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Is The UK Going Nativist on Skilled Worker Visas? Will US Do The Same? Roger Algase

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This comment is the first of a series dealing with the issue of how general restrictionist goals, rather than the merits of the qualifications for a given visa category, or a specific visa application, can affect immigration policy making in general or decision-making in individual immigration cases.

I will begin with an example from the UK which, ironically, may force many highly qualified American skilled workers to leave that country.
This involves a new restriction that was adopted in the UK this spring with regard to Tier 2 work visas, which are in some respects equivalent to H-1B visas in the United States.

Just as is the case with H-1B visas, skilled worker Tier 2 visas in Britain are temporary visas, but can often be the gateway to permanent residence. This is especially true in the case of immigrants from other EU countries, who cannot be forced to leave under the freedom of movement rules that apply to this 28 nation bloc.

However, the UK has now decided to crack down on skilled workers from non-EU countries, including the United States, by adopting a requirement that Tier 2 visa holders from counties outside the European Union will have to leave the UK after their visas expire unless they are earning salaries of at least 35,000 pounds (equivalent to about $50,000), a year.

At first glance, this might seem like a requirement equivalent to the prevailing wage system in the United States for both H-1B visas and labor certification green cards. It is common knowledge that the purpose of requiring sponsoring employers for these benefits to pay prevailing wages is to prevent foreign workers from undercutting the salaries of US workers in order to take away their jobs.

However, as reported by the Associated Press inThe Washington Post, the 35,000 pound per year minimum salary requirement in the UK, rather than being based on actual labor market conditions (as the prevailing wage system is in the US, at least in theory), appears to be an arbitrary figure adopted across the board without regard to what the real world salaries might be for a given job or in a given industry.

Indeed, the 35,000 pound per year salary requirement, even if the actual salary normally paid in Britain for a given Tier 2 visa holder's job is much lower, appears to have been adopted for the express purpose of limiting overall immigration numbers, rather than protecting the salary levels of UK citizen workers.

See:

The Washington Post: British visa restrictions may increase deportations


http://www.durangoherald.com/article...e-deportations

The AP/Washington Post article, reporting from London, gives the example of an American skilled worker who may have to leave the UK because of the new salary requirement:

"When Shannon Harmon moved to the United Kingdom from Chicago, she did not plan to put down roots. But after nearly eight years, she has a master's degree from a prestigious British University, works as a digital producer and a science-news organization and has built strong ties to her local community.

She also has a massive, five-figure problem. She earns less than 35,000 pounds,, or about $50,000, which means that under new visa restrictions introduced this spring she could be deported after her visa expires in January 2018."

The article continues:

"The new rules require immigrants on skilled worker visas from non-European countries, including Americans such a Harmon, to earn at least 35,000 pounds if they want to settle here.

"For me, getting a raise from 25K to 35K is pretty unimaginable,' says Harmon...who wants to stay in the United Kingdom but earns only 25,000 pounds. She is the driving force behind Stp35K, a grass roots campaign against new visa restrictions that triggered a debate in Parliament."

That a general desire to limit the number of immigrants to the UK, rather to enforce specific labor market salary standards, may be the reason for the new policy, appears from the following portion of the above article:

"''The system has spun out of control,' lawmaker Boris Johnson [who is also a former mayor of London] has said...

'The British government is focusing on non-Europeans because this is the only group they can currently control as a member of the EU,' said Frank Duvell, a professor at the University of Oxford's Center on Migration, Policy and Society."


According to the above article, British Prime Minister David Cameron has pledged to reduce net migration to the UK to less than 100,000, even though current figures show that it is now about three times that number.

This has raised questions about whether it is fair to pick an arbitrary income figure, which may have no relation to the salaries actually paid in the position or industry involved, as the standard for determining whether a given foreign worker, who may have long ties to the UK, should be be allowed to stay in that country.

AP/The Washington Post gives an example involing another American worker in the UK:

"Kymberly Blackstock, a 35-year-old from Seattle, is one of those caught up by the new visa restrictions. A mother of two young children, Blackstock earns 21,800 pounds a year working for a charity in Scotland. Her husband, a dependent on the visa, works nigh shifts as a careworker for the ellderly. She does not think it fair that her salary may determine whether her family can settle in the United Kingdom after her visa expires.

''We make a much bigger social contribution to the society than someone sitting at some management office at a bank.' she said"

The new rule could also threaten to put an entire venerable British industry out of business, According to the same article, Britain's curry industry is threatened by a new requirement that restaurants which want to hire skilled chefs from outside the UK must pay at least 29.750 pounds a year, along with food and accommodation, to qualify for a Tier 2 visa.

"'Nobody can afford that for a chef.' said Oli Khan, a spokesman for the Bangladesh Caterers Association, a trade body...Khan says... that the industry is reluctantly moving away from hiring chefs from India and Bangladesh and to hiring those from Eastern Europe, whom he says do not have the same 'passion' for cooking curries."

The above example from the UK raises a question about whether prevailing wages, as well as many other requirements for qualifying for H-1B and other skilled worker visas and green cards in the US are being applied fairly on the basis of the actual merits of a given case, or whether they are being imposed arbitrarily as part of an overall restrictionist agenda by USCIS or other immigration officers and policymakers.

The next comments in this series will analyze some recent RFE's in connection with this question, which is more relevant now than ever in view of the fact that one one our two major party presidential candidates has pledged to abolish both H-1B visas and Labor Certification green cards in their entirety.

In case there is any uncertainly about which candidate I am referring to, i will give a hint - this candidate does not seem to have a very high opinion of US federal judges who happen to have Mexican ancestry or who may believe in the Muslim religion

One also has to ask how welcome American skilled and professional workers would be overseas if this presidential candidate succeeds in closing, or drastically restricting, America's borders to bar most or all foreign skilled and professional workers from pursuing careers in the United States.
_____________________________________
Roger Algase is a New York immigration lawyer and a graduate of Harvard College and Harvard Law School. For more than 35 years, he has been helping mainly skilled and professional immigrants obtain work visas and green cards.

Roger's practice focuses primarily on H-1B specialty worker and O-1 extraordinary ability visas, J-1 training visas, and green cards through labor certification and opposite sex or same sex marriage. His email address is algaselex@gmail.com



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Updated 06-09-2016 at 07:52 PM by ImmigrationLawBlogs

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