I’m here to tell you our top five ways for Americans can immigrate to the United Kingdom.
Number five: Be lucky enough to have a British parent. OK, not everyone falls in this category, we get it. If your mum, or dad is a British citizen, then you may also be eligible for British Citizenship. This means there are no visa regulations. Just apply for a British passport, pack your bag, hop on a plane and come on over. What if you’re parents aren’t from the UK? If you have a parent or even a grandparent from an EEA country you may be entitled to a passport from that country. With an EEA passport you can come to the UK and live just like any other British citizen. Number Four: Come over as a student. The Tier 4 Student Visa allows you to get a college, graduate or a professional degree. You can even use U.S. Stafford loans at most British universities. College and grad school costs less in the UK than in the States. Not just a little less, tens of thousands of dollars less. You can get your undergraduate degree in 3 years and your graduate degree in one year. That’s one less year of college to pay for . Number Three: Walk down the isle. Marry a Brit or European Union Citizen. Yes, if you marry a British person or an EEA Citizen living in the UK, you can apply for a fiancé or spousal visa. With the spousal visa you can come here to work, volunteer, go to university, set up your own business, whatever. What if you’re not ready to get married? There’s also an unmarried partner visa. If your relationship is serious enough this could be the route for you.
Number Two: Be super-skilled. The Tier 2 work visa allows skilled individuals to come to the UK to work. The UK has a skills shortage of certain professions. They even publish a list of these jobs on the Home Office website. An example of few of these professions: Social worker, Classical ballet dancer, Chemical engineer, pediatrician, graphic designer, production manager, 2D/3D Computer animator… the list goes on. If you work in IT or medicine chances are you’re covered Number One. Be an entrepreneur. UK businesses love innovation. Do you have a business or business idea? With a comprehensive business plan and seed funding starting at £50,000 – that’s about 65,000 U.S. Dollars – you can apply for the Tier 1 Entrepreneur Visa. Yes, £50,000 is a lot but here’s the trick: It doesn’t have to be your money. A company, individual or government agency can fund your project for you.
If you need assistance applying for any of these visas our experienced lawyers at Talley and Barrow are here to help. Call us now for a free consultation. You can also find us on Facebook and on the web at talleyandbarrow.co.uk.
As we share in the celebrations for the forthcoming Royal Wedding, here at Talley & Barrow, LLP Immigration Advisors, we’ve cast a professional eye over Meghan Markle’s immigration options, and why we think she may have already violated the terms of her visa.
Meghan Markle’s Canadian residency: will it make a difference to her U.K. immigration options?
For the past seven years, Meghan Markle has made Toronto, Canada her home; which is not entirely surprising as her legal drama series, ‘Suits’, is filmed in that country. A non-Canadian individual who resides in Canada for at least five years may apply for permanent residency there. Whether Ms. Markle did in fact apply and was granted a permanent residency remains unknown.
As Canada is a Commonwealth country, under Schedule 3 of the British Nationality Act 1981, all Canadian citizens are Commonwealth citizens (as is the case for the other 51 Commonwealth countries). If Ms. Markle had been granted a permanent residency she would have then been able to apply for Canadian citizenship and consequently become a Commonwealth citizen.
The U.K. boasts special immigration options for Commonwealth citizens:
Right of abode in the U.K. – a right of abode allows any Commonwealth citizen to freely enter and live in the U.K. without any immigration restrictions either because of their parents or because they are or were married to someone with right of abode.
Parents – one of the parents of a Commonwealth citizen was born in the U.K. and a citizen of the U.K. and colonies when the Commonwealth citizen was born; the individual became a Commonwealth citizen on 31st December 1982; and the individual did not stop becoming a Commonwealth citizen at any point after 31st December 1982[i].
Marriage – a female Commonwealth citizen can get a right of abode through marriage, in which she must have married an individual with right of abode before 1st January 1983, and not have stopped being a Commonwealth citizen at any point after 31st December 1982[ii].
U.K. Ancestry visa – a Commonwealth citizen can to come the U.K. for up to five years, with the possibility to settle permanently in the U.K. after five years, if they can show that at least one of their grandparents was born in the U.K.[iii]”. The Commonwealth citizen must be aged 17 or over, be able and intend to work in the U.K., and support themselves and their dependents without help from public funds[iv].
How does this apply to Meghan Markle? Without any debate, Meghan Markle will not be eligible for either of the additional immigration options, even if she had a permanent residency in Canada. It is believed that neither of her parents were born in the U.K. Her mother is of African-American descent and her father has Dutch-Irish ancestors and she is therefore unable to claim right of abode through her parents. Demonstrably claiming right of abode through marriage is impossible. Despite her alleged British roots (in which her great-great grandmother was “born in England”) Ms. Markle still does not meet the eligibility requirement under the U.K. Ancestry visa.
Can Meghan Markle qualify for a Tier 1 Visa?
The Tier 1 visas are for non- European Economic Area “entrepreneurs and investors with significant business funds available to set up or invest in a U.K. business, university graduates with a business plan which has been endorsed by an appropriate organisation, and the very few people who are internationally recognised as an exceptional talent in their field”[v].
Tier 1 (Entrepreneur) visa – for individuals who want to set up or take over a business in the U.K., with at least £50,000 investment funds. In practice without funds of at least £200,000 many individuals will find it difficult to apply for this visa[vi]. An individual is permitted to come to the U.K. for a maximum of three years and four months. During this initial three year period, they will be required to establish a business in the U.K., invest the full £50,000 or £200,000 and create a least two full time jobs for workers settled and presently residing in the U.K. for at least 12 months[vii]. An extension of a further two years is allowed and, after a total period of five years in the U.K., the individual may be able to apply for indefinite leave to remain[viii].
Tier 1 (Investor) visa – for high net individuals who will make a substantial financial investment in the U.K. A significant investment of a minimum of £2 million is required. The individual must show that they are holding funds of £2 million or above, under their own unrestricted control and in a regulated financial institution. If the individual is not holding funds in pounds sterling, the funds must be convertible to £2 million or above. An investment can only be made in “U.K. government bonds, share capital or loan capital in active and trading U.K. registered companies”[ix]. With this visa an individual can stay in the U.K. for a maximum of three years and four months and an extension of an additional of two years is allowed if the individual meets the further requirements. By increasing the amount of the investment, “the route to permanent residency can be accelerated”[x]. An investment of £5 million or more will earn the individual permanent residency after three years and an investment of £10 million or more will earn the individual permanent residency after two years[xi].
Tier 1 (Exceptional Talent) visa – this route is for “exceptionally talented individuals in the fields of science, humanities, engineering, the arts and technology, who wish to work in the U.K. These individuals are those who are already internationally recognised at the highest level as world leaders in their particular field, or who have demonstrated exceptional promise and are likely to become world leaders or globally recognised in their field of expertise”[xii]. An endorsement is required from either of the following: Tech City U.K., Arts Council England, The British Academy, The Royal Society and The Royal Academy of Engineering[xiii]. This visa is “subject to a limit of 1,000 endorsements in total per year”[xiv]. The individual must go through a two-stage application process; the first stage being the application for the endorsement, and the second stage being the visa application itself. Permanent residency in the U.K. may be applied for after a period of five years.
Tier 1 (Graduate Entrepreneur) visa – for graduates who have been officially “endorsed as having a genuine and credible business idea”[xv]. An endorsement is required from either the Department for International Trade (DIT) as part of the elite global graduate entrepreneur programme or a U.K. higher education institution if it is an authorised endorsing body[xvi]. The time period for both endorsements are different, a graduate should get a decision on their visa under a DIT endorsement within 3 weeks, whereas under the U.K. higher education institution a graduate can expect to wait within eight weeks to receive a decision. Under this visa, a graduate is permitted to stay in the U.K. for up to one year, and thereafter may apply for an extension for a further year only.
How does this apply to Meghan Markle? From the above, both the Tier 1 (Entrepreneur) visa and Tier 1 (Investor) visa seem to be within the Ms Markle’s reach in gaining entrance to the U.K.
In terms of the Tier 1 (Investor) visa, our future Royal is believed to have made more than $50,000 per episode on Suits, with her annual salary being around $450,000, which includes around $80,000 worth of annual sponsorship and endorsements income. It is further believed that Ms. Markle was paid $187,000 and $171,429 for appearing in two films both released in 2010. Her overall net worth is $5 million[xvii]. Based on this, assuming that she opens a U.K. bank account, it will not be difficult for the future Princess to deposit at least £2 million in a regulated financial institution. It is not a necessary requirement that the money has to be physically in the U.K. when she submits her application, the money may be held overseas.[xviii]
It also seems Meghan Markle has an entrepreneurial flair, since away from the camera “she is a fashion designer and the founder of a lifestyle website and brand called ‘The Tig’”[xix]. Finances will not be a problem, but as long as Ms. Markle can produce a well thought-out business plan which will survive intense scrutiny from the Home Office, she will be good to go. Or, more accurately, to stay.
Can Meghan Markle qualify for a Tier 2 Visa?
The Tier 2 visa is the route for non-European Economic Area individuals who wish to work in the U.K. A company or organisation that holds a Tier 2 licence must sponsor these individuals. “A licence is a permission given to a company or organisation to sponsor workers in its business”[xx].
When sponsoring a foreign worker for a role in the U.K. under the Tier 2 category, the employer must show that they have ‘tested’ the U.K. labour market in finding a suitable worker who is already settled and present in the U.K., otherwise known as the Resident Labour Market Test. The test obliges an employer to advertise a job vacancy to settled workers for 28 days before extending the job opening to migrant workers.
The Tier 2 visa consists of various categories:
Tier 2 (General) – for skilled foreign workers who have a job offer by a U.K. employer. The foreign worker will be required to have a certificate of sponsorship from a U.K. employer. The visa permits the foreign worker to stay in the U.K. for five years and 14 months, after which permanent residency may be applied for.
Tier 2 (Intra-Company Transfer) – for foreign workers working for multinational companies who are going to be transferred to a U.K. branch. The foreign worker will be required to have a certificate of sponsorship. This visa is split into three categories: long-term staff (this visa is for transfers of more than 12 months); short-term staff (this visa is for transfers up to and including 12 months); and graduate trainee (this visa is for transfers into graduate trainee programmes for specialist roles). The length of stay in the U.K. is different for each visa type. Long-term staff that earn less than £120,000 are permitted to stay in the U.K. for five years and one month, whereas those earning over £120,000 are permitted a nine year stay. Short-term staff and graduate trainees both have a 12-month permitted stay. The foreign worker can either stay up to the permitted time period stated above or else for that time which is specified in the certificate of sponsorship, whichever is the shorter[xxi].
Tier 2 (Minister of Religion) – for individuals who have been offered a job in the faith community. The foreign individual will be required to have a certificate of sponsorship. The individual can come to the U.K. with this visa for a maximum of up to three years and one month, or the time specified on the certificate of sponsorship, whichever is the shorter[xxii].
Tier 2 (Sportsperson) – for internationally recognised sports people and coaches. A certificate of sponsorship is also required. The individual can stay in the U.K. for up to three years, and then apply for an extension of another three years up to a maximum stay of six years[xxiii].
How does this apply to Meghan Markle? When Meghan Markle marries Prince Harry, against common belief, she will not become a Princess in her own right, but the Princess Henry of Wales and more commonly the Duchess of Sussex. Being a Princess is a ‘job’. On Princess Charlotte’s birth certificate, which went viral over the internet, we noted that Kate Middleton stated her occupation as the ‘Princess of England and Wales’.
It is thus likely that Meghan Markle will be able to qualify under a Tier 2 visa, as she will be entering the U.K. to work. In order for the Royal family to carry out their Royal duties, the Royal family is issued a Sovereign Grant which are funds from the U.K. taxpayer given over to the Queen in order for the Royal family to fund their official duties[xxiv].
Based on the requirements of the Tier 2 visa, Prince Harry should have performed a Resident Labour Market Test and searched for a suitable individual to perform the role of a Princess within the U.K. before extending his search overseas. Prince Harry would have been required to advertise the role for a period of 28 days on an approved recruitment platform with a detailed description of the role. Any individual with suitable skills who had applied for the role must be interviewed by the Prince, and if such an individual was not found, Prince Harry would have been allowed to extend his search overseas.
Was Meghan Markle ‘working illegally’ by carrying out a Royal engagement?
After the news of the engagement of Prince Harry and Meghan Markle broke worldwide, the couple carried out their first official public engagement, in Nottingham.
Now, without evidence of the type of visa used by Meghan Markle in order to enter the U.K., we must assume that “she does not currently have any type of leave in the U.K. beyond the Standard Visit visa granted to her on arrival at a U.K. airport. A Standard Visit visa can be issued to American citizens without applying at an embassy for permission to do so”[xxv].
Under the Standard Visitor visa in the U.K. (which permits a foreigner to visit the U.K. for leisure, for business or for another reason) individuals are not permitted to conduct paid or unpaid work. However, under Immigration Rules Appendix V, 5A, are listed certain allowed business activities, such as attending meetings, conferences, seminars and interviews, giving one-off or short talks and speeches for non-commercial events, attending trade fairs and negotiating and signing deals and contracts.
How does this apply to Meghan Markle? The future Princess has undertaken her “first official Royal engagement”[xxvi] in Nottingham: a Royal walkabout. She was seen “meeting the crowds in Nottingham with Prince Harry”[xxvii] and then attending the “Worlds Aid Day charity before heading off to the Nottingham Academy”[xxviii]. As this was Ms. Markle’s first role in her future career which does not come under the permitted business activities under the Immigration Rules Appendix V, 54, it seems that she was working illegally. However, it is extremely unlikely that a breach of the conditions of the visa will cause an adverse effect on Ms Markle’s immigration record. So, Ms. Markle, you are safe!
The advantages of coming to the U.K. on a Fiancée Visa in comparison to a Spousal Visa?
The Fiancée visa enables an individual “who has ‘settled status’ in the U.K. to bring their fiancé to join them in the U.K. Settled status means that the individual is ordinarily from the U.K. and has no immigration restrictions on the length of their stay”[xxix]. This visa is also referred to as the “prospective marriage visa”[xxx].
The Spousal visa, also referred to as the ‘marriage visa’, “allows married partners of U.K. citizens to immigrate to the U.K. because they are married to an individual who has settled status in the U.K.”[xxxi].
Whilst both visas are quite similar in terms of the requirements, there are some practical advantages of coming into the U.K. on a Fiancée instead of a Spousal visa.
Time period for getting married – under a spousal visa both partners must be married before they can apply for the visa, whereas, under the fiancé visa a serious intention of getting married within 6 months in the U.K. is required. For some couples who are eager to settle in the U.K. may feel the need to ‘rush’ their wedding but under a Fiancée visa some time to prepare the wedding is given.
Easier marriage – “getting married in the U.K. is often easier and less bureaucratic than abroad”[xxxii]. British citizens who get married abroad “need more paperwork (non-visa related, such as, a legalized birth certificate) to get married in another country than foreign nationals getting married in the U.K.”[xxxiii].
U.K. issued marriage certificate – a very significant advantage is the “U.K. issued marriage certificate in the English language. If the couple once married are planning their future life together mostly in the U.K., their life may be much easier with the U.K. marriage certificate when dealing with organisations, such as, the NHS and the banks[xxxiv].
Separate ways – as a newlywed couple, separating and living in another country from your partner may seem like a nightmare for many. The Spousal visa requires both partners to get married then go your separate ways and live in a different country to your spouse when the foreign spouse applies for the visa[xxxv]. Under the Fiancée visa this is not required.
Easier application process for when applying for the spousal visa – when applying for a Spousal visa, as part of the application process, the foreign spouse will be required to answer questions about their British spouse, such as their finances and employment. If the British spouse is in the U.K. when the foreign spouse is completing the form, there may arise some difficulties in completing the questions which are about the British spouse. Under the Fiancée visa, this is not a problem as both partners are very likely to be in the U.K. together, and therefore the questions about the British spouse can be answered swiftly.
Legally, could the Home Secretary give Meghan Markle a visa or citizenship without going through the usual steps?
No, the Home Secretary of the United Kingdom is not allowed to give Ms. Markle a visa or citizenship without her going through the steps required of any non-EEA national to complete. More specifically, in the case of the citizenship, the Home Office will consider the naturalization of a foreigner only in the case that a set of statutory requirements has been fulfilled and Ms. Markle cannot constitute an exception to this rule. The only thing that the Home Secretary is allowed to do in order to facilitate the naturalization process, is to permit for some of the requirements not to be fully satisfied. For example, in order for a U.S. citizen to qualify for the British nationality, he or she must fulfil the criteria laid down in Section Six of the British Nationality Act 1981.
Namely the applicant must be older than 18 years old; of sound mind; able to communicate effectively in English; of good character; have a good knowledge of the life in the U.K. and have lived, in case she is married to a British citizen, in the U.K. for a minimum of three years, before applying, or for a minimum of five years in case of no marriage or civil partnership. As is understandable from the time restraints in the British Nationality Act, there is no way that Ms. Markle may be granted the British nationality before her marriage to Prince Harry next May and before being a U.K. resident for three years after that. However, Ms. Markle will not be required to prove that she is able to communicate in English effectively since she is a U.S. citizen and thus automatically exempted from this requirement.
In addition, she may also not have to prove that she is of sound mind and good character because these requirements can also be certified through her public lifestyle. Furthermore, regarding the visa, the Home Secretary does not have to skip the usual steps, as Ms. Markle is entitled to apply for entry clearance as a fiancée. This is valid for six months and will allow her to remain in the U.K. after the marriage as the spouse of a British national. Or she may obtain a special visitor visa for marriage which is also valid for six months and will allow her to move to the U.K. if, following the marriage, an entry clearance application as the spouse of a British national is approved by the U.S. authorities. We’ve seen there are plenty of alternatives for Ms. Markle to obtain a visa or citizenship. There is no need – legally speaking – for the Home Secretary to offer her different treatment from any other citizen seeking the same thing.
Legally, could the Queen give Ms. Markle a visa or citizenship? Or could she request this of the British parliament?
Legally one of the powers of the Queen is to “control passports”. That is, the issuing and withdrawal of the British passport fall within the Royal Prerogative and all British passports are issued in the Queen’s name. Even though theoretically this power allows the Queen to grant British citizenship to whomever she wants, in practice she will not act in such a way. Instead the Ministers of the Crown (in this case the Home Secretary) will exercise the power of controlling passports on her behalf, applying the requirements laid down in the relevant Acts that regulate the area.
Regarding the second scale of the question, of whether the Queen can request from the Parliament to grant Ms. Markle a visa or citizenship, theoretically speaking she can do so by exercising her political right to create secondary legislation. More specifically, the Queen when it comes to issues related to the Crown, has the power to create either Orders in Council and Letters Patent. While the first type of these legislature instruments is mainly used by the Ministers, the second one seems quite appropriate to be used in the case of a royal wedding. However, we should keep in mind that the Queen’s powers, including the political ones as these, have been ceremonial for many years now and most of them are being used either by the Prime Minister or the Cabinet Ministers on her behalf. In addition, the fact the United Kingdom has attracted a significant pool of immigrants from non-EEA countries struggling to extend their rights to become permanent residents or obtain the British citizenship, may discourage, the usually politically neutral Queen, to issue a Letter Patent that may imply a type of discrimination originating by the Head of State and potentially cause a constitutional crisis.
Could an Act of Parliament give Ms. Markle a visa or citizenship?
The purpose of an Act of Parliament is to either to create a new law or to change an existing one. These Acts, as the word itself indicates, are the product of the Parliament which consists of the Queen, the House of Commons and the House of Lords. Each Parliament is free to vote on any type of Act that wishes without being bound by the previous Parliaments and without binding the future ones. So, in the case of Ms. Markle, the Parliament, based on its supremacy has theoretically the power to create an Act that will grant her a visa or a citizenship. Given the political consequences that such an Act most probably will cause, the Parliament has to introduce it in a way that will change the existing immigration law and will apply to the all non-EEA immigrants wishing to get a visa or the British citizenship as Ms. Markle. The most practical way of such an Act to be realized, is through the introduction of a Public Bill which constitutes the most common type of Bill and applied to the general population rather than to specific individuals.
As in the case of the Queen, the Parliament even though it is legally permitted to pass an Act that will favour and promote just Ms. Markle’s immigration issue, the potential political and social consequences would likely prevent such a Bill from being introduced. Even if it were, it’s unlikely that it would actually become an Act of Parliament since this would set a precedent for ‘discriminatory treatment’ of the Royal family and could lead to a constitutional crisis.
How long might it take Ms. Markle to achieve citizenship if she follows the normal procedure?
As we’ve seen, Ms. Markle will have to marry Prince Harry first in order that she may apply for British citizenship under the normal procedure. Following the marriage, Ms. Markle will be able to continue residing in the U.K. as the spouse of a British national for at least three years before she need apply for British citizenship. It should be noted that, even though Ms. Markle may be exempted from some of the application requirements, she will still have to sit the test that will measure her knowledge of ‘life in the United Kingdom’. Moreover, after the application has been submitted, it will take approximately three months for it to be processed and for a response to be issued. Thus, in order to achieve citizenship, Ms. Markle may well have to wait for at least three years.
Will Ms. Markle have to give up her American citizenship?
No, according to both the U.K. and the U.S. legal systems, Ms. Markle will be able to keep her American citizenship in addition to the British one. More specifically, the U.K. allows its citizens to have dual citizenship, by enabling them to keep their other nationalities in addition to the British one. The sane rule exactly is applicable in the U.S. So Ms. Markle’s issue of retaining both nationalities is covered and permitted by both legal systems.
Do you need a U.K. Visa? Talley & Barrow specialise in all aspects U.K. visas and immigration with a strong emphasis on Spousal visas. Call today for your free consultation +44 (0)2078594274 or email [email protected].
[xvii]Sam Dangermond, ‘How Much Is Meghan Markle’s Net Worth?’, (Town&Country, 27th November 2017), <http://www.townandcountrymag.com/society/money-and-power/a13085480/meghan-markle-net-worth/>, accessed: 10th September 2017
[xx] ICL Legal, Guide on how to apply for a Tier 2 or 5 sponsor licence and how to sponsor a migrant worker’ (6th June 2017), < http://sponsor-license.icslegal.com/guide-on-how-to-apply-for-a-tier-2-or-5-sponsor-licence-and-how-to-sponsor-a-migrant-worker/> , accessed: 10th September 2017
Comparisons between the UK’s Tier 2 visa and the USA’s H-1B visa.
With the UK being the top destination for foreign workers and the USA being a popular destination for IT outsourcing companies, it is no surprise that hundreds and thousands of applications are submitted for the UK’s Tier 2 visa and the USA’s H-1B visa every year.
The Tier 2 visa and the H-1B visa are work visas, which permit foreign workers to gain temporary employment, and both are highly sought.
The Tier 2 visa and the H1-B visa both consist of different visa categories for which a foreign worker can submit an application under.
Under the Tier 2 visa there are four categories: Tier 2 (General), Tier 2 (Intra-Company Transfer), Tier 2 (Sportsperson) and Tier 2 (Minister of Religion).
Whereas, only three categories exist under the H1-B visa: H1-B Speciality Occupations, H-1B2 Department of Defence Researcher and Development Project Worker, and H-1B3 Fashion Model.
The Tier 2 (General) category is open for any job position that was unable to be filled by a settled worker in the UK, the Tier 2 (Intra-Company Transfer) category are for “employees of multi-national companies, transferring between offices”[i], the Tier 2 (Sportsperson) category are for international coaches and sportspersons[ii], and the Tier 2 (Minister of Religion) category is applicable for those “who perform pastoral duties in recognised religions”[iii].
In terms of the categories within the H-1B visa category, the H-1B Speciality Occupations category is open for any position which requires a bachelor’s or master’s degree, the H-1B2 Department of Defence is specifically aimed for foreign workers who will be working on a cooperative research and development project or a co-production under a government-to-government agreement administered by the Department of Defence[iv], and the H-1B3 Fashion Model category is solely for fashion models.
Both visas require a different level of skill. The Tier 2 visa generally requires a ‘skilled’ foreign worker without further elaboration, with the exception under the Tier 2 (Sportsperson) visa which requires international recognition. The H-1B visa can be viewed as requiring a slightly higher level of skill. According to the Code of Federal Regulation, alongside a bachelor’s or master’s degree a speciality occupation requires “theoretical and practical application of a highly-specialised body of knowledge’[v]. The H-1B visa additionally requires ‘exceptional merit and ability’[vi] relating to the Department of Defence cooperative research and development project and ‘distinguished merit or ability’[vii] for the services of fashion modelling.
A possible reason for the differing skill level is that the H-1B visa is extremely popular within the IT, engineering, medical and science sector, which all require highly specialised skill and knowledge.
There is a substantial difference in the numerical limit of how many applications can be submitted yearly. Under the Tier 2 visa the limit is fixed to 20,700 whereas the H-1B visa consists of two caps with the total of both fixed to 85,000. The H-1B cap for applicants who have a bachelor’s degree is 65,000 and the H-1B cap for applicants who have a master’s degree is 20,000. “For the fifth consecutive year, the US Citizenship and Immigration Services reached the mandated 85,000 H-1B visa cap for fiscal year 2018 within 5 days of the pipeline opening”[viii]. Regarding, the Tier 2 visa, in 2016 there were 56,058 Tier 2 skilled work sponsored visa applications and 56,012 applications in 2015[ix].
In deciding which applications to approve, there is a stark difference. Whilst visa applications under the Tier 2 category are assessed, the H-1B visa is described as the ‘lottery visa’ as applications are approved on a total random basis and therefore not taking any thorough consideration into the actual skill and credentials of the foreign worker. This has been criticised by President Donald Trump, as only “the most-skilled and highest-paid applicants”[x] should be considered. The “Labor Department data shows that about 40 percent of the visas go to entry-level workers and another 40 percent go to people with limited experience and skills”[xi].
Resident Labour Market Test
A critical difference between both of the visas is that the H-1B visa does not require the employer to source for a suitable US employee before offering a role to a foreign worker. Under the Tier 2 visa UK employers are obligated to advertise a job position within the UK to find a suitable settled worker with the relevant skills and experience before extending the advertisement to foreign workers, unless an exemption applies which the UK employer can prove. This is known as the Resident Labour Market Test (UK employers must prove that a suitable settled worker in the UK is unavailable for the position they are seeking to assign to a foreign worker under the Tier 2 visa) which aims to protect the settled workforce by encouraging UK employers to train settled individuals in the UK. Whether the absence of a Resident Labour Market Test in the USA has a significant impact is a question to consider. Research conducted by The National Academies of Sciences, Engineering and Medicine in which the report assembled 14 leading economists, demographers and scholars who found little to no negative effects on overall wages and employment in the US of native-born workers in the longer term[xii]. However, as the USA is the prevailing destination for IT professionals, foreign workers with the H-1B visa have displaced many American technology workers from their jobs in recent years[xiii].
Under the Tier 2 visa the minimum salary threshold is £30,000 for skilled workers and £41,500 for multinational companies who are transferring a foreign worker into their UK branch. In comparison to the H-1B visa, the Department of Labour has an input in the salary threshold. The US employer is required to pay the higher wage out of the either the actual wage paid by the employer to workers with similar skills and qualifications, or the prevailing wage which is the “average wage paid to the similarly employed workers”.[xiv]
Immigration Skills Charge
Due to recent reforms to the Tier 2 visa an Immigration Skills Charge has been implemented which requires UK employers to pay a charge for hiring a foreign workers in skilled areas. The charge is £1,000 per foreign worker for every year they are employed, and a reduced rate of £364 per foreign worker for smaller companies and charities. The Migration Advisory Committee strongly supported the introduction of an Immigration Skills Charge to incentivise employers to reduce their reliance on migrant workers and to invest in training and upskilling UK workers[xv].
The H-1B visa does not include an Immigration Skills Charge. US employers are not obligated to pay any charge for the foreign workers they employ.
Labour Condition Application
US employers are required to make attestations in the form of a Labour Condition Application, which is not entirely required for UK employers. The application requires the employer to attest that certain labour requirements will be complied with: the foreign worker will be paid “no less than the wage paid to similarly qualified workers or, if greater, the prevailing wage”[xvi], “the employer will provide working conditions that will not adversely affect similarly employed workers”[xvii], “there is not a strike or lockout at the employer’s place of business”[xviii], and notice of the filing of the Labour Condition Application has been given[xix].
Fraud and abuse
A significant difference between both visas is the level of fraud and abuse of the visa programme. Whilst it does not appear that UK employers have used the Tier 2 visa programme for fraud, abuse or exploitation of foreign workers, however, little of this can be said for the H-1B visa.
A notorious case demonstrating this emerged in 2015 when “American IT employees at the Walt Disney Company were made to train their foreign replacements, who were hired on H-1B visas, before getting laid off”[xx]. Additionally, about “80% of H-1B workers are paid less than the median wage in their fields”[xxi] demonstrating that the H-1B visa has opened a doorway for cheap labour to replace American workers. This can be further shown by the exemption under the visa that allows US employers “to ignore the requirement about protecting American jobs as long as they pay foreign workers at least $60,000 a year, or hire a foreign worker with a master’s degree”[xxii]. Considering the average IT worker in the US earns far more than $60,000, the exemption makes it legal for US companies to displace American workers with cheaper H-1B workers[xxiii], which in turn exploits foreign workers.
President Donald Trump’s executive order to revamp the H-1B visa programme, calls on government departments “to take prompt action to crack down on fraud and abuse”[xxiv]. The US Citizenship and Immigration Services have now stated that they will take a more targeted approach when making site visits to the worksites of H-1B employees and determine whether H-1B employers are evading their obligation to make a good faith effort to recruit US workers[xxv]. It is said, “employers who abuse the H-1B visa programme negatively affect US workers, decreasing wages and job opportunities as they import foreign workers”[xxvi].
For a foreign worker to gain employment under either of the visas, an employer must sponsor the foreign worker. Under the Tier 2 visa, the foreign worker must have a valid Certificate of Sponsorship from an employer with a Tier 2 Sponsorship licence, and under the H-1B visa an employer must offer a job and petition for the foreign worker to have a H-1B visa.
Protecting the settled workforce
Giving priority and fair consideration to the settled workforce over foreign workers has been a clear requirement under both visas, despite the fact that the implementation method of this requirement is not the same. As already mentioned above, under the Tier 2 visa a Resident Labour Market Test, however, under the H-1B visa programme, US employers have an obligation only to act in good faith to recruit US workers. Whilst the UK government has advocated its encouragement for UK employers to train settled individuals in the UK instead of relying on foreign workers, President Donald Trump, who campaigned on an ‘American First’ ideology, required US companies to prioritise American job applicants – “no exception”[xxvii].
With the above similarity, it is arguable whether the requirement to protect the settled workforce is actually portrayed in reality. Although under the Tier 2 visa employers are required to test the labour market, “the test is based on attestation”[xxviii]; employers simply have to state that they have carried out the Resident Labour Market Test and were unable to find any suitable settled worker[xxix]. Few or no routine checks are made about the validity of this statement before the foreign worker is admitted[xxx]. Almost all of the enforcement of the Resident Labour Market Test occurs after the foreign worker has been admitted[xxxi]. Similarly, under the H-1B visa “enforcement appears to be very low”[xxxii] which in turn has resulted to fraud and abuse of the H-1B visa programme.
Both the Tier 2 visa and the H-1B visa explicitly require foreign workers to have a sound educational background, the minimum of a bachelor’s degree. Combining the level of skill both visas require it is not surprising that a degree is needed. However, under the H-1B visa a master’s degree may also be required and the bachelor’s degree or master’s degree must be directly related to the H-1B position, a requirement which is not asked for under the Tier 2 visa.
A dependent spouse and children are permitted to reside with the foreign worker under both visas, however, there are some differences.
Under the H-1B visa the foreign worker’s spouse and unmarried children under the age of 21 “may seek admission in the H-4 nonimmigrant classification”[xxxiii] and the dependent spouse can also seek employment by submitting Form I-765 for Employment Authorisation, “as long as the foreign worker has started the process of seeking employment-based lawful permanent residence status”[xxxiv].
Under the Tier 2 visa, the foreign worker’s spouse is also permitted to enter the UK along with any children who are under the age of 18[xxxv]. The foreign worker is required to show that the dependants can be supported whilst they are in the UK. Dependants must have £630 available to them regardless of whether they apply to stay with the foreign worker together or separately[xxxvi]. This is in addition to the £945 which the foreign worker must show that they have as evidence that they can support themselves[xxxvii] (a requirement which is not sought for under the H-1B visa).
Both visas permit the foreign employee to apply for permanent residency. A foreign employee under the H-1B visa, after having stayed and worked in the US for a period of 6 years, the foreign worker can either return back to their native country or apply for permanent residency, which is also known as the Green Card, and begin the H-1B to the Green Card process[xxxviii]. Only the sponsoring employer can petition for an employee to change from the H-1B status to the Green Card status[xxxix]. A more restricted approach is taken under the Tier 2 visa, in which a foreign worker earning £35,000 or more is able to qualify for permanent residence under the Tier 2 (General), Tier 2 (Sportsperson) and Tier 2 (Ministry of Religion) visas. The UK Prime Minister Theresa May defended this requirement as a way to help reduce the number of non-EU nationals and their dependents that are granted residence each year from 60,000 to 20,000[xl].
[xl] Daniel Waldron and Sanwar Ali, ‘UK Tier 2 Visa Immigrants must earn £35,000 to settle from April 2016’, (Work Permit, 7th July 2015), <http://workpermit.com/news/uk-tier-2-visa-immigrants-must-earn-£35000-settle-april-2016-20150707>, accessed: 2nd December 2017
The Muslim Ban constitutes an order which prohibits, the citizens of seven Muslim majority countries, from entering the United States for a period of 90 days. The seven countries banned include, Syria, Iraq, Iran, Yemen, Sudan, Somalia and Libya. It should be noted that the ban extends to the holders of dual nationality while at the same time diplomats from these counties are exempt. When the Muslin ban came into existence, there was the impression for a while that it also applied to the green card holders. However, it soon became clear that the lawful permanent residents from the effected seven countries would also not be included in the ban.
How did it come to place?
While President Trump was still a candidate, one of his main campaign promises was a “total and complete shutdown of Muslims entering the United States until our countries representatives can figure out what is going on’. On January 27th, 2016, only seven days following his inauguration, President Trump issued the Executive Order 13769, “Protecting the Nation from Foreign Terrorist Entry into the United States”.
According to the executive order, the reason for its creation is the responsibility of the President to protect the American people from the terrorist attacks originating by foreign nationals who are admitted to the United States. So, the latter, must effective immediately ban all those who oppose the American constitution and support violent ideologies that may result in acts of bigotry or hatred against the Americans. In order, for this aim to be utilized, the government officials ought to review “the information needed from any country to issue any visa or admission” and ensure that individual is both who he claims to be and that he is not posing a threat for the public security. Within 30 days, from the issue of the executive order, the government officials must present the result of their review to the President as well as to the Secretary of State and the Director of National Intelligence.
It is at this point exactly that Muslim ban comes in to play since it constitutes a measure that will be effective until the review is completed and whose purpose is to ensure that the American people are protected from any possible terrorist attacks in the meantime. It is worth mentioning, at this point, that while the content of the executive order is quite strict and clear regarding to what it is envisioned, the seven Muslim-majority countries upon which the order applies are not mentioned explicitly. Instead, section 217(a) (12) of the Immigration and Nationality Act and 8 United States Code section1187(a) (12) on visa waiver program for certain visitors, are used as reference on whose countries’ nationals are temporarily banned from entering the U.S. By not mentioning explicitly, the seven Muslim majority countries, the executive order tries to avoid any potential legal problems, by identifying itself more with the national security than the religion of the nationals banned.
Relevant court rulings so far
As it understandable, as soon as the executive order was issued in January, numerous of reactions took place, with the cases filled in the federal courts reaching the 50. Most of the court rulings regarding the Muslim ban, granted a nationwide temporary restraining order which constitutes a type of temporary relief and prohibits significant part of the executive order to come into force.
More specifically, the temporary restraining order explicitly forbids the executive branch from taking any actions that will enforce the parts of the executive order regarding the ban upon the citizens of the seven countries to enter the United States and that will limit the acceptance of refugees by prioritizing religious minorities. One of the most characteristic court rulings regarding the Muslim ban has been that of Judge Watson of the United States District Court in Honolulu, in State of Hawaii and Ismail Elshikh v. Donald Trump. While Judge Watson issued, like many other judges, a temporary restraining order blocking the travel ban of the administration, it is the harsh language used in the ruling that made it go viral. He mentioned, among other things, that “the notion that one can demonstrate animus towards any group of people only by targeting all of them at one is fundamentally flawed”. At the same time, Judge Watson emphasized that despite of the latest claims of the administration that the purpose of the order is not to ban entrance based on religion, the statements of President Trump during his campaign regarding this issue combined with the fact that all seven countries banned consist of a 90%-95% Muslim population, have as a result for anyone to conclude that the “purpose of the executive order is at the very least secondary to a religious objective”.
Last September, however, the Supreme Court while reviewing the constitutionality of the executive order, decided to temporarily remove any restriction upon the travel ban issued by the administration with only a few people exempted. This ruling prevented, more 20,000 refugees who had obtained promises from refugee-related organizations, from entering the country until the final decision was taken in October. Such a decision was never actually reached, in the meantime, President Trump replaced the then-travel ban version with a new one. The new policy had as a result for the Supreme Court to dismiss the cases in front of it and avoid ruling upon their legality, at least for the time being.
Could Theresa May implement something similar?
In case that the United Kingdom wanted to implement a similar travel ban, the situation would turn to be a bit more complicated than that in the United States. Despite the technicalities of just a decision, the one thing that can be said with certainty is that Theresa May cannot, by any means, implement something similar all by herself. More specifically, the U.K is a parliamentary system with the House of Commons and the House of Lords deciding, through voting, on the passage of the bills and the monarch giving the royal assent at the final stage. Theresa May, as the Prime Minister, is part of both the legislative and the executive branch of the government and while she can start a bill by proposing a such a law, it is upon the majority of the Houses-and particularly of the House of Commons- whether that will be realized. A Bill starting in the House of Commons has to go through 3 readings, a committee stage and a reporting stage in both Houses as well as a consideration of amendments before the royal assent.
Even in the case, that such a Bill managed to secure the majority of both Houses and became law, it is very possible that it would meet the opposition of the Supreme Court and intense social unrest, especially if we take under consideration the significance of the Muslim community in the U.K. In any case, as long as, the United Kingdom is still a member of the European Union, which enjoys supremacy upon all its Member States, and the European Union Act is in place, the creation of such a rule is practically impossible.
Differences in the U.K and the U.S law that would prevent (or enable) this
The most fundamental difference between the U.K and the U.S law is that they constitute different political systems. More specifically, the latter is a presidential system where the President is elected by the people through the Electoral College while the U.K is, as it was already mentioned, a parliamentary system with the Prime Minister staying in office for as long as the political party to which he or she belongs constitutes the majority in the House of Commons. The fact that the U.S is based on such a system, applies on the case of the travel ban, means that the American President has more powers vested on him that the Prime Minister of U.K.
More specifically, the President is the commander in chief of the country and can issue executive orders which are mainly directives addressing the organs of the Federal Government and deriving their legal authority from the constitution or other statutes. While this may give the impression that the President is unstoppable in passing any kind of law that he wishes to, the “check and balances” system is limits his powers in a significant way. Any kind of law or order that seems to contradict the cornerstone of the U.S- the constitution- will be extremely difficult or impossible to be considered legally binding by the Supreme Court and the same time the Congress makes it particularly difficult for legislation to pass.
The Prime Minister of the United Kingdom, on the other side, while in theory, can also reach similar decisions, since the passage of Bills requires a simple majority of the seats in Parliament, in practice such a procedure is quite lengthy and will most probably encounter numerous obstacles and oppositions, with the most prominent one being that of the European Union. So, while it seems that in the U.S system the travel ban could be passed faster through an executive order and that in the U.K system while it may take a bit longer, it is a certainty that such a prohibition can be utilized as long as the political party constituting the Parliamentary majority can decide upon anything, the reality is quite different. The system of checks and balances allows the other branches to ensure that the executive is acting according to both the constitution and the rule of law. Finally, the fact that states are also Members of international treaties has an effect as well on how easy it would be for them to arbitrarily decide upon such issues.
There is no doubt that the terrorist attacks around the world have become extremely frequent the last two years. These incidents however, cannot be used as an excuse for people to be discriminated and banned from entering any country, just because they happen to share the same religion with some of the people responsible of these atrocious acts. As history has taught us, religious and ethnic generalizations of this kind have always led in far more catastrophic results than they ones they supposedly tried to prevent in the first place. With 2018, around the corner, we should keep in mind the efforts and fights of the previous generations to accept each other regardless of our ethnicity, religion or gender. If unfairness is allowed, to enter our civilization, then our lives will be determined by a veil of uncertainty similar to the one dominating the very dark periods that we thought were behind us long time ago.
Immigration in America is changing quickly under new president Donald Trump. Though overall immigration policies have yet to change, his proposals are having considerable effect.
What’s changing for American Immigration?
Fast processing for H-1B visa’s allowing highly skilled workers to quickly take up important roles in the US economy for a period of one to three years was suspended for a time. Standard processing can take six months and the suspension caused concern for medical institutions and technology companies across America who rely on H-1B to fill skills gaps.
The new president has also signed an executive order to review the H-1B visa program, potentially replacing it with a more merit based system with the aim of favouring American workers and reducing immigration. More recently Donald Trump is supporting the RAISE act which although stalling in congress, if passed would bias towards financially stable English speakers, and reduce American immigration by 50 per cent.
Though Trump’s repeated attempts at travel bans for citizens of certain countries was not targeted at those who had already gained visas, the controversy and treatment of these citizens is certainly beginning to deter migrants and skilled workers.
The proposed wall on the Mexican border, and clampdowns on illegal immigrants is affecting individuals and families who have lived in the US for years and now facing possible deportation.
This September, Attorney General Jeff Sessions announced the administration is rescinding the Deferred Action for Childhood Arrivals (DACA) program, passing it over to congress to find a legislative alternative. The announcement and the potential effects on the 800,000 young individuals under DACA is controversial and far reaching.
What is DACA?
Barack Obama created DACA in 2012 to allow those brought to the UK illegally as children the temporary right to live, study and work in America. The program, Deferred Action for Childhood Arrivals (DACA) covrtd a group now known as “dreamers”, most of whom know America as their home country and have little or no knowledge of their birth countries culture or language. “Dreamers” see themselves as Americans. The DACA program allows those who have completed school or military service, and have passed criminal and security vetting, a two-year deferral on any threat of deportation. After which they have opportunity to renew. During the two-year period they are granted rights to a driving license, college access, and a work permit.
What will ending DACA mean?
DACA protects 800,000 between the ages of 15 to 36. Trump has indicated that current “dreamers” if generally law abiding, will not be subject to any action. However new applications will not be affected. Trump touts his plan to make the deportation of the estimated 11 million undocumented migrants in the USA a priority for his government. Though current DACA protectees should be safe right now, they are rightly terrified for their future. As are many other young people who will miss this opportunity yet know only America as their home country.
For most “dreamers” their status under DACA will lapse by March 2020 and it’s unclear what will happen to them then. For the first DACA citizens, their two-year deferral expires in 2018, the rest in 2019 and 2020. Immigrants with DACA permits expiring before March 5, 2018 can apply for a renewal.
Currently 15 states have joined together in a lawsuit protesting the decision to rescind DACA and California has announced its own lawsuit against the process.
More resist Trump’s policies – who are the sanctuary cities?
Sanctuary cities, places of protection and respite, go back thousands of years. For the US they have gained in number and reputation over the past 10 years, accelerating with the newest presidential administration and its policies. New York was the first to speak out with a letter the week of Donald Trump’s inauguration defending the right of every student in New York City to school. It explained school staff do not check if children’s parents had visas and would not permit Immigration and Customs Enforcement (ICE) agents to enter schools without proper legal authority. New York has an estimated 1.2 million undocumented immigrants.
Sanctuary cities are considered to have adopted laws, policies or practices which may impede some immigration enforcement efforts. The Sanctuary counties and cities in the US currently include Oregon, with 31 counties, Washington with 18 counties, California with 15 counties. Massachusetts has 6 cities, California 3 and there are many more. A list can be found here: http://www.10news.com/news/list-of-sanctuary-cities-2017
How have the recent hurricanes affected undocumented immigrants?
In Texas and Florida there are many undocumented immigrants affected by hurricanes Harvey and Irma. They are deeply concerned about being deported under the government’s new and proposed policies. Despite some of them being entitled to aid from the federal government, most are too afraid to draw attention to themselves by asking for help, and are instead turning to churches and private charities. Federal Emergency Management Agency rules allow people in the country illegally to apply for disaster assistance on behalf of their children who are under 18 and have legal status in the USA. Undocumented immigrants are concerned applying for FEMA aid will expose their information and lead immigration authorities to them.
Trends in US immigration – a quick look at some interesting statistics.
America is changing. Immigrants, even if not yet affected by new policy are worried. They are concerned about changing attitudes, both from the government and American citizens. Some can’t cope with living in fear. There are increasing numbers of Mexican nationals voluntarily choosing to return to Mexico, even though their children were born in the US.
It’s easy to forget that America is a nation of migrants, in 1890 14.8% of the population were non- US born. Today that figure is still only 13.4% of the total population.
In the period 2009 to 2014 more Mexican nationals returned to Mexico than entered America. 1 million returned, and 870,000 went to the US. Recent reports are that more and more Mexicans are leaving America each week.
Other groups of immigrants are either leaving or turning away from the USA. The changes in H-1B and some student visas are discouraging students and highly skilled migrants from India, China and other countries. Last year the growing rate of foreign student admissions to the US grew at its slowest rate since 2009. Canada however, is actively seeking to attract international students and highly skilled workers to fill a skills gap in its economy. The number of international students in Canada has grown 92% since 2008.
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