For the OTC issue, it seemed appropriate to look at the increasing challenge for the oil&gas industry of moving key employees between Houston and the UK.
Particularly during the economic crisis, immigration has become a political issue and visa systems have become increasingly restrictive. This has led to delays and difficulties for businesses trying to ensure seamless operations and the transfer of skills between their US and UK offices.
American business immigration law uses a category-based selection system. Companies may bring key foreign workers to the US for temporary assignments using one of a variety of non-immigrant visas.
Alternatively, if a foreign worker will be permanently relocated to the US, an employer may seek an immigrant visa which leads to permanent resident alien (green card) status. Pursuing an immigrant visa may involve lengthy government agency processing time and visa quota backlogs. Obtaining a non-immigrant visa usually is faster and less costly.
The current non-immigrant visas categories were created in 1990 legislation. A prospective foreign worker and the proposed assignment must fit within one of the prescribed non-immigrant visa categories.
The most common of these include intra-company transferees for key managerial or technical employees transferring between related companies, especially workers with university-level degrees (or equivalent knowledge) and managerial or technical employees of companies owned by citizens of certain foreign nations with bilateral investment treaties with the US, among others.
We have been discussing these issues with Ken Harder, of Dunbar Harder, an immigration expert in Houston, who tells us: “While the law has not substantially changed in the past 20 years, US immigration authorities’ interpretation and application of immigration laws has become ever more restrictive.
“Basic concepts, such as a qualifying employer-employee relationship, are being applied in a much narrower and restrictive manner.
“In many cases, approvals for a visa category by one government office are being re-adjudicated by other offices, often with different results. Further complicating the business-visa process is the wide range of security-related procedures introduced since September 2001. Due to the potential for delay in the visa process occasioned by adjudication inconsistency or security-related processes, employers seeking to bring foreign talent to the US should initiate the visa process well in advance of the intended start date of the assignment.”
The situation in the UK is very similar. Our immigration system has been overhauled in the last three years, with many routes previously open to foreign workers now closed or restricted.
These reforms often adversely impact on the ability to quickly deploy non-European Economic Area nationals to the UK to fill key vacancies.
The new points-based system (PBS) is designed to be objective and transparent, with no scope for discretion in the decision-making process. Unfortunately, this means that, unless a situation fits squarely into a category or the documentation is provided in an exact format, the application will be rejected.
Under the PBS, workers are assessed in various categories with different points requirements for each one. Tier 1 (General) is for highly skilled applicants who can demonstrate 75 points on the PBS.
Points are awarded based on academics, previous earnings, age, English language and funds available for maintenance in the UK.
Applicants may be employees or self-employed/contractors – no job offer or sponsorship is required. However, an application may be delayed while the information is collated, or it may simply not be possible to meet the points requirement.
The other tiers require sponsorship by an employer. To sponsor a worker, a UK business must first be licensed by the UK Border Agency (UKBA) and demonstrate its ability to comply with onerous record-keeping and reporting obligations, a process which can take several months.
The sponsor, or its legal representative, may then issue a Certificate of Sponsorship as a Tier 2 Intra Company transfer if the employee has been employed by the sponsor overseas for at least 12 months. If not, the position must be advertised for 28 days with no suitable resident worker found, unless it is deemed a shortage occupation (some oil&gas roles fall under this definition).
The UK salary must be at market rate and allowances cannot be used to enhance low home-country base salaries.
The employee must also score at least 50 points on the PBS. Prescribed information must be retained by the sponsor and be produced if audited by the UKBA.
Non-compliance can lead to a removal of the sponsor’s licence and therefore its ability to bring foreign workers into the UK.
Partner Caron Pope, of CMS’s London immigration team, who regularly advises oil&gas companies on these issues, recommends businesses to allow enough time for licensing and documentation collation as there are also significant civil and criminal penalties for any business that employs an illegal worker.
“There are also high stakes for an individual found to be working in the UK illegally as he or she may be barred from returning for up to 10 years,” says Pope.
Penelope Warne is head of energy at international law firm CMS Cameron McKenna