By Kent O’Neil, Global Legal Analyst, Newland Chase
The ball dropped in New York, flowers floated on the waves in Rio, temple bells rang out in Tokyo, grapes were swallowed in Madrid, and fireworks lit up the sky from Sydney to London and Paris. It’s goodbye 2018 and hello 2019.
And while you merrily welcomed in the new year with a glass of Champagne or two… and a midnight kiss or two… we at Newland Chase were here at our desks diligently combing through our global immigration alerts of this past year to bring you this handy recap of the top global immigration developments impacting the international business climate in 2018. (Well maybe we took a little time off for a quick glass of Champagne or two… and a kiss or two.)
2018 was once again a year of dynamic push-pull between the forces of economic and technological globalisation and political and cultural nationalism. And once again, it was a busy year in international business and global immigration. So in case you missed any of our 52 weekly email newsletters… (To not miss any in 2019, sign up on our home page here.) Here’s our summary of the most significant business immigration and mobility news and developments for 2018.
(SPOILER ALERT: Watch our blog next week for a preview of what to look forward to in 2019.)
UNITED STATES | Trump, H-1Bs, and Buy-Hire American
With deep divisions in Congress and a seemingly constant barrage of legal, PR, and staffing challenges in the White House – little formal legislating on the immigration front was done in 2018. But that doesn’t mean there was no change in the immigration environment affecting business. Executive orders, memorandum, and subtle administrative changes continued to challenge companies employing foreign nationals in the U.S.
The Buy American, Hire American Executive Order was signed in April 2017, but it’s ramifications continued to evolve on into 2018 as subtle administrative changes in process were made via additional orders and memoranda. Increased scrutiny of petitions under the popular H-1B Visa program was noticeable in 2018 – resulting in a 45 percent increase in Requests for Evidence (RFEs) and continued higher denial rates from the pre-BAHA days. Previously settled interpretations of requirements were commonly reinterpreted in the review process. This increased scrutiny of petitions as well as extreme vetting of foreign workers’ backgrounds significantly increased the time and effort expended by companies wishing to employ foreign talent.
Immigration enforcement was also clearly on the rise in 2018. Immigration and Customs Enforcement (ICE) increased worksite investigations from 1,691 in fiscal year 2017 to 6,848 in fiscal year 2018 – an increase of 300 percent.
The Department of Homeland Security also issued recommendations in November for an overhaul of the H-1B lottery designed to modernise the system and give highly skilled workers increased opportunity. The cumulative effect of all the subtle changes and potential future changes is a noticeably cooler business immigration environment for companies seeking to employ foreign talent in the U.S.
UNITED KINGDOM | Brexit, Tier 2, and Continued Uncertainty
Brexit obviously dominated the headlines for UK immigration in 2018. But for all the activity, little was finally decided as 2018 turned into 2019. The details on the Settlement Scheme for EU nationals in the UK were announced, as well as the White Paper setting out the future of UK immigration for EU nationals post-Brexit. Deal or no-deal is still in question as Parliament gets set to debate and vote on the UK-EU separation deal in mid-January. For more, see BREXIT: Deal or No-Deal… What Does It Mean for UK-EU Immigration? and BREXIT DEAL REACHED: What Does It Mean for UK_EU Immigration?. But more on Brexit next week.
From December 2017 to June 2018, the monthly Tier 2 restricted Certificates of Sponsorship allocation was oversubscribed, resulting in many companies unable to obtain needed visas for recruited foreign employees. In June, the Home Office attempted to bring some relief to the shortage by removing physicians and nurses from the monthly draw. However, once again in July, the pent-up demand exceeded the supply of RCoS, albeit at a lower salary threshold than the preceding seven months. Because of the unmet demand held-over from the beginning of the year, the monthly RCoS allocations remained tight through the remainder of 2018.
AUSTRALIA | The 457 is Dead; Long Live the TSS
In April 2017, the Australian government announced a major overhaul of the country’s employment-based visa scheme – with the clear aim being to kill off the controversial 457 Visa program. The changes, implemented in four rounds, culminated in the termination of the 457 Visa stream and its replacement with a new (and uncannily similar) Temporary Skill Shortage (TSS) Visa in March 2018. Chief among the changes were the significant reduction in the number of occupations eligible for employment-based visas, the bifurcating of TSS Visas into 4-year and 2-year streams based on new occupations lists, and limitations on permanent residence routes for holders of TSS Visas. The changes also included new Labour Market Testing Requirements, which were further refined in August 2018.
A new Skilling Australians Fund levy on companies employing foreign nationals was introduced in August 2018 and replaced the “training benchmarks” scheme – significantly increasing costs of employing foreign workers for most companies. A new Global Talent Scheme pilot program started on 1 July 2018. Qualifying companies receive streamlined TSS application processing and a shortened path to permanent residence for their applicants. For more on Australia’s immigration system, watch the on-demand webinar Life After Australia’s 457: How to Succeed Under the New TSS Visa.
CHINA | Trade Wars and Talent Wars
While trade wars heated up between China and the U.S., China continued to expand its influence around the world via its Belt and Road Initiative – investing in infrastructure projects in numerous countries across Asia and Africa. But also in 2018, China continued its subtle opening of immigration rules in an effort to compete in the global war for foreign talent.
At the start of 2018, new regulations for the R (“Talent”) Visa were introduced as a pilot in nine provinces, presenting a ten-year visa option for high-level talent. February brought a new five-year multiple-entry visa and residence permit for ethnic Chinese living overseas, as an attempt to encourage contributions of overseas Chinese to the growing Chinese economy. Then in August, China abolished work permit requirements for employees from Hong Kong, Macao, and Taiwan. For more on China’s immigration system, watch the on-demand webinar Adventures in China: 2018 Immigration Updates and Trends.
BRAZIL | A New Immigration System Takes Shape
Brazil’s New Migration Law, a major piece of legislation bringing a wholescale rewrite of Brazil’s immigration laws, went into effect in November 2017. But the Normative Resolutions implementing its provisions began in December of that year and continued into the first half of 2018.
The new law and processes streamlined Brazil’s previous scheme of multiple visa categories into five major categories. Most applicable to business, Visit Visas now include the visas issued for business purposes, and Temporary Visas apply to all employment-based immigration. A new Residence Permit is now available through an in-country application process for long-term work assignments where the applicant first enters via a Temporary Visa. The new law also provides numerous rights and protections for foreign nationals residing in the country, including protection of local labor laws and access to social security.
Rolled out in phases from November 2017 to January 2018, Brazil also introduced a new electronic visa system which issues electronic e-visas for business travelers within 72 hours of application. The new e-visas are now available to citizens of Australia, Canada, the United States, and Japan. For more on Brazil, see Going Global: Expand Your Business to Brazil.
INDONESIA | Major Improvements to Simplify Foreign Worker Rules
The government of Indonesia introduced a spate of reforms in 2018 – with the clear intention of making the country a more business-friendly climate for international companies and their foreign workers. The motivation for the immigration and labour law changes appears is to be supporting the increased integration of technology into the local economy and further encouraging infrastructure improvements via China’s Belt and Road Initiative.
While in the short-term some of the changes have produced confusion and delays in implementation, the long-term outlook is clearly positive for international business. Many of the reforms are aimed at removing the previous bureaucratic hurdles to business operation. Immigration and work authorisation processes are being further automated, standardised, and streamlined across the country – with significantly shorter processing time standards required of the local and consular authorities. For more on the changes in Indonesia, see our alerts here, here, and here.
UNITED ARAB EMIRATES | Expat-Friendly Reforms Continue
Already one of the most international business-friendly destinations in the Middle East, the UAE continued to refine its immigration system to the benefit of foreign workers in 2018. A number of positive changes were approved by the Cabinet in June for the benefit of foreign companies and their employees. A new insurance scheme replaced the previous mandatory deposit by companies for their foreign workers – making the cost of employing foreign nationals cheaper. Also in June, a new 6-month job-seeker visa was introduced. October saw another round of liberalisations of visa extensions for visitors approaching the end of their stay, foreign students, and recently widowed or divorced women. More changes, already approved, are expected to be implemented early in 2019. For more, see our alerts here, here, and here.
HONG KONG | Beginning of a Trend for LGBT Expats in APAC?
In July 2018, a high court case decision, followed by implementation by the Hong Kong Immigration Authority, made it possible for same-sex spouses to now obtain dependent visas. Previously, same-sex partners were ineligible for dependent visas in Hong Kong. The APAC region is overall the most challenging region for LGBT expats. Is this the start of a coming trend? See LGBT Expatriate Rights on the Rise: 7 APAC Destinations Examined.
Stay Tuned… Next Week – What to Watch for in 2019.
Kent O’Neil is a Global Legal Analyst and frequent writer and speaker on international business and global corporate mobility for Newland Chase. Kent received his Juris Doctor from Penn State’s Dickinson School of Law and a Bachelors in Economics from Clarion University. Prior to joining Newland Chase, he worked in both private practice and in-house for a multinational corporation operating across North America, Europe, Asia, and the APAC region. Now based in the U.S., Kent has lived and worked as an expat in Pakistan and the Philippines.
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