UK Immigration Update

Immigration Law Changes Have Broad Impact on Skilled Worker Rules

The UK Border Agency (UKBA) recently published a Statement of Policy explaining the changes to Tier 1 and Tier 2 rules that took effect on April 6. The principal motivation for these changes was the implementation of many of the Migration Advisory Committee's August 2009 proposals for modifying the UK points-based immigration system. The April 6 changes also include the creation of entirely new features of the points-based system and the amendment of other existing rules.

This update focuses on the principal changes to Tier 2 (Skilled Workers) rules.

• Points Table Re-Jigged. Changes to the table showing the number of points to which an applicant is entitled affect master's degrees, which now earn more points than bachelor's degrees, and the raising of salary levels for which points are awarded.
• Boon for Tier 2 Renewals. Tier 2 migrant workers who apply to extend their status will be entitled to the minimum acceptable 50 points for the "attributes" section of the points table automatically. These applicants will not have to prove entitlement, but there are conditions. The extension must be to work for the same employer in the same job described in the original Certificate of Sponsorship (CoS). In addition to having a current salary no lower than stated in the original CoS, an applicant's salary package must be at or above the current appropriate rate for the job, which may have changed since the original CoS was issued.
• Two More Intra-Company Transfer Categories. Two new sub-categories of Intra-Company Transfer were created to accompany the pre-existing category, now labeled "Established Staff." The new "Graduate Trainee" category is for new graduates who need to come to the United Kingdom as part of a structured training program. Newly recruited, overseas employees who are university graduates and need to come to the United Kingdom solely to learn skills for use abroad will qualify for the new "Skills Transfer" category.
• Extended Qualifying Period for ICT Established Staff. An employee seeking to qualify for the "Established Staff" sub-category now will have to have been employed by an overseas group company for at least twelve months prior to the CoS being issued, up from six months. Generally, time spent working in the United Kingdom in an appropriate immigration category will count toward this qualifying period. Time spent in the "Graduate Trainee" or "Skills Transfer" categories will not count.
• Simplification of "Change of Employment" Rules. A migrant worker qualifies for Tier 2 status based on the characteristics of the worker's proposed job. If these terms of employment change materially, this constitutes a "change of employment" and the employer must apply for new Tier 2 status for the employee to start the "new" job. Failure to do this can make the employment illegal. The rules for determining what job changes constitute a "new" job were revised several times during the last year but continued to be subjective and ambiguous. UKBA has now implemented a more objective standard to determine whether the migrant worker requires a new Tier 2 application. Generally, job changes (for the same employer) will only constitute a "new" job if the "new" job falls within a different Standard Occupation Code than that for which the worker's original CoS was issued.

UKBA provides further information about these and other changes in the April 6 versions of the Tier 2 Guidance and the Sponsorship Guidance.

Additional Changes on the Horizon

• Highly Trusted Sponsor. Earlier this year with little notice and less information, UKBA announced a new concept: the "Highly Trusted Sponsor." UKBA introduced this category of specially qualified and specially privileged sponsors for Tier 4 (educational institutions / students) on April 6. The Statement of Policy promises to "build on this by introduc[ing] a category of ‘Highly Trusted Sponsor' for businesses" in the autumn. The criteria for qualification "are being developed and will be published in due course."
• Certification of RMLT. The Home Office is considering carefully the Migration Advisory Committee's proposal to import a certification procedure into the Tier 2 (General) process. Current thinking is that an independent body will have to certify that each recruitment search — the Resident Labour Market Test — was conducted in accordance with UKBA rules. Under the current system, the sponsor self-certifies this compliance, and there is concern that some sponsors have been less than honest in doing so.

Strange But True: UKBA's New Personal Immigration Service

UKBA implemented a new schedule of fees for visas and applications as of April 1. Extraordinarily, a new personal immigration service is now on offer to migrants applying in the United Kingdom for an immigration change outside the points-based system. UKBA will send a mobile biometric enrolment and case-working team to an applicant's home or office for immediate processing of their application. The cost of this service is £15,000 (currently US$22,500).