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.

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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SOUTH AFRICA: Major Changes in Immigration Law and Regulations

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There have been major changes in South African immigration law and regulations.

The 2007 and 2011 Amendments to the Immigration Act, 2002, along with a revised set of regulatory provisions, took effect May 26, 2014, along with the appointment of a new Minister of Home Affairs. There are significant technical shortcomings in the regulations. As a result, substantial corrections by the Department of Home Affairs are expected.

This summary focuses on the content and impact of the new regulations in the short term.

Visas Versus Permits

There is one significant change in the language: “Permits” are now known as “visas.” This is the case regardless of the period of admission or the place of issuance. And the term “permit” now refers exclusively to the authorization granted to a person to take up permanent residence. Nothing else turns on this change in terminology.

Temporary Residence Visas

Visas for the self-employed, the retired, and the independently wealthy require that the applicant show the existence of a specific investment or income level. None of these amounts has been gazetted. As a result, the applicant does not know what amount is required to be shown and the Department cannot adjudicate the application. For now, these visas are “not available.”

The critical skills work visa is intended to facilitate securing “critically needed” skills for the South African economy. However, the list of critical skills also was not gazetted. So similarly, there can be no applications for a critical skills visa at this time.

The general work visa—the backbone of the work visa regime—now requires that the Department of Labour issue a certificate recommending the approval of the visa. But what must be submitted to the Department of Labour to get that recommendation remains unknown. Consequently, general visas are also “inaccessible” at this time.

Intra-company transfer work visas can be applied for. However, two significant changes have been made to this category of work visa. They will now be issued for four years, instead of the former two years; persons on two-year transfer visas can apply for an extension for a further two years, but they cannot be extended beyond that. The other important change is that an employee being transferred to South Africa to establish a branch office can now also apply for a transfer work visa.

Transitional Arrangements

The regulations do not allow for any period of transition, however brief, between the old and the new permit regimes. Unless the Department “intervenes”—as is already happening in some respects—this may cause all sorts of troubles and unnecessary embarrassment to clients, service providers, and the Department of Home Affairs.

Visa Processing Changes

Persons who are in the country now on short-term visitor visas (for periods of three months or less) cannot apply, from inside the country, to change to any other category of visa unless there are “exceptional circumstances.” The list of what constitutes “exceptional circumstances” is very limited. Such persons must now return home and apply at their nearest South African Embassy or High Commission for their new visas.

This change does not affect the position of foreign nationals who are already in South Africa on any long-term visa, such as for work, business, or study. They can apply from inside the country to extend or change status.

Another change is that all permit applications submitted inside the country must be filed no later than 60 days before the current permit expires.

In a major overhaul of the service delivery process, the Department of Home Affairs has outsourced to the private sector the acceptance of visa applications, and ancillary functions. This is the case both inside and outside the country. The service provider will charge a fee to visa applicants for this service, which will include the option of a “Premium Lounge” service (a business-class lounge).

A further development is that applicants must submit all visa applications in person to allow for the capturing of biometric data. The results of the visa applications can be collected by representatives.

People Now Overstay Their Periods of Admission At Their Peril

A major enforcement change comes in the form of the penalties that apply for overstaying the term of a visa, effective immediately. The previous fine no longer applies.

A person who overstays the term of his or her visa—by as little as a day and up to 30 days—”may be declared undesirable” and excluded for 12 months. If it happens again within a 24-month period, the person faces exclusion for two years. Overstaying more than 30 days may result in “undesirability” and exclusion for five years. Although the regulations imply that there is discretion, the directive to Immigration Officers suggests that this will be enforced rigorously.

In another enforcement-related change, the fines for contraventions of the Immigration Act have increased significantly.

Persons Seeking Asylum in South Africa

Under the previous Act, persons disclosing at a port of entry their intent to apply for asylum were issued asylum transit visas and given 14 days to report to a refugee reception office. Under the Amendment Act, asylum seekers now have five days to report to a refugee reception office or face detention and removal as undocumented migrants.

In addition, persons who are “fugitives from justice” do not qualify for visitor visas or asylum transit visas. This directly contradicts the Refugees Act, which says that no one may be denied entry to the Republic if they are fleeing persecution.

Minors Traveling Overseas Must Have Unabridged Birth Certificates and Their Own Passports

All children entering South Africa now must have unabridged birth certificates with them (which presumably must include sworn translations if these are not in English) whether or not they are travelling with their parents. This measure takes effect July 1, 2014. It applies even if the parents and children are South Africans.

Finally, all children must travel on their own passports. Inclusion on a parent’s passport is not allowed.

SOUTH AFRICA: Transferring Employees and Their Families to South Africa

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A significant amendment to the law is expected in the next few months that will affect transferring employees and their families to South Africa.

Transferring Employees and Their Families to South Africa

Under current South African immigration law, a company can transfer or deploy one or more of its employees to a company that is “operating in South Africa.” This is on condition that the two companies are in a holding, subsidiary, or “affiliate relationship.”

There are three key conditions to qualify for such a permit. First, the person must be an existing employee who will return to his or her employment at the offshore company at the end of the term of the deployment. Second, the company in South Africa must in fact be operating. And third, there must be a qualifying relationship between the two companies. The term “affiliate relationship” is not defined and deliberately allows for considerable flexibility. These permits are usually issued for a two-year period and cannot be renewed or extended.

The permit requirements fall into two broad categories: those that are specific to the intra-company transfer work permit and those that are required for any permit that authorizes a period of residence in South Africa of more than three months. The key requirements specific to the intra-company transfer work permit include, among other things, a copy of the employee’s offshore contract and proof that he or she has the skill needed for the assignment in South Africa.

All family members (assuming they are not South African citizens or permanent residents) accompanying the foreign national to be transferred, no matter their ages, must apply for appropriate permits to reside in South Africa.

As may be suggested by the “transfer” permit’s name, South Africa’s permit system is activity-specific. So if the family includes dependents who will be studying at a tertiary institution or a school (but excluding a pre-school), they must obtain study permits before they can attend the institution. If the dependent is not attending school or is home-schooling, he or she needs a long term visitor permit to accompany the holder of the transfer permit.

For purposes of residence in South Africa, the Immigration Act recognizes non-formalized life partnerships and does not discriminate based on sexual orientation. Couples do not need to be married or in a civil union for purposes of obtaining a residence permit. But the couple will need to prove the fact of the spousal relationship. The term “spouse” refers to the partner, whether married or not. The relationship must be monogamous. The spouse also must obtain a long-term visitor permit to accompany the holder of the transfer permit.

There is no special dispensation for the spouse who wishes to study, be employed, or be self-employed, while in South Africa. They (and/or the place of learning or employer) must comply with all the relevant prescribed requirements of the appropriate temporary residence permit. This is the case even if the spouse wishes to work (or remain working) for an employer back home even where the company does not have a presence in South Africa. [There is a special dispensation for persons who are in a spousal relationship with a South African citizen or permanent resident. Please consult your Alliance of Business Immigration Lawyers attorney about this.]

Under current policy, the South African Department of Home Affairs prefers that people seeking to take up a post in South Africa (and their families), should apply for the appropriate permit at the nearest South African embassy or consulate and have obtained the permit(s) before they leave for South Africa. Application can be made for all the appropriate permits (for the transferee, the spouse, and the children) at the same time. The consequent permit, if approved, will be endorsed into the applicant’s passport.

The general rule is that foreign nationals must at all times have a permit in their passport that accurately describes the purpose and period for which they have been authorized to enter and remain in South Africa. If those circumstances change, the person must apply to the Department of Home Affairs for authorization to remain in the country under those changed circumstances.

A significant amendment to South African law is expected in the next few months. It is imperative that proper and comprehensive advice be sought from a skilled immigration attorney.