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1. EU BLUE CARDS: BELGIUM, FRANCE, ITALY - This article provides an overview of three countries' policies on EU Blue Cards.
2. BRAZIL - The Mercosur Agreement on residence is implemented for Ecuadorians.
3. CHINA - The United States and China reach agreement to extend visas for short-term business travelers, tourists, students, and exchange visitors.
4. FRANCE - New work permit forms are effective January 1, 2015.
5. INDIA - India has issued a new electronic visa.
6. ITALY - The Italian government has released new quotas for apprenticeship and internship programs. Also, failure to report presence in Italy will now result in fines.
7. POLAND - Poland regards special economic zones as an important instrument to stimulate foreign investment in Poland. There are new investment opportunities in Polish real estate 12 years after Poland's accession to the EU.
8. RUSSIA - Various developments have been announced.
9. UNITED KINGDOM - Various developments have been announced.
10. New Publications and Items of Interest - New Publications and Items of Interest
11. Member News - Member News
 

 
 
1. EU BLUE CARDS: BELGIUM, FRANCE, ITALY
 

The Blue Card is used throughout the European Union (EU) as a work permit for high-skilled, non-EU persons. The idea is to improve the EU's ability to attract highly qualified workers from other countries. This article provides an overview of three countries' policies on EU Blue Cards.

Belgium

In Belgium, the EU Blue Card threshold for the annual gross salary is set at €51,465 for 2015 (this amount is adjusted every year on the basis of a formula linked to an index reflecting the cost of living). The annual gross salary for the Brussels region is €51,466 for 2015. The employee must be the holder of a degree from a higher education institution, which is recognized as such in its country. The degree can be a degree, certificate, or other document confirming that a higher education program with a duration of at least three years has been successfully completed. Professional qualifications are not taken into account.

The Blue Card has not yet become a success in Belgium. If both the conditions for obtaining temporary employment authorization in the framework of the Blue Card and the conditions for obtaining employment authorization for a highly skilled worker in the framework of the work permit B are fulfilled, the employer can choose which option to follow. One may be tempted to apply for a highly skilled work permit B because of the lower threshold and the faster processing time (two to three weeks).

France

France has created a new immigration category by implementing the EU Blue Card directive, to attract skilled workers from third countries and facilitate their mobility and permanent residence within the EU.

Law no. 2011-672 of June 16, 2011, had set up the legal framework for creation of the EU Blue Card in French national legislation. Decree no. 2011-1049 of September 6, 2011, provided implementation regulations.

The qualifying criteria are in accordance with the criteria stated in the EU directive:

  1. An employment contract with a duration of one year or more.
  2. 1.5 times the average salary of reference. Today this threshold salary amounts to €52,750,50.
  3. A three-year higher education diploma or equivalent knowledge gained through five years of experience.

A qualifying third country national is issued a joint residence and work permit for the length of employment, with a maximum validity of three years, renewable. An accompanying spouse is issued a Private and Family Life category work permit, renewable annually for as long as the main applicant has a valid Blue Card permit.

The Blue Card is also issued to a third country national who already holds a Blue Card issued by another member state and wants to accept employment in France after 18 months of residence under the initial Blue Card. The application is made within one month of arrival in France. The applicant need not present a long-stay French visa.

The Blue Card permit is issued without labor market testing.

A Blue Card holder and his or her spouse can qualify for the EU long-term resident permit after five years of residence under the Blue Card in the EU, of which only the last two years must be in France.

French authorities have up to 90 days to adjudicate the Blue Card application and up to 6 months to adjudicate the accompanying spouse residence permit.

What Has the Blue Card Changed?

There were two immigration categories available before the Blue Card for skilled workers: (1) the Skills and Talents work permit and (2) the Intra-Company Transfer work permit. Both of these categories have been maintained along with the Blue Card.

The Skills and Talents work permit is adjudicated on a case-by-case analysis of the merits of the application. The selection criteria may vary in time and are determined by a commission. An employment contract is not a requisite.

The Intra-Company Transfer permit is appropriate in the framework of a transfer of an employee within the same corporate group. It does not apply to a new hire.

As with the Blue Card permit, these two permits are valid for three years, renewable.

The advantages of the Blue Card are:

  • It does not require an intra-company prior employment. 
  • Renewal may be easier.
  • Mobility within EU is facilitated.
  • Acquisition of long-term resident status is facilitated.
  • The qualifying criteria are very precise (leaving less room for the discretion of the government).

The Blue Card is very good news for skilled third-country nationals who are unable to qualify under the existing categories.

Italy

Blue Card Directive implementation in Italy has made it possible for Italian companies to hire non-EU nationals—provided that they are highly specialized—without being subject to the numerical restrictions set forth in immigration law for all other categories of workers.

To apply for a Blue Card permit in Italy, the worker must be offered a minimum salary of €25,500 per year (gross). The worker's diploma is not only legalized at the Italian consulate but also "validated" (i.e., the consulate must check university transcripts and in some cases also high school). This makes processing time longer than in other EU countries.

 
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2. BRAZIL
 

The Mercosur Agreement on residence is implemented for Ecuadorians.

As of September 18, 2014, the Federal Police and the Brazilian consulates abroad are accepting requests for temporary residence from nationals of Ecuador based on the Mercosur Agreement. Now Ecuadorian nationals can come to live in Brazil without the need to first apply for a work or student visa. The same treatment is being applied to Brazilian nationals who want to live in Ecuador.

The following countries are parties to the Mercosur Agreement on Residence for Nationals of Member and Associated Countries:

  • As Member Countries: Brazil, Argentina, Uruguay, Paraguay
  • As Associated Countries: Bolivia, Chile, Colombia, Ecuador, Peru

The process for obtaining residence under the Mercosur Agreement begins with obtaining temporary residence for a two year-period, which can be applied for either directly at the Federal Police in Brazil (regardless of whether the foreigner's stay is regular or irregular in Brazil) or at the Brazilian consulate abroad before coming to Brazil. Ninety days before the end of the term of temporary residence, the foreigner must apply for change of status to permanent residence, for which he or she must prove self-support in Brazil.

Ordinance No. 1,351 of August 8, 2014, and its amendments, which simplify the procedures for change of status from temporary to permanent residence for Mercosur residents as well as for registration at the Federal Police, became effective September 1, 2014. The new rules guarantee foreigners the right to permanent residence and issuance of an Identification Card for Foreigners, provided that all required documents are submitted with the application.

 
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3. CHINA
 

The United States and China reach agreement to extend visas for short-term business travelers, tourists, students, and exchange visitors.

During his visit on November 8-10, 2014, to the Asia-Pacific Economic Cooperation (APEC) Summit in Beijing, U.S. President Obama announced that the U.S. and China have reached an agreement to extend the visa validity of short-term business, tourist, student, and exchange visitor visas.

According to the U.S. Department of State, starting November 12, 2014, Chinese applicants who qualify as B visitors may be issued multiple-entry visas for up to 10 years for business and tourist travel. Qualified Chinese students and exchange visitors and their dependents who qualify for F, M, or J visas are now eligible for multiple-entry visas valid for up to 5 years or the length of their program. The period of authorized stay for these visa categories is not affected.

Under the agreement, U.S. citizens eligible for Chinese short-term business and tourist visas can also receive multiple-entry visas valid for up to 10 years, while qualified U.S. students may receive student residence permits valid up to 5 years, depending on the length of their educational programs. It is unclear when the new agreement will become effective in China and how it will be implemented under current Chinese immigration laws and regulations.

The reciprocal extension of visa validity to 10 years for short-term business and tourist travel between China and the United States seeks to increase travel and exchange, enhance mutual understanding between the two countries, and benefit the economy. This is a step in the right direction. It will be interesting to see whether longer terms will also be granted to Chinese and Americans holding work visas in the future.

 
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4. FRANCE
 

New work permit forms are effective January 1, 2015.

For new work permit forms effective January 1, 2015, the employer abroad, the host company in France, and the employee now must provide additional information, summarized below.

Information Required From the Home Company Abroad

a) Registration number or employer ID number of the home company and the name of the registration authority (e.g., the commercial registry and the chamber of commerce).

b) Date of creation of the company.

c) Name of the legal representative of the home company.

d) Main activity of the home company.

e) For intra-company transferees, website or weblink to the Internet page showing the link between the home company and the French host company plus the date of acquisition or date of creation of the French affiliate company.

f) For the international provision of services, the total cost of the services to be provided and the copy of the service agreement between the employer and the client in France.

g) In the absence of a social security bilateral agreement between the home country and France, registration of the foreign employer with the French social security administration for payment of the French social security contribution. Evidence must include proof of registration with Centre National Firmes Etrangères (CNFE, Foreign Firms National Center) and Humanis International in the work permit application. However, these documents may not be available for the very first work permit application and clarification may be needed on what other documents may be provided in lieu of the registration certificates, such as a sworn statement from the employer.

Information Required From the Host Company in France

a) For intra-company transferees, the role of the French entity in the corporate group and the date on which the French entity came under control of the group or was formed.

b) Details of the agent representing the foreign employer in France for the purpose of co-coordinating the work permit application, and the entity responsible for paying the government fees.

c) In case of regulated activity, the identity of the regulating body, and proof and details of certification.

d) The monthly or annual gross salary applicable for an equivalent position in the host company (or in the sector of activity in case of international provision of services), excluding any payment-in-kind.

Information and Documents Required From the Employee

a) Copy of initial employment contract or, if not available, copy of the initial employment offer letter.

b) Copy of employment certificates from previous employers proving adequate professional experience (does not apply to intra-company transfers and secondments).

As noted above, starting January 1, 2015, work permit applications must be made on new forms. Work permits issued by the authorities before this date remain valid.

As some of the requirements may be difficult to fulfill immediately or in a timely manner, adjustments may be made during an interim period. Stay tuned.

 
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5. INDIA
 

India has issued a new electronic visa.

The government of India has introduced an E-Visa (electronic visa) for 43 countries. The new online system will allow travelers to apply for a visa from home and receive it within 72 hours. A traveler must apply for this visa at least four days before entering India and will only be eligible for two of these visas within a calendar year.

The E-Visa will be valid for 30 days and the fee is $62. Those traveling for leisure, short duration medical treatment, a casual business visit, or to meet friends and relatives will be eligible to apply. The E-Visa will be made available at nine airports, including Delhi, Mumbai, Bengaluru, Chennai, Kochi, Goa, Hyderabad, Kolkata, and Thiruvanathapuram.

The E-Visa will be valid for 30 days and the fee is $62. Those traveling for leisure, short duration medical treatment, a casual business visit, or to meet friends and relatives will be eligible to apply. The E-Visa will be made available at nine airports, including Delhi, Mumbai, Bengaluru, Chennai, Kochi, Goa, Hyderabad, Kolkata, and Thiruvanathapuram.

Countries included in the first phase are Australia, Brazil, Fiji, Finland, Germany, Israel, Japan, Jordan, Kenya, Mauritius, Mexico, Norway, Oman, the Philippines, Russia, Singapore, South Korea, Ukraine, the United Arab Emirates, and the United States, among others. The Indian government plans to offer the E-Visa to almost every country in the world over time.

 
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6. ITALY
 

The Italian government has released new quotas for apprenticeship and internship programs. Also, failure to report presence in Italy will now result in fines.

15,000 new quotas have been issued to allow non-EU nationals to come to Italy for apprenticeship and internship programs. This amount includes:

  • 7,500 quotas for those foreigners coming for apprenticeship programs organized by authorized institutions. Upon completion of the program, the foreigner will receive from the organizing entity a certificate showing the acquired skills;
  • 7,500 quotas for those foreigners coming for internships to complete a course of study in the home country.
Also, through Law no.161/2014, the Italian government has implemented changes to Italy's Immigration Law (Decree no. 286/1998), mainly in relation to procedures for expulsions and repatriations of undocumented immigrants. The most significant change, which would mostly affect business visitors, is the introduction of a fine of €103 to €309 for foreigners who fail to declare their presence to the police within eight days of entry. Such report must be filed, for example, by non-visa nationals who enter Italy from another Schengen country and who are not staying in a hotel.
 
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7. POLAND
 

Poland regards special economic zones as an important instrument to stimulate foreign investment in Poland. There are new investment opportunities in Polish real estate 12 years after Poland's accession to the EU.

Poland can be considered an alternative for corporate immigration as compared with other economies of East-Central Europe. Two factors provide the basis for the increased activity of foreign capital in Poland: the development of special economic zones and the lifting of limitations on purchasing real estate by foreigners in Poland.

As with other countries (e.g., China), Poland regards special economic zones as an important instrument for attracting foreign investors. Special economic zones are designated industrial areas prepared for investment for foreign entities. In return for allocating production and operation of the company in Poland, the investor receives a special, beneficial legal status with respect to tax obligations. The primary benefit of investing in the special economic zones is property tax exemption and, above all, income tax exemption, the scale of which depends on the volume of investment. Investments in the special economic zones in Poland require a permit issued in administrative proceedings. According to the latest data, there are more than 7 thousand hectares of land waiting in Poland for foreign capital in the special economic zones.

In the near future, new rules will come into force on state aid granted to entrepreneurs operating under permits to conduct business activity in the special economic zones. The rules will facilitate provisions regulating the proportion of public funds in the investments and the method of accounting for the investments.

The attractiveness of the local market for corporate immigration depends to a large extent on the legal status of the commercial real estate market. In this respect, the current status of the Polish real estate sector has been presented in the annual report of the Polish government devoted to the acquisition of real estate by foreigners (individuals and corporate entities). The report for 2014 highlights the activity of German, Dutch, and Ukrainian capital in Poland. The reports, prepared annually by the Minister of Internal Affairs and Administration, extensively and accurately presents international trading in Polish real estate.

According to the report, in 2013, foreigners were granted a total of 252 permits for the acquisition of land property with a total area of 697.15 hectares. The vast majority of applications had been approved. In Poland, the acquisition of real estate by foreigners requires, in principle, a permit from the Minister of Internal Affairs and Administration. The source of legal restrictions is the Act on the acquisition of real estate by foreigners as of March 24, 1920. The relevant permit is also necessary for the purchase or acquisition by foreigners of shares in companies that are owners or perpetual users of real estate. By May 1, 2016, the permit also will be required for the purchase of forest and agricultural real estate by EU/EEA entities. Such status follows from the transitional provisions of the Polish accession to the EU.

 
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8. RUSSIA
 

Various developments have been announced.

New Labor Regulations for Foreigners

As of December 12, 2014, all employers of foreign nationals must:

  • Sign unlimited term agreements with foreign employees, with a number of exceptions such as labor agreements with general directors or chief accountants and/or when the employer is a representative or branch office;
  • Include in the labor agreements with foreign nationals details confirming the right of a foreign national to perform work activities in Russia, including work permits, work patents, and temporary or permanent residence permits; and
  • Include in the labor agreements with foreign nationals details of the medical insurance offered, including either a medical insurance certificate or agreement between the employer and insurance company for provision of medical insurance. Medical insurance supplied by the employer must include the right to first aid and immediate medical care.

As of December 12, 2014, all employers of foreign nationals have the right to:

  • Transfer a foreign employee to another position within the company for a period limited to one month within a calendar year without first applying for a work permit amendment; and
  • Suspend a foreign employee from work activities for up to one month if the employee's work permit expires. Previously employers were required to terminate labor agreements with this category of foreign employee.

Background. As of December 12, 2014, a new chapter was introduced to the Russian Labor Code to regulate employment of foreign nationals and stateless persons in Russia. The Russian Labor Code fully applies to foreign nationals, except for a number of specific rules introduced by the new chapter and migration legislation.

The most important provision of the new legislation is that employers and lawyers are no longer divided by the dilemma about whether to sign limited-term or unlimited-term labor agreements with foreign employees. Now the legislation explicitly states that as a general rule an unlimited term labor agreement must be signed.

The second clarification came in the form of regulations regarding medical insurance for foreign nationals. Previously, the law did not contain any specific guidelines as to what services medical insurance should include. With the new legislation, employers must ensure that the medical insurance they provide to their foreign employees guarantees first aid and immediate medical care.

Increase in State Duty Fees for 2015

An increase in state duties applies beginning in 2015:

1.    State duty for issue or extension of a visa

  • Exit visa from Russia – 1,000 rubles
  • Multiple visa – 1,600 rubles

2.    State duty for an invitation letter – 800 rubles

3.    State duty for an employment permit issued to the employer – 10,000 rubles

4.    State duty for an individual work permit – 3,500 rubles

New Fingerprinting Procedure

As of December 10, 2014, regardless of the visa type, length of stay, or number of requested entries, all Russian visa applicants must undergo fingerprinting at the Russian consular posts in the United Kingdom, Ireland, Denmark, Myanmar, Namibia, and upon arrival at Moscow's Vnukovo Airport (VKO). On November 24, 2014, President Vladimir Putin signed an order introducing this requirement for Russian consular posts at those locations to gather fingerprints from all foreign nationals applying for visas to enter Russia.

The order is the first step in a government program announced by Evgeniy Ivanov, Director of the Consular Department, Ministry of Foreign Affairs, in February 2014. The aim of the program is to introduce fingerprinting at all Russian consular posts abroad as well as upon entry to Russia. According to Mr. Ivanov, the project should be construed as a sign of visa policy modernization rather than toughening.

The impact on immigration procedures is expected to be minimal, although the introduction of the fingerprinting procedure may affect consular processing times. Applicants scheduled to file for visas at these consular posts should allow sufficient time for the visa application process.

New Legislation on Employment of Highly Qualified Specialists

Beginning January 1, 2015, submission of the following notifications regarding the employment of Highly Qualified Specialist (HQS) work permit holders will not be required:

  • Notification to the Federal Migration Service office reporting unpaid leave granted to an HQS work permit holder and exceeding one calendar month during a 12-month period
  • Notification to the Tax Authority reporting hiring/dismissal of the employee

Beginning January 1, 2015, the following notifications are introduced:

  • Notification to the Federal Migration Service office reporting hiring or dismissal of the employee within 3 business days from the day of signing or termination of the labour agreement

Penalties for violation are up to 1,000,000 rubles.

Also beginning January 1, 2015:

  • Representative offices of foreign companies will be able to sponsor HQS work permits for their foreign employees
  • Commonwealth of Independent States (CIS) citizens will be able to enter Russia using their foreign passport only

On a separate note for IT companies, the Federal Migration Service started accepting HQS work permit applications stating a lowered salary level, introduced in the summer of 2014.

Background: Effective January 1, 2015, federal law no. 357-FL significantly amends the legal act central to Russian immigration (FL 115): "On the legal status of foreign citizens in Russia." Most amendments concern CIS applicants filing for standard work permits and their prospective employers, although several sections affect HQS work permit holders.

Thus, notifications that previously had to be submitted regarding HQS work permit holders' dismissal within 30 days following the end of the year quarter in which the dismissal took place are now abolished. Instead, new notifications are introduced that must be submitted within three business days of the labor agreement termination. Additionally, the Federal Migration Service must be notified regarding signing of labor agreements with future HQS work permit holders. This also must be done within three business days. Fines for noncompliance with the new requirements are high: up to 1,000,000 rubles for each violation.

During 2013-2014, the Federal Migration Service introduced a similar requirement, which was met with a significant outcry from the business community primarily deploying the HQS work permit scheme. The requirement to report to the Federal Migration Service unpaid leave granted to an HQS work permit holder that exceeds 30 days within a 12-month period will be abolished starting in 2015. While abolition of this requirement can be seen as an attempt to relax the rules for employers engaging HQS, the need to report unpaid leave during the past several years was for many employers an exception rather than a rule.

Due to increasing communication between the Federal Migration Service and other governmental authorities, especially the Tax Authority, and further implementation of secure data-exchanging technology starting in 2015, the Tax Authority no longer must be notified of employment and dismissal of foreign nationals. These data will now be transferred between the authorities internally.

Employers should bear in mind that starting in 2015, representative offices of foreign companies can sponsor HQS work permits for their foreign employees. This means that foreign nationals working for such offices will soon be able to enjoy all the benefits associated with HQS work permit status. This beneficial amendment is somewhat related to the modified corporate registration process also introduced earlier this year.

Additionally, starting in 2015, all CIS nationals may enter Russia only using international passports. This requirement should not have much impact on employers and affected foreign employees, although employers should apply for appropriate amendments to the work permits issued for the internal passports of CIS citizens.

New Provisions on Employment of Standard Work Permit Holders

Standard work permits and visa processing are for foreign employees whose salary level is lower than 2,000,000 rubles gross per year. If an employee's salary level reaches the 2,000,000-rubles-gross benchmark, the majority of such employers opt for the HQS work permit and visa scheme, discussed above. Below is a summary of new provisions on employment for standard work permit holders, effective January 1, 2015.

For Visa (Non-CIS) Nationals:

Submission of the following notifications regarding standard work permit holders' employment will not be required:

  • Notification to the Tax Authority reporting hiring or dismissal of the employee

The following notifications are introduced:

  • Notification to the Federal Migration Service office reporting the hiring or dismissal of the employee within three business days from the day of signing or termination of the labor agreement

Penalties for violation are up to 1,000,000 rubles.

The Russian language, history, and basics of legal knowledge test applies to all categories of standard work permit applicants.

For CIS Nationals:

  • Work permits are replaced with work patents
  • Regional authorities have the right to "hire" third-party organizations to process work patent applications
  • Work patents are issued for a maximum term of 12 months
  • Work patent can be extended only one time
  • Work patents allow CIS nationals to work for private persons as well as companies
  • Income tax is paid by the work patent applicants themselves for the whole period of employment (maximum 12 months) before the work patents are issued to them
  • Work patents provide the right to work in a particular Russian region only
  • Work patents do not specify a position, which will allow for transfer without the need to amend the document
  • Application does not require an employer to apply for the initial 12-month work patent, but the employer must sponsor a subsequent extension
  • Work patent holder can work for any employer within the Russian region for which the patent was issued, except for some minor exceptions
  • Russian language, history, and basics of legal knowledge test applies to all categories of work patent applicants
  • Employers have the right to supply their employees only with medical insurance from companies registered in Russia and in some regions only from companies determined by the governor
  • Medical testing as well as fingerprinting also remain requirements

Most of the powers to issue work patents are being transferred to governors of Russian regions, who will have the right to:

  • Stop issuance of work patents any time, basing their decisions on Labor Authorities' proposals
  • Determine whether job positions should be indicated on work patents
  • Ban issuance, if the governor determines that job positions should be indicated on work patents, of patents for certain job positions as well as issue orders to dismiss all the work patent holders employed in such positions who received the patents before the ban in question was introduced
  • Determine the medical centers that can assist work patent applicants with medical examinations
  • Determine the schools and universities that can test work patent applicants on Russian language, history, and legal basics knowledge
  • Determine the insurance companies that can issue medical insurance to work patent applicants
Background. As noted above, effective January 1, 2015, Russia will no longer have the standard work permit process for CIS nationals. Instead the work patent system is being introduced. According to the new legislation, CIS nationals willing to work in Russia must declare on the migration card (special document issued by border control) that the purpose of their visit is work. Then the CIS national will have 30 calendar days to apply for the work patent. Violation of this deadline will cause the applicant to be fined up to 15,000 rubles. After paying the fine, he or she will still have the right to file the application. Once the work patent is issued, the CIS national must find employment within two months from the day of receiving the work patent and must send a copy of the labor agreement to the Federal Migration Service office that issued the patent. Should the applicant violate this deadline, his or her work patent will be cancelled by the Federal Migration Service and he or she will have the right to re-apply in a year.

Upon receipt of the work patent, the applicant must pay a fixed income tax amount, determined by the regional government. The fixed income tax amount will be set for one month. By paying this tax amount, the work patent is "extended." If the work patent holder fails to pay, his or her patent will be annulled.

The maximum validity period of the initial work patent is set at 12 months. The initial patent can be extended. But to file for an extension, an application from the employer is required. The initial patent can be extended for an additional 12 months, after which the CIS national is expected to leave the country. It is impossible to extend the work patent for the second time. This does not preclude the foreign worker from filing for another initial work patent.

Employers will not be required to sponsor initial work patent applications. Additionally, in comparison to the existing system, no quota or agreement from the Labor Authorities will be required for employers to engage CIS nationals with work patents.

This can be seen as a significant relaxation of the law, although employers whose foreign workforce primarily consists of CIS nationals may be "trapped" in their regional governor's hands. If under the current system, having survived a time-consuming bureaucratic quota application process and having received the quota places, employers were at least 99 percent sure that they would be able to engage the foreign workforce they needed, starting in 2015 this will no longer be the case. Russia regional governors will be able to stop issuance of work patents at any time, basing their decision on Labor Office opinions as well as by order that all work patent holders who are engaged in a certain type of work must be dismissed by their employers in a given time frame.

Beginning in 2015, standard work permit and work patent applicants must pass Russian language, history, and basics of legal knowledge tests. Work patent applicants will also have to accomplish many additional tasks apart from the test: pass a medical examination, undergo fingerprinting, buy insurance from the designated insurance company, personally appear at the authority or responsible third-party organization to file the application for the patent, and then subsequently appear to receive it.

The overall impact of these amendments is expected to be major. Especially affected will be companies that engage primarily CIS foreign nationals. Because none of these developments will affect the HQS work permit process, it is expected that more and more employers will look in the direction of engaging exclusively HQS work permit holders. This is even more likely in the light of companies' representative offices being granted the right to sponsor HQS work permit holders as well as the introduction of the lowered salary level for HQS work permit applications filed by IT companies.

 
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9. UNITED KINGDOM
 

Various developments have been announced.

Tier 1

Changes to the UK Tier 1 (Investor) immigration category were announced on October 16, 2014, by the Home Office. The changes were effective as of November 6, 2014, and are in response to the Migration Advisory Committee report of February 2014, which recommended significant changes to the category.

The key changes are:

  • The initial investment threshold has increased from £1 million to £2 million.
  • New investors are no longer able to allocate 25% of their investment in UK assets such as UK property in which they live. The entire £2 million will need to be invested.
  • The loan option has been removed.
  • Topping up of investments accounts is no longer required if the invested amount falls below the required level. However, if investments are sold, they will need to be replaced within the same reporting period.
  • Source of funds: visa officers can refuse investors if they have reasonable grounds to believe the funds were obtained unlawfully or if they have concerns about the character and conduct of the party "providing the funds." This could extend to those gifting the funds to the investor.

Action required by potential investors. Advisors, wealth managers, and other high net worth intermediaries are advised to discuss the changes with potential clients who are considering coming to the UK under the Tier 1 Investor category.

Commentary. While the increase in the investment threshold to £2m may have a deterrent effect at the budget end of the investor market, the increase is not likely to have a significant impact on their decision to come to the UK, which will continue to be driven by the "sell factors" of the UK as a major education, business, and cultural hub.

Similarly, the removal of the "loan option" is unlikely to have a huge impact as this was not popular with applicants. The main effect of the loan option being stopped may be felt by potential Chinese investors who have used the loan option due to current restrictions on taking capital out of the People's Republic of China.

The new requirement to invest the full £2 million into the portfolio of specified investments and the exclusion of investment of up to 25% of the overall amount into a UK home is an unexpected change. In practice, however, many investor clients have invested the full amount into their portfolios.

However, the increase is likely to mean that those coming as Tier 1 investors will look for greater returns from their UK investment, and as a result wealth managers may need to look beyond offering gilts only portfolios for this market. The removal of the requirement to "top up" if a portfolio drops below £2 million is a welcome change, and there will only be a requirement to purchase new qualifying investments if an investor sells part of his or her portfolio. This will allow Tier 1 investors to take greater risks with their investments.

Entry Clearance Officers will also have greater discretion when considering applications to refuse if they have concerns about the control the applicant has over the funds, the lawfulness of the source of funds, or the character of the person who has provided the funds, if a third party. It is likely that investors will need to provide more information on the source of funds to preempt queries at the visa stage. There may therefore be a greater role for wealth managers to play in confirming that the client has been successfully on-boarded by a UK-regulated institution.

The government's statement that it will consult further on what sort of investments may deliver real economic benefits to the UK was welcome. To broaden the investment options beyond gilts is overdue and could have a positive effect on charities as well other financial instruments.

Meanwhile, according to the Home Office's latest Statement of Changes to the Immigration Rules, other key changes as of October 16, 2014, affecting Sponsors include:

Tier 2 

  • The Home Office will now assess whether a genuine vacancy exists for Tier 2 (Intra-Company Transfer) and Tier 2 (General) applications. This change empowers Entry Clearance Officers and in-country caseworkers to refuse an application where there are reasonable grounds to believe that the job described by the Sponsor does not genuinely exist, has been exaggerated to meet the Tier 2 skills threshold, or (with respect to Tier 2 (General)) has been tailored to exclude resident workers from being recruited, or where there are reasonable grounds to believe that the applicant is not qualified to do the job. As the Sponsor Licence Unit already performs this function when assessing Restricted Certificate of Sponsorship (RCoS) applications, it would appear to be a duplication of effort if Entry Clearance Officers will also perform this genuine vacancy assessment. For those migrants earning more than £153,500, the Resident Labour Market Test requirements do not apply in any event.
  • An existing requirement in the published guidance for Sponsors is that Tier 2 Migrants cannot be sponsored to fill a position, undertake an ongoing routine role, or provide an ongoing routine service for a third party who is not the Sponsor. This requirement is being replicated in the Immigration Rules. This enables applications by individuals for entry clearance or leave to remain, and applications by Sponsors for Restricted Certificates of Sponsorship, to be refused in line with any wider compliance action relating to the Sponsor in question. This applies to so called "contract cases" where migrants are based at a client site. It is of particular significance for the IT sector. These cases will now incur greater scrutiny to ensure that there is a genuine provision of services by the Sponsor and not disguised employment by the third party.
  • A change is being made to the Tier 2 (General) provisions for extension applications where the applicant is continuing to work in the same occupation for the same sponsor. Such applicants are exempt from the Resident Labour Market Test and currently the exemption only applies if the applicant still has current leave as a Tier 2 (General) Migrant when he or she files an extension application. The change will enable the applicant to benefit from the extension if his or her previous leave as a Tier 2 (General) Migrant expired no more than 28 days before filing the extension application.
  • A temporary provision, dating back to 2009, that waives the £20,500 minimum salary threshold where companies are reducing their employees' hours to avoid redundancies, is being removed.

Tier 2 (Sportsperson) and Tier 5 (Temporary Worker—Creative and Sporting)

The UK is changing the table of governing bodies to include information on which Tier(s) each body may endorse applicants in. The list of sports governing bodies is also being updated.

Tier 5 Youth Mobility Scheme

The annual allocations for participating countries are being set for 2015. There is an increase in the allocations for New Zealand (16%).

Business Visitors

A new category has been added for overseas lawyers who are employees of international law firms that have offices in the UK. The change will allow such business visitors to directly advise clients in the UK on litigation or international transactions provided they remain paid and employed overseas.

These changes were effective November 6, 2014.

MAC Launches Partial Call for Evidence on Shortage Occupations

On September 29, 2014, the Migration Advisory Committee (MAC) launched its latest partial call for evidence on some shortage occupations.

As background, the UK government has received evidence to suggest issues with the supply of suitably skilled workers in a limited number of areas, including:

  • Some parts of the information and communications technology (ICT) sector in the area of digital technology;
  • Some parts of the health sector; and
  • Overhead linesworkers within the electricity generating sector.

The government therefore asked the MAC to review these occupations, resulting in the partial call for evidence. The MAC is requesting evidence as to whether any of these occupations, or specific jobs within these occupations, should be included or removed from the Shortage Occupation List (SOL).

In addition, the MAC has stated that it will consider evidence of labor shortages in other sectors (or job titles) and will recommend to the government whether or not any additional occupations should be added to the SOL.

Change of Address for OVRO

The Overseas Visitors Records Office (OVRO) recently relocated to:

323 Borough High Street
London
SE1 1JL

 
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10. New Publications and Items of Interest
 

The latest 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 latest 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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11. Member News
 

Laura Devine Solicitors has won the Legal 500 Specialist Law Firm of the Year Award 2014 for Immigration (Human Resources category). Ms. Devine's bio.

Charles Kuck has authored a new blog entry. "The GOP and Immigration Reform, and Obama and Executive Orders"

Mr. Kuck appeared on CNN En Espanol on November 21, 2014, at 7 am.

Vincent Lau appeared at a press conference in Cambridge, Massachusetts, on November 21, 2014, on President Obama's executive actions on immigration.

Robert Loughran spoke on November 14, 2014, on U.S. professional and investor visas at the UTSA Texas International Business Accelerator's foreign investor event, "Invirtiendo en Texas." The goal of the event was to educate potential foreign entrepreneurs on how to invest in a business in Texas.

Mr. Loughran spoke on November 7, 2014, on the immigration implications of "Global Tax Planning for Multi-National Families: Coming and Going!," which focused on the income, estate, and gift tax implications (and planning opportunities) affecting U.S. and foreign persons who exit or enter the United States, at the Annual Meeting of the California Tax Bar and California Tax Policy Conference in Coronado, California.

Mr. Loughran spoke on October 29, 2014, on "Immigration Considerations in Renunciation of U.S. Citizenship" at the Global Residence and Citizenship Conference in Singapore.

Marco Mazzeschi has authored "Citizenship by investment: is it really a good deal?," published by LexisNexis. The article is available via registration at LexisNexis.

Sharon Mehlman recently co-authored "Risky Business: Assumptions in the Hiring Process," which was published in Bender's California Labor and Employment Bulletin for November 2014. 

Cyrus Mehta co-authored several new blog entries. "Justice, Justice Shall Thou Pursue: Why the Lawsuit Against the Immigration Accountability Executive Actions Is a Waste of Time and Money" "The Fate of Executive Action on Immigration After the Midterm Elections"

Mr. Mehta was quoted in an article on Forbes.com, "Will President Obama Help Legal Immigrants Too?"

Mr. Mehta was on the "Takeaway" public radio show with John Hockenberry broadcast nationally on November 20, 2014, to discuss President Obama's executive actions on immigration. 

Angelo Paparelli spoke on KNX 1070 (CBS radio affiliate in Los Angeles) in a one-hour report on President Obama's executive actions on immigration on November 24, 2014, at 10 am PST. It featured Mr. Paparelli and an opponent of immigration, with extensive audience call-in.

Mr. Paparelli was quoted on Inc.com, in "If You Have Employees, Obama's Immigration Plans Will Most Likely Affect You." "Employers should be alert to the possibility that a new population of workers who may have been silent at the worksite may speak up, and employers will want to generally review their employment practices," he noted. Mr. Paparelli counseled proactively reviewing hiring and screening procedures and considering a "voluntary audit" of I-9 forms. 

Bernard Wolfsdorf spoke at the Investment Immigration Summit in Hong Kong on November 11-12, 2014. The Investment Immigration Summit is one of the leading immigration conferences in Asia. Mr. Wolfsdorf spoke on the panel, "Quota Retrogression: Implications for Chinese HNWIs and the Future of the EB-5 Programme." 

Stephen Yale-Loehr was quoted in Bloomberg BNA on immigration reform prospects after the midterm elections. In "Midterms' Impact on Immigration Unclear as Advocates Await Action by President," published on November 5, 2014, Mr. Yale-Loehr said "there's an opportunity" for Congress to pass an overhaul bill, but he noted that the chances of that happening "are less than 50 percent." He added that the next Congress will be "just as fractured as the previous Congress, and getting any legislation to pass will be difficult. If President Obama takes administrative action, that "could make it even harder to get comprehensive immigration reform through Congress."

Mr. Yale-Loehr was quoted in the Wall Street Journal in "U.S. Visa Program Attracts 11 Million Applicants: Lawmakers May Be Poised To End the Green-Card Lottery," published on November 6, 2014. "A lottery is not a way to run an immigration system. It doesn't strengthen family ties, promote our economic interests, or rescue refugees. Congress should abolish the program," he said.

Mr. Yale-Loehr was quoted in articles in Spanish published in November 2014 about the effects of the midterm elections in the United States, in El Nuevo Herald, El Imparcial, and La Prensa Grafica

Mr. Yale-Loehr was quoted on President Obama's authority to act administratively on immigration. Mr. Yale-Loehr noted, "Legally, the president has wide authority to act administratively on immigration…Politically, however, the president has boxed himself into a corner…The only real solution is for Congress to enact comprehensive immigration reform." The article is available in Spanish

Mr. Yale-Loehr was quoted on Time.com regarding the potential political fallout of President Obama's expected upcoming announcement on executive actions to reform the U.S. immigration system. Mr. Yale-Loehr noted that "Republicans will argue that even the smallest executive immigration actions subvert Congress' power."

Mr. Yale-Loehr was quoted in the New York Times in "Obama’s Executive Order on Immigration Is Unlikely to Include Health Benefits," published on November 19, 2014. "Just as the president has broad discretion to decide whether to allow undocumented individuals to get a temporary reprieve from deportation, he also has broad authority to decide whether to grant them work authorization and health benefits. In this case, it appears he is willing to grant the former but not the latter." 

Mr. Yale-Loehr was also quoted on President Obama's executive actions on immigration in the Huffington Post and in the Houston Chronicle

Mr. Yale-Loehr was quoted in an article in the New York Times, "Some of the Rich Collect Art. Others Collect Passports," about wealthy investors shopping for visas or citizenship, which was published on December 13, 2014. "I think that after 24 years, it's appropriate for Congress to consider adjusting that level [referring to the $500,000 minimum for an EB-5 immigrant investor green card]."

 
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