HIGHLIGHTS

• U.S. Department of State Responds to Questions Regarding the Trump Administration’s Recent Travel Ban
• Quebec Expands List of Occupations Exempt from Labor Market Impact Assessment (LMIA) Advertising Requirements
• New Zealand Announces Foreign National Hiring Bars for Non-Compliant Employers
• European Union Modifies Visa Waiver Suspension Rules
• European Parliament Passed a Non-Binding Resolution to End Visa-Free Travel of U.S. Citizens to the European Union

U.S. Department of State Responds to Questions Regarding the Trump Administration’s Recent Travel Ban

On February 27, 2017, the U.S. Department of State Visa Office provided responses to frequently asked questions posed by the American Immigration Lawyers Association (AILA) Department of State Liaison Committee regarding the impact of President Trump’s Executive Order (EO) 13769, and subsequent suspension, on visa applicants and visa holders from the seven restricted countries.

The Department of State Visa Office confirmed the following:

• Applicants from the affected countries who were awaiting the return of their passports from the Consulates at the time the EO was signed are eligible to reapply for their visas without prejudice. The Consulate should have called the applicant to retrieve their passports. Applicants should expect the issued visa to have been revoked or canceled on their returned passports, or a denial for those still awaiting a decision.
• U.S. Embassies and Consulates have been instructed to resume regular processing of visas for nationals of the seven countries subject to the EO.
• Nonimmigrant visa applicants whose visa interviews were scheduled and then subsequently canceled when the EO was signed should contact their nearest U.S. Embassy or Consulate for information about rescheduling their visa interview.
• The National Visa Center canceled all scheduled visa interviews for February 2017 for immigrant visa applicants who are nationals of the seven countries subject to the EO. The National Visa Center (NVC) or U.S. Embassy will contact immigrant visa applicants whose visa interviews were canceled to reschedule their visa interview appointment.
• The temporary revocation of visas as a result of the EO was reversed on February 3, 2017. The Department of State did not provide individual notices of reinstatement of visas to applicants whose visas were revoked. Instead, all visas that were not canceled or revoked on other grounds were reinstated.
• Individuals affected by the temporary revocation of visas do not have to indicate on future applications that they have had a visa revoked.
• The temporary revocation of visas did not affect the processing of J-1 waiver applications for applicants of from the affected countries at the time the EO was in effect.

Quebec Expands List of Occupations Exempt from Labor Market Impact Assessment (LMIA) Advertising Requirements

Quebec recently released an expanded list of occupations that are exempt from the Labor Market Impact Assessment (LMIA) advertising requirement in the province. Typically, an employer in Canada who is seeking to hire a foreign worker under the LMIA category is required to advertise for the position in multiple locations before an application may be submitted. This requirement is waived, however, for employers in Quebec who are hiring for certain designated occupations which are deemed to be in high demand and in industry sectors experiencing labor shortages in Quebec. Employers in Quebec applying for a designated occupation enjoy a simplified process, known as the facilitated LMIA process, and are not required to perform local recruitment efforts as part of their application to hire a temporary foreign worker.

A list of occupations designated for the facilitated LMIA process is updated annually. The most recent list of occupations under Quebec’s facilitated LMIA process was published on February 24, 2017. The new list includes occupations that were on the previous list, along with 16 new occupations. The 16 new occupations that have been added to the new list include:

• Electrical and Electronics Engineering Technologists and Technicians, National Occupational Classification, NOC 2241;
• Information Systems Testing Technicians, NOC 2283; and
• Civil Engineering Technologists and Technicians, NOC 2231, among others.

The new list has removed two occupations which were on the previous list:

• Computer Engineers (except Software Engineers and Designers), NOC 2147; and
• Medical Laboratory Technologists and Pathologists’ Assistants, NOC 3211.

Although the new list is immediately effective, a transition period of 30 days has been granted to allow for the review of applications previously submitted based on the previous year’s list of occupations.

New Zealand Announces Foreign National Hiring Bars for Non-Compliant Employers

Effective April 1, 2017, the Ministry of Business, Innovation and Employment (MBIE) announced that employers found noncompliant with employment laws may face significant foreign national hiring bars in addition to traditional monetary penalties. Depending on the severity of the breach, the bar can range from 6 months to 2 years. Following a formal investigation, the Labour Inspectorate will provide a list of noncompliant employers to Immigration New Zealand (INZ) to prevent noncompliant employers from recruiting foreign nationals.

The bar is intended for formal breaches evidenced by Labour Inspectorate infringement notices, Employment Relations Authorities or Employment Court penalties, and Employment Court banning orders. The bar is not intended for minor breaches where employers have entered into enforceable undertakings with the Labour Inspectorate, have demonstrated a desire to comply, and have adequate wage and time records.

The bar is proportionate to the severity of the breach and the resulting monetary penalties:

• 6 month bar – penalties up to and including 1,000 NZD
• 12 month bar – penalties over 1,000 NZD but less than 20,000 NZD
• 18 month bar – penalties of 20,000 NZD and over but less than 50,000 NZD
• 24 month bar – penalties of 50,000 NZD and above

Foreign nationals that are working for noncompliant employers will be allowed to continue work for the duration of their existing work visa but will not be granted extensions. Further, there may be flexibility for certain scenarios, such as changing labor market needs, where an employer can be exempted by the Minister of Immigration on a case-by-case basis.

European Union Modifies Visa Waiver Suspension Rules

The European Union has modified the Visa Waiver Suspension Rules to allow for faster implementation of penalties when there is increased risk to public policy or security. The new rules will be effective 20 days after publication in the EU Official Journal. Adopted in 2013, the Visa Waiver Suspension Rules allow a member state, when confronted with an emergency situation involving third country nationals, to request that the European Commission temporarily suspend visa waiver status for the third country nationals.

The new rules broaden the basis that can lead to a temporary suspension of a visa waiver program to include risk or threat to the EU’s security upon entry of visa-exempt or transitioning nationals and a decrease in cooperation or outright refusal for readmission of foreign nationals by the concerned third country.

The suspension mechanism can be prompted by a member state or the Commission. Under the new rule, if a simple majority of member states provide notice to the Commission, the Commission must issue an implementing decision temporarily suspending visa exemption status for the concerned third country for a period of 9 months. During the 9 month suspension period, the concerned third country is given the opportunity to remedy the violations. If violations continue after the 9 months, the Commission can further suspend visa exemption benefits for an additional 18 months. Ireland and the United Kingdom are not subject to these new measures.

European Parliament Passed a Non-Binding Resolution to End Visa-Free Travel of U.S. Citizens to the European Union

The European Parliament has voted to end visa free travel of U.S. citizens, and has urged the European Commission to revoke the Visa-Free system within two months. Please note, the resolution is non-binding, meaning additional action is required by the European Commission for the resolution to be implemented and come into effect. The vote comes after the European Parliament discovered the U.S. had failed to meet its obligations under reciprocity agreements to allow citizens of Bulgaria, Poland, Croatia, Cyprus, and Romania visa-free entry to the United States.  As a result, the European Commission is under the legal obligation to act to suspend the visa-free entry of U.S. citizens.

If the European Commission decides to suspend the visa-free entry of U.S. citizens, the European Parliament or the Council of the European Union will have an opportunity to object. Experts in Europe view the measure with caution as there are strong economic incentives and potential retaliatory consequences if the visa-free travel of U.S. citizens is suspended.

The European Union also considered adopting a travel permit or a system similar to the Electronic System for Travel Authorization (ESTA) currently used by the United States.

EIG will continue to monitor the impact of the European Parliament’s vote. Once binding law is in effect, EIG will provide an update on affirmative actions for travelers to the European Union.