Student Visas: A summary of the Migration Advisory Committee’s briefing paper for international students

In August 2017 the Home Office commissioned the Migration Advisory Committee (an independent body that advises the UK Government on migration issues) to assess the impact of international students in the UK. The briefing paper only examined international students from Higher Education due to the lack of availability of data pertaining to international students from Further Education, English Language schools and Independent schools.

The information contained in this summary is based on the actual briefing paper, which can be accessed by the link provided:
https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/649450/Student_Commission_-_briefing_paper.pdf

 

The number of international students entering the UK

The UK is a popular study destination for international students and every year thousands of international students enter the UK with a study-related visa. The latest data by the ONS International Passenger Survey, which publishes information on the number of migrants entering the UK at any given time, showed that 139,000 international students had arrived in the UK, for a period of one year or more, in the 12 months to March 2017.

 

A total of 213,729 study-related visas were granted in the 12 months to June 2017, an increase of 4% on the previous year; and 142,128 long-term study-related visas, excluding dependants, were granted in the 12 months to March 2017 – an increase of 5% from the earlier year. The briefing paper further shows that the majority (around 80%) of study-related visas were granted to higher education students, which had increased from 50% in the 12 months to June 2011. However, the number and share of international students at territory or further education institutions had decreased considerably from 35% in 2011 but had then increased to 7% in the 12 months to June 2017.

 

The action taken by international students following the end of their visa was also focused on. The briefing paper highlighted that 69% of international students who migrated on a long-term visa and whose visa or extension of leave had expired in 2016-2017 had left the UK in time before the expiration of their visa. Furthermore, 26% of international students had opted to extend their visa in order to remain in the UK for further study or for other reasons such as employment. Yet a minority of 4% of non-EU students whose visas were due to expire in 2016-17 had no evidence of leaving the UK. The briefing paper emphasised that this did not necessarily mean that they had outstayed their visas.

 

Despite the overall high figures, international student migration has actually declined in comparison to the other reasons for which foreigners enter the UK. In a one-year period from March 2009-2010, a drop of 235,000 (40%) was seen, registering 24% for the latest period. The decline was attributable to operational and policy changes. Specifically, between May 2010 and October 2014, 836 UK educational providers were stripped of their licences in response to a clampdown on abuse of the student visa route.

 

The number of international students living in the UK

According to the data by The Higher Education Statistics Agency, there are 2.3 million international students in higher education in the UK, of which 14% are non-EU students (around 310,000) and 6% are EU students (around 130,000).

Additionally, whilst 38% of postgraduate students are international students, 29% are non-EU students and only 9% are EU students.

It was further found that international students were mostly found to be at Russell Group Universities rather than the so-called Post-1992 Universities. Russell Group Universities make up 24 “world-class research-intensive universities”[i] whilst Post-1992 Universities comprise those new universities created by John Major’s government in 1992. The average number of international students was almost 7,500 for Russell Group Universities in comparison with an average of just over 3,000 for Post-1992 Universities. An average of just over 1,500 accounted for all other universities.

 

The share of international students was found to differ markedly by subject areas. Subjects such as Business and Administrative Studies, and Engineering and Technology were popular amongst international students, whereas subjects allied to Medicine, Biological Sciences and Education were more likely to be studied by indigenous students.

 

Impact

The briefing paper notes that foreign students’ greatest impact is their monetary contribution to the UK economy. This may not seem entirely surprising since university fees for international students are set higher than for UK students.  Further boosts to the UK economy come from foreign students’ outlay on food, accommodation, leisure and travel. A recent study by Universities UK, a representative organisation for UK universities, suggests that in 2014-2015 international students generated £25.8 billion in gross output for the UK economy. Universities UK also found that “on- and off-campus spending by international students and their visitors support 206,600 full-time equivalent jobs nationally”. Alongside this financial contribution, international students are said to also bring social and cultural benefits to the UK. According to a paper entitled, ‘Russell Group response to Home of Commons Education Committee injury: The impact of exiting the EU on Higher Education’, UK students are believed to benefit from “learning in an internationally diverse environment as they experience different values and beliefs, [thus] increasing their intercultural awareness”[ii]. The paper further highlighted the benefits of learning alongside students from around the world in developing “social skills and networks”[iii] and preparing “UK students in multicultural Britain for work and travel overseas, and in particular for future collaborative work and business activity with overseas partners’ markets essential for the UK’s global ambitions”[iv].

Conversely, a recent report by the Organisation for Economic Co-operation and Development has indicated that this financial fillip may come at the expense of increased pressure on the nation’s education and training system, as well as on the housing market and public services. Even so, EU students were found to make lighter use of education, healthcare and social services than the average UK resident.

 

Staying on in the UK

With the tightening in 2007 of the immigration rules for post-study work and the UK’s recession post-2008, a decline in the number of international students staying in the UK after their studies was indicated. The briefing paper states that the events above could have reduced the incentive for students to remain and seek work in the UK. Whilst there was a fall of 31% of international students remaining in the UK between 2004 and 2010, in 2015 29% of total grants were for international students remaining in the UK permanently and seeking work.

 

Conclusion

The Migration Action Committee has made it clear in their briefing paper that more work is required to improve the quality of available data to deepen the evidence base on the impact of student migration on the UK economy. Therefore, the figures supplied by the Migration Action Committee in their briefing paper may need to be taken with a ‘pinch of salt’ for the time being in understanding the impact international students have on the UK.

 

With Brexit shadowing the UK, the figures the Migration Action Committee have used in the briefing paper could see a drop. Whilst EU students are still able to enter the UK for study purposes, the study shows that non-EU students have already begun to turn away from the UK and consider other countries with renowned universities, such as the USA and Australia. Additionally, Nigel Carrington, vice-chancellor of University of the Arts in London, has seen indications that some EU students sense that they’re now ‘less welcome’ than before, with a small but notable drop in the number taking up university places[v]. The actual impact Brexit will have on the number of international students entering the UK to study is of course yet to be seen, but Brexit, when it happens, will likely see the number of international students entering the UK decrease.

 

[i] Russell Group, ‘Our universities’, < http://russellgroup.ac.uk/about/our-universities/>, accessed: 8th January 2018

[ii] Russell Group, ‘Russell Group response to House of Commons Education Committee inquiry: The impact of exiting the EU on Higher Education’, page 5< https://russellgroup.ac.uk/media/5448/russell-group-response-to-hoc-education-committee-inquiry-the-impact-of-exiting-the-european-union-on-higher-education-november-2016.pdf>, accessed: 7th January 2018

[iii] ibid

[iv]ibid

[v] Tess Reidy, ‘Anxious international students turn away from UK’, (4th January 2017, The Guardian), <https://www.theguardian.com/education/2017/jan/04/anxious-international-students-turn-away-from-uk>, accessed: 7th January 2018

Should I hire an immigration lawyer?

Very frequently a potential client will ask, “Should I hire an immigration lawyer for a spousal visa?  At times, this is a difficult question to answer because people’s individual circumstances vary. Here’s chart to help you decide if you should hire an immigration professional or if you should attempt the visa on your own.

Should I hire an immigration lawyer or do the application myself?
Should I hire an immigration lawyer or do the application myself?

A Royal Wedding: Meghan Markle’s possible visa violation and her U.K. immigration options

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.

Photo courtesy @kensingtonroyal – Instagram

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.

HRH Prince Harry and Meghan Markle
Photo courtesy @kensingtonroyal – Instagram

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.

Photo courtesy @kensingtonroyal – Instagram

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.

HRH Prince Harry and Meghan Markle
Photo: By Mark Cuthbert/Getty Images.

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.

Meghan Markle & HRH Prince Harry
Photo courtesy @kensingtonroyal – Instagram

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.

Prince Harry and Ms. Meghan Markle arrive in Nottingham for their first official visit together since announcing their engagement.
Prince Harry and Ms. Meghan Markle in Nottingham
Photo courtesy @kensingtonroyal – Instagram

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].

Works Cited

[i] ‘Prove you have right of abode in the UK’, < https://www.gov.uk/right-of-abode/commonwealth-citizens>, accessed: 10th December 2017

[ii] ibid

[iii] ‘U.K. Ancestry visa’, < https://www.gov.uk/ancestry-visa>, accessed: 10th December 2017

[iv] ibid

[v] Work Permit, ‘Tier 1 Visa for Business People, Investors and those with Exceptional Talent’, Tier 1 Visa Overview, <http://workpermit.com/immigration/united-kingdom/tier-1-visa-business-people-investors-and-those-exceptional-talent>, accessed: 10th December 2017

[vi] ibid

[vii] Liz Cody, ‘Guide to U.K. Business Visas for Non-EEA Citizens’, (26th March 2017, Lexology), < https://www.lexology.com/library/detail.aspx?g=1e62b35a-98c0-4d5f-8f1c-fafee48c65e5>, accessed: 10th December 2018

[viii] ibid

[ix] Tier 1 (Investor) visa, < https://www.gov.uk/tier-1-investor>, accessed: 10th December 2017

[x] Independent Financial Solutions, ‘Tier 1 Investor visa qualifying criteria’, < http://ifsnet.co.uk/193-2/service-proposition/investment-services/qualifying-investment-criteria/>, accessed: 10th December 2017

[xi] ibid

[xii] Nicolas Rollason, ‘Immigration update – Expansion of the Tier 1 (Exceptional Talent) immigration visa category, (16th November 2017), <https://www.kingsleynapley.co.uk/insights/news/immigration-update-expansion-of-the-tier-1-exceptional-talent-immigration-visa-category>, accessed: 11th September 2017

[xiii] U.K. Visas & Immigration, ‘Tier 1 (Exceptional Talent) of the Points Based System Policy Guidance, page 9, < https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/662121/T1__ET__Guidance_11_2017.pdf>, accessed: 11th September 2017

[xiv] ibid

[xv] Tier 1 (Graduate Entrepreneur) visa, Overview, < https://www.gov.uk/tier-1-graduate-entrepreneur-visa>, accessed: 10th December 2017

[xvi] ibid

[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

[xviii] Carine Elliott, ‘Tier 1 Investor Visa quickest route to settlement in the U.K.’, (17th September 2015, <https://www.lexology.com/library/detail.aspx?g=e85f0e2c-2fcc-4517-ac11-7f39e4a998f3>, accessed: 10th December 2017

[xix] Alison Millington, ‘The incredible life of actress, entrepreneur, and women’s rights activitst Meghan Markle’, (25th September 2017), < http://uk.businessinsider.com/life-of-prince-harry-girlfriend-meghan-markle-2017-5>, accessed: 12th 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

[xxi] ‘Tier 2 (Intra-Company Transfer) visa, < https://www.gov.uk/tier-2-intracompany-transfer-worker-visa>, accessed: 10th December 2017

[xxii] ‘Tier 2 (Minister of Religion) visa’, < https://www.gov.uk/tier-2-minister-of-religion-visa>, accessed: 10th December 2017

[xxiii] ‘Tier 2 (Sportsperson) visa, < https://www.gov.uk/tier-2-sportsperson-worker-visa>, accessed: 10th December 2017

[xxiv] ‘How much does the Royal family cost’, <http://home.bt.com/lifestyle/money/mortgages-bills/how-much-does-the-royal-family-cost-11363982445194>, accessed: 10th December 2017

[xxv] ‘Meghan Markle and the Immigration Rules on Marriage’, <https://www.freemovement.org.uk/meghan-markle-visa-immigration-rules/>, accessed: 10th December 2017

[xxvi] Hannah Furness, ‘Hi, I’m Meghan” Ms. Markle introduces herself on first royal outing with Prince Harry’, (The Telegraph, 1st December 2017), < http://www.telegraph.co.uk/news/2017/12/01/prince-harry-meghan-markle-make-first-official-visit-nottingham/>, accessed: 10th December 2017

[xxvii] ibid

[xxviii] Laura, Hammond, ‘Relive affectionate Prince Harry and Meghan Markle’s first official engagement together in Nottingham, (Nottingham Post, 2nd December 2017), <http://www.nottinghampost.com/news/harry-meghan-markle-nottingham-visit-859168>, accessed: 10th December 2017

[xxix] ‘U.K. Fiance Visa’, <http://www.visalogic.net/uk/uk-fiance-visa/4/25, accessed>: 10th December 2017

[xxx] ibid

[xxxi] ‘U.K. Spouse Visas’, <http://www.visalogic.net/uk/uk-spouse-visa/4/103>, accessed: 10th December 2017

[xxxii] ‘Spouse v Fiancee – which visa type to choose?’, < http://www.1st4immigration.com/spouse-v-fiancee.php>, accessed: 10th December 2017

[xxxiii] ibid

[xxxiv] ibid

[xxxv] ‘Fiance visa vs. Spouse visa’, <http://www.british-filipino.com/index.php?threads/fiance-visa-vs-spouse-visa.10349/>, accessed: 10th December 2017

Work Visas: The U.K. Tier 2 vs the USA H-1B

  Work Visas: The U.K.’s Tier 2 vs the U.S.A.’s H-1B

 

  1. The U.K.’s Tier 2

In the case of someone from outside the European Economic Area or Switzerland entering the U.K. and wishing to live and work there, that individual must apply for the Tier 2 (General) Visa.[1] The second requirement that individual should fulfil, in order to apply for the Tier 2 Visa, is to have been offered a skilled job within the United Kingdom.[2]

 

  • Employer

More specifically, the employer cannot be a ‘random’ one: they must be a licensed sponsor who has been given the right by the U.K. government to sponsor either migrants or students wishing to come into the U.K.[3] A full list of the organizations that have granted such a license can be found here: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/664037/2017-12-01_Tier_25_Register_of_Sponsors.pdf.[4]

The sponsor is responsible for checking that you have the necessary education and skills required for the job you will be hired to do and for providing you with a certificate of sponsorship along with a reference number that will be included in your visa application.[5] This certificate is an electronic document which includes your personal details as well as a description for the job you have been offered.[6] The reference number, it needs emphasising. is to be used within three months of issuance and not more than once. Always remember to request the licensed employee to provide you with all the work-related information required for your application and particularly your salary details. These constitute a crucial point that will determine whether you will be granted the visa or not.[7]

 

  • Application requirements

In order to be able to apply for the work Tier 2 visa, you, the applicant, must fulfil a number of additional requirements in addition to a valid sponsorship certificate provided by your employer.

Firstly, as an applicant, you must show that you will be getting paid for your job and that the salary will be appropriate. That means that the potential job must provide you either with an annual salary of at least £30,000 or with the appropriate rate for the job you have been offered. In any case, the highest salary rate prevails.[8] There are some exceptions for jobs in which you will be paid less, such as a nurse, a secondary school teacher or a midwife. For this reason the British government has issued a detailed Policy Guidance explaining[9] such cases. It can be found here: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/606182/Tier_2_Policy_Guidance_04_17.pdf.

Furthermore, the applicant has to prove in his/her application a knowledge of English .[10] This requirement can be fulfilled by either passing an approved English Language Test (covering reading, writing, listening and speaking with at least B1 level) or by having obtained an academic degree that was taught exclusively in English and which the U.K. NARIC recognizes as being equivalent to a Bachelor’s, Master’s or PhD degree obtained within the U.K.[11] The Policy Guidance mentioned above includes some exceptions to this rule by offering alternative ways through which you may meet the higher level of English required. In addition, there is no need to prove your English knowledge if you a national of an English-speaking country.[12]

Another requirement that you must fulfil, in order to be eligible to apply for the visa, is that you possess personal savings that will enable you to support yourself when you first arrive in the U.K. More specifically you will have to prove that the amount of £945 has been included in your bank account for a period of 90 days before applying for the work visa.[13] This requirement, however, is not necessary if you have a fully approved licensed sponsor who can guarantee the authorities in the sponsor certificate that he/she will provide you with the amount of £945 for one month, in order for you to be able to support yourself.[14]

In addition, the applicant must prove that he/she is able to travel and must provide the authorities with his/her travel history over the previous five years.[15]

Another very important eligibility criterion for the Tier 2 visa application is the tuberculosis test results[16] should you be coming from one of the countries included in this list, https://www.gov.uk/tb-test-visa/countries-where-you-need-a-tb-test-to-enter-the-uk. If you are entering the U.K. from one of the listed counties but where there is no local testing centre, you will be required to take the test in a neighbouring country instead.[17]

Finally, in the event that you will be working with vulnerable groups in sectors such as education, healthcare, therapy or social services[18], you will need to provide a criminal record certificate from any country you have lived in for a year or for at least the last ten years.[19]

 

  • Application

The application for the Tier 2 visa must be done online, with the only exception being that of North Korea. For these applicants, the application form that must be downloaded (as well as detailed instructions on how to proceed) can be found here[20]: https://www.gov.uk/government/publications/application-form-for-uk-visa-to-work-study-and-for-dependants-and-right-of-abode-form-vaf2.

As an applicant, you may submit your complete application up to three months from the day that you expect to start working in the U.K., such as is indicated in your sponsorship application. It should take up to three weeks for your application to proceed and for you get a decision regarding your visa.[21] Furthermore, you will be required to pay fees for your application. These start from as low as £391 and can go up to £1944.[22] These fees will be determined by your current situation; the way you are applying; how long you are planning to stay; whether it is a shortage occupation or not, and your location at the point of submitting your application. You should keep in mind that, in any case, you may be required as part of your application to pay for the healthcare surcharge. This can be calculated online via[23]: https://www.immigration-health-surcharge.service.gov.uk/checker/type.

 

  • Duration

The Tier 2 Visa will be valid for a maximum period of five years and 14 days or for the time mentioned in your sponsorship certificate plus one month.[24] In any event, the applicant may move to the U.K. two weeks prior to commencing the job. The applicant has the right to extend Tier 2 Visa for another five years, with the maximum total stay being six years.[25]

 

  1. S H-1B Visa

Where a U.S. company wishes to employ workers of graduate level in a specialty occupation then the H-1B Visa will enable them to do so. A specialty occupation is described as any kind of job that requires either theoretical or practical expertise (or both) in the fields of science, medicine, IT, accounting, and engineering amongst others.[26] Job positions that require at least a Bachelor’s degree or an equivalent degree level and that you are fit for either via work experience or other professional qualifications, can also fall under the H-1B Visa for specialty workers.[27]

 

  • Employer

The H-1B constitutes a special type of visa as it is a kind of ‘non-immigrant work permit’ that is requested by the employer who may be seeking employee workers from abroad for an extended period. The application process for such a visa is speedier than the U.S. Green Card system. The latter has been the main type of visa for foreigners coming to live and work in the United States since the 1940s.[28] The employer who is based in the U.S. should apply for the H-1B Visa six months before the date that he wishes it to be valid from.[29] That means if he/she needs the employee to start working by the actual start of the visa, say July 1st 2018, he/she must submit the relevant visa application by January 1st 2018 in order for the worker to be able to do so.

In order for a job to fall under the category of the specialty occupation, one of the criteria described below must be fulfilled.[30] Firstly the job position must have as a minimum educational requirement a “Bachelor’s degree or higher degree or its equivalent”.[31] Alternatively the degree requirement must be one that is common in the respective industry in which the company belongs or else one that is necessary for a complex and unique job to be performed. In addition the degree requirement must be the same as that which the employer requires for the same job under all circumstances – without any exceptions being made. Finally, the job duties and tasks need to be so specialised that the necessary knowledge for the performance of the job can only be gained through a Bachelor’s or an equivalent level of degree.[32]

 

  • Application Requirements

Aside from the employer who is responsible for petitioning for the entry of the employee, the latter must also fulfil one of the following requirements in order to be eligible for the H1-B Visa.[33] Thus, if you are wondering whether you qualify for a job offer related to specialty occupation, possession of a U.S. Bachelor’s or higher educational degree necessary for the specific occupation (from either a college or university that is accredited) is a requirement.[34] Another option is if you have a foreign degree that is considered equivalent to U.S. Bachelor’s or higher educational degree necessary for the specific occupation. An unrestricted licence from a state, registration or a certificate which allows you to practice the specific occupation in the respective state constitutes an eligibility option also. Lastly, an individual may also be eligible, if rather than a degree, he/she has education, training or work experience that is equivalent to the required education degree and where he/she has held such responsible positions related to the occupation that they are considered an expert at the job field.[35]

 

  • Application

The application for H-1B Visa must be completed by the employer and can only be done online[36] through the United States Department of Labor by creating an account in the following link: https://icert.doleta.gov/. [37]

 

  • Duration

The duration of the H1-B Visa is three years and there is the possibility of extending it for a period up to six years.[38] It should be noted, however, that the H1-B visa gives you the opportunity of applying and obtaining the U.S. Green Card (which constitutes a permanent residency permit) either during the period that H1-B Visa is still valid or before it expires, should you wish to continue living and working in the U.S.[39]

 

[1] Gov.U.K, ‘Tier 2 (General) Visa’ (Gov.UK, 2017) <https://www.gov.uk/tier-2-general> accessed 3 December 2017.

[2] Ibid.

[3] Gov.U.K, ‘Register of Sponsors’ (Gov.UK, 2017) <https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/664037/2017-12-01_Tier_25_Register_of_Sponsors.pdf> accessed 3 December 2017.

[4] Ibid.

[5] Gov.UK, ‘Tier 2 (General) Visa’ (Gov.UK, 2017) <https://www.gov.uk/tier-2-general/eligibility> accessed 3 December 2017.

[6] Ibid.

[7] Ibid.

[8] Gov.UK, ‘Tier 2 (General) Visa’ (Gov.UK, 2017) <https://www.gov.uk/tier-2-general/eligibility> accessed 3 December 2017.

[9] Ibid.

[10] Gov.UK, ‘Tier 2 (General) Visa’ (Gov.UK, 2017) <https://www.gov.uk/tier-2-general/eligibility> accessed 3 December 2017.

[11] Gov.U.K, ‘Tier 2 (General) Visa’ (Gov.UK, 2017) <https://www.gov.uk/tier-2-general/knowledge-of-english> accessed 3 December 2017.

[12] Ibid.

[13] Gov.UK, ‘Tier 2 (General) Visa’ (Gov.UK, 2017) <https://www.gov.uk/tier-2-general/eligibility> accessed 3 December 2017.

[14] Ibid.

[15] Ibid.

[16] Gov.UK, ‘Tier 2 (General) Visa’ (Gov.UK, 2017) <https://www.gov.uk/tier-2-general/eligibility> accessed 3 December 2017.

[17] Gov.U.K, ‘Tier 2 (General) Visa’ (Gov.UK, 2017) <https://www.gov.uk/tb-test-visa/countries-where-you-need-a-tb-test-to-enter-the-uk> accessed 3 December 2017.

 

[18] Gov.U.K, ‘Tier 2 (General) Visa’ (Gov.UK, 2017) <https://www.gov.uk/tier-2-general/documents-you-must-provide> accessed 3 December 2017.

[19] Govuk, ‘Tier 2 (General) Visa’ (GovUK, 2017) <https://www.gov.uk/tb-test-visa/countries-where-you-need-a-tb-test-to-enter-the-uk> accessed 3 December 2017.

[20] Gov.U.K, ‘Tier 2 (General) Visa’ (Gov.UK, 2017) <https://www.gov.uk/tier-2-general/apply> accessed 3 December 2017

[21] Gov.U.K, ‘Tier 2 (General) visa’ (Gov.UK, 2017) <https://www.gov.uk/tier-2-general> accessed 3 December 2017.

[22] Ibid.

[23] Ibid.

[24] Gov.U.K, ‘Tier 2 (General) Visa’ (Gov.UK, 2017) <https://www.gov.uk/tier-2-general> accessed 3 December 2017.

[25] Ibid.

[26] Workpermit.com, ‘US H-1B Visa for Specialty Workers’ (Workpermit.com, 2017) <http://workpermit.com/immigration/usa/us-h-1b-visa-specialty-workers> accessed 3 December 2017.

[27] Ibid.

[28] Workpermit.com, ‘US H-1B Visa for Specialty Workers’ (Workpermit.com, 2017) <http://workpermit.com/immigration/usa/us-h-1b-visa-specialty-workers> accessed 3 December 2017.

[29] U.S. Citizenship and Immigration Services, ‘H-1B Specialty Occupations, DOD Cooperative Research and Development Project Workers, and Fashion Models’ (U.S Citizenship and Immigration Services, 2017) <https://www.uscis.gov/working-united-states/temporary-workers/h-1b-specialty-occupations-dod-cooperative-research-and-development-project-workers-and-fashion-models> accessed 3 December 2017.

[30] Ibid.

[31] U.S. Citizenship and Immigration Services, ‘H-1B Specialty Occupations, DOD Cooperative Research and Development Project Workers, and Fashion Models’ (U.S Citizenship and Immigration Services, 2017) <https://www.uscis.gov/working-united-states/temporary-workers/h-1b-specialty-occupations-dod-cooperative-research-and-development-project-workers-and-fashion-models> accessed 3 December 2017.

[32] Ibid.

[33] U.S. Citizenship and Immigration Services, ‘H-1B Specialty Occupations, DOD Cooperative Research and Development Project Workers, and Fashion Models’ (U.S Citizenship and Immigration Services, 2017) <https://www.uscis.gov/working-united-states/temporary-workers/h-1b-specialty-occupations-dod-cooperative-research-and-development-project-workers-and-fashion-models> accessed 3 December 2017.

[34] Ibid.

[35] Ibid.

[36] Workpermit.com, ‘US H-1B Visa for Specialty Workers’ (Workpermit.com, 2017) <http://workpermit.com/immigration/usa/us-h-1b-visa-specialty-workers> accessed 3 December 2017.

[37] U.S. Department of Labor, ‘ICERT Visa Portal System’ (US Department of Labor, 2017) <https://icert.doleta.gov> accessed 3 December 2017.

 

[38] U..S Citizenship and Immigration Services, ‘H-1B Specialty Occupations, DOD Cooperative Research and Development Project Workers, and Fashion Models’ (U.S Citizenship and Immigration Services, 2017) <https://www.uscis.gov/working-united-states/temporary-workers/h-1b-specialty-occupations-dod-cooperative-research-and-development-project-workers-and-fashion-models> accessed 3 December 2017.

[39] Workpermit.com, ‘U.S. H-1B Visa for Specialty Workers’ (Workpermit.com, 2017) <http://workpermit.com/immigration/usa/us-h-1b-visa-specialty-workers> accessed 3 December 2017.

 

UK Tier 2 v USA H-1B

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.

 

Differences

Visa category

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.

 

Skill level

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.

 

Cap level

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].

 

Lottery visa

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].

 

Salary

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].

 

Similarities

 

Sponsored visa

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].

 

Enforcement

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.

 

Education level

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.

 

Family

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).

 

Permanent residence

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].

 

 

[i] ‘Recruiting under the Tier 2 visa UK’, (DavidsonMorris Solicitors, Lexology, 18th June 2016), < https://www.lexology.com/library/detail.aspx?g=e8d410a5-9a12-4245-8401-31139d17053e>, accessed: 1st December 2017

[ii] ibid

[iii] ibid

[iv] US Citizenship and Immigration Services, ‘H-1B Speciality Occupations, DOD Cooperative Research and Development Project Workers, and Fashion Models’, < https://www.uscis.gov/working-united-states/temporary-workers/h-1b-specialty-occupations-dod-cooperative-research-and-development-project-workers-and-fashion-models>, accessed 1st December 2017

[v] Jon Velie, ‘H-1B Visa: What is a Speciality Occupation?’, (OnlineVisas), <https://onlinevisas.com/usa/h1b-visa-specialty-occupation-definition/>, accessed: 1st December 2017

[vi] US Citizenship and Immigration Services, ‘H-1B Speciality Occupations, DOD Cooperative Research and Development Project Workers, and Fashion Models’, < https://www.uscis.gov/working-united-states/temporary-workers/h-1b-specialty-occupations-dod-cooperative-research-and-development-project-workers-and-fashion-models>, accessed: 1st December 2017

[vii] ibid

[viii] Nikhila Natarajan, ‘H1B visa applications reach 85,000 cap in 4 days – all you need to know’, (First Post, 8th April 2017),< http://www.firstpost.com/world/h1b-visa-applications-reach-85000-cap-in-4-days-all-you-need-to-know-3374166.html>, accessed: 1st December 2017

[ix] National Statistics Work, (23 February 2017) < https://www.gov.uk/government/publications/immigration-statistics-october-to-december-2016/work>, accessed: 1st December 2017

[x] Nikhila Natarajan, ‘Trump signs executive order on H1B  visa review, says lottery system is all wrong’, (First Post, 19th April 2017), <http://www.firstpost.com/world/trump-signs-executive-order-on-h1b-visa-review-says-lottery-system-is-all-wrong-3391920.html>, accessed: 1st December 2017

[xi] Vindu Goel, ‘How Trump’s ‘Hire American’ Order May Affect Tech Worker Visas’, (The New York Times, 18th April 2017) https://www.nytimes.com/2017/04/18/technology/h1b-visa-facts-tech-worker.html>, accessed: 2nd December 2017

[xii] Julia Preston, ‘Immigrants Aren’t Taking Americans’ Jobs, New Study Finds’, (The New York Times, 21st September 2016), <https://www.nytimes.com/2016/09/22/us/immigrants-arent-taking-americans-jobs-new-study-finds.html>, accessed: 2nd December 2017

[xiii] ibid

[xiv] ‘The Prevailing Wage for H-1B Application, and the Speciality Occupation Requirement for H-1B Workers’, <http://www.greencardapply.com/h1b/h1b_pwages.htm>, accessed: 2nd December 2017

[xv] James Brokenshire, ‘Tier 2 (Skilled Workers): Written Statement – HCWS660’, (24th March 2016), < https://www.parliament.uk/business/publications/written-questions-answers-statements/written-statement/Commons/2016-03-24/HCWS660/>, accessed: 1st December 2017

[xvi] US Citizenship and Immigration Services, ‘H-1B Speciality Occupations, DOD Cooperative Research and Development Project Workers, and Fashion Models’, < https://www.uscis.gov/working-united-states/temporary-workers/h-1b-specialty-occupations-dod-cooperative-research-and-development-project-workers-and-fashion-models>, accessed: 2nd December 2017

[xvii] ibid

[xviii] ibid

[xix] ibid

[xx] Cherlynn Low, ‘US cracks down on the tec industry’s go-to work visa’, (4th March 2017), <https://www.engadget.com/2017/04/03/us-visa-program-cracks-down-on-employers/>, accessed: 2nd December 2017

[xxi] David Smith, ‘Donald Trump to overhaul H-1B visa program that admits foreign workers’, (The Guardian, 18th April 2017), < https://www.theguardian.com/us-news/2017/apr/17/donald-trump-temporary-worker-h1b-visa-executive-order>, accessed: 2nd December 2017

[xxii] Alexia Fernamdez Campbell, ‘There’s a Clear Way to Fix the H-1B Visa Program’, (The Atlantic, 6th December 2016), < https://www.theatlantic.com/business/archive/2016/12/fixing-h-1b-visa-loophole/509639/>, accessed: 2nd December 2017

[xxiii] ibid

[xxiv] David Smith, ‘Donald Trump to overhaul H-1B visa program that admits foreign workers’, (The Guardian, 18th April 2017), < https://www.theguardian.com/us-news/2017/apr/17/donald-trump-temporary-worker-h1b-visa-executive-order>, accessed: 3rd December 2017

[xxv] ibid

[xxvi] US Citizenship and Immigration Services, ‘Combating Fraud and Abuse in the H-1B Visa Program’, <https://www.uscis.gov/news/news-releases/putting-american-workers-first-uscis-announces-further-measures-detect-h-1b-visa-fraud-and-abuse>, accessed: 3rd December 2017

[xxvii] Tracy Jan, ‘This one group gets 70 percent of high-skilled foreign worker visas’, (The Washington Post, 3rd April), <https://www.washingtonpost.com/news/wonk/wp/2017/04/03/this-one-group-gets-70-percent-of-high-skilled-foreign-worker-visas/?utm_term=.d48a32a036dc>, accessed: 3rd December 2017

[xxviii] Cathryn Costello and Mark Freedland, ‘Migrants at Work: Immigration and Vulnerability in Labour Law’, (Oxford University Press), page 73

[xxix] ibid

[xxx] ibid

[xxxi] ibid

[xxxii] ibid

[xxxiii] US Citizenship and Immigration Services, ‘H-1B Speciality Occupations, DOD Cooperative Research and Development Project Workers, and Fashion Models’, < https://www.uscis.gov/working-united-states/temporary-workers/h-1b-specialty-occupations-dod-cooperative-research-and-development-project-workers-and-fashion-models>, accessed: 3rd December 2017

[xxxiv] ibid

[xxxv] ‘Tier 2 (General) visa’, ‘Family member’, < https://www.gov.uk/tier-2-general/family-members>, accessed: 2nd December 2017

[xxxvi] ibid

[xxxvii] ibid

[xxxviii] ‘H1B to Green Card Process’, <https://www.path2usa.com/h1b-to-green-card-process>, accessed: 3rd December 2017

[xxxix] ibid

[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

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