What’s new in global immigration?

This week, the Global Immigration team at Smith Stone Walters would like to highlight the following recent updates from Australia, Canada, Denmark, Ireland, Netherlands, New Zealand, Philippines and the United States.

Australia: Skilled-Recognised Graduate visa capped

The Skilled-Recognised Graduate visa has been capped from 22 December 2023. ​Applicants with a pending application will be able to apply for a repayment of their Visa Application Charge (VAC).  As the authorities work through pending applications, applicants will be sent instructions on how to claim a repayment of their VAC through ImmiAccount.

The Skilled-Recognised Graduate visa is usually issued for a stay of up to 18 months and allows travel, work and study.  Eligible applicants must be under 31 years of age; must have completed an engineering degree at a specified educational institution in the past 2 years; and must not have previously been the primary visa holder of a subclass 476 or 485 visa.

Canada: Upcoming changes to authentication services

Global Affairs Canada recently announced upcoming improvements to its authentication services for documents to be used outside Canada.

Effective 11 January 2024, when the Apostille Convention comes into force in Canada, a single certificate, called an ‘apostille’, will be issued to authenticate Canadian public documents. This will facilitate their use in more than 120 countries that are members of the convention, eliminating some of the steps currently required to have documents accepted outside Canada.

Public documents such as birth and marriage certificates, education documents and government-issued export and corporate records, as well as notarized documents, can be authenticated with an apostille certificate.

As part of this change, Alberta, British Columbia, Ontario, Quebec and Saskatchewan will be responsible for issuing apostilles for documents issued or notarized in their respective provinces.

Global Affairs Canada will issue apostilles for documents from the remaining provinces, the territories, and the Government of Canada.

More information is available here.

Denmark: New au pair rates upcoming

The new rate for the monthly allowance (pocket money) for au pairs is expected to be DKK 4850, and the new rate for the amount that helps finance Danish language classes is expected to be DKK 19,305.

The new rates apply to au pair applications that are submitted from 1 January 2024. The submission date of the application determines what type of rate applies to the application.

The submission date is the date when the application has been:

• received at a diplomatic mission or at a visa application centre
• received at one of SIRI’s branch offices
• received by SIRI as physical mail or via SIRI’s contact form
• submitted by using the online application form AU1.

The submission date is not dependent on when the applicant begins to fill out the application form, or when the application is signed by the applicant. For instance, if the application process begins in December 2023, but the application itself is not submitted until January 2024, the rates for 2024 will apply to the application.

Ireland: Increased salary thresholds and newly eligible roles for employment permits

The Irish government has announced comprehensive changes to the employment permits system, with 43 additions to the jobs eligible for an employment permit as well as a roadmap for increasing salary thresholds.

The main changes include:

• 11 roles added to the Critical Skills Occupations List:
  • Professional Forester
  • Resource modelling, earth observation and data analyst
  • Meteorologist
  • Operational Forecaster
  • Chemical Engineer
  • Project Engineer
  • BIM Manager
  • Optometrist (Ophthalmic Optician)
  • Commercial Manager
  • BIM Coordinator/Technician
  • Estimator
• 32 roles made eligible for a General Employment Permit;
• Salary requirement for majority of General Employment Permit holders will rise from EUR 30,000 to EUR 34,000 in January 2024;
• Healthcare assistants and home carers salary requirement will increase from EUR 27,000 and horticultural workers and meat processor salary requirement will increase from EUR 22,000 to EUR 30,000 in January 2024, bringing them in line with family reunification thresholds;
• Extension of existing quotas for dairy farm assistants, butcher/deboners, meat processors and horticultural workers;
• A Labour Market Needs Test (LMNT) is required for General Employment Permit applications and will have to reflect the revised thresholds in order to be deemed valid.

Currently, the salary threshold for General Employment Permits is EUR 30,000 and has not changed in almost a decade. This will increase to EUR 34,000 in January 2024, and further increases will be introduced up to EUR 39,000 in 2025.

Several occupations which had previously been made eligible for General Employment Permits (GEPs) have had their quotas extended, with effect from January 2024:

• 1000 GEPs for meat processing operatives;
• 350 GEPs for butcher/deboners;
• 350 GEPs for dairy farm assistants;
• 1000 GEPs have been provided for horticultural workers to support the sector until the introduction of the Seasonal Employment Permit.

Netherlands: New income requirements for highly skilled migrants

New income requirements for highly skilled migrants have been published in the Government Gazette (Staatscourant, only in Dutch). These are the required amounts as of 1 January 2024:

• Highly skilled migrants over 30 years of age: €5331
• Highly skilled migrant under 30 years of age: €3909
• Orientation year for highly educated migrants: €2801
• European Blue Card: €6245

The above amounts will be published here from 1 January 2024.

The income of a highly skilled migrant must meet the required amount applicable on the application date.

Netherlands: New rules for EU Blue Card

The transposition of the revised EU Blue Card directive into Dutch national legislation has been delayed until 2024.  However, some rules from the revised directive took effect on 18 November 2023 and this is reflected in the relevant application forms and web page.

The changes are as follows:

• Persons who have international protection status in an EU Member State can now qualify for a European Blue Card if they meet the requirements.
• A higher education degree is required for the Blue Card. However, IT managers and IT professionals can now qualify on the basis of work experience. At least 3 years of relevant experience in the past 7 years is required for this.
• The minimum term of the required employment contract has been shortened from 12 to 6 months.
• Holders of an EU Blue Card in a different EU Member State are now allowed to come to the Netherlands for work-related activities for 9 months at most. This is called short-term mobility. In order to stay more than 90 days (long-term mobility), an individual must apply for a European Blue Card in the Netherlands. Long-term mobility is possible after a stay of a least 12 months in another EU Member State. This was previously after 18 months.
• Holders of European Blue Cards who have used long-term mobility may qualify sooner than before for the status long-term EU resident. For this purpose they may in fact also include other forms of residence.
• No job-market test applies to EU long-term residents who are former holders of a European Blue Card and have applied for residence in the Netherlands for the purpose of performing an economic activity as an employee or self-employed person. This means that the application is no longer assessed for the presence of jobseekers from the EEA. Nor does an employer need to place a vacancy notice and demonstrate recruitment efforts.
• Several decision periods have been shortened.

Netherlands: ‘30 Percent Rule’ restrictions passed by parliament

On 19 December 2023, the upper house (Senate) of the Dutch parliament approved the 2024 tax plan, as well as the Minimum Tax Act 2024 (Pillar Two).  These amend the Dutch corporate income tax act and Dutch personal income tax act, including the introduction of restrictions on the 30% facility.

Currently, eligible highly skilled foreign workers are not required to pay tax on up to 30% of their income for five years (reduced from eight years in 2019). This is justified as a reimbursement for costs incurred in moving to the Netherlands form abroad. From 1 January 2024, this reimbursement can only be up to a maximum of EUR 233,000.

It is also permitted for employers to reimburse the actual moving costs of the employee, instead of using the 30% facility.

The first amendment requires that, effective 1 January 2024, the 30% ruling for new applications can only be applied to a maximum of 30% of the taxable salary for the first 20 months. In the following 20 months, the rule can be applied up to a maximum of 20% of the taxable wage. The following 20 months only up to a maximum of 10% of taxable wages. After 60 months, the maximum duration of the 30% ruling has expired.

Transitionally, foreign employees already using the 30% ruling before 1 January 2024 will not be subject to the reduction.

The second amendment regulates the abolition of partial foreigner taxpayer status by 2025.  Currently, foreign workers who are resident in the Netherlands and use the 30%-ruling can select partial foreign taxpayer status in their income tax return so that, for the purposes of Box 2 and Box 3, they are considered foreign taxpayers despite being resident in the Netherlands.

Transitionally, foreign national residents who already use this facility before 1 January 2024 can continue to use the partial foreign tax liability until 2026 at the latest.

New Zealand: Pause on median wage rate increase for Accredited Employer Work Visa

The government has announced that it is pausing the scheduled increase of the median wage rate for the Accredited Employer Work Visa (AEWV) that was due in February 2024.

The median wage rate is the minimum amount that must be paid by employers to hire migrant workers on an AEWV.

The pause means the rate for workers on an AEWV will remain at the current rate of NZD 29.66 per hour. The pause also extends to median wage requirements for partners of workers.

All other sector agreements and exemptions to the median wage will also remain in place based on the current rate.

The new median wage of NZD 31.61 per hour will still apply to other visa categories that use it from February 2024, such as the Skilled Migrant Category and Parent Category.

The pause allows time for decisions to be taken on alternatives to the median wage threshold in the AEWV, which the Government has committed to removing.

New Zealand: Upcoming immigration changes to protect migrants

The Worker Protection (Migrant and Other Employees) Act 2023 will come into effect on 6 January 2024. The Act introduces a suite of changes across the Employment Relations Act, the Immigration Act, and the Companies Act, to combat migrant exploitation.

The changes to the Immigration Act are:

• Requiring employers to provide employment-related documentation within 10 working days of it being requested by an immigration officer.
• Introducing 3 new immigration infringement offences. These are:
  • allowing a person who is not entitled under the Immigration Act to work in the employer’s service to do that work.
  • employing a person in a manner that is inconsistent with a work-related condition of that person’s visa.
  • failing to comply with a requirement to supply documents within 10 working days.
• Enabling the Chief Executive of MBIE to publish the names of employers who offend against the Immigration Act.

The Ministry of Business, Innovation and Employment (MBIE) will not commence issuing infringement notices until changes to the immigration regulations have been made to prescribe the form of the infringement notice. This is subject to decisions by the new government. MBIE will provide more information on how infringement notices will be implemented following the government’s decision.

Once the amended immigration regulations are in place to enable the issuing of infringement notices, MBIE will be able to issue them for offences that occurred before the regulations were in place (up to a max of 90 days previously, or 6 January 2024, whichever is later).

In most cases, the new infringement offences do not change employers’ obligations. Employers are already required to only employ people who hold a valid visa and in line with those visa conditions, as well as provide documents as part of post-decision checks under the Accredited Employer scheme. Adding infringement offences to the Act strengthens and standardises the sanction for non-compliance with these requirements.

MBIE will also not start publishing the names of non-compliant employers immediately on 6 January 2024. This power is intended to support the publication of an immigration stand-down list, where the names of non-compliant employers are published alongside a “stand-down” period, during which they are not able to support further visa applications.

The offences that will lead to a stand-down and the formula for calculating a stand-down period are still to be approved by the government. MBIE will not start publishing a stand-down list until these details are confirmed.

Philippines: Mandatory eTravel registration

The Bureau of Immigration has reminded travellers that eTravel registration is mandatory and must be carried out at least 72 hours before the intended travel.

The following are required to register, free of charge, in the eTravel System:

• Arriving Filipino and foreign passengers;
• Arriving Filipino and foreign crew members; and
• Departing Filipino passengers.

Exceptions are made for foreign diplomats, and their dependents, foreign dignitaries, and members of their delegation, 9(e) visa holders, and holders of diplomatic and official/service passport.

United States: Pilot program for domestic renewal of H-1B visa

The US Department of State has announced a pilot program to resume domestic visa renewal for qualified H–1B nonimmigrant visa applicants who meet certain requirements.

The pilot program will accept applications from 29 January 2024 to 1 April 2024. Applicants who meet the requirements will be able to participate during the application window by applying online here.

Eligibility:

Participation in this pilot will be limited to applicants who(se):

• Are seeking to renew an H–1B visa; during the pilot phase, the Department will not process any other visa classifications;
• Prior H–1B visa that is being renewed was issued by Mission Canada with an issuancedate from 1 January 2020 to 1 April 2023; or by Mission India with an issuance date of 1 February 2021 to 30 September 2021;
• Are not subject to a nonimmigrant visa issuance fee (Note: this is commonly referred to as a “reciprocity fee”);
• Are eligible for a waiver of the in-person interview requirement;
• Have submitted ten fingerprints to the Department in connection with a previous visa application;
• Prior visa does not include a “clearance received” annotation;
• Do not have a visa ineligibility that would require a waiver prior to visa issuance;
• Have an approved and unexpired H–1B petition;
• Were most recently admitted to the United States in H–1B status;
• Are currently maintaining H–1B status in the United States;
• Period of authorized admission in H–1B status has not expired; and
• Intend to re-enter the United States in H–1B status after a temporary period abroad.

The Department is limiting the scope of the pilot to applicants who were previously issued visas within specified dates by Missions Canada or India to properly assess the performance and capabilities of contractors who manage the majority of the Department’s worldwide visa processing.

Procedure:

In order to control the number of applications received, the Department will, each week, release approximately 2000 application slots for applicants whose most recent H–1B visas were issued by Mission Canada, and approximately 2000 application slots for those whose most recent H–1B visas were issued by Mission India (approximately 4000 total each week) on the following dates:

• 29 January 2024
• 5 February 2024
• 12 February 2024
• 19 February 2024
• 26 February 2024

Once the limit is reached, the online portal will be locked until the next tranche of slots are released for each participating Mission group on the next application date. Applicants who are unable to apply on one application date may attempt to apply on any of the remaining application dates during the entry period. The application period for the pilot will close when all application slots are filled or on 1 April 2024, whichever comes first.

After online submission of the DS–160 and payment of the non-refundable, non-transferrable MRV fee (USD 205), applicants will receive instructions through the portal to send their passports and other required documents (as specified in section d. Required Documents of this notice) via the U.S. Postal Service or commercial courier service to the Department.

The average processing time for a domestic visa renewal application is expected to be six to eight weeks from the time that the passport and other required documents are received by the Department. The Department aims to complete processing of all applications no later than 1 May 2024.

Background:

In 2004, the State Department discontinued the domestic renewal of non-diplomatic nonimmigrant visas primarily because of the passage of the Enhanced Border Security and Visa Entry Reform Act of 2002, which required that US visas issued after 26 October 2004, include biometric identifiers.

Then, as now, the State Department did not possess the capacity to collect fingerprints in the United States, so all non-diplomatic visa applicants were required to apply for new visas outside of the United States where fingerprints can be collected at a US embassy, consulate or, for certain posts, at an offsite contract facility.

For purposes of implementing this pilot, however, those prior concerns are overcome, as participation in the pilot is limited to individuals who have previously submitted fingerprints in connection with the application for the prior visa, are eligible for a waiver of the in-person interview requirement and meet other applicable requirements.

United States: Updated policy guidance for international students

US Citizenship and Immigration Services (USCIS) has issued policy guidance regarding the F and M student nonimmigrant classifications, including the agency’s role in adjudicating applications for employment authorization, change of status, extension of stay, and reinstatement of status for these students and their dependents in the United States.

This guidance consolidates existing policy. USCIS expects that this will provide welcome clarity to international students and US educational institutions on a wealth of topics, including eligibility requirements, school transfers, practical training, and on- and off-campus employment.

For example, the guidance clarifies that F and M students must have a foreign residence that they do not intend to abandon, but that such students may be the beneficiary of a permanent labour certification application or immigrant visa petition and may still be able to demonstrate their intention to depart after a temporary period of stay.

In addition, the guidance specifies how F students seeking an extension of optional practical training (OPT) based on their degree in a science, technology, engineering, and mathematics (STEM) field may be employed by start-up companies, as long as the employer adheres to the training plan requirements, remains in good standing with E-Verify, and provides compensation commensurate to that provided to similarly situated US workers, among other requirements.

The nonimmigrant academic student (F-1) classification allows a noncitizen to enter the United States as a full-time student at a college, university, seminary, conservatory, academic high school, elementary school, or other academic institution, or in a language training program. The nonimmigrant vocational student (M-1) classification includes students in established vocational or other recognized non-academic programs, other than language training programs.

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