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1. BELGIUM -

Administrative fines are being imposed for various violations. Also, processing times have been extended for family reunification of third-country nationals.

2. EUROPEAN UNION -

The EU and Kiribati have signed a short-stay visa waiver agreement.

3. ITALY -

Ministries have provided guidelines on documentation for work permit applications for highly skilled workers. Also, applications for housing feasibility certificates have become more difficult in some locations.

4. TURKEY -

Turkey's new immigration agency, The Migration Directorate, has experienced growing pains. Also, a state of emergency has been declared following the violent events in Turkey.

5. UNITED KINGDOM -

How does Brexit affect European workers in the UK and what should employers be doing to address their concerns? Also, additional details about the new Immigration Act 2016's effects with respect to sponsors and "illegal working" are summarized. Finally, issues with biometric residence permits and national insurance numbers are discussed.

6. New Publications and Items of Interest -

New Publications and Items of Interest

7. Member News -

Member News

 

 
 
1. BELGIUM
 

Administrative fines are being imposed for various violations. Also, processing times have been extended for family reunification of third-country nationals.

Enforcement of Administrative Fines

Pursuant to the Belgian Foreigners' Act, administrative fines of €200 can be imposed by the federal immigration office for some (generally minor) infringements. Below are a few examples:

For a short-term stay (3 months or less), European Union (EU), European Economic Area (EEA), and Swiss nationals and their family members must notify municipal authorities of their presence within 10 working days of arrival in Belgium, upon which they will receive a document (annex 3ter) valid for 3 months. This obligation does not apply to foreigners who stay in a hotel. An administrative fine of €200 can be imposed if the 10-working-days deadline is not complied with;

For a long-term stay (more than 3 months), EU, EEA and Swiss nationals must register with the municipal authorities within 3 months of arrival in Belgium, upon which they will receive a document (annex 19) (application for a declaration of registration). Their third-country family members must register with the municipal authorities within 3 months of arrival in Belgium, upon which they will receive a document (annex 19ter) (application for residence permit). An administrative fine of €200 can be imposed if the 3-month deadline is not complied with.

In practice, these administrative fines have not often been imposed. This will change as of now.

The federal government has issued a Royal Decree, implementing the Foreigners' Act, concerning the means of payment of the administrative fines for some infringements. Furthermore the Secretary of State for Asylum and Migration has issued a circular letter, dated June 16, 2016, with regard to the administrative fines. Both documents were published in the Belgian Official Journal, dated July 14, 2016. The federal immigration office refers to these documents on its website.

The following infringements are likely to result in an administrative fine of €200:

Violations Regarding Entering/Leaving Belgium

For all foreigners (EU/EEA/Switzerland and third-country nationals): entering or leaving the Schengen area via a Belgian outside border at either (i) a non-authorized crossing point, or (ii) a time outside the fixed opening hours.

For EU/EEA/Swiss nationals: entering the Schengen area via a Belgian outside border either (i) without a national identity card or passport, or (ii) with an expired national identity card or passport.

For third-country family members of EU/EEA/Swiss nationals: entering the Schengen area via a Belgian outside border either (i) without a national passport, (ii) with an expired national passport, or (iii) without a long-term visa D, if required.

Failing to Notify Arrival or to Register in Belgium

For EU/EEA/Swiss nationals and their family members (EU/EEA/Switzerland and third-country nationals) whose stay in Belgium will not exceed 3 months: notifying municipal authorities of their presence after the deadline (10 working days of arrival in Belgium). Hotel stays are exempt.

For EU/EEA/Swiss nationals and their family members (EU/EEA/Switzerland and third-country nationals) whose stay in Belgium will exceed 3 months: registering with the municipal authorities after the deadline (3 months of arrival in Belgium).

For third-country family members of EU/EEA/Swiss nationals: failing to apply for residence permit type F+ (permanent residence permit for family member of EU/EEA national) before the expiration of their residence permit type F (residence permit for family member of EU/EEA national).

The circular letter, dated June 16, 2016, issued by the Secretary of State for Asylum and Migration, notes that the municipal authorities must trace people with main residence in the municipality who are not registered.

Extension of Processing Time for Family Reunification of Third-Country Nationals

The processing time for family reunification applications by third-country (non-EU, non-EEA, and non-Swiss) family members of third-country nationals has been extended, effective July 8, 2016: the maximum processing time of 12 months (6 months + two possible 3-month extensions for complex files) has now become a maximum processing time of 15 months (9 months + two possible 3-month extensions for complex files). The new processing time is applicable immediately not only to applications filed as of July 8, 2016, but also to pending applications filed before July 8, 2016.

This measure, which has been triggered, at least to some extent, by the increasing workload of the federal immigration office, will probably not have a huge effect on family reunification applications by family members of work permit holders: their applications are in principle prioritized.

 
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2. EUROPEAN UNION
 

The European Union (EU) and Kiribati have signed a short-stay visa waiver agreement.

The EU and the Republic of Kiribati, an island nation in the central tropical Pacific Ocean, signed a short-stay visa waiver agreement that provides for visa-free travel for EU citizens when traveling to the territory of Kiribati and for citizens of Kiribati when traveling to the EU (Schengen area) for short stays.

The agreement was signed on June 23, 2016, and applies on a provisional basis from June 24. It was published on July 23 in the Official Journal of the European Union.

Under the Schengen regulations, citizens of the EU may stay in the territory of Kiribati for a maximum period of 90 days in any 180-day period. The same applies to citizens of Kiribati traveling to the territory of an EU Member State. Visa-free travel applies to citizens from the EU and Kiribati holders of valid ordinary, diplomatic, service/official, or special passports, and for any purpose of travel (e.g., tourism, cultural visits, scientific activities, family visits, business), except for the purpose of carrying out a paid activity.

The agreement is intended to facilitate contacts, tourism, and business between the EU and Kiribati.

Kiribati now joins the list of countries whose nationals are exempt from the short-stay visa requirement: Albania, Andorra, Antigua and Barbuda, Argentina, Australia, Bahamas, Barbados, Bosnia and Herzegovina, Brazil, Brunei, Canada, Chile, Colombia, Costa Rica, Dominica, El Salvador, Grenada, Guatemala, Honduras, Hong Kong, Israel, Japan, Kiribati, Macau, Macedonia, Malaysia, Marshall Islands, Mauritius, Mexico, Moldova, Monaco, Montenegro, New Zealand, Nicaragua, Palau, Panama, Paraguay, Peru, Saint Kitts and Nevis, Saint Lucia, Saint Vincent and the Grenadines, Samoa, San Marino, Serbia, Seychelles, Singapore, South Korea, Taiwan, Timor-Leste, Tonga, Trinidad and Tobago, Tuvalu, United Arab Emirates, United States, Uruguay, Vanuatu, Vatican City, and Venezuela.

THE AGREEMENT

 
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3. ITALY
 

Ministries have provided guidelines on documentation for work permit applications for highly skilled workers. Also, applications for housing feasibility certificates have become more difficult in some locations.

Update on Documentation for Work Permit ApplicationsThe Ministries of Interior and Labour have finally provided clear guidelines to Immigration Authorities on the list of documents required for work permit applications for highly skilled workers (either on temporary assignment or locally hired on an EU Blue Card). The guidance was provided in a joint circular (no. 35/0002777 dated July 14, 2016).Further to this, the discretionary power of local immigration offices with regard to documentary requirements is expected to be limited and the application process to gradually become more streamlined.The Ministries' action falls within the framework of the European Agenda on Migration in an effort to promote Europe as an attractive destination for highly skilled migrants, students, and researchers.

THE FULL TEXT OF THE CIRCULAR

Housing Feasibility Certificate Issues in Latina and Rome

Filing an application for a housing feasibility certificate in town halls such as Latina and Rome is becoming increasingly more difficult for a number of reasons (e.g., offices' internal reorganization, temporary inaccessibility of the online system, and the increased number of documents required).

As a general rule, among other obligations as part of the work permit application, the Italian employer acting as the sponsor must ensure that the foreign worker will be guaranteed suitable accommodations during his or her Italian assignment. To complete the immigration formalities, it is necessary to provide documented proof of a "suitable accommodation" for the assignee. Each immigration office or immigration police department may adopt a different policy, which can vary in strictness depending on the officer.

In particular, the contract of stay and residence permit filing step (which must occur within 8 days from the foreigner's arrival in Italy with a valid work visa) requires either:

(1) A reservation in a temporary accommodation facility such as a hotel or residence; or

(2) The availability of a privately owned house/apartment (through a lease, a property deed, or a declaration of hospitality in case it is owned or leased by a third party hosting the foreigner) that meets health and safety regulations and the minimum size requirement under the law in proportion to the number of people living there.

The documents required, respectively, in cases (1) and (2) above are:

  1. Reservation in a temporary accommodation facility such as a hotel or residence:

A written confirmation of the reservation, printed on the hotel's letterhead and signed by a hotel representative.

Depending on the jurisdiction where the application is filed, there may be different requirements in terms of document format and length of reservation. In Milan, authorities are very strict and do not accept a reservation for less than 1 month from the date of the contract of stay appointment. Moreover, the letter must be in Italian, contain the employee data, and be the original signed by the hotel representative along with a copy of the signatory's identity document.

Because the accommodation is supposed to be temporary, a declaration from the employer is also required, stating that during the employee's stay in Italy, the employer will ensure that the employee is provided with a suitable accommodation (either directly or by means of an adequate financial amount). Because the reservation must be for at least 1 month from the date the contract of stay is signed, and this should happen—unless officers are unavailable—within 8 days of arrival, it is advisable that the employee, upon arrival, has a reservation for at least 1 month plus 2 weeks, to allow enough time to accomplish all the necessary formalities.

  1. Availability of a privately owned house/apartment:

Regardless of whether the property is leased or owned by the employee or employer, or by a third party hosting the employee, the documents required include a registered lease, a cessione di fabbricato or dichiarazione di ospitalità, as appropriate, and a housing feasibility certificate (or its application receipt). A housing feasibility certificate, however, is generally required later on in the case of family permit application processing.

The housing feasibility certificate is an official document, issued by the relevant local authority upon request, required specifically for immigration procedures. Obtaining it (or even simply applying for it) is often lengthy and burdensome. For this reason, it is unlikely that a foreign national who has just arrived in Italy can provide a duly signed and registered lease (by law the landlord has up to 30 days to register the lease, which could delay even further applying for the housing feasibility certificate) or even a receipt for the certificate, if not the actual certificate.

Given the above, to comply with immigration requirements and be able to start the in-country immigration process within 8 days of arrival, each employee should prepare to submit the required documents almost immediately upon arrival. In case of the scenario described in point 2 above, it is very difficult to procure all necessary documentation within such a short time, unless the employee has had the chance to visit Italy beforehand and obtain all the relevant documents.

Once the 8-day period (including working days only) has ended, the assignee is not fully compliant unless he or she can prove that the necessary formalities could not be accomplished because of force majeur.

Where it is necessary to show proof of a suitable accommodation shortly after arrival, the employee should find alternative accommodation for which a housing feasibility certificate is not required to prove compliance, such as a hotel, residence, or similar temporary accommodation.

 
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4. TURKEY
 

Turkey's new immigration agency, The Migration Directorate, has experienced growing pains.

On April 12, 2014, Law No. 6458, the Law on Foreigners and International Protection, went into effect for the Republic of Turkey. This new law made vast changes to work and residence permit eligibility and procedure, as well as changes in visa and immigration processing. The statute created a new government entity, the Migration Directorate, under the Interior Ministry. This article briefly reviews the creation and growing pains associated with the new immigration agency.

Database System Problems

When the Migration Directorate was created, it was designated as of April 2015 to transfer processing of all residence permits from the Foreigner's Police Department to the new agency. With that move came a new online system to schedule residence permit appointments, complete and submit applications, and upload supporting documents. As with any new database system, the Migration Directorate experienced many problems with the online system and with migrating the accumulated data of foreigners already in the Police database to the Migration Directorate database.

Database problems included complete shutdowns of the online system or lock-up of certain applications only (e.g., renewals vs. initial applications), presumably for upgrades. These occasional shutdowns have persisted through summer 2016.

Limitation on Entry to Attorneys Only

The Migration Directorate also has endeavored to limit the number of users it must serve. As of fall 2015, it began to bar any individual who was not the applicant or a certified Turkish attorney. This makes the Migration Directorate the only Turkish government administrative agency that requires attorneys to make filings and inquiries.

General Slowdown of Workflow and Growing Appointment Backlog

Clearly the intent of the Turkish government was to fund a new and more efficient immigration agency to speed up processing of residence permits and shorten appointment backlogs. Unfortunately, that has not happened so far.

For example, under the Migration Directorate, residence permit renewal applications can now be filed by post and do not require an in-person appointment. However, the Directorate soon became so overwhelmed with deliveries of renewal applications that thousands of applications piled up in the office depot un-reviewed. The problem is that dependents in renewals almost always need a travel document to use upon status expiration. Travel (exit) documents are only being issued for renewals upon personal appearance as long as the renewal application has been recorded. Given the piling up of the renewal applications, they are not being recorded timely, so applicants not only end up not avoiding in-person appearances but experience great difficulties in obtaining travel documents.

To avoid this problem, many who could normally file renewal applications are choosing to file as initial applicants instead. Consequently, the backlog for appointments to file initial residence permit applications in Istanbul, the city with the most foreigners in Turkey, has grown to 6 months.

New Procedural Requirements, Such as Apostille

Since spring 2015, the Migration Directorate has endeavored to further change procedures regarding foreign documents. One example is that it has drafted a communique requiring foreign biographical documents for residence permit cases to be apostilled. Ironically, such documents submitted to the Labor Ministry for work permits do not require an apostille. These new procedures have added to the burden on applicants.

In all, the overall goal of more efficient processing of residence permits by creating a new government agency has not been achieved. This is unfortunate. However, the additional burden on the agency over the same time period created by an influx of three million Syrian nationals clearly has made this goal particularly difficult to achieve.

Violent Events and State of Emergency

It remains to be seen what effects the recent violent events in Turkey will have on the numbers of applications being filed and on other immigration issues. The Council of Ministers declared a state of emergency for a period of 90 days beginning July 21, 2016. Although no specific measure has been adopted yet by the Council under the state of emergency, several measures may be taken, including but not limited to prohibiting residence in specific areas, restricting entrance to and exit from specific residential areas, suspension of education at private or public educational institutions, seizing communication tools and materials, demolishing buildings deemed as posing a danger, ordering curfews, prohibiting walking around and gathering of people and transportation, searching people and confiscating property, prohibition of publications, supervision of broadcasting and videotaping, and prohibiting certain persons and communities from entering into Turkish territory and certain areas or removing them.

 
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5. UNITED KINGDOM
 

How does Brexit affect European workers in the UK and what should employers be doing to address their concerns? Also, additional details about the new Immigration Act 2016's effects with respect to sponsors and "illegal working" are summarized. Finally, issues with biometric residence permits and national insurance numbers are discussed.

Brexit

The United Kingdom (UK) has voted to leave the European Union (EU). How does this affect European workers in the UK and what should employers do to address their concerns?

We now find ourselves in unchartered territory. But despite the vote to leave the EU, at present it is business as usual for the following reasons:

  • The rights of EU citizens to live and work in the UK will not change overnight;
  • The UK will have two years to negotiate the terms on which it will leave the EU. During this period, the UK will remain a member of the EU and free movement rules will continue to allow EU citizens to live and work in the UK and to allow EU citizens to move to the UK, including family members;
  • If the negotiations result in EU citizens no longer having full free movement rights with the right to live and work in the UK, there will almost certainly be special transitional rules for EU citizens already living in the UK on the date the UK left the EU.

Prime Minister David Cameron said in his resignation speech, "I would also reassure Britons living in European countries and European citizens living here [that] there will be no immediate changes in your circumstances." Any attempt by the government to place restrictions on EU citizens is likely to be deemed unlawful.

Perhaps the greatest challenge and source of frustration that lies ahead is uncertainty. There are no definitive solutions or clear guidelines as to what changes to the existing regulations will be implemented and, more broadly, how the landscape of UK immigration will be altered in the months and years to come.

For this reason, human resources and global mobility professionals may be pondering alternative jurisdictions for relocating their employees, which may offer greater clarity with regard to work authorization. They may also be concerned with how sending employees on assignment in European countries could change under Brexit. Discussed below are what may be considered permissible activities for short-term trips under business visas and the key factors that should be taken into account when sending EU or non-EU national employees based in the UK on long-term global assignments.

Options for International Assignments for UK-Based Employees

Managing an international assignment can be a challenging, time-consuming, and multi-faceted process. Often, the only people fully aware of the complexities of what is involved are the employees being transferred and the HR professionals tasked with coordinating the immigration, employment, tax, and relocation requirements—and navigating the emotional sensitivities that can arise in each case. Due to the fast-moving nature of cross-jurisdictional and overseas assignments, immigration lawyers are frequently asked how soon a person can be sent to work in another country while complying with the immigration laws and regulations of the chosen destination. Processing times can sometimes be longer than the actual need for the employee to be in the country. Consequently, the first solution considered is the simple yet restrictive option of obtaining a business visa, particularly for work trips that only last a few days. While allowable activities can vary depending on the destination, below are some of the key duties allowed for employees traveling on a business visa:

  • Participation in internal business meetings and interviews;
  • Attending trade fairs for promotional work only;
  • Informal sales discussions and negotiating contracts with prospective clients;
  • Fact-finding missions to establish the scope and requirements of projects; and
  • Attending conferences or seminars as a participant.

Business visas are issued by the consulate or embassy of the host country to which the employee will be traveling. Generally, they are issued before arrival and must be applied for at the consulate located closest to the employee's place of residence, although for certain countries they can be obtained on arrival at the port of entry. The threshold for activities that exceed those permitted under a business visa is often considered anything that is deemed "productive work." While this ambiguous terminology can lead to frustration in time-critical scenarios, it is vital to ensure that work authorization is obtained should it be foreseen that an employee will undertake productive work.

Practical steps to take when sending employees on global assignments include:

  1. Planning in advance—Once it is known where an employee will be sent, his or her nationality, and the duration of the assignment, it is possible to provide approximate guidelines on what options are available. Processes and estimated timelines can vary significantly depending on factors such as salary, payroll location, and job description, but most crucially on the chosen destination. For example, the Netherlands has a streamlined and progressive Knowledge Migrant Program for non-EU nationals that offers an expedited process for sponsors who have received recognized status by the Dutch immigration authorities. The success of this may soon also be seen in Australia, which has recently implemented an accredited sponsor scheme for the subclass 457 visa. The Dutch system means that applicants need only visit the authorities once upon arrival to complete the registration process and collect their residence permits. Other countries, such as Italy or Kenya, have adopted a more staggered approach where the end-to-end process can take up to 6 months to complete all immigration requirements. Countries such as Switzerland have implemented restrictions by way of a quota system where there is a quarterly cap for L permits. Similarly, in the United States an annual limit applies to the highly sought-after H-1B visa for temporary professional workers. It is advisable to obtain full clarification of the key stages of the process and potential pitfalls from the outset.
  2. Focusing on the document preparation phase—It is important to consider additional factors beyond the processing time imposed by the immigration authorities in the host country once a work permit application is filed. Regarding the question whether anything can be done to speed up this stage of the process, while regular follow-ups can be done, the immigration authorities have full discretion as to when an application is approved and whether additional information is requested, regardless of the size of the entity or seniority of the employee. It is therefore better to focus on preparing a complete file with all the required documents to obtain approval.

    Corporate documents that the sending and host companies are generally asked to provide include evidence of a link between each entity as well as their articles of incorporation, employment contracts, details of the job offer for the employee, and a certificate of coverage. Particular emphasis should be given to the mandatory personal documents requested from the employee for the entry visa application. Because this is the second stage after the work permit has been approved, it can often be overlooked when a case is opened. Nevertheless, it is standard for immigration authorities to request university degrees, police and medical certificates, and marriage and birth certificates if employees are to be accompanied by their spouses and children. Countries including Spain and Germany ask for these documents to be legalized, which is the process of authentication for valid use in the host country. If the document needed is not in the first language of the host country, additional time should also be allowed for translation.

    Finally, it can be common in several jurisdictions to request original documents that have been procured within a certain time frame before submission of applications. In these circumstances, it is vital not to obtain such documents too far in advance because they may no longer be valid on filing. Therefore, to ensure a successful application, consider what documents are needed, the required format, and how and when they should be procured.

  3. Fulfilling post-arrival requirements—Once work permission has been approved and an entry visa obtained, an employee can enter the host country but must ensure that all required post-arrival procedures are concluded before starting work. From an immigration perspective, this can be straightforward. In Hong-Kong and Nigeria, the process allows employees to begin working immediately upon arrival. More commonly, a simple registration process needs to be completed within the first few days of entry. For example, in the Czech Republic, the employee must go to the Ministry of Interior to submit his or her fingerprints and have a biometric photograph taken before formally starting an assignment with the host company. Other non-immigration issues must also be considered, such as social security registration and obligations under local labor/employment and tax laws, which can vary depending on the location of the employee's payroll. Finally, there may be additional steps that can be of great importance to the individual despite not being mandatory with respect to immigration compliance. For example, an identification card or registration with the local municipality is often needed to open bank accounts or finalize car rental contracts.

In conclusion, several aspects of global assignments require detailed management and coordination. Adopting a flexible and open-minded approach regarding where an employee is sent on assignment can allow for a more streamlined process with greater clarity as to what lies ahead. However, this will only bear fruit with thorough planning in advance, preparation for the document collection phase, and due consideration to post-arrival processes.

Immigration Act 2016: Effects on Sponsors and 'Illegal Working'

Significantly for immigration sponsors, provisions of the new Immigration Act 2016 relating to "illegal working," effective July 12, 2016, include:

  • A broader definition of what constitutes a criminal offense for employing illegal workers (for employers);
  • Increased maximum penalties for employing illegal workers;
  • The creation of a criminal offense for working illegally (for employees);
  • The creation of a new Director of Labour Market Enforcement; and
  • Additional powers for immigration officers to search and seize documents.

The following are some of the offenses created under the Act:

Illegal Working—Employee Offense

The Act creates a new criminal offense of illegal working. In summary, the offense is committed where a person works at a time when he or she has not been granted leave (authorization) to enter or remain in the UK, or the person’s leave to enter or remain in the UK is invalid or has ceased to have effect, or the person is subject to a condition preventing him or her from doing work of the kind specified to be undertaken. The offense is punishable on summary conviction by imprisonment for up to six months, or by a fine (subject to other legislation), or both. A person convicted of this offense may also have his or her earnings seized.

Employing an Illegal Worker—Employer Offense

The Act amends the existing offense of employing an illegal worker under § 21 of the Immigration, Asylum and Nationality Act 2006. Previously, an employer had to have known that an employee did not have leave to be guilty of the offense. The offense may now be committed by an employer who either knows or has reasonable cause to believe that a person is working without leave. The test for culpability, from actual knowledge of illegality to reasonable cause, has therefore been lowered. The maximum penalty is also raised to five years’ imprisonment as opposed to the previous two.

Furthermore, an immigration officer may arrest without warrant a person that the officer has reasonable grounds for suspecting has committed an offense or is attempting to commit an offense of employing a person illegally.

This offense is in addition to the civil penalties contained in § 15 of the Immigration, Asylum and Nationality Act 2006, under which a company can be fined up to £20,000 for employing an illegal worker.

What does reasonable cause to believe mean?

Employers may well ask what “reasonable cause to believe” means. Perhaps this is best illustrated by way of example. In the past an employer might have had an employee whom they suspected of working illegally but had no concrete evidence of this. The onus is now on the employer to take steps at an earlier stage to suspend an employee pending an internal investigation into the employee’s immigration status, if the employee is unable or unwilling to provide satisfactory evidence of his or her continued right to work in the UK. Employers may therefore need to update their human resources (HR) policies and processes and ensure that their HR staff are aware of the new changes.

New Director of Labour Market Enforcement

Enforcement of the illegal working rules is fairly ad hoc. Anecdotally it is believed that immigration enforcement teams tend to adopt a risk-based approach in targeting higher risk sectors with compliance visits. The new Director of Labour Market Enforcement will be tasked with monitoring and creating a strategy to tackle noncompliance in the labor market. It remains to be seen whether this will lead to an increase in unannounced compliance visits to business premises, but employers should be aware that this is on the horizon.

What should employers do?

These new provisions underscore the need for employers to ensure their continued diligence and to keep abreast of the measures required to remain compliant with the immigration rules and regulations. These are some steps to consider:

  • Review your current processes for checking work permission, particularly where a visa is due to expire;
  • Ensure that your HR team is fully informed about these new changes; and
  • Should you wish to have an audit of your files and HR processes or receive further training for members of your HR team, please contact a Global member of the Alliance of Business Immigration Lawyers.

Issues With Biometric Residence Permits and National Insurance Numbers

The UK Home Office is rolling out the issuance of National Insurance (NI) numbers for all applicants applying to enter the UK under the Tier 2 General, Minister of Religion or Sportsperson categories. Once an application under these categories has been submitted overseas, this triggers an application to the Department of Work and Pensions (DWP) for an NI number to be issued. This NI number is then included on the Biometric Residence Permit (BRP).

At least that is what is supposed to happen.

While this new process is being rolled out, some BRPs have been issued without NI numbers and are being recalled by the Home Office so that they can be reissued with NI numbers. This of course presents practical difficulties for those Tier 2 migrants who may need to travel or where sponsors have already submitted an application for an NI number.

Here are a few practical points to bear in mind:

  • If possible, the BRP should be returned to the Home Office within the validity of the 30-day travel visa, which all Tier 2 migrants receive when applying for entry clearance, so that the employer's Tier 2 migrants can still travel using the visa before expiration.
  • If the BRP is returned to the Home Office as close as possible to the beginning of the 30-day period of the travel visa, this will provide the most flexibility for migrants. The Home Office should be informed of the expiration date of the 30-day visa.
  • When returning the BRP, the Home Office should also be notified of any impending travel to ensure that the replacement BRP is issued before the travel date.
  • Sponsors should ensure that they carry out the first-day check on the BRP before returning it to the Home Office, so they can maintain their statutory excuse under the illegal working rules.
  • If sponsors have already applied for an NI number, they should inform the Home Office of this when returning the BRP to avoid duplication.

What about employees who are paid overseas and have no NI liability in the UK?

Tier 2 migrants often receive their salary from their home country and therefore are not liable to pay NI in the UK. While this is more common with those migrants entering the UK under the Tier 2 Intra-Company Transfer category, it may sometimes be the case for Tier 2 General migrants also. This begs the question as to why these migrants are being issued NI numbers. The Home Office has confirmed that the allocation of an NI number has no impact on NI liability and therefore sponsors should not be concerned about this new development.

 
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6. New Publications and Items of Interest
 

Brexit website hub. Kingsley Napley has released a Brexit website hub with practical guidance from experts to answer questions that employers, employees, or clients may have, including steps to take. THE HUB

Webinars on Brexit. Kingsley Napley recently hosted a live webinar to address issues related to "Brexit," the United Kingdom's vote to leave the European Union. In the webinar, Nicolas Rollason (Head of Immigration) and Andreas White (Partner, Employment) answer 10 key questions:

  1. What will happen while the UK negotiates its exit?
  2. What should employers of EU nationals in the UK be doing now?
  3. What about British employees working abroad for the UK employer?
  4. What should existing EU employees be doing now?
  5. Are there any issues about hiring EU citizens in the UK now?
  6. Could the UK government restrict free movement and the ability to hire EU nationals before the UK leaves the EU?
  7. What could happen if UK leaves the EU?
  8. What could the new system which applies to EU nationals after Brexit look like?
  9. What strategic considerations are there for recruitment planning after Brexit?
  10. What will longer-term immigration and employment law ramifications be?

The recording, which lasts approximately 1 hour, is available HERE no charge.

Webinar on compliance and criminal sanctions under Immigration Act 2016. A Kingsley Napley webinar, presented by Andrew Tingley and Nicholas Dent, outlines the new criminal sanctions and details what employers can do to ensure that their internal processes comply with the UK's new Immigration Act 2016. It can be downloaded by registering HERE.

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 (ABIL) co-authored and edited the guide, which is a one-stop resource for dealing with questions related to business immigration issues in 30 immigration hotspots around the world.

The latest edition adds chapters on Malta and Romania. Other chapters cover Australia, Belgium, Brazil, Canada, China, Costa Rica, the European Union, France, Germany, Ghana, Hong Kong, India, Ireland, Israel, Italy, Japan, Mexico, the Netherlands, Nigeria, Peru, Russia, Singapore, 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 for:

  • 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.

An excerpt of the book is on the ABIL website.

The list price is $431, but a 15% discount is available by visiting LexisNexis and entering discount code "ABIL15". Contact your Lexis/Nexis sales representative; call 1-800-833-9844 (United States), 1-518-487-3385 (international); fax 1-518-487-3584

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

 
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7. Member News
 

H. Ronald Klasko recently spoke at the Investment Migration Forum in Geneva. The Forum was hosted by the Investment Migration Council (IMC). Mr. Klasko was a key speaker and discussed investment migration developments in the United States and Canada. He also participated in a panel discussion on immigration policy and investment migration. Klasko Immigration Law Partners is the North American Regional Representative Office of the IMC, the only global, nonprofit organization associated with investment-related migration. Based in Geneva, Switzerland, the worldwide association for investor immigration and citizenship by investment brings together the leading stakeholders in the field and gives the industry a voice.

Klasko Immigration Law Partners, LLP, announced that Anusree (Anu) Nair recently participated as a speaker at two conferences in Beijing and Shanghai, China. On May 6-7, 2016, she presented at the 2016 Overseas Investment and International Wealth Management Forum (OIIF) in Beijing. Ms. Nair discussed "Source and Path of Funds, Requirements to Maintain Green Card." On May 8, 2016, she participated at the Shanghai Investment & Immigration Expo in Shangri-La, where she presented on "Advanced Source of Fund Issues."

William Stock, Founding Partner of Klasko Immigration Law Partners, LLP, has begun his 2016-17 term as president of the 14,500-member American Immigration Lawyers Association (AILA). Mr. Stock leads the firm's Corporate Immigration team. With more than 23 years of immigration law experience, he focuses his practice on employment-based immigration across industries including education, finance, information technology, life sciences, manufacturing, pharmaceutical, and retail. H. Ronald Klasko, managing partner of Klasko Immigration Law Partners and past president of AILA, said, "I've worked with Bill for more than twenty-three years now, so it’s easy to see why his passion for his work, coupled with his superior expertise in immigration law, has made him the perfect candidate to take the reins of [AILA]."

Mr. Klasko and Mr. Stock have been selected for inclusion in The Most Powerful Employment Attorneys Guide for 2016. The 9th annual list, selected by Lawdragon and produced in partnership with Human Resource Executive, was recently published on Lawdragon and in HRE's print magazine. Mr. Klasko and Mr. Stock were named as two of the top 20 practitioners in the area of Immigration Law. Selections were based on Lawdragon's research and submissions from firms and other visitors to Lawdragon.com and HREonline.com.

Robert Loughran moderated a panel, wrote the presentation, and co-presented with Eugene Chow on the immigration and tax consequences of surrendering U.S. citizenship at the Investment Migration Forum's "Advancing Investor Immigration and Citizenship" conference held June 6-8, 2016, in Geneva, Switzerland. MORE INFORMATION

Mr. Loughran appeared on Fox 7 Austin's "Good Day" on June 27, 2016, to discuss the impact of the Supreme Court's 4-4 decision to leave the trial court's preliminary injunction in place and, in so doing, halt President Obama's expanded executive action on immigration called Deferred Action for Parents of Americans (DAPA).

Olsa Alikaj-Cano, Senior Attorney with Foster LLP, participated on a panel, "Fundamentals Boot Camp," on June 22, 2016, at the American Immigration Lawyers Association's National Convention in Las Vegas, Nevada. The panel explained key immigration terms and concepts; reviewed the various agencies within the Department of Homeland Security and critical distinctions between visas and status; explained visa waivers versus visa-exempt status; and delved into the difference between violating status versus being out of status, including unlawful presence and overstays.

Cyrus Mehta's colleague, Michelle Velasco, has authored a new blog post. "Avoid the Confusion: Complying With the Simeio Decision One Year Later"

Mr. Mehta has published several new blog posts. "Don't Forget Skilled Workers Who May Have to Wait for a Few Centuries Before Getting the Green Card" "Deconstructing the Myth of the Criminal Immigrant" "Trump and the Snake" “Brexit and Xenophobia vs. Immigration and Innovation "Were the DOJ Lawyers Really Unethical in Texas v. USA?" Mr. Mehta also co-authored a blog entry with Anand Sinha. "No Longer So Fast! An Examination of EB-1 Retrogression for Indian and Chinese Born Foreign Nationals"

Mr. Mehta's colleague, David Isaacson, has authored a new blog post. "An Eventful Thursday for Immigration Law at the Supreme Court: United States v. Texas, Mathis v. United States, and What's Next"

Cora-Ann Pestaina, of Cyrus D. Mehta & Partners PLLC, has published a new blog entry. "Can a STEM OPT Student Be Employed At A Third Party Client Site?"

Angelo Paparelli was quoted in the Wall Street Journal in "Hundreds of Veterans Were Deported, Rights Group Says."

Mr. Paparelli has published a new blog post. "All Checks But No Balances—The Systemic Failure To Protect EB-5 Investors"

Bernard Wolfsdorf recently spoke at the Wailian 2016 Overseas Investment Seminar in Guangzhou, China, on the latest insights surrounding the EB-5 Immigrant Investor Program, including an update on the recent administrative and legislative efforts to extend and improve the job creation program. Mr. Wolfsdorf provided a detailed explanation of the Chinese EB-5 backlog and various options entrepreneurs may take to achieve immigration success as the China EB-5 cut-off date remains frozen.

Mr. Wolfsdorf was ranked as one of the United States' "Most Powerful Employment Attorneys" for 2016 by Human Resource Executive (HRE). HRE is an industry publication informing more than 75,000 top-ranking human resource executives. The selection process for honorees of this distinguished award involved extensive research and vetting by HRE.

Mr. Wolfsdorf was also listed as one of the "Top 20 Lawyers in Immigration Law" in Lawdragon's 2016 Guide To The Most Powerful Employment Lawyers. This is the fifth consecutive year in which Mr. Wolfsdorf has received this distinction. Lawdragon, a guide to the legal profession, selects honorees based on a combination of editorial research, submissions from law firms, and online nominations. MORE INFORMATION

Mr. Wolfsdorf was named by EB5 Investors Magazine as one of the "Top 25 Immigration Attorneys in the EB-5 Industry" for the third consecutive year. The selection was based on a combination of community member votes and input from EB5 Investors Magazine's editorial board and in-house team. Candidates were evaluated based on their experience in the EB-5 industry, their track record, and their reputation within the field. MORE INFORMATION

Mr. Wolfsdrof co-authored a new blog post. "Suggested Procedures and Possible Options for Accepting Minors as Investors in EB-5 Investment Funds"

Mr. Wolsdorf was quoted in CNN Money in "Chinese Flock to America to Work for Companies They for Bought." The article discusses the recent spike in Chinese expats working in the United States. Mr. Wolfsdorf said, "Chinese companies are investing very heavily in America, and [they are] bringing in key executives and employees." H. Ronald Klasko was referenced in the same article as noting that in many instances, Chinese firms are choosing to staff up in America with their own people. Commenting on the increase in the percentage of visas granted to Chinese under the investor program, he said, "We expect it will continue to increase." He noted that investors are piling in now in advance of expected changes to the program.

Mr. Wolsdorf recently co-authored an article, "An Explanation of the EB-5 Immigrant Visa Backlog for Chinese EB-5 Investors—How Did We Get Here?" The article, which was included in NES Financial's Navigating a Changing EB-5 Sector, explores the current retrogression for EB-5 investors from China. The co-authors were associates Joseph Barnett and Robert Blanco. Mr. Wolfsdorf also co-authored "Suggested Procedures and Possible Options for Accepting Minors as Investors in EB-5 Investment Funds." The articles are available by registering HERE.

Stephen Yale-Loehr was quoted by Bloomberg BNA's Workplace Immigration Report, in "Mayors Urge Party Leaders to Commit to Taking Early Action on Immigration," on August 1, 2016. Mr. Yale-Loehr said that having both Republican and Democratic mayors sign the letter "sends a powerful message." However, he noted that "no single letter can overcome the obstacles in enacting comprehensive immigration reform." He said the mayors "are on the front lines, dealing with immigrants every day." More such efforts will be needed "to break the political deadlock in Congress on immigration reform," he noted. The publication is available by subscription HERE. Some articles may be obtained by registering for a free trial (see link under "Recent Headlines").

Mr. Yale-Loehr was quoted in "EB-5 Visas Surge in Popularity," published in LasVegasNow.com on July 25, 2016. Commenting on foreign investors' need to prove the source of their investment funds under the EB-5 program, he said, "When we file these cases, frequently, the source of funds documents may be more than a foot high to try and show they earned their money legally." He noted that EB-5 investors are vetted very thoroughly, and added, "This is a way immigration can enhance the national economy by creating jobs for U.S. workers at no expense to the taxpayer." He also observed that the program is "starting to develop backlogs like in all the other categories. It's incumbent on Congress to enact comprehensive immigration reform, so that we have a working system going forward for everyone."

Mr. Yale-Loehr was quoted in PolitiFact.com in "Carlos Beruff Wrongly Attacks Marco Rubio's Record on Border Security and Immigration Bill," published on July 8, 2016. He observed that since Rubio voted in favor of border security enhancements, "it is incorrect to assert that Senator Rubio failed to secure the border."

Stephen Yale-Loehr was quoted by Reuters in "Obama Immigration Win At Supreme Court Could Benefit Trump" on June 19, 2016. In the article, which was published before the Supreme Court issued a 4-4 split decision on June 23 in U.S. v. Texas, Mr. Yale-Loehr noted, "To the extent the court has language about the president’s wide authority in immigration law generally, that would certainly strengthen Trump’s hand." Mr. Yale-Loehr also was quoted in the Houston Chronicle before the decision was issued.

Mr. Yale-Loehr was quoted in various articles after the Supreme Court's decision was issued:

Mr. Yale-Loehr was quoted by Vice.com in "Everything You Need to Know About Hillary Clinton's Immigration Plans," published on June 28, 2016. Commenting on the Supreme Court's stalemate on President Obama's executive actions, he noted, "In terms of executive action [Hillary Clinton] may be more limited as a practical matter. Texas and other states will feel emboldened by today's decision to try to stop Hillary's executive action." The only real solution, he said, is to get Congress to pass these reforms—a dim prospect.

Mr. Yale-Loehr was quoted by the Dallas Morning News in "After Supreme Court Deadlock on Immigration, What's Next?", published on June 24, 2016. Commenting on the Supreme Court's stalemate on President Obama's executive actions, Mr. Yale-Loehr said, "My prediction is that nothing will happen between now and the presidential election because it will take some time to have a trial on the merits. In the short term, it's going to be more of the same. The DAPA program stays on hold and the original DACA program still continues."

Mr. Yale-Loehr was quoted by the New York Times in "Many What-Ifs in Donald Trump's Plan for Migrants," published on June 18, 2016. Mr. Yale-Loehr noted, "I can see severe adverse political fallout. Countries could retaliate by limiting travel by U.S. citizens, and it would certainly harm our standing in terms of international initiatives negotiating trade deals and stopping wars."

 

 
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