Vander Elst Implementation in the European Union

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This article provides an overview of Vander Elst implementation in several countries. The Vander Elst process derives from a 1994 ruling by the European Court of Justice regarding the right of a European Union (EU) company to provide services within the EU. It generally allows a non-European Economic Area (EEA) national who is legally employed by a company in an EU country to provide services on a temporary basis to a company in another EU country on behalf of his or her employer without the need to obtain a work permit. A further judgment was delivered in 2006 (Case C-244/04) regarding whether or not the non-EEA employee should have an employment history for a specific duration of time with his or her employer. The 12 months being imposed by some countries was considered disproportionate. However, as the court did not suggest what period of employment might be acceptable, a minimum period is not required before posting an employee to the State for the purpose of providing a service for a limited period.

Belgium

If certain conditions are met, no work permit is required for non-EEA employees employed by a company established in an EEA Member State that provides services in Belgium. Under Belgian law, the Vander Elst work permit exemption can be invoked for non-EEA employees who are entitled to reside in the EEA member state of their residence for more than three months. The employees must also be lawfully employed in the EEA member state of their residence. This implies that they have a work permit, valid for the duration of the work to be performed in Belgium, as well as a regular employment contract. The foreign employees must hold passports and residence permits, valid up to the duration of the work in Belgium, to guarantee their return to their countries of origin or residence. There is no seniority requirement for the employees with the sending companies.

The sending EEA company (for audits) and/or the employee (for visa applications, or for registration for residence purposes) must be able to prove that the Vander Elst exemption applies. In practice, the interpretation of the words “provide services” can be an issue. Most authorities require that the work in Belgium be performed on the basis of a direct contract between the sending EEA company and the Belgian company. The employee may encounter difficulties when registering for long-term residence on the basis of the Vander Elst work permit exemption. It can be a challenge to convince municipal authorities that the exemption applies.

France

France recognizes the treaty rights on delivery of service from a business in a member state to a client located in France. In the framework of such delivery of service, the business may post its third-country employee to France, without being subject to a work permit in France, in accordance with case law in the Vander Elst and subsequent rulings. Such third-country posted worker must be a local employee of the service provider and be authorized to live and work in the member state where the service provider is located. The employee must also be covered under the social security of the member state where he or she is employed. If the posting in France will last more than 90 days, the third-country employee will be subject to a EU service provider permit to stay. The permit to stay is valid for 12 months, and usually is renewed once only.

If the third-country employee is a visa national and will enter France from outside of the Schengen Area, he or she will be subject to a Schengen visa.

Italy

To qualify under the Vander Elst ruling, the employee must be hired by a company established in another European Union state. No specific seniority with the sending company is required. The Italian company must send an online notice to the Immigration Office. If the employee already holds a Schengen residence permit, he or she can enter Italy without applying for a visa. If, on the contrary, the employee holds a residence permit issued by a non-Schengen country, he or she must apply for the relevant visa at the Italian consulate in the country of residence. The posting to Italy cannot exceed four years.

The Vander Elst ruling was implemented in Italy in 2007 with Law 46/2007. Until now, however, it has not been fully implemented. For workers coming from a Schengen country (who do not need a visa), the police—usually alleging that the individual does not have the “necessary” work visa—refuse to issue a permit of stay. For workers coming from a non-Schengen country (the United Kingdom, for example), the online system does not allow these kinds of applications. Therefore, Immigration Offices cannot send the required online notices to the consulates and the visas cannot be issued.

Netherlands

To qualify under Vander Elst in the Netherlands, the employee must be a regular employee of the company in the sending state in the European Union (EU), European Economic Area (EEA), or Switzerland and must have a valid permit to work and stay in that country. The work assignment in the Netherlands must be temporary (with a maximum duration of two years) and the authorities must be notified in advance.

Nature of the service provided: In its decision of September 11, 2014 (Essent case, C-91/13), EU Court of Justice (EUCJ) has made it clear that all types of services are allowed. Specifically, a service consisting of the posting of employees within the meaning of Directive 96/71/EC, article 1(3)(c), falls under the Vander Elst doctrine. The exclusion of workers of temp agencies under the Vicoplus case law (Case C-307/09) only applies to workers in newly acceded Member States during the transition period; i.e., currently to Croatian workers sent from Croatia to other Member States.

Procedure: The company must notify, in writing, a specific department of the Ministry of Social Affairs at least two days before the employee starts working. If the worker will stay in the Netherlands longer than the limit of his or her Schengen visa or visa-free stay, the employer must apply for a residence permit with the immigration authorities.

Partners and children under 18 can apply for a dependent residence permit based on family reunification.

Requirements and documents: For the notification, the employer should provide:

  • a copy of the valid permit of the employee to stay and work in the member state where the company is based, and
  • a copy of the service contract

For the (optional) residence permit, the employer should provide the following additional documents:

  • a labor contract between employer and employee, and
  • a copy of pay slips

Complications: One problematic aspect is that the only feedback the employer receives on the notification is a confirmation once the notification is complete. This does not confirm in any way that the work to be carried out meets all requirements. If in the course of a random Labor Inspectorate audit the Inspectorate concludes that not all requirements of the cross-border provision of services are met, both the client and the service provider will be fined a fixed amount of €12,000 per deployed employee.

Entrepreneurs & Investors: A Country-by-Country Overview

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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:

  1. Possession of immovable property in Turkey
  2. 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:

  1. investment in a new commercial enterprise;
  2. investment of at least $1 million (or $500,000 in certain cases) into the business; and
  3. 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.

ABIL Members Published Country-by-Country Comparison of Immigration Benefits for Same-Sex and Domestic Partners

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ABIL Members published an overview of immigration benefits for same-sex and/or domestic partners in various countries. This article provides an overview of immigration benefits available for same-sex spouses and/or domestic partners in fifteen countries. The article is limited to immigration-related issues and does not cover the situation of lesbian, gay, bisexual, or transgender individuals in each country more generally.

Belgium

Belgium legalized same-sex marriage in 2003. Belgium family reunification rules apply equally to all couples without regard to the gender of the two individuals.

Spouses of third-country business migrants in Belgium may accompany and live with their spouses, provided that both spouses are older than twenty-one years, or, if they were already married before the arrival of the business migrant, older than eighteen years. Unmarried partners of third-country business migrants with a “registered” partnership considered equivalent to a Belgian marriage will be treated the same (only “registered” partnerships performed in Denmark, Finland, Germany, Iceland, Norway, Sweden, and the United Kingdom qualify).

Belgium’s family reunification rules also provide for unmarried “non-registered” partners and common-law spouses, and apply without regard to the gender of the two individuals. Specifically, unmarried, “non-registered” partners and common-law spouses of third-country business migrants from outside the European Union/European Economic Area may accompany and live with their significant others in Belgium, provided that:

  • they are not involved in a marriage or partnership with any other person;
  • they sign a registered partnership together in Belgium;
  • they are able to demonstrate that they have a long-lasting and stable relationship with one another, established by furnishing evidence of prior legal cohabitation (at least one uninterrupted year, in Belgium or abroad); or the existence of either a bona fide relationship (the partners prove that they have known one another for at least two years, have had frequent contact (by phone, mail, or e-mail), have met at least three times over the last two years, and these meetings covered at least forty-five days in total), or that they have a common child; and
  • they are older than twenty-one years or, if they have already cohabited at least one year before the arrival of the business migrant in Belgium, older than eighteen years.

Brazil

On February 18, 2014, effective as of March 20, 2014, the National Council of Immigration published Normative Resolution No. 108, changing the rules for granting visas for dependents (the so-called “family reunion visa”), and cancelling NRs 36 and 77, which until now regulated the subject.

The main changes introduced were with respect to visas for common-law partners (irrespective of gender), which may now be applied for directly at the Brazilian consulate abroad or at the Federal Police in Brazil, without the need to go through the National Council of Immigration. This rule now applies to all types of family reunion visas and irrespective of whether they are on a temporary or permanent basis.

Another main change is that when there is no official document issued by the government/court attesting to the existence of the common-law partnership, this may now be proven through one of the following documents, rather than two as were required before: (i) evidence of dependence issued by a tax authority or by a department corresponding to the Brazilian Federal Revenue Service; (ii) a certificate of religious marriage; (iii) testamental provisions registered at a Brazilian Notary or at the competent foreign authority, proving the existence of the partnership; (iv) a life insurance policy or health plan, in which one of the parties appears as establisher of the insurance/plan and the other party as beneficiary; (v) a deed of purchase and sale of real estate, duly registered in the Property Registration Office, in which both parties appear as owners, or a rental agreement in which both parties appear as lessees; or (vi) a joint bank account.

Also, a foreign birth certificate of a common child of the partners is now accepted as proof of a common-law partnership. If there is a common Brazilian child, then the visa to be applied for is a permanent visa based on a Brazilian child rather than a visa based on the common-law partners. The acceptance of the health plan as proof of the common-law partnership is another change introduced by NR-108.

There is no citizenship requirement to get married in Brazil.

Canada

Immigration Benefits for Same-Sex Partners

Since the entry into force of Canada’s Immigration and Refugee Protection Act (IRPA) in 2002, replacing the Immigration Act, 1976, same-sex rights have become enshrined in Canadian immigration law.

Same-sex marriages are recognized for Canadian immigration purposes in any jurisdiction where they are currently legal. Canadian marriage laws have been gender-neutral since 2005. In addition, Canadian citizens and permanent residents may sponsor their spouses, common-law partners, and conjugal partners, as applicable, for the family-class permanent immigration category without regard to the gender of that spouse, common-law partner, or conjugal partner. Applicants in the economic-class immigration category can include their same-sex spouses or common-law partners as dependents in their applications regardless of gender. Also, spouses and common-law partners of a Canadian work permit or study permit holders may apply for an open work permit irrespective of whether they are in a same-sex or different-sex relationship, subject to certain conditions.

Immigration Benefits for Domestic Partners

In Canadian immigration law, domestic partners are known as “common-law partners.” A “common-law partner” is defined in subsection 1(1) of the Immigration and Refugee Protection Regulations as an individual cohabiting with a person in a conjugal relationship for at least one year. For Canadian immigration purposes, common-law relationships are considered to be marriage-like relationships characterized by mutual commitment, exclusivity, and interdependence.

Common-law relationships must be factually demonstrated to Citizenship and Immigration Canada (CIC) based on documents proving cohabitation for a continuous period of at least one year and documents proving interdependence, such as documentation regarding joint ownership of property, joint travel, or photographs of the couple. Conjugal partners are recognized as common-law partners in Canadian immigration law where, due to very exceptional circumstances such as persecution, they have been precluded from cohabiting together for a period of at least one year.

As with married spouses, common-law partners may sponsor their common-law partners and include their common-law partners as dependents on other permanent immigration applications. Similarly, common-law partners are eligible for open spousal work permits subject to certain conditions, provided that they submit sufficient evidence to substantiate their common-law relationship. Common-law partners enjoy equal rights as married spouses pursuant to Canadian immigration law but are subject to a higher evidentiary burden in terms of proving their relationship to CIC.

China

China does not recognize marriages, partnerships, or relationships between two individuals of the same sex for immigration purposes. There is currently no way around these restrictions.

France

General provisions relating to marriage from the law of May 17, 2013, conflict of laws, and consular marriage. France’s Civil Code now recognizes both same-sex and different-sex marriages. Article 202-1 of the Civil Code provides that the personal law of each spouse governs the conditions for marriage, but then Article 202-2 provides that two persons of the same sex can marry when the personal law or the law of the state of residence of one spouse permits. This arrangement allows avoidance of the application of the personal law of one spouse prohibiting marriage between persons of the same sex when the marriage took place in the territory of a state recognizing marriage between persons of the same sex.

The above implies, for the Constitutional Council, that two foreigners of the same sex can marry when one of them resides or is domiciled in France. However, this rule does not apply to nationals of countries with which France is bound by bilateral agreements (Poland, Algeria, Tunisia, Morocco, republics of the former Yugoslavia, Cambodia, and Laos), which provide that the law governing conditions for marriage is the personal law. The marriage, however, may take place in a non-prohibitive state having no bilateral agreement with the country of the spouses.

Foreign nationals frequently may find themselves in situations where their countries of origin do not recognize their marriages in France unless those countries have adopted legislation similar to the new French legislation.

A consular marriage between same-sex French nationals does not raise issues. However, a consular marriage between a French national and a foreign national may be more complex in consular posts in prohibiting countries (which are in the majority). In such case, the Civil Code provides that the marriage may take place in France.

The law of May 17, 2013, also provides that marriages between same-sex couples may be recognized retroactively if they were validly celebrated abroad at a time when French law forbade such marriages.

The impact on French immigration rights of foreign nationals moving to France. Marriage now carries the same effects, rights and obligations whether between persons of different sex or the same sex.

  • Derivative residency and work rights known as “accompanying family rights” are applicable to married foreign workers under Inter-Company Transfer, EU Blue Card, or Skills and Talents status, regardless of the gender identity of the spouses when the marriage is celebrated in France or recognized by France (marriage between two foreigners) on the basis of the new provisions of the Civil Code and Article L313-11-3 CESEDA.
  • The same sex marriage between foreign national and a French national will allow the issuance of a visa and residence permit to the foreign national as the spouse of French national, on the basis of the Civil Code and Article L313-11-4 CESEDA.
  • The marriage between of a third country foreign national in European Union with a European citizen is expected to allow the issuance of a residence permit as a European spouse under Articles L121-3 to L121 -5 CESEDA.

Recognition of marriage for same-sex couples could also give rise to new legal actions when a decision refusing stay maybe considered as disproportionate interference with rights to private and family life, under Article 8 of the European Convention on Human Rights.

Domestic partners however will not enjoy the same immigration rights as same-sex married couples. Even domestic partners who contract the French form of domestic partnership agreement (PACS) will not qualify for “accompanying family rights”.

Hong Kong S.A.R.

In a landmark decision on July 4, 2018, the Court of Final Appeal, Hong Kong’s highest court, ruled that the Hong Kong Immigration Department must issue a dependent visa to a same sex partner for immigration purposes. Accordingly, while the definition of a “marriage” as between a man and a woman under Hong Kong Law remains unchanged, the marriage status and a civil union partnership of same-sex couples entered into in a jurisdiction which recognizes such relationships are now recognized in Hong Kong for the purpose of applying for a dependent visa if the other partner holds permanent resident status or an employment visa.

The ruling was welcomed by a host of global financial institutions, law firms, executive search firms and other businesses as this ruling strengthens Hong Kong’s ability to attract global talent and its competitiveness as recruiting and relocating talent to Hong Kong had sometimes been hampered because of the immigration restrictions of same sex couples.

India

Indian law does not recognize same-sex marriages and considers gay sex a criminal offense. No provisions in Indian law provide for immigration benefits to same-sex spouses or partners. Section 377 of the Indian Penal Code (IPC), an archaic law, was introduced in 1861 during British rule in India. It criminalized “carnal intercourse against the order of nature with any man, woman or animal” with a maximum sentence of life imprisonment.

The struggle to strike down section 377 of the IPC as unconstitutional has been a long one, spearheaded by activists from non-governmental organizations (NGOs) fighting for the rights of the lesbian, gay, bisexual, and transgender (LGBT) community. On July 2, 2009, a historic judgment decriminalizing homosexuality was passed by the Delhi High Court in favor of Naz Foundation, an NGO working in the fields of HIV/AIDS intervention and prevention and for the rights of the LGBT community. An appeal was filed challenging this decision in the Supreme Court of India. On December 11, 2013, the Supreme Court reversed the decision of the Delhi High Court, thereby criminalizing homosexual intercourse between consenting adults. The Supreme Court shifted the onus onto Parliament to decide whether to repeal the provision, arguing that the courts could not make such decisions under the existing laws. The Supreme Court further observed that there was “no constitutional infirmity” in the section 377 law. This judgment has sparked widespread condemnation throughout India and internationally, and has been criticized as regressive.

However, there have been isolated incidents and trends worth reporting. In November 2013, a senior Indian Foreign Service officer was demoted from her post in the Ministry of External Affairs (MEA) passport and visa division for refusing a visa for the same-sex spouse of a U.S. diplomat. She refused the visa on the ground that same-sex marriages are not legal in India and the diplomat’s spouse could not therefore be granted a diplomatic visa and recognized as a “spouse” in India. A senior official in the MEA’s American division suggested that although there is no rule in India allowing visas for gay couples, the diplomat’s partner could be given a visa as a family member as it had been done in the past. On the other hand, in light of India’s opposition to the arrest of its Deputy Consul General in New York, one politician from the Bhartiya Janata Party has suggested that the same-sex spouses or partners of U.S. diplomats be prosecuted under section 377 as a retaliatory measure.

Until recently, Indian law did not recognize relationships between domestic, live-in (opposite-sex) partners. On June 17, 2013, the Madras High Court held that for a valid marriage, all customary rights need not be followed and subsequently solemnized. As long as the couple is not disqualified by law from marrying each other, and a third party’s rights are not affected, the couple can be declared to be spouses by the court. This declaration would be on the basis of whether they have had a sexual relationship. The court held that if a woman age 18 and above, and a man age 21 and above, have a sexual relationship, they will be treated as husband and wife, especially if the woman becomes pregnant. Even if the woman does not become pregnant, if there is “strong documentary evidence to show existence of such relationship,” they will still be termed “husband” and “wife.” However, this ruling only applies to the state of Tamil Nadu and cannot be enforced elsewhere in India.

In a recent judgment of November 26, 2013, the Supreme Court of India dealt with the issue of live-in relationships, but that was within the purview of the Domestic Violence Act 2005 (DV Act, 2005). The Supreme Court held that a “live-in relationship” would not amount to a “relationship in the nature of marriage” falling within the definition of “domestic relationship” under Section 2(f) of the DV Act, 2005 if the woman in such a relationship knew that her male partner was already married. All live-in relationships are not relationships in the nature of marriage, but they can still come within the ambit of the DV Act, 2005. The judgment was delivered by a Division Bench of Justices KS Radhakrishnan and Pinaki Chandra Ghose in an appeal filed by Indra Sarma (Appellant) against the decision of the Karnataka High Court. This ruling only applies to domestic partners of the opposite sex, not to same-sex partners, in view of the recent decision of the Supreme Court in the Suresh Kumar Koushal case.

As these issues are very recent and path-breaking in Indian law, there has been no recognition thus far of same-sex partnerships or domestic relationships with respect to Indian immigration. The Indian government filed a review petition in the Supreme Court on December 20, 2013, challenging the earlier judgment upholding section 377, stating, “Section 377 IPC, insofar as it criminalizes consensual sexual acts in private, falls [afoul] of the principles of equality and liberty enshrined in our Constitution.” Following the government’s review petition, Naz Foundation also filed a review petition in the Supreme Court challenging its decision. On January 28, 2014, however, the Supreme Court dismissed the petitions seeking review.

Italy

A same-sex spouse of a European Union (EU) national may apply for a five-year permit to stay in Italy, provided the marriage was entered into in a country where same-sex marriages are validly performed. Italian immigration offices are now increasingly approving these applications. Same-sex marriage is not legal in Italy.

Domestic partnerships are not recognized by Italian law and the immigration system does not provide any option for them.

Japan

Japan does not recognize marriages, partnerships, or relationships between two individuals of the same sex for immigration purposes. The same-sex spouse or partner can try to apply for a dependent visa and the case will be referred to the Ministry of Foreign Affairs in Japan, which can grant the visa, but the chances of a visa being approved on that basis are extremely low.

Mexico

On December 21, 2009, the legislative assembly in Mexico City, D.F., legalized same-sex marriage and accorded adoption rights to same-sex parents. It was the first city in Mexico and in Latin America to legalize same-sex marriages. These reforms in the capital’s civil law have spread to other entities in Mexico.

The Migration Act of November 2012 established regulations for domestic partners to obtain Mexican visas on the basis of their bonds with Mexicans or foreign residents in Mexico.

The requirements for domestic partner visas in Mexico are similar to those for different-sex married couples, but with more stringent requirements. While same-sex married couples are treated as domestic partners for Mexican immigration purposes, same-sex unmarried couples will only qualify if they have proof of their partnership in the country of origin.

Netherlands

In the Netherlands, there is no legal difference between a same-sex marriage and a different-sex marriage.

Unmarried partners, regardless of gender, fulfill the criteria for family reunification if they both prove, by official (and legalized) documents, that they are unmarried. In addition, they must prove that they have a long-lasting and stable relationship. This means that the relationship has to be comparable to a marriage. To prove the existence of such a relationship, the partners must complete and sign two forms, the so-called relationship statement and a questionnaire that asks questions like how they met, how long they have been in the relationship, and whether their family members have been informed about their relationship. The legislation does not define a minimum period of time the relationship must have existed.

For marriages and “registered” partnerships (similar to “registered” partnerships in Belgium, discussed above), the criteria for family reunification are very similar. Married couples or registered partners have to prove their marriage or registered partnership with official (and legalized) documents.

The minimum age to apply is twenty-one years, and the person who applies for reunification with his or her partner or spouse must earn at least the minimum wage.

Peru

Peru does not recognize marriages, partnerships, or relationships between two individuals of the same sex for immigration purposes. Only marriages according to Peruvian civil law and related regulations are recognized for purposes of obtaining resident visas through family-based proceedings.

Russia

Russia does not recognize marriages, partnerships, or relationships between two individuals of the same sex for immigration purposes.

South Africa

South African immigration law gives effect to the requirement of its Constitution that a person may not be discriminated against on the basis of his or her sexual orientation. That protection applies whether the person is a foreign national or a South African citizen.

The term “spouse,” for purposes of South African immigration law, describes a person who is in a spousal relationship, be he or she in a marriage, a civil union, or an informal life partnership. Legislation does require, however, that any previous marriage or civil union must have been lawfully terminated. The relationship must be monogamous.

The foreign spouse of a South African citizen is eligible to apply to the Department of Home Affairs for a temporary residence permit to accompany his or her South African spouse in South Africa. These “relative’s permits” are usually issued for about two years at a time. A relative’s permit may be extended (from within the country), upon application, so long as the relationship still exists. Once the spousal relationship is five years old, the foreign spouse may apply for permanent residence on the basis of the relationship.

If the foreign spouse has obtained an offer of employment, he or she may apply to have the permit amended to allow him or her to take up that employment.

When a foreign national is moving to South Africa for some lawful purpose, he or she may bring a spouse or partner regardless of that spouse or partner’s gender. The “accompanying spouse” must (principally) prove that the spousal relationship exists. Unfortunately, the “dispensation” allowing a foreign spouse to take up employment in South Africa applies only to the spouses of South African citizens.

United States

On June 26, 2013, the U.S. Supreme Court struck down Section 3 of the Defense of Marriage Act (DOMA). DOMA defined “marriage” for federal law purposes as between “one man and one woman” and “spouse” as either a husband or wife “of the opposite sex.” As a result of the Supreme Court’s decision, same-sex spouses of U.S. citizens and permanent residents are now treated the same as different-sex spouses at the federal level, and may apply for green cards based on their marriages. Absent fraud or a particular public policy consideration, and as long as the marriage was valid where and when performed, the marriage is valid for U.S. immigration purposes. Moreover, U.S. immigration officials have been directed to recognize a validly performed same-sex marriage regardless of any anti-marriage equality law or constitutional amendment in a couple’s state of residence (or intended residence) in the United States.

As of press time, same-sex marriages are legally performed in eighteen states and the District of Columbia. The states include California, Connecticut, Delaware, Hawaii, Illinois (starting June 2014), Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New Jersey, New Mexico, New York, Rhode Island, Utah (from December 20, 2013, to January 6, 2014, only) Vermont, and Washington.

Outside of the United States, same-sex marriages are validly performed in sixteen countries: the Netherlands, Belgium, Spain, Canada, South Africa, Norway, Sweden, Portugal, Iceland, Argentina, Denmark, Brazil, France, Uruguay, New Zealand, the United Kingdom (effective later this year in England, Wales, and Scotland only), and in Mexico City, D.F.

Overall, U.S. immigration authorities are treating all married couples equally in both the immigrant and nonimmigrant contexts, albeit not without a few growing pains along the way. For example, while U.S. Customs and Border Protection (CBP) honors visas issued by the U.S. Department of State (DOS) to same-sex spouses of principal nonimmigrant workers (e.g., an H-4 visa as the spouse of an H-1B nonimmigrant worker), CBP officers are refusing to issue derivate nonimmigrant status to Canadian citizens applying for admission to the United States (Canadians generally do not require visas) as the same-sex spouse of a principal nonimmigrant, and have confirmed that they will not do so without “additional guidance.”

Importantly, however, civil unions, domestic partnerships, and other forms of relationship recognition short of marriage are not accorded the same familial status as marriage under U.S. immigration law. DOS will issue a B-1/2 visa to a “cohabitating partner” of a principal nonimmigrant visa holder, but these will only allow the “cohabitating partner” to obtain a six- to twelve-month stay upon entry, whereas the principal nonimmigrant may be on temporary assignment to the United States for several years at a time.

Details with respect to immigrant and nonimmigrant visas are summarized below.

Immigrant visas:

Same-sex spouses are recognized for immigration purposes, provided the marriage was recognized by the state where it was performed. If the party resides in a state that does not recognize the marriage, but it was valid where performed, it will be recognized for immigration purposes. This is a dramatic turnaround from the position taken before June 2013 and results from administrative application of the Supreme Court’s decision in Windsor v. United States, 570 U.S. 12 (2013). Practitioners report that qualifying same-sex cases are being adjudicated for immigration benefits professionally.

Same-sex partners or those in a domestic relationship enjoy no immigrant visa benefits. However, they may be able to visit under a B-2 visa for an extended period. If one partner is a U.S. citizen or permanent resident, this would raise the issue of whether the non-U.S. partner is a bona fide nonimmigrant. This might be overcome where the U.S. partner can show that he or she is only in the U.S. temporarily or travels frequently.

Nonimmigrant visas:

Nonimmigrant options for partners who are not legally married:

Same-sex or different-sex partners who are not legally married, whether or not they are in a legally recognized domestic partnership, may qualify for a B-2 visitor’s visa to accompany a nonimmigrant partner, provided they can demonstrate the normally required intent not to immigrate or overstay in the United States. The primary purpose of coming to the United States must be to accompany the significant other who has already demonstrated nonimmigrant intent in obtaining his or her own visa, whether it be as a visitor, student, temporary worker, or other nonimmigrant classification. In making the assessment, U.S. immigration authorities will consider the current circumstances and prospects in the home country upon return, as well as the strength of his or her relationship with the “principal” alien and the principal’s own ties abroad.

The principal applicant may be exempt from having to document nonimmigrant intent under an H or L visa or from having to document a residence abroad under an A, E, G, I, O, or R visa classification. The accompanying B-2 visitor partner, however, must show nonimmigrant intent and a residence abroad, whether it is his or her own address or that of a relative or friend.

Nonimmigrant options for same-sex spouses:

Same-sex spouses or partners may enjoy the full benefits of a K-1 fiancé(e) visa or as a derivative of other visa classifications such as B-2 visitor or H-4 spouse of temporary worker. They face the issue of immigrant intent much the same as a domestic partner. As with immigrant marriages, the marriage must have been recognized in the jurisdiction where performed. Whether it is recognized in the jurisdiction where the party resides is not determinative.

United Kingdom

In the United Kingdom (UK), a law legalizing same-sex marriage in England, Wales, and Scotland was passed in 2013. Northern Ireland does not permit same-sex marriage. In 2004, same-sex civil partnerships were legalized in all of the UK with the passage of the Civil Partnership Act.

For the purposes of entering or remaining in the UK, unmarried and same-sex partners of persons present and settled in the UK who are subject to immigration control (i.e., nationals not from the European Economic Area or Switzerland) enjoy the same benefits as married heterosexual partners. Although the general requirements and process of applying are the same as with heterosexual partners, there are minor differences concerning the documentary evidence that must be produced to demonstrate the legitimacy of the relationship.

To qualify, applicants must:

  • be age 18 or older;
  • have lived together with their partner in a relationship akin to marriage for at least the previous two years;
  • meet or exceed level A1 of the common European Framework of Reference for English language or be exempt;
  • not be in any other marriage or partnership;
  • not be related by blood to the partner;
  • have sufficient accommodation and maintenance without recourse to public funds;
  • intend to live together permanently; and
  • not fail for refusal under the general grounds for refusal to the UK.

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NETHERLANDS: Business Immigration Laws and Regulations Amended on a Wide Scale

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Laws and regulations relevant to business immigration were amended on a wide scale on January 1, 2014.

Most of the new changes improve options to deploy foreign staff in the Netherlands, such as the introduction of short-stay highly skilled migrant (HSM) permits. Some changes, however, are restrictive, such as the increase of the term for obtaining full labor market access (from 3 to 5 years). An incidental legislative fluke raised considerable concern over work permits for business meetings. That was temporarily mended. More about this below.

Business Meetings

On January 1, 2014, the government, by mistake, drastically limited business travel. Due to a legislative error, the work permit exemption for business visitors was limited to a single business trip per year. Although the period during which the exemption applies was extended from 4 weeks (within a period of 13 weeks) to 13 weeks (within a period of 52 weeks), the word “uninterrupted” was added so that, effectively, only one trip per 52 weeks is allowed, whereas under the existing rule several trips per year were allowed. Given that business is generally not conducted in one trip, this amendment seemed to work out in practice as a limitation rather than an extension of the existing possibilities. Kroes Advocaten, together with several other parties, including the Amsterdam Expatcenter, lobbied for a quick solution. On January 10, the Ministry of Social Affairs confirmed that until further notice, the work permit exemption for business meetings remains as it was before January 1. This means that business meetings are allowed again for a period of up to 4 weeks, whether interrupted or not, within a period of 13 weeks. In the meantime, the Ministry is working on a more permanent solution.

Intra-Company Transferees: Salary Threshold for Trainees Introduced

Multinationals transferring trainees to their entities in the Netherlands must offer their trainees at least the gross annual salary of €38,145 (€3,205.44 per month) to receive a work permit. This regulation took effect January 1, 2014. Under the existing rules, the salary requirement was at “market level” without a specific threshold amount.

Highly Skilled Migrants: Work Permits for Short Stays

As a residence permit scheme, the HSM scheme did not until recently offer solutions for short stays (fewer than 90 days). A temporary pilot for short stays was launched in 2013 and was successful. It was introduced as a permanent option on January 1, 2014. The Labor Office issues a work permit for up to 3 months for work as a highly skilled migrant. In addition, employees from non-visa exempt countries must apply for a Schengen visa. As with the regular HSM scheme, the employer must have recognized sponsor status, and the HSM salary thresholds also apply; i.e., employees under the age of 30 must earn a gross monthly salary of at least €3,205.44, and employees of 30 years and above must earn €4,371.84.

New Work Permit Exemptions

Employees of multinationals transferred temporarily for the purpose of attending in-house company training in the Netherlands are, as of January 1, 2014, exempt from the work permit requirement. The maximum period for this work permit exemption is 12 uninterrupted weeks within a period of 36 weeks.

Revision of the Employment of Foreigners Act

The Employment of Foreigners Act was revised as of January 1, 2014. Work permits will only be issued for a maximum period of 1 year; previously it was 3 years. The Labor Office also no longer must assess whether registered job applicants are available and suitable for the vacancy. The Labor Office can simply refer to any job-seekers registered for the job function in the database to refuse a work permit application, regardless of whether these job-seekers are actually fit for the job or even interested. The Ministry of Social Affairs can also set a quota each year for the maximum number of work permits that can be issued for a specific sector.

Another change is that foreign workers who have held a residence permit for the purpose of working for 5 consecutive years will no longer face any labor market restriction. Under the previous law, the restriction could be lifted after 3 years of stay.

EU Nationals: Registration at Immigration Office No Longer Required

European Union (EU) nationals no longer need to register with the Immigration Service (IND) and obtain a sticker in their passport confirming their legal stay as an EU citizen. A valid passport or identity card is now sufficient proof of legal stay in the Netherlands. The new rule also applies to nationals of the European Economic Area and Switzerland.

Biometrics Introduced: Fingerprints

Residence permit applicants no longer must provide a passport photo and a signed photo form. Instead, they must visit an IND office where a digital passport photo is taken. In addition, fingerprints are taken, which were not required previously. These biometric data will be stored in a database of the IND pursuant to EU regulations. Applicants with a nationality requiring an entry clearance visa (MVV) must have their fingerprints taken by the relevant Dutch representative abroad, and provide a passport photo that will then be scanned on site, presumably with the exception of Dutch posts that have equipment to take digital passport photos.

Romanian and Bulgarian Nationals Enter the Dutch Labor Market

As of January 1, 2014, Bulgarian and Romanian nationals are free to enter the Dutch labor market. Employers no longer need a work permit for them. Bulgaria and Romania joined the EU in 2007, but pursuant to transition provisions the Dutch government was allowed to postpone the free movement of workers from these countries until January 1, 2014. On July 1, 2013, Croatia became the 28th member state of the European Union. Under comparable transition measures, the Dutch government has kept the work permit requirement in place for Croatian nationals.

Highly Skilled Migrants/EU Blue Card: New Salary Thresholds and Government Fees

The salary threshold for highly skilled migrants wishing to obtain an EU Blue Card residence permit in 2014 is €61,470 gross per annum.

The salary thresholds for highly skilled migrants (knowledge migrants) and EU Blue Card applicants have been slightly raised as of January 1, 2014. The HSM salary threshold now applies monthly and, in addition, the salary must be transferred monthly to a bank account in the name of the highly skilled migrant.

The government application fees for HSM and EU Blue Card applicants were raised as of January 1 to €861. The IND fee for renewals of these permits is now €360.

The link to the chart below shows the gross salary amounts that apply as of January 1, 2014.

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NETHERLANDS: Highly Skilled Migrant Scheme

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Additional conditions concerning salary payment will take effect January 1, 2014, for the highly skilled migrant residence permit. The main condition to meet the gross annual salary threshold is changed to a monthly salary threshold. The highly skilled migrant must receive the applicable amount (excluding 8% holiday pay, which can still be paid annually) monthly in his or her bank account. The change is expected to affect highly skilled migrants wanting to take unpaid sabbatical leave, and other types of unpaid leave such as parental leave.

NETHERLANDS: New Work Permit Exemptions

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The government is introducing additional work permit exemptions on January 1, 2014. Currently, foreign staff attending an in-house company training in the Netherlands are not exempted from the work permit requirement. This will change for multinational organizations transferring employees to their Dutch establishments for certain training purposes. The maximum period for this work permit exemption is 12 uninterrupted weeks in a period of 36 weeks.

The work permit exemption for the purpose of business meetings will also change. Business meetings under the current regulation are allowed for 4 weeks, interrupted or not, in a period of 13 weeks. This will change to 13 uninterrupted weeks in a period of 52 weeks. Due to the addition of “uninterrupted,” this change could work out in practice as an important limitation on the existing possibilities. The new rule allows business visitors only one business trip to the Netherlands per year, whereas under the old rule several trips were allowed. The government has not explained why the new rule was formulated in this way. The general view is that the addition of “uninterrupted” was a legislative fluke that should be corrected as soon as possible.

An exemption is also being introduced for accompanying staff of performing artists and sports professionals.