BRITISH-AMERICAN BUSINESS COUNCIL & FRAGOMEN April 2017 - - PowerPoint PPT Presentation

April 2017

BRITISH-AMERICAN BUSINESS COUNCIL & FRAGOMEN

AGENDA

• U.S. Immigration under Trump
• Brexit: The EU Perspective
• Brexit: The UK Perspective

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WITH YOU

TODAY

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SCOTT FITZGERALD

Partner Boston, MA +1 617 574 0416 sfitzgerald@fragomen.com Partner London, UK +44 20 7090 9773 irobinson@fragomen.com Regional Director UK Visas & Immigration Americas New York, NY + 1 212 745 0291 Carol.Doughty@fco.gov.uk Associate & Global Client Services Manager Boston, MA +1 857 305 4470 jnagel@fragomen.com

JONATHAN NAGEL IAN ROBINSON CAROL DOUGHTY

U.S.: IMMIGRATION UNDER TRUMP

• Trump on Immigration
• Executive Orders + Travel Ban
• USCIS Memo & Announcement
• H-1B Cap Updates
• Preparing for Increased Audits

and Investigations

• Legislation

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• 1. Protect American jobs
• 2. Build a wall on the southern border
• 3. End “catch and release”
• 4. Zero tolerance for criminal aliens
• 5. Block funding for sanctuary cities
• 6. Cancel Obama Administration executive orders that give

amnesty, fully enforce all immigration laws

• 7. Suspend visa issuance in countries where security

screening is not deemed adequate

• 8. Require countries to accept their own citizen-deportees
• 9. Fully implement biometric entry-exit system
• 10. Mandate the use of E-Verify
• 11. Reform legal immigration to keep it within “historical norms,”

admit foreign nationals most likely to be economically self-sufficient

PRESIDENT TRUMP

ON IMMIGRATION

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PRESIDENT TRUMP

EXECUTIVE ORDERS

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• Executive Order 13767 (Jan. 25, 2017)
• Focuses on border security and

immigration enforcement

“Border Security and Immigration Enforcement Improvements”

• Executive Order (Apr. 18, 2017)
• Reviewing H-1B program to protect US

workers

• Increasing enforcement against visa

abusers

“Buy American, Hire American”

PRESIDENT TRUMP

EXECUTIVE ORDERS

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• Executive Order 13768 (Jan. 25, 2017)
• Focuses on interior enforcement, including

sanctuary cities and detainers

“Enhancing Public Safety in the Interior of the United States”

• Executive Order 13769 (Jan. 27, 2017)
• Imposed a travel ban on citizens of

seven “countries of concern”

“Protecting the Nation from Foreign Terrorist Entry into the United States” (a.k.a. Travel Ban I)

PRESIDENT TRUMP

EXECUTIVE ORDERS

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• Initially dated Jan. 23, 2017
• DHS instructed to propose regulations to:
• Reform practical training programs for foreign students
• Clarify acceptable business visitor activities in B1 status
• Reform the treaty investor visa category for foreign entrepreneurs
• Change the scope of parole authority
• Restore the integrity of other employment-based nonimmigrant programs such as H-1B and

L-1 to protect U.S. and foreign workers from abuse

• DHS Instructed to study all other programs that allow foreign

nationals to work in U.S. recommend other proposed changes in the national interest

• Consider ways to make H-1B allocation more efficient
• DOL report on “injury to U.S. workers” from work visa programs
• Expand E-Verify
• Expand FDNS site visits
• Establish Immigration Commission

DRAFT Executive Order on Work Visa Programs

• New EO temporarily suspends the entry into the United States of nationals of: Iran,

Libya, Somalia, Sudan, Syria and Yemen

• Some nationals of the six countries may qualify for an exemption, or may apply for

a waiver

• Iraq removed from list
• Ban could be extended, and additional countries could be added
• Temporarily suspends the admission of refugees from

any country (including Syria) for 120 days

Travel Ban: Who is subject to the revised travel ban?

PRESIDENT TRUMP

EXECUTIVE ORDERS

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• DHS and DOS can grant discretionary waivers of the ban
• Waiver applicants must show that:
• A denial of admission would cause undue hardship;
• Their admission is in the national interest of the U.S.; and
• Their admission would not pose a threat to national security.

Travel ban: What waivers are available?

PRESIDENT TRUMP

EXECUTIVE ORDERS

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• Lawsuit brought by group of IT workers asserting that H-4 EAD rule

subjects U.S. workers to undue competition from foreign workers

• DHS filing this month asks Court to hold the case in abeyance another 6

months while it conducts a review of the H-4 EAD program

• No immediate impact on the H-4 EAD program, which remains open to

applications, but could lead to regulatory announcement rescinding the benefit DHS Court Filing – Save Jobs USA v. DHS – April 3, 2017

PRESIDENT TRUMP

EXECUTIVE ACTIONS

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• USCIS Memo re: Computer Programmers as a

Specialty Occupation – March 31, 2017

• No longer presumption of bachelors degree

requirement

• USCIS Announcement – “Combating Fraud and

Abuse in the H-1B Visa Program” –April 3, 2017

• Public reports of suspected H-1B fraud or abuse

encouraged, to new USCIS E-mail “Tip Line”

• Complaints of LCA violation encouraged to DOL

Wage and Hour Division

• Expanded FDNS site visits with certain corporate

targets

USCIS

MEMO & ANNOUNCEMENT

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• Filing period for new H-1B petitions opened April 3rd for upcoming fiscal year.

Petitions were accepted for 5 business days.

• H-1B slots available for U.S. Advanced Degree holders: 20,000
• H-1B slots available for all others: 65,000

H-1B CAP

UPDATES

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• For FY 2018, 199,000 petitions were received. For FY

2017, record 236,000 petitions received for 85,000 slots. Selection rate was approximately 40-50% for U.S. Master’s degree, 25-30% for all others.

• USCIS confirmed on April 7th enough petitions received to meet the

standard H-1B cap and the advanced degree quota

• Receipts for selected candidates typically received

between April and June

• Premium processing not available this year so no

early notification of selection

• If case is not selected for processing, petition

typically returned to Fragomen between late May and July

H-1B CAP

UPDATES

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Premium processing suspension:

• Premium process for H-1Bs suspended as of April 3, 2017 for

anticipated period of 6 months

• Current USCIS H-1B processing time 6+ months
• Filing strategies for H-1Bs:
• Ensure all H-1B extensions filed at or close to 6 month

mark before expiry

• Change of employer hires can join new employer upon

filing of H-1B petition or upon issuance of receipt but evaluate for red flags (maintenance of status issues, ensure current employer’s petition has already been approved and is not pending with USCIS)

• When extension remains pending but H-1B has

expired, employee remains work authorized for 240 days but can’t travel internationally and may encounter license renewal issues depending on state

H-1B CAP

UPDATES

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• USCIS initiative to “Detect H-1B Visa Fraud and Abuse”
• FDNS site-visits
• I-9 workplace audits

PREPARING FOR

INCREASED AUDITS & INVESTIGATIONS

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Government Actions

• Government Action: On April 3, 2017, USCIS announced new

measures to combat fraud in employment-based immigration programs:

• The agency will expand and target H-1B site visits for case types where

fraud and abuse “may be more likely to occur”

• USCIS established an e-mail address:

[REPORTH1BABUSE@USCIS.DHS.GOV] to which U.S. workers and H- 1B workers can submit tips, alleged violations, and other relevant information about potential H-1B fraud or abuse

• USCIS wishes to promote transparency about how the H-1B program is

being used, and plans to publish a report on H-1B petitions submitted for the FY2018 cap season that will be searchable for the public

PREPARING FOR

INCREASED AUDITS & INVESTIGATIONS

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USCIS Initiative to “Detect H-1B Visa Fraud and Abuse”

• Government Action: USCIS has conducted random administrative site

visits since 2009. USCIS’ April 3rd announcement simply outlines a more targeted approach:

• H-1B-dependent employers (those who have a high ratio of H-1B

workers as compared to U.S. workers, as defined by statute);

• Cases where USCIS cannot validate the employer’s basic business

information through commercially available data; and

• Employers petitioning for H-1B workers who work off-site at another

company or organization’s location.

PREPARING FOR

INCREASED AUDITS & INVESTIGATIONS

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FDNS Worksite Visits

• FDNS will also continue to make unannounced and random visits to

all H-1B employers across the country, both before and after any petition is adjudicated

• Based on FDNS findings, USCIS may issue Notices of Intent to

Revoke (NOIRs) or Notices of Intent to Deny (NOIDs)

PREPARING FOR

INCREASED AUDITS & INVESTIGATIONS

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FDNS Worksite Visits

• Employer Tips:
• Prepare employees, managers (and clients, where H-1B worker is at

third-party worksite) for unscheduled visits

• Conduct “spot audits” to ensure employees’ duties, wages and work

location matches that described in the I-129

• Prepare and disseminate protocol to lobby receptionists and security

professionals

• Help set a tone at the employer of preparation, cooperation and

confidence

PREPARING FOR

INCREASED AUDITS & INVESTIGATIONS

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FDNS Worksite Visits

• Government Action: President Trump has increased the number of

ICE officers, and we expect I-9 investigations to accelerate

• While E-Verify does not currently have penalties associated with

noncompliance, the program does report “unusual activity” to other government agencies for investigation

• ICE also conducts criminal investigations into major fraud

conspiracies by employers

PREPARING FOR

INCREASED AUDITS & INVESTIGATIONS

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I-9 Worksite Audits

• Purpose of LCA Audits:
• Employers who hire H-1B employees have certain responsibilities in

terms of submitting a completed Labor Condition Application (LCA). By completing and signing the LCA, the employer agrees to provide non- immigrants:

• Wages
• Working Conditions
• Benefits
• Audits are usually triggered either when a current or former employee

files a complaint with the DOL or when the DOL targets a specific industry for investigation

PREPARING FOR

INCREASED AUDITS & INVESTIGATIONS

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LCA Worksite Audits

• Potential Requested Documentation:
• Public Access files
• Payroll records
• List of similarly situated workers and their wages
• Copies of H-1B petitions
• Listing of benefits and deductions for H-1B employees and non-

H-1B employees

• Name and contact information of employees

PREPARING FOR

INCREASED AUDITS & INVESTIGATIONS

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LCA Worksite Audits

PREPARING FOR

INCREASED AUDITS & INVESTIGATIONS

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LCA Areas of Liability Penalties Include

• Failure to pay the required

wages

• Failure to maintain Public

Access files

• Employer retaliation
• Back wages
• Civil fines
• Possible debarment from

the H-1B program

• Possible debarment from

government contracts

• Employer Tips:
• Employers should develop and maintain policies in regard to foreign

employees, to ensure consistency and reduce the probability of employee complaints

• To ensure compliance, employers may conduct an audit of all applicable

records, with the assistance of qualified immigration counsel

• Select a small subsection of H-1B Wages and compare them to U.S.

workers

• Spot Check Worksite Location
• Ensure you are providing “Notice” of H-1B workers to your U.S.

employees – either paper or electronic posting

• Periodically audit your LCA Public Access File maintenance

PREPARING FOR

INCREASED AUDITS & INVESTIGATIONS

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LCA Worksite Audits

LEGISLATION

PROPOSED

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Introduced by: Senators Charles Grassley (R-IA) and Richard Durbin (D-IL) Introduced on: January 19, 2017 Reintroduction of Grassley-Durbin Reform Bill

• S. 180, H-1B and L—1 Visa Reform Act

Previously introduced in 2015 (S.2266) Key provisions:

• Heightened H-1B wage requirements
• New L-1 wage minimums
• Recruitment obligations for all H-1B employers
• Non-displacement obligations for all H-1B and L-1 employers
• Restrictions on third-party placement of H-1B and L-1 employees
• More restrictive definition of L-1B specialized knowledge
• Broader investigatory authority to DOL, DHS, and DOS
• Penalties for L-1 program violations
• Elimination of B-1 in lieu of H-1B

LEGISLATION

PROPOSED

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Introduced by Representative Darrell Issa (R-CA) Introduced on January 3, 2017 The bill aims to limit exemptions from H-1B dependency requirements by increasing the minimum salary to $100,000 (with increases tied to CPI) and eliminate the master’s degree exemption

H.R. 170, the Protect and Grow American Jobs Act

LEGISLATION

PROPOSED

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Introduced by Representative Zoe Lofgren (D-CA) Introduced on January 4, 2017 The bill aims to amend the Immigration and Nationality Act to reform the H-1B visa program and revise the allocation of employment-based visas Among the bill’s key provisions are a three-tiered prevailing wage system, a wage-based allocation of H-1B numbers, a carve-out of H-1B numbers for small businesses and start-ups, and the elimination of per-country caps

• n employment-based immigrant visas

H.R. 670, High-Skilled Integrity and Fairness Act of 2017

LEGISLATION

PROPOSED

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Introduced by Sens. David Perdue (R-GA) and Tom Cotton (R-AR) The bill proposes to:

• S. 354, Reforming American Immigration for

Strong Employment (RAISE) Act

• Eliminate certain family-based preference categories
• Eliminate the Diversity Visa (DV) lottery
• Limit refugees offered permanent residency to 50,000 per year

Introduced on February 13, 2017

BREXIT: The EU Perspective

• Introduction
• Distinctions
• Institutions
• Four Freedoms
• The Divorce
• Pressure Points
• Official Response
• Practical Advice

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EUROPEAN UNION

RESPONSE TO BREXIT

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EUROPEAN UNION

DISTINCTIONS

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EUROPEAN UNION

THE INSTITUTIONS

THE COMMISSION THE COUNSEL THE PARLIAMENT Decision Making EUROPEAN COUNSEL

EUROPEAN UNION

FOUR FREEDOMS

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People Goods Services Capital



Single Market

EUROPEAN UNION

A DIFFICULT DIVORCE

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EUROPEAN UNION

THE DIVORCE TIMELINE

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2017

• 29-March:
• UK Government sent notification letter
• European Council acknowledged

receipt of the letter

• 30-March:
• UK Government published the Great

Repeal Bill

• 31-March:
• European Council published proposal

for negotiation guidelines

• 29-April:
• European Council will adopt

negotiation guidelines

• May:
• The European Commission will

prepare draft mandate of negotiation

• June:
• The Council of the EU will approve the

mandate 2019

• Exit Finalized

EUROPEAN UNION

PRESSURE POINTS

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• EU nationals in the UK and

UK nationals in the EU

• 4 Freedoms
• Domino Effect: other EU

countries could exit

• Scotland: considering exit

from the UK

• Gibraltar

EUROPEAN UNION

OFFICIAL RESPONSE

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Maintain the integrity of the single market

• No sector-by-sector approach

One negotiation in phases

• All EU member states together
• No separate negotiations
• No bilateral agreements with individual

members Maintain the indivisible four freedoms

• No cherry picking
• No single market without the four freedoms

EUROPEAN UNION

OFFICIAL RESPONSE

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Balance of rights and obligations Level-playing field Reducing disruption Establish a future relationship, based on:

EUROPEAN UNION

OFFICIAL RESPONSE

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Priorities

• Status of EU citizens living in the

UK and UK citizens living in the EU

• EU’s external border
• Legal certainty for legal entities
• The Court of Justice of the EU as

the competent authority for the interpretation and enforcement of the withdrawal agreement

• UK’s international commitments

taken as a Member of the EU

• Settlement of financial
• bligations

EUROPEAN UNION

PRACTICAL ADVICE

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Gather Data

• EU nationals in UK
• UK nationals in EU

Provide Information to Employees

• Town Halls
• Webinars
• Memos

Determine Company Policy of What and Who to Support

• Citizenship or Permanent Residence
• Tenure, Level, Position
• Dependents

EUROPEAN UNION

PRACTICAL ADVICE

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Qualifications

• Determine if foreign nationals qualify for

work permits based on criteria Citizenship

• France
• 5 years of domiciled residence in

France and durable ties to the country

• Ireland
• 4 years of total “reckonable

residence” in Ireland within the last 8 years, including one year of continuous reckonable residence in Ireland immediately before the date of application

• Good faith to continue to reside in the

state after naturalization

• Luxembourg
• 7 years of uninterrupted stay

Permanent Residence

• France
• 5 years of continuous years of

residence

• Ireland
• 5 years of “reckonable residence”

(legal residence established under a work permit, work authorization, or work visa)

• Luxembourg
• 5 years of legal uninterrupted

residence

CONCLUSION

THE STATE OF THE EU

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BREXIT: The UK Perspective

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• What should businesses be

doing about Brexit and immigration?

• What happened?
• What do we know?
• What can you do now?

THE 2016 EUROPEAN UNION

REFERENDUM

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LEAVE REMAIN

52% 48%

THE EU REFERENDUM

WHAT HAPPENED

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THE BREXIT WHITE PAPER

WHAT DO WE KNOW?

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“In future we must ensure we can control the number of people coming to the UK from the EU” “In future the Free Movement Directive will no longer apply and the migration of EU nationals will be subject to UK law” “We will, therefore, ensure that businesses and communities have the opportunity to contribute their views” “There may be a phased process of implementation to prepare for the new arrangements”

DESPITE UNCERTAINTY

WE CAN ASSUME

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EEA nationals already in the UK need to register their status It will be harder to employ EEA nationals in future Government will consult through the Migration Advisory Committee

SO WHAT CAN

YOU DO NOW?

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Gather data Communicate with staff Financial assistance policies

COLLECTING DATA

IS NOT EASY

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COLLECTING DATA

THE TRENDS

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For most smaller employers collecting this data is as easy as walking around their offices. Larger employers are using a range of alternative techniques:

• Ask employees to update HR records
• Insisting on updates and tracking

compliance

• Voluntary and mandatory surveys
• Auditing their HR records and checking

passport copies

• ‘Bring your passport to work days’

Be sure to talk to your data protection lawyers about the collection and safe keeping of this information

GET READY FOR DIFFICULT

QUESTIONS

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Almost four fifths of our UK clients have had EU employees ask if they will be able to stay here, and around a half of our clients elsewhere in the EU have had British workers ask the same

SUPPORTING YOUR

STAFF

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Residence card Permanent residence Naturalisation

GET READY FOR DIFFICULT

QUESTIONS

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Fragomen Brexit FAQ available online FAQs, recorded briefings and application guidance packs Immigration surgeries Town hall meetings One to one consultations Help with filing applications

FINANCIAL ASSISTANCE

POLICY

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Some businesses are paying to confirm their employees status:

PRIORITISING

SUPPORT

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Low Risk

• Can show how they have worked in the UK for

five years uninterrupted Medium Risk

• Can show they have lived in the UK for five

years but have not worked for the entire period High Risk

• Worked in the UK for five years but have

complicating factors e.g. absences or criminal convictions

CHALLENGES FOR THE

LABOR MARKET

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THE FINAL DESTINATION

BREXIT IMMIGRATION POLICY

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Migration Advisory Committee (MAC) will consult businesses

• ver the summer

Stay on top of what is happening You will need to know which workers to argue for Start collecting this information as soon as you can

ACCESSING USEFUL

INFORMATION

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THANK YOU

QUESTIONS?

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