August 2014

FRANCE: New Law to Combat Fraud in Framework of Posted Workers

August 22, 2014/in France, News /by ABIL

New Law to Combat Fraud in Framework of Posted Workers

A posted worker is one sent by a company in one EU member state to provide short-term services for a company (client or affiliate) in the host EU member state. France’s Act of July 10, 2014 (Act) against unfair social competition translates into French law a directive of the European Union (EU) of May 15, 2014, laying down a set of mechanisms to prevent and punish any violation or circumvention of posting procedures in the EU.

Most of these provisions are incorporated into the code of labor with immediate application.

Declaration of Posting

The Act strengthens the compulsory nature of the posting declaration, which was already required by Articles R. 1263-3 and the Labor Code. The employer sends a statement of detachment to the labor inspectorate having jurisdiction over the work site. The user or the client who contracts with the foreign service provider must ensure that a compliant declaration has been made. In the absence of a compliant declaration, the end user and contracting parties may be jointly and severally liable for payment of an administrative fine of up to €2,000 per posted employee. This penalty may be increased to €4,000 in case of repeated violations. The total amount of the fine may not exceed €10,000. The Act provides that the declaration of posting must be recorded in the statutory register of personnel of the company that hosts posted workers.

Due Diligence and Financial Responsibility of the Payer

The Act strengthens due diligence and accountability of the user or client. The user or client has an obligation of “vigilance” with respect to the collective housing conditions of employees of the provider. In case of failure, the user or client may be required to defray the costs of the collective accommodations of employees.

The required diligence of the user or client also applies to compliance by all contractual parties with labor laws. In case of noncompliance, the user or client must order the other party to comply and, if the noncompliance persists, inform the public authorities. If the user or client breaches these obligations, it is subject to a penalty prescribed by decree of the Conseil d’Etat. In case of noncompliance with payment of minimum wages or if the user or client has failed to fulfill its obligations to order compliance and inform the authorities of noncompliance if it persists, it may be held jointly and severally liable for payment of salaries, allowances, and charges.

Online Publication of Sentences

The Act provides for the publication of court penalty sentences for a period of up to two years on a dedicated website.

Unions’ Right to Sue

The Act creates the right of union representatives to defend before the courts the rights of a posted employee without having to show a power of attorney from that employee. It is sufficient that the employee be informed and not object within 15 days. The employee can always intervene in the proceedings initiated by the union and stop them at any time.

Consequences for Foreign Employers of Posted Employees

These new control mechanisms and sanctions apply to all foreign employers of employees posted to France. The foreign employer posting employees as part of a service to a client in France should therefore ensure its compliance with labor laws applicable in France, including regulations on collective accommodations. In the event of noncompliance, the foreign employer may receive an order from the user or French client to stop the offense. Moreover, if the user or client does not issue a compliance order when appropriate or inform the authorities of persistent noncompliance, such user or client company may itself be penalized in France and be held severally liable for the cost of collective accommodations or payment of salaries, allowances, and expenses payable as compensation to the posted worker.

Entrepreneurs & Investors: A Country-by-Country Overview

August 22, 2014/in Belgium, Brazil, Canada, France, Germany, Hong Kong, India, Italy, Mexico, Netherlands, News, Peru, Turkey /by ABIL

This article provides an overview of how various countries attract entrepreneurs and what types of immigrant investment programs exist. INTERNATIONAL COMPARISON CHART. The authors thank Henley & Partners for allowing ABIL to reprint its chart.

Belgium

Belgium does not have specific immigrant investment programs. As a general rule, entrepreneurs and investors need a permit before starting business activities in Belgium, as either an employee (work permit) or self-employed (professional card).

However, some individuals planning to make a significant investment in Belgium may benefit from a preferential application procedure. This informal and discretionary process, which is not in the regulations, implies that some investors may be exempt from obtaining a work permit before applying for a temporary resident visa for up to 8 months, with the possibility to extend. These investors still need a work permit or professional card, but can complete the procedure to obtain the required permit in Belgium.

Brazil

An investor visa may be granted to a foreign national who wants to come to Brazil to invest his or her own foreign capital in Brazil in productive activities. The foreign national must prove the investment of a minimum of the equivalent, in foreign currency, of R$ 150,000.00. In special situations, if the investment is lower than the equivalent of R$ 150,000.00, the National Council of Immigration will analyze the application. That agency has the authority to assess the importance and social relevance of the project and may, based on such analysis, render a decision granting a visa to the foreign national.

In either case, the candidate must submit an Investment Plan, with a detailed and clear account of the use of the invested resources, including:

Business definition:

Business sector and location
Description of intended services
Investment objectives and date of beginning of operations

Investment objectives:

Business sector and location
Related technology and services
Government programs and locations
Current partners, if any
Operational market
Business development strategy

Creation of jobs and revenue:

Employment plan for the first three years of operation (number of employees and positions)
Intended salaries
Planned investment for training and qualification of employees

Financial plan:

Description of the investment plan

The most important of the topics to be included in the Investment Plan is the creation of jobs and revenue. The creation of jobs must occur during the first year after the work permit is approved. Although indirect jobs may be counted, the company where the direct investment will be made must create direct jobs. Other topics—increase in productivity, assimilation of new technology, and fund-raising for specific sectors—are criteria that complement job generation.

Other points considered in the analysis of the Investment Plan are its consistency (i.e., the lack of any incoherence, diverging or non-confirmed information, or contradictory assertions) and the candidate’s curriculum vitae (special attention is given to the candidate’s professional experience in relation to the intended investment).

The visa is conditional for the initial three years. Renewal of the RNE (Registro Nacional de Estrangeiros) and an unconditional permanent visa can be obtained provided that the foreign national proves at the end of such term that he or she remains as a foreign investor, the investment plan was complied with, and the project generated the job positions for Brazilians that were projected in the original visa application.

Canada

On February 11, 2014, Canada’s Economic Action Plan (EAP) announced the government’s intent to terminate both the Federal Immigrant Investor Program (IIP) and Federal Entrepreneur Program (EN). In doing so, it plans to eliminate several thousand backlogged applications.

The IIP and EN programs have been cornerstones of Canada’s business-oriented immigration programs. In 2011, approximately 10,000 immigrants entered Canada through the IIP, while almost 1,000 entered through the EN.

Although the programs have been longstanding business immigration programs, in recent years they suffered from significant backlogs in processing. Investors, for instance, had to wait at least 54 months for visa issuance, while many entrepreneurs faced even longer processing times.

The current inventory of backlogged applications for the IIP stands at 65,000. Citizenship and Immigration Canada (CIC) anticipates that it would take more than six years to process these cases. To move forward with programs that will more accurately capture the types of investors needed in Canada, CIC has decided to eliminate many of the files currently in the backlog.

However, to date, no official announcement has been made as to which applications will be processed and which applications will be returned to the applicants.

CIC pointed out in its press release that the minimum investment amount for IIP applicants, which is $800,000, is significantly lower than that of investor programs in countries such as the United Kingdom, Australia, and New Zealand. It also noted that investors who arrive in Canada are likely to pay lower taxes than immigrants who come to Canada through programs such as the Federal Skilled Worker Program.

In its backgrounder, CIC explained:

The existing IIP is of limited economic benefit to Canada. There is very little “new” money coming into Canada. Almost all initial investments made through the program come from loans from Canadian banks to provincial governments.

The amount of IIP capital actively invested in economic development initiatives has been disappointing. The requirement for provinces to guarantee repayment of IIP investments after five years limits their ability to invest funds into more high-risk initiatives that tend to reap greater rewards for Canada in terms of true innovation and job creation. Fifteen years after provinces and territories were factored into the equation, less than half of the funds are actively invested.

By doing away with the current IIP and EN programs, the government will “pave the way for new pilot programs that will actually meet Canada’s labour market and economic needs.” These pilot programs will enable Canada to remain competitive in the global economy.

The pilot programs will complement the Start-Up Visa program, a former pilot program that is now a permanent part of Canada’s immigration system. This program links immigrant entrepreneurs with experienced private sector organizations who are experts in working with start-ups.

Two additional programs have already been mentioned as replacements for the IIP and EN streams. One will be a new Immigrant Investor Venture Capital Fund and the other a new Business Skills Program.

Details of the new pilots will be announced in the coming months.

Most Canadian provinces have created provincial nomination programs (PNPs) as a means of attracting applicants who are likely to make an immediate economic contribution to the province. These programs are tailored to respond to the economic needs of a given province.

To apply for permanent residence under a PNP, an applicant must first be nominated by a province or territory. Each province and territory has established its own requirements and nomination procedures. In general, each of the provinces and territories seek to attract applicants who have skills, education, and work experience that will contribute to the economy of that province or territory.

The Canadian province of Québec manages its own Investor Program, which requires net assets of at least CAD $1.6 million legally acquired, management experience, and a no-interest loan of CAD $800,000 made to Québec for a five-year period. The Québec Investor Program remains open to French-speaking applicants who have an advanced intermediate level of French as evidenced by a recognized French test.

France

France offers permanent residence to international investors who invest at least €10 million in productive assets, or create at least 50 new jobs or save 50 jobs in danger.. Productive assets are those assets that produce work and other human activity. These assets cannot be stocks, bonds, or other investment vehicles producing passive investment income. This very high threshold may be lowered by the prefect of the department hosting the investment, taking into account the economic need of that department.

This program, called the Extraordinary Economic Contribution scheme, has been in place since 2009. The number of applicants benefitting from this scheme since 2009 is estimated to be between zero and two persons over the last five years. The government has announced the probable abrogation of this scheme without suggesting the creation of a new one with lower thresholds.

In the absence of a better program, foreign entrepreneurs are best served under the Talents and Skills scheme, which was initially created as a broad effort to attract highly qualified workers, professionals, artists, and sports people. Its scope was large enough to accommodate entrepreneurs with a less ambitious business plan showing an investment in productive assets of €300,000, the creation of two jobs, or the creation of a French subsidiary of an existing foreign parent company. This scheme is cumbersomely managed by a vast steering committee. The government has announced that this scheme is likely to be abrogated in favor of a new one, referred to as a Talent Passport. The goal is to be more efficient in enhancing the attractiveness of France to foreign talent and investment.

The Talent Passport is targeted to begin in 2015 and will cover several existing immigration categories. The new scheme will allow a beneficiary to obtain four-year renewable resident status. The criteria have not yet been defined.

Foreign nationals who wish to live in France as Long-Stay Visitors may do so by showing that they have adequate means of foreign-source revenues and that they will not be potential job-seekers in France. This is the case of foreign nationals receiving dividends, royalties, pensions, or income from passive investments. The long-stay status is renewed annually and may lead to permanent residence after five years of continuous residence.

Germany

Given the lack of any investor visa category, investors from third countries must comply with the immigration laws related to self-employment. Any third-country national must file an application for a residence permit to take up an economic activity (including employment and self-employment) in Germany. For self-employment, § 21 of the German Residence Act includes certain restrictions on the grant of residence permits. Under this Act, residence permits may only be granted to the self-employed if: (1) there is an economic interest or a local requirement; (2) the activity is expected to have positive effects on the economy; and (3) financing of the implementation is assured by equity or promised credit.

Until July 31, 2012, the first two preconditions were regarded as met if at least €250.000 were invested and five jobs were created. However, since August 1, 2012, those thresholds no longer exist. The idea is to attract more entrepreneurs to invest in Germany and facilitate investment in Germany. Also since August 1, 2012, an economic interest (as opposed to a higher economic interest) and a local requirement (as opposed to a particular local requirement) suffices. However, the following criteria still apply to the assessment of preconditions: carrying capacity of the business idea, entrepreneurial experience of the foreigner, and amount of the capital investment. To make an accurate assessment, the foreigners’ office ordinarily asks for an expert statement from a competent authority; e.g., the local Chamber of Industry and Commerce. Foreigners over the age of 45 may receive a residence permit only if they possess adequate provision for old age.

A residence permit for the purpose of self-employment may also be granted if special privileges apply according to agreements under international law on the basis of reciprocity, for example, see § 21 of the Act.

Moreover, according to § 21 of the Act, a residence permit for the purpose of self-employment may also be granted to a foreigner with a degree from a German university or a comparable German educational institution without the aforementioned conditions being met. The same applies for the holder of a residence permit for research or scientific purposes (§§ 18 and 20 of the Act) if the envisaged activity is connected to the person’s educational background.

Despite the aforementioned, the law provides for the grant of a settlement permit in the following cases:

if the foreigner holds a permanent residence permit (§ 9 of the Act)
for researchers with regard to their research projects (§ 20 of the Act)
if the Federal Ministry of the Interior or the body designated by the Federal Ministry of the Interior has declared that the foreigner is to be admitted (§ 22 of the Act)

In principle, the period of validity of the residence permit is limited to a maximum of three years. However, after three years, a settlement permit (Niederlassungserlaubnis) may be issued where the foreigner has successfully performed the planned activity and the subsistence of the foreigner and his or her dependents (those living with him or her as a family unit whom he or she is required to support) are ensured by adequate income.

Hong Kong

Two categories of visas are available for investors and entrepreneurs in Hong Kong.

The first is an employment (investment) visa that enables a successful applicant to establish or join in a business in Hong Kong. To qualify, the applicant must have invested in a business that is of substantial benefit to the economy of Hong Kong.

The second is the Capital Investment Entrant Scheme (CIES), which allows for the entry of a passive investor who invests at least HK$10 million (US$1,282,051) in permissible financial assets such as equity shares in a Hong Kong Stock Exchange listed companies, debt securities issued or guaranteed by the HKSAR Government or Certificates of Deposit issued by authorized Hong Kong banking institutions, or “eligible collective investment schemes”; i.e., unit trusts or mutual funds managed by a licensed company under the Securities and Futures Ordinance or investment in investment-linked assurance scheme (ILAS) products.

India

There is no specific visa program for investors or entrepreneurs in India. However, the Ministry of Home Affairs Frequently Asked Questions (FAQ) dated September 25, 2009, includes provisions that allow foreign national investors and entrepreneurs into India on either business or employment visas.

The following business visa criteria in the FAQ apply to investors or entrepreneurs who wish to:

Establish an industrial/business venture or explore possibilities to set up an industrial or business venture in India; or
Function as a partner and/or director of a business or company

The guidelines relating to employment visas are broad, and also can apply to either investors or entrepreneurs. Employment visas are not granted for positions for which qualified Indians are available or for “routine” or “ordinary” jobs, according to the FAQ. The foreign national must seek to visit India for employment in a company, firm, or organization registered in India or for employment in a foreign company, firm, or organization engaged in the “execution of some project in India.” The foreign national’s salary must be above $25,000 per year.

The employment visa criteria include “[s]elf-employed foreign nationals coming to India to provide engineering, medical, accounting, legal, or other such highly skilled services as independent consultants, provided the provision of such services by foreign nationals is permitted under law.” These self-employed individuals must also meet the $25,000 salary requirement. Note that foreign law firms are restricted from entering India under a 2012 Supreme Court order.

There are no permanent residence categories under Indian law. However, certain people of Indian ancestry can apply for Overseas Citizenship of India (OCI) or Persons of Indian Origin (PIO) status (which includes a spouse of a PIO), which would allow them to engage in investment or entrepreneurial activities in India on a long-term basis.

Italy

The Italian Ministry of Foreign Affairs has established a new type of visa (under measure 44 of the Plan “Destinazione Italia” and Law no. 221/2012) to attract and retain foreign entrepreneurs willing to establish a start-up company in Italy.

The visa issuance procedure is expected to be fast and streamlined. A technical committee established by the Ministry of Industry and Economic Development will evaluate the start-up companies. To obtain an entry visa for startups, a foreign entrepreneur must prove ownership of at least €50,000 in financial resources. This funding can be raised through venture capital, crowdsourcing, investors, or Italian/foreign governments and non-governmental organizations. Special facilitations are provided for foreign citizens who have the support of a certified incubator.

Two other types of visas may be useful, depending on the activities the investor is willing to carry out:

Autonomous Work Visa—for individuals willing to work autonomously (e.g., freelancers, consultants) or to establish a company in Italy. The autonomous work visa is subject to numerical caps. Appointed directors employed by a foreign company and temporarily assigned to an Italian-affiliated company may be granted an autonomous work visa without any quota limit.
Elective Residence Visa—for individuals who are interested only in living in Italy without carrying out any work activities. The elective residence visa is limited to those who have a significant amount of money and savings and are able to live in Italy with no need of work-related income.

The requirements and conditions to apply for the start-up visa are listed on the Italian Ministry of Foreign Affairs website (Startup Visa Guidelines and Italia Startup Procedures).

Mexico

The 2012 Migration Act in Mexico has simplified the process and decentralized the autonomy vested in the National Immigration Institute to issue short- and long-term visas for investors and entrepreneurs. These can normally be obtained directly at Mexican consulates within 3 to 10 days.

Nationals from several designated countries may freely enter Mexico in business visitor status without having to apply for a visa. Business visitors generally may engage in all kinds of business activities for up to 180 days. Mexican law does not distinguish among business activities. Visa-waivered entry is also allowed for “regulated nationalities” under several schemes, such as having a valid U.S. visa of any kind, or permanent residence in the United Kingdom, Japan, United States, Canada, or the Schengen countries.

It is also now possible for entrepreneurs and investors to obtain temporary residence for longer than 180 days directly from a Mexican consulate before traveling into Mexico. A threshold of proof for investments in Mexico can be demonstrated with documentation such as evidence of ownership of real estate, shareholdings, a business plan, or a contract.

Specific requirements for obtaining this type of visa at the consulate include:

An incorporation deed of a Mexican corporation, executed before a Notary Public, or a document certified by the competent administrative office or official thereof, stating that the foreign person participates in the share capital of the Mexican corporation and that the investment amount for the participation of the foreigner in the Mexican entity exceeds US$102,0000, which may be demonstrated, among other ways, with a sales contract, contract, or transfer of property rights for the Mexican entity or a document issued by the latter stating the amount contributed by the concept of participation in the share capital, in original and copy;
A document certifying the ownership of real estate properties of the foreign corporation, with a value that exceeds US$102,000, in original and copy;
Documentation demonstrating economic and business activities in Mexico, such as contracts, service orders, invoices, receipts, business plans, licenses or permits, and a certificate issued by the Mexican Social Security Institute stating that the foreign person employs at least five workers, in original and copy.

Netherlands

Investors and Entrepreneurs

The residence permit scheme for entrepreneurs is based on a points system. The scheme is perceived as rather inflexible and is therefore not frequently used. In October 2013, a separate, “pure” investor scheme was introduced for high net worth individuals investing at least 1.25 million euros. Despite its announced attractiveness, this new scheme has not brought much relief either.

Points-Based System

Under the general entrepreneur scheme, points can be earned for (1) personal experience, (2) the business plan, and (3) added value for the Netherlands. In each of the three categories, up to 100 points can be earned. The required minimum total is 90 points; i.e., 30 points in each category, or, alternatively, 45 points in categories 1 and 2. The Dutch Ministry of Economic Affairs carries out the points allocation. Despite the promise of a more or less mathematical system, there is quite a bit of discretion involved in the points allocation. In practice, financial and commercial forecasts are often considered speculative or not specific enough. In essence, the system is unpredictable. The processing time is about 6 months.

Investors

The investor scheme targets high net worth individuals who invest 1,250,000 euros in a Dutch company. Various modalities are available, among which is a simple cash transfer to a Dutch bank account. A Dutch accounting firm with an international profile must declare the invested funds to “not be of illicit origin.” To check the financial information provided, authorities in the country of origin may be contacted in some cases. If there is no judicial cooperation between the Netherlands and the country of origin, the application may be refused for lack of objective financial information.

In addition to these financial requirements, the investment must add intrinsic value to the Dutch economy. Again, the Dutch Ministry of Economic Affairs assesses the added value, which is done through a points system that partly overlaps the general points system.

Added Value to the Netherlands for “Pure” Investors

The applicant must score a minimum of 25 points out of 50:

(1) Job creation: maximum of 15 points.

up to 5 jobs created: 5 points;
up to 10 jobs: 10 points;
10 or more jobs: 15 points

(2) Innovation: maximum of 30 points

Bringing a patented product into the company: 10 points;
Investing in an innovation: 10 points;
Investing in a “business sector of excellence”: 10 points;

Because innovation and bringing in a patent are rare for pure investors, in most cases a certain amount of job creation will be required.

Peru

In Peru, foreign entrepreneurs or investors may invest in sectors like mining, oil and gas, energy, and infrastructure. Benefits are provided for in legal and/or tax stability agreements made between the Peruvian government and the foreign investors for a determined term. Any law or rules arising after the date of the agreement and while it is in force cannot be applied to the detriment of the investor.

Otherwise, there is no specific immigrant investment program in Peru. Under the Aliens Law, Legislative Decree No. 703, as amended by Legislative Decree No. 1043, foreign citizens may be admitted to Peru through the immigration category of Independent Investor, which authorizes the alien to invest in Peru.

One of the main requirements for this kind of visa is to demonstrate before Migraciones (Peruvian Immigration Bureau) the following:

To evidence with pertinent documentation that the investor holds shares in a local company in an amount equivalent to US$30,000.00.
To file a business project feasibility study (if it is a newly incorporated company) or a business plan (if it is a company already active) that includes creating five jobs within two years. Either the study or the plan must be prepared by the investor and be authorized and certified by a professional.

Turkey

The Republic of Turkey has no immigration program specifically for investors. Foreign nationals who want to start a business or purchase assets as a way to reside in Turkey historically have had to use other visa and residence permit categories not intended specifically for that purpose. However, on April 11, 2014, Law No. 6458, Law on Foreigners and International Protection, took effect. The new law provides two categories of residence permit that may assist investors. Under article 31 of the new law, short-term residence permits will be available that are renewable in one-year increments. Two new categories include:

Possession of immovable property in Turkey
Intent to set up commercial connections or establish a business in Turkey

There are no regulations or other guidance on what specific documents or evidence will be required for these two categories. However, it appears that their goal is assisting entrepreneurs and investors to remain in Turkey.

United Kingdom

Tier 1 (Investor)

The Tier 1 (Investor) scheme exists for foreign nationals wishing to relocate to the United Kingdom (UK) on the basis of a passive £1 million investment. The applicant must have at least £1 million in his or her own funds, which must generally have been held for at least three months in a regulated financial institution in any country. Proof of the source of the funds is also required. Initial visas are granted for three years and four months. Spouses, civil or unmarried partners, and children under 18 can be included.

Within three months of entry to the UK, investors must invest at least 75% of the £1 million in UK government bonds or share/loan capital in active and trading companies registered in the UK. This will generally be an investment into a portfolio of gilts, equities, or corporate bonds managed by a UK-regulated institution, although investment into private limited UK companies is possible in specific circumstances. Investment in UK companies principally engaged in property investment is prohibited. The remaining 25% can be held in any assets in the UK for investment purposes, such as cash deposits or UK property the investor owns personally and lives in. Extensions are granted for a further two years with proof that the investment has been maintained at the correct level in the first three years.

Investors can apply for permanent residence (known as indefinite leave to remain) once they have completed five years in the UK, subject to satisfying the residence requirement of having spent no more than 180 days outside the UK in each of the five years, having maintained the £1 million investment, and having passed an intermediate English language test and a simple integration (“Life in the UK”) test.

Applicants also may invest higher amounts to shorten the qualifying period for permanent residence to two years (£10 million) or three years (£5 million). The route is currently being reviewed following a report by the Migration Advisory Committee in 2014 and the minimum investment threshold may increase.

Tier 1 (Entrepreneur)

The Tier 1 (Entrepreneur) scheme exists to enable foreign businesspersons to relocate to the UK to make an active investment in a new or existing UK business. Successful applicants must demonstrate that they have £200,000 available to invest of their own money or third-party funds. Lower funding of £50,000 is allowed where it is made available by a UK-regulated private equity firm, a UK government department, or a recognized seed funding competition.

It is possible to apply with another applicant as part of an entrepreneurial team using the same funds if control of the investment funds are shared equally. On January 31, 2013, the Home Office introduced a “Genuine Entrepreneur Test,” meaning that to obtain the initial visa, an entrepreneur may be required to demonstrate business acumen and credible/viable plans for his or her business. Entrepreneurs must speak English to CEFR B1 (intermediate) level and be able to show sufficient personal savings to support themselves and their family members on arrival. Initial visas are granted for three years and four months. Spouses, civil or unmarried partners, and children under 18 can be included.

To extend the visa, the applicant must show that he or she has invested at least £200,000 in a new or existing business, has registered as self-employed or been appointed as a company director within six months of arrival, and has created the equivalent of two new or additional full-time jobs for British, European Union, or permanent resident employees. If the entrepreneur has satisfied all of the requirements of the scheme, he or she may be able to extend the visa for a further two years.

After five years of continuous residence, the entrepreneur may be eligible to apply for indefinite leave to remain (permanent residence). To qualify for permanent residence, the entrepreneur must not have been absent from the UK for more than 180 days in each of the five years of residence, must pass a simple “Life in the UK” test, and must show that the business is continuing. The resident period of qualification for permanent residence can be reduced to three years if the entrepreneur employs the equivalent of 10 new or additional full-time employees for at least a year each or if the revenue of the business reaches, or increases by, at least £5 million over a three-year period.

Tier 1 (Graduate Entrepreneur)

Graduates of domestic and overseas institutions seeking to start up one or more businesses in the UK may apply as Tier 1 (Graduate Entrepreneur). To qualify under this route, applicants must have been awarded a UK bachelor’s degree or higher (or acknowledged equivalent) and received an endorsement, from either a UK higher education institution or UK Trade and Investment, confirming that the applicant and his or her business idea have been evaluated. Applicants also must demonstrate sufficient English language skill and levels of maintenance.

Prospective Entrepreneur

The Prospective Entrepreneur category is intended for non-European Economic Area nationals coming to the UK for talks with registered venture capitalist firms, endorsed entrepreneurial seed-funding competitions, or government departments, to secure funding for setting up, joining, or taking over a business in the UK. Individuals must seek a minimum of £50,000 and may enter the UK for up to six months, after which time they must either leave or switch into the Tier 1 (Entrepreneur) category.

For more information, see Tier 1 (Entrepreneur) of the Points-Based System—Policy Guidance (Version 10/13) and Tier 1 (Investor) of the Points-Based System—Policy Guidance (version 10/13).

United States

U.S. immigration law provides for two different investment visa options for foreign nationals wishing to invest in enterprises in the United States in exchange for the right to live and work in the country. Generally, a citizen of a foreign country who wishes to enter the United States must first obtain an immigrant or nonimmigrant visa.

Immigrant Investor (EB-5) Program

The Immigrant Investor (EB-5) Program was established as a pilot program in 1990 and is administered by U.S. Citizenship and Immigration Services (USCIS). The EB-5 program allows foreign investors and their families to become permanent residents (green card holders) in about one to two years.

On September 28, 2012, President Obama signed S. 3245, extending the EB-5 Regional Center Program for an additional three years until September 30, 2015. There are 10,000 EB-5 green cards made available every year, but historically the program has been underused. In 2011, only 3,463 were issued and in 2012, 6,200 immigrants got their green cards via EB-5. In 2013, 8,567 such visas were issued. The Department of State has predicted a potential backlog for the first time in 2015 for Chinese nationals.

There are two EB-5 programs: the Direct Investment (Direct) program and the Regional Center program.

The Direct Program and History of EB-5

For an applicant to qualify under the initial or Direct program, the following three basic requirements must be met:

investment in a new commercial enterprise;
investment of at least $1 million (or $500,000 in certain cases) into the business; and
creation of employment for at least 10 full-time U.S. workers.

For the first two years, the EB-5 program was only set up for those who were willing to invest and create their own businesses that would produce at least 10 jobs. However, in 1993, the government began to designate certain businesses as regional centers. These were primarily businesses that were started or expanded in a Targeted Employment Area (TEA), an area where the unemployment rate exceeded the national average by 150% or a rural area where the population was less than 20,000; that fit within the $500,000 investment designation, and that were duly approved by USCIS (formerly the Immigration and Naturalization Service).

Regional Centers

The second program within the EB-5 category, the Regional Center program, is ideal for retirees or inactive investors due in large part to its “indirect employment” feature. The program removes the 10-full-time-employee requirement of the Direct program and substitutes the less-restrictive “indirect employment creation” requirement, which allows an investor to qualify by proving 10 direct and/or indirect employees who are new to the regional center.

The EB-5 policy management requirement is minimal in that the investor can be a limited partner and still qualify as long as the limited partners have a policymaking role. Thus, for those who are not interested in day-to-day management or running an active business, regional center investments offer a more acceptable inactive form of investment than do most Direct investments. Another advantage that adds to the flexibility of this green card category is that the investor is not required to live in the place of investment; rather, he or she can live anywhere in the United States.

Each regional center must be pre-approved by USCIS for the investors to be eligible for EB-5 green cards. An investor must present evidence that documents the lawful source of funds and traces the funds through bank transfers and other documentation, from the investor directly to the enterprise. The money can be the investor’s own funds or in the form of a loan or gift, which would allow a parent to gift a son or daughter.

After the investor completes a thorough business and financial due-diligence analysis of the viability of the regional center business opportunity, he or she makes the investment and files an I-526 petition with USCIS, requiring the agency to approve that the applicant (source of funds) and the investment are eligible for EB-5 status, which takes an average of 6 months for Direct and 12 months for Regional Center program cases.

If the investor is already in the United States, generally in valid work status, he or she then applies for permanent resident (green card) status through USCIS. No interview customarily is required, and approval for most cases takes approximately 6 to 12 months. If the investor resides abroad, he or she generally files an application for the green card at the U.S. embassy or consulate in the investor’s home country, where an interview is necessary. Approval of the green card in this case takes about 6 to 8 months. Thus, the entire immigration process generally takes about 12 to 24 or more months, depending on where the green card processing occurs. Once USCIS or a U.S. consulate approves the investor’s green card, permanent residence is conditional for a period of two years. Conditional permanent resident status confers the same rights as permanent residence.

Between 21 and 24 months after the conditional green card has been approved, the investor must reconfirm that the investment project has been completed and that the employment requirement has been fulfilled. An I-829 application to remove conditional status is then filed with USCIS, which takes about 12 months for processing. Once the condition has been removed, full permanent resident status is granted.

Processing of the I-526 application through approval of the removal of conditions usually takes about 4 to 5 years. Thereafter, with an approved EB-5 case, even if the investment is sold, the investor will still maintain the permanent green card.

E-2 Treaty Investor Nonimmigrant Visa

The E-2 Treaty Investor visa is a nonimmigrant visa for citizens of countries with which the United States maintains treaties of commerce and navigation. The E-2 visa allows a foreign national from a treaty country the right to live and work in the United States for a business in which either they have invested or nationals from their country have invested for a temporary period of time. Initial visas may last for up to 5 years, with unlimited extensions. The length of the visa depends upon the visa reciprocity agreement between the United States and the foreign country and upon the viability of the business (new companies may receive shorter validity periods). Each time E-2 visa holders (workers or family members) enter the United States, they receive a period of stay of up to 2 years. They also may extend their stay while remaining in the U.S. E-2 visas are available for an accompanying spouse and unmarried children under the age of 21, and the spouse, but not children, may apply for a work permit once physically present in the United States.

The following are the criteria to qualify for an E-2 Treaty Investor Visa:

The applicant must be a citizen of a country that has a relevant treaty with the United States;
The applicant must be coming to work in the United States for a company that he or she either owns or that is at a minimum 50% owned by other nationals of the treaty country of origin;
The applicant must be either the owner who will develop and direct the operations or a key employee (executive or supervisor, or someone with essential skills) of the U.S. business;
The applicant or the company must have made a substantial investment in the U.S. business (there is no legal minimum (generally in excess of $100,000), but the applicant or company must be putting capital or assets at risk and be trying to make a profit, and the amount must be substantial relative to the type of business).
The U.S. company must be actively engaged in commercial activities and meet the applicable legal requirements for doing business in its state or region. It also cannot be merely a means to support the investor. The underlying goal of the treaty investor visa is to create jobs for U.S. workers.
The applicant must intend to leave the United States when his or her business in the United States is completed, although the person is not required to maintain a foreign residence abroad. With the exception of E-2 applicants from the United Kingdom, the applicant need not be presently residing in the country of citizenship to qualify for an E-2 visa.

In determining which investor program is best suited, there are several factors to consider. For EB-5 regional center investors, once the green card is issued, the foreign national is authorized to work for any employer or enterprise, while with an E-2, the treaty investor or employee is restricted to working only for the employer or self-owned business that acted as the E-2 visa sponsor. The EB-5 allows for passive or inactive investment, for regional center investors, whereas the E-2 visa requires that the treaty investor develop and direct the operations of the investment enterprise. However, the EB-5 requires a minimum investment of $500,000, whereas with the E-2 visa, there is no legal minimum, provided the amount is substantial relative to the type of business. Also, unlike the EB-5 green card, there are no annual limits on the number of E-2 visas that can be issued to qualified applicants.

News from the Alliance of Business Immigration Lawyers Vol. 10, No. 8B • August 15, 2014

August 15, 2014/in Immigration Insider /by ABIL

Headlines:

1. DOS Makes ‘Significant Progress’ in Bringing Visa Processing Back Online and Clearing Backlogs – DOS said it has caught up with issuances for most of the worldwide backlog of nonimmigrant visa cases and is working to bring the system back to full operational capacity.

2. CBP Announces New Mobile Passport Control App – The Mobile Passport Control app will allow eligible travelers to submit their passport information and customs declaration forms via a smartphone or tablet computer before CBP inspection.

3. Visa Bulletin for September Advances India EB-2 Cut-Off Date, Announces Numerical Limits for FY 2014 – The India employment-based second preference cut-off date to advance very rapidly in recent months, although further advancements cannot be guaranteed.

4. OSC Advises on How to Proceed After Over-Documenting Employees – OSC cannot advise on specific facts but offers general guidance, including “free webinar training by our office or distribution of educational materials to [a company’s] staff.”

5. DOS Extends Special Immigrant Visas for Afghans – In addition to the 3,000 visas for Afghan principal applicants originally allocated for use in fiscal year 2014, another 1,000 SIVs may be issued until December 31, 2014. The program will end on that date unless Congress further extends it.

6. USCIS Says Applicants Can Receive Certain Docs by Delivery Service of Their Choice – Applicants can prepay to use the overnight delivery or courier service of their choice to receive certain documents, such as approval and denial notices, requests for evidence, and most travel documents.

7. Pro Bono News: Miller Mayer – Attorneys at Miller Mayer, an Alliance of Business Immigration Lawyers member firm, recently won a complicated pro bono appeal at the Board of Immigration Appeals.

8. New Publications and Items of Interest – New Publications and Items of Interest

9. Member News – Member News

10. Government Agency Links – Government Agency Links

Details:

1. DOS Makes ‘Significant Progress’ in Bringing Visa Processing Back Online and Clearing Backlogs

The Department of State (DOS) announced that it has made “significant progress” in bringing back online the Consular Consolidated Database (CCD), used to print and approve visas and passports. The system had crashed in July 2014 and has continued to experience outages, resulting in processing backlogs. DOS said it has caught up with issuances for most of the worldwide backlog of nonimmigrant visa cases and is working to bring the CCD back to full operational capacity. “We continue to prioritize immigrant visas, adoption cases, and emergency nonimmigrant visa cases. We are printing visas for these cases and all cases with very few delays,” a DOS statement noted. For information on specific cases, the agency advises checking with the embassy or consulate where the person will apply or has scheduled an interview.

DOS noted that the problems started shortly after a software update on July 20, 2014, although the agency has not been able to identify a “root cause.” DOS said current efforts are focused on bringing the system back to normal operations. Once that has been accomplished, DOS will investigate the cause, and the agency also has been working with Oracle and Microsoft to implement system changes aimed at optimizing performance and addressing ongoing issues. DOS is also bringing additional servers online to increase capacity and response time. DOS noted that it has experienced minor outages in the past, but not of this magnitude.

The agency says visa applicants should “expect delays as we process pending cases,” but that it remains able “to quickly process emergency cases to completion.” DOS estimates that visa issuances may be delayed 10 to 14 days until the system is restored to full functionality and pending applications are printed.

DOS says it understands the importance to international students and exchange visitors, their families, and their U.S. host institutions of timely visa issuance to facilitate travel and to ensure that all students and exchange visitors may begin their programs on time. “We are committed to issuing visas to all qualified students and exchange visitors. Student and exchange visitor visa applicants should submit their applications well in advance of expected travel dates. We will make every effort to ensure timely visa issuance,” DOS said. The agency added that in situations where a student won’t be able to arrive at school on time, “[s]tudents should contact their educational institution’s Designated School Official (F and M visas) or designated U.S. sponsor’s Responsible Officer (J visas) and discuss with them what arrangements they can provide for you to begin your program after the start date on your Form I-20 (F and M visas) or Form DS 2019 (J visas).”

Regarding the diversity visa (DV) program, the agency noted that immigrant visa processing, including diversity visas, “continues and remains a high priority. The Department expects to have used all numbers for DV-2014 when the program year ends on September 30, 2014.”

Some individuals would like to have their passports returned before their U.S. visas are printed. DOS said it is working with posts around the world to develop procedures to manage these requests. Each embassy and consulate will post contact information on its website for applicants with questions about the status of their cases.

DOS noted that those traveling under the Visa Waiver Program, and those whose previously issued visas remain valid, are not affected. DOS routinely advises visa applicants to make appointments well in advance of planned travel, and not to book travel until they have their printed visas in hand.

DOS said it plans to upgrade the CCD again to a newer version of the Oracle commercial database software by the end of 2014.

ANNOUNCEMENT

RELATED FAQ

2. CBP Announces New Mobile Passport Control App

U.S. Customs and Border Protection (CBP) announced the launch of the first authorized “app” (mobile application) to expedite a traveler’s entry process into the United States. Mobile Passport Control (MPC) will allow eligible travelers to submit their passport information and customs declaration forms via a smartphone or tablet computer before CBP inspection.

Airside Mobile and Airports Council International-North America (ACI-NA) developed the app in partnership with CBP as part of a pilot program at the Hartsfield-Jackson Atlanta International Airport. MPC is expected to expand to more airports later this year and to Android smartphone users in the future. Currently, iPhone and iPad users can download the app for free from Apple’s App Store.

CBP Commissioner R. Gil Kerlikowske said, “By offering this app to passengers, we hope to build upon the success we have already experienced with Automated Passport Control, which has resulted in decreases in wait times as much as 25-40 percent, even with continued growth in international arrivals.” The app does not require pre-approval and does not collect any new information on travelers.

ACI-NA contracted with Airside Mobile for MPC’s technical development. ACI-NA President and CEO Kevin M. Burke said, “We look forward to continuing our collaboration with CBP as Mobile Passport begins its roll-out at U.S. airports later this year.”

There are five steps to MPC:

Download the Mobile Passport Control App from the Apple App Store before arriving;
Create a profile with the passport information;
Complete the “New Trip” section upon arrival in the United States;
Submit the customs declaration form through the app to receive an electronic receipt with an Encrypted Quick Response (QR) code (the receipt will expire four hours after being issued); and
Bring the passport and smartphone or tablet with the digital bar-coded receipt to a CBP officer.

ANNOUNCEMENT

INFORMATION ABOUT MOBILE PASSPORT, including how to download, user eligibility, and other frequently asked questions, ADDITIONAL INFORMATION

3. Visa Bulletin for September Advances India EB-2 Cut-Off Date, Announces Numerical Limits for FY 2014

The Department of State’s Visa Bulletin for September 2014 noted that the use of potentially “otherwise unused” employment visa numbers prescribed by § 202(a)(5) of the Immigration and Nationality Act (INA) has allowed the India employment-based second preference cut-off date to advance very rapidly in recent months. The Visa Bulletin warned, however, that continued forward movement of this cut-off date during the upcoming months cannot be guaranteed, and said that no assumptions should be made until the dates are formally announced. Once there is a significant increase in India employment second preference demand, it will be necessary for DOS to retrogress the cut-off date, “possibly as early as November,” to hold number use within the fiscal year 2015 annual limit, the agency said.

The Visa Bulletin for September also notes that DOS has determined the numerical limits for fiscal year 2014. The Worldwide employment-based preference limit is 150,241; the family-sponsored preference limit is 226,000; and the per-country limit is 26,337. The dependent area limit is 7,525.

SEPTEMBER VISA BULLETIN

4. OSC Advises on How to Proceed After Over-Documenting Employees

The Department of Justice’s Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) recently responded to a request for guidance on how to proceed after discovering that a company had accepted more documentation than necessary for Form I-9 employment verification purposes in a few cases.

OSC noted that it is unaware of any publicly available guidance issued by any agency regarding steps an employer should take if it accepts too many documents during the I-9 process. However, OSC pointed out that an employer may violate the Immigration and Nationality Act if it requests more or different documents than required, or rejects “reasonably genuine-looking documents” on the basis of citizenship or immigration status or on the basis of national origin during the I-9 process. OSC also noted that although an employer should correct its practices upon learning that it may have violated the antidiscrimination provision of the INA, an employee who believes that he or she was the victim of discriminatory I-9 practices has up to 180 days from the date of the practice to file a charge with the OSC. OSC advised the inquiring employer to see http://www.justice.gov/crt/about/osc or call its toll-free employer hotline at 1-800-255-8155 to learn about resources available to assist human resources staff in complying with the provision in the future, including “free webinar training by our office or distribution of educational materials to your staff.” The OSC noted that it cannot provide an advisory opinion on any specific case or set of facts.

OSC RESPONSE

5. DOS Extends Special Immigrant Visas for Afghans

The Department of State announced that its authority to issue special immigrant visas (SIVs) to certain Afghan nationals under the Afghan Allies Protection Act of 2009, as amended, has been extended. In addition to the 3,000 visas for Afghan principal applicants originally allocated for use in fiscal year 2014, another 1,000 SIVs may be issued until December 31, 2014. The program will end on that date unless Congress further extends it.

ANNOUNCEMENT

6. USCIS Says Applicants Can Receive Certain Docs by Delivery Service of Their Choice

U.S. Citizenship and Immigration Services (USCIS) announced that applicants can prepay to use the overnight delivery or courier service of their choice to receive certain documents, such as approval and denial notices, requests for evidence, and most travel documents.

To ensure that overnight delivery requests are not delayed, USCIS advised:

Including a prepaid air bill when submitting an application, petition, or response to a request for evidence. “The best way to avoid delivery errors is to provide a prepaid shipping label obtained directly from the delivery service. This will avoid the need to write in an account number,” USCIS said. The sender’s name should be entered in both the “to” and “from” fields on the air bill.
Never listing USCIS as the sender and not marking “bill to sender.”
Paying all delivery costs in advance and including the prepaid air bill with the submission.

If the delivery costs are not paid in full, USCIS will send the documents by regular U.S. mail.

MORE INFORMATION

7. Pro Bono News: Miller Mayer

Attorneys at Miller Mayer, an Alliance of Business Immigration Lawyers member firm, recently won a complicated pro bono appeal at the Board of Immigration Appeals (BIA). The case involved proving that the applicant had actually been admitted to the United States in 2001. The Border Patrol inspected the applicant’s boyfriend, who was driving their car, but did not ask the applicant any questions. The applicant later married her boyfriend and applied for a green card. Because she was out of status, she could adjust only if she could prove that she had been properly admitted when she entered the United States.

The immigration judge held that the applicant had not proved she had been inspected and admitted and ordered her removed from the United States. On appeal, Miller Mayer showed that the immigration judge had erred both factually and based on relevant case law. The BIA remanded the case to the immigration judge so that the applicant can now apply to adjust her status to permanent residence.

8. New Publications and Items of Interest

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

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

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

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

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

This comprehensive guide is designed to be used by:

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

This publication provides:

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

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

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

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

9. Member News

Several ABIL members will speak at a conference on EB-5 immigrant investor issues to be held August 22-23, 2014, at the Radisson Blu Aqua Hotel in Chicago, Illinois. The American Immigration Lawyers Association is sponsoring the conference. H. Ronald Klasko will moderate a panel on securities law compliance and how to deter EB-5 fraud. Robert F. Loughran will speak on a panel on getting started in the EB-5 immigrant investor process at the AILA EB-5 Conference in Chicago. Topics include comparing EB-5 with other visa alternatives, initial EB-5 eligibility, the client-by-client evaluation of the appropriateness of regional center programs, and special considerations surrounding removal of conditions. Cyrus Mehta will speak on ethical issues in EB-5 practice. Bernard Wolfsdorf will moderate “China Issues,” a panel that will address a wide variety of topics important to representing Chinese EB-5 investors, ranging from China’s tax, securities, and currency laws to membership in the Communist Party. Stephen Yale-Loehr will moderate a panel called EB-5 101: How to Get Started. MORE INFORMATION

Charles Kuck published an excerpt on his blog from his op-ed in the Atlanta Journal-Constitution of August 1, 2014. “Obama Can Fix Some Immigration Problems”

Mr. Loughran will be traveling from July 31 to August 7, 2014, with the Office of the Governor of the State of Texas and the Texas Secretary of State. Mr. Loughran presented to potential foreign investors and corporate executives in Rio de Janeiro and São Paulo, Brazil, and Santiago, Chile, as a part of the Texas One delegation, which highlights Texas as a destination for economic development. Mr. Loughran’s presentation focused on what to expect when facing immigration challenges while investing in the United States.

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

Mr. Klasko, one of the country’s top EB-5 immigration lawyers and founding partner of Klasko, Rulon, Stock & Seltzer, LLP, recently presented “Preparing for the I-829 Bubble” during a webinar sponsored by NES, the largest EB-5 escrow administrator. Mr. Klasko addressed new and existing EB-5 Regional Centers, and explained the items that must be considered for an -829 submission. The I-829 petition is the last step of the EB-5 visa process for immigrant investors to become lawful permanent residents of the United States.

10. Government Agency Links

Follow these links to access current processing times of the USCIS Service Centers and the Department of Labor, or the Department of State’s latest Visa Bulletin with the most recent cut-off dates for visa numbers:

USCIS Service Center processing times online

Department of Labor processing times and information on backlogs

Department of State Visa Bulletin

Visa application wait times for any post

News from the Alliance of Business Immigration Lawyers Vol. 10, No. 8A • August 01, 2014

August 01, 2014/in Immigration Insider /by ABIL

Headlines:

1. Consular Visa/Passport System Crashes – The Department of State’s Consular Consolidated Database, used to print and approve visas and passports, has been having significant problems, including outages. Backlogs have ensued.

2. August Visa Bulletin Shows Advances in China and ‘Other Workers’ EB-3 Preference Categories, India EB-2 Preference – Cut-off dates for the China-mainland born employment third preference, and third preference “Other Workers,” have advanced for the month of August and could do so again for September. The India employment second preference cut-off date also has advanced very rapidly.

3. USCIS Issues Policy Memo on Adjudication of H-1B Petitions for Nursing Occupations – The memo, which supersedes prior guidance, assists USCIS officers in determining whether a nursing position meets the definition of a specialty occupation.

4. CBP Seeks Comments on International Travel Improvements, Closes Border Crossing – CBP seeks comments on proposed improvements in the entry process and airport-specific plans for international travelers to the United States. Also, as of August 21, 2014, CBP is closing the Jamieson Line, New York, border crossing in Burke.

5. ABIL Global: Peru – This article provides an update on visas in Peru for short-term assignments.

6. New Publications and Items of Interest – New Publications and Items of Interest

7. Member News – Member News

8. Government Agency Links – Government Agency Links

Details:

1. Consular Visa/Passport System Crashes

According to reports, the Department of State’s Consular Consolidated Database (CCD), used to print and approve visas and passports, has been having significant problems, including outages, since July 19, 2014. The CCD is back up and running in a limited capacity, the Department said, but the Bureau of Consular Affairs is still working through the resulting backlogs. The problems are worldwide and not confined to any particular category.

Marie Harf, deputy spokesperson, said, “We apologize to applicants and recognize this may cause hardship to applicants waiting on visas and passports.” The database is one of the largest in the world with 100 million visa case records.

At a press briefing on July 24, Ms. Hart noted, “We do not believe there was any malicious action or anything untoward here. This was a technical issue, and again, we are working to correct it and should be fully operational again soon. We’re operating at a little bit of limited capacity right now, though, so we’re trying not to overload the system.”

PRESS BRIEFING TRANSCRIPT, which includes related information among other topics

2. August Visa Bulletin Shows Advances in China and ‘Other Workers’ EB-3 Preference Categories, India EB-2 Preference

The Department of State’s Visa Bulletin for August 2014 notes that cut-off dates for the China-mainland born employment third preference, and third preference “Other Workers,” categories have advanced for the month of August and could do so again for September.

The bulletin notes two reasons for this advance: (1) a decline during the past two months in heavy demand by applicants with priority dates significantly (years) earlier than the previous cut-off date, and (2) declining number use in the family preferences during May and June, combined with updated estimates of such number use through the end of the fiscal year. These developments have resulted in the availability of several hundred numbers for use in the China-mainland born employment third preference category.

During the past two months, the India employment second preference cut-off date also has advanced very rapidly based on the projected availability of “otherwise unused” numbers under the worldwide preference limit. The bulletin notes that it must not be assumed that this cut-off date will continue to advance at the same pace during the coming months. “A cut-off date does not mean that everyone with a priority date before such cut-off date has already been processed to conclusion. It remains to be seen how heavy the demand for visa numbers by applicants will be in the coming months, and what the priority dates of such applicants may be,” the bulletin states. Heavy demand by applicants with priority dates significantly earlier than the established cut-off date is expected to materialize within the next several months, the bulletin notes, at which time the cut-off date is likely to retrogress significantly.

VISA BULLETIN FOR AUGUST 2014

3. USCIS Issues Policy Memo on Adjudication of H-1B Petitions for Nursing Occupations

On July 11, 2014, U.S. Citizenship and Immigration Services (USCIS) issued a policy memorandum providing guidance on the adjudication of H-1B petitions for nursing positions. The memo assists USCIS officers in determining whether a nursing position meets the definition of a specialty occupation. The memo states that it supersedes any prior guidance on the subject and is binding on all USCIS employees unless specifically exempted. USCIS noted that about 12 years have passed since USCIS issued guidance on determining whether a nursing position is a specialty occupation. USCIS decided it was time to update this guidance.

As background, the memo notes that the H-1B visa classification allows a U.S. employer to petition for a temporary worker in a specialty occupation. Most registered nurse (RN) positions do not qualify as specialty occupations because they do not normally require a U.S. bachelor’s or higher degree in nursing (or its equivalent) as the minimum for entry into those positions. In some situations, however, a petitioner may be able to show that a nursing position qualifies as a specialty occupation, the memo states. For example, certain advanced practice registered nurse (APRN) positions normally require a U.S. bachelor’s or higher degree in a specialty as the minimum for entry.

The updated guidance notes that the private sector “is increasingly showing a preference for more highly educated nurses.” Among other influences, the American Nurses Credentialing Center’s (ANCC) Magnet Recognition Program recognizes health-care organizations that advance nursing excellence and leadership. Achieving Magnet status indicates that an institution’s nursing workforce has attained a number of high standards, with an emphasis on bachelor’s degrees.

The memo lists some of the nursing positions that may qualify as specialty occupations. The memo notes that having a bachelor’s degree is not, by itself, sufficient to qualify for H-1B classification. A critical factor, the memo states, is whether a bachelor’s or higher degree is normally required for the position. A beneficiary’s credentials to perform a particular job are relevant only when the job is found to qualify as a specialty occupation. USCIS noted that it must “follow long-standing legal standards and determine whether the proffered position qualifies as a specialty occupation, and whether a beneficiary is qualified for the position at the time the nonimmigrant visa petition is filed.”

Among other things, the memo notes that if a state requires at least a bachelor’s degree in nursing to obtain a nursing license, a registered nurse position in that state would generally be considered a specialty occupation. No state currently requires a bachelor’s degree in nursing for licensure, the memo notes.

The memo outlines the evidence needed to establish that a position qualifies as a specialty occupation under the “preponderance of the evidence” standard. Among other things, documentation submitted by petitioners often includes the nature of the petitioner’s business; industry practices; a detailed description of the duties to be performed; advanced certification requirements; ANCC “Magnet Recognized” status; clinical experience requirements; training in the specialty requirements; and wage rate relative to others within the occupation.

USCIS recognizes the Department of Labor’s Occupational Outlook Handbook (OOH) as an authoritative source on duties and educational requirements. However, the memo notes that it is not always determinative and other authoritative and/or persuasive sources provided by the petitioner will also be considered.

NEW GUIDANCE MEMO

INFORMATION ON REGISTERED NURSES

The guidance indicates that advanced practice nursing positions include nurse anesthetists, nurse midwives, and nurse practitioners. FURTHER INFORMATION ON THESE SPECIALITIES

4. CBP Seeks Comments on International Travel Improvements, Closes Border Crossing

The following are recent developments from the U.S. Customs and Border Patrol (CBP):

International travel improvements. CBP seeks comments by August 15, 2014, on proposed improvements in the entry process and airport-specific plans for international travelers to the United States. On May 22, 2014, President Obama directed the Secretaries of Commerce and Homeland Security to lead an interagency team over the next 120 days, in close partnership with industry, to develop a national goal and airport-specific plans to enhance the entry process for international travelers to the United States. The measures the administration is taking to expedite the arrivals process are intended to enhance security by focusing officer time on the highest-risk passengers and facilitating the process for the vast majority of legitimate travelers. The notice seeks comments on a list of questions. The questions ask for suggestions for improvement in the international arrival experience, technology, passport and baggage inspections, and related issues.

Jamieson Line, New York, border crossing closes. As of August 21, 2014, CBP is closing the Jamieson Line, New York, border crossing in Burke. CBP said the primary reason was the Canada Border Services Agency’s closing of the adjacent port of entry in Québec, Canada. Other factors included very limited usage (less than six privately owned vehicles per day); alternative ports located at Trout River, New York, and Chateaugay, New York; lack of sufficient infrastructure at the border; and the cost of renovations if the port were to remain open.

FEDERAL REGISTER NOTICE announcing the proposed improvements in international travel

FEDERAL REGISTER NOTICE announcing the closure

5. ABIL Global: Peru

This article provides an update on visas in Peru for short-term assignments.

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

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

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

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

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

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

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

6. New Publications and Items of Interest

Employee-focused USCIS stakeholder engagement. U.S. Citizenship and Immigration Services will hold an employee-focused stakeholder engagement on Thursday, August 7, 2014, from 1:30 to 3 p.m. (Eastern). USCIS officials will provide an overview of USCIS programs and resources useful to workers, immigrants, and advocates. Topics will include employee rights and responsibilities in the E-Verify and Form I-9 verification processes; Deferred Action for Childhood Arrivals; unauthorized practice of immigration law; and USCIS multilingual materials and outreach. USCIS representatives will also answer questions.

FOR MORE INFORMATION OR TO REGISTER

CRS report on the undocumented in the United States. The Congressional Research Service has released a report, “Unauthorized Aliens in the United States: Policy Discussion.”

THE REPORT, which includes statistics and a discussion of various legal options

Spanish-language E-Verify website redesigned. The Spanish-language version of the E-Verify website has been redesigned to match the upgraded E-Verify English website released in October 2013. The E-Verify Spanish website updates include new features, graphics, and more “plain language” content. New Customer Support and Federal Contractors sections have been added. E-Verify recommends that interested parties subscribe to the website to receive an alert when new information is posted to the “What’s New” page. E-Verify also offers monthly webinars in Spanish.

E-VERIFY SPANISH WEBSITE

FOREIGN LANGUAGE RESOURCES PAGE lists links to materials available in Spanish

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.

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

7. Member News

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

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

Stephen Yale-Loehr was quoted on time.com. In an article on executive actions by President Obama, Mr. Yale-Loehr noted, “As a purely legal matter, the President does have wide discretion when it comes to immigration. Just as DACA [Deferred Action for Childhood Arrivals] was within the purview of the president’s executive authority on immigration, so too would expanding DACA fall within the president’s inherent immigration authority.”

8. Government Agency Links

USCIS Service Center processing times online

Department of Labor processing times and information on backlogs

Department of State Visa Bulletin

Visa application wait times for any post

Headlines:

Details:

1. DOS Makes ‘Significant Progress’ in Bringing Visa Processing Back Online and Clearing Backlogs

2. CBP Announces New Mobile Passport Control App

3. Visa Bulletin for September Advances India EB-2 Cut-Off Date, Announces Numerical Limits for FY 2014

4. OSC Advises on How to Proceed After Over-Documenting Employees

5. DOS Extends Special Immigrant Visas for Afghans

7. Pro Bono News: Miller Mayer

8. New Publications and Items of Interest

9. Member News

10. Government Agency Links

Headlines:

Details:

1. Consular Visa/Passport System Crashes

2. August Visa Bulletin Shows Advances in China and ‘Other Workers’ EB-3 Preference Categories, India EB-2 Preference

3. USCIS Issues Policy Memo on Adjudication of H-1B Petitions for Nursing Occupations

4. CBP Seeks Comments on International Travel Improvements, Closes Border Crossing

5. ABIL Global: Peru

6. New Publications and Items of Interest

7. Member News

8. Government Agency Links

News

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