November 3, 2014

In mid-October, the UK Home Office issued an official statement announcing immigration changes to several of the country’s work and business visa categories. These changes, set to be implemented in stages through the end of 2014, continue the UK’s efforts to make their immigration program more accessible to highly-skilled foreign nationals.

Below is an overview of the most important changes that affect companies operating in the UK and sponsoring foreign workers.

What’s Changed?

Tier 1 – Minor Changes to Several Categories

• Exceptional Talent visas will now be issued valid for a maximum of five (5) years rather than the traditional three (3) years. In addition, Exceptional Talent holders applying for an extension will no longer be required to demonstrate English Language Proficiency.

• Current Tier 1 (General) visa holders will potentially be permitted to accrue up to five (5) years on their status before it closes in order to be eligible for settlement in the U.K. The UK Home Office will issue their final decision on this possible change in early 2015.

Tier 2 – Genuine Vacancy Requirement and Resident Labour Market Test

• Beginning in November 2014, applications filed under the Tier 2 (Intra-Company Transfer) and Tier 2 (General) categories will be subject to a new “genuineness” test to verify that a genuine vacancy exists at the company. Thus, Tier 2 applications that fail to meet the following criteria may be denied outright:

• The job described by the sponsor does not genuinely exist;
• The job has been specifically tailored to exclude U.K. applicants;
• The applicant is not qualified to perform the job; or
• The job has been exaggerated to meet certain minimum skill thresholds.

While the UK Home Office has confirmed that only Tier 2 applications that bring forward serious doubts of a vacancy or genuineness of the position details will undergo the “genuineness test,” it remains unclear exactly what grounds will require this preliminary assessment. The Home Office is expected to provide a secondary statement of clarification in this regard.

• Tier 2 (General) renewal applicants will no longer be subject to Residence Labor Market Testing if they will remain with the same sponsor and in the same job position.

• UK companies will no longer be allowed to reduce a Tier 2 (General) visa holder’s hours or lower their salary below the £25,000 minimum threshold in order to decrease operation costs and avoid company layoffs. This was previously possible under a 2009 regulation brought into force during the global economic crisis.

Business Visa – Expansion of Allowable Business Activities Hints at Future Relaxation of Category

The Business Visa category has been slightly expanded to allow the following activities:

• Scientists and researchers will be permitted to share their knowledge and expertise on international projects that are being led by the U.K.; however, the individual cannot perform any work activities that require a work permit.

• Foreign attorneys employed by international law firms with offices in the U.K. may provide direct advice to U.K. clients regarding litigation or overseas transactions; however, the attorney must remain employed and on overseas payroll.

• Foreign nurses may sit for the Objective Structured Clinical Examination in the U.K. while holding a Business Visitor Visa before proceeding with their Tier 2 work visa application process.

ACTION ITEMS FOR EMPLOYERS

Most significant of these changes is the introduction of the “genuineness” test for Tier 2 (Intra-Company Transfer) and Tier 2 (General) applications. Employers should take note that the UK immigration authorities will not only have the right to subject questionable applications to this “genuineness” test, but they will also be able to deny applications based on the previously outlined criteria. Pro-Link GLOBAL will continue to monitor the situation and advise if the Home Office publishes any further clarifications.

Employers should also take note of the amendments to the Tier 1 and Business visa streams. Although the changes affect fewer individuals than the Tier 2 changes, they should still be noted for current and future expatriate assignments.

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Caveat Lector | Warning to Reader

This is provided as informational only and does not substitute for actual legal advice based on the specific circumstances of a matter. Readers are reminded that Immigration laws are fluid and can change a moment’s notice without any warning. Please reach out to your local Pro-Link GLOBAL specialist should you require any additional clarification. This alert was prepared by Pro-Link GLOBAL’s Knowledge Management team. Pro-Link GLOBAL worked with our PLG | KGNM Correspondent Office in the United Kingdom to provide you this update.

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