U.S. Immigration

1. USCIS Continues To Accept FY 2012 H-1B Petitions
2. New Validation Instrument for Business Enterprises Used By USCIS
3. USCIS Updates I-129 Instructions Re: TARP
4. DOS Reports on Employment-Based Visa Demand; First Preference ‘Extremely Low’
5. USCIS Reviews Policy on H-1B Cap Exemptions Based on Higher Ed Relation or Affiliation
6. USCIS Issues Q&A on Extension of Post-Completion OPT and F-1 Status for Eligible Students Under H-1B Cap-Gap Regs
7. USCIS Issues Guidance on Concurrent Advance Parole, EAD
8. USCIS Announces Implementation of Secure Mail Initiative
9. Case Update: El Badrawi; Arizona
10. DOL Issues Proposed Rule on H-2B Temporary Nonagricultural Employment

Seyfarth Workforce Authorization Team (SWATeam)

1. SSA to Resume Sending “No Match” Letters to Employers
2 USCIS Launches E-Verify Self Check
3. ICE Announces Prison Term for Employing Undocumented Workers
4. Feds Crack Down on Employers
5. DOL Orders School District To Pay Foreign Teachers Millions in Back Wages

Global Mobility

1. United Kingdom Update

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U.S. Immigration

1. USCIS Continues To Accept FY 2012 H-1B Petitions

U.S. Citizenship and Immigration Services (USCIS) announced on May 26, 2011, that it continues to accept H-1B nonimm grant petitions that are subject to the fiscal year (FY) 2012 cap. The agency began accepting these petitions on April 1, 2011.

USCIS is monitoring the number of petitions received that count toward the congressionally mandated annual H-1B cap of 65,000 and the 20,000 U.S. master's degree or higher cap exemption. The agency reported that it has received approximately 13,100 H-1B petitions counting toward the 65,000 cap, and approximately 9,000 petitions toward the 20,000 cap exemption for individuals with advanced degrees.

Petitions filed by employers who are exempt from the cap, as well as petitions filed on behalf of current H-1B workers who have been counted previously against the cap within the past six years, will not count toward the cap.

The USCIS announcement is available here.

2. New Validation Instrument for Business Enterprises Used by USCIS

U.S. Citizenship and Immigration Services (USCIS) has begun "beta-testing" the Validation Instrument for Business Enterprises (VIBE) System, which is run by Dun & Bradstreet. VIBE allows USCIS to receive commercially available information about companies or organizations filing certain employment-based petitions. If the U.S. business entity's information on the petition is inconsistent with the information in VIBE, USCIS issues a request for evidence (RFE).

VIBE allows USCIS to electronically receive commercially available information about a petitioning company or organization, including:

• Business activities, such as type of business (North American Industry Classification System code), trade payment information and status (active or inactive)
• Financial standing, including sales volume and credit standing
• Number of employees, including on site and globally
• Relationships with other entities, including foreign affiliates
• Status; for example, whether it is a single entity, branch, subsidiary, or headquarters
• Ownership and legal status, such as LLC, partnership, or corporation
• Company executives
• Date of establishment as a business entity
• Current physical address

A USCIS officer reviews all information received through VIBE along with the evidence submitted by the petitioner. Adjudicators use information from VIBE to verify the petitioner's qualifications. For example, if a petitioner seeks L-1 status for a beneficiary, VIBE will help adjudicators confirm that the petitioner has a foreign affiliate, a requirement for granting L-1 status. In cases where petitioners must establish ability to pay, information from VIBE will assist in confirming the petitioner's financial viability.

USCIS said it will not deny a petition based upon information from VIBE without first giving a petitioner "the opportunity to respond to USCIS's concerns." USCIS will issue an RFE or a Notice of Intent to Deny (NOID) "if it is necessary to resolve relevant inconsistencies or other issues that emerge upon review of information supplied by VIBE that are material to the benefit requested." The Immigration Services Officer (ISO) will make a final decision "based on the totality of the circumstances," the agency said.

Seyfarth Shaw recommends that clients check their profile and make sure that the major areas (company address for example) are correct to avoid RFEs in the future.

USCIS said it encourages petitioners to bring to the agency's attention any questions related to RFEs or NOIDs involving information USCIS received through VIBE, as well as suggestions for improving the program, by e-mailing VIBE-Feedback@dhs.gov.

For more on VIBE, click here.

3. USCIS Updates I-129 Instructions Re TARP

Employers who received funds through the Troubled Asset Relief Program (TARP) or under section 13 of the Federal Reserve Act ("covered funding") are no longer required to answer Question 1d in Part A of the H-1B Data Collection and Filing Fee Exemption Supplement. The Employ American Workers Act (EAWA) had mandated additional requirements on H-1B petitioners who received covered funding. These requirements ended on February 16, 2011. The additional requirements under EAWA no longer apply to any H-1B petition requesting an employment start date of February 17, 2011, or later.

The updated Form I-129, Petition for a Nonimmigrant Worker, is available here.

4. DOS Reports on Employment-Based Visa Demand; First Preference ‘Extremely Low’

The Department of State's Visa Bulletin for May 2011 notes that demand in the employment first preference is extremely low compared with that of recent years. Absent an immediate and dramatic increase in demand, this category is expected to remain "Current" for all countries. It also appears unlikely, the Bulletin says, that a second preference cut-off date will be imposed for any countries other than China and India, where demand is extremely high. Based on current indications of demand, the best-case scenarios for cut-off date movement each month during the coming months are as follows:

Employment Second: Demand by applicants who are "upgrading" their status from employment third to employment second preference is very high, but the exact amount is not known. Such upgrades are in addition to the known demand already reported. The Bulletin said this makes it difficult to predict ultimate demand based on forward movement of the China and India cut-off dates. Although thousands of "otherwise unused" numbers will be available for potential use without regard to the China and India employment second preference per-country annual limits, it is not known how the upgrades will ultimately affect the cut-offs for those two countries.

China: An advance in the priority date of zero to three weeks is expected through July. No August or September estimate is possible at this time.

India: An advance in the priority date of one or more weeks, possibly followed by additional movement if demand remains stable. No August or September estimate is possible at this time.

Employment Third:

Worldwide: An advance in the priority date of three to six weeks may occur.

China: An advance in the priority date of one to three weeks may occur.

India: An advance in the priority date of zero to two weeks is likely.

Mexico: Continued forward movement is expected; no specific projections at this time.

Philippines: An advance in the priority date of three to six weeks is likely

The Bulletin notes that the above ranges are estimates based on current demand patterns and are subject to fluctuations during the coming months.

The Visa Bulletin for May 2011 is available here.

5. USCIS Reviews Policy on H-1B Cap Exemptions Based on Higher Ed Relation or Affiliation

U.S. Citizenship and Immigration Services (USCIS) announced on March 18, 2011, that it is reviewing its policy on H-1B cap exemptions for nonprofit entities that are related to or affiliated with an institution of higher education. Until further guidance is issued, USCIS will apply interim procedures to H-1B nonprofit entity petitions filed with the agency seeking an exemption from the statutory H-1B numerical cap based on an affiliation with or relation to an institution of higher education.

Effective as of March 18 and during the interim period, USCIS will defer to prior determinations made since June 6, 2006, that a nonprofit entity is related to or affiliated with an institution of higher education (absent any significant change in circumstances or clear error in the prior adjudication) and, therefore, exempt from the H-1B statutory cap. USCIS noted, however, that the burden remains on the petitioner to show that its organization previously received approvals of its request for an H-1B cap exemption on this basis.

Petitioners may satisfy this burden by providing USCIS with evidence, such as a copy of the previously approved cap-exempt petition (i.e., a Petition for a Nonimmigrant Worker (Form I-129) and pertinent attachments) and the previously issued applicable I-797 approval notice issued by USCIS since June 6, 2006, along with any documentation that was submitted in support of the claimed cap exemption. USCIS suggests that petitioners also include a statement attesting that their organization was approved as cap-exempt since June 6, 2006.

USCIS emphasized that these measures will only remain in place on an interim basis.

Evidence of previous determinations of cap exemption will be considered on a case-by-case basis only when submitted with an I-129 petition for H-1B status requesting exemption from the numerical cap, or in response to a Request for Evidence or Notice of Intent to Deny for H-1B petitions currently pending with USCIS claiming exemption from the cap. USCIS accordingly advised petitioners not to send separate correspondence containing their cap-exemption evidence on this issue.

The USCIS announcement is available here.

6. USCIS Issues Q&A on Extension of Post-Completion OPT and F-1 Status for Eligible Students Under H-1B Cap-Gap Regs

U.S. Citizenship and Immigration Services (USCIS) released a Q&A document on April 1, 2011, addressing the automatic extension of F-1 student status in the U.S. for certain students with pending or approved H-1B petitions (indicating a request for change of status from F-1 to H-1B) for an employment start date of October 1, 2011, under the fiscal year (FY) 2012 H-1B cap. Although the first business day of October 2011 is Monday, October 3, eligible F-1 students must make sure to request Saturday, October 1, as their start date in order to qualify for the cap-gap extension, USCIS said.

Once a timely filing has been made requesting a change of status to H-1B on October 1, the automatic cap-gap extension will begin and will continue until the H-1B petition adjudication process has been completed, USCIS explained. If the student's H-1B petition is selected and approved, the student's extension will continue through September 30 unless the petition is denied, withdrawn, or revoked. If the student's H-1B petition is not selected, the student will have the standard 60-day grace period from the date of the rejection notice or their program end date, whichever is later, to prepare for and depart the U.S.

To obtain proof of continuing status, a student covered under the cap-gap extension should go to his or her designated school official (DSO) with evidence of a timely filed H-1B petition (indicating a request for change of status rather than for consular processing), such as a copy of the petition and a FedEx, UPS, or USPS Express/certified mail receipt. The student's DSO will issue a preliminary cap-gap I-20 showing an extension until June 1, 2011.

If the H-1B petition is selected for adjudication, the student should return to his or her DSO with a copy of the petitioning employer's Form I-797, Notice of Action, with a valid receipt number, indicating that the petition was filed and accepted. The student's DSO will issue a new cap-gap I-20 indicating the continued extension of F-1 status, USCIS said.

USCIS strongly encourages students "to stay in close communication with their petitioning employer during the cap-gap extension period for status updates on the H-1B petition processing."

The USCIS notice is available here.

7. USCIS Issues Guidance on Concurrent Advance Parole, EAD

U.S. Citizenship and Immigration Services (USCIS) released a guidance memorandum on issuance of employment authorization documents (EADs) with advance parole endorsements.

Traditionally, USCIS has issued two separate documents, an EAD (Form I-766) and an Authorization for Parole of an Alien into the United States (Form I-512). Although adjudication of an Application for Travel Document (Form I-131) and an Application for Employment Authorization (Form I-765) requires two separate determinations by USCIS adjudicators, USCIS noted that the information required from the applicant and the processes followed by the adjudicator are similar.

The agency determined that it was more cost-effective for the government and more convenient for the applicants to adjudicate the I-765 and I-131 simultaneously and, if both forms are approved, to issue a single document indicating that both ancillary benefits have been granted.
Whenever possible, USCIS said its adjudicators will simultaneously adjudicate concurrently filed applications for employment authorization and applications for advance parole authorization filed by applicants for adjustment of status under 8 CFR §245 or to register status under 8 CFR §249. If USCIS approves both applications, it will issue a single document, Advance Parole EAD (Form I-766).

The memorandum is available here.

8. USCIS Announces Implementation of Secure Mail Initiative

U.S. Citizenship and Immigration Services (USCIS) has fully implemented the Secure Mail Initiative (SMI), which uses U.S. Postal Service (USPS) Priority Mail with Delivery Confirmation to deliver certain immigration documents in a safe, secure and timely manner.

The SMI enables USCIS to confirm delivery of permanent resident cards and documents pertaining to travel and employment authorization. With

USPS tracking information, USCIS customers can also stay up-to-date on the delivery status of their documents.

SMI provides USCIS customers many benefits, including the ability to track the status of their documents with USPS tracking information and quicker delivery—on average, documents sent through USPS Priority Mail should arrive two to four business days sooner than with first-class mail.
Customers who receive notices of approval can contact USCIS’ Customer Service Center at 800-375-5283 to request tracking information for their documents. USCIS customer service representatives will provide customers with their USPS tracking number and current USPS delivery status. USCIS advises customers to wait at least two weeks after getting their approval notice before calling for information regarding their cases.

9. Case Update: El Badrawi; Arizona

In El Badrawi v. USA, 07-cv-1074 (D. Conn. Dec. April 11, 2011), the United States District Court in Connecticut ruled that an H-1B worker who had timely sought an extension of that visa status, and who was authorized to continue working under 8 CFR §274a.12(b)(20), could not be arrested or subjected to removal. Although a district court decision may not have precedential value beyond the plaintiff in the case, it is nevertheless significant because it provides a stepping-stone for other courts to be similarly persuaded.

In U.S. v. Arizona (9th Cir. April 11, 2011), the U.S. Court of Appeals for the Ninth Circuit affirmed an injunction against several controversial aspects of Arizona’s S.B. 1070, which established a variety of immigration-related state offenses and defined the immigration enforcement authority of Arizona’s state and local law enforcement officers.

Among other things, the Ninth Circuit noted that "Congress explicitly required that in enforcing federal immigration law, state and local officers 'shall' be directed by the Attorney General. This mandate forecloses any argument that state or local officers can enforce federal immigration law as directed by a mandatory state law.

El Badrawi v. USA is available here. U.S. v. Arizona is available here.

10. DOL Issues Proposed Rule on H-2B Temporary Nonagricultural Employment

The Department of Labor's (DOL) Employment and Training Administration and Wage and Hour Division have proposed a rule to revise and solicit comments on the process by which employers obtain temporary labor certifications from the DOL for use in petitioning the Department of Homeland Security (DHS) to employ nonimmigrant workers in H-2B status. The DOL also proposes "to create new regulations to provide for increased worker protections for both U.S. and foreign workers and enhanced enforcement under the H-2B program."

Among other things, the DOL is revisiting the use of attestations. The DOL said it is interested in receiving comments on the alternative of maintaining the current or some modification of the current attestation-based program design. Specifically, the DOL seeks comments on whether it should develop certain attestations that can be required of all employers (such as an attestation for certain kinds of recruitment), or for only certain program compliance requirements. The DOL proposes to bifurcate the current application process into a registration phase that addresses the employer's temporary need, and an application phase that addresses the labor market test.

The rule also proposes substantive changes to several terms; for example, clarifying what non-agricultural employment is and adding a definition of "area of substantial employment" to the H-2B program. The rule also proposes to amend the definition of "full time" in the H-2B program to mean 35 or more hours per week, instead of the current 30. The DOL said it welcomes comments regarding whether extending the definition of a full-time workweek to at least 40 hours for the H-2B program would better protect U.S. workers and whether it conforms better to employer standards and needs.

The proposed rule, which was published on March 18, 2011, is here.

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Seyfarth Workforce Authorization Team (SWATeam)

1. SSA to Resume Sending “No Match” Letters to Employers

After a significant courtroom battle, the Social Security Administration (SSA) has resumed notifying employers of discrepancies between employer-submitted payroll data and the agency’s own records. The notification letters are notorious among employers as “no-match letters.”

The purpose of the no-match letter, according to the SSA, is to allow the agency to obtain corrected information that would help it identify the worker to whom reported earnings belong so that earnings (and payroll contributions) can be properly credited to the deserving worker’s Social Security earnings record. The SSA clearly states that “a no-match between an employee’s name and SSN in the employer and SSA’s records DOES NOT mean that the employee lacks work authorization, nor does it make any statement regarding a worker’s immigration status.”

Still, the Department of Homeland Security’s Immigration and Customs Enforcement (ICE) officers request copies of any no-match letters that employers have received when it conducts I-9 and other investigations. Additionally, no-match letters from the SSA have formed the basis for multiple criminal investigations and prosecutions for harboring or knowingly hiring unauthorized workers. All relevant factors suggest that an unresolved no-match will be a factor in determining civil fines or criminal prosecution after an I-9 investigation.

Employers must be prepared for receipt of no-match letters by implementing a clear and consistent policy for resolving the no-match. Such a policy should set out the steps that the employer and the employee must take and should set clear deadlines, which may be extended in certain circumstances. Please contact us if you would like our assistance in drafting a policy to handle no-match letters.

2. USCIS Launches E-Verify Self Check

U.S. Citizenship and Immigration Services (USCIS) launched “E-Verify Self Check” on March 21, 2011. The voluntary service enables individuals to check their own employment eligibility status at no charge. USCIS will release E-Verify Self Check in phases, with the first phase accessible only to users who maintain an address and are physically located in Arizona, Idaho, Colorado, Mississippi, Virginia, or the District of Columbia.

For more on the E-Verify Self Check system, see here.

A transcript of the press conference on this topic is available here.

A fact sheet is available here.

3. ICE Announces Prison Term for Employing Undocumented Workers

A Missouri woman was sentenced on March 22, 2011, to a year in prison for transporting, harboring, and hiring undocumented workers at the Chinese restaurant she managed. The sentence resulted from a worksite enforcement investigation conducted by U.S. Immigration and Customs Enforcement (ICE).

ICE reported that Hua Huang was sentenced in the Eastern District of Missouri “on two counts each of harboring, transporting, and employing illegal aliens, and one count each of structuring a financial transaction and conspiring to commit visa fraud.” She pleaded guilty to the charges in December. Upon release from prison, Huang will also serve two years of supervised release with a six-month term of home confinement.

The investigation revealed that between January 2009 and August 2010, Huang was manager of the China Buffet/Mongolian Grill in Poplar Bluff. During that time she regularly employed a number of undocumented workers from Mexico and China. The employees typically worked 12-hour shifts, six days a week, and were paid in cash amounts far less than minimum wage. Waiters and waitresses were typically paid in tips only. State and federal taxes were not withheld. Cash sales for the restaurant routinely went unreported.

As a result of surveillance conducted by ICE agents and Poplar Bluff police officers, authorities determined that the workers were being housed or “boarded” in two residences owned by individuals and entities connected to the China Buffet/Mongolian Grill. Authorities observed that the workers were shuttled to and from work daily in a van operated by Ms. Huang or other employees of the business.

On August 4, 2010, federal search warrants were executed at several residences and the China Buffet/Mongolian Grill. During the execution of the search warrants, agents seized a 2008 Highlander sport utility vehicle, a 2005 Chevrolet passenger van, and $34,000 in cash. The van was being operated by Ms. Huang to transport the workers to the China Buffet. As part of the prosecution, the vehicles, cash, and four separate pieces of real estate were ordered forfeited, with a total value of more than $350,000.

In her guilty plea, Ms. Huang also admitted to structuring financial transactions to prevent a local bank from reporting those transactions.

The ICE announcement is available here.

4. Feds Crack Down on Employers

In an investigation of Chipotle Mexican Grill Inc., the Criminal Division of the U.S. Attorney’s Office in Washington, DC, asked Chipotle on April 13, 2011, for documentation related to hiring issues at its 1,092 restaurants. U.S. Immigration and Customs Enforcement (ICE) had recently audited Chipotle’s records in several areas, resulting in the company’s firing of at least 490 workers.

In another case, federal agents arrested the owners and an outside bookkeeper for Chuy’s Mesquite Broiler and detained 40 suspected undocumented workers at 15 locations in California and Arizona. The federal indictment charged the owners with employing about 360 undocumented workers and keeping two payrolls, one for the undocumented workers, for whom no taxes were paid, and another for workers with employment authorization.

For more information on recent ICE enforcement operations, click here.

5. DOL Orders School District To Pay Foreign Teachers Millions in Back Wages

The Department of Labor (DOL) recently ordered the school system in Prince George’s County, Maryland, to pay $1.7 million in penalties and $4.2 million in back wages and penalties to more than 1,000 teachers recruited from foreign countries, many from the Philippines. School authorities had required the teachers to cover expenses for their H-1B work visas, in violation of the law.

Superintendent William R. Hite, Jr., plans to appeal the findings. He noted that the fines “may have a devastating impact on [the Prince George’s County school system] and its employees and the school system’s ability to continue to place a highly qualified teacher in every classroom.”

DOL spokeswoman Elizabeth Alexander said that the school system “refused to acknowledge” the problem sufficiently or to negotiate a settlement. County schools spokesperson Briant Coleman countered that school authorities had been unaware of the requirement and, when informed, “we corrected it immediately and paid the fees ever since.” Ms. Alexander said cases involving other school systems are pending.

An AFL-CIO report found that in 2008, Prince George’s schools obtained approval for 239 petitions for H-1B visas. Baltimore schools obtained 229 such approvals, the report found, and East Baton Rouge Parish schools in Louisiana obtained 205, Dallas schools 105 and New York City schools 96.

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Global Mobility

1. United Kingdom Update

Less migration: The UK government proposes various measures to reduce immigration and save public funds

On February 16, 2011, the UK Border Agency (UKBA) released a Statement of Intent (SOI) detailing proposals to change the eligibility criteria for the Points-Based System (PBS) Tier 2 migrants and the operation of permanent limits on certain Tier 2 applications. The UKBA also proposed changing the criteria for indefinite leave to remain (ILR) for Tiers 1 and 2. These changes took effect on April 6, 2011, including the final closure of the Tier 1 (General) category.

The Coalition Government’s overarching aim for UK immigration is to reduce net migration by “selecting the best and brightest.” To help achieve this, UKBA proposes to raise the qualifying thresholds for the Tier 2 category and cap the number of Tier 2 (General) migrants to an annual limit. Moreover, restrictions will extend to the requirements for settlement in the UK to implement the government’s “less automatic settlement” agenda.
UKBA is expected to publish the new Rules and formal guidance shortly.

Proposals for Tier 1 (Highly Skilled)

The final closure of Tier 1 (General) on April 6, 2011, dealt a huge blow to both employers and individuals. After the dubious operational assessment of the category in October 2010, which purported to find that 29% of Tier 1 migrants were in unskilled jobs (the report was based on solely Tier 1 dependents who had been in the UK for six months), UKBA believed it had justification to delete the entire highly skilled migrant category. At least there will be transitional provisions in place for those who will be submitting eleventh-hour Tier 1 (General) applications by post, so that their applications will be assessed in accordance with the Rules in place on the date of application (the date the application is posted).

Under the transitional arrangements, migrants who are not already in Tier 1 (General) or its predecessor category under the highly skilled migrant program will not be permitted to switch into this category beginning on April 6, 2011. The Tier 1 (General) route will remain open to allow those with existing leave to enter or remain under Tier 1 (General) or its predecessor to extend their leave. However, the points threshold for extensions will be raised to 100 points for those who required 100 points when first granted leave.

Proposals for reform of the Tier 1 Entrepreneur and Investor categories have not yet been published but future (skilled) changes are expected to be nominal.

Proposals for Tier 2

 

As the main category for sponsored skilled workers, Tier 2 requires a Certificate of Sponsorship (COS) from the migrant’s licensed sponsor. These will be divided into “Restricted” and “Unrestricted” COS.

Starting April 6, the Restricted COS is capped at an annual limit of 20,700 - 4,200 of which are available for the first month and 1,500 available thereafter. It is proposed that if a monthly limit is undersubscribed, the balance will be added to the allocation for the following month. If the monthly limit is oversubscribed, applications will be prioritized based on a new points table. Much like the old work permit scheme, which ironically the PBS was supposed to displace, sponsors will need to apply to the monthly panel for a Restricted COS each time they wish to sponsor a migrant under Tier 2 (General).

This points system will prioritize occupations on the new shortage occupation list followed by occupations at the Ph.D. level and then occupations meeting the resident labour market test (RLMT). Points will also be awarded for salaries ranging from £20,000-£20,999 with further points for salaries of £100,000 to £149,000. Persons in occupations with salaries of less than £20,000 will be unable to meet the minimum points required.

Unrestricted COS are only available for the Tier 2 categories unaffected by the limit. These fortunate few include intracompany transfers, Tier 2 migrants extending with their original employer or switching to a new employer, migrants switching into Tier 2 (General) from a permitted category, applications under transitional arrangements for existing Tier 2 and work permit holders, positions with a salary over £150,000, and Tier 2 sports people or ministers of religion.

Sponsors will be given an initial annual allocation of Unrestricted COS based on UKBA’s consideration of their allocation requests. These surprisingly generous provisions should enable sponsors to continue employing migrants who are extending their leave with their original employer; switching into Tier 2 (General); or are intracompany transfer migrants, without the need for a salary assessment (as there is for Restricted COS). The consequence will no doubt be a rush of annual allocation requests from sponsors who had been stripped of COS under the previous interim limits. Immigration practitioners are concerned that UKBA may not have provided for this or at least included any mechanism to prioritize urgent requests.

As the new graduate occupation and shortage occupation lists are compiled, some occupations are expected to be dropped from the “skilled” threshold. Positions previously on the shortage occupation list may be removed if they do not meet the new graduate-level criteria. Nevertheless, provided the minimum salary levels are defined clearly and the lists compiled in accordance with Migration Advisory Committee (MAC) recommendations, some positions may be elevated to the new skilled level by virtue of the migrants’ previous experience being equivalent to graduate-level. This will apply to all migrants across the board for both Restricted and Unrestricted COS.

Settlement

Migrants submitting applications for ILR in the UK on or after April 6, 2011, will be affected by the changes to settlement requirements introduced on April 6, 2011. The changes introduced a new income requirement for Tier 1 (General), Tier 2 (General) and work permit holders applying for settlement; amend the Knowledge of Language and Life in the UK requirement for Tier 1 (General), Tier 2 (General) and work permit holders; and clarify the criminality test applied to all applicants for settlement. UKBA’s proposals to tighten settlement requirements bear, on closer inspection, a likeness to the outgoing government’s ideas (published in the “Path to Citizenship” green paper on February 20, 2008) for selecting migrants with “the right values and commitments” who could integrate well into British society. There is one key difference however, as there appears to be no inclination to mimic the “earned citizenship” proposal.