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1. CANADA - The government of Canada seeks to reduce wait times for sponsored parents and grandparents, and has introduced a related Super Visa.
2. EUROPEAN UNION - The European Commission has launched a new EU Immigration Portal.
3. FRANCE - The new direction of the immigration policy for professionals, put into practice, has led to an increase in the number of refusals of work permits and changes of status.
4. ITALY - Italy now requires fingerprints for short-term visas (business and tourism) for North Africans, as part of a larger European Union effort. Also, as of March 10, 2012, there are new process details for foreigners over 16 years of age who have entered Italy for the first time and possess a residence permit with a duration of at least one year.
5. NETHERLANDS - New information has been released about highly skilled migrants, and work permits for Bulgarian and Romanian nationals.
6. PERU - Changes do not occur often in Peruvian immigration law. Recently, however, a few notable changes took place, including a clarification in the scope of some Peruvian immigration rules.
7. Member News - Member News
 

 
 
1. CANADA
 

The government of Canada seeks to reduce wait times for sponsored parents and grandparents, and has introduced a related Super Visa.

In November, the government of Canada announced a new plan to reduce the backlog and wait times for sponsored parents and grandparents. Current processing times for parent and grandparent sponsorship applications exceed seven years. This plan involves a temporary pause of up to 24 months on the acceptance of new parent and grandparent sponsorship applications effective immediately. This new government plan means that any new applications received at the Case Processing Centre in Mississauga, Ontario, will be returned in their entirety. Applications already submitted to the Case Processing Centre will continue to be processed using current procedures and will not be affected by this temporary pause.

In related news, to enable the interim visitor entry of parents and grandparents, the government of Canada is introducing the new Super Visa, which will be valid for up to 10 years. This multiple-entry visa will allow an applicant to remain in Canada for up to 24 months at a time without the need for renewal of his or her status. The processing time for a Super Visa is expected to be approximately eight weeks.

Over the next two years, the government of Canada will consult Canadians on how to redesign the parents and grandparents program. This program redesign may result in either a complete elimination of this category or reduced eligibility.

The government of Canada indicated that it is doubling the number of sponsored parents and grandparents it will admit to Canada in 2012. Citizenship and Immigration Canada will admit 25,000 applicants under this category, but applications filed in 2011 are still expected to take approximately seven years to process.

 
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2. EUROPEAN UNION
 

The European Commission has launched a new EU Immigration Portal.

The European Union (EU) Immigration Portal contains practical information for foreigners intending to move to the EU. The website includes specific immigration information for every EU Member State and for every category of foreigner (from highly skilled migrant to family reunification). The website is an initiative by the European Commission and was launched on November 18, 2011. See http://www.ec.europa.eu/immigration.

 
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3. FRANCE
 

Immigration policy for professionals has taken a new course with the inter-ministerial circular published on May 31, 2011. As a result, Préfectures must examine work permit applications for non-European foreigners with greater scrutiny. Also, the list of jobs for which workers are in shortage has been halved. Six months later, it is clear that the new direction of the immigration policy for professionals, put into practice, has led to an increase in the number of refusals of work permits and changes of status.

I. A Balanced and Selective Professional Migration

Confronted by multiple economical challenges, especially a high unemployment rate, an increase in the number of working people, and a great influx of immigrants, the new course taken by French migration policy aims to implement a balanced and selective immigration of professionals. Toward this goal, work permit and change of status applications are being processed with more scrutiny (per the inter-ministerial circular published on May 31, 2011) and the list of jobs for which workers are in shortage has been halved (per the inter-ministerial decree signed on August 11, 2011).

Greater scrutiny of work permit applications. As well as reasserting the elements established by article R.5221-20 of the French Labor Code (including labor market testing) to be taken into account when examining a work permit application, the inter-ministerial circular urges the Préfectures to apply these elements very strictly. The inter-ministerial circular also clarifies the fact that this reinforced control does not apply to temporary workers, seasonal workers, employees on assignment, or high qualified workers.

The list of jobs for which there is a shortage of workers is reduced by half. The inter-ministerial decree signed on August 11, 2011, has reduced by half the list of jobs in certain fields where employers encounter difficulties in recruiting workers. The list now contains only 14 jobs as opposed to 30 previously. Foreign workers may fill these jobs without having to go through a labor market test. The reduced list is unique and applies throughout the French territory, unlike the previous regional lists that allowed local needs to be taken into account. This list will be revised on August 1, 2013, at the latest.

Bilateral agreements regarding the control of migration flows have been signed by France and other countries (Brazil, Burkina Faso, Cameroon, Cape Verde, Gabon, Mauritius, Benin, Congo, Senegal, and Tunisia). These agreements allow nationals to obtain work permits under conditions negotiated country by country.

II. Implementation Carried Out by Préfectures

To grant or refuse work permits, the Préfectures  takes into consideration all the elements in article R.5221-20 of the French Labor Code (including labor market testing). In practical terms, the territorial units of the French Labor Office (DIRECCTE) essentially apply strict labor market tests, except when these do not legally apply (intercompany transfers, highly qualified workers, executives, young professionals, holders of the skills and talents card), as well as all the other elements of these criteria.

Prior and effective research on the labor market. An employer who wishes to hire a foreign worker must first of all carry out effective research on the regional and professional labor market to prove that it could not have hired a worker already on the job market. In practical terms, the Préfectures seem to require a two-month job advertisement through the Employment Pole (Pôle Emploi) or a two- to three-month advertisement when it is through other organizations.

Estimation of the needs of the working force. In practical terms, the administration refers to statistics published by Pôle Emploi in the "Needs of the workforce" inquiry (Besoins en Main d’Oeuvre, BMO). The evaluation of the job advertisement and the estimation of the needs of working force carried out by the Labor Office (DIRECCTE) are mainly based on data provided by Pôle Emploi. Therefore it is wise to advertise the job offer with Pôle Emploi and to check the needs of the workforce for the job beforehand according to Pôle Emploi’s statistics.

Thorough scrutiny of change of status applications. The thorough examination of change of status applications mainly concerns foreign students. Only foreign students having obtained a temporary residence permit (autorisation provisoire de séjour, APS) will be spared the labor market test. By four months at the latest before their current residence permit expires, students following a five-year degree course leading to a Master II degree may apply for a temporary residence permit. In practice, the labor market test does not apply under the following circumstances:

  • Temporary residence permit application filed four months before the expiration of the current residence permit;
  • Validation of the Master II degree;
  • Work contract with a salary equivalent to at least one and a half times the minimum legal wage (SMIC);
  • Job description in accordance with the course the student followed;
  • Job offer as a first professional experience with the goal of return to the home country.
Reinforced control in the framework of "employee" residence permit renewals. The inter-ministerial circular published May 31, 2011, notes that the initial working conditions and salary must at least be maintained when the "employee" work permit renewal application is filed. The circular also notes that students who have obtained an "employee" residence permit after having been granted a temporary residence permit (APS) may fill a new job at the end of their first professional experience, but in this case the examination of their new work permit application will be based on all the elements listed in article R.5221-20 of the French Labor Code (including labor market testing). A change of employer application, a renewal of a fixed term contract, or the transition to a permanent contract will also be examined in light of article R.5221-20.

In conclusion, the increase in refusals of work permits and changes of status reflects the new migration control policy for professionals. Labor market tests apply and the results are unfavorable to workers already present on the job.
 
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4. ITALY
 

Italy now requires fingerprints for short-term visas (business and tourism) for North Africans, as part of a larger European Union effort. Also, as of March 10, 2012, there are new process details for foreigners over 16 years of age who have entered Italy for the first time and possess a residence permit with a duration of at least one year.

As of October 11, 2011, the Italian consulates in Algeria, Egypt, Libya, Mauritania, Morocco, and Tunisia are now requiring fingerprints for individuals applying for short-term Schengen visas (maximum of 90 days for business and tourism). This is intended to improve border control and to expedite the issuance of future visas to those already registered in the Schengen Visa Information System (VIS).

It is expected that this requirement will be enforced in other Italian consulates in the Schengen Area within the next two years. Other European Union (EU) consulates are following suit, as part of a larger EU effort to include fingerprints of visa applicants from North African countries in a database that connects all 25 countries in the Schengen "border-free" zone.

In other news, beginning on March 10, 2012, the following will apply to foreigners over 16 years of age who have entered Italy for the first time and possess a residence permit for at least one year:

  • Upon signing of the Contract of Stay, foreigners will be assigned 16 credits corresponding to level A1 for skills in the Italian language and a sufficient level of culture and life in Italy. They should attend a free mini-course, which lasts between five and 10 hours.
  • Integration is measured in credits that refer to linguistic knowledge, courses attended, each foreigner's level of education, and certain actions taken. The credits may be lost for any criminal charges, personal security measures, or illegal administration or taxes.
  • Within two years of signing the Contract of Stay, the prefecture will review the documentation and can request an exam if necessary. At least thirty points (credits) must be achieved within this period of time; if not, the following will apply:
  • - Credits 1-29: The foreigner will be asked to retake exams or courses and must obtain 30 credits within the following year.
  • - Credit of 0: The residence permit will be revoked and expulsion will be implemented.
Further information from the Ministry of Internal Affairs with regard to this process is expected to be forthcoming.
 
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5. NETHERLANDS
 

New information has been released about highly skilled migrants, and work permits for Bulgarian and Romanian nationals.

Highly Skilled Migrants

Salary thresholds for 2012. The salary thresholds for highly skilled migrants (knowledge migrants) as of January 1, 2012, have been published. Foreigners aged 30 or older must earn a gross annual salary of €51,239 to be eligible for a residence permit to work as a highly skilled migrant. For foreigners under the age of 30, the highly skilled migrant salary threshold is €37,575. For graduates in the Netherlands, the threshold is €26,931.

Pilot short stay. Short stays for highly skilled migrants will become possible after January 1, 2012. A pilot program will run for two years. "Short stay" is defined as a stay for less than three months. Only employers already accepted in the Highly Skilled Migrant Scheme may participate in this pilot. The highly skilled migrant salary threshold for foreigners 30 years and older (in 2011 €50,619) will also be the threshold for a short stay as a highly skilled migrant, prorated for the period that is worked.

The employer must apply for a work permit. The Labor Directorate strives to issue this within two weeks. The Labor Directorate will also assess the job function of the highly skilled migrant.

Salary. The Dutch Parliament has raised questions about the requirement that as of June 19, 2011, the salary of a highly skilled migrant must be at market level. Does it make the Netherlands less attractive to such migrants? The Minister of Social Affairs thinks not. The assessment of whether the salary of the highly skilled migrant is at market level will only be performed in cases where the Immigration Service suspects fraud. So far, the Immigration Service has not rejected any application based on this new ground. The Minister reiterated that highly skilled migrants must only fulfill one criterion: the salary threshold.

Work Permits Required Until 2014 for Bulgarian and Romanian Nationals

The Dutch cabinet agreed on November 18, 2011, not to open the Dutch labor market to Bulgarian and Romanian labor migrants until January 1, 2014. This implies that their employers will still need a work permit until that date. The cabinet is against the free movement of persons for this group because of rising unemployment in the Netherlands and a recession. After January 1, 2014, the agreement on the free movement of persons within the European Union will also apply to Bulgarian and Romanian nationals.

 
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6. PERU
 

Changes do not occur often in Peruvian immigration law. Recently, however, a few notable changes took place, including a clarification in the scope of some Peruvian immigration rules.

One change concerns the modification of articles 358 to 378 of the Peruvian Consular Rules that was approved by Supreme Decree No. 091-2011-RE at the end of July 2011, in coordination with amendments to the Peruvian Aliens Law passed in June 2008. The amendments established that within the powers the Aliens Law grants to the Ministry of Foreign Relations, regardless of the migration status and the type of visa that may be granted by a consular officer abroad, is the responsibility and ultimate power of the consular officers to grant or deny visas to be stamped in passports or foreign travel documents, except for the migration status referred to in article 361 (diplomatic, consular, official, voluntary worker, and exchange visitor migration status). Likewise, the consular officer must verify that the beneficiary of the visa meets the necessary requirements to be granted the visa, and may conduct a personal interview if needed, comparing the information obtained with the information requested and applying the pertinent principles of discretion.

On the other hand, with respect to temporary tourist or business visas, a measure was ratified to provide that the term of stay in Peruvian territory is up to 183 days, non-extendable in-country, and that the term of validity of these types of visas is 12 months. This term is calculated from the date of issuance by the consular office.

The remainder of temporary and resident visas may be used within their term, which is six months from the date of issuance by the consular office.

A second change is that the Peruvian Immigration Authority (DIGEMIN offices), through an Internal Directive, is requesting that for all cases filed by Colombian, Venezuelan, and Mexican citizens – whether to obtain a visa at the Peruvian consulate abroad or to change status in-country – applicants must submit a resume indicating, among other things, their personal data, professional training, occupation, labor experience, personal references, address in Peru, and address abroad. The Internal Directive also includes case files that are not yet subject to approval (currently ongoing proceedings).

 
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7. Member News
 

Katie Malyon was recently nominated, and short-listed, by the Women Lawyers' Association of New South Wales (NSW) for the "NSW Women Lawyers Achievement Award 2011 - Woman Lawyer of the Year in Private Practice." The awards were presented on September 23, 2011. Criteria included individual achievement of professional excellence; encouragement and influence on other women to pursue a legal career; and a commitment to the support, encouragement, and promotion of the careers of women within the legal profession, including mentoring and advocacy. Ms Malyon has been a registered migration agent for over 15 years and is recognized as one of the leading immigration law practitioners in Australia.

The following ABIL members were listed in Chambers Global 2012:

Francis Chin

Steven Clark

Laura Devine

Mark Ivener

H. Ronald Klasko

Charles Kuck

Edward Litwin

Angelo Paparelli

Bernard Wolfsdorf

Stephen Yale-Loehr

Laura Devine Solicitors is listed in Chambers and Partners

Jacqueline Bart and Karl Waheed are on the board of the UIA (Union Internationale des Avocats) Immigration and Nationality Commission. Ms. Bart was appointed as president, and Mr. Waheed serves as co-editor of the Commission's newsletter.

Ms. Bart also was re-appointed as Vice-President of the Inter-Pacific Bar Association's Employment and Immigration Law Committee.

 
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