Global Immigration Newsletter Autumn 2013 - PwCRepublic to remain compliant with EU directive which...

www.pwclegal.co.uk

Global Immigration Newsletter Autumn 2013

PricewaterhouseCoopers Legal LLP

Global Immigration NewsletterAutumn 2013

As the autumn weather reaches us here in London and leaves begin to carpet our streets and roads, we bring you the latest updates from our global network over the last quarter. There have been many changes and we are seeing a trend of many countries placing measures in place to attract high-net worth individuals, for example in the Netherlands.

We have introduced a ‘Quarterly Focus’ section which will focus on a different topical issue that we feel is increasing in importance. This quarter’s section is all about the increase in immigration compliance that we are seeing globally.

Whilst this newsletter provides you with an overview of all updates around the globe, we wanted to draw your attention to the various regional newsletters that PwC produces globally and so we have included details on these regional publications on page 13

We hope, as always, you enjoy reading through the various updates and please do not hesitate to get in contact should you have any queries at all.

Regards,

PwC LegalGlobal Immigration Team

Introduction ContactsStephan JudgeSenior Manager+44 (0)20 7212 [email protected]

Frédérique MontaltiSenior Manager+44 (0)20 7212 [email protected]

Stephanie OdumosuSenior Associate+44 (0)20 7212 [email protected]



Immigration continues to be a hot topic in many countries globally as we see governments placing a greater emphasis and heightened scrutiny on the immigration compliance practices of companies operating within their jurisdictions.. We have provided two recent case studies with regard Israel and the USA to illustrate just how strictly governments are currently clamping down on instances of non-compliance.

You can find further examples of renewed clampdown on immigration compliance in the wider newsletter, and in particular the updates for Uganda and Tanzania.

The Israeli government has increased the performance of unannounced worksite inspections of both local and multinational companies throughout the country. A landmark inspection was made at a worksite in Kyriat Gat and this received widespread reporting in the national press. It is understood that this company had employed 22 foreign engineers and technicians from Singapore and the United States through a contractor for a temporary assignment without any of them having valid work permits. The foreign employees were taken for interrogation during which time they were asked to leave Israel within a week.

Employers are increasingly being audited for full compliance with Israeli immigration and labour laws, where immigration documents relating to foreign employees and business visitors are checked. Employers and employees may be subject to deportation, imposed restrictions on work visa privileges and in more serious cases, criminal sanctions.

We urge our clients to review their foreign employee population, including contractors, working in their offices, to ensure they are in possession of appropriate visa/permit for the purpose of the activities. They must also carry their passports with them at all times

Quarterly focus...Compliance

The US government has recently announced on 29 October the largest ever settlement for non-compliance with immigration laws and an Indian IT outsourcing firm has agreed to pay a fine of $34 million USD and to be subject to outside monitoring.

The Indian firm had allegedly been sending foreign employees in to work on a business visa (B-1 business visa), instead of obtaining the appropriate work visa (H1-B visa). Erroneous immigration documents, which the Indian firm began correcting, are also being investigated.

With the current trend of increased immigration compliance and worksite enforcement, it is important that clients take a proactive and serious approach in ensuring on-going compliance with immigration-related laws and regulations.

We advise clients to focus on ensuring that they have robust policies and processes in place. HR and Global Mobility professionals should also ensure they keep up to date on any key immigration changes in jurisdictions that the frequently send foreign employees to in order to ensure that their they are able to plan accordingly to meet changing immigration requirements.

Israel United States of America


Countries

Australia

Costa Rica

Mexico

USA

Peru

NetherlandsPoland

Estonia

Turkey

Singapore

IndiaVietnam

Belgium

United Kingdom

Ireland

Spain

Tanzania

Ghana

Uganda

Canada

Switzerland

GermanyCzech Republic


Your country information

Australia

From 23 November 2013, Labour Market Testing will now be required as part of the subclass 457 visa program. Where applicable, business sponsors will now need to provide sufficient evidence of their attempts to fill a vacancy with an Australian worker, when lodging a position nomination.

The majority of professional occupations currently approved for the 457 visa program will be exempt from this new requirement, although this ‘skills based’ exemption will be removed if there have been any redundancies in the sponsor’s business for the same occupation, in the four month period immediately prior to lodgement of the application. In those cases, Labour Market Testing would need to be conducted after the redundancies and information relating to the redundancies themselves would also be required. The occupations which are

subject to Labour Market Testing include engineers, nurses, trades and technical workers. Where Labour Market Testing applies, sponsors may provide evidence of recruitment attempts for the same occupation which have occurred at any time in the previous 12 month period, and the same evidence may be relied on for more than one application.

The evidence which may be provided to support this requirement includes details of any paid or unpaid advertising, advertising conducted through social media channels (Facebook, LinkedIn), recruitment undertaken by an external party such as a recruitment agency, or advertising placed directly on a sponsor’s website. We urge all our clients to plan carefully in order to accommodate these new changes.

Business sponsors will need to ensure that redundancies and retrenchments are recorded and disclosed to relevant internal parties with responsibility for recruitment

and immigration matters. It is also timely for business sponsors to identify how recruitment efforts can be monitored and recorded for future use if required, to ensure minimal delays in accessing the 457 visa program in the event that Labour Market Testing is requested.

There will also be additional exemptions available in cases of natural disasters, where the nominee would be assisting with disaster relief or recovery efforts, or where it would be inconsistent with one of Australia’s international trade obligations to require this. One example of this is where the nominee is a current employee of an associated entity of the sponsor and that associated entity has operations in an Association of Southeast Asian nation (ASEAN) country, Chile or New Zealand.


required to be paid for each position. This creates a need for very careful planning when seeking to bring a foreign national and these increased processing times should be taken into account.

Costa Rica

A new memo has been published outlining those nationals who will require an entry visa to enter Costa Rica. It also stipulates the maximum duration of stay permitted for each nationality under visitor status. Those who are only permitted to stay for less than 90 days will have the opportunity to extend their duration of stay should they submit certain documentation, including proof of sufficient funds whilst in Costa Rica, during this period. Those nationals permitted to stay for 90 days are not permitted to extend their stay under

Belgium

Work permit exemptions for family members of EEA nationals are no longer based on an existing family link (eg. spouses, children) and instead will now be directly based on the type of residence permit which the non EEA family member holds.

Work permit exemptions for those undertaking obligatory internships in Belgium have increased. Previously, it was only possible to be exempt from a work permit where the internship was linked to studies followed by students at a Belgian educational institution. This has now been widened to include those undertaking obligatory internships which are linked to studies at educational institutions across the EEA and Switzerland. This should widen the pool of interns available to companies in Belgium.

Canada

Canadian nationals are now able to obtain new ePassports and the passports will be valid for a period of either 5 or 10 years for the initial applications and consequent renewals. The passports are equipped with biometric data. Passport issuance now falls under Citizenship and Immigration Canada whereas it previously fell under the Department of Foreign Affairs and International Trade.

A number of changes have been introduced to the labour market opinion (LMO) application process. There is a new language assessment factor, and English and French can be identified as a job requirement in advertisements and LMO requests, unless it can be shown that another language will be essential for the position. Employers will also need to make increased efforts to hire workers from the local Canadian market before they will be eligible to apply for permission to hire temporary foreign workers and they will need to have advertised an available position for at least four weeks before applying for an LMO. Whilst the LMO is processing, they are also required to continue to actively seek qualified Canadians to fill the role. There have been changes made to the application form and an additional application fee that is

visitor status. This new rule demonstrates a move to rigidify the country’s immigration rules and we urge all clients to seek advice ahead of making any tourist or business travel to the country.

Czech Republic

The immigration process will be simplified in order to address critical labour shortages in certain professions and further reduce the administrative burden associated with the immigration process, both on the side of the employee and the employer.

A new type of residence permit known as the ‘employee card’ will now be issued by the Ministry of Interior. The employee card will have a dual purpose and will act as both the residence and work permit. These changes are in order for the Czech Republic to remain compliant with EU directive which stipulates that there must be a consistent approach in issuance of residence permits in all EU countries. The new ‘employee card’ will replace the Czech ‘green card’ which is currently in operation. PwC Czech Republic is expecting this amendment to come into place early 2014 and they are closely monitoring the details surrounding the implementation.


Estonia

Changes have been implemented to simplify the process for foreign students and highly-skilled specialists coming to Estonia. It will now be easier for those who can evidence that they are making a contribution to the development of society. Estonian companies will be able to recruit highly-skilled specialists provided that evidence can be provided that they their roles are not able to be filled by those on the local job market within a specified period. The following categories of specialists will be able to apply for registration of short-term employment in Estonia under the expedited process: teachers or lecturers in an educational institution which complies with certain requirements; scientists undertaking

scientific research and so-called ‘top specialists’.

In order to qualify, the highly-skilled specialist must be paid at least double the Estonian average salary amongst other key requirements. This shows a move by Estonia to attract highly talented individuals into the country.

Germany

Spouses of work permit holders in Germany are now able to enjoy unrestricted permission to work once they are resident in Germany. Their valid dependant visa or dependant residence permit (stating "Erwerbstätigkeit gestattet"), entitles them to work and so they will not require any separate work permission. They will not require any separate work permission. Previously spouses were only able to obtain work permission in exceptional cases, for example where their partner was an EU blue card holder or a permanent residence permit holder. This change will provide spouses with more flexibility in the German labour market than even the main applicant given their residence permits are not tied to a specific employer. This change shows further evidence of the more open and flexible approach that the German authorities are taking.

Ghana

Recently there has been public outcry regarding the number of foreign nationals engaged in illegal gold mining in Ghana. Their activities are supposed to be resulting in the destruction of Ghana's forestland and natural water resources. The Ghana Immigration Service (GIS) recently deported some foreign nationals who were engaged in such activities and there has also been pressure applied on the GIS to take necessary action to ensure that Ghana's immigration laws are complied with. We expect the GIS will be more vigilant in scrutinising the entry of immigrants at Ghana's ports and borders so we urge our clients to be all the more

prepared when planning on bringing foreign nationals into the country and to ensure good records are being kept.

New rules recently made it mandatory for applicants of work and residence permits to obtain a non-citizen national identification registration card and employers must ensure that their employees are fully registered upon arrival to Ghana.

PwC Ghana has not experienced any negative impact so far on the changes related to the granting of permits as the GIS are still processing applications within the normal time frame. We are continuing to monitor the situation


India

There have been a number of changes regarding the Indian immigration landscape over the last quarter. Firstly, the Foreign Regional Registration Office (FRRO) in Hyderabad is now requesting that employers submit proof that they have tried to recruit a local worker before hiring a foreign national. Other FRRO’s throughout India have also made the same requests, however this to date has not been applied on a consistent basis. Registering with the FRRO should occur within 14 days of entry to India for an assignment over 180 days or upon the extension of an on-going assignment. We advise our clients to ensure that they are able to evidence local advertising when employing and seconding foreign nationals as should this not be the case, those seeking to register may not be able to do so within the 14 day deadline and may experience compliance issues or difficulties in exiting.

Changes have been made in a bid to make all visa related services more efficient. Instead of individuals approaching the Ministry of Home Affairs (MHA), they should instead approach the FRRO in the first instance. The aim is for the MHA to remain a separate arm which can be approached to deal with more complex

matters and as an escalation point. It is worth noting that additional supporting documentation is now required.

Proposals to make tourist travel and some business travel easier in India have intensified. The proposed changes are due to expand the number of countries that will qualify for a visa on arrival for tourists and additionally make it easier for business travellers entering for conferences. Currently only nationals from Finland, Indonesia, Japan, Luxembourg, New Zealand, Singapore and Vietnam qualify for a visa on arrival and this is provided that they arrive at certain specified locations in India. It is also expected that the requirements for employment visas and business visa will be simplified. These changes are a bid to increase tourism and short-term travel into the country in order to remain attractive destination for foreign nationals.


Ireland

The Atypical Working Scheme, aimed at short –term workers, came into effect this autumn. The scheme aims to clarify the confusion that surrounds short-term workers who are not eligible for employment permit or business trip permission. Permission to work in Ireland will be granted to a non-EEA national for a period of up to 90 days provided the employment is not in respect of an occupation considered to be ineligible for an employment permit by the Department of Jobs, Enterprise and Innovation (DJEI). The scheme will apply to non-EEA employees who will be in Ireland for between 15 and 90 consecutive calendar days but would otherwise require work permission or are carrying out a trial period of employment before accepting a full position. There are restrictions to the scheme and those who would normally require full work permission will only be granted permission to remain in Ireland for up to 90 days where the contract/transfer between the foreign employer and the Irish based entity is for a period between 15 to 90 days. Where the applicant is successful, the permit will be granted on the basis that the employee’s contract of employment will continue to be with the foreign employer. Only one

application per person in a 12 month period will be permissible.

The immigrant investor programme, which was introduced in April 2012, to encourage entrepreneurs to invest in Ireland was amended this summer in order to make the scheme more attractive to prospective investors. Under the scheme, successful applicants and their dependant family members are granted permission to reside in Ireland for an initial period of two years which may subsequently be renewed for a further three years, subject to the applicant meeting certain conditions. The changes include: a 50% reduction in the investment threshold for the Government Bond option from €2m to €1m, a 50% reduction in the enterprise investment requirement from €1m to €500k and the creation of a new category of investment in a managed fund which would invest in Irish businesses and projects amongst other key changes.

Plans for a common UK & Ireland travel visa are intensifying and recent reports indicate that the governments of each respective country are working towards piloting the project before the end of the year in a bid to boost tourism figures in both countries.

Since September 2013, the qualifying period of proof of relationship for non-EEA partners of employment permit holders/valid immigration permission holders has been reduced from four years to two years in line with the requirement for partners of Irish nationals. The application process is also set to become more streamlined and rigorous with more detailed support documentation required.

Mexico

Those applying for residence permits may experience delays as the immigration authorities have now begun contacting employers that have recently filed work permit applications to scrutinise the

applications. Should the employer not be able to be reached or should the information provided not be sufficient, employers may see rejections and / or delays in the processing times until the necessary information has been provided. We advise all our clients to ensure that their local company representative can be reached should the agency wish to contact them and they should be amenable to their requests. A representative of the Immigration Authority may come to visit the offices of the company to verify the information given. We understand this to be a temporary measure implemented to counteract some of the compliance issues that were prevalent at the start of 2013.


Netherlands

A new type of Dutch residence permit has been introduced for foreign investors and those wishing to apply will need to at least meet one of several conditions including investing a minimum of 1,250,000 EUR (approx. 1,050,000 USD) into a company established in the Netherlands. There must be no indication that the capital has been obtained in a fraudulent or unscrupulous manner and a Dutch specialist organisation in addition to a Dutch account must verify this point. The residence permit will be issued for an initial period of one year and no separate work permit is needed for the individual to work in the country. This shows a move to attract high-net worth individuals into the Netherlands.

Peru

During the last Pacific Alliance meeting, which is the new Latin American trade bloc consisting of Chile, Colombia, Mexico and Peru, the members agreed to develop migratory benefits among their members in order to promote business and investment. As a result, nationals of these countries will no longer require tourist visas to enter any Pacific Alliance member countries. Peru has also agreed to no longer require nationals of any of these

member countries to obtain a business visa. We are awaiting further detail regarding the implementation of these changes and will update clients as and when we receive further details.

Poland

The process for obtaining an address registration certificate (“zameldowanie”) in Poland has been simplified and it is no longer required to register EU nationals for short-term temporary stays not exceeding three months in Poland. The deadline for obtaining the address registration certificate was also extended and the registration certificate must be obtained within 30 days of the foreign national’s arrival into Poland. Registration formalities do not need to be completed in person by the applicant. This previous deadline was within 4 days of arrival to Poland. There is also no obligation to de-register from a former place of residence in order to register at a new place of residence as was previously the case. These changes are a welcome move to create a more straightforward process for EU nationals wishing to relocate to Poland to live and work.

Singapore

New rules have been announced in order to give fair consideration to Singapore nationals before they will approve and grant Employment Passes for foreign workers. These new rules known as the “Fair Consideration Framework” will come into effect next summer and will require employers to advertise the job prior to submitting an Employment Pass application. Smaller companies with 25 or less employees or jobs paying a fixed monthly salary of SGD 12,000 (approx. 9,650 USD) and above will be exempt from the advertising requirement. The minimum salary requirements have also been increased from 3,000 SGD (approx. 2,400 USD) to 3,300 SGD (approx. 2,650 USD). This all shows continued efforts from the Singapore authorities to reduce the reliance on foreign labour and to strengthen their own local workforce.


Spain

New rules have come into place in order to further attract talent and investment to Spain and to facilitate and streamline the granting of residence permits for those coming into the country under the following categories: investors and entrepreneurs, highly-qualified professional, researchers and intra-company transferees. Though people in these categories are already able to obtain permission to work and reside in Spain, these new rules will make the process simpler and quicker. Investors will be able to obtain a residence visa for a year initially and, if applicable, a two year residence permit which will be renewable for a further two years. The investments made by them should either be in the form of a 500,000 EUR (approx. 670,000 USD) property investment, 2,000,000 EUR (approx. 2,675,000 USD) investment in Spanish public debt, or 1,000,000 EUR (approx. 1,340,000 USD) in a Spanish company's share capital. Entrepreneurs will be able to apply for a one year residence visa in order to start up a new business. Companies applying for work permission for highly qualified employees and intra-company transferees will see the requirements have been significantly reduced and the processing times are have

been reduced. Implementation of these new rules are still being finalised and PwC Spain are closely monitoring the situation.

Switzerland

As the end of the year draws closer, the quotas for B and L permits for non-EU nationals will soon be reached in most cantons in Switzerland. As such, it is very likely that only high level managers will be issued a B permit in the coming weeks, provided that there are B permit quotas left at the time that the application will be filed. Vaud, Geneva, and Zurich cantons seem to be fast reaching their limits.

Should the work permit quotas be fully reached in a canton, companies may either wish to wait until 1 January 2014 when the new quotas will be released or explore alternative options. Please do reach out to your PwC contact should you require further details on this.

Tanzania

A new law is due to come into force next year and is expected to impose further restrictions on foreign employees coming to Tanzania to fill positions that could be filled by a local workers. Work permits will now only be issued by the Labour Department and already we are seeing a new stricter approach being implemented by them in that we are seeing an increased in work permit rejections on the grounds that the role could be filled by a local worker. We advise our clients to plan carefully when selecting foreign nationals to go on assignment to Tanzania and strong evidence that the role will not be able to be filled by a local worker will be required.

Turkey

The residence permit application process in Turkey is often very long-running and

in Istanbul, where the workload of the main police station (Vatan Emniyet) is particularly heavy, there may be long delays with the issuance of residence permits. This is not just limited to residence permits linked to work and dependant permits. We expect these delays to increase towards the end of the year due to holidays and high demand during this period. Further to this, the personal presence of the applicant may soon be required during the residence permit application process in order for representatives from the police station to obtain information for pending applications, as third parties may no longer be able to request information about pending applications even if they have a power of attorney. We will continue to monitor the situation.

New rules due to come into effect next spring will mean that foreign nationals who own property in Turkey will be eligible to apply for temporary residence permit. These residence permits will be able to be extended provided certain conditions regarding the property ownership are satisfied.


Uganda

New rules have come into force which will revise all immigration fees for a number of different permits in Uganda. The last time these fees were last revised was in 2009. Most notable is the fee for the Class G work permit for foreign employees, which was increased from 600 USD per year to 1,000 USD per year from 1 July 2013. These increases, in addition to other strict requirements for obtaining work permits, that have been introduced over the last few years’ highlights the stance of the Ugandan government, who wish to advance the employment of Ugandan citizens. These additional requirements and increased fees are also expected to address public concerns over illegal immigration and employment of foreign nationals into roles which could be performed by local workers.

Penalties for illegal stay have been increased from 30 USD per day to 100 USD per day in a bid to deter illegal immigration further.

Airlines and carriers who transport those not holding the correct immigration permission will face penalties of 3,000 USD per passenger. This is a new penalty and will obligate airlines and carriers to carry out stringent checks on the travel documents of their travellers before allowing them to board flights going

to Uganda. PwC Uganda are closely monitoring how this penalty is going to be enforced, considering that most foreigners can enter Uganda as visitors or tourists by obtaining visas on arrival at the port of entry to Uganda.

United Kingdom

The Immigration Bill was published on 10 October 2013 and the Immigration Minister, Mark Harper, has commented that the main aim is to make the UK the least attractive location for illegal migrants. A huge emphasis has been placed on compliance. The Civil Penalties Consultation opened this summer for 6 weeks and findings could be implemented by secondary legislation early 2014. The government received a huge amount of responses from both private and public sector employers. The consultation wishes to simplify civil penalties calculations and to increase the penalty amounts. The changes include increases to the fines that employers could be fined, tougher conditions making it more difficult for illegal migrants to enter into rental agreements, get married, and obtain bank accounts and driving licenses. There will also be a burden placed on banks and landlords to ensure that the correct checks are carried out and fines for any non-compliance identified.

USA

The US immigration authorities have been requesting further documentation in support of L-1 applications beyond the mandatory requirements. To date there has been no uniform approach to the application of requests or to the extent of the additional documentation requested. In a recent application for an L-1 application the authorities requested a detailed training program for the applicant while on another case, they requested the resumes and qualifications of the subordinates of the main applicant. We advise that our clients are alert to these further requests for information or documentation which may be likely to be made for future L-1 applications.

Vietnam

A new technical workers category has been introduced in addition to new exemptions on foreign workers and assignees. Those wishing to take advantage of the new technical workers category will need to evidence at least one year of study or training and at least three years of work experience on their professional field. Previously, work permission in Vietnam was limited to just managers, executives and experts. There are now more instances where foreign workers in Vietnam are exempt from work permits and these include volunteers, teachers at international schools under diplomatic mission management amongst others. Those wishing to take advantage of this route should contain written confirmation from the Department of Labour at least seven days prior to when they wish to start work. There are some new documentary changes and a reporting requirement placed on employers requiring them to set out their needs for foreign workers each year. They must now annually report to the People’s Committee, details on each position for which the company is not able to find a suitable local candidate and so wishes to fill it with foreign worker which means a slight increase in the bureaucratic burden.


Due to the expansive size of our network, many of our regional hubs circulate newsletters which focus in more depth on immigration updates and issues relevant to these regions. Should you have an interest in any of these specific regions, please reach out to the relevant contact to arrange being added to the circulation for these publications.

Regional Newsletters

Asia Pacific NewsletterJenny Lee, Manager, [email protected]

Africa NewsletterKimona Chetty, Manager, South [email protected]

Brazil NewsletterEduardo Depassier, Senior Associate, [email protected]

UK NewsletterAndrea Als, Manager, UK [email protected]


This publication has been prepared for general guidance on matters of interest only, and does not constitute professional advice. You should not act upon the information contained in this publication without obtaining specific professional advice. No representation or warranty (express or implied) is given as to the accuracy or completeness of the information contained in this publication, and, to the extent permitted by law, PricewaterhouseCoopers Legal LLP, its members, employees and agents do not accept or assume any liability, responsibility or duty of care for any consequences of you or anyone else acting, or refraining to act, in reliance on the information contained in this publication or for any decision based on it.

© 2013 PricewaterhouseCoopers Legal LLP. All rights reserved. PricewaterhouseCoopers Legal LLP is a member of PricewaterhouseCoopers International Limited, each member firm of which is a separate legal entity.

Global Immigration Newsletter Autumn 2013 - PwCRepublic to remain compliant with EU directive which...

Documents

Transcript of Global Immigration Newsletter Autumn 2013 - PwCRepublic to remain compliant with EU directive which...