PLG Global Immigration Update
December 14, 2010
With special thanks to our ABIL Colleagues around the world!
Thanks for entrusting Pearl Law Group and the Alliance of Business Immigration Lawyers (ABIL) for your global business immigration updates. As always, we welcome your comments and questions.
AUSTRALIA — Major Changes to Immigration Programs
The Australian government has made sweeping changes across a number of immigration programs. Following a review of the skilled independent General Skilled Migration (GSM) program and taking into account the impact of the global financial crisis there has been a shift from the supply-driven GSM program to demand-driven employer-sponsored migration. Employer-nominated applications for temporary and permanent residence are now prioritized.
New income threshold and assessment of skills for employer-sponsored temporary residence 457 visas
For employer-sponsored temporary skilled entrants on subclass 457 visas, the income threshold has been increased to A$47,480 per year, effective July 1, 2010. This does not change the need for foreign national employees to be paid at market salary rates. Occupations eligible for sponsorship under the 457 visa scheme have also changed, with applicants in some trade occupations from certain countries now required to have their skills assessed by a relevant Australian assessing body prior to granting a 457 visa.
Prioritized processing for agent-certified employer-nominated permanent residence applications
On October 10, 2010, the Australian government introduced an express pathway whereby immigration professionals who are Registered Migration Agents can certify that applications are fully documented and decision-ready. Certified applications are being processed in one to two weeks. ENS applications lodged prior to October 10, 2010, are taking an average of five months to process, but cannot be moved from the old queue to the new express processing queue.
National Health Waiver in place for ENS
All states and territories in Australia have now joined the Health Waiver program for ENS permanent residence applicants. The Health Waiver program allows applicants to seek a state/territory government-sanctioned waiver to health criteria required under immigration law where the health of the applicant (or a family member) might otherwise lead to visa refusal.
New Skilled Occupation List introduced July 1, 2010, and revised December 5, 2010
A new GSM occupation list for independent applicants issued on July 1, 2010, and was revised effective December 5, 2010. The new Skilled Occupation List (SOL) contains less than half the occupations under the old SOL. As a result of the express one- to two-week processing times for ENS applications, many potential GSM applicants are now looking to their employer to nominate them for permanent residence.
New SOL from July 1, 2011
The Minister for Immigration has announced that the government will overhaul the points-tested GSM program, effective July 1, 2011, with a greater emphasis on high-level English language skills, work experience and degree qualifications from Australia or overseas. The age level for applicants will increase from 45 to 49.
This section was contributed by Katie Malyon & Associates, Lawyers, Australia, www.malyonlaw.com
CANADA — Changes Effective April 1, 2011
Various changes will become law on April 1, 2011, affecting both Canadian employers and their temporary foreign workers. These changes are aimed at reducing the opportunity for exploitation of temporary foreign workers, introducing greater employer-accountability mechanisms and clarifying the temporary nature of employment facilitated through the Temporary Foreign Worker Program.
Rigorous assessment of the genuineness of the employment offer
The amendments establish specific factors to assess the genuineness of an employer's offer of employment to a foreign worker, both in Labor Market Opinion (LMO) cases and in LMO-exempt cases.
Ban on employers for non-compliance with a previous LMO
The amendments will render an employer ineligible to seek a work permit on behalf of a foreign worker unless, during the period beginning two years before the initial request for an LMO is made to Service Canada or, in the case of an LMO-exempt work permit, beginning two years before the work permit application is received by Citizenship and Immigration Canada (CIC) or the Canada Border Services Agency (CBSA):
- the employer provided each of its foreign workers with wages, working conditions and employment consistent with the wages, working conditions and occupation set out in the employer's offer of employment; OR
- the failure to do so was justified.
The assessment is undertaken when a new LMO is requested or, in the case of an LMO-exempt work permit application, when the work permit application is received by CIC/CBSA.
Employers must review all LMO applications to ensure compliance during the two-year period preceding April 2011. An internal immigration audit is recommended.
List of banned employers posted on CIC website—Naming and Shaming
The amendments authorize CIC to maintain a list of banned employers on its website, stating the names and addresses of each employer and the date that the determination was made. Service Canada will not issue an LMO and CIC/CBSA will not issue a work permit for any employer on the list.
Four-year cap applying to most temporary foreign workers
The amendments provide for a cumulative four-year cap on foreign workers until a period of 48 months has elapsed. However, exemptions from the four-year cap exist in the following situations:
- the foreign worker intends to perform work that would create or maintain significant social, cultural or economic benefits or opportunities for Canadian citizens or permanent residents; OR
- the foreign worker intends to perform work pursuant to an international agreement NAFTA GATS or the Canada, Chile and Peru Free Trade Agreements.
A foreign worker who has reached the four-year cap may be permitted to apply for status under a non-work category, such as a visitor or student. Given the foregoing, it will be necessary for employers to ensure that foreign workers who intend to remain in Canada indefinitely apply for permanent residence immediately in order to prevent the refusal of future work permits.
This section was contributed by Jacqueline Bart & Associates, Canada, www.bartlaw.ca
FRANCE — Changes and Clarifications
Visa waiver for short-term work in France
Nationals of Australia, Brazil, Japan, Mexico, Singapore, South Korea, the United States and Venezuela, traveling to France to work for less than three months no longer need to obtain a visa before traveling, so long as they have their work permit with them upon arrival in France.
New measures for employees on assignment and their family
A November 2010 circular from the Ministry of Immigration details the procedures applicable to employees on assignment and their families. The status of "employee on assignment" has existed since 2007 and facilitates mobility within groups for foreign employees sent on assignments or hired in France by a company from the same group as their home employer. Qualifying employees must have more than three months' employment in the group, be coming to France for an initial period of three months to three years, and must be paid at least one-and-a-half times French minimum wage.
Short-term assignments: creation of a specific procedure
The "employee on assignment" status now contains a specific procedure for shorter assignments of less than three months. In an effort to simplify procedures, work permit requests of less than three months that meet the "employee on assignment" criteria will lead to the issuance of twelve-month work authorizations. Visas with multiple entries will also be delivered to those who must obtain visas. The beneficiary can now undertake assignments of up to three months in a six month period, instead of having to request an authorization for each short-term assignment.
Length of "employee on assignment" residence permits
When a work permit authorization under "employee on assignment" status has been granted for a period of more than three months, the residence permit delivered must now be valid for three years. Contrary to practices observed until now, the Préfectures will not be allowed to limit the validity of residence permits when the assignments are planned for a duration of less than three years.
New procedures for application processing
From December 1, 2010, to June 30, 2011, the districts of Paris, Hauts de Seine and Rhône will put in place a new "guichet unique" (single counter) service for the "employee on assignment" procedures. Work authorization requests will have to be sent directly to the Organization for International Investment, which will liaise with the Labor Authorities and Consulates.
The right to work for the spouse of an employee on assignment
The circular restates that spouses of employees on assignment for six months or more are to be given dependant residence permits and are allowed hold a professional occupation while in France. When the assignment of the employee is less than six months, the spouse is to be given a visitor status, which does not permit him or her to work.
Renewal of the "employee on assignment" residence permit
The circular confirms that the residence permit is, in principle, renewable, so long as evidence is provided to show that the initial conditions (terms and compensation) that led to the delivery of the initial residence permit are still being met. However, the text also confirms that the status of "employee on assignment"—seconded, cannot be maintained indefinitely and cannot lead to ten-year residence cards, as that status is temporary in nature.
This section was contributed by Cabinet d'Avocats Karl Waheed, France, www.karlwaheed.fr
UK — Government Announces Permanent Immigration Limit
On November 23, 2010, the Home Secretary, Theresa May, announced the government's plans for a limit on work visas starting April 1, 2011. There will be an annual cap of 21,700 on the number of skilled and highly skilled workers from outside the European Economic Area allowed into the UK.
Tier 1
The Tier 1 (General) non-sponsored route for the highly skilled will be closed. This route is already subject to an interim limit introduced on April 19, 2010, under which only 600 visas have been available globally per month. The Tier 1 (General) monthly limits were filled on the day on which they were released, December 1, 2010.
A new Tier 1 route for persons of exceptional talent will be introduced. This will cover migrants who have won international recognition in scientific and cultural fields, or who show sufficient exceptional promise to be awarded such recognition in the future. Applications by those with exceptional promise will need to be endorsed by a competent body in the relevant field. The exceptional talent category will be subject to a limit of 1,000 places.
Tier 2 (General)
The Tier 2 (General) route will be subject to an annual limit of 20,700 places for 2011/12.
The limit will not apply to in-country applications from those already in the UK, or their dependents. Nor will it include Tier 2 (General) new hires who are filling a vacancy with a salary of more than £150,000. The Tier 2 (Sportsperson) and Tier 2 (Minister of Religion) routes will also be exempt from the limit.
Starting April 1, 2011, Tier 2 (General) applications will be restricted to graduate-level vacancies. The Migration Advisory Committee will advise the UK Border Agency on what are to be considered graduate-level jobs and the graduate occupation list will be amended accordingly. Existing Tier 2 (General) migrants in jobs below graduate level will be able to extend their permission to stay if they meet current requirements.
The minimum level of English language competency will be increased from basic to intermediate level (B1 on the Common European Framework of Reference).
Applications for certificates of sponsorship will, where the limit applies, be considered on a monthly basis. If the monthly allocation is oversubscribed, applications will be ranked according to whether they are for shortage occupations, since the post requires higher academic qualifications and salary.
Potential workers who are granted a certificate of sponsorship will have three months in which to apply for a visa.
Tier 2 (Intra Company Transfers)
The limit will not include those applying under the Tier 2 (Intra company transfer) category. Intra-company transferees in the "Established staff" subcategory paid more than £40,000 will be able to stay in the UK for up to five years; those paid between £24,000 and £40,000 will be able to enter for up to 12 months within a specified period. The current rules will continue to apply to Tier 2 (Intra Company Transfer) migrants in the "Graduate trainee" and "Skills transfer" sub-categories.
Settlement
There will be a new criminality threshold, requiring applicants to be clear of unspent (unexpunged) convictions, for all those applying for settlement (permanent residence).
Tier 1 and Tier 2 migrants applying for settlement will need to meet the salary criteria that applied when they last extended their permission to stay and will be required to show English language skills, in addition to current knowledge of Life in the UK.
This section was contributed by Kingsley Napley LLP, UK, www.kingsleynapley.co.uk
The above update is provided for information purposes only. All contributors are members of ABIL, the Alliance of Business Immigration Lawyers, a global network of specialist business immigration firms. www.abil.com
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The PLG Global Immigration Update provides periodic alerts about noteworthy developments in business and corporate immigration and related topics. It is provided as information only and is not a substitute for legal counsel. If you have questions about the NewsFlash, please contact your PLG attorney or write plgglobal@immigrationlaw.com.
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