Highlights

• U.S. Government shutdown continues to impact immigration operations

• U.S. House Democrats introduce immigration reform bill

• Spanish Act for Entrepreneurs comes into force

• UK implements several changes to employment immigration regulations

• Thailand administers strict Urgent Work Permit requirements

• Dutch temporary residence now available for wealthy immigrants

• Islamic Holy Days could cause immigration processing delays in EMEA region

U.S. Government Shutdown Continues to Affect Immigration Agencies & Operations

As long as the government shutdown remains in effect, many federal immigration services will continue to be impacted:

Visa Services Abroad:  The U.S. Department of State has confirmed that visa processing will continue only for “life or death” emergencies.  During the last government shutdown in 1996, approximately 20,000-30,000 visa applications went unprocessed for each day offices were closed, and 200,000 applications for passports of U.S. citizens stalled.  Foreign nationals should be prepared for major delays in passport and visa processing.

E-Verify:  E-Verify is currently unavailable. You will be unable to access your account and/or verify employment eligibility through E-Verify. The “three-day rule” for E-Verify is suspended for cases affected by the shutdown. This does not affect the Form I-9 requirement—employers must still complete the Form I-9 no later than the third business day after an employee starts work for pay.  Please note that the time period during which employers may resolve TNCs will be extended.  Days the federal government is closed will not count towards the eight federal government workdays the employee has to go to SSA or contact DHS.

U.S. Department of Labor:  OFLC functions will be effected, meaning attorneys and companies cannot file Labor Conditions Applications for H-1Bs, Prevailing Wage Determination requests for labor certification applications, or PERM applications. The pertinent DOL websites have been disabled.

While USCIS remains operational during a shutdown, H-1B, H1B1, and E-3 petitions (requiring an approved Labor Condition Application) will not be able to be filed until the DOL resumes processing of LCAs.  USCIS will continue to process applications that have been filed and/or are under review.

Note:  Existing H-1B (and H-2B and E-3) visa holders must continue to be paid at the full rate specified on their visa documentation, or employers will have to file further paperwork to amend their visas.

USCIS:  USCIS (national and regional offices) are open and will likely not be affected by the federal shutdown because USCIS is funded by fee-based petitions and applications.  However, applicants should still be prepared for delays as USCIS relies on the cooperation of other federal agencies for many of its services.  

U.S. House Democrats Introduce Comprehensive Immigration Reform Proposal

On Wednesday, House Democrats introduced their version of the Border Security, Economic Opportunity, and Immigration Modernization Act.  The full text has not yet been made publicly available but is rumored to be a modification of the Senate’s immigration reform bill (S. 744).  The House version reportedly differs on border security issues and incorporates a bill introduced by Republican Congressman Michael McCaul, which passed unanimously out of the House Committee on Homeland Security in May 2013.

Spanish Act for Entrepreneurs Goes into Effect

Last week we reported that the Spanish Congress had approved the Act for Entrepreneurs.  This law became effective as of October 1, 2013.  The Act establishes measures to facilitate entry into and stay in Spain for economic reasons for foreign nationals seeking to enter, reside, or who are already residing in Spain, if they belong to specified groups.  Foreign nationals covered by the EU Community Scheme are expressly excluded.

UK Implements Several Changes to Employment Immigration Regulations

Frequent Traveler Program

The UK Home Office introduced a new program last week, which would expedite immigration processing for frequent travelers who are nationals of the following countries:

• Australia

• Canada

• Japan

• New Zealand

• United States

To be deemed a “frequent traveler,” the individual must have visited the UK at least four times during the previous 52 weeks.  Participants in the program will enjoy expedited border clearance procedures and shorter queues.

Eligible travelers may participate in the program without charge until March 31, 2014.  After such date, participants will be required to pay an annual fee.  The program is currently available at the Heathrow and Gatwick airports and will be extended to other UK airports after March 31, 2014.

Employment Transfers

Effective October 1, 2013, new immigration regulations will increase the flexibility for business and workers in the UK, including:

• Removing the English language requirement for intra-company transferees

• Making it easier for graduate entrepreneurs to switch into Tier 2

• Waiving share ownership restrictions for some senior staff

• Allowing some students to work as interns under the Tier 5 government authorized exchange scheme

Business and Tourist Visitors

Changes to business and tourist visitor activities include:

• Expanding the permissible activities of a business visitor in the UK to include internal audits and attend corporate training provided by a company that is not the employer

• Allowing tourists and business visitors to do some study where it is not the main purpose of their visit

• Removing the prospective student route

Thailand Administers Stringent Urgent Work Permit Regulations

Recent changes to Thailand’s Urgent Work Permit (UWP) regulations have tightened the permit process and will potentially increase processing times for visa applications.

The UWP allows foreign visitors to engage in short-term business activities for up to 15 days without having to obtain a regular work permit if such activities are urgent or essential.

Changes to the UWP application process require that applicants present their original passport; faxed applications will no longer be accepted.  Applicants are also now required to submit a letter from their employer explaining why the proposed business activities are urgent or essential.

Except for visa waiver nationals, foreign nationals seeking to obtain a UWP must first obtain a non-immigrant B visa to enter Thailand.  There is disagreement over whether a B visa alone allows an employee to engage in short-term business activities, such as business meetings, consultations, and conferences.  Although the issue remains unclear, some Thai Consulates maintain that the new regulation requires a UWP for these activities.

Employers should be aware that these changes may cause some delays for employees traveling to Thailand and additionally may require more time to complete the temporary work visa application process.

Dutch Temporary Residence Permits Available for Wealthy Immigrants

Effective October 1, 2013, wealthy immigrants can obtain a Dutch temporary residence permit, provided they meet the following requirements:

• The immigrant invests at least € 1.250.000 in a Dutch enterprise (must be deposited into a bank account from a Dutch bank or a bank from an EU-member state established in the Netherlands and supervised by De Nederlandsche Bank)

• The investment must have added value for the Dutch economy (to be evaluated and determined by the Agency NL using a point-based system)

• The investment does not violate current money laundering prohibitions or regulations (to prevent abuse of the new policy, the investment’s origin will be investigated)

The permit gives a temporary residence right and free access to the labor market, with the labor market annotation:  “Employment permitted, work permit not required.”  In order to obtain a permanent residence permit or a Dutch passport, the wealthy immigrant should subsequently apply for a different type of residence permit that does not have a temporary character.

The family members of wealthy immigrants will have a derived residency right, which is also temporary, with the same labor market annotation as above.  The residence permit will initially be valid for one year, with the possibility of an extension for five years.

Islamic Holidays Projected to Cause Immigration Delays in EMEA Region 

Immigration offices and consulates will close in many countries throughout Europe, the Middle East, and Africa (EMEA) during the celebration of Eid al-Adha.  Beginning in October, certain locations will limit their hours and close operations during observance of the Islamic Holy Days.

The Islamic holiday begins on October 14 or 15, depending on the particular country’s lunar calendar. The four-day celebration could delay processing in certain countries, and travelers to the EMEA region should be aware that certain embassies and consulates will close in observance of the holiday.

In addition to delays due to office closures, millions will travel to Mecca the week before Eid al-Adha. The Eid al-Adha holiday begins on the last day of the Hajj. The annual Hajj pilgrimage to Mecca will draw approximately 2 million people to Saudi Arabia.  Delays from visa applications during this time are expected, and foreign nationals should plan their trips well in advance and account for longer visa processing times.