HIGHLIGHTS

• Executive Order Issued January 27, 2017
• Temporary Status Available in Canada for Foreign Nationals Prevented from Entering the U.S.
• Belgium Permit and Visa Fee Increase
• USCIS Issues Final Rule on International Entrepreneurs
• U.K. Implementing Tier 2 Immigration Skills Charge and an Apprenticeship Levy

Executive Order Issued January 27, 2017

On January 27, 2017, President Trump signed an Executive Order (“EO”) entitled “Protecting The Nation From Terrorist Attacks By Foreign Nationals,” immediately suspending entry into the United States for nationals of seven countries (Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen) for 90 days. The travel ban will only be lifted when the Department of Homeland Security (“DHS”) is satisfied that the countries have provided the information “needed … for the adjudication of any … benefit under the INA … to determine that the individual seeking the benefit is who the individual claims to be and is not a security or public-safety threat.” The EO leaves the option of adding other countries to the list at any time. The EO goes on to bar all refugees from entering the U.S. for 120 days. The EO indefinitely bars all Syrian Refugees from entering the U.S.

On January 28, 2017, New York District Judge, Anna M. Donnelly, issued a “stay” blocking parts of the Executive Order and preventing the Customs and Border Patrol (CBP) from removing or detaining refugees and others with valid visas, holding that these individuals should not be sent back to their home countries. Three other federal judges have since issued similar orders but none have ruled on the broader legality or constitutionality of the Executive Order.

As a result of the broad language used in the EO, inconsistent implementation of the EO by CBP officials and other immigration agencies were reported throughout the week. On January 31, 2017, clarifications and guidelines were issued by DHS. A full list can be found on DHS’ fact sheet.

Notable guidelines include:

• Visa Interview Waiver Program (commonly known as “dropbox” service) is suspended for all countries. While it is unclear when the suspension will be implemented, employees should continue consular processing with the expectation that they may be called in for an interview if they were automatically placed in the dropbox service.
• A lawful permanent resident’s entry (from one of the seven listed countries) will be determined on a case-by-case determination with permanent residence as a dispositive factor in the determination, unless there is “significant derogatory information indicating a serious threat to public safety and welfare.”
• The CBP has recently released a statement confirming that foreign nationals traveling to the United States will be “treated according to the travel document they present.” That is, individuals who are nationals of one of the seven countries and another country should be admitted to the U.S. if they present a passport for a country that is not covered by the order.
• F1/J1/M1 visas are currently revoked; however, Individuals who were in the U.S. with these visas at the time of the signing of the Executive Order are not currently affected by the order. Individuals who were out of the country at the time of the signing and who attempt to return to the U.S. will not be allowed to return for this temporary period because of a lack of valid travel documents.
• N-400 applications for naturalization will continue to be processed.

EIG will continue to diligently monitor the situation and provide real-time updates.

Temporary Status Available in Canada for Foreign Nationals Prevented from Entering the U.S.

Effective immediately, foreign nationals in Canada who are prevented from entering the United States, pursuant to the Executive Order, may apply for temporary status or an extension of their current temporary status.

By way of background, the Executive Order bars nationals of Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen from entering the U.S. for a 90-day period. Immigration, Refugees and Citizenship Canada has announced that it will extend the special measure to nationals of those countries “who have the documents normally required to enter the U.S., but who cannot travel to the U.S. due to the Executive Order.” Moreover, the Canadian government said it will waive fees for foreign nationals applying under this special measure. That being said, affected foreign nationals “must meet Canada’s admissibility criteria to benefit from this public policy and must provide an explanation of how they are affected.” This measure will remain in place through April 30.

For more information regarding temporary status in Canada, please visit the Canadian Immigration and Citizenship website here.

Belgium Permit and Visa Fee Increase

Belgian immigration authorities announced an increase in administrative fees to take effect on March 1, 2017. Regardless of whether applications are submitted with a Diplomatic Post abroad or are submitted within Belgium, the fee increase will apply to long-term D visa applications and certain residence permits. Specifically, 350 EUR will be charged to Non-E.U. employees and self-employed individuals submitting residence applications on the basis of a work permit or a professional card. In addition, 200 EUR will be changed to individuals applying for family reunification residence applications.

USCIS Issues Final Rule on International Entrepreneurs

U.S. Citizenship and Immigration Services (USCIS) recently released the final rule on implementing the Secretary of Homeland Security’s discretionary parole authority “to increase and enhance entrepreneurship, innovation, and job creation in the United States.” The new rule, effective on July 17, 2017, will allow international entrepreneurs to be able to remain and work in the U.S. while developing and growing start-up companies.  The regulatory provision provides guidance on the use of parole on a case-by-case basis with respect to entrepreneurs of start-up entities. Applicants must be able to demonstrate that their stay in the United States would provide a significant public benefit through the potential for rapid business growth and job creation. Those granted parole will be allowed to stay in the U.S. for up to 30 months, with an additional 30 month extension possible. For more information on specific requirements, please read the Final rule on the Federal Register.

U.K. Implementing Tier 2 Immigration Skills Charge and an Apprenticeship Levy

Starting in April, the UK government will be adding an immigration skills charge to the fees for Tier 2 visa applications. Tier 2 is the UK work visa category most frequently used for professionals, including both local hires and intra-company transfers. The immigration skills charge was created by the UK Immigration Act of 2016, and is a fee that must be paid along with the pre-existing visa fees and UK healthcare surcharge.

Key features of the Immigration Skills Charge:

• Cost: £1,000 per year for each sponsored worker, due at time of visa application.
  • For example, £5000 for a Tier 2 application requesting 5 years of work authorization, or £2000 for an application requesting 2 years.
• Types of Applications: Applies to initial applications and extensions; applies to applications filed at consulates and to applications filed from within the UK.
• Fee Reductions: Charites and small companies, as defined by a combination of financial and workforce statistics, will be charged a reduced fee.
• Exemptions: Fee exemption for PhD level roles and for Tier 4 status students changing to Tier 2.
• Date of implementation: Will be required for visa applications beginning in April (exact date TBA). EIG will inform you of the exact date once it is announced by UK authorities.

The Apprenticeship Levy:

Separately from the Tier 2 fees, in an effort to fund apprenticeship training for young people in the UK, the UK government is also imposing a levy, or tax, on all UK employers with annual UK payroll of more than £3 million. Although this levy, like the “Immigration Skills Charge,” was created by the UK Immigration Act of 2016, it is not tied to immigration, the hiring of foreign nationals, or visa sponsorship. It applies to all companies in the UK that meet the payroll threshold, regardless of whether the company employs foreign nationals.

More information on the apprenticeship levy, including the technical payment details, can be found on the Department of Education website and the U.K. government website.