Major Changes to Immigration Rules Around the World in 2016
In 2016 Peregrine published over 140 immigration alerts about over 50 different countries, with the help of our local partners across the globe.
Apart from the regular changes to minimum salary requirements, application fees and quota levels, 2016 saw a continuation of the recent trends of online immigration systems and expanding visa waiver programs.
The EU referendum in the United Kingdom and the presidential election in the United States raised questions about possible major immigration rule changes on both sides of the Atlantic, but as of December 2016 nothing concrete has been announced.
European Union member states, meanwhile, have been busy transposing recent EU directives on intra-company transfers and posted workers into their national legislation, and debating further changes to the posted worker rules and the Blue Card scheme.
All our immigration alerts, and other news, can be found on our blog here.
Here we run through some of the major developments in immigration around the world in the last year.
Since the referendum in June in which 52% of participants voted for the UK to leave the European Union, there has been much speculation as to the implications for immigration between the EU and the UK.
Until the UK government notifies the European Council of its decision to leave the EU (under Article 50 of the Lisbon Treaty), negotiations between the EU and the UK on the terms of any separation, future trade deal and possible transition arrangements will not begin, and are expected to last two years.
In other words, no-one can be sure how immigration will be affected by the fallout from the referendum. European leaders have declared themselves unwilling to allow the UK to remain in the EU’s single market if the UK insists on curbing the rights of EU nationals to live and work in the UK.
If the UK imposes restrictions on freedom of movement for EU nationals in the future, it is likely that other countries within the EU will impose visa and work permit requirements for all British nationals seeking to travel to and work in their countries. In this case, employers operating in the EU, or in countries with reciprocal immigration agreements with the EU, might consider hiring EU nationals rather than UK nationals.
There are approximately 3 million EU nationals already resident in the UK with around 2.2 million in work. There has already been a surge in applications being submitted to the Home Office by EU nationals seeking an endorsement of their right to remain, and the Home Office has introduced a new streamlined online registration service.
Similarly, it is likely that many UK nationals in other EU countries who have previously not applied for permanent residency will be motivated to do so by the referendum result to shore up their status and, for some, to get on the pathway to citizenship of another EU Member State.
The UK government also made several changes to the Tier 2 visa category, including increases in salary thresholds, and the closure of the Skills Transfer sub-category.
Visa Waiver Exclusions
Early in 2016, the U.S. Department of State implemented changes to the Visa Waiver Program (VWP) which excluded dual nationals of Iran, Iraq, Sudan or Syria, and those who have visited any of those countries or Libya, Somalia or Yemen since March 2011, from entering the U.S. via this route. These changes come under the Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015.
Meanwhile, United States Citizenship and Immigration Services (USCIS) announced that, effective 23 December 2016, it will increase the filing fees to be paid by employers and individuals when submitting applications and petitions for adjudication. USCIS has indicated that the fees increase (the first in six years) is necessary to reflect their increased processing costs.
President-elect Donald Trump put immigration at the forefront of his campaign for the White House. He promised to take certain actions immediately upon taking office in January.
Among the programs which may be considered for change are Deferred Action for Early Childhood Arrival (DACA) and Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA); provisional waivers of bars from applying for permanent residence for certain individuals; work permits for certain spouses of H-1B and L-1 workers; F-1 STEM OPT work permits and the numbers of H-1B non-immigrant or immigrant visas.
There are some programs that could be repealed immediately and there are other provisions of US immigration that will require legislation to amend the current rules. Moreover, it is not clear where the Trump administration will come down on whether these programs are valuable tools or hindrances to economic growth.
The upcoming new fees for some of the most commonly submitted applications are listed here.
In 2016, two EU Directives pertaining to immigration were due to be transposed into national legislation by Member States.
The Enforcement Directive on the Posting of Workers
A "posted worker" is an employee who is sent by his employer in one Member State to carry out a service in another EU Member State on a temporary basis.
Directive 2014/67/EU (the so-called Enforcement Directive) was approved in 2014 with the aim of strengthening the practical application of the 1996 Posting of Workers Directive, by addressing issues related to fraud, the circumvention of rules, and the exchange of information between the Member States.
Among other provisions, the Enforcement Directive requires employers to notify authorities of new postings, to maintain documents related to the posting and to designate a representative to liaise with authorities.
The Enforcement Directive was due to be implemented into the national legislation of the Member States by 18 June 2016, but at the time of writing only half of the 28 Member States had fully or partially implemented its provisions.
On 8 March 2016, the European Commission proposed a revision of the rules on posting of workers within the EU to ensure they remain fit for purpose. However, these proposals are being resisted by several Member States.
The EU ICT Directive
Directive 2014/66/EC of 15 May 2014 “on the conditions of entry and residence of third-country nationals in the framework of an intra-corporate transfer” aims to create a consistent EU-wide system for non-EU nationals sent on assignment within a group of companies to EU Member States. The United Kingdom, Ireland and Denmark have opted out of the directive.
The deadline for EU Member States to transpose this directive into their national legislation was 29 November 2016. However, as of the time of writing, only six Member States have implemented the directive.
Proposal to Revamp the EU Blue Card Scheme
On 7 June 2016, the European Commission presented a proposal to revamp the European Union (EU) Blue Card scheme, aiming to improve the EU’s ability to attract and retain highly skilled workers, following a public consultation on the existing scheme carried out in 2015. The proposal was launched alongside an Action Plan to support Member States in the integration of third-country nationals
The proposed new version of the Blue Card scheme will have more flexible and inclusive qualifying criteria, standardised procedures across the EU, faster processing and enhanced benefits.
The existing Blue Card scheme, adopted in 2009 and implemented in most EU Member States over the last 7 years, entitles the holder to live and work in an EU Member State for up to four years (United Kingdom, Denmark and Ireland have opted out of the scheme).
However, the European Commission admits that restrictive qualifying criteria and the existence of parallel procedures for highly skilled workers in various Member States has limited the success of the Blue Card. According to the latest available data, fewer than 14,000 Blue Cards were issued EU-wide in 2014, the vast majority of them by Germany. Only 31% of highly-educated migrants currently residing in OECD countries chose the EU as their destination, while more than half (57%) are in North America.
France implemented the posted workers enforcement directive in 2014 and 2015, and in 2016 introduced a new online tool (called “SIPSI” - Système d’Information sur les Prestations de Services) for foreign employers of posted workers submitting their posting declaration.
In addition, the sending company must designate a legal representative in France who will be the liaison between the labour inspectorate and the employer abroad. The legal representative must have access to the assignment documents, including a copy of the declaration, and copies of work permits, payslips and social security compliance documents. Employers can be fined up to EUR 500,000 for failure to comply with these requirements.
New Immigration Regime
Effective 1 November 2016, the French government implemented a new Law on Foreign Workers.
This law establishes two new visa categories to be processed by the French consulates abroad rather than the labour authorities in France:
1. “Talent Passport”, a four-year permit which includes the European Blue Card and intra-company transfers (ICT) with a local employment contract in France.
2. Intra-Company Transfer (ICT) Employees on Detachment (i.e., secondment/posting). This new category implements Directive 2014/66/EU (the ICT Directive).
The new law also introduced a 90-day work permit exemption for posting assignments, for audits and experts in information technology, management, finance, insurance, architecture and engineering, as well as local employees in certain occupations.
In addition to implementing the Enforcement Directive, Ireland introduced long-awaited new online systems.
The Irish Naturalisation and Immigration Service (INIS) introduced in 2016 an online booking system for appointments for residence registration at the Garda National Immigration Bureau (GNIB office in Burgh Quay, Dublin. This is a long-awaited system intended to ease the process of registering residency and obtaining or renewing a GNIB Card.
In addition, the Department of Jobs, Enterprise and Innovation (DJEI) has officially launched its new Employment Permits Online System (EPOS). The applicant completes an online application, documents must be scanned and uploaded and a fee paid by debit or credit card through a secure payment gateway.
In China, a pilot program was initiated to consolidate the employment permit issued by the Ministry of Human Resources and Social Security, and the foreign expert certificate issued by the State Administration of Foreign Experts Affairs.
The integrated mechanism was launched on 1 October in nine pilot provinces/cities (Anhui, Beijing, Guangdong, Heibei, Ningxia, Shandong, Sichuan, Shanghai and Tianjin) and will be expanded nationwide on 1 April 2017. Once the new system takes effect, foreign nationals will have the option to either retain their current work permit or foreign expert certificate for the remainder of the period of validity, or replace the existing permit with the integrated work permit.
Under the integrated system, foreign nationals working in China will be categorized into one of three groups (A, B and C) that will identify the holder as high-end personnel, professional personnel, or temporary and seasonal personnel in the service or non-technical sectors.
Criteria such as salary, educational background, length of time services are provided, Chinese language proficiency, age and work experience will be evaluated in determining the applicable group. The total “scores” will be added, with a score of below 60 for group C, 60 and over for group B and 85 and over for group A.
In October 2016, the Ministry of Labour in Saudi Arabia sharply increased visa application fees and introduced new fees in some cases.
Note that different rates apply in the US, the UK, the Schengen States and Turkey. For a breakdown of consular visa application fees in these countries, see this infographic.
Decree 8757/16, published 11 May 2016, significantly amends the rules and procedures for obtaining work visas for foreign nationals in Brazil, but has not yet been fully implemented. Major changes are as follows:
- Work visa renewal applications can now be submitted to the Ministry of Labour electronically, rather than manually;
- It will now be possible to apply to the Ministry of Labour to change status post arrival from a business or student to a work visa;
- Dependents of work visa holders who are 16 years and over will be able to work in Brazil;
- Change of employer notifications will also be possible online to the Ministry of Labour, rather than to the Ministry of Justice;
- Work visa extension applications will no longer require the employer to be responsible for the employee’s repatriation costs;
- A new visa will be created for research and innovation projects;
- The process of obtaining a work visa will be streamlined for “strategic professionals” – however, the definition of “strategic professionals” and the details of the new streamlined process have not yet been established.
Electronic Travel Authorisation
In 2016, Canada introduced the Electronic Travel Authorisation (eTA) system. Visa exempt foreign nationals are expected to have an eTA to fly to or transit through Canada. The eTA is an online registration system that travellers access online. eTAs are valid for five years, or until the expiration date of a passport, whichever comes first. The eTA requirement applies to travellers who do not need a visa to enter Canada and who are planning to arrive by air. Visa exempt countries include the UK, Japan, Australia, Korea, countries in the European Union and more. It does not apply to citizens of the United States (US), but US permanent residents, or green card holders, do require the online authorisation.
The Canadian government also made changes to the Express Entry immigration program to level the playing field between various types of work permit holders who apply for permanent residence.
The government also cancelled a regulation that required many foreign workers to leave Canada for a four-year period if they had worked in Canada for four years. Applicants who left Canada because of the four-year rule can now apply to return to Canada without having to wait for four years.
In 2016, the Expatriate Services Division (ESD) of the Immigration Department of Malaysia (MID) and Malaysia Digital Economy (MDEC) began requiring that all Employment Pass (ED), Professional Visit Pass (PVP), Dependant Pass (DP) and Long Term Visit Pass (LTVP) applicants obtain an approval letter before entering Malaysia. The approval letter must be produced at the port of entry in Malaysia for verification by the immigration authorities.
Previously, applicants for these passes could travel to Malaysia as visitors while waiting for their pass application to be approved. Employers must now allow more time before assignees or employees can enter Malaysia.
Among important changes in Australian immigration in 2016, on 31 August the High Court of Australia ruled that foreign nationals working in the offshore oil and gas industry within Australian waters will not be exempted from visa requirements and minimum work conditions.
A new temporary visa framework created a new single sponsor class to replace the six existing sponsor classes, restructured the visa subclasses, removed certain sponsorship and nomination requirements for specific short stay activities, and introduced the option to lodge applications online. A new Frequent Traveller stream of the Subclass 600 visitor visa allows multiple entries for business or tourism for up to three months at a time, during a validity period of ten years. The new visa stream is initially available only to Chinese nationals, with a view to progressively allowing nationals of other countries to apply in the future.
There were also changes to the definition of dependent family members, and to the accredited sponsor scheme. ____________________________________________________________________
Thanks for joining us in 2016. We look forward to keeping you informed in the coming year. Merry Christmas and a Happy New Year! The Peregrine Team