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Pearl Global Immigration NewsFlash
April 2012

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Headlines (Details below)

  • AUSTRALIA — Caution should be exercised when dismissing 457 visa holders; tax benefits will soon be lost for expatriates; and reforms are coming in the employer-nominated permanent entry programs.


  • CANADA — Online and Accelerated Labor Market Opinion (LMO) Program announced


  • CHINA — A new entry and exit draft law has been introduced in China's National People's Congress; it is the first major overhaul of China's immigration law since 1985.


  • FRANCE — More on new restrictions; France implements the EU Blue Card


  • ITALY — Italy implements the Integration Agreement.


  • NETHERLANDS — The Highly Educated Foreigners Scheme is being expanded to include more universities; family reunification rules are being tightened; and the EU Blue Card salary threshold has been announced for 2012.


  • SOUTH AFRICA — Significant amendments to the Refugees Act and the Immigration Act, 2002, are expected; among other things, applying to change a visitor permit to a work or medical permit will be prohibited. Also, those wishing to work in South Africa for longer than three months must obtain an appropriate permit.





AUSTRALIA

Caution should be exercised when dismissing 457 visa holders; tax benefits will soon be lost for expatriates; and reforms are coming in the employer-nominated permanent entry programs.

Caution When Dismissing Sponsored Employees

Sponsors should be cautious when considering dismissal of 457 visa holders. As with their Australian counterparts, 457 visa holders have access to employment remedies under the Fair Work Act. Even where a sponsored employee's employment is terminated under an employment agreement, the dismissal may still be held to be harsh, unjust, or unreasonable. Under Australian immigration law, when a sponsored employee's employment is terminated, he or she has just 28 days to regularize visa status or leave Australia.

If sponsors fail to comply with relevant workplace law, Fair Work Australia may order one of two sanctions: compensation or reinstatement. This could also affect the sponsor's continued ability to sponsor expatriates.

When determining whether a dismissal is harsh, unjust, or unreasonable, Fair Work Australia takes into account, among other factors, whether:

  • there was a valid reason for the dismissal;
  • the person was notified of the reason;
  • the person was given an opportunity to respond to any reason related to his or her capacity or conduct; and
  • the person received a warning about unsatisfactory performance before the dismissal.
Impending Changes to Living Away From Home Allowance Rules

Currently, employees living away from home to perform their employment duties in Australia may be eligible for tax-free benefits for reasonable housing and food costs under the Living Away From Home Allowance (LAFHA) rules. Changes have been proposed to start on July 1, 2011, to address the perceived abuse of these LAFHA tax concessions. As a result of the proposed changes, employers of foreign workers in Australia will need to consider their recruitment and retention strategies, current contracts of employment, and whether to facilitate transition of current sponsored temporary residence employees to permanent residence.

Reforms to Permanent Entry Employer-Nominated Program

The Australian government has announced reforms to the permanent entry employer-nominated visa program to be introduced on July 1, 2012.

Key reforms include:

  • removing the existing distinction between applications with respect to whether they are made by applicants who are in or out of Australia
  • replacing the current requirement of paying nominated permanent resident applicants at least the Minimum Salary Level (MSL) of $67,556 for IT-related occupations and $49,330 for other occupations with the need to pay the market salary
  • raising the upper age limit to less than 50 years; exceptions will apply for certain occupations and persons working in Australia for more than four years who were paid more than A$118,100 as of July 1, 2011
  • increasing the English-language IELTS test result to 6 for all applicants except those already in Australia and working for their nominating employer for the last two years; exceptions will apply for certain occupations, and nationals of five English-speaking countries (United Kingdom, United States, Canada, Ireland, and New Zealand)
  • introducing a single consolidated nominated occupation list (NOL) to replace the current sponsored employee 457 occupation list, the Employer Nomination Skilled Occupation List, and the State and Territory Sponsored Occupation List
  • integrating the permanent employer nominated visas with the skilled independent migrant selection model SkillSelect to be launched on July 1, 2012. Intending migrants who complete an Expression of Interest in migrating to Australia in SkillSelect can also indicate whether they are prepared to be sponsored for temporary residence or nominated for permanent residence by an employer.


CANADA

Service Canada announces changes to its LMO Program.

Effective April 1, 2012, Service Canada will allow LMO applications to be submitted online and most excitingly, offer an Accelerated LMO Process (ALMO). The online service will significantly cut down on paperwork and the ALMO will dramatically decrease the processing times for LMO applications. LMO applications have been taking up to 12 weeks recently, which has been a tremendous burden on companies hoping to bring foreign workers to Canada under the program or extending expiring work permits. Service Canada has promised a 10 day processing time for those companies who meet the following criteria:

  • previously had at least one LMO approved within the last two years;
  • a clean compliance history with the Temporary Foreign Worker (TFW) Program, and are not currently under audit; and
  • not been the subject of an investigation, an infraction, or a serious complaint, and do not have any unresolved violations under provincial laws. Finally, the employer must consent to participate in a subsequent audit process. (Until now, there has been a voluntary compliance program when submitting an LMO).
Companies should take advantage of these changes and check with their immigration provider on how to start submitting applications online and enjoying the accelerated service.


CHINA

A new entry and exit draft law has been introduced in China's National People's Congress; it is the first major overhaul of China's immigration law since 1985.

At the end of 2011, a new draft law on entry and exit administration was introduced in China's National People's Congress for initial review. The draft law was subsequently published for public comments, and is under continuing review and discussion. Once passed, this law would be the first major overhaul of China's immigration law since 1985.

The draft law authorizes the collection of biometric data, such as fingerprints, from individuals seeking entry and exit. It requires that foreigners who stay in China for more than 180 days apply for residence permits within 30 days of their date of entry at local police departments, where applicants' fingerprints will be taken. The draft law also requires foreigners to carry valid identification and register their location of stay at their hotel, or with the local police department if the foreigner does not stay at a hotel.

The draft law signals the Chinese government's intent to crack down on illegal employment and illegal presence in China. It defines illegal employment as providing services for compensation without a work permit and residence permit; providing services outside of the authorized scope; and foreign students working beyond the authorized scope or hour limit. Under the draft law, both employers and foreigners engaging in illegal employment will be subject to monetary penalties. Employees may also be subject to detention. The draft law also provides guidance regarding applications for permanent residence. Similar provisions are currently included in the regulations but not in the law.


FRANCE

More on new restrictions; France implements the EU Blue Card.

More on New Restrictions

The electoral campaign started this year and immigration is a hot issue in France, as it is in most other European countries. With its new anti-business immigration stance, the current government is trying to recapture the voters it may have antagonized by its pro-business conduct in preceding years. Business should be back to normal by the middle of this year, after the presidential and parliamentary elections.

A government circular of May 31, 2011, instructed labor authorities to apply greater scrutiny in adjudicating work permits and to interpret the regulations restrictively, with the aim of reducing the number of foreign nationals being admitted to France for professional purposes. Among other things, labor authorities must evaluate if a foreign worker is under- or overqualified for the employment offered. If he or she is underqualified, the application must be denied. If overqualified, the advertisement must be modified and published again.

Authorities also must verify that: (1) the compensation meets appropriate thresholds as determined by collective bargaining agreements, the market, and minimum salary laws; (2) the candidate has an adequate knowledge of French; and (3) the candidate is provided adequate housing.

The restrictive measures, which have increased processing times for work permits generally, do not apply to work permit categories that receive preferential processing, such as intra-company transfers, secondments, and seasonal workers.

France Implements EU Blue Card

On a more positive note, France has created a new immigration category by implementing the European Union (EU) Blue Card directive to attract skilled workers from third countries and facilitate the mobility and permanent residence of such workers within the EU.

The qualifying criteria are in accordance with the criteria stated in the EU directive:

  1. an employment contract with a duration of one year or more;
  2. a minimum annual salary threshold of 1.5 times the average salary of reference, which is determined by the Minister of Interior on an annual basis. According to the current reference salary (€34,296), this annual salary threshold is €51,444; and
  3. A three-year higher education diploma or equivalent knowledge through five years of experience.
A qualifying third-country national will be issued a joint residence and work permit for the length of employment, with maximum validity of three years. This permit is renewable. An accompanying spouse will be issued a Private and Family Life category work permit, which may be renewed annually for as long as the main applicant has a valid Blue Card permit.

The Blue Card may also be issued to a third-country national who already holds a Blue Card issued by another member state and wants to accept employment in France after 18 months of residence under the initial Blue Card. The application is made within one month of arrival in France. The applicant need not present a long-stay French visa.

The Blue Card permit is issued without labor market testing. Its beneficiary and his or her spouse would qualify for the EU long-term resident permit after five years of residence under the Blue Card in the EU, of which only the last two years must be in France.

French authorities have up to 90 days to adjudicate the Blue Card application and up to six months to adjudicate the accompanying spouse's residence permit.

The advantages of the Blue Card over other categories are:

  • Intra-company prior employment is not required.
  • Mobility within the EU is facilitated.
  • Acquisition of long-term resident status is facilitated.
  • The qualifying criteria are very precise (leaving less room for the discretion of the government).


ITALY

Italy implements the Integration Agreement.

Beginning on March 10, 2012, all foreigners over 16 years of age who enter Italy for the first time and apply for a residence permit with a validity of at least one year must sign an "Integration Agreement" (Accordo di Integrazione) at the immigration office (Sportello unico per l'immigrazione) or at the police headquarters (Questura). The new measures do not apply to those already present in Italy.

The agreement regulates the new points system for the permit of stay. Foreigners are accredited with points or credits based on their level of integration into Italian society.

The main points of the agreement include:

  • Achievement of an "A2" level of knowledge of the Italian language (slightly higher than the basic level);
  • Sufficient knowledge of the fundamental principles of Italian law and public administration;
  • Basic knowledge of Italian public life (e.g., social service, health care);
  • Compliance with work and tax obligations;
  • A guarantee that children of school age attend compulsory education.
From the date of signing the agreement, the foreigner has two years to obtain the required minimum points. This can be extended up to three years if necessary. The Ministry of Home Affairs maintains an official register of all foreigners who have signed the integration agreement. The register indicates points obtained by each foreigner. Any changes to the points will be communicated to the relevant person, who will also have access to the register to check status.


NETHERLANDS

The Highly Educated Foreigners Scheme is being expanded to include more universities; family reunification rules are being tightened; and the EU Blue Card salary threshold has been announced for 2012.

Highly Educated Foreigners Scheme Expanded

The Highly Educated Foreigners Scheme for foreign students will be expanded. Currently, foreign students who have graduated with a master's degree or Ph.D. from one of the universities ranked in the top 150 list from the Times Higher Education Supplement, or from one of the top 150 on the Jiao Tong Shanghai University list, may apply for a residence permit under this scheme. The scheme will be expanded to include the top 200 universities on both lists.

Family Reunification Restricted

The Netherlands will restrict family reunification to spouses, registered partners, and minor children. Unmarried partners and children who are not minors will no longer be eligible for family reunification.

A same-sex partner who is not allowed to marry by law in his or her country of origin may be eligible for a temporary residence permit in the Netherlands for a period of six months. During these six months, the same-sex partners must marry in the Netherlands or form a registered partnership. The Dutch cabinet has agreed with these changes, proposed by the Minister for Immigration and Asylum. They will be introduced in the Dutch parliament soon.

EU Blue Card: Salary Threshold 2012

The salary threshold to be eligible for the EU Blue Card in 2012 is EUR 60,000 (gross) per year (including 8% holiday allowance). This is the same salary threshold as in 2011.


SOUTH AFRICA

Significant amendments to the Refugees Act and the Immigration Act, 2002, are expected; among other things, applying to change a visitor permit to a work or medical permit will be prohibited. Also, those wishing to work in South Africa for longer than three months must obtain an appropriate permit.

Pending Changes to the Work Permit Regime

Outside of refugee movements (which are regulated by the Refugees Act), immigration in South Africa is regulated by the Immigration Act, 2002, and the regulations to that Act. Two significant amendments to each of these Acts are expected. The Department of Home Affairs is revising the regulatory regime underpinning these Acts. These amendments may come into operation in the second quarter of 2012 or possibly as soon as the end of April 2012.

Under the current Act (and even its predecessor), it is entirely lawful for an expatriate employee to travel to South Africa immediately to take up a post, particularly if he or she is the holder of a visa-exempt passport. The employee would enter the country as a visitor and then apply from inside the country for the appropriate work or transfer permit. Even if his or her visitor permit had expired before the main application had been adjudicated and approved, in practice the Department's receipt for the application would serve as a de facto permit to remain in the country. It would not be a de facto "interim" work permit, however.

The new Act expressly provides that, from whenever it comes into operation, a person cannot travel into the Republic as a "visitor" and then, within a week or two, apply for a work permit. The new Act reasons that to say that one is entering the country on the basis of being a visitor when he or she knows that the real purpose is to take up a position constitutes misleading the Department and entering on the basis of misrepresentation. So applying to change a visitor permit to a work permit (or medical permit) will be strictly prohibited. The visitor must instead return to his or her country of ordinary residence (with the family) and apply through the appropriate Embassy for the correct permit.

The new Act provides that "internal" changes of purpose will only be allowed in exceptional circumstances to be defined by the Minister in the new regulations.

Short-Term Deployments to South Africa: No 'Back Door' Work Permits

The South African Department of Home Affairs issued a confidential directive in December 2011 that seeks to regulate the issue of short-term work authorizations. The holders of visa-exempt passports (for example, U.S., Canadian, and European Union (EU) passports) are most affected.

Immigration legislation allowed for persons needing to enter the Republic to work, so long as the work was for no longer than three months. This special category of visitor permit could be obtained upon arrival at a port of entry, so long as the passport was visa-exempt. This type of permit was intended principally for film crews, performing artists, models and support staff, counsel needing to consult with clients, and other such legitimate short-term deployments.

Until recently, the practice had been that upon presentation of a letter from the offshore employer asking for such short-term work authorization, this subcategory of visitor permit would be issued at the port of entry for a period of three months. However, the ease with which this could be done led to considerable abuse. There were instances of people actually working in the Republic on these visitor permits for years by "commuting" home every three months. This, it was thought, allowed the employer to bypass the requirements for an ordinary work permit. The Department of Home Affairs views such practice as immigration fraud.

The new regime has a number of key features. A well-motivated representation must be submitted in writing to the Director General of Home Affairs at least 10 days before the person is scheduled to arrive in South Africa. The Director General must approve the request in writing, and the employee must submit that approval to the port of entry upon arrival. This permit may only be obtained at a port of entry or at an embassy. The permit will not be extended; anyone needing to stay and work for longer than 90 days must instead apply for an appropriate work permit.



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The Pearl Global Immigration NewsFlash 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 Pearl attorney or write pearlglobal@immigrationlaw.com.

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