The year ahead: Immigration trends to look for in 2016

6 Jan 16

AUSTRALIA, BRAZIL, CANADA, SWITZERLAND, CHINA, EUROPEAN UNION, UNITED KINGDOM, , SINGAPORE, UNITED STATES, SOUTH AFRICA

Immigration was a hot topic this year, grabbing headlines on issues ranging from the renewed focus on H-1B visas in the U.S to the Mediterranean refugee crisis reverberating in Europe.

As we begin the new year, BAL has compiled a review of changes in the past year and a preview of some of the major immigration trends to expect in the U.S. and key countries around the world in 2016.

UNITED STATES

The fate of two key provisions of President Obama’s immigration executive actions is in the hands of the Supreme Court. The actions, which would defer deportation for 5 million undocumented immigrants, remain on hold after an appeals court upheld an injunction blocking them this year. If the Court takes the case, it could issue a ruling by June.

On the business immigration side, several significant initiatives will be implemented in the coming months. U.S. Citizenship and Immigration Services has published proposed regulations intended to provide greater flexibility and job portability for H-1B workers and other foreign employees in the U.S. on nonimmigrant visas or seeking employer-sponsored green cards. Comments on the proposed rule will be accepted until Feb. 29, and the regulations will be implemented thereafter.

The Department of Homeland Security will also be finalizing and implementing a STEM-OPT regulation that both expands Optional Practical Training (OPT) opportunities for foreign students with degrees in science, technology, engineering, and math (STEM) fields and imposes significant new obligations on employers. The revised regulation is the result of an ongoing lawsuit over the OPT program. A court gave DHS until Feb. 12 to issue a new regulation without disturbing the existing STEM-OPT regulation in the meantime. The agency’s request for a 90-day extension of that deadline is pending. Meanwhile, opponents continue to challenge the OPT program in a federal appeals court.

During the first half of 2015, USCIS issued a regulation allowing H-4 spouses of certain H-1B workers to obtain employment authorization in the U.S. The agency also released policy guidance regarding the implementation of the Administrative Appeals Office decision Matter of Simeio Solutions, and the adjudication of L-1B petitions for employees with specialized knowledge.

Congress wrapped up the year passing a federal budget containing two immigration provisions that will have an impact in the coming year. One provision will double H-1B and L-1B visa petition fees for certain employers who are heavily reliant on H-1B and L-1B workers. The second provision contains new rules and passport requirements for foreign visitors traveling to the U.S. under the Visa Waiver Program.

A spate of bills to restrict H-1B and L-1B visas was introduced at year’s end. The bills propose to lower the H-1B cap by 15,000, set a $110,000 salary floor for H-1B workers and place new limits on H-1B and L-1B employers. While these measures may not gain traction, they are indicative of a mood toward tightening the rules for employers hiring foreign high-skilled workers.

As the 2016 presidential election approaches, immigration will likely remain at the forefront of campaign politics.

CANADA

Canada will embark on its second year of the Express Entry system for prioritizing foreign job applicants seeking permanent residency. Citizenship and Immigration Canada issued a total of 31,063 invitations to apply in its first year, and officials recently projected an increase in invitations to apply in 2016 and a continued downward trend in the minimum qualifying score. The new year will also see a new penalty regime that targets employers who violate the terms and conditions of work permits operating in full swing. Beginning March 15, an electronic Travel Authorization system for visa-waived nationals (excluding U.S. citizens) will become mandatory. On the policy side, new Prime Minister Justin Trudeau has promised an immigration platform giving greater flexibility to foreign workers in the area of family-sponsored migration.

UNITED KINGDOM

All eyes are on the Migration Advisory Committee, which is tasked with making recommendations to the government on reforming Tier 2 visas with a view toward the Conservatives’ policy of slashing net migration. The MAC’s report is due by mid-January 2016. Recent numbers indicate that despite these policy goals, net migration is at its highest level. In 2015, quotas for Tier 2 visas were reached in four successive quarters and could see continued pressure depending on the MAC report and how restrictive the government is willing to go on reforms. Tighter immigration rules are already slated to take effect, including higher Tier 2 minimum salaries, mandatory right-to-rent checks by landlords, and greater record-keeping duties by employers who hire foreign workers. BAL submitted detailed comments and recommendations to the MAC and continues to work with employers to influence the policy debate.

EUROPEAN UNION/SCHENGEN

EU member states will be implementing an EU directive in the coming year that benefits multinational companies sending intracompany transferees (ICTs) to the EU. The ICT Directive calls for a common set of rules for ICTs to work and reside in a host country and move more easily within the EU. Member states are required to adopt legislation by the end of 2016. Spain was the first country to transpose the directive into its national laws by introducing an EU ICT visa in September.

The EU Blue Card Directive is also under review as the European Commission looks to overhaul and potentially expand it as part of the Commission’s Migration Agenda. The agenda seeks to better address skills shortages in the EU and attract more applicants to the underutilized Blue Card program. The public consultation has closed and the commission’s proposals are forthcoming.

Meanwhile, Europe continues to grapple with the largest wave of refugees since World War II. Border control measures have been proposed by the Council of the EU, including regular checks of all travelers entering the EU against relevant databases. Individual countries, including Germany, France, Austria, Sweden and others, set up temporary internal border checks at one time or another in 2015. Such checks may reappear in 2016, as the migrant crisis is far from resolved.

SWITZERLAND

In 2016, employers in Switzerland will be limited to the same B and L permit quotas as in 2015. The country announced in November that highly skilled workers from non-EU/EFTA countries will be capped at 2,500 B permits and 4,000 L permits. The cap for assignees from EU/EFTA countries will be 250 B permits and 2,000 L permits.

Separately, Swiss and EU officials are working to reach agreement that would allow Switzerland to implement a 2014 immigration ballot measure without jeopardizing its EU Agreement on the Free Movement of Persons. Switzerland has said that if an agreement with the EU cannot be reached by March, the Swiss Federal Council will be forced to submit a draft law to the Swiss Parliament to unilaterally impose a “safeguard clause” that would let Switzerland cap immigration from within the EU once certain levels are reached.

AUSTRALIA

The Australian government will introduce a new Entrepreneur Visa in the second half of 2016. The new visa is aimed at attracting foreign innovators to Australia. The government will also make it easier for post-graduate students in science, technology, engineering and mathematics (STEM) or information and communications technologies (ICT) fields to reside in Australia.

Employers can expect the government to continue to overhaul the subclass 457 visa program in the coming year, according to reforms recommended in a 2014 independent review. In addition, the 457 visa’s income threshold (Temporary Skilled Migration Income Threshold) is set to be reviewed in 2016 and findings will be issued in April.

Business sponsors are likely to face increased monitoring and investigations by immigration authorities seeking to make sure sponsors and their foreign employees are in compliance with the terms and conditions of their visas. The Department of Immigration and Border Protection recently adopted recommendations to strengthen its oversight of visa compliance after an audit found weaknesses in many aspects of the department’s ability to track and prevent visa violations.

BRAZIL

As Brazil prepares to host the 2016 Olympics, the government has announced it will waive tourist visa requirements this summer for nationals of Australia, Canada, Japan and the U.S. The policy should help keep processing times on track and prevent a bottleneck of visa applications for business travelers and other applicants.

In the past year, authorities have taken numerous steps to streamline services, improve processes and implement an online application system for foreign applicants.

CHINA

Beijing is introducing a new online work permit management system this month that will change the process and require employers to register and file applications online.

Shanghai introduced new rules in 2015 to attract foreign talent in science, technology and innovation. The regulations, which remain valid until Aug. 4, 2017, simplify procedures for high-level foreign professionals and lengthen the duration of permits for certain experts, students and entrepreneurs.

BAL anticipates that in 2016 immigration authorities will continue to introduce innovative ways to attract foreign talent, while also strictly implementing regulations that prevent illegal working activities.

SINGAPORE

Singapore continues to localize its labor force. Stricter job advertising rules that include the publishing of salary ranges for job openings were implemented in October. Authorities continue to aggressively enforce immigration legislation, with a recent focus on prosecuting false or misleading work pass salary attestations. Given the tight labor market, the government recently initiated a two-year pilot program offering small and medium-sized enterprises new tools to restructure.

SOUTH AFRICA

Although the current draft Immigration Amendment Bill will likely be enacted in early 2016 and, as such, introduce yet further sanctions for foreign nationals who overstay the expiry date of a South African visa, the Department of Home Affairs is expected to roll out several immigration concessions throughout 2016 to alleviate the implementation of strict visa rules on travelers that dominated last year’s immigration debate.

These rules require that visa applicants give biometrics in-person at a South African mission and that all traveling minors carry original birth certificates and extensive documentation of their family relations. The anticipated concessions to be introduced in the coming year include biometrics-taking upon arrival at South African airports, longer multiple-entry visas for frequent business travelers, broadening the scope of South African’s visa waiver program, adding new overseas visa facilitation centers to South Africa’s current global network and detailing the names of parents on South African visas issued to minors to obviate the need to travel with birth certificates.

Copyright © 2016 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@balglobal.com.