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immigration updates

Welcome to the April 2015 edition of our immigration updates bulletins for New Zealand and the USA. These bulletins will provide you with all the latest immigration updates and developments that you will need if you are considering an overseas move.

New Zealand

Exemption from labour market check in certain circumstances. On February 1, 2015, Immigration New Zealand (INZ) waived the requirement for temporary work visa holders to complete a labour market check when applying for a further work visa (in certain circumstances). In order to benefit from the new labour market check waiver, the applicant must:

  • Hold a temporary work visa
  • Have applied for an Essential Skills work visa to continue working in that role
  • Meet all other requirements of the Essential Skills work visa instructions
  • Have been issued with an invitation to apply under the Skilled Migrant Category (SMC) and retain the ability to apply, or have made an application for residence under the SMC and that application has not yet been completed
  • Have had their Expression of Interest selected in part on the basis of points claimed for skilled employment in the role they currently hold

If the applicant meets all of these conditions, they will not be required to complete a labour market check when applying for their further work visa. This will allow them to be eligible for a further work visa for twelve months. Normally, every application under the Essential Skills work instructions is subject to a labour market test. This test can be met by either:

  • The position being listed on one of INZ’s Essential Skills in Demand lists, or
  • INZ being satisfied that there are no New Zealanders who can do, or be readily trained to do, the job offered and that the employer concerned has genuinely searched for suitably qualified and trained New Zealand workers

This summary was prepared using information obtained from Peregrine Immigration Management.

United States

H-1B cap: Premium processing begins April 27, 2015. The U.S. Citizenship and Immigration Services (USCIS) issued an announcement that it would begin premium processing for H-1B petitions subject to the FY 2016 cap on April 27, 2015. This includes premium processing of petitions seeking an exemption for individuals with a U.S. master’s degree or higher.

Normally, the USCIS provides a premium processing service for certain employment-based petitions and guarantees a 15-calendar-day processing time. The USCIS temporarily adjusted its premium processing practice due to the historic premium processing receipt levels, combined with the possibility that the H-1B cap would be met in the first five business days of the filing season. For H-1B petitions that are not subject to the cap and for any other visa classification, the 15-day processing period for premium processing service begins on the date that USCIS receives the request. However, for cap-subject H-1B petitions, including advanced degree exemption petitions, the 15-day processing period set by 8 CFR 103.7(e)(2) will begin on April 27, 2015, regardless of the date on the Form I-797 receipt notice, which indicates the date that the premium processing fee is received.

L-1B policy memorandum released by USCIS

The United States Citizenship and Immigration Services (USCIS) released a draft L-1B policy memorandum that provides guidance on L-1B adjudications. The draft policy memorandum intends to supersede prior L-1B memos and provide a single consolidated guide with standardized definitions for “specialized knowledge” and “advanced knowledge”, as well as guidance around third-party worksites.

The L-1B policy memorandum outlines a practical approach for officers adjudicating L-1Bs, establishing the “preponderance of evidence” test as the controlling standard of proof for all L-1B petitions. The memorandum also interprets existing statutory and regulatory authorities to promote consistency and compliance with the L-1 Visa Reform Act. The L-1B program was created by Congress so that multinational companies could more effectively transfer their employees with specialised knowledge to their U.S. operations, and enhance their ability to leverage their workforce. The public comment period on the proposed policy statement will close on May 8, 2015. The final policy will take effect on August 31, 2015, and will govern L-1B adjudications after that date.

Disclaimer: The immigration updates above are for general information purposes only and should not be construed as legal advice.

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