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1. Short-Term Visas: A Country-by-Country Overview - This article provides an overview of various countries' short-term visa options for temporary assignments.
2. BELGIUM - Various developments have been announced.
3. CANADA - There are new requirements for specialized knowledge workers.
4. ITALY - Various developments have been announced.
5. RUSSIA - A new law is enacted.
6. UNITED KINGDOM - Various developments have been announced.
7. New Publications and Items of Interest - New Publications and Items of Interest
8. Member News - Member News
 

 
 
1. Short-Term Visas: A Country-by-Country Overview
 

This article provides an overview of various countries' short-term visa options for temporary assignments.

Belgium

Under Belgian law, there are several work permit exemptions for short-term assignments.  One is the Vander Elst exemption: if some conditions are met, no work permit is required for non-EEA (European Economic Area = European Union, Iceland, Liechtenstein, and Norway) workers employed by a company that is established in an EEA Member State and who come to Belgium to provide services.

Training at the Belgian site of a multinational group can also be possible depending on the circumstances (for example, nationality of employee and location of employer) without a work permit for up to three months.  On-the-job training is possible on a very limited scale only: the training cannot involve "significant productive interventions" within the company.

Foreign employees who test prototypes of vehicles or other prototypes developed by an accredited research facility do not need a work permit.  The exemption is limited to the required testing time, and up to four weeks per calendar year per employee.

Initial product assembly and/or first installation does not require a work permit if it is an essential part of a supply agreement, is necessary for the use of the product, and is provided by qualified and/or specialized employees of the supplier who are posted to Belgium.  This exemption is limited to eight days and does not apply to construction workers.

The exemption for urgent maintenance and repair work performed by specialized technical workers on a product supplied by the foreign employer to a Belgian customer is limited to a stay in Belgium of five days per month.

Fast-track work permits are available for specialized technical workers who are posted to Belgium and who come to Belgium to install, start up, or repair products manufactured or supplied by their foreign employer.  The work may not take longer than six months.

Training at the Belgian site of a multinational group may be fast-tracked if no work permit exemption can be invoked.

Canada

Companies sending their employees to Canada for six months or less may opt for their employees to enter Canada as Business Visitors where their activities will be confined to "business visitor" activities within the meaning of Canada's regulatory framework and the North American Free Trade Agreement (NAFTA) if the employees are citizens of the United States or Mexico.  Permissible business visitor activities include attending business meetings, performing after-sales services, scoping and information gathering, giving training at a Canadian affiliate, and performing sales to defined clients.  While business visitors cannot perform hands-on work in Canada, their business visitor activities may permit companies to achieve certain short-term objectives in Canada without requiring a work permit.  Citizens of countries requiring a temporary resident visa (TRV) to enter Canada must apply for the TRV by demonstrating their required business activities in Canada, whereas foreign nationals who do not require a TRV to enter Canada should travel with a Business Visitor Invitation letter from the Canadian destination company.

In other cases where hands-on work will be performed in Canada during the short-term assignment, the employees will need work permits and, in some instances, Labour Market Impact Assessments (LMIAs) to be granted the work permits.  Companies may wish to seek an exemption to the costly and lengthy LMIA process wherever possible via one of the LMIA exemption categories, such as Intra-Company Transferees (C12 or NAFTA T24) or NAFTA Professionals (T23).  If proceeding by way of the LMIA, companies should consider whether a variation to the minimum advertising requirements exists for the Canadian position in question, to ease their recruitment and advertising efforts in seeking the LMIA if applicable.

If the Canadian company is a start-up, it may be possible to obtain an initial work permit for up to one year if the company is sufficiently advanced in its operations.  Typically, a start-up should have leased premises, particularly in the case of Specialized Knowledge Intra-Company Transferees, and must demonstrate plans to staff the Canadian business and be financially sound enough to pay the employees' salaries.

In very unique circumstances, companies may seek a work permit for an employee pursuant to the C10 Significant Benefits category of the LMIA exemption where the employee's presence in Canada will have a demonstrated significant social, cultural, or economic benefit in Canada.

France

Business Visitor of Less Than 90 days

Foreign nationals may come to France under a business visitor status if their stay in France is for less than 90 days, and their activity in France is limited to business visitor activity.

A business visitor may attend meetings, prospect for business, and negotiate agreements. This activity may be carried out for his or her own personal account or in the name of his or her foreign employer.  However, this activity may not be carried out in the name of a French business or create value for French business.

There are two types of classifications for business visitors:

1. The Schengen visa for short-term business visits; and

2. Visa-free entry for third-country nationals who are exempt from the visa requirement by treaty or bilateral agreement with the third country national's home country (e.g., United States, Canada, Japan, Australia, Mexico).  These foreign nationals do not need a visa to enter France as long as their assignment within the Schengen space does not exceed 90 days over any 180-day period and their activity is limited to that of an authorized business visitor.  (The Schengen Area consists of 26 countries: Austria, Belgium, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands (Holland), Norway, Poland, Portugal, Slovakia, Slovenia, Spain, Sweden, and Switzerland.)

They should remain on the home country payroll, not be subordinated to the management of the host entity in France, and not carry out any productive work in France.  Tasks that clearly fit into allowed business visitor activity include attending meetings, seminars, negotiations, visiting sites, and exploring business opportunities.

If the French consulate considers that the activity in France requires a work permit, it will refuse the business visa application and require the third-country national to apply for a work permit with the labor authorities before visa issuance.

Italy

According to a decree of the Ministry of Foreign Affairs of May 11, 2011, a business visitor can come to Italy for a short stay (90 days in a 180-day period) for "travel that has an economic/commercial basis, to make contacts or conduct negotiations, to learn or carry out maintenance and repairs on equipment and machinery purchased or sold pursuant to a commercial contract or joint venture agreement."

It is advisable to have a contract in place between the sending company and the host company that regulates the services the sending company is to provide the host company for hands-on activities other than normal business activities such as attending exhibitions, business meetings, and negotiations with potential customers.

The application of this rule requires review on a case-by-case basis of what the visitor intends to do in Italy.  The criteria to be taken into account include:

  • There must be a foreign employer who directs the employment;
  • Profits must go to the foreign employer;
  • Profits must accrue abroad;
  • The foreign employer should pay the visitor;
  • Services being performed are not ones for which an Italian worker would normally be hired, are not inherently part of the Italian labor market, and are not primarily benefiting the Italian entity as local work; and
  • There should an agreement in place between the foreign (sending) company and the Italian (host) company.

Non-visa nationals must have documents (such as invitation letters and assignment letters from their employers) supporting the scope and duration of the visit.

Visa nationals (citizens of countries that do not have a visa waiver program with Italy) must apply for business visas.

Mexico

The extensive changes in Mexican immigration law as of November 2012 eliminated the more than 30 former immigration statuses and subcategories.  Those were replaced by just three statuses: Visitor, Temporary Resident, and Permanent Resident.

Visitor status is appropriate for short-term assignments of up to 180 days.  Foreign nationals in this category may engage in most kinds of business and work activities, as long as they are remunerated on foreign payrolls.  Mexican law does not distinguish among business activities.

Nationals from several designated countries may freely enter Mexico in business visitor status without having to apply for a visa.  Visa-waivered entry is also allowed for "regulated nationalities" under several schemes, such as having a valid U.S. visa of any kind, or permanent residence in the United Kingdom, Japan, United States, Canada, or the Schengen countries.

Visitor status may allow the foreigner to perform job duties, but it entails restrictions on activities such as opening a bank account, signing on behalf of the company, signing a lease contract, and some other issues related to a business visitor's ability to live comfortably in Mexico.

Peru

The Peruvian immigration authority (MIGRACIONES) has no specific visa that may be obtained quickly for short-term assignments. When technical workers, for example, are coming to work in Peru, they must obtain work permits, which take approximately 30 to 45 days. The work permit may be either a temporary worker visa (for foreign workers on a local company's payroll) or an appointed worker temporary visa (for workers who are not staff of the local company).

Appointed workers are those who come to Peru with no intention of establishing a residence to carry out labor activities assigned by their foreign employers for limited and defined terms to perform specific tasks or duties, or to perform work that requires professional, commercial, or technical knowledge or any other type of highly specialized knowledge. This category applies to consultants or advisors. Although they are paid by a company abroad, they must pay taxes in Peru.

To obtain this type of visa (Visa Temporal de Trabajador Designado), the following documents must be legalized by a Peruvian consulate abroad or certified by apostille abroad:

  • A Service Agreement or Technical Service Agreement (TSA) executed by the foreign entity that will provide the services (Provider) and the local entity receiving the services (Beneficiary Company).
  • An appointment letter issued by the Provider appointing the foreign consultant who will come to Peru under the Service Agreement.
  • A letter from the Beneficiary Company confirming that it will be the recipient of the services that the foreign consultant will provide.
  • A Certificate of Specialization of the foreign consultant issued by the Provider.
  • The assignee's original passport in the case of in-country processing before MICRACIONES. If processing before a consul abroad, then a copy of the passport will be duly legalized by the Peruvian consulate abroad or certified by apostille and the consultant will remain abroad for processing.
  • Other documentation of the assignee and the local company as required.

Translations of the documents must be made in Peru by an official public translator.

The processing time from the date of filing of the application with all required documents is 30 working days for "Obtaining Visa Proceeding," and 60 working days for in-country processing, according to the rules.  At present, however, in-country processing is taking less time.

The holder of this type of visa cannot open a bank account in Peru, obtain a credit card, or obtain a driver's license, because he or she is not considered a resident.

South Africa

Overview of Short-Term Work Authorizations—Section 11(2) Visas

The South Africa Department of Home Affairs can issue a visitor's visa to authorize a foreign national to do his or her "work" in South Africa for a period of up to three months.  This visa cannot be extended.

In the past, short-term employment in South Africa was largely characterized by one of two common scenarios, both involving mainly holders of passports who do not need visas to come to the Republic of South Africa (RSA) for "visits" (e.g., from North America and Europe).

The first scenario arose when such a passport holder would, on arrival, claim that he or she was coming for "business."  Such person would then be admitted for a period of up to three months to do "business" even though, taking advantage of definition confusions, these persons were in fact "working."

The second scenario occurred where the passport holder arrived at a port of entry and announced that he or she was coming to "work."  If the person had a letter from the host/South African company confirming that the foreign national was coming to "work" at the offices of the South African company, he or she would usually then have a section 11(2) visitor visa endorsed into his or her passport, at the port of entry.  This would allow the expat to work at the company for whatever period was required, up to three months.

There was, however, no control over how many times such section 11(2) visas would be issued.  There have been cases of people in effect blatantly using the section 11(2) visa to bypass ordinary work visa requirements or processes (and even being advised to do so).  Both situations were massively abused.  The Department of Home Affairs has been compelled to clamp down and get the short-term work authorizations under control.

To understand current Department policy, it is essential to first appreciate the statutory definition, in the Immigration Act 13 of 2002, of what constitutes "work."  The Act provides very simply that "work" is doing anything that is "consistent with being employed" in a particular field or profession (and similarly with self-employment).  In other words, if you are employed in the United States as an accountant and you are coming to South Africa as part of your job, that constitutes "work" as it is defined.  And if you are coming to "work" for a period of three months or less, you will need to get a section 11(2) visa.

The test is not limited to persons who are employed "in South Africa."  The Immigration Act expressly provides that the definition includes persons who are not being paid to do that work:  it is irrelevant whether the person is being paid or how he or she is being paid.  The test is deliberately wide and allows for few exceptions or gray areas.

Also, for purposes of the definition of "work," it is immaterial how long the person is coming to SA to do work.  It can be days, weeks, months, or years.

Obviously, there may be further obscure instances that could challenge the limits of the statutory definition. The best approach to adopt, if you are in doubt, is to get the correct permission to "work."  The joy in having bypassed bureaucracy will be seriously short-lived if an evasion comes to light.  So, if a person is coming to SA to do "work" for a period of up to three months, he or she needs to get a section 11(2) authorization from Home Affairs.

Rules for Section 11(2) Visa Applications

1.    A section 11(2) visa can only be issued—

a.    On arrival at a port of entry (if the passport is visa-exempt for "visits"; or

b.    At an Embassy or High Commission (if the passport is not visa-exempt for "visits").

The section 11(2) visa cannot be applied for or issued inside South Africa.

2.    Where the applicant holds a visa-exempt passport, before he or she leaves for SA, he or she must first have applied in writing for and obtained written permission from the relevant South African embassy to ask for the 11(2) on arrival at the port of entry.  Without that prior written permission from the embassy, the port of entry will not issue the section 11(2) visa.

3.    The section 11(2) visa is not, under any circumstances, to be applied for as an interim work visa while a person applies for a longer-term work visa.

4.    Other than in quite exceptional circumstances, the Department of Home Affairs will not entertain applications to extend a section 11(2) visa.

Requirements for Section 11(2) Applications to the Director General

5.    There is no prescribed application form.  The request should be included in a letter addressed to the Consular Section at the relevant embassy.

6.    The request should come from the South African company (or other such entity or person) who will be hosting the foreign national in South Africa.

7.    The request should include the following:

a.    The applicant’s full name, and passport nationality and number, along with a copy of the bio page of the passport;

b.    The proposed departure flight number(s) and date(s) with the port of entry and estimated date and arrival time in SA;

c.    Date of departure from South Africa with corresponding flight details;

d.    How long he or she will be coming to actually work for (as opposed to the total length of the visit);

e.    Full details of contact persons in SA and in the country of origin along with full details of the host company in SA including details of what it does, where, and (where appropriate) statutory registration details;

f.    The applicant's address and contact details both in SA and in the country of employment;

g.    The applicant's CV;

h.    Full details of why the person needs to come to SA, to do what and where; how SA and South Africans will benefit from the person's activities;

i.    A written undertaking by the SA host: (1) assuming full responsibility for all the costs of removing the applicant from SA, should removal become necessary; and (2) assuming responsibility for ensuring that the applicant complies with all the conditions of the visa and the applicable requirements of the Immigration Act; and

j.    Confirmation from the SA host that it is fully aware of the Department's rules applicable to section 11(2) visas, as set out above.

8.    If the application is approved, the embassy will usually e-mail the written consent back to the applicant, although some embassies ask the applicant to collect the letter.

9.    When the foreign national arrives at the port of entry, he or she will then present to the port of entry the following documentation as part of the request for the section 11(2) visa:

a.    A copy of the request submitted to the embassy; and

b.    The embassy's written approval of the request.

10.    The passport will then be stamped recording that permission to work has been granted.

11.    Where the applicant is travelling on a non-visa-exempt passport, he or she must apply both for the "consent" and for a visitor visa  to the appropriate embassy or High Commission.

12.    If the visa is approved by the embassy or High Commission, the visa will set out such other conditions as are to be complied with.

United Kingdom

The United Kingdom (UK) offers a number of options for employers seeking to engage migrants on a short-term basis.

While migrants from within the European Economic Area (EEA) and Switzerland are free to enter and work in the UK without prior permission, non-EEA employees must obtain authorization. For short-term work, this typically falls within a sponsored category of the Points-Based System (PBS).

Tier 2 (Intra-Company Transfer—Short-Term Staff)

This route is intended for short-term placement of staff for up to 12 months.  Prospective transferees must have been employed by the sponsoring organization for at least 12 months and meet minimum salary and maintenance requirements.

Tier 2 (Intra-Company Transfer—Graduate Trainee)

This subcategory allows recent graduate trainees on paths for managerial or specialist roles to undertake clearly defined training programs at UK-based branches of their employer.  Graduate Trainees may enter the UK for up to 12 months.  Prospective transferees must have been employed by the sponsoring organization for at least three months and meet minimum salary and maintenance requirements.

Tier 2 (Intra-Company Transfer—Skills Transfer)

Tier 2 (ICT—Skills Transfer) enables employees in graduate occupations to enter the UK for up to six months to learn vital skills for their jobs overseas, or to train their UK colleagues.  Although prospective transferees need not have been employed previously by the sponsoring organization, they still must meet specified minimum salary and maintenance requirements.

Tier 5 (Temporary Worker—Government Authorised Exchange)

This route is intended for migrants moving to the UK to participate in pre-approved schemes to share knowledge and experience through work, research, language, or training programs. The primary purpose of this category is to encourage social and cultural learning through life in the UK.  Migrants in this category may stay in the UK for up 24 months for research, training, or language programs, or up to 12 months for work schemes.  Applicants must meet minimum maintenance requirements.

 
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2. BELGIUM
 

Various developments have been announced.

Transfer of Legislative Power From Federal to Regional Level

Transfer of legislative power from the federal to regional level was effective July 1, 2014 (in practice probably only as of January 1, 2015).

Belgian legislation with regard to immigration (residence permits, work permits for employees, and professional cards for the self-employed) has been federal.  Jurisdiction over issuing residence permits (Foreigners' Office) and professional cards (Ministry of Economic Affairs) has also been federal.  The authority to issue work permits, however, is regional (Belgium's three regions are Brussels, Flanders, and Wallonia).

As of July 1, 2014 (in practice probably only as of January 1, 2015), part of the legislative power regarding work permits and professional cards has been transferred to the regions.  Below is a summary of the new rules.

In principle, the regions will have legislative authority over work permits A and B and professional cards, including the exemptions that are not based on the specific residence situation of the foreign employee or the self-employed.  This implies that the regions will be responsible for the regulations and their application, inspection, and compliance (although some federal authorities will continue to have inspection power).

However, the rules with regard to work permits C (work permits issued on the basis of the specific residence situation of the employee) and related work permit exemptions, as well as the rules with regard to exemptions for professional cards issued on the basis of the specific residence situation of the self-employed will remain federal.

In practice, this will probably have the following impact:

  • The regions can establish rules for highly skilled workers and executives (work permit B) and foreign self-employed businesspeople (professional cards).  The regions can also decide when a work permit of indefinite duration (work permit A) can be obtained.  Finally, the regions can also determine the activity-based exemptions for work permits and professional cards.
  • The federal authorities will continue to determine which foreigners who came to Belgium for purposes other than work and who reside in Belgium (e.g., asylum seekers, some family members of foreigners, students) are eligible for work permits (i.e., work permits C) or a work permit exemption.  The rules with regard to exemptions for professional cards issued on the basis of the specific residence situation of the self-employed (e.g., refugees) will remain federal.

The impact will not be immediate.  At present, no new rules have been issued with regard to work permits and professional cards.  As long as there are no such new rules, the federal legislation will continue to be applied.  The regional authorities are likely to continue to apply the existing federal rules until at least the end of 2014.

With regard to professional cards, a protocol appears to have been agreed upon between the regions and the federal Ministry of Economic Affairs.  Pursuant to this protocol, the transfer to the regions would be scheduled to take effect on January 1, 2015.  Further postponement is not excluded.  In any event, professional card applications will continue to be processed by the federal Ministry of Economic Affairs until at least the end of 2014.

Change of Administrative Practice for Renewal of Residence Permits "A"

Under Belgian law, a foreigner who wants to renew a residence permit A (valid for a definite term) must file a renewal application with his or her municipality between the 45th and 30th day before the expiration of the current residence permit.  A renewed residence permit on the basis of a work permit is valid for the duration of the work permit plus one month.

In practice, 30 to 45 days very often does not suffice for the processing of the renewal.  The municipality must forward the file to the Foreigners' Office for approval.  Upon receipt of this approval, the municipality invites the foreigner to "order" the new residence permit, which is produced by an external company.  The standard production time ranges between two and three weeks (expedited production is possible, if a higher administrative fee is paid).  To cover the foreigner's residence in Belgium in the meantime, a temporary document (Annex 15) can be issued, but this is not an ideal solution.  For example, the Annex 15 does not allow re-entry into Belgium after travel abroad.

With regard to renewals, Maggie De Block, the Secretary of State for Asylum and Migration, announced in a policy statement to Parliament in November 2013 a simplified process for renewal of residence permits A.  The new system implies that a foreigner will be invited to submit the documents required for renewal directly to the Foreigners' Office at least three months before the residence permit expires.

The Foreigners' Office has already started applying this simplified process for renewal of residence permits A.  Foreigners—or third parties who represent or assist them—can email or fax the required documents directly to the Foreigners' Office.  Upon approval of the renewal application, the Foreigners' Office will inform the municipality, which will in turn invite the foreigner to order the residence permit.

This new administrative practice has not yet been officially communicated to the public, but is already being applied by the Foreigners' Office, as noted above.

In practice, it remains uncertain whether this process will result in expedited processing.  One of the documents that must be sent to the Foreigners' Office is the renewed work permit, which is forwarded by the Ministry to the municipality, where it must be collected by the employee or third parties who represent/assist the employee.  In general, most municipalities will forward the file to the Foreigners' Office for approval at the same time as the collection of the work permit.  Direct forwarding by the employee to the Foreigners' Office will not result in a considerable gain of time.

This could be different if the Foreigners' Office could process the file on the basis of the renewed employment authorization, which is sent by the Ministry to the employer approximately one week to 10 days before the work permit is available for collection.  In practice, however, the Foreigners' Office still requires the work permit.

2014 Annual Adjustment of Salary Threshold for Blue Card

A Royal Decree, dated December 26, 2013, and published in the Belgian Official Journal of January 24, 2014, inserted a new formula for annual adjustment of the Blue Card salary threshold.  Such annual adjustment will be made every January 1 and must, in principle, be implemented by means of a separate Decree.

Pursuant to the new formula, the amount for 2014 is €50,974 (instead of €49,995 for 2012 and 2013).  This new threshold amount was determined and confirmed officially in the Belgian Official Journal of April 24, 2014.

Salary Threshold for Fast-Track Highly Skilled Work Permits

The highly skilled work permit is only available to employees whose annual gross salary exceeds a threshold.  This threshold has been noted in article 67 of the Belgian Employment Contracts Act.  Due to a major reform of this Act, article 67 has been abolished.  In practice, the authorities will for now (and probably for the rest of the year) continue to apply the 2014 threshold amount of €39,422.

Volunteer Work by Foreign Nationals Legally Residing in Belgium

Until June 28, 2014, volunteer work was covered by the Belgian Work Permit Act and was only possible for foreign nationals eligible for work permit exemptions.  Other foreign nationals required a work permit, which, in practice, was not possible for unpaid work.

As of June 28, 2014, foreign nationals legally residing in Belgium (valid residence permit/title required) can work as volunteers.  However, the work must be volunteer work under the law and cannot be a basis for obtaining authorization to reside in Belgium.

Volunteer work is legally defined as follows:

  • The work must be unpaid and voluntary work for (i) one or more people, other than the volunteer, (ii) a group or organization (nonprofit), or (iii) the society as a whole;
  • The work must be organized by someone outside of the family or private circle of the volunteer; and
  • The volunteer cannot do the same work for the same organization on the basis of an employment contract, a service contract, or an appointment as a civil servant.
 
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3. CANADA
 

There are new requirements for specialized knowledge workers.

Employers applying for work permits under the intra-company transfer stream (labour market opinion [LMO] exemption) must provide evidence of a qualifying relationship between the Canadian and foreign employer and evidence of the existence of a qualifying relationship between the employer and the temporary foreign worker.  Additionally, the prospective temporary foreign worker must qualify under one of the following occupational categories: Executives and Senior Managers, Functional Managers, or Specialized Knowledge Workers.

For each intra-company transfer occupational category, a temporary foreign worker must meet specific qualifications for this LMO exemption.  In the past, qualifying for the Specialized Knowledge Worker category required the temporary foreign worker to demonstrate specialized knowledge that was unique or to possess an advanced level of knowledge or expertise in the organization's processes and procedures.  Typically, a Specialized Knowledge Worker would hold a position critical to the well-being of the enterprise, while not necessarily being responsible for managing employees or possessing a budgetary responsibility.

"Specialized knowledge" was previously defined as "unusual and different from that generally found in a particular industry."  Advanced knowledge is defined as a complex or high level of knowledge that is not necessarily unique or known by a few individuals (or proprietary).  Other factors that were considered included under which National Occupational Classification (NOC) code the position qualified, education, experience, salary, and the amount of training that would be required for a position that requires specialized knowledge.

Effective June 9, 2014, temporary foreign workers must meet new requirements to qualify under the specialized knowledge intra-company transfer LMO exemption.  Now, temporary foreign workers must demonstrate a high degree of both proprietary knowledge and advanced expertise.  Specialized knowledge is considered to be knowledge that is unique and uncommon.  The onus is on the employer to demonstrate that the temporary foreign worker's specialized knowledge and temporary employment in Canada will play a key role in the Canadian company's competitiveness in the marketplace.

Additional new requirements under this LMO exemption category include the Canadian company's mandatory direct employment and supervision of the temporary foreign worker.  The Canadian company should provide training to the specialized worker.  The specialized knowledge worker may not receive any training by other employees of the Canadian company that would lead to the displacement of Canadian workers.

Finally, to qualify as a specialized knowledge worker, the employee must be paid the prevailing salary wage for the position's corresponding NOC code (dependent on location), as determined by the government's working wage website.  This new requirement is based on the belief that an individual who possesses specialized knowledge should earn a salary that is consistent with such work.  Therefore, the worker is entitled to the prevailing wage and generally receives an above-average salary for that position.  Non-cash per diem payments for costs such as hotel and transportation are not considered as part of the overall salary calculation.

These new policy changes dramatically toughen this category and mean that many specialized knowledge professionals will no longer qualify for work permits to Canada.  The new requirements are a blow to Canadian businesses relying on the specialized category for short-term transfers, client-requested integration or standardization specialists, secondments, and short-term work sharing and/or exchange programs.

 
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4. ITALY
 

Various developments have been announced.

Permit of Stay for Those Losing Employment Before the Contract of Stay is Signed

Council State (the court where decisions of first instance from Administrative Courts are appealed) declared on June 23 2014, that an individual who enters Italy with a subordinate work visa (to be hired by an Italian employer) and is not able to execute the contract of stay because the employer is no longer in business cannot be refused the permit of stay but must be given a one-year permit per attesa occupazione (a type of permit that allows the individual time to search for a new job).

New Start-Up Visa Program

To attract innovative foreign entrepreneurs, the Italian government has established a new "Startup Visa" program.  The following website provides relevant information and guidance for the start-up visa application process: http://italiastartupvisa.mise.gov.it/#landing-section.

Deadline Extended for Quota Applications for Some Worker Categories 

The Italian government has extended until December 31, 2014 (previous deadline was August 20, 2014) the deadline for filing quota applications for workers trained abroad and for conversion of CE permits issued by other EU countries into subordinate or autonomous work permits.

 
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5. RUSSIA
 

A new law has been enacted.

Under a new federal law (#142-FZ) dated April 6, 2014, as of August 4, 2014, the following groups of people must file notification: Russian nationals who permanently reside in the territory of the Russian Federation and those who:

?. have another foreign citizenship or permanent resident status or any other valid document that gives the right to permanently reside in a foreign country;

B. have obtained another foreign citizenship or permanent resident status or any other valid document that gives the right to permanently reside in a foreign country;

C. are a Russian national who is a legal representative of a Russian national who is under 18 years old or incapacitated;

D. are a foreign national who is a legal representative of a Russian national who is under 18 years old or incapacitated; and

E. citizens of the Republic of Crimea (the rules will be applied to this group of people as of January 1, 2016).

Russian citizens who permanently reside outside of Russia do not need to file this notification.  This includes those who have the relevant mark in their Russian passport and/or departure sheet in accordance with Federal Migration Service (FMS) Decree (#288) dated November 9, 2012.  Registration at the Russian consulate abroad does not affect the status of a Russian national.

The notification should be filed in the following cases and within the following terms:

  • As of August 2014, those who possess another foreign citizenship or permanent resident status or any other valid document that gives the right to permanently reside in a foreign country, within 60 days;
  • Those obtaining another foreign citizenship or permanent resident status or any other valid document that gives the right to permanently reside in a foreign country, within 60 days as of the date of obtaining another foreign citizenship or permanent resident status or any other valid document that gives the right to permanently reside in a foreign country.

The date of obtaining another foreign citizenship or any other valid document that gives the right to permanently reside in a foreign country, and the status of the document that gives the right to permanently reside in a foreign country, are defined in accordance with the internal legislation of the relevant foreign country.

The authority responsible for receipt of notifications is the regional office of the FMS:

  • based on the place of permanent residence within the territory of the Russian Federation; or
  • failing this, based on the place of temporary stay within the territory of the Russian Federation; or
  • failing both, based on the place of actual location within the territory of the Russian Federation.

Notifications can be filed in person, or in the stipulated order by post, provided a sender presents his or her Russian passport or other identification document valid in the territory of the Russian Federation.  The notification can be sent to the address of the regional FMS office only through the official Post of Russia.  It is essential that the list of enclosures contains the stamp of the Post of Russia.

If a Russian citizen located abroad files a notification in accordance with the aforementioned provisions, he or she should send it to the Russian Federation via the Post of Russia.  Russian consulates are not authorized to accept such notifications.

The FMS has not yet approved the form of such a notification.  However, the law stipulates the list of information that should be included in the notification:

a) full name;

b) date and place of birth;

c) place of residence (failing this, place of stay; failing both of these, actual location);

d) number of Russian passport or other identification document valid in the territory of the Russian Federation;

e) proof of foreign citizenship, number and date of issue of a foreign passport or another document confirming foreign citizenship, and/or indication of a permanent residence document in a foreign country, its number and date of issue;

f) date and grounds for obtaining another citizenship or obtaining the document that gives the right to permanently reside in a foreign country;

g) information on renewal a permanent residence document in a foreign country or about receipt of a new relevant document;

h) information on application for withdrawal of citizenship or residence in a foreign country (if applicable).

The list of required documents includes:

  • A copy of the passport of a foreign country or another document that gives the right to permanently reside in a foreign country;
  • A copy of a Russian passport.

Failing to file such a notification is punishable by a fine of up to 200,000 rubles or in the amount of the salary or another source of the person's income for up to one year, or by compulsory community service for a term of up to 400 hours.

A violation of the stipulated order for notification filing by an untimely filing, filing of incomplete information in the application, or deliberate misrepresentations is subject to administrative fines of 500 to 1,000 rubles.

The FMS has authority over compliance with these requirements.  Due to the lack of subordinate legislation on this issue, it is not possible to clarify control procedures.

 
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6. UNITED KINGDOM
 

Various developments have been announced.

No More Extensions for Tier 1 (General) Migrants

Following changes to the Immigration Rules in April this year, migrants holding a Tier 1 (General) visa will no longer be able to extend their leave after April 5, 2015, or apply for indefinite leave to remain (ILR) in the United Kingdom (UK) after April 5, 2018.

Extensions

The Tier 1 (General) category first opened to migrants in 2008 but was subsequently closed to new applicants after April 5, 2011.  To remain in the UK in this category, those migrants who have a visa expiring on or before April 5, 2015, should ensure that they submit their extension application in a timely manner before this date.

The rule changes also provide for an increase in the maintenance requirement for all tiers.  Specifically, the maintenance requirement for migrants in the Tier 1 (General) category rose from £900 to £945 effective July 1, 2014.

Indefinite Leave to Remain

Where possible, these migrants should also submit an application for ILR once they have resided in the UK for 5 years either solely in the Tier 1 (General) category, or in combination with another category, where permitted by the Immigration Rules.  In any event, they will need to do so before April 5, 2018, after which date ILR in this category will no longer be an option.

To qualify for ILR in the Tier 1 (General) category, migrants will need to meet the strict residency requirements of keeping their absences from the UK below 180 days per year in any 12-month period over the 5 years preceding an application for ILR, counting backwards from the date of submission of the application.

Further Update on the ETS TOEIC and TOEFL English Test

On June 10, 2014, the Home Office announced that ETS BV would be removed from the approved list of Secure English Language Test (SELT) suppliers on July 1, 2014.  Appendix O will be updated.

Transitional arrangements will be in place to ensure that genuine applicants who have not yet applied for a visa overseas are not unduly affected by this change.  Migrants based overseas were able to make a visa application relying on an ETS certificate as long as the visa application was made and the visa fee paid before July 22, 2014.

For migrants already in the UK and wishing to apply for further leave to remain, the Home Office advised that a certificate from an alternative provider should be submitted, to avoid having the application delayed pending further inquiries.

Home Office Announces Launch of 24-Hour Visa Service for Chinese Nationals

On June 16, 2014, Home Secretary Theresa May announced further improvements in the processing of visitor visas for Chinese nationals.  Beginning in August, a priority 24-hour visa service will be rolled out across China for all visitor applicants for a fee of £600.

In the same speech, she confirmed that talks are ongoing between the UK and European partners to enable a single application procedure for both a UK and a Schengen visa, which allows travel to other EU countries at the same time.  Now those applying online will be able to automatically generate a partially completed Schengen form at the same time as they complete their UK application.  This facility was only available to tour groups but will be rolled out to independent travelers this summer.

New British-Irish Visa Scheme for Indian and Chinese Nationals

Home Secretary May also announced on the same day that the Home Office, along with the Irish Department of Justice & Equality, would soon be introducing the "British Irish Visa Scheme" between the UK and Ireland.

This new scheme will apply to Chinese and Indian national business and tourist visitors, allowing them to travel to and around the UK and Ireland on a single short-stay visa.  Business and tourist visitors from India and China who wish to travel to both the UK and Ireland will no longer require separate UK and Irish visas.

This reciprocal visa arrangement is expected to start in autumn 2014.  It is likely that applicants will need to apply for the visa to the embassy/consulate/High Commission of the country of first arrival or maximum stay, as with Schengen visas.  The visa will then allow the holder to travel freely around the Common Travel Area (CTA) of the UK and Ireland for the duration of the visa.

Note that this scheme only applies to business and tourist visitors only and does not apply to individuals wishing to work in either the UK or Ireland.  The UK and Irish authorities will continue to monitor this scheme and, as appropriate, will include other nationalities.

 
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7. New Publications and Items of Interest
 

The 2014 edition of the Global Business Immigration Practice Guide has been released by LexisNexis.  Dozens of members of the Alliance of Business Immigration Lawyers co-authored and edited the guide, which is a one-stop resource for dealing with questions related to business immigration issues in immigration hotspots around the world. 

The 2014 edition adds a chapter on Singapore.  Other chapters cover Australia, Belgium, Brazil, Canada, China, Costa Rica, the European Union, France, Germany, Hong Kong, India, Ireland, Israel, Italy, Japan, Mexico, the Netherlands, Nigeria, Russia, South Africa, Spain, Switzerland, Turkey, the United Kingdom, and the United States.

Latchi Delchev, a global mobility and immigration specialist for Boeing, called the guide "first-rate" and said the key strong point of the book is its "outstanding usability."  She said she highly recommends the book and notes that it "is helpful even to seasoned professionals, as it provides a level of detail which is not easily gained from daily case management."

Mireya Serra-Janer, head of European immigration for a multinational IT company, says she particularly likes "the fact that the [guide] focuses not just on each country's immigration law itself but also addresses related matters such as tax and social security issues."  She noted that the India chapter "is particularly good.  The immigration regulations in India have always been hard to understand. Having a clear explanation of the rules there helps us sort out many mobility challenges."

Charles Gould, Director-General of the International Co-operative Alliance, said the guide is "an invaluable resource for both legal practitioners and business professionals.  The country-specific chapters are comprehensive and answer the vast majority of questions that arise in immigration practice.  Its clear and easy-to-follow structure and format make it the one volume to keep close at hand."

This comprehensive guide is designed to be used by:

  • Human resources professionals and in-house attorneys who need to instruct, understand, and liaise with immigration lawyers licensed in other countries;
  • Business immigration attorneys who regularly work with multinational corporations and their employees and HR professionals; and
  • Attorneys interested in expanding their practice to include global business immigration services.

This publication provides:

  • An overview of the immigration law requirements and procedures for over 20 countries;
  • Practical information and tips for obtaining visas, work permits, resident status, naturalization, and other nonimmigrant and immigrant pathways to conducting business, investing, and working in those countries;
  • A general overview of the appropriate options for a particular employee; and
  • Information on how an employee can obtain and maintain authorization to work in a target country.

Each chapter follows a similar format, making it easy to compare practices and procedures from country to country.  Useful links to additional resources and forms are included.  Collected in this Practice Guide, the expertise of ABIL's attorney members across the globe will serve as an ideal starting point in your research into global business immigration issues.

The list price is $299, but discounts are available.  Contact your Lexis/Nexis sales representative; call 1-800-833-9844 (United States), 1-518-487-3385 (international); fax 1-518-487-3584; or go to the Lexis/Nexis website.

ABIL on Twitter. The Alliance of Business Immigration Lawyers is now available on Twitter: @ABILImmigration. RECENT ABIL MEMBER BLOGS

 
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8. Member News
 

Garfinkel Immigration Law Firm is excited to announce the recent appointment of Managing Partner and North Carolina Board Certified Immigration Law Specialist Steven H. Garfinkel to the Charlotte Regional Partnership's Board of Directors for the 2014-2015 fiscal year.  The Charlotte Regional Partnership is a nonprofit economic development organization in Charlotte, North Carolina, which advocates for job creation, long-term growth, and investment opportunities in the Charlotte area. MORE INFORMATION

Robert Loughran presented to the University of Texas Club League of Business Leaders Luncheon on July 14, 2014.  His presentation on immigration reform outlined current problems in the immigration system as well as developments in the unaccompanied minor crisis on the Texas border.

Cyrus Mehta has authored a new blog entry.  "Unaccompanied Child Migrants to the United States: Drop in the Bucket and So Much Hype

Stephen Yale-Loehr was quoted on PolitiFact in an article on statements by Rick Santorum about undocumented immigration.  He noted that deferred action for childhood arrivals does not apply to children arriving on or after June 15, 2012. 

Mr. Yale-Loehr was quoted in articles at the following links: June 30: FORBES and July 1: CNN

Mr. Yale-Loehr spoke on two panels at an EB-5 finance course sponsored by the Council of Development Finance Agencies (CDFA) in Washington, DC, on August 12, 2014.  CDFA is a national association dedicated to the advancement of development finance concerns and interests. 

 
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