Settlement for Workers Under UK and US Immigration Law

Considerable media attention has been given to the United States' offer to give skilled foreign workers the opportunity to settle permanently in the United States of America, an offer that was withdrawn almost as soon as it was made. On 12 June 2007 the US State department published its June Visa Bulletin. This said that almost all the foreign workers previously considered eligible for a visa sponsored by a US employer could apply for the coveted ‘green card’, giving them the right to live and work permanently in the US. The deadline for applications was 2 July 2007. But on 2 July 2007 the US State Department issued an update to the June Visa Bulletin. This said that, with immediate effect, there would be no further authorisations of green cards based on employment.

US law limits the number of green cards that can be issued on the basis of work in any one year. Last year, the US did not issue its full quota of green cards. It is thought that the June Visa bulletin was intended to help rectify this shortfall, but instead it turned out that the shortfall could be addressed by processing outstanding existing applications.

What of the UK? A person in the UK on the basis of skilled work, as a work permit holder, under the Highly Skilled Migrants Programme (HSMP) or as a business person can apply for Indefinite Leave (ILR or settlement) after five years working in the UK. The US term ‘permanent residence’ is avoided by UK immigration lawyers because it is officially used with reference to the status of European Economic Area (EEA) nationals who have been continuously resident in the UK for five years and not as a general term for all foreign nationals. The UK changed the qualifying period from four years to five years on 3 April 2006. The change affected people who were already in the UK. Since that time, the UK has also introduced tests whereby those applying for settlement must demonstrate a knowledge of life and language in the UK. The changes to the UK scheme have also been controversial. Other changes in the meantime have also affected a worker’s chances of remaining in the UK for the requisite five years. For example, in December 2006, the UK changed the criteria for qualifying under the Highly Skilled Migrants Programme (HSMP), so that it was impossible to qualify for the programme without a degree. People already in the UK, with two years leave under the scheme, who were applying to extend their leave, found that they no longer qualified, and had to investigate the more limited category of work-permit employment if they wished to remain in the UK.

The UK is proposing to change its work and business immigration to a Points-Based system to be introduced from early 2008. Under this scheme, workers and business-people will need to score a minimum number of points to get leave to enter (a visa) or to remain in the UK. The Points-Based system divides workers and students into five tiers. Skilled workers in Tiers 1 and 2 will have a route to settlement. It is proposed that under the Points-Based system low-skilled workers will have no route to settlement.

Alison Harvey, Gherson and Co.