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

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

Belgium

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

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

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

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

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

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

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

Canada

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

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

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

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

France

Business Visitor of Less Than 90 days

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

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

There are two types of classifications for business visitors:

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

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

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

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

Italy

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

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

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

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

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

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

Mexico

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

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

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

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

Peru

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

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

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

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

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

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

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

South Africa

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

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

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

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

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

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

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

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

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

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

Rules for Section 11(2) Visa Applications

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

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

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

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

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

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

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

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

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

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

7. The request should include the following:

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

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

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

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

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

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

g. The applicant’s CV;

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

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

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

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

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

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

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

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

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

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

United Kingdom

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

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

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

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

Tier 2 (Intra-Company Transfer—Graduate Trainee)

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

Tier 2 (Intra-Company Transfer—Skills Transfer)

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

Tier 5 (Temporary Worker—Government Authorised Exchange)

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

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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PERU: New Law to Regularize Residence of Foreigners in Irregular Immigration Status

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A new law establishes a procedure to regularize the residence of foreigners who are in irregular immigration status.

On November 8, 2013, Law No. 30103 was published in the Official Gazette of Peru. The new law establishes a procedure to regularize the immigration status of foreign nationals who entered Peruvian territory before January 1, 2012. The law provides for either a temporary or a resident visa under determined immigration status if they have been in an irregular immigration status in Peru.

Deadline and Where To Apply for Immigration Regularization

The deadline to apply is 180 calendar days since the law has been in force.

The application must be filed before the National Superintendence of Migration (MIGRACIONES), with the required documentation applicable to the foreign national.

Assumptions of Irregularity

It is considered “irregular migratory status” if a foreign national has entered Peru legally but has an expired stay authorization or expired resident permit.

Granting of the Resident Visa

MIGRACIONES will provide to an eligible foreign applicant a resident visa for a maximum period of two years the immigration status of worker (WRA), independent professional (IPA), or familiar resident, as applicable. The resident permit is renewable annually, subject to compliance with requirements under immigration law.

After approval of the resident visa, the foreign national will be registered at the Central Register of Foreigners and his or her foreign card will be issued, provided that the requirements under the TUPA (Unique Text of Administrative Proceedings) have been complied with and required fees have been paid.

Reserve Assumptions for Enforcement

Peru, through MIGRACIONES, reserves the right to reject an applicant for a resident visa if the agency determines that his or her presence is a detriment to Peru’s sovereign interests, or a national security or internal order risk, based on a background check and information provided by INTERPOL, the judiciary, or other entities, as appropriate.

MERCOSUR Citizens

Foreigners with irregular immigration status belonging to MERCOSUR countries may opt to apply the “Agreement on Residence for Nationals of State Parties of MERCOSUR, Bolivia and Chile,” signed on December 6, 2002.

Assumptions of Exception in the Scope of the Law

Not included in the scope of the new law are cases of foreign citizens who, having been ordered to leave, never left the country or have returned without authorization, and those who have an enforceable and final judgment of expulsion after serving a custodial sentence.

Regulations and Validity

The Peruvian government must issue regulations within 60 calendar days of enactment of the law, which took effect November 9, 2013.

PERU: Amendments have been made recently to Peruvian immigration rules.

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Changes do not often occur in Peruvian immigration law, but there have been some recent modifications to certain aspects of immigration proceedings and requirements by the Peruvian Immigration Administrative Authority concerning visa processes for foreign nationals.

Legislative Decree No. 1130 has created a new immigration Peruvian authority based on the former authority known as “DIGEMIN” and now called “MIGRACIONES.” This legislative decree took effect December 7, 2012. The new government office, the National Superintendence of Migration (MIGRACIONES), is a technical and specialized entity within the Ministry of the Interior of Peru that has its own administrative, economic, and functional autonomy.

In addition, on December 23, 2012, Supreme Decree No. 003-2012-IN was published, which included the Text of Administrative Procedures of the Ministry of the Interior (TUPA), comprising procedures and related administrative services. Among them are those pertinent to MIGRACIONES, which is now the lead agency in domestic immigration policy in Peru. Among its different powers, however, there still exists the recently issued DIGEMIN TUPA. MIGRACIONES has not yet issued its own TUPA.

In general, MIGRACIONES has become more demanding and rigorous. Previously, there were only the discretionary judgment and criteria of DIGEMIN in some aspects. Now the legal basis has been incorporated into the recent DIGEMIN TUPA regarding such aspects. DIGEMIN TUPA contains the administrative rules to apply to immigration law in Peru.

Now there are more requirements for work visas and appointed worker visas related to performing labor activities in Peru for those who are either working in the country employed by local companies registered on their payroll as “dependent workers,” or as foreigners who provide services in Peru to some local companies as “consultants or advisors” on a regular basis and who hold a migratory status and visa regulated by law, maintaining their capacity as workers for foreign companies because they are not included on the payroll of Peruvian companies.

The most significant changes include:

I. Change of status (in-country processing) or obtaining of visa proceeding (with a consular step):

Resident – Worker (WRA)

  • A foreign citizen who requires this type of visa must sign the Initiation “F-0004” form, in the case of “Change of Status” procedure (in-country processing), since he or she is in the country.
  • At present, the F-0004 is obtained online either for in-country or obtaining of visa proceeding.
  • No more than 15 working days should elapse between the date of approval of the employment contract for foreign nationals and the start date of filing the case before MIGRACIONES.
  • Where the parties in an employment contract related to a foreign national have agreed to a probationary period, MIGRACIONES shall first grant a visa with temporary worker status only until the completion of this period. After that, the applicant applies for a “change of visa process” to get his or her WRA visa at MIGRACIONES.
  • The power of attorney letter granted by the foreign citizen must be addressed to the National Superintendence of Migration-MIGRACIONES, not to DIGEMIN.
  • A copy of the Registry of Taxpayers (RUC) of the local company employing the foreign national, which is obtained from SUNAT’s website using the key password “clave sol,” must be “Active” (Activo) and “Existing” (Habido), and the local company must have workers enrolled on its payroll.
  • A certified copy of the validity of the power of attorney (Vigencia de Poder) of the representative of the contracting employer updated and recently issued by the Registry Office must show explicitly that this is a representative of the employer who has signed the employment contract on behalf of the local company, and has the authorization to hire staff.
  • The foreign passport of the applicant must have a minimum validity of one year.

Appointed Worker (WD1)

  • A foreign citizen who requires this type of visa must sign the Initiation “F-0004” form in the case of a change of status (in-country process), because he or she is in the country.
  • At present, the F-0004 is obtained online either for in-country or obtaining of visa proceeding.
  • In addition to the requirements within the scope of the letter of appointment to be granted to the appointed worker by the foreign company that will provide services to the local company, a letter that is addressed to the receiving company must state that both wages, as per diem, or any payment to the appointed worker, shall be paid by the foreign company. The age of the individual must also be indicated in this letter.
  • A Certificate of Specialization in the work that the appointed worker will perform in the local company in Peru, should be issued by the foreign company or foreign study center, duly legalized by the Peruvian consulate abroad and endorsed by the Peruvian Ministry of Foreign relations or with an apostil abroad, as appropriate.
  • A copy of the Registry of Taxpayers (RUC) of the local company employing the foreign national, which is obtained from SUNAT’s website using the key password “clave sol,” must be “Active” (Activo) and “Existing” (Habido), and the local company must have workers enrolled on its payroll.
  • A certified copy of the validity of the power of attorney (Vigencia de Poder) of the representative of the local company receiving the services, who has signed the service agreement and the letter of the beneficiary company (local company), should be recently updated and issued by the corresponding Registry Office.
  • The applicant’s passport should be valid for at least six months.

The requirements above apply to both types of procedures, either “change of immigration status” or “obtainment of visa,” unless specific reference to only one of them is made.

Other requirements, depending on the type of procedure to be followed, remain mandatory.

In case of an extension or renewal of the permit for an appointed worker (WD1) beyond the additional 90 days initially granted, the INTERPOL International Exchange sheet should be attached to the file and submitted to MIGRACIONES for this purpose, provided that the extension or renewal requested is at least three months.

II. Procedure for Extension of Residence Permit

Resident Worker

Three original recent payslips for the foreign worker must be presented to MIGRACIONES in addition to other documentation, demonstrating continued employment during the last year of stay in the country.

III. Procedure of Extension of Authorization of Permanency:

Temporary Worker/Appointed Worker

The INTERPOL International Exchange Sheet should be presented if the requested extension is at least three months.

This must be presented to MIGRACIONES in addition to other required documents in the case of extension beyond the additional 90 days initially granting authorization to work for a local company under a dependent labor relationship as a subordinated worker (temporary worker), or as a consultant or advisor (appointed worker).

In addition, three original recent payslips of the foreign worker for a temporary worker visas must be filed.

 

Requirements in immigration proceedings for change of status and obtaining visa for immigrants, investors, among others, have also been amended.

PERU: Clarification in Scope of Some Peruvian Immigration Rules

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Changes do not occur often in Peruvian immigration law. Recently, however, a few notable changes took place.

One change concerns the modification of articles 358 to 378 of the Peruvian Consular Rules that was approved by Supreme Decree No. 091-2011-RE at the end of July 2011, in coordination with amendments to the Peruvian Aliens Law passed in June 2008. The amendments established that within the powers the Aliens Law grants to the Ministry of Foreign Relations, regardless of the migration status and the type of visa that may be granted by a consular officer abroad, is the responsibility and ultimate power of the consular officers to grant or deny visas to be stamped in passports or foreign travel documents, except for the migration status referred to in article 361 (diplomatic, consular, official, voluntary worker, and exchange visitor migration status). Likewise, the consular officer must verify that the beneficiary of the visa meets the necessary requirements to be granted the visa, and may conduct a personal interview if needed, comparing the information obtained with the information requested and applying the pertinent principles of discretion.

On the other hand, with respect to temporary tourist or business visas, a measure was ratified to provide that the term of stay in Peruvian territory is up to 183 days, non-extendable in-country, and that the term of validity of these types of visas is 12 months. This term is calculated from the date of issuance by the consular office.

The remainder of temporary and resident visas may be used within their term, which is six months from the date of issuance by the consular office.

A second change is that the Peruvian Immigration Authority (DIGEMIN offices), through an Internal Directive, is requesting that for all cases filed by Colombian, Venezuelan, and Mexican citizens – whether to obtain a visa at the Peruvian consulate abroad or to change status in-country – applicants must submit a resume indicating, among other things, their personal data, professional training, occupation, labor experience, personal references, address in Peru, and address abroad. The Internal Directive also includes case files that are not yet subject to approval (currently ongoing proceedings).