Navigating UK & US Immigration Laws: What you need to know · Overview of key routes: Tier 2 & 5 Sponsorship and Business Visitor routes Changes in the pipeline for the UK Immigration

Navigating UK & US Immigration Laws: What you need to know

2 March 2015

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UK Overview of key routes: Tier 2 & 5 Sponsorship and Business Visitor routes Changes in the pipeline for the UK Immigration Rules Sponsorship policy and pitfalls to look out for when transferring employees to

the UK

US Changes in the pipeline for US immigration The President's Executive Action Pitfalls to look out for when dealing with transfers to the US

Q&A

Our Squire Patton Boggs Immigration Team

Introduction


Tier 2 of the Points Based System * Tier 5 of the Points Based System *

Business Visitors

* Points assessment on variety of attributes including skill level of role, salary, qualifications, English language ability and funds

Key UK Immigration Categories


Once a branch or subsidiary is established, the UK entity can apply for a Tier 2 Sponsor Licence – a trust based system .

Sponsoring employer assigns a Certificate of Sponsorship (‘CoS’) to qualifying individual who then applies for visa (entry clearance) from abroad or ‘further leave to remain’ from within UK.

Essential to meet Tier 2 Sponsor compliance duties – e.g. only specific full-time role/genuine vacancies skilled to NQF Level 6 + (with limited exceptions) and with minimum prescribed salary can be sponsored.

Individual is tied to sponsor and specific role via Home Office SOC codes.

Sponsored migrant must fulfil criteria for financial maintenance (unless sponsor prepared to certify).

Two main categories: Tier 2 (General) and Tier 2 (Intra-Company Transfer)

Tier 2 Sponsorship

Tier 2 Sponsorship Essentials


To obtain a sponsor licence, established UK entity would need to: collate certain official corporate, tax and regulatory documentation to show that it is

established as an employer in the UK and links with overseas entities; appoint certain key personnel for the purpose of maintaining the sponsor licence

including an Authorising Officer, Key Contact and Level 1 User; submit an online sponsor licence form to the Home Office (through its Authorising

Officer) pay application fee and submit original supporting documentation.

The Home Office will carry out an audit before approving the licence or within

4 years of the licence being granted. Must ensure appropriate HR systems in place before submitting application and maintained.

Audits can take place on notice or unannounced. Once granted, the sponsor licence is subject to strict record keeping and

reporting compliance duties.

Obtain a Tier 2 Sponsor Licence



General duties – including only assigning CoS to migrants who meet the requirements of the relevant category and are likely to comply with their conditions of leave

Record keeping duties – including keeping prescribed documentation and sponsored migrant’s current and historic contact details

Reporting duties – including absences, change to role, location or immigration status

Preventing Illegal working – ensure right to work checks carried out for all employees before employment begins and maintain proper record of immigration status at all times

Breach of any compliance duty can lead to sponsor licence being suspended, downgraded or revoked and termination of all sponsored migrants (including those not involved in breach)

Civil penalties of up to £20,000 per illegal employee

Tier 2 Compliance – Sponsor Duties



Tier 2 (General) is generally for ‘new hires’ and usually requires advertising in a specific format and medium to fulfil the Resident Labour Market Test (‘RLMT’) (can lead to indefinite leave to remain (ILR))

Sponsor must complete RLMT unless the role is exempt e.g. shortage occupation OR salary £153,500+* OR switching from Tier 1 PSW or Tier 4 having completed degree in UK OR extension in same occupation

Minimum salary at least £20,500* or that specified in SOC code (whichever is higher)

Once RLMT completed, unless role is exempt, sponsor must also apply for Restricted CoS before assigning CoS (exceptions include: salary £153,500+, extensions, changing sponsored employment or switching within the UK)

Sponsored migrant must fulfil criteria for English language

* Changes to minimum rates from 6 April 2015

Overview of Tier 2 (General)



Long Term Staff (visa for up to 5 years): for those employed in linked company abroad for 12 months + with minimum salary of £41,000 *

Short Term Staff (visa for up to 12 months): for those employed in linked company abroad for 12 months + with minimum salary of £24,500 *

Graduate Trainee (visa for up to 12 months): for those employed in linked company abroad for 3 months + for training only as part of a structured accelerated promotion programme with minimum salary of £24,500 *

Skills Transfer (visa for up to 6 months): for those employed in linked company abroad for purpose of acquiring skills and knowledge needed to perform role abroad or impart specialist skills to UK workforce with salary of £24,500 *

* Or minimum rate in relevant SOC code whichever is higher

Tier 2 (ICT) cannot lead to ILR unless migrant entered UK before 6 April 2010

Overview of Tier 2 (Intra-Company Transfer)



From 6 November 2014, the Home Office has begun to apply a ‘genuine vacancy’ or ‘genuineness test’ to any Tier 2 General or Tier 2 ICT application. Applicants may fail this test and their application will be refused if there are reasonable grounds to believe that the position in question does not genuinely exist, or has been exaggerated to meet the Tier 2 skills threshold. In addition, the application will also fail if there are reasonable grounds to believe that the applicant is not appropriately qualified to do the position in question.

The vacancy must exist in practice or must be a vacancy that would exist in practice were it not filled by the sponsored migrant

The requirements for the position must be appropriate for the actual position on

offer and must not have been tailored to exclude resident workers from being recruited

Genuineness Test



Increased minimum salary thresholds for Tier 2 applicants

Tier 2 (General): £20,800 Tier 2 (General) for jobs exempt from JobCentre Plus advertising: £72,500 Tier 2 (General) for high earners : £155,300*

* jobs exempt from annual limit, 12 month “cooling off period”, and RLMT

Tier 2 (Intra Company Transfer) for Skills Transfer, Graduate Trainee, and Short Term

Staff: £24,800 Tier 2 (Intra Company Transfer) for Long Term Staff: £41,500 Tier 2 (Intra Company Transfer) for high earners: £155,300**

** jobs exempt from 12 month “cooling off period”, and qualify for transfers up to 9 years

Changes in the pipeline: to be introduced from 6 April 2015



Overarching body that has a registered Tier 5 GAE scheme with the Home Office acts as ‘sponsor’

Three types of scheme approved under the Tier 5 GAE route. Most relevant is: Work experience programme - includes volunteering, job-shadowing, internships and

approved work experience programmes

Key requirements: Role must be supernumerary (cannot be a permanent full time vacancy) Role must be at NQF Level 3 or above Candidate must meet the requirements of the individual exchange scheme (for

example, they may be required to have a degree level qualification obtained within the last one or two years).

Minimum salary level is minimum wage * Not extendable and cannot switch into Tier 2 from within the UK

Tier 5 Government Authorised Exchange (GAE)

Tier 5 Sponsorship


A non-EEA national working abroad visiting the UK to do business on their own or their employer’s behalf may enter as a ‘visitor’

Maximum stay in any one visit is 6 months and separate visits must not amount to more than 6 months in any 12 month period

Work/employment (whether paid or unpaid) is prohibited regardless of duration of visit

Permitted business activities are limited but include ‘’attending meetings’; ‘trouble-shooters, trainers or consultants’; and some types of ‘secondment’

If an Immigration Officer believes that there is an intention to take employment, a visitor can be refused entry and receive a re-entry ban of between 1 and 10 years (where deception used)

Business Visitors


A type of business visit visa , which allows the visitor to be paid by a UK source in limited circumstances

The visa is for people seeking leave to enter the UK as a professional where they have been invited to the UK for an engagement which relates to their area of expertise and/or qualifications and their full time occupation overseas

The category is limited to persons including: Lecturers Professional artists, entertainers or sportspersons

* Despite first appearances, this category can be a misleading option: the limited circumstances it can be used in are such that for most companies this is not a helpful category

Permitted Paid Engagements (PPE)

Business Visitors


Statement of changes to the Immigration Rules published on 26 February 2015

Changes to Tier 2 Annual updates to minimum salary thresholds and appropriate salary rates (1.2%) Tier 2 limit unchanged, but more places will be made available annually each April 12 month “cooling off period” will no longer apply to applicants who have previous Tier

2 grants of leave / visas of 3 months or less

Changes to the Immigration Rules for Visitors Simplification of 15 visitor categories into 4 main visitor categories (but additional

requirements for different subcategories of visit visa will still apply) Visit (Standard); Marriage / Civil partnership visit; PPE visit; Transit visit

* Positive change: business and pleasure now permitted on the same visit!

Changes in the pipeline: to be introduced from 6 April 2015

Changes in the Pipeline


New service currently being piloted

Aims to give faster and more convenient entry to the UK for frequent travellers travelling in eligible immigration categories from the US, Australia, Japan, Canada and New Zealand.

Currently available at Heathrow, Gatwick and the rail terminals at Paris, Brussels and Lille Stansted, London City, Manchester and Birmingham to be added in the coming

months.

Choice at passport control to use the ePassport gates or fast track queues

No need to complete landing cards or undergo an interview on arrival

Registered Traveller Scheme

http://www.qbasemail.com/homeoffice/mailresponse.asp?tid=4596&em=296696&turl=https://www.gov.uk/registered-traveller


Immigration Law is there to protect the resident labour market! Know what your employees are doing in the UK Ask yourself – do they need the right to work?

Avoid delays and plan far enough in advance to ensure that your employee can start work in the UK when intended

The Tier 2 Cooling-off periods – will these impact your business needs? Tier 2 migrants are prevented from returning to UK under Tier 2 for 12 months in most

circumstances

Advertising a role correctly Make sure you are compliant Home Office requirements may not always seem logical

What are the common pitfalls you need to look out for?

Policy & Pitfalls


Establish a long-term view at an early stage Do you need your employee in the UK for maximum 5 years? 9 years? Permanently? Any family members? Local or global contract? Review any possible promotions/change to role before offering to migrant: a change in

SOC Code will mean a change of employment application is required which may be subject to the RLMT

Visitor or Tier 2 – what is the appropriate route?

Calculating salary packages – allowances count, but only some

Maintenance requirements – automatic refusals unless properly evidenced

English language requirements when sending a non-US national to the UK

Policy & Pitfalls


Three paths to the entering the United States Family-Based Refugee/Asylum-Based Employment-Based

Immigrant v. Nonimmigrant

Major Visas available to U.S. Employers H-1B, L-1A & L-1B, E-1 & E-2, O-1, TN

Employment–based Green Cards Labor Certification Specialized Paths (manager/Executives, Extraordinary Ability, National Interest)

How can foreign nationals come to the United States?

Overview of US Business Immigration


Comprehensive Reform has Continuously Stalled S.744 Passed the Senate in 2013, but died in the House. Nothing major since. Piecemeal bills circulating in Congress, but change in the near-term likely to be

through Executive action.

Executive Authority President is charged with executing the laws of the United States, including

immigration laws. How broad is his power? Prosecutorial discretion & regulations. Deferred Action for Childhood Arrivals (DACA)

December 2014 Announcement

If the system is broken, who will fix it?

Changes in the pipeline for US immigration


Deportability Relief and Employment Authorization for Undocumented Deferred Action for Parental Accountability (DAPA) Deferred Action for Childhood Arrivals (DACA)

Border and Interior Enforcement Shifts Increased resources for border enforcement Centralize and clarify instructions for prosecutorial discretion and enforcement priorities Improved interior enforcement, including employer duties

Changes to Legal Employment & Family Systems A veritable grab bag We focus on employer-related changes

Major Focus of President Obama’s December 2014 Plan

The President’s Executive Action


Increased Portability and Benefits for Employees Adjusting Status Clarify and expand AC21 Portability definition of “same of similar” employment. Allow those waiting on quotas to file and receive work and travel authorization Will allow thousands of employees to more easily change employers.

Expand Optional Practical Training (OPT) for Recent Graduates (F-1 visa) Will increase the ability of employers to hire and employ graduates when no visas are

available. Other benefits for STEM graduates. May increase employer’s duty to oversee employee’s ties to school and ensure

position related to field of study.

Employment Authorization for H-4 Visa Holders (Spouses of H-1B) Only those in green card process Rule published on February 25, 2015 and takes effect on May 26, 2015.


Employer-Related Provisions


L-1B Specialized Knowledge Clarification Will allow easier intra-company transfer of employees from international affiliates.

Expanded Options for R&D and Investors and National Interest Waiver

Parole for Entrepreneurs, Investors, and Researchers with no other options.

H-1B Quota Clarifications for Exempt Employers Likely to affect employers in research & development and with ties to universities and

the government.

PERM Green Card Recruitment Modernization Improved workforce shortage and surplus analysis and modernized recruitment Changes in application process and timing (Premium Processing?)



DACA extension was set to go into effect, suspended by Texas judge DOJ has filed an emergency motion in response. Resolution in the coming weeks. Possible other legal attacks.

Funding issue looming (is this bullet already obsolete?) Day-to-day political wrangling Stop-gap for three weeks? What if DHS shuts down?

• Last time is instructive: - USCIS operations were curtailed and delayed. Could be worse this time. - Essential v. nonessential. Essential is ICE, CBP etc. - DOL was shutdown.

Will it float? Legal and Congressional Push Back



This will be big Estimated 3-5 million people will benefit from DACA and DAPA (many will work) Many companies already unknowingly have or will have future DACA/DAPA workers

I-9 Compliance Related to Executive Action: Too much knowledge can be a bad thing

• Don’t jump the gun • Constructive Knowledge

Immigration-related discrimination • Consistent Practices • Honesty Policies • Know about TPS, Refugees, and other uncommon workers (USCIS Employer’s Handbook)

Get your house in order before the government comes knocking • Increased audits (Civil and Criminal Penalties) • E-Verify (not yet required, but it likely will be)

What does this mean to you?

Effect on Employers and General Pitfalls


Audits are Up from USCIS and Department of Labor (not Labour) USCIS Audits are already paid for through filing fees

• H-1B • L-1

DOL Wage and Hour Audits, Public Access Files

Ensure that employees are coming to do what you say they are At time of application After the Application (changes need to be followed and reported to immigration

attorney) Business Visitors

Entry-level employees are more difficult to fit into existing categories Don’t be shocked by a denial or two

Effect on Employers and General Pitfalls


Q&A

Navigating UK & US Immigration


Thank You

Supinder Sian Partner London, UK +44 207 655 1741 [email protected]

Martin Falke Partner Berlin, Germany +1 49 30 7261 68105 [email protected]

Sam Mudrick Senior Associate Washington DC +1 202 457 5218 [email protected]

Shanti Faiia Associate London/New York +1 212 872 9846 [email protected]

mailto:[email protected]





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Navigating UK & US Immigration Laws: What you need to know · Overview of key routes: Tier 2 & 5 Sponsorship and Business Visitor routes Changes in the pipeline for the UK Immigration