination will not be considered and will have to be resubmitted under new guidelines.
    • Secondary visa applicants will be permitted to lodge dependent TSS applications if the primary visa holder has a current or pending Subclass 457 visa. The validity period of the dependent TSS visa will be linked to the expiry date of the primary visa.
    • Subclass 457 visa holders with valid visas will be able to change employers after the transition to TSS, provided the new employer lodges a TSS nomination application.
    • Subclass 457 visa holders who want to change occupations, however, will be required to have their employers lodge a TSS nomination application and will be required to submit a new visa application.
  • Labour market testing requirements will become more stringent. As BAL reported in October, Labour Market Testing will be mandatory for TSS visa applications. Exact requirements have not been determined, but authorities previously indicated that sponsors who want to ensure they meet the criteria once they are established should consider: (1) advertising positions for a reasonable period of time before seeking to fill positions with foreign workers; (2) ensuring that advertisements specifically mention the nominated position, including the terms and conditions that are eventually offered to a foreign worker; and (3) ensuring that advertisements can be accessed nationally. Additional details are expected in February.
  • Employers will have to meet salary requirements. Current arrangements require sponsors that employ foreign workers at an annual salary of less than A$250,000 to establish that they are paying a market rate salary. Changes are planned to (1) clarify the meaning of key terms such as “base rate of pay” and “guaranteed annual earnings”; (2) ensure that salary requirements more properly reflect pay disparities from industry to industry; (3) take steps to ensure that foreign workers understand salary requirements so that it will be harder for unscrupulous employees to take advantage of them; (4) make clear to sponsors that they must comply with all applicable labour laws, as well as immigration rules. Additional details are expected in February.

BAL Analysis: Employers are encouraged to familiarise themselves with the information that is available about the forthcoming TSS visa programme. The streamlining measures will help ease visa processing for some sponsors and are a reminder of the benefits of becoming an accredited sponsor. BAL can assist employers, meanwhile, in determining whether it is best to submit nominations and visa applications before or after the switch. BAL can also help employers plan for labour market testing and salary requirements.

This alert has been provided by BAL Australia. For additional information, please contact australia@bal.com.

MARN: 0101248

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 change? Employers are reminded that important changes to permanent employer-sponsored skilled categories take effect in early March when the subclass 457 visa programme is terminated and replaced with the Temporary Skills Shortage visa. Transitional provisions will apply to certain subclass 457 employees applying for permanent residence after March.

What does the change mean? Foreign workers sponsored under the Employer Nomination Scheme and the Regional Sponsored Migration Scheme will be subject to stricter criteria as detailed below. However, employees who held, or applied for, a 457 visa on 18 April are eligible to be considered for permanent residency under transitional provisions that use the old criteria for occupation, age requirements, and minimum tenure.

  • Implementation timeframe: Early March 2018.
  • Visas/permits affected: Employer Nomination Scheme (ENS) visa (subclass186) and the Regional Sponsored Migration Scheme (RSMS) visa (subclass 187). The transition provisions apply to the Temporary Residence Transition stream only, not the Direct Entry stream or the Agreement stream.
  • Who is affected: Companies sponsoring foreign workers under the ENS or RSMS programmes; foreign workers holding 457 visas who may be eligible to apply for permanent residency under the transitional provisions.
  • Business impact: The tighter requirements, such as occupation, age, salary and work experience, may limit the skilled employees that companies are able to sponsor for permanent residency. Businesses will also need to budget for the new skills levy that will fund programmes to train Australian workers.
  • Next steps: The transitional provisions remain subject to final approval by immigration authorities. Employers should prepare for the upcoming changes to the ENS and RSMS programmes and identify 457 visa holders who may be eligible to be grandfathered in under old criteria for permanent residence.

Background: Below are the new criteria for ENS and RSMS schemes and a chart indicating who is eligible for certain transitional “grandfathering” provisions.

  • Occupation lists. The nominee’s job must be on the Medium and Long-term Strategic Skills List (MLTSSL) unless the employer is in a regional area (for which more occupations will be available).
  • Minimum Salaries. Employers must pay the nominee the Australian market salary rate and meet the Temporary Skilled Migration Income Threshold (A$53900 as of 12 April 2016).
  • Residency period. Workers under the Temporary Residence Transition stream will become eligible for permanent residency after three years (instead of the current two years).
  • Work experience. The employee must demonstrate at least three years of work experience relevant to the particular occupation.
  • Age limit. All applicants must be below the maximum age of 45 at the time of application (instead of the current maximum age of 50).
  • Training levy. Employers must pay a contribution to the Skilling Australians Fund. The fee will be A$3000 for companies with annual turnover of less than A$10 million or A$5000 for all others, and must be paid in full at the time of nomination.

Eligibility for transitional provisions:

Nominee Eligible for Transitional Provisions?
Employee held a subclass 457 visa on 18 April  2017 and continues to hold this visa or a TSS visa or related bridging visa at the time of application for ENS or RSMS;

or

Employee lodged a subclass 457 visa application on or before 18 April 2017 and was subsequently granted this visa, and continues to hold this visa or a TSS visa or related bridging visa at time of application for ENS or RSMS.

 Yes. New criteria will apply, except for the following:

  • Old occupation list requirements apply.
  • The maximum age of 50 will apply.
  • The minimum tenure of two years’ employment in the nominated occupation as a 457 or TSS visa will apply.
All other applicants No. All new criteria apply.

BAL Analysis: Employers should prepare for the changes as they consider sponsoring employees for permanent residence under the ENS and RSMS routes. Companies are also encouraged to work with their BAL professional to preserve the grandfather rights of employees who qualify under the transitional provisions. Immigration authorities also confirmed that the new ENS and RSMS criteria will not be applied to pending applications.

This alert has been provided by BAL Australia. For additional information, please contact australia@bal.com.

MARN: 0101248

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 – MEDIUM

What is the change?  Authorities in the United Arab Emirates have said that beginning Feb. 4 new work visa applications must include a certificate of good conduct ( police clearance certificate).

What does the change mean? The change reportedly stems from a 2017 cabinet decision and will add time to the visa application process in some cases. The rule will affect new work visa applicants, but will not affect tourists or dependents. It is not yet clear whether it will be applied to visa renewal applicants.

  • Implementation time frame: The new requirement is expected to be implemented Feb. 4.
  • Visas/permits affected: Work visas.
  • Who is affected: First-time visa applicants. It is not yet clear whether the change will also apply to visa renewal applicants.
  • Impact on processing times: The change could add as much as six weeks to the visa application process, depending on how long it takes applicants to obtain a certificate of good conduct in their home country (or country of their residency for the last five years) and how long it takes to complete the legalization processes.  

Background: Authorities have described the new requirement as a security measure. Although the precise requirements are not yet available, Emirates News Agency and other media outlets have reported that certificates of good conduct will be required from the countries in which applicants have resided in the past five years. BAL has confirmed that the rule will be implemented for new work visa applicants, but not tourists or dependents. It is not yet clear whether it will affect work visa renewal applicants. It seems likely that the rule will apply to freezone work visa applications as well as mainland visa applications, but at this point this is not certain.

BAL Analysis: BAL continues to seek clarification on a number of points related to this development. BAL can work on a case-by-case basis with clients who may be affected to determine what requirements they should anticipate. An updated client alert will be provided as soon as more information becomes available.

This alert has been provided by the BAL Global Practice group. For additional information, please contact your BAL attorney.

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 – MEDIUM

What is the change? Dubai Creative Clusters Authority authorities have said they will no longer require original documents from foreign nationals immediately upon their arrival in the United Arab Emirates to initiate the medical and Emirates ID form typing.

  • Implementation time frame: Immediate and ongoing.
  • Visas/permits affected: Medical and Emirates ID registration.
  • Who is affected: Foreign nationals completing medical and Emirates ID registration.
  • Impact on processing times: The change will eliminate one step in the registration process and will save time for foreign nationals arriving in the UAE in completing the necessary procedures before beginning work.

Background: Authorities made the announcement in December and the change took effect Jan. 1. The new procedures work as follows:

  1. After a foreign national holding an employment entry permit arrives in Dubai, the employer (or BAL on behalf of the employer) processes arrival information online and uploads a scanned copy of the foreign national’s stamped entry permit and employment contract.
  2. AXS will then notify BAL, the employer and the employee by email that medical and Emirates ID forms have been typed and are available to collect either from Dubai Knowledge Park, Block-12, or Dubai International Academic City Medical Centre.
  3. Upon collecting the forms and completing medical testing and biometrics procedures, the employee should be prepared to hand over their original passport and stamped entry permit, which will then be held for visa processing.

BAL Analysis: The DCCA’s goal in implementing the change is to “reduce the overall application process time for the benefit of all our business partners.” The procedures are consistent with broader efforts in Dubai and throughout the UAE to move immigration processes online and eliminate reliance on government couriers, which were previously used to collect passports and other documents for medical and Emirates ID registration.

This alert has been provided by the BAL Global Practice group. For additional information, please contact your BAL attorney.

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.

A federal judge in San Francisco has ordered a temporary halt to the Trump administration’s plan to end the Deferred Action for Childhood Arrivals (DACA) program.

Key points:

  • U.S. District Judge William Alsup issued a ruling late Tuesday saying that until legal challenges to the administration’s plan are resolved, the government must “maintain the DACA program on a nationwide basis on the same terms and conditions” as those that were in place before the administration moved on Sept. 5 to end DACA.
  • Alsup said DACA recipients must be allowed to renew their enrollments, but did not require the government to accept new DACA enrollees. The government can also continue to deny entry to the U.S. to DACA recipients who leave the country. The injunction also leaves room for the government to exercise discretion on a case-by-case basis.
  • Alsup did not rule on the merits of the legal challenge, but issued the injunction after concluding that the plaintiffs were likely to prevail on their claim that the decision to rescind DACA was arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law, and that DACA recipients would suffer “serious irreparable harm” if the program were allowed to expire before litigation over the administration’s decision is resolved.
  • A Justice Department spokesman was widely quoted in the press saying that the agency will continue to “vigorously defend” its position that DACA was “was an unlawful circumvention of Congress” and that the government “acted within its lawful authority in deciding to wind down DACA in an orderly manner.”

Background: President Barack Obama established DACA in 2012, moving to allow hundreds of thousands of people who were brought to the United States illegally as children to remain in the country and apply for work authorization. The Trump administration announced on Sept. 5 that it would end DACA, saying the program represented an unlawful exercise of executive authority. The program was set to expire March 5 before Alsup’s ruling was issued Tuesday night. Trump has said he remains open to a legislative fix for DACA. He met with lawmakers Tuesday, indicating he would sign legislation to protect DACA recipients if it were combined with other measures, such as funding for a border wall and additional measures to prevent immigrants from bringing family members to the U.S. No agreement has yet been finalized.

BAL Analysis: Tuesday’s ruling was welcomed by supporters of the DACA program, but the administration is likely to appeal the ruling. BAL will continue to follow judicial and legislative developments related to DACA and will alert clients to any significant changes.

This alert has been provided by the BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@bal.com.

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.

U.S. Immigration and Customs Enforcement (ICE) agents raided dozens of 7-Eleven convenience stores early Wednesday, providing audit notifications and asking employees about their immigration status. ICE officials said the operation was the largest immigration enforcement effort of its kind since President Donald Trump took office nearly a year ago.

The raids were one of the clearest indications yet of how serious the Trump administration is about stepping up worksite enforcement checks. In October, ICE Acting Director Thomas Homan stated that ICE would dramatically increase the number of worksite visits. ICE officials described Wednesday’s operations targeting 7-Eleven as a “harbinger” of what employers should expect and said that enforcement would not be limited to large employers or specific industries.

“Today’s actions send a strong message to U.S. businesses that hire and employ an illegal workforce: ICE will enforce the law, and if you are found to be breaking the law, you will be held accountable,” Homan said in a statement posted to the ICE Twitter feed.

BAL Analysis: Employers should be aware of the steps ICE is taking to ramp up inspections. Employers are encouraged to conduct an internal audit to ensure that they are in compliance with Form I-9 requirements. BAL can assist in conducting a review and compliance audit of employers’ Form I-9 employment eligibility verification policies.

This alert has been provided by the BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@bal.com.

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 – MEDIUM

What is the change? Chinese central authorities have announced guidelines to ease rules for the Foreign Talent (R) visa for high-level foreign professionals in science, international enterprises and other high-demand fields to develop the economy.

What does the change mean? The guidelines will allow qualifying professionals to obtain multiple-entry Foreign Talent visas of up to 180 days per stay with a validity of five or 10 years, and spouses and children would be eligible for the same visas. Applications may be filed online processed in five working days. Chinese authorities say the processing fee will be waived.

  • Implementation time frame: To be determined.
  • Visas/permits affected: R Foreign Talent visas.
  • Who is affected: High-level foreign professionals.
  • Impact on processing times: An expedited processing time of five working days (instead of the current 10 days) would apply.
  • Business impact: The changes will provide greater flexibility for individuals who qualify as high-level foreign talent and are intended to attract more top international talent to China.
  • Next steps: Local authorities will need to implement the guidelines, define which skills qualify as “high level talents” and refine their procedures.

Background: The guidelines were issued jointly by three central authorities—the State Administration of Foreign Experts Affairs, the Ministry of Foreign Affairs and the Ministry of Public Security—and are intended to attract “top scientists, international enterprises and other talents with specific high-level skills that are in need in the development of the economy and society of China.”

Individual provinces are expected to implement the central authorities’ guidelines by clarifying definitions, criteria and procedures.

In Shanghai, for example, foreign “high-level professionals” are currently defined as being famous award winners or nominees, renowned experts or scholars with outstanding talent, outstanding professionals within an organization, or others with special talents or possessing skills deemed to be in shortage in Shanghai.

BAL Analysis: The guidelines will benefit top foreign professionals, especially in science, technology and other innovative fields, allowing faster processing, longer visits, and more flexibility for family members. BAL is following this development and will report further details as they become available.

This alert has been provided by the BAL Global Practice group in China. For additional information, please contact china@bal.com.

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 – MEDIUM

What is the change? The Australian Government has announced it will not make additional changes to the Medium and Long-term Strategic Skills List (MLTSSL) at this time, saying that it has “prioritised continuity” after the list was significantly altered in April and July of 2017.

What does the change mean? Employers should continue to use the current MLTSSL, as amended in July, when determining what occupations can be filled by foreign nationals under the Temporary Work (Skilled) (Subclass 457) visa, the Training (Subclass 407) visa, the Employer Nomination Scheme (Subclass 186) visa or the Regional Sponsored Migration Scheme (Subclass 187) visa programmes.

  • Implementation timeframe: Ongoing.
  • Visas/permits affected: Temporary Work (Skilled) visas (Subclass 457), Training (Subclass 407) visas, Employer Nominated Scheme (Subclass 186) visas, and Regional Sponsored Migration Scheme (Subclass 187) visas.
  • Who is affected: Employers and foreign nationals applying for any of the visas listed above.
  • Business impact: Sponsors can continue using the MLTSSL as they have for the last six months.

Background: The MLTSSL and STSOL replaced the Skilled Occupation and Consolidated Sponsored Occupation lists in April, when 216 occupations were removed from the set of occupations eligible to be filled by foreign nationals under certain skilled visa programmes. In July, more than 30 occupations were added to the lists. Others moved between the two lists, and 12 were removed altogether. Officials indicated at the time that the occupation lists would be regularly reviewed, with a view to supporting the changing needs of Australian industry and Australian workers. In November, The Department published a traffic light bulletin indicating that no changes would be made to the MLTSSL. The Department also proposed removing four occupations from the STSOL and adding five new occupations to the list. Officials have since confirmed there will be no changes made to the MLTSSL. BAL is working to confirm whether any changes will be made to the STSOL.

BAL Analysis: The decision not to make additional changes to the MLTSSL will allow companies to continue using the MLTSSL as they have for the past six months. BAL will alert clients to any changes to the STSOL should they be announced.

This alert has been provided by BAL Australia. For additional information, please contact australia@bal.com.

MARN: 0534021

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 – MEDIUM

Canada conducted its first Express Entry draw of the year on Wednesday, issuing 2,750 invitations to apply for permanent residency. The lowest qualifying Comprehensive Ranking System (CRS) score was 446.

The number of invitations was the same as it was in the last three draws on Nov. 15,  Dec. 6 and Dec. 20. The minimum qualifying score was the same as it was in the Dec. 20 draw.

Wednesday’s draw was the fifth since Canada instituted a new tie-breaking rule, where candidates with the same CRS score are ranked by the order in which their profiles were submitted.

Date Invitations Minimum Score
Nov. 8, 2017 2,000 458
Nov. 15, 2017 2,750 439
Dec. 6, 2017 2,750 452
Dec. 20, 2017 2,750 446
Jan.10, 2018 2,750 446

BAL Analysis: Canada continues to accept a high number of individuals for permanent residency. The country issued more Express Entry invitations last year than in the previous two years combined, and has announced plans to accept a total of roughly 1 million immigrants in the next three years.

This alert has been provided by the BAL Global Practice group. For additional information, please contact your BAL attorney.

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 – MEDIUM

What is the change? Romanian authorities have increased minimum salary levels for foreign employees by 33 percent as the country prepares for a new system in which employees, rather than employers, will be responsible for social security costs.

What does the change mean? Effective immediately, the minimum monthly salary for foreign workers on local payroll will be 4,162 Romanian lei (about € 895 or US$1,070). The minimum monthly salary for highly skilled workers (EU Blue Card holders) will be 16,648 lei. The change will apply to all work permit applications filed after or pending as of Jan. 6.

  • Implementation time frame: Ongoing.
  • Visas/permits affect: Work permits, EU Blue Cards.
  • Who is affected: Companies employing foreign workers on local payroll, including workers holding EU Blue Cards.
  • Business impact: Businesses may need to adjust their budgets to meet the new wage minimums.  

Background: As BAL reported last month, Romania is planning to shift a portion of the tax burden to employees and away from employers as part of  a new social security program in 2018. Authorities had previously announced that the domestic minimum wage would increase from 1,450 lei to 1,900 lei per month, an increase of 31 percent. Authorities announced the minimum wage rates for foreign workers this week.

BAL Analysis: The new wages mark a significant increase above 2017 levels. Employers should be sure to take the new wage minimums into account when planning their 2018 budgets. Applications that are not supported by the new wage minimums will be rejected.

This alert has been provided by the BAL Global Practice group and our network provider located in Romania. For additional information, please contact your BAL attorney.

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.