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1. BELGIUM: Recent changes - There has been a change in the business visitors' regime; the Belgian Chamber of Representatives passed a proposal to tighten the rules on family reunification that has not yet been passed by the Belgian Senate; and there is a new Code on Labour and Social Security Criminal Law.
2. CANADA: Changes in Canada's temporary foreign worker regulations - Significant changes have been made to Canada's temporary foreign worker regulations.
3. FRANCE: Greater scrutiny by labor agencies - The Ministry of Interior has instructed labor agencies to apply regulations in a restrictive manner and to apply greater scrutiny to applications in order to reduce the number of foreigners legally working in France.
4. MEXICO: New immigration law after 40 years - A New Mexican Immigration Law has been passed after 40 years under the same law.
5. NETHERLANDS: EU Blue Card and new legislation - The EU Blue Card is compared with the Knowledge Migrant Scheme; several new pieces of legislation are summarized.
6. ABIL Webinar Series: U.S. Investment Visas and Green Cards for Foreign Nationals - ABIL Webinar Series: U.S. Investment Visas and Green Cards for Foreign Nationals
7. Member News - Member News
 

 
 
1. BELGIUM: Recent changes
 

Change in Business Visitors' Regime

In principle, any employment of a foreigner in Belgium requires a work permit, even if this employment is only for one day. Of course there are exceptions to this rule; for several activities no work permit is required. Two of these work permit exemptions, often invoked by business visitors, have been adapted recently.

1.  Several short-term work permit exemptions have been in effect since October 8, 2007. Two exemptions are often invoked by foreign business visitors employed by a foreign employer.

Participation in meetings "in closed circle"

The Belgian work permit legislation does not further explain or interpret the wording "in closed circle." In comments regarding the LIMOSA (see #2 below) legislation, which uses the same wording, reference is made to "various types of meetings, mostly in the form of a so-called business trip: negotiations with a customer concerning contracts, conducting evaluation interviews with subordinates, strategy meetings in multinationals, etc." In practice, the authorities interpret "in closed circle" in a broad sense: almost any meeting will be in closed circle.

The stay in Belgium required for such a meeting cannot exceed 5 days per calendar month.

Attending scientific congresses

Foreign employees who attend scientific congresses in Belgium do not need a work permit, provided that their stay as required for attending the congress does not exceed 5 days per calendar month.

2.  The two exemptions noted above have also been in effect since April 1, 2007, with regard to the LIMOSA obligation (this is the obligation to notify the posting of a foreign national to the Belgian social security authorities; the notification can be done online), albeit with an important difference: the duration of the allowable activities.

Participation in meetings "in closed circle"

The LIMOSA exemption extends to meetings lasting up to 60 days per calendar year and up to 20 consecutive calendar days per meeting.

Attending scientific congresses

There is no time limitation for the LIMOSA exemption: the exemption applies for the entire duration of the congress.

3.  The "time discrepancy" between the work permit and the LIMOSA exemptions has been remedied recently by a Royal Decree of March 13, 2011, published in the State Gazette on March 29, 2011. The current situation for business visitors is as follows:

Participation in meetings "in closed circle"

The work permit and LIMOSA exemptions extend to meetings lasting up to 60 days per calendar year and up to 20 consecutive calendar days per meeting.

Attending scientific congresses

There is no time limitation for the work permit and LIMOSA exemptions: the exemption applies for the entire duration of the congress.

Family Reunification: Proposal for More Restrictive Rules

On May 26, 2011, the Belgian Chamber of Representatives passed a proposal to tighten the rules on family reunification. The proposal has not yet been passed by the Belgian Senate.

The proposal has provoked a lot of reaction. Family reunification with a Belgian citizen will be subject to other, and more restrictive, rules than family reunification with a European Union citizen.

Compliance: New Code on Labour and Social Security Criminal Law

A new Code on Labour and Social Security Criminal Law took effect on July 1, 2011. It codifies existing compliance rules with regard to employment and social security related matters, and will also have an impact on compliance with business immigration laws. For example, for employment without a work permit of a foreigner, who is not entitled to residence in Belgium for more than 3 months, the maximum imprisonment term for the employer will increase but the maximum criminal fine will decrease.

 
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2. CANADA: Changes in Canada's temporary foreign worker regulations
 

As noted in the February issue of ABIL's Global Immigration Update, on April 1, 2011, the Canadian government introduced into law a number of important legislative amendments on employer immigration compliance concerning foreign worker work permits and Labour Market Opinions from Service Canada. In summary, the immigration law changes, which took effect April 1, 2011, are as follows:

A. The government has introduced a new test to evaluate the genuineness of an offer of employment to a foreign worker, based on:

  • Whether the offer is made by an employer that is actively engaged in the business in respect to which the offer is made;
  • Whether the offer is consistent with the reasonable employment needs of the employer;
  • Whether the terms of the offer are terms that the employer is reasonably able to fulfill; and
  • The past compliance of the employer, or any person who recruited the foreign national for the employer, with the federal or provincial laws that regulate employment, or the recruiting of employees, in the province in which it is intended that the foreign national work.

B. The regulations limit to four the number of years in which certain foreign workers can remain in Canada on work permit status. Once they have completed the four-year work permit period, they are not authorized to work in Canada for another four years.

Fortunately for employers, some foreign workers are exempt from this four-year work permit limitation. Exemptions to the four-year limitation include foreign workers who have been on the following types of work permits or are in the circumstances listed below:

Temporary foreign workers in certain managerial or professional occupations.

Temporary foreign workers who have applied for permanent residence and received:

  • A Certificat de sélection du Québec (CSQ) if applying as a Quebec Skilled Worker;
  • A Provincial Nominee Program (PNP) certificate if applying as a provincial nominee;
  • An approval in principle letter if applying under the Live-in Caregiver Class;
  • A positive selection decision if applying under the Federal Skilled Worker Class; or
  • A positive selection decision if applying under the Canadian Experience Class.

Temporary foreign workers who are employed in Canada under an international agreement, such as the North American Free Trade Agreement (NAFTA), the Seasonal Agricultural Worker Program, or another agreement.

Temporary foreign workers who are exempt from the Labour Market Opinion (LMO) process, including:

  • Spouses and common-law partners of international graduates participating in the Post-Graduation Work Permit Program and highly skilled temporary foreign workers;
  • Charitable or religious workers;
  • Entrepreneurs, intracompany transferees, researchers, and academics; and
  • Others for purposes of self-support (refugee claimants) or for humanitarian reasons (destitute students, holders of temporary resident permits valid for at least six months).

C. The government has imposed sanctions on employers who do not comply with the new regulations by providing non-genuine job offers in the previous two-year period. The regulations require Citizenship and Immigration Canada (CIC) to post the name of the non-compliant employer on the CIC website.

D. Recent announcements by Human Resources and Skills Development Canada (HRSDC) and CIC:

Effective April 1, 2011, the government has created a new Application for a Labour Market Opinion for high-skilled occupations. On the new application form, employers will be required to attest to the following, if appropriate (please consult your Alliance of Business Immigration Lawyers (ABIL) Global attorney before attesting to a matter that may not be correct, and please review carefully for accuracy before attesting):

"I will provide any temporary foreign worker employed by me with wages, working conditions and employment in an occupation that are the same as those described in the Labour Market Opinion confirmation letter and annex."

"I will immediately inform Service Canada/Temporary Foreign Worker Program officers of any subsequent changes related to the temporary foreign workers' terms and conditions of employment, as described in the Labour Market Opinion confirmation letter and annex."

"I am compliant with, and agree to continue to abide by the relevant federal/provincial/territorial laws that regulate employment in the occupation specified and, if applicable, the terms and conditions of any collective agreement in place. I recognize that any terms and conditions of the attached offer of employment are considered null and void if they are less favourable to the temporary foreign worker than the standards stipulated in the relevant Labour Standards Act."

"I am compliant with, and agree to continue to abide by federal/provincial/territorial legislation related to the temporary foreign worker's recruitment applicable in the jurisdiction where the job is located. I declare that all recruitment done or that will be done on my behalf by a third party, was or will be done in compliance with federal/provincial/territorial laws governing recruitment. I am aware that I will be held responsible for the actions of any person recruiting temporary foreign workers on my behalf."

In addition, when renewing a foreign worker application, employers must demonstrate that they have been in compliance with previous LMO applications. To demonstrate compliance, employers may be asked to provide any or all of the following:

  • Payroll records (to demonstrate the appropriate prevailing wage and overtime paid, source deductions, and explanations of any non-standard deductions);
  • Time sheets (to demonstrate that the workers are working the number of hours set out in the LMO confirmation);
  • Job description (to demonstrate that the job description accurately reflects the information contained in the initial application and LMO);
  • Work permit (to demonstrate that CIC has issued a work permit in compliance with the LMO confirmation information); and
  • Various other documents depending on the circumstances, such as registration with provincial and territorial workplace safety, transportation costs, accommodation information and private health insurance, if applicable.
Service Canada and CIC have become much more enforcement-oriented concerning employer immigration compliance under the foreign worker programs.
 
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3. FRANCE: Greater scrutiny by labor agencies
 

A circular issued May 31, 2011, by France's Ministry of Interior instructs labor authorities that issue work permits to apply the regulations in a restrictive manner and to apply greater scrutiny to applications to reduce the number of foreigners legally working in France. Intracompany transfers and secondment categories are not affected. However, processing times may increase for all categories.

The government previously made public statements of its restrictive policy, including immigration on professional grounds. In its May 31 circular, the Ministry of Interior has now taken concrete action. The circular provides detailed instructions for the labor authorities to implement the regulations more strictly and deepen their scrutiny of work permit applications.

Greater Scrutiny of Employers

The labor authorities are to deepen their scrutiny to verify the existence of the employer and its past and present compliance with labor, social security, and immigration regulations. Any violations may be sufficient grounds to deny a work permit application.

Greater Scrutiny of the Employment Offered

Labor market tests are to be applied strictly and an application is to be denied if market analysis reveals insufficiently high unemployment for the position sought to be filled or the possibility of filling the position by offering a training program in the near future. Any advertisement seeking candidates for a position must be displayed for a reasonable period of time. The Ministry of Interior now asks the labor authorities to consider "two or three months" as being reasonable, whereas in the past the labor authorities considered two or three weeks as reasonable.

Further, the labor authorities are being asked to evaluate whether the foreign worker is under- or overqualified for the employment offered. If he or she is underqualified, the application must be denied. If he or she is overqualified, the advertisement must be modified and published again. The authorities are being asked to verify that:

  • the compensation meets the appropriate thresholds, as determined by the collective bargaining agreements, market, and minimum compensation laws;
  • the candidate has adequate knowledge of the French language;
  • the candidate is being provided adequate housing.

Greater Scrutiny of Change-of-Status Applications

The labor authorities are being urged to examine any change-of-status application very carefully, especially when such applications are made by foreign students. The circular states that the foreign student is supposed to return to his or her home country after the end of schooling. The circular seems to reverse the trend set earlier by the government favoring change-of-status applications made by foreign students who had earned a master's degree and sought employment in France in line with their qualifications.

Intracompany Transfers and Secondments Not Included

These restrictive measures are not being applied to work permit categories that receive preferential processing, such as intracompany transfers, secondments, and seasonal workers.

Increase in Processing Time

Because stricter scrutiny takes time, processing times may increase, including with respect to the preferred categories, such as intracompany transfers, secondments, and seasonal workers.

 
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4. MEXICO: New immigration law after 40 years
 

On May 24, 2011, President Felipe Calderon of Mexico signed a new Immigration Law, which abolished and superseded the General Population Law that had been in existence for 40 years. The new law involves significant changes to the current immigration regime, although these will not become evident until the implementing regulations are published, which is expected to happen within six months after publication. At this time, therefore, we have a new law in place without specific guidelines for its practical application.

The main objectives of the new law are to protect the human rights of immigrants (making this the first statute that governs immigration matters with a social aim); to regulate a comprehensive immigration policy aligned with current conditions in Mexico; to develop immigration processes focused mainly on demographic and immigration control issues; to cooperate with national security and economic development; and to simplify immigration processes to attract foreign investors.

The new law provides that immigration responsibilities are to be shared with other governments. The law is a federal public order statute applicable to the entire Mexican territory.

Along with nonimmigrants (FM3), nonresident immigrants (FM2), and resident immigrants, the characteristics regulated under the previous immigration status categories will change. New conditions of stay will apply to newly created immigration categories, including:

  • Visitor
  • Temporary Resident
  • Temporary Resident - Student
  • Permanent Resident

Any immigrant, regardless of his or her immigration status, will have guaranteed access to educational and health services, may acquire fixed or variable income securities, will be able to make bank deposits, and will be able to acquire urban real estate assets, subject to the restrictions set forth in article 27 of the Mexican Federal Constitution.

Officers of the Vital Record Offices may not refuse to authorize any legal acts of a civil nature for immigrants, regardless of their immigration status. As a consequence, the requirement to obtain a legal-stay certificate in connection with marriages, divorces, and other administrative procedures will more than likely no longer be needed with the new law.

Also, all foreigners within Mexican territory must:

  • Keep and protect any documents evidencing their identify and immigration status; i.e., fulfill any requirements they need to fulfill in order to continue staying within the Mexican territory in conformity with their immigration status;
  • Show their immigration documents whenever required by immigration authorities;
  • Provide any data and information that the authorities may request;
  • Perform any obligations established in the Federal Constitution and other applicable laws of Mexico;
  • Inform the government any change of marital status, nationality, address, or employer, within 90 days from the occurrence of such event. If they fail to do so, a fine will be imposed ranging from 20 to 100 days of the minimum daily wage;
  • Prove their immigration status when carrying out any legal act before a Notary Public or Public Broker relating to real estate matters; and
  • Not change their immigration status, and leave Mexican territory upon expiration of the authorized period, unless they (a) have a family relationship with a Mexican citizen, or (b) need to stay for humanitarian reasons.

Regardless of applicable timeframes, requirements, and other conditions to be established in the new regulations, the new law provides that:

  • Consular officers must respond to visa applications within 10 business days.
  • Immigration authorities must respond to immigration applications within 20 business days from the date on which all the requirements established in the law, regulations, or other applicable administrative provisions are fulfilled.
  • If the applicant fails to fulfill any of the applicable requirements, the National Immigration Institute shall give notice and grant a 10-business-day period to remedy such failure.
  • The National Immigration Institute must respond to any regularization application within a 30-day period.
  • The National Immigration Institute should be able to grant reentry permits if a process is pending, as will be provided for in the regulations.
  • Visa applications must be filed by the foreigner in person at the consular office.
Even though the new law's regulations have not yet been issued, the law meets the need of establishing a simpler framework to regulate the processing and issuance of visas and authorizations for the different immigration statuses in Mexico. It is also very focused on the defense of immigrants' human rights and the preservation of family unity.

 

 
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5. NETHERLANDS: EU Blue Card and new legislation
 

EU Blue Card and Dutch Migrant Scheme

The European Union (EU) Blue Card is a residence and work permit for highly skilled non-EU/EER nationals, so-called third-country nationals. The EU Blue Card does not provide full access to the EU labor market as such, but only to the labor market of the EU Member State that has issued the EU Blue Card.

The implementation date of the European Directive on the EU Blue Card (2009/50/EG) was June 19, 2011. The Netherlands has implemented the EU Blue Card in the Dutch Immigration regulations.

What are the characteristics of the EU Blue Card? There are two main requirements: a salary threshold and a diploma of a post-secondary higher education program that lasted at least three years. The salay threshold is 1.5 times the average gross annual salary in the concerned EU member state. In the Netherlands the threshold is EUR 60,000. Before an application can be submitted, first the diploma must be recognised by a Dutch organization called International Credential Evaluation (http://www.idw.nl),  which specializes in validating diplomas. A decision on an EU Blue Card application may take up to 90 days.

The Dutch highly skilled migrant program, the Knowledge Migrant Scheme (KMR), will coexist beside the EU Blue Card. Compared to the KMR Scheme, the EU Blue Card procedure is laborious and slow. The KMR Scheme involves a salary threshold only, no skills or education test. The current salary thresholds are EUR 50,619 gross per annum for those aged 30 or over, and EUR 37,121 for those under the age of 30. The processing time for the visa is 2 weeks and for the residence card is 4 weeks.

The EU Blue Card, on the other hand, offers the advantage of some kind of intra-EU mobility after 18 months. The EU Blue Card holder may move, after this period, to another EU Member State for the purpose of employment under the conditions as set out by the EU Blue Card, without first having to request a visa.

Another advantage of the EU Blue Card is that absence of the EU Blue Card holder from the territory of the EU, for a period shorter than 12 consecutive months and up to a total of 18 months, will not interrupt the cumulations of 5 years of legal and continuous residence, after which a long-term (permanent) residence permit may be applied for.

A final note: the United Kingdom, Ireland and Denmark are not participating in the adoption of the EU Blue Card Directive and are not bound by it, or subject to its application.

New Netherlands Legislation

The Employment of Foreigners Act (EFA) demands work authorization for any type of work by a foreign national (non-EU/EEA/Swiss) for companies or individuals in The Netherlands. Non-compliance may result in administrative fines. The applicable amounts are:

  • € 8,000 per employee for employment without adequate work authorization
  • € 1,500 per employee if no copy of the original ID is stored in the company's records
  • 150% of these amounts per employee for a repeated offense

There is no maximum amount; the fine is calculated mathematically on the basis of the number of employees in violation, regardless of how many hours they have worked or what their position in the company was. The EFA prescribes that every violation will be fined, without previous warning.

In case of secondment, both the seconding company and the client that actually employs the foreign worker will be fined; they are both separately liable and payment by one company does not liberate the other. In case of contracted work, even multiple companies can be fined; every company in the chain of contracts, from the principal to the last subcontractor, is liable for the same offense and will be fined the same amount.

The Modern Migration Policy Act, expected to enter into force some time in 2011, introduces another set of administrative financial penalties in addition to the ones noted above. Under this new law, companies will have a duty to inform the Dutch Immigration and Naturalization Service about all relevant changes; must commit to careful recruitment of highly skilled migrants; and must keep any relevant piece of information with respect to the foreign worker on record for a period of 5 years after the employment has ended.

Violations may result in the following administrative sanctions, to be imposed on the company:

  • a warning for a first offense
  • € 3,000 per employee for a second offense
  • € 4,500 per employee for a repeated offense
  • offenses of a very serious nature may result in blacklisting of the company and a temporary or even permanent ban from using the KMS
 
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6. ABIL Webinar Series: U.S. Investment Visas and Green Cards for Foreign Nationals
 

Many foreign entrepreneurs want to start businesses or invest in the United States. Other wealthy individuals want green cards to live in the United States, but may be hesitant because of real or perceived immigration obstacles. Real estate developers and companies seeking capital for development projects are increasingly looking for EB-5 capital from foreign investors. Several visa options exist, but each has advantages, disadvantages, and limits.

A three-part webinar series, presented by the Alliance of Business Immigration Lawyers (ABIL) and co-sponsored by Invest In the USA, the association of EB-5 regional centers, helps guide individual investors and others, as well as U.S. companies that want to attract foreign investors and wealthy individuals. The intended audience includes individual investors; potential and actual EB-5 regional centers; attorneys and advisors; real estate developers; and companies seeking capital for development projects. Each 90-minute webinar in the series explains immigration options and offers practical real-world strategies:

  • Session 1: Visa options for individual investors: E and L nonimmigrant visas; EB-5 green cards through direct investments or regional centers, was held on April 13. (A recording of the webinar is available for purchase.) Moderated by Bernard P. Wolfsdorf. Presenters: Kehrela Hodkinson, Mark Ivener, and Stephen Yale-Loehr. 
  • Session 2: EB-5 regional center applications and project pre-approval petitions, to be held July 6 at 3 p.m. (ET). Moderated by Laura Danielson. Presenters: Bryan Funai, H. Ronald Klasko, and Steve Trow.
  • Session 3: How to successfully navigate the back end of the EB-5 process for both individual investors and regional centers, to be held August 16 at 3 p.m. (ET). Moderated by Steve Clark. Presenters: H. Ronald Klasko, Robert Loughran, and Stephen Yale-Loehr.
All participants will receive a file with the PowerPoint presentation, relevant articles, and resources before each session, as well as a recording of the webinar. The cost is $89 for an individual session or $249 for all three sessions, live or recorded. To register, go to: https://securec9.ezhostingserver.com/abil-com/abil_webinar_signup.cfm. For more information, contact Lauren Anderson at lauren@abil.com or visit http://abil.com.
 
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7. Member News
 

Eugene Chow, Laura Devine, and Marco Mazzeschi were included in Who’s Who Legal's list of "highly regarded individuals." Jelle Kroes was included in Who's Who Legal.

The new Chambers Global 2011 lists various ABIL members in its North America section, including Cyrus Mehta, Mark Ivener, H. Ronald Klasko, Charles Kuck, Sharon Mehlman, Angelo Paparelli, Bernard Wolfsdorf, and Stephen Yale-Loehr. Go to Chambers Global to search for a particular lawyer. Chambers USA 2011 is now also online; go to Chambers USA to search for a particular lawyer.

On June 15, 2011, many ABIL members participated in AILA’s Global Mobility Action Group Forum:

Jacqueline Bart, Jelle Kroes, Mr. Mazzeschi, and Karl Waheed spoke on the difference between business visas and work permits.

Arnold Conyer, Laura Danielson and Daniela Lima presented on practice sponsorship issues in work permit cases.

Ms. Bart and Laura Devine were on a panel regarding the enforcement of immigration laws.

Nicolas Rollason moderated and Enrique Arellano spoke on a panel covering derivative immigration benefits for family members.

Kehrela Hodkinson moderated the Consular Processing Roundtable.

Many members of the Alliance of Business Immigration Lawyers (ABIL) (both U.S. and Global) were named in the “International Who’s Who of Corporate Immigration Lawyers 2011,” including:

Eugene Chow

Laura Devine

Kehrela Hodkinson

H. Ronald Klasko

Marco Mazzeschi

Sharon Mehlman

Cyrus Mehta

Angelo Paparelli

Bernard Wolfsdorf

Stephen Yale-Loehr

 
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