Important Information for U.S. Non-Immigrant Visa Applicants for September - November 2014

Important Announcement from U.S. Embassy Canberra -

"In November 2014, Australia will host the G20 Australia 2014 Leader’s Summit. In the lead up to and during the Summit, U.S. Consulate General Sydney, U.S. Consulate General Melbourne, and U.S. Consulate General Perth will be forced to limit appointments for consular services, including visa interviews. We will prioritize U.S. citizen services, immigrant visas, and emergency non-immigrant visa cases during this time period.

Please be aware that late application does not qualify as a reason for expediting an emergency visa.

If you’re planning a trip to the U.S. in the second half of this year and need a visa, we strongly recommend that you apply ASAP!"

For more information, please contact our U.S. Immigration Attorney, Melissa Vincenty:  http://www.nfmelbournelawyers.com.au/melissa-vincenty.php

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Trans-Tasman Visa Arrangement for 2015 Cricket World Cup

Summary

People travelling to Australia and New Zealand for the 2015 Cricket World Cup will only need to apply for one visa, as agreed by the Prime Ministers of Australia and New Zealand. This visa will be issued in accordance with Australia’s existing visa framework and will streamline procedures for genuine Cricket World Cup spectators and participants.​​​

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In February and March 2015, Australia and New Zealand will co-host the Cricket Worl​​​d Cup.​
Australia and New Zealand are working together closely to implement this new visa arrangement.

In the meantime, if you are planning to visit Australia and New Zealand now, or wish to apply now for visas to travel at a later date, you will still need to apply for two visas, one for each country.

If you are transiting through Australia, you may need to apply for a 'transit visa. Or, if you are transiting through New Zealand to reach your destination, you may need to apply for a New Zealand transit visa.

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Visas for offshore resources activities - (such as Oil, Gas and Mining industry)

On 16 July 2014, the Offshore Resources Activity (ORA) regulations were disallowed in the Senate. The ORA regulations prescribed the temporary visas that a non-citizen needed to engage in an offshore resources activity. They were:

• the Maritime Crew Visa (MCV) for a member of the crew of a non-military ship
• the subclass 400 visa or subclass 457 visa for non-citizens undertaking highly specialised work.

A non-citizen who was engaged in an offshore resources activity but did not hold one of the prescribed visas, or a permanent visa, would be in breach of their visa conditions.

The effect of the disallowance was that a non-citizen engaged in an offshore resources activity, or working on a resources installation, would be in breach of their visa conditions even if they held one of the three previously prescribed visas, and could not hold any other temporary visa.

This meant that that there was no longer a visa available to anyone seeking to work temporarily in Australia’s offshore oil and gas industry.

On 17 July 2014, the Assistant Minister for Immigration and Border Protection made a Determination under section 9A(6) of the Migration Act 1958 (“the Act"). The Determination exempts certain activities from the definition of “offshore resources activity” as provided by the Act.

The Determination means that non-citizens working on resources installations attached to the Australian seabed – which were already in the migration zone prior to 29 June 2014 – can continue to work in Australia in accordance with the conditions of their visa.

Non-citizens working on fixed structures – i.e. that cannot be moved as an entity from one place to another and are attached to the Australian seabed, cannot hold MCVs, as this is only valid for a member of the crew of a non-military ship. They may hold an appropriate temporary work visa, such as the subclass 457 visa or subclass 400 visa, or a permanent visa.

The Determination means that non-citizens aboard vessels (such as supply, heavy lift, dive support, pipe laying and seismic vessels) who were previously granted an MCV to engage in an offshore resources activity are not in breach of their visa conditions as a result of the disallowance.

Non-citizens aboard these vessels are now considered to be outside the migration zone, and do not need visas. For example, non-citizens aboard a vessel attaching an oil or gas pipeline to the Australian seabed do not need visas.

Non-citizens working aboard these vessels need valid visas if they enter the migration zone another way. For example, a non-citizen flying into an Australian airport en route to or from their vessel will need a valid visa to be immigration cleared.

Non-citizens aboard vessels that are considered to be resources installations when attached to the Australian seabed, such as floating production facilities, will also need valid visas.

The ORA regulations also amended the ceasing provisions of the MCV to prevent the work rights and validity of the MCV from ceasing if the vessel was deemed to be imported or entered for home consumption under the Customs Act 1901 but the vessel was not entered on the Australian International Shipping Register and the visa holder was engaged in an offshore resources activity.

As the ORA regulations have been disallowed, this no longer applies, and the previous ceasing provisions for the MCV have been restored.

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Good News and Bad News – New visa fees announced for E applications and Renunciations of U.S. Citizenship

The State Department announcement I received in my inbox late last week looked promising – “Fees decreased” was what caught my eye.  A quick glance through the Federal Register confirmed that the fee for E-1, E-2 and E-3 applications, were being reduced to $205, down from $270.  Fortunately, fees for H-1B applications along with L-1s were not increased (how much higher could they go at this point?).  This is great news for all those E-3 applicants out there.  The State Department made a point of saying that the new reduced fee was a reflection of the “actual cost of services”.  (Which doesn’t exactly make sense to me due to the large disparity in the time spent by a consular officer in the review of documents for an E-1 or E-2 application compared with the amount of time spent on an E-3 application.)   

The bad news came for all those would-be renouncers of their U.S. citizenship.  The new fee is a whopping 422% higher than it is now, a jump from $450 to $2,350.  This can not possibly be reflective of the “actual cost of services”.  An application for renouncement is not very document intensive.  The process consists of two short in-person interviews (and sometimes the first interview is over the phone) and a couple of forms. Unless you have an enormous portfolio and there are serious exit tax issues, very few supporting documents are required.  The State Department notes that the large increase in the filing fee is justified as the demand for the renunciation requests has ballooned and they need additional staff to process the applications. According to a February 2014 post in the International Tax Blog, a record 2,999 people renounced their US citizenship in 2013, a 221% increase over the 2012 figure.  However, a total of 3,000 applicants worldwide does not seem to justify this high fee, in my opinion.  In contrast, 3,946 E-3 visas were issued in 2013, yet the fee is around 10% of the cost of a renouncement application.   

I find it interesting to note the filing fees for renouncing citizenship in other high-income countries:

Australia - $265

United Kingdom - $240

New Zealand - $335

Canada - $90

Anyone making applications for the visa categories mentioned on or after September 6, 2014 need to remit the correct fee amounts. 

For individuals who seek to travel to the US, it is strongly recommended to contact a qualified US Immigration Lawyer to discuss your visa options.

To connect to a qualified US Immigration Lawyer contact our specialist US Immigration team

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Spain / Spainish passport holders are now eligible to apply for the Work and Holiday (subclass 462) visa

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General Skilled Migration 190/489 - South Australian State nomination made easier

Immigration SA has made it easier for citizens and current passport holders of exempt countries to apply for South Australian state nomination.

Exempt Countries include:

• United Kingdom
• Canada
• New Zealand
• United States of America
• Republic of Ireland

If you are a citizen or passport holder of one of the listed exempt countries, you no longer need to provide an English test result (IELTS or OET) to Immigration SA regardless of Immigration SA’s English requirement for your occupation.

If you are an International Graduate of South Australia and a citizen or passport holder of one of the listed exempt countries, you can also access the Immigration SA work experience waiver for ‘available’ occupations. See point eight under eligibility requirements for information on how to qualify for a work experience waiver.

Please note you may still require an IELTS or OET to gain additional points on the Department of Immigration and Border Protection (DIBP) points test. Additionally Skills Assessing Authorities and Registration / Licensing bodies in South Australia have their own English / work experience requirements so people from exempt countries need to ensure they can meet those requirements prior to applying for state nomination.

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HIGH COURT decision - refusal of protection visa where "serious reasons for considering" applicant had committed serious non-political crimes

In FTZK v Minister for Immigration & Border Protection [2014] HCA 26 (27 June 2014) Article
1F(b) of the Refugees Convention excluded from the grant of refugee status a person of whom there were "serious reasons for considering" had committed serious non-political crimes. In reviewing a decision to refuse a visa the Administrative Appeals Tribunal (AAT) referred to various factors that combined to satisfy it that there were serious reasons for considering the applicant had committed a crime in China.

An appeal to the Full Federal Court was dismissed but the appeal to the High Court allowed: French CJ with Gageler J; Hayne J; Crennan with Bell JJ. The members generally concluded that most of the factors referred to were actions in Australia and had been referred to by the AAT as showing "consciousness of guilt" but were not logically probative of what had happened in China.

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