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1. Immigration Treatment of Common-Law and Same-Sex Marriage -

This article provides an overview of common-law and same-sex marriage issues and requirements with respect to immigration in several countries.

2. CHINA -

China has removed the visa and residence permit requirements for Taiwan residents, and implemented new immigration policy measures in Shanghai.

3. NETHERLANDS -

The Dutch government introduced the Startup Visa in 2015; requirements and early experiences are discussed.

4. UNITED KINGDOM -

Several developments have been announced.

5. New Publications and Items of Interest -

New Publications and Items of Interest

6. Member News -

Member News

 

 
 
1. Immigration Treatment of Common-Law and Same-Sex Marriage
 

This article provides an overview of common-law and same-sex marriage issues and requirements with respect to immigration in several countries.

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 then regulated the subject.

The main changes introduced concerned 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 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, 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

Definition of common-law partner. In Canada, common-law relationships are defined in § 1(1) of the Immigration and Refugee Protection Regulations (IRPR). A "common-law partner" is an individual who cohabits with another person in a conjugal relationship for at least one year. A cohabitation period of at least one year is interpreted to mean continuous cohabitation. Common-law partnerships can be between same-sex or opposite-sex partners and are considered to be marriage-like relationships characterized by mutual commitment, exclusivity, and interdependence.

Consequences of common-law arrangements for permanent immigration. As with married spouses, common-law partners in Canada may sponsor their partners for permanent residence and include them as dependents with other permanent immigration applications. Common-law partners must submit substantial documentation to prove that they have been cohabiting continuously for at least one year and to show interdependence, such as documents regarding joint ownership of property, joint travels and photographs, along with a statutory declaration of common-law status. While common-law partners have equal rights with married spouses, they must meet a higher evidentiary burden in terms of proof of their relationship.

Consequences of common-law arrangements for temporary immigration. Common-law partners in Canada, like married spouses, are eligible for open spousal work permits, subject to certain conditions. To prove they are common-law partners, they must submit evidence that they have been cohabiting continuously for at least one year and include documents showing interdependence. However, the number of documents required for temporary residence tends to be fewer than for purposes of a common-law partnership application for permanent residence.

Same-sex marriages. Same-sex marriages are recognized for Canadian immigration purposes if the marriage is legally recognized according to both the law of the place where the marriage occurred and under Canadian law. Same-sex marriages are legal across Canada.

China

China does not recognize common-law marriages, or 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" apply 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.
  • A same-sex marriage between a foreign national and a French national will allow the issuance of a visa and residence permit to the foreign national as the spouse of a French national, on the basis of the Civil Code and Article L313-11-4 CESEDA.
  • The marriage between a third-country foreign national in the 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 may be 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.

Hong Kong does not recognize marriages or partnerships between two individuals of the same sex for immigration purposes. Accordingly, a same-sex partner of a person holding permanent resident status or an employment visa cannot be granted dependent status.

However, the Hong Kong Immigration Department does exercise discretion for those living in a relationship akin to marriage and will grant an extended visitor’s visa to the partner of a person who is granted an employment visa. The person seeking such status must demonstrate that he or she has the financial means to support himself/herself or that the partner can support and provide accommodation to him or her and that a pre-existing relationship of some time has existed. The holder of this extended visitor’s visa cannot work, so in practice, very few applications are lodged for extended visitor status.

India

India is still a far cry away from providing immigration benefits to same-sex couples. India not only disallows same-sex marriages but also criminalizes relationships between same-sex partners, terming them as unnatural. Section 377 of the Indian Penal Code (IPC), an archaic law, was introduced in 1861 during British rule in India, which criminalized "carnal intercourse against the order of nature with any man, woman or animal" with a maximum sentence of life imprisonment. On December 11, 2013, the Supreme Court in Suresh Kumar Koushal vs. Naz Foundation held that there was no constitutional infirmity in Section 377, and 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 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 foul of the principles of equality and liberty enshrined in our Constitution." On January 29, 2014, the Supreme Court refused to accept the petition seeking a review of its judgment on Section 377. In April 2014, activists within the LGBT community filed a curative petition, which can be filed as a petition of last resort if the Supreme Court dismisses the review petition. The Supreme Court agreed to consider the plea in an open court on the curative petition. It has yet to form a Constitution Bench to hear the curative petition.

It is also worth noting that in 2014, the Supreme Court delivered a landmark verdict in NALSA v. Union of India providing transgendered people with equal rights and opportunities under the law. The Court also directed the central and state governments to ensure recognition of transgender as a "third gender," and to create equal opportunities for transgendered people in educational institutions and government jobs by providing "reservations" (preferences or quotas reserved for transgendered people).

.A bench of Supreme Court Justices in Uday Gupta v. Aysha & Anr, decided on April 21, 2014, issued clarification on a petition filed by advocate Uday Gupta, who had questioned certain sweeping observations made by the Madras high court when dealing with the issue of live-in relationships. Importantly, the Supreme Court observed that children born from prolonged live-in relationships could not be termed illegitimate. The Supreme Court further held that if a man and woman "lived like husband and wife" for a long period and had children, the judiciary would presume that the two were married.

In April 2015 in a property dispute case, a two-judge Supreme Court bench affirmed that continuous cohabitation of a couple raises a presumption of a valid marriage. The name of this case has been withheld to ensure the privacy of the litigants. The bench reiterated that it is well settled that there is a presumption in favor of marriage and against concubinage, when a man and woman have cohabited continuously for a long time. The presumption can be rebutted by unimpeachable evidence, although a heavy burden lies on a party who seeks to undermine the relationship as a legal marriage. In this case, family members of the deceased—the grandfather—claimed that after the death of his wife, for the past 20 years, he had been living with a woman who was not legally married to him. After examining the evidence, the Supreme Court presumed that the woman was his wife, after the family members admitted that the deceased was in a relationship with the woman and she also lived with the joint family.

Italy

Italy does not recognize common-law spouses or marriage between partners of the same sex.

However, starting in 2012 and following a court's decision, the immigration authorities have started to approve "family applications" filed by same-sex partners of European Union (EU) citizens, provided that the couple is legally married in a foreign country that recognizes same-sex marriages.

This step toward the recognition of same-sex relationships has been possible thanks to EU directives granting to citizens of the EU and their family members the right to move and reside freely within the territory of the Member States.

Italian law does not recognize domestic partnerships, 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

Common-law marriages. In Mexico, couples living under a common-law marriage have reciprocal rights and obligations when, having no legal impediments for marriage, they have lived together constantly and permanently for at least two years. This time requirement is not necessary when they have a child.

According to the Civil Law in Mexico, since October 2014 the judges of the Civil Registry may receive statements regarding the existence or cessation of a common-law marriage and issue a Certificate of Cohabitation.

For foreigners wishing to live in Mexico under temporary or permanent residence as non-married partners, two options exist depending on the circumstances:

  • If both are in their country of origin and one of them is issued a job offer in Mexico, they first must apply for a visa authorization by job offer at the National Immigration Institute (INM) in Mexico. Once this visa authorization is issued, they both must apply at the Mexican consulate having jurisdiction over their place of residence, for a temporary residence visa by family unit. The consulate will ask for a list of required documentation, including an official Certificate of Cohabitation, issued according to the legal framework and local customs of their place of residence.
  • If a temporary resident is already in Mexico and the non-married partner is in another country, the petitioner in Mexico must apply at the INM in Mexico for a visa authorization by family unit, and present a Certificate of Cohabitation issued by the competent authority of the country where they lived in common, constantly, and permanently for at least five years.

For both cases, once a temporary or permanent residence permit is issued to a non-married couple, for immigration purposes they acquire the same rights and obligations as a traditionally married couple.

Nonetheless, unmarried couples frequently face challenges when it comes to demonstrate family bonds as many countries may not issue a cohabitation certificate that is acceptable for Mexican immigration authorities and the criteria are discretionary.

Same-sex marriage. 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, marriage is not limited to persons of different gender. Same-sex marriages are equally valid and can form the basis for immigration with a spouse under the same conditions. In addition, unmarried partners (either mixed or same-sex) or are also entitled to family reunification.

Married couples must submit a legalized marriage certificate. Unmarried partners must provide an official (legalized) document from their home country proving that they are not married (to anyone). Some nationalities, like Japanese and U.S. citizens, can obtain an affidavit to that effect from their embassy in the Netherlands. Unmarried partners must also provide proof of a durable affective relationship. To this end, they must complete a questionnaire that asks how the two partners met, how long they have been in a relationship, and whether their friends and family have been informed about the relationship. The minimum age for family reunification is 21 years.

For dependents who join a partner who is coming to the Netherlands on a work visa (knowledge migrant, intracompany transferee), the processing time is approximately two weeks, whether the dependent travels together with the sponsor or afterwards. For others, the processing time is three months, and additional requirements apply. The sponsor must earn at least the minimum wage and have an employment contract for at least a year. Another (tough) requirement for this group is an integration test, which must be taken by all applicants except those from the European Union/European Economic Area, the United States, Japan, Canada, New Zealand, Australia, and South Korea. The test, which requires a basic knowledge of the Dutch language, must be passed successfully before a visa will be granted.

Peru

In Peru, marriage is defined as the voluntary union of a man and woman celebrated according to the provisions of the Peruvian Civil Code to make a common bond.

On the other hand, a common-law marriage voluntarily carried out and maintained by a man and a woman, free of matrimonial impediment, to achieve similar goals and fulfill the duties of marriage, creates a society of goods that are subject to the regime of conjugal society, provided that this status has lasted at least two continuous years.

Civil union or marriage of same-sex partners is not recognized by Peruvian law. For immigration purposes, Peru does not recognize marriages, partnerships, or relationships between two individuals of the same sex or common-law marriages and civil unions.

Only marriages according to Peruvian civil law and related regulations are recognized for the 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 may apply to the Department of Home Affairs for a temporary residence visa to accompany his or her South African spouse in South Africa. Confusion prevails at some of the South African embassies about the identity of the correct visa to apply for. It is not the "relative's visa" but rather a visa issued under § 11(6) of the Immigration Act.

These visas are usually issued for about two years at a time and should be applied for and obtained before traveling to South Africa. The visa may be extended (from within the country), upon application, so long as the spousal relationship still exists. Once the spousal relationship is five years old, the foreign spouse may apply for permanent residence on the basis of the extant relationship.

If the foreign spouse has obtained an offer of employment, he or she may apply to have the visa amended to allow him or her to take up that employment. The intended employer is excused from being required to recruit for a South African worker first, as happens with ordinary work visas.

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. The spouse needs to apply for an extended visitor's visa, which can be issued for up to three years and can also be extended, upon application. Unfortunately, the "dispensation" allowing a foreign spouse to take up employment in South Africa applies only to the spouses of South African citizens.

Turkey

Turkey does not recognize same-sex marriage or common-law marriage.

United Kingdom

In 2004, same-sex civil partnerships were legalized throughout the United Kingdom (UK) with the passing of the Civil Partnership Act.

In 2013 and 2014, laws legalizing same-sex marriage in England, Wales, and Scotland received Royal Assent. Although Northern Ireland does not presently permit same-sex marriage, following the Republic of Ireland's approval of same-sex marriage in a referendum in 2015, and in light of recent polls finding that a majority of Northern Irish voters support such rights, it is possible that reform could be on the horizon.

Individuals seeking to come to the UK for work or to study, who are subject to immigration control (i.e., nationals not from the European Economic Area (EEA) or Switzerland), may apply to bring their same-sex spouses or partners as dependents. Requirements vary for different routes within the Points Based System (PBS); however, evidence of the relationship must be submitted with the application. Where the same-sex couple are married (overseas or in the UK), the original marriage certificate is required. Same-sex couples in a common-law marriage relationship must submit original evidence of their relationship and cohabitation covering the last two years before application.

A same-sex spouse or partner may also apply as "family of a settled person" (where the partner or spouse is a British citizen, is settled in the UK, or has asylum or humanitarian protection in the UK).

In the majority of applications to come to the UK on the basis of a same-sex marriage or partnership, the spouse or partner must prove that he or she is 18 years of age or older, in a genuine relationship, not in any other marriage or partnership, not related by blood to the spouse/partner, has sufficient accommodation and maintenance funds, and does not fall under the general grounds for refusal under the Immigration Rules.

In addition to meeting maintenance requirements, most main applicants and their dependents must pay an Immigration Health Surcharge. In some immigration routes, spouses or partners must provide evidence of meeting a specific level of English language ability.

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 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 legal in most but not all states in the United States.

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. The U.S. Department of State may issue a B-1/2 visa to a “cohabitating partner” of a principal nonimmigrant visa holder, but these 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.

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.

Common-law marriages are valid for U.S. immigration purposes if they are recognized by the U.S. state or foreign country where they occur. Since the place of celebration generally determines the validity of the marriage, it often is necessary to check local laws.

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.

 
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2. CHINA
 

China has removed the visa and residence permit requirements for Taiwan residents, and implemented new immigration policy measures in Shanghai.

Visa and Residence Permit Requirements Removed for Taiwan Residents

On June 14, 2015, China amended its regulations on Chinese citizens traveling to or from Taiwan to facilitate travel between mainland China and Taiwan. First and foremost, China removed the visa requirement for Taiwan residents visiting the mainland. For Taiwanese working in mainland China with a valid work permit, who previously needed a residence permit to enter and live in China, the rule also removes the need for a residence permit. The only required travel document is a travel pass, TaiBaoZheng. The travel pass has been recently upgraded to an electronic card that can be scanned, just like the Chinese ID card. There are two types of TaiBaoZheng. The short-term card is valid for three years with unlimited entries, while the long-term card is valid for five years with unlimited entries.

New Immigration Policy Measures Implemented in Shanghai

On June 9, 2015, the Ministry of Public Security of China issued several new immigration policies in Shanghai. On August 5, local authorities in Shanghai published implementing measures for the new policies. The measures list required documents and application instructions for permanent residence, the R visa, and expert certificate applications by individuals qualified as high-level foreign talent.

The measures also specify the criteria for high-level foreign experts, including: (1) recipients of prominent awards or talent selected in high-level talent programs; (2) prominent experts, scholars, extraordinary talent, or professional talent; (3) extraordinary talent or professional talent in commercial enterprises; or (4) other talent with expertise in great demand in the Shanghai municipal area.

In addition to providing implementation details for the June policies, the measures also amend the validity of the Shanghai Foreign Talent Residence Certificate ("B" Certificate) to 10 years (from one to five years previously).

 
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3. NETHERLANDS
 

The Dutch government introduced the Startup Visa in 2015; requirements and early experiences are discussed.

On January 1, 2015, the Dutch government introduced a residence permit scheme for start-up companies. What are the requirements and what are the first experiences with this new permit scheme?

General

The Dutch government is keen on enhancing the ecosystem for startup companies with the goal of becoming a top-three startup hub within Europe. One of the instruments is a facilitated residence permit scheme for the owners of startup companies.

The general scheme for entrepreneurs has proven inadequate to accommodate the visa and residence needs of this category of businesses, mainly because of too-severe requirements in terms of capital demands and (forecasted) financial results. For startup companies, these demands often are hard to meet. A specific visa has been introduced where these demands don't apply. The "startup visa" can be issued to the owners of startup companies that have been selected by, and have signed a contract with, a Dutch facilitator; i.e., a company that offers professional support for setting up and growing startup businesses.

Requirements

To sponsor a startup visa application, the facilitator must prove its expertise and reliability. In each case, this is assessed by the Ministry of Economic Affairs (MEA) upon request of the Immigration and Naturalization Service (IND). The main requirements are a proven track record of accompanying startups for at least two years, and a solid financial position.

The applying startup entrepreneur must substantiate that the product or service that is being developed is innovative, and that he or she will likely qualify for a permit based on the general points system within one year. This aspect is also assessed by MEA. The startup must provide a detailed milestone plan that includes:

  • the role the applicant fulfills in the startup;
  • the concept of the product or service the startup will deliver;
  • the innovativeness of the product or service; and
  • the milestones that need to be reached throughout the first year to take the startup from a mere concept to an actual undertaking.

The contract between the startup and the facilitator must describe:

  • the nature of the accompaniment and advice from the facilitator;
  • the conditions under which the accompaniment is offered; and
  • the stake that the facilitator has in the startup, if any.

Other Aspects

The startup visa is granted for one year and cannot be renewed. All persons participating in the startup company (e.g., as shareholders) are eligible for startup visas.

The anticipated total processing time is approximately four weeks. The first application was made on January 1, 2015, and was granted within five weeks. During that time, first the facilitator's track record was approved, and subsequently the innovativeness of the startup was assessed. In essence, both the MEA and the IND proved to be able to move very fast under this scheme.

Results So Far

Since the introduction of the scheme, about 10 permits have been granted, and about 50 applications are still pending or have been denied. Although this could relate to "startup" problems and is not necessarily a reflection on the new scheme, the government's special envoy for the improvement of the startup ecosystem, Neelie Kroes, has reportedly said that the number of visas granted should have been much higher by now, and that the new scheme is "a failure."

 
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4. UNITED KINGDOM
 

Several developments have been announced.

New Immigration Bill Provides Further Measures on Illegal Migration

On September 17, 2015, the United Kingdom (UK) government published its latest immigration bill, which contains several provisions to tackle illegal migration.

The three main themes include:

  • new measures cracking down on the exploitation of low-skilled workers, increasing the punishments for employing migrants who are in the UK illegally, and strengthening sanctions for working without authorization;
  • building on the Immigration Act 2014 to ensure that only people living lawfully in the UK can have access to UK bank accounts, driving licenses, and rental accommodation; and
  • increasing powers to make it easier to remove people without authorization to be in the UK

Employing unauthorized migrants. The maximum criminal sanction for employing migrants who are in the UK without authorization has increased from two to five years. Such migrants are now subject to a maximum sentence of up to 51 weeks, a fine, or both.

Bank accounts. New measures relating to bank accounts require banks to carry out immigration checks in relation to current accounts. This follows provisions introduced in the Immigration Act 2014 that prohibit banks from opening accounts for unauthorized migrants. The frequency of the checks will be prescribed in regulations. Banks will be required to notify the Secretary of State if checks confirm that the account holder no longer has permission to remain in the UK. Enforcement action will include freezing accounts and/or ultimately closing them.

These provisions will potentially have devastating consequences for those who are not able to produce satisfactory evidence of their right to remain in the UK. Data held by the Home Office and other bodies are not always up to date.

Residential tenancies. Following provisions in the Immigration Act 2014 requiring landlords and/or their agents to check the immigration status of tenants, this bill now introduces criminal sanctions of imprisonment of up to five years, a fine, or both, for non-compliance.

Driving in the UK. A new criminal sanction has been introduced for driving while an unauthorized migrant, which carries a sentence of up to 51 weeks of imprisonment, a fine, or both. In practice, this new offense is expected to be used mainly by the police who, in the course of their work, may encounter such migrants driving on UK roads. Vehicles driven by such migrants may be impounded pending a decision by the court on forfeiture. The police already hold similar powers with respect to vehicles that are uninsured or driven by unlicensed drivers. The police have also been given new powers to seize driving licenses when investigating illegal migration.

Immigration skills charge. The bill provides for regulations to allow the Secretary of State to impose a charge on sponsors of Tier 2 migrants. This immigration skills charge is one of the areas being considered in the Migration Advisory Committee's (MAC) consultation on the review of Tier 2. (See below for more about the consultation.) The MAC will advise the government on whether this charge should be introduced and, if so, the amount of the charge. Until the MAC has concluded the consultation and advised the government fully, we will not know the extent of any skills charge, but it seems clear that this will be introduced in some form.

Home Office Changes Restricted Certificate of Sponsorship Application Process

The Home Office announced on September 4, 2015, that it will change the operation of the Tier 2 (General) limit to maximize the number of places that can be allocated each month, within the overall annual limit of 20,700.

If the limit is oversubscribed, as it has been in each of the past three months, applications for Restricted Certificates of Sponsorship (RCoS) are prioritized according to a points table. The available RCoS are allocated based on the highest number of points scored. Points are awarded based on whether the job is in a shortage occupation or a PhD-level occupation, and the salary offered.

Some of the points bands in the table are too wide. For example, jobs paying £32,000 to £45,999.99 all score 15 points for salary. Several immigration firms raised this issue with the Home Office at a meeting held in June, following the alarmingly high refusal rate of RCoS from the June allocation. They suggested narrowing the salary bands to increase the chance of an applicant who earns a lower salary to obtain an RCoS. They also raised the issue with the MAC, which is working with the Home Office to achieve this change. The Home Office will increase the number of salary bands in the points table. The revised (provisional) table is shown below:

Revised (Provisional) Points Table

This change would have meant, for example, that in June the Home Office would have been able to allocate RCoS to all non-shortage occupations with a salary of £34,000 or more, rather than £46,000 using the existing table. The prioritization given to shortage occupations and PhD-level occupations will remain unchanged.

The new table is provisional until the necessary changes to the immigration rules have been set before Parliament, but the Home Office said it intends to apply the new bands to the RCoS allocation meeting on October 12, 2015, applications for which opened on September 6. The September 11 allocation meeting used the existing points table.

The Home Office also said it intends to make one further change relating to the limit. Under the existing rules, RCoS must be assigned by sponsors within three months or they will expire. The change will enable the Home Office to return any such unused places to the limit, increasing the number of RCoS available. The Home Office did this informally for the August allocation by writing to sponsors to request the return of unused certificates, which amounted to an additional 648 certificates. This enabled those applicants earning a salary of £24,000 or above to qualify for an RCoS from the August allocation. The reallocation process will now be formalized and any RCoS unallocated after three months will be automatically returned to the pot.

This is welcome news and will significantly benefit those sponsors recruiting recent graduates from overseas.

Tier 2 Cap/Salary Preliminary Report

On August 13, 2015, the MAC published its report following a consultation on Tier 2 minimum salary thresholds. The report was a result of the United Kingdom's government commissioning the MAC to consult on increasing the minimum thresholds. The commission was split into two parts: the early advice on Tier 2 salary thresholds published now, and a wider review that will be delivered to the government at the end of the year. The MAC is not making any formal recommendations now, pending analysis of the results from the wider Tier 2 Review consultation, but has concluded that there is a good case for increasing the overall minimum threshold for Tier 2 (General).

The main points from the report are:

  • The government should be cautious in making any significant changes to salary thresholds at this stage;
  • Salary thresholds should be considered in conjunction with the wider Tier 2 Review findings and in particular the impact of introducing a skills levy on employers;
  • The MAC's preference is for occupation-specific salary thresholds rather than overall minimum salary thresholds for each of the Tier 2 categories;
  • At this stage, there is a case for increasing the overall minimum threshold for Tier 2 (General)—currently set at £20,800—because this figure was calculated in 2009 when the skill level requirement for migrant workers was much lower than it is now;
  • The minimum salary threshold for the intra-company transfer long-term category of £41,500 still appears appropriate;
  • There is little evidence to suggest that there is widespread undercutting of UK resident workers by Tier 2 migrants occurring under the current salary thresholds, but this is subject to further analysis;
  • The MAC will continue to assess evidence on variations in regional pay but takes the view that there are no major regional variations requiring urgent attention;
  • Further work is needed to consider the impact of the Tier 2 (General) monthly limit being reached in June and July, particularly for those lower-paying occupations not on the Shortage Occupation List that are at greater risk of being refused; and
  • The UK government should consider looking at health care roles/graduate recruitment schemes separately from the Tier 2 limit to address the issue of refusals for these categories in the short-term.

SUMMARY NEWS RELEASE FROM THE MAC

FULL REPORT

RELATED SURVEY

 
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5. New Publications and Items of Interest
 

The 2015 edition of the Global Business Immigration Practice Guide has just been released by LexisNexis. Dozens of members of the Alliance of Business Immigration Lawyers (ABIL) co-authored and edited the guide, which is a one-stop resource for dealing with questions related to business immigration issues in immigration hotspots around the world.

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

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

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

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

This comprehensive guide is designed to be used by:

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

This publication provides:

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

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

The list price is $359, but a 15% discount is available by visiting LexisNexis and entering discount code "ABIL15". Contact your Lexis/Nexis sales representative; call 1-800-833-9844 (United States), 1-518-487-3385 (international); fax 1-518-487-3584.

 

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

 
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6. Member News
 

Several ABIL members and their colleagues were selected for inclusion in the 22nd Edition of The Best Lawyers in America in the practice area of Immigration Law:

Bruce Buchanan (of Siskind Susser, PC)
Laura Danielson
Steve Garfinkel
Mark Ivener
H. Ronald Klasko
Charles Kuck
Vincent Lau
Robert Loughran
Sharon Mehlman
John Nahajzer
Julie Pearl
William Reich
Gregory Siskind (of Siskind Susser, PC)
William A. Stock (of Klasko Immigration and Nationality Law, LLP)
Lynn Susser
Andrew Wilson (of Serotte Reich Wilson, LLP)
Bernard Wolfsdorf
Stephen Yale-Loehr

Avi Gomberg was selected for inclusion in the 10th edition of The Best Lawyers in Canada in the practice area of Immigration Law.

H. Ronald Klasko was quoted by Law360 on August 4, 2015, in "Attys Slammed With EB-5 Requests as Expiration Date Looms." "It has never, ever been anywhere near this busy," he noted. "Almost certainly, the program will be extended. But whether it's an extension by itself or an extension with some [reforms], nobody really knows right now."

Mr. Klasko participated as a panel member on the topic of "Investing Cash from Loan Proceeds" at the 4th Annual California EB-5 Conference, hosted by EB5 Investors Magazine. He explained the new USCIS policy to deny EB-5 petitions when the collateral for indebtedness is not owned by the investor. The conference welcomed nearly 500 regional centers, attorneys, and EB-5 program stakeholders, who joined keynote speaker Bob Goodlatte (R-VA), U.S. House of Representatives Judiciary Committee Chairman, and special guest speaker Ed Rendell, former Governor of Pennsylvania.

Mr. Lau and Steve Clark will speak on "Navigating Complex Waters of U.S. Immigration" before the Consulate General of Canada on September 17, 2015.

Mr. Lau will speak on several other upcoming panels:

  • "H-1B Issues," National Association of Foreign Student Advisors Regional Conference, Farmington, Connecticut, October 21, 2015
  • "Prevailing Wage Determinations—The Highs and Lows," American Immigration Lawyers Association, national webinar, December 3, 2015

Mr. Lau spoke on several other panels recently:

  • "H-1B Trends," American Immigration Lawyers Association's New England Chapter Meeting, September 24, 2015
  • "Startup in America: Guidance on Foreign Entrepreneurship in the U.S.," MIT Alumni Leadership Conference, September 25, 2015
  • "Business Immigration Compliance Affecting Your Global Workforce," co-sponsored by the Massachusetts Chapter of the Federal Bar Association and the Federal Bar Association Immigration Law Section, September 30, 2015
  • "How U.S. Immigration Law Can Benefit Your Corporate Clients," National American Pacific American Bar Association Regional Conference, October 3, 2015

Robert F. Loughran was featured in a Law360 article about pending USCIS guidance for employers regarding 3-year DACA permits. He noted that employers should not look beyond genuine-looking documents presented by employees when filling out the Form I-9. "Their business is not to be deputized immigration officers. That only ends badly," he said.

Cyrus Mehta has authored several new blog entries. "When Is A Visa 'Immediately Available' For Filing An Adjustment Of Status Application" "It's Déjà Vu All Over Again: State Department Moves Many Filing Dates Back From Previously Released October 2015 Bulletin" "Save the Children Under the New Visa Bulletin"Godot Has Arrived: Early Adjustment of Status Applications Possible Under the October 2015 Visa Bulletin" "Board of Immigration Appeals Provides Safeguards for Asylum Applicant With Mental Competency Issues" "Why Birthright Citizenship Is Most Wonderful For America!" "Opportunity Knocks in Disappointing Decision Vacating STEM Optional Practical Training Rule for Foreign Students"

Mr. Mehta and Angelo Paparelli were quoted in Law360 in an article on the recent USCIS L-1B policy guidance memo. Mr. Paparelli noted, "An adjudicator with a mind to say no will not be stopped by this new memo." Mr. Mehta noted that a list of evidence a company can submit to show that an employee's knowledge constitutes "specialized knowledge" "smacks of what we will see in an RFE." The article, published on August 19, 2015.

Cora-Ann V. Pestaina, of Cyrus D. Mehta & Associates, PLLC, has authored a new blog entry. "BALCA, What Have You Been Up To So Far in 2015?"

Angelo Paparelli was quoted in Law360 in "4 Ways China's Crash May Alter U.S. Real Estate Investment." He said, "If anything, the China stock market plunge has primed the EB-5 pump. Before, potential EB-5 investors may have held off to see how high their stock holdings might go before liquidating assets and signing up for the U.S. investor green card program." Now, he said, Chinese investors seem to be liquidating stocks before their values fall further. "Their goal is to diversify the asset mix and acquire holdings abroad—preferably in promising commercial real estate deals." He noted that "Chinese investors' interest in the EB-5 program remains robust."

Mr. Paparelli and his partner at Seyfarth Shaw LLP, Greg White, were quoted in Law 360 in "New FINRA Rule May Spark Pushback From EB-5 Agents Abroad." Mr. Paparelli said he didn't think the rule would have a big immediate impact on the EB-5 marketplace: "The rule only applies to registered broker-dealers, and unfortunately, they have not made a substantial inroad into EB-5 transactions." Commenting on the fact that the new FINRA rule stipulates that a foreign agent who does more than make an introduction must be a registered representative, Mr. White noted that "[o]nce a finder does more than make an introduction and receives so-called transaction-based compensation—i.e., a percentage of the deal—there's an issue as to whether they have a problem with the [Securities and Exchange Commission]."

Mr. Paparelli as quoted in Site Selection's July 2015 edition, in "Greener Pastures," about the EB-5 program. He said he is heartened by "reasonable additional regulation" of EB-5, such as anti-fraud measures. He also noted rapidly increasing interest in the EB-5 program from institutional players, but said he foresees a shakeout: "We may see a smaller number of regional centers, or see special-purpose regional centers that really are there only to promote the developers' transactions." One retired Department of Homeland Security official told Mr. Paparelli that if the regulations become too onerous, investors "will lose their appetite."

Mr. Paparelli was quoted in Law360 on August 11, 2015, in "U.S. Clarifies EB-5 Amid Continued Chinese Demand." Commenting on a USCIS policy memorandum clarifying issues of job creation and investment requirements for the EB-5 program, he noted, "In some respects it's a very helpful clarification. There's a recognition that if the jobs were created but subsequent events—liquidation or bankruptcy—were to occur, permanent resident status would also be attainable. This is a significant development." He also said that "[t]here could be some fine-tuning of the [memorandum]. Perhaps some examples should be introduced into the document. All in all, it is a welcome change."

Bernard Wolfsdorf was the Conference Program Chair at the 2015 American Immigration Lawyers Association's EB-5 Investors Summit, held August 27-28, 2015, in Las Vegas, Nevada. He also presented on two panels with Charles Oppenheim, Chief of Immigrant Visa Control & Reporting, U.S. Department of State, discussing the effect of Chinese retrogression and the Child Status Protection Act, as well as tips for working with the National Visa Center. The summit provided the opportunity to learn from critical parts of an EB-5 team, including securities lawyers, business plan writers, economists, developers, migration agents, and regional centers. FOR MORE INFORMATION

Mr. Wolfsdorf has authored two new blog entries. "Five Reasons Why the EB-5 Immigrant Visa is the Best Option for Chinese Students (Who Can Invest $500,000)" "Urgent Practice Advisory for Preparation of Source of Funds Reports"

Stephen Yale-Loehr was quoted by PolitiFact in "Rand Paul Says Legality of Birthright Citizenship Not Fully Adjudicated Due to Facts of 1898 Case." Mr. Yale-Loehr noted that the Supreme Court "has not ruled explicitly on a citizenship case involving children born in the United States to undocumented parents." He noted, however, that in Wong Kim Ark, "the Supreme Court relied on common law, going back to cases decided in England before the American Revolution, to hold that any person born on U.S. soil and subject to the jurisdiction of the United States is a U.S. citizen. I am confident that if a case arose involving a child born in the United States to undocumented parents, the Supreme Court would rule the same way."

Mr. Yale-Loehr was quoted by Le Temps in French about birthright citizenship. He noted, " Les Etats-Unis appartiennent à une trentaine de pays qui appliquent dans le monde le droit du sol inconditionnel." The article, published on August 29, 2015.

Mr. Yale-Loehr was quoted by Univision in Spanish in an article about Dan-el Padilla Peralta, an undocumented person from the Dominican Republic that he represented. The article noted, "Stephen Yale-Loehr intentó regularizar su estatus migratorio en cada uno de sus años académicos hasta que finalmente logró para ese visado de trabajo."

Mr. Yale-Loehr was quoted by the Miami Herald in an article about a ruling by a federal judge for the Obama administration to release hundreds of migrant women and children in detention centers awaiting hearings. Calling the decision "historic," Mr. Yale Loehr noted, "If it stands, it will force major changes to the government's family detention program."

Mr. Yale-Loehr was quoted by CBS News in an article about birthright citizenship and a related policy paper issued by 2016 Republican presidential candidate Donald Trump, who called it "the biggest magnet for illegal immigration." Mr. Yale-Loehr said ending birthright citizenship would require amending the Constitution. "It would require a vote of two-thirds of both houses of Congress and then ratification by three-fourths of the state legislatures so politically, I think that's almost impossible. Some people believe that [Congress] could simply pass a statute to end birthright citizenship without having to amend the Constitution, but I think that most legal scholars believe that a constitutional amendment is required."

Mr. Yale-Loehr was quoted by Bloomberg BNA's Daily Labor Report in "Concern Over Proposed EB-5 Changes May Become Much Ado About Nothing." "The chances are pretty slim" that the EB-5 program won't be reauthorized, he said, noting that the regional center program is very popular, especially among members of Congress who note that it creates U.S. jobs at no expense to taxpayers. The article is reproduced with permission at Miller Mayer.

Mr. Yale-Loehr was quoted by Law360 on August 4, 2015, in "Attys Slammed With EB-5 Requests as Expiration Date Looms." He noted that attorneys at his firm have "basically given up our summer vacations" to work on the influx of cases. "Investors are spooked. And we're seeing a dramatic rise in the number of investors who are trying to get their petitions filed before September 30, and project developers who are trying to finalize their projects ... and that's causing increased work for both immigration attorneys and the immigration agency."

Mr. Yale-Loehr was quoted by The Atlantic on October 2, 2015, in "The Flawed Immigration Program Congress Hasn't Changed." He noted that both sides of the EB-5 debate in Congress agree on some modifications. However, reform is delayed because those who represent urban areas don't want changes, he said.

 
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