Immigration Global Newsletter: June 2014

Transcription

1 Immigration Global Newsletter: June 2014 FEATURE ARTICLE: ENTREPRENEURS AND INVESTORS: A COUNTRY-BY-COUNTRY OVERVIEW This article provides an overview of how various countries attract entrepreneurs and what types of immigrant investment programs exist. A link to an international comparison chart is included. COUNTRY UPDATES: 1. CANADA A new permanent residence cap opened May 1, 2014, for 50 occupations. 2. FRANCE The European Parliament and the Council of the European Union have adopted a directive, with implications for France, that provides for an EU-wide immigration status for posting assignees from affiliates outside the EU to affiliates within EU. 3. GERMANY Various developments have been announced. 4. ITALY Various developments have been announced. 5. RUSSIA Online applications for foreign labor are now available; changes are effective for processing of visa extension applications. 6. SOUTH AFRICA There have been major changes in South African immigration law and regulations. 7. UNITED KINGDOM Various developments have been announced. Back to Top ENTREPRENEURS AND INVESTORS: A COUNTRY-BY-COUNTRY OVERVIEW This article provides an overview of how various countries attract entrepreneurs and what types of immigrant investment programs exist. An international comparison chart is available at s_(henley).pdf. The authors thank Henley & Partners for allowing ABIL to reprint its chart. Belgium Belgium does not have specific immigrant investment programs. As a general rule, entrepreneurs and investors need a permit before starting business activities in Belgium, as either an employee (work permit) or self-employed (professional card). However, some individuals planning to make a significant investment in Belgium may benefit from a preferential application procedure. This informal and discretionary process, which is not in the regulations, implies that some investors may be exempt from obtaining a work permit before applying for a temporary resident visa for up to 8 months, with the possibility to

2 extend. These investors still need a work permit or professional card, but can complete the procedure to obtain the required permit in Belgium. Brazil An investor visa may be granted to a foreign national who wants to come to Brazil to invest his or her own foreign capital in Brazil in productive activities. The foreign national must prove the investment of a minimum of the equivalent, in foreign currency, of R$ 150, In special situations, if the investment is lower than the equivalent of R$ 150,000.00, the National Council of Immigration will analyze the application. That agency has the authority to assess the importance and social relevance of the project and may, based on such analysis, render a decision granting a visa to the foreign national. In either case, the candidate must submit an Investment Plan, with a detailed and clear account of the use of the invested resources, including: Business definition: Business sector and location Description of intended services Investment objectives and date of beginning of operations Investment objectives: Business sector and location Related technology and services Government programs and locations Current partners, if any Operational market Business development strategy Creation of jobs and revenue: Employment plan for the first three years of operation (number of employees and positions) Intended salaries Planned investment for training and qualification of employees Financial plan: Description of the investment plan The most important of the topics to be included in the Investment Plan is the creation of jobs and revenue. The creation of jobs must occur during the first year after the work permit is approved. Although indirect jobs may be counted, the company where the direct investment will be made must create direct jobs. Other topics increase in productivity, assimilation of new technology, and fund-raising for specific sectors are criteria that complement job generation. Other points considered in the analysis of the Investment Plan are its consistency (i.e., the lack of any incoherence, diverging or non-confirmed information, or contradictory assertions) and the candidate s curriculum vitae (special attention is given to the candidate s professional experience in relation to the intended investment). The visa is conditional for the initial three years. Renewal of the RNE (Registro Nacional de Estrangeiros) and an unconditional permanent visa can be obtained provided that the foreign national proves at the end of such term that he or she remains as a foreign investor, 2

3 the investment plan was complied with, and the project generated the job positions for Brazilians that were projected in the original visa application. Canada On February 11, 2014, Canada s Economic Action Plan (EAP) announced the government s intent to terminate both the Federal Immigrant Investor Program (IIP) and Federal Entrepreneur Program (EN). In doing so, it plans to eliminate several thousand backlogged applications. The IIP and EN programs have been cornerstones of Canada s business-oriented immigration programs. In 2011, approximately 10,000 immigrants entered Canada through the IIP, while almost 1,000 entered through the EN. Although the programs have been longstanding business immigration programs, in recent years they suffered from significant backlogs in processing. Investors, for instance, had to wait at least 54 months for visa issuance, while many entrepreneurs faced even longer processing times. The current inventory of backlogged applications for the IIP stands at 65,000. Citizenship and Immigration Canada (CIC) anticipates that it would take more than six years to process these cases. To move forward with programs that will more accurately capture the types of investors needed in Canada, CIC has decided to eliminate many of the files currently in the backlog. However, to date, no official announcement has been made as to which applications will be processed and which applications will be returned to the applicants. CIC pointed out in its press release that the minimum investment amount for IIP applicants, which is $800,000, is significantly lower than that of investor programs in countries such as the United Kingdom, Australia, and New Zealand. It also noted that investors who arrive in Canada are likely to pay lower taxes than immigrants who come to Canada through programs such as the Federal Skilled Worker Program. In its backgrounder, CIC explained: The existing IIP is of limited economic benefit to Canada. There is very little new money coming into Canada. Almost all initial investments made through the program come from loans from Canadian banks to provincial governments. The amount of IIP capital actively invested in economic development initiatives has been disappointing. The requirement for provinces to guarantee repayment of IIP investments after five years limits their ability to invest funds into more high-risk initiatives that tend to reap greater rewards for Canada in terms of true innovation and job creation. Fifteen years after provinces and territories were factored into the equation, less than half of the funds are actively invested. 3

4 By doing away with the current IIP and EN programs, the government will pave the way for new pilot programs that will actually meet Canada s labour market and economic needs. These pilot programs will enable Canada to remain competitive in the global economy. The pilot programs will complement the Start-Up Visa program, a former pilot program that is now a permanent part of Canada s immigration system. This program links immigrant entrepreneurs with experienced private sector organizations who are experts in working with start-ups. Two additional programs have already been mentioned as replacements for the IIP and EN streams. One will be a new Immigrant Investor Venture Capital Fund and the other a new Business Skills Program. Details of the new pilots will be announced in the coming months. Most Canadian provinces have created provincial nomination programs (PNPs) as a means of attracting applicants who are likely to make an immediate economic contribution to the province. These programs are tailored to respond to the economic needs of a given province. To apply for permanent residence under a PNP, an applicant must first be nominated by a province or territory. Each province and territory has established its own requirements and nomination procedures. In general, each of the provinces and territories seek to attract applicants who have skills, education, and work experience that will contribute to the economy of that province or territory. The Canadian province of Québec manages its own Investor Program, which requires net assets of at least CAD $1.6 million legally acquired, management experience, and a nointerest loan of CAD $800,000 made to Québec for a five-year period. The Québec Investor Program remains open to French-speaking applicants who have an advanced intermediate level of French as evidenced by a recognized French test. France France offers permanent residence to international investors who invest at least 10 million in productive assets, or create at least 50 new jobs or save 50 jobs in danger.. Productive assets are those assets that produce work and other human activity. These assets cannot be stocks, bonds, or other investment vehicles producing passive investment income. This very high threshold may be lowered by the prefect of the department hosting the investment, taking into account the economic need of that department. This program, called the Extraordinary Economic Contribution scheme, has been in place since The number of applicants benefitting from this scheme since 2009 is estimated to be between zero and two persons over the last five years. The government has announced the probable abrogation of this scheme without suggesting the creation of a new one with lower thresholds. In the absence of a better program, foreign entrepreneurs are best served under the Talents and Skills scheme, which was initially created as a broad effort to attract highly qualified workers, professionals, artists, and sports people. Its scope was large enough to accommodate entrepreneurs with a less ambitious business plan showing an investment in 4

5 productive assets of 300,000, the creation of two jobs, or the creation of a French subsidiary of an existing foreign parent company. This scheme is cumbersomely managed by a vast steering committee. The government has announced that this scheme is likely to be abrogated in favor of a new one, referred to as a Talent Passport. The goal is to be more efficient in enhancing the attractiveness of France to foreign talent and investment. The Talent Passport is targeted to begin in 2015 and will cover several existing immigration categories. The new scheme will allow a beneficiary to obtain four-year renewable resident status. The criteria have not yet been defined. Foreign nationals who wish to live in France as Long-Stay Visitors may do so by showing that they have adequate means of foreign-source revenues and that they will not be potential job-seekers in France. This is the case of foreign nationals receiving dividends, royalties, pensions, or income from passive investments. The long-stay status is renewed annually and may lead to permanent residence after five years of continuous residence. Germany Given the lack of any investor visa category, investors from third countries must comply with the immigration laws related to self-employment. Any third-country national must file an application for a residence permit to take up an economic activity (including employment and self-employment) in Germany. For self-employment, 21 of the German Residence Act includes certain restrictions on the grant of residence permits. Under this Act, residence permits may only be granted to the self-employed if: (1) there is an economic interest or a local requirement; (2) the activity is expected to have positive effects on the economy; and (3) financing of the implementation is assured by equity or promised credit/ Until July 31, 2012, the first two preconditions were regarded as met if at least were invested and five jobs were created. However, since August 1, 2012, those thresholds no longer exist. The idea is to attract more entrepreneurs to invest in Germany and facilitate investment in Germany. Also since August 1, 2012, an economic interest (as opposed to a higher economic interest) and a local requirement (as opposed to a particular local requirement) suffices. However, the following criteria still apply to the assessment of preconditions: carrying capacity of the business idea, entrepreneurial experience of the foreigner, and amount of the capital investment. To make an accurate assessment, the foreigners office ordinarily asks for an expert statement from a competent authority; e.g., the local Chamber of Industry and Commerce. Foreigners over the age of 45 may receive a residence permit only if they possess adequate provision for old age. A residence permit for the purpose of self-employment may also be granted if special privileges apply according to agreements under international law on the basis of reciprocity, for example, see 21 of the Act. Moreover, according to 21 of the Act, a residence permit for the purpose of selfemployment may also be granted to a foreigner with a degree from a German university or a comparable German educational institution without the aforementioned conditions being met. The same applies for the holder of a residence permit for research or scientific purposes ( 18 and 20 of the Act) if the envisaged activity is connected to the person s educational background. 5

6 Despite the aforementioned, the law provides for the grant of a settlement permit in the following cases: if the foreigner holds a permanent residence permit ( 9 of the Act) for researchers with regard to their research projects ( 20 of the Act) if the Federal Ministry of the Interior or the body designated by the Federal Ministry of the Interior has declared that the foreigner is to be admitted ( 22 of the Act) In principle, the period of validity of the residence permit is limited to a maximum of three years. However, after three years, a settlement permit (Niederlassungserlaubnis) may be issued where the foreigner has successfully performed the planned activity and the subsistence of the foreigner and his or her dependents (those living with him or her as a family unit whom he or she is required to support) are ensured by adequate income. Hong Kong Two categories of visas are available for investors and entrepreneurs in Hong Kong. The first is an employment (investment) visa that enables a successful applicant to establish or join in a business in Hong Kong. To qualify, the applicant must have invested in a business that is of substantial benefit to the economy of Hong Kong. The second is the Capital Investment Entrant Scheme (CIES), which allows for the entry of a passive investor who invests at least HK$10 million (US$1,282,051) in permissible financial assets such as equity shares in a Hong Kong Stock Exchange listed companies, debt securities issued or guaranteed by the HKSAR Government or Certificates of Deposit issued by authorized Hong Kong banking institutions, or eligible collective investment schemes ; i.e., unit trusts or mutual funds managed by a licensed company under the Securities and Futures Ordinance or investment in investment-linked assurance scheme (ILAS) products. India There is no specific visa program for investors or entrepreneurs in India. However, the Ministry of Home Affairs Frequently Asked Questions (FAQ) dated September 25, 2009, includes provisions that allow foreign national investors and entrepreneurs into India on either business or employment visas. The following business visa criteria in the FAQ apply to investors or entrepreneurs who wish to: Establish an industrial/business venture or explore possibilities to set up an industrial or business venture in India; or Function as a partner and/or director of a business or company The guidelines relating to employment visas are broad, and also can apply to either investors or entrepreneurs. Employment visas are not granted for positions for which qualified Indians are available or for routine or ordinary jobs, according to the FAQ. The foreign national must seek to visit India for employment in a company, firm, or organization 6

7 registered in India or for employment in a foreign company, firm, or organization engaged in the execution of some project in India. The foreign national s salary must be above $25,000 per year. The employment visa criteria include [s]elf-employed foreign nationals coming to India to provide engineering, medical, accounting, legal, or other such highly skilled services as independent consultants, provided the provision of such services by foreign nationals is permitted under law. These self-employed individuals must also meet the $25,000 salary requirement. Note that foreign law firms are restricted from entering India under a 2012 Supreme Court order. There are no permanent residence categories under Indian law. However, certain people of Indian ancestry can apply for Overseas Citizenship of India (OCI) or Persons of Indian Origin (PIO) status (which includes a spouse of a PIO), which would allow them to engage in investment or entrepreneurial activities in India on a long-term basis. Italy The Italian Ministry of Foreign Affairs has established a new type of visa (under measure 44 of the Plan Destinazione Italia and Law no. 221/2012) to attract and retain foreign entrepreneurs willing to establish a start-up company in Italy. The visa issuance procedure is expected to be fast and streamlined. A technical committee established by the Ministry of Industry and Economic Development will evaluate the start-up companies. To obtain an entry visa for startups, a foreign entrepreneur must prove ownership of at least 50,000 in financial resources. This funding can be raised through venture capital, crowdsourcing, investors, or Italian/foreign governments and nongovernmental organizations. Special facilitations are provided for foreign citizens who have the support of a certified incubator. Two other types of visas may be useful, depending on the activities the investor is willing to carry out: Autonomous Work Visa for individuals willing to work autonomously (e.g., freelancers, consultants) or to establish a company in Italy. The autonomous work visa is subject to numerical caps. Appointed directors employed by a foreign company and temporarily assigned to an Italian-affiliated company may be granted an autonomous work visa without any quota limit. Elective Residence Visa for individuals who are interested only in living in Italy without carrying out any work activities. The elective residence visa is limited to those who have a significant amount of money and savings and are able to live in Italy with no need of work-related income. The requirements and conditions to apply for the start-up visa are listed on the Italian Ministry of Foreign Affairs website (Startup Visa Guidelines [ and Italia Startup Procedures 7

8 [ 203%20EN.pdf]). Mexico The 2012 Migration Act in Mexico has simplified the process and decentralized the autonomy vested in the National Immigration Institute to issue short- and long-term visas for investors and entrepreneurs. These can normally be obtained directly at Mexican consulates within 3 to 10 days. Nationals from several designated countries may freely enter Mexico in business visitor status without having to apply for a visa. Business visitors generally may engage in all kinds of business activities for up to 180 days. Mexican law does not distinguish among business activities. Visa-waivered entry is also allowed for regulated nationalities under several schemes, such as having a valid U.S. visa of any kind, or permanent residence in the United Kingdom, Japan, United States, Canada, or the Schengen countries. It is also now possible for entrepreneurs and investors to obtain temporary residence for longer than 180 days directly from a Mexican consulate before traveling into Mexico. A threshold of proof for investments in Mexico can be demonstrated with documentation such as evidence of ownership of real estate, shareholdings, a business plan, or a contract. Specific requirements for obtaining this type of visa at the consulate include: An incorporation deed of a Mexican corporation, executed before a Notary Public, or a document certified by the competent administrative office or official thereof, stating that the foreign person participates in the share capital of the Mexican corporation and that the investment amount for the participation of the foreigner in the Mexican entity exceeds US$102,0000, which may be demonstrated, among other ways, with a sales contract, contract, or transfer of property rights for the Mexican entity or a document issued by the latter stating the amount contributed by the concept of participation in the share capital, in original and copy; A document certifying the ownership of real estate properties of the foreign corporation, with a value that exceeds US$102,000, in original and copy; Documentation demonstrating economic and business activities in Mexico, such as contracts, service orders, invoices, receipts, business plans, licenses or permits, and a certificate issued by the Mexican Social Security Institute stating that the foreign person employs at least five workers, in original and copy. Netherlands Investors and Entrepreneurs The residence permit scheme for entrepreneurs is based on a points system. The scheme is perceived as rather inflexible and is therefore not frequently used. In October 2013, a separate, pure investor scheme was introduced for high net worth individuals investing at least 1.25 million euros. Despite its announced attractiveness, this new scheme has not brought much relief either. 8

9 Points-Based System Under the general entrepreneur scheme, points can be earned for (1) personal experience, (2) the business plan, and (3) added value for the Netherlands. In each of the three categories, up to 100 points can be earned. The required minimum total is 90 points; i.e., 30 points in each category, or, alternatively, 45 points in categories 1 and 2. The Dutch Ministry of Economic Affairs carries out the points allocation. Despite the promise of a more or less mathematical system, there is quite a bit of discretion involved in the points allocation. In practice, financial and commercial forecasts are often considered speculative or not specific enough. In essence, the system is unpredictable. The processing time is about 6 months. Investors The investor scheme targets high net worth individuals who invest 1,250,000 euros in a Dutch company. Various modalities are available, among which is a simple cash transfer to a Dutch bank account. A Dutch accounting firm with an international profile must declare the invested funds to not be of illicit origin. To check the financial information provided, authorities in the country of origin may be contacted in some cases. If there is no judicial cooperation between the Netherlands and the country of origin, the application may be refused for lack of objective financial information. In addition to these financial requirements, the investment must add intrinsic value to the Dutch economy. Again, the Dutch Ministry of Economic Affairs assesses the added value, which is done through a points system that partly overlaps the general points system. Added Value to the Netherlands for Pure Investors The applicant must score a minimum of 25 points out of 50: (1) Job creation: maximum of 15 points. up to 5 jobs created: 5 points; up to 10 jobs: 10 points; 10 or more jobs: 15 points (2) Innovation: maximum of 30 points Bringing a patented product into the company: 10 points; Investing in an innovation: 10 points; Investing in a business sector of excellence : 10 points; Because innovation and bringing in a patent are rare for pure investors, in most cases a certain amount of job creation will be required. Peru In Peru, foreign entrepreneurs or investors may invest in sectors like mining, oil and gas, energy, and infrastructure. Benefits are provided for in legal and/or tax stability agreements made between the Peruvian government and the foreign investors for a determined term. Any law or rules arising after the date of the agreement and while it is in force cannot be applied to the detriment of the investor. 9

10 Otherwise, there is no specific immigrant investment program in Peru. Under the Aliens Law, Legislative Decree No. 703, as amended by Legislative Decree No. 1043, foreign citizens may be admitted to Peru through the immigration category of Independent Investor, which authorizes the alien to invest in Peru. One of the main requirements for this kind of visa is to demonstrate before Migraciones (Peruvian Immigration Bureau) the following: To evidence with pertinent documentation that the investor holds shares in a local company in an amount equivalent to US$30, To file a business project feasibility study (if it is a newly incorporated company) or a business plan (if it is a company already active) that includes creating five jobs within two years. Either the study or the plan must be prepared by the investor and be authorized and certified by a professional. Turkey The Republic of Turkey has no immigration program specifically for investors. Foreign nationals who want to start a business or purchase assets as a way to reside in Turkey historically have had to use other visa and residence permit categories not intended specifically for that purpose. However, on April 11, 2014, Law No. 6458, Law on Foreigners and International Protection, took effect. The new law provides two categories of residence permit that may assist investors. Under article 31 of the new law, short-term residence permits will be available that are renewable in one-year increments. Two new categories include: 1. Possession of immovable property in Turkey 2. Intent to set up commercial connections or establish a business in Turkey There are no regulations or other guidance on what specific documents or evidence will be required for these two categories. However, it appears that their goal is assisting entrepreneurs and investors to remain in Turkey. United Kingdom Tier 1 (Investor) The Tier 1 (Investor) scheme exists for foreign nationals wishing to relocate to the United Kingdom (UK) on the basis of a passive 1 million investment. The applicant must have at least 1 million in his or her own funds, which must generally have been held for at least three months in a regulated financial institution in any country. Proof of the source of the funds is also required. Initial visas are granted for three years and four months. Spouses, civil or unmarried partners, and children under 18 can be included. Within three months of entry to the UK, investors must invest at least 75% of the 1 million in UK government bonds or share/loan capital in active and trading companies registered in the UK. This will generally be an investment into a portfolio of gilts, equities, or corporate bonds managed by a UK-regulated institution, although investment into private limited UK companies is possible in specific circumstances. Investment in UK companies principally engaged in property investment is prohibited. The remaining 25% can be held in any assets 10

11 in the UK for investment purposes, such as cash deposits or UK property the investor owns personally and lives in. Extensions are granted for a further two years with proof that the investment has been maintained at the correct level in the first three years. Investors can apply for permanent residence (known as indefinite leave to remain) once they have completed five years in the UK, subject to satisfying the residence requirement of having spent no more than 180 days outside the UK in each of the five years, having maintained the 1 million investment, and having passed an intermediate English language test and a simple integration ( Life in the UK ) test. Applicants also may invest higher amounts to shorten the qualifying period for permanent residence to two years ( 10 million) or three years ( 5 million). The route is currently being reviewed following a report by the Migration Advisory Committee in 2014 and the minimum investment threshold may increase. Tier 1 (Entrepreneur) The Tier 1 (Entrepreneur) scheme exists to enable foreign businesspersons to relocate to the UK to make an active investment in a new or existing UK business. Successful applicants must demonstrate that they have 200,000 available to invest of their own money or third-party funds. Lower funding of 50,000 is allowed where it is made available by a UKregulated private equity firm, a UK government department, or a recognized seed funding competition. It is possible to apply with another applicant as part of an entrepreneurial team using the same funds if control of the investment funds are shared equally. On January 31, 2013, the Home Office introduced a Genuine Entrepreneur Test, meaning that to obtain the initial visa, an entrepreneur may be required to demonstrate business acumen and credible/viable plans for his or her business. Entrepreneurs must speak English to CEFR B1 (intermediate) level and be able to show sufficient personal savings to support themselves and their family members on arrival. Initial visas are granted for three years and four months. Spouses, civil or unmarried partners, and children under 18 can be included. To extend the visa, the applicant must show that he or she has invested at least 200,000 in a new or existing business, has registered as self-employed or been appointed as a company director within six months of arrival, and has created the equivalent of two new or additional full-time jobs for British, European Union, or permanent resident employees. If the entrepreneur has satisfied all of the requirements of the scheme, he or she may be able to extend the visa for a further two years. After five years of continuous residence, the entrepreneur may be eligible to apply for indefinite leave to remain (permanent residence). To qualify for permanent residence, the entrepreneur must not have been absent from the UK for more than 180 days in each of the five years of residence, must pass a simple Life in the UK test, and must show that the business is continuing. The resident period of qualification for permanent residence can be reduced to three years if the entrepreneur employs the equivalent of 10 new or additional full-time employees for at least a year each or if the revenue of the business reaches, or increases by, at least 5 million over a three-year period. 11

12 Tier 1 (Graduate Entrepreneur) Graduates of domestic and overseas institutions seeking to start up one or more businesses in the UK may apply as Tier 1 (Graduate Entrepreneur). To qualify under this route, applicants must have been awarded a UK bachelor s degree or higher (or acknowledged equivalent) and received an endorsement, from either a UK higher education institution or UK Trade and Investment, confirming that the applicant and his or her business idea have been evaluated. Applicants also must demonstrate sufficient English language skill and levels of maintenance. Prospective Entrepreneur The Prospective Entrepreneur category is intended for non-european Economic Area nationals coming to the UK for talks with registered venture capitalist firms, endorsed entrepreneurial seed-funding competitions, or government departments, to secure funding for setting up, joining, or taking over a business in the UK. Individuals must seek a minimum of 50,000 and may enter the UK for up to six months, after which time they must either leave or switch into the Tier 1 (Entrepreneur) category. United States U.S. immigration law provides for two different investment visa options for foreign nationals wishing to invest in enterprises in the United States in exchange for the right to live and work in the country. Generally, a citizen of a foreign country who wishes to enter the United States must first obtain an immigrant or nonimmigrant visa. Immigrant Investor (EB-5) Program The Immigrant Investor (EB-5) Program was established as a pilot program in 1990 and is administered by U.S. Citizenship and Immigration Services (USCIS). The EB-5 program allows foreign investors and their families to become permanent residents (green card holders) in about one to two years. On September 28, 2012, President Obama signed S. 3245, extending the EB-5 Regional Center Program for an additional three years until September 30, There are 10,000 EB-5 green cards made available every year, but historically the program has been underused. In 2011, only 3,463 were issued and in 2012, 6,200 immigrants got their green cards via EB-5. In 2013, 8,567 such visas were issued. The Department of State has predicted a potential backlog for the first time in 2015 for Chinese nationals. There are two EB-5 programs: the Direct Investment (Direct) program and the Regional Center program. The Direct Program and History of EB-5 For an applicant to qualify under the initial or Direct program, the following three basic requirements must be met: 1. investment in a new commercial enterprise; 2. investment of at least $1 million (or $500,000 in certain cases) into the business; and 12

13 3. creation of employment for at least 10 full-time U.S. workers. For the first two years, the EB-5 program was only set up for those who were willing to invest and create their own businesses that would produce at least 10 jobs. However, in 1993, the government began to designate certain businesses as regional centers. These were primarily businesses that were started or expanded in a Targeted Employment Area (TEA), an area where the unemployment rate exceeded the national average by 150% or a rural area where the population was less than 20,000; that fit within the $500,000 investment designation, and that were duly approved by USCIS (formerly the Immigration and Naturalization Service). Regional Centers The second program within the EB-5 category, the Regional Center program, is ideal for retirees or inactive investors due in large part to its indirect employment feature. The program removes the 10-full-time-employee requirement of the Direct program and substitutes the less-restrictive indirect employment creation requirement, which allows an investor to qualify by proving 10 direct and/or indirect employees who are new to the regional center. The EB-5 policy management requirement is minimal in that the investor can be a limited partner and still qualify as long as the limited partners have a policymaking role. Thus, for those who are not interested in day-to-day management or running an active business, regional center investments offer a more acceptable inactive form of investment than do most Direct investments. Another advantage that adds to the flexibility of this green card category is that the investor is not required to live in the place of investment; rather, he or she can live anywhere in the United States. Each regional center must be pre-approved by USCIS for the investors to be eligible for EB- 5 green cards. An investor must present evidence that documents the lawful source of funds and traces the funds through bank transfers and other documentation, from the investor directly to the enterprise. The money can be the investor s own funds or in the form of a loan or gift, which would allow a parent to gift a son or daughter. After the investor completes a thorough business and financial due-diligence analysis of the viability of the regional center business opportunity, he or she makes the investment and files an I-526 petition with USCIS, requiring the agency to approve that the applicant (source of funds) and the investment are eligible for EB-5 status, which takes an average of 6 months for Direct and 12 months for Regional Center program cases. If the investor is already in the United States, generally in valid work status, he or she then applies for permanent resident (green card) status through USCIS. No interview customarily is required, and approval for most cases takes approximately 6 to 12 months. If the investor resides abroad, he or she generally files an application for the green card at the U.S. embassy or consulate in the investor s home country, where an interview is necessary. Approval of the green card in this case takes about 6 to 8 months. Thus, the entire immigration process generally takes about 12 to 24 or more months, depending on where the green card processing occurs. Once USCIS or a U.S. consulate approves the investor s green card, permanent residence is conditional for a period of two years. Conditional permanent resident status confers the same rights as permanent residence. 13

14 Between 21 and 24 months after the conditional green card has been approved, the investor must reconfirm that the investment project has been completed and that the employment requirement has been fulfilled. An I-829 application to remove conditional status is then filed with USCIS, which takes about 12 months for processing. Once the condition has been removed, full permanent resident status is granted. Processing of the I-526 application through approval of the removal of conditions usually takes about 4 to 5 years. Thereafter, with an approved EB-5 case, even if the investment is sold, the investor will still maintain the permanent green card. E-2 Treaty Investor Nonimmigrant Visa The E-2 Treaty Investor visa is a nonimmigrant visa for citizens of countries with which the United States maintains treaties of commerce and navigation. The E-2 visa allows a foreign national from a treaty country the right to live and work in the United States for a business in which either they have invested or nationals from their country have invested for a temporary period of time. Initial visas may last for up to 5 years, with unlimited extensions. The length of the visa depends upon the visa reciprocity agreement between the United States and the foreign country and upon the viability of the business (new companies may receive shorter validity periods). Each time E-2 visa holders (workers or family members) enter the United States, they receive a period of stay of up to 2 years. They also may extend their stay while remaining in the U.S. E-2 visas are available for an accompanying spouse and unmarried children under the age of 21, and the spouse, but not children, may apply for a work permit once physically present in the United States. The following are the criteria to qualify for an E-2 Treaty Investor Visa: The applicant must be a citizen of a country that has a relevant treaty with the United States; The applicant must be coming to work in the United States for a company that he or she either owns or that is at a minimum 50% owned by other nationals of the treaty country of origin; The applicant must be either the owner who will develop and direct the operations or a key employee (executive or supervisor, or someone with essential skills) of the U.S. business; The applicant or the company must have made a substantial investment in the U.S. business (there is no legal minimum (generally in excess of $100,000), but the applicant or company must be putting capital or assets at risk and be trying to make a profit, and the amount must be substantial relative to the type of business). The U.S. company must be actively engaged in commercial activities and meet the applicable legal requirements for doing business in its state or region. It also cannot be merely a means to support the investor. The underlying goal of the treaty investor visa is to create jobs for U.S. workers. The applicant must intend to leave the United States when his or her business in the United States is completed, although the person is not required to maintain a foreign residence abroad. With the exception of E-2 applicants from the United Kingdom, the 14

15 applicant need not be presently residing in the country of citizenship to qualify for an E-2 visa. In determining which investor program is best suited, there are several factors to consider. For EB-5 regional center investors, once the green card is issued, the foreign national is authorized to work for any employer or enterprise, while with an E-2, the treaty investor or employee is restricted to working only for the employer or self-owned business that acted as the E-2 visa sponsor. The EB-5 allows for passive or inactive investment, for regional center investors, whereas the E-2 visa requires that the treaty investor develop and direct the operations of the investment enterprise. However, the EB-5 requires a minimum investment of $500,000, whereas with the E-2 visa, there is no legal minimum, provided the amount is substantial relative to the type of business. Also, unlike the EB-5 green card, there are no annual limits on the number of E-2 visas that can be issued to qualified applicants. Back to Top COUNTRY UPDATES: 1. CANADA A new permanent residence cap opened May 1, 2014, for 50 occupations. Starting on May 1, 2014, the Canadian government has announced a new cap of 25,000 applications, which includes a sub-cap of 1,000 applications for each of the 50 eligible occupations. Applicants may qualify for immigration to Canada if they have work experience in one of the eligible occupations. Eligible occupations are listed at Skilled Trades Professionals has an overall cap of 5,000 application for 90 skilled trades from the following NOC Skill Level B groups (with sub-caps of 100 applications each): Industrial, electrical and construction trades; Maintenance and equipment operation trades; Supervisors and technical occupations in national resources, agriculture and related production; Processing, manufacturing and utilities supervisors and central control operators; chefs and cooks; and butchers and bakers. New caps for CEC (Canadian Experience Class, with a cap of 8,000 and 200 per occupation) and Ph.D. (with a cap of 500) eligibility streams begin on May 1, For more on the CEC, see Back to Top 2. FRANCE The European Parliament and the Council of the European Union (EU) have adopted a directive, with implications for France, that provides for an EU-wide immigration status for posting assignees from affiliates outside the EU to affiliates within EU. 15

16 Directive 2014/66 provides for simplified and transparent processing for assignees and their family members, and facilitates intra-eu mobility. Member States (except UK, Ireland, and Denmark, which opted out) must transpose this directive into national law by November 29, Implications for France The Directive creates an EU-wide immigration regime that is very similar to the French Salarié en Mission (SEM) regime in place since The main differences are: The Directive will facilitate the execution of tasks in affiliates located in other Member States. The Directive allows specific activities at the sites of clients, if allowed under national (i.e., French) laws, whereas in applying the SEM regime, French authorities tend to reject applications where the transferee is to work on a client site (as opposed to the host site). It is hoped that, as the French administration adapts the SEM regime when transposing the Directive into national law, work on client sites will be allowed. The Directive allows Member States to provide for a fast-track simplified process for assignees and their families, for pre-approved corporate groups. Assignees Concerned This Directive applies to third-country nationals residing outside the EU who are assigned by their employers to one or several affiliate companies located within the EU. The assignees must be managers, specialists, or trainees. Qualifying Criteria Same corporate group: The transfer must be between companies of the same corporate group. Prior employment: The assignee must be previously employed by the non-eu affiliate for a period of time that may vary, depending on the Member State, from 3 to 12 months for managers and specialists, and 3 to 6 months for trainees. Salary and conditions of employment: The salary level and conditions of employment are determined by the national laws of the host entity. Assignment period: The maximum assignment period will be 3 years for managers and specialists and 1 year for trainees. Member States may require a period of up to 6 months to elapse between the end of the maximum duration and a second application under this Directive made by the same assignee in the same Member State. Professional Qualifications: Managers and specialists must have professional qualifications and experience needed by the host entity. Trainees must have university degrees, and be subject to training programs that aim at career development or providing business techniques or methods. 16

17 Allowed Tasks The Directive states that the assignee will have the right to exercise the specific employment activity authorized under the permit in accordance with national law in any host entity belonging to the undertaking or the group of undertakings. Furthermore, the Directive specifies in its preamble that it does not prevent intracorporate transferees from exercising specific activities at the sites of clients within the Member State where the host entity is established in accordance with the provisions applying in that Member State with regard to such activities. No Labor Market Test Unless the directive conflicts with the principle of preference for EU citizens as expressed in the relevant provision of the relevant Acts of Accession, no labor market test should be required. Intra-EU Mobility The assignment may be to one or more affiliates in one or more Member States. The application is to be processed by the Member State of the first stay. If the first stay is not the longest, then the Member State with the longest cumulative stay processes the application. The Member State processing the application informs other concerned Member States. Such latter Member States have limited time and grounds to refuse the execution of work on their territory. Mobility within the latter Member States may be short-term (less than 90 days) or longterm (more than 90 days) but within a total cumulative period of 3 years. Processing Time Member States must process the application within 90 days. Simplification for Pre-Approved Groups As noted above, Member States may provide for a simplified fast-track process for assignees and their families for preapproved corporate groups. Simplification includes reducing the need to produce certain documents, and shortened processing time for work permits and visa issuance. Family Rights The family of the assignee may accompany him or her and have access to employment and self-employed activity. Family members include spouses, minor children (with minority defined under national law), and certain first-degree relatives who are dependents (under national law). The accompanying family application may be simultaneous with the assignee s application, and must be processed within 90 days of filing. Back to Top 17

18 3. GERMANY Germany has become the world s top migration spot after the United States. According to recently published OECD statistics from 2012, Germany has seen significant growth in migration and has skyrocketed to second place on the list of the world s top migration spots after the United States: Germany became the second-largest immigration country, after the United States, in the OECD in 2012, receiving more than 10% of all permanent immigration to the OECD area. In 2009, it was only the eighth largest. This spectacular increase has been fueled mainly by inflows from central and eastern European countries and, to a lesser degree, southern Europe. Based on official statistics published by Germany s Federal Statistic Office for 2013, an additional 146,000 foreigners (a surplus of 13% in comparison to 2012) have migrated to Germany. The total number of foreign migrants for 2013 was 1,108,000. Since during the same period 649,000 foreigners have left the country, there is a significant migration surplus of 459,000 foreigners (387,000 in 2012). That is the highest growth to report since The spike in migration to Germany is partly a result of the economies of southern European countries not doing well (e.g., Greece, Italy, Portugal, and to a lesser extent Spain), and others are also struggling to a certain extent (e.g., France, Netherlands), whereas Germany has a very strong economy despite the global economic crisis. Germany therefore is in a position to add a lot of fuel to the European Union engine to keep it running. The fact that Germany is attracting more foreigners is, however, mainly due to the stable political situation and the reliable legal system that together create an environment that seems friendly to investors and new arrivals. With regard to the latter, securing a residence title for the purpose of gainful employment (the official name of the work permit) is still highly regulated and complex. The conditions for establishing a business in Germany, for entering into business relationships by way of contracts with business partners and customers, and also for litigation, if needed, are generally seen as advantageous. The mix of all these aspects makes migration to Germany even more attractive than it was over the last several years. There is nevertheless still room for improvement of the regulations that currently apply. For example, the fact that for many visa categories a local employment contract is a must poses as many problems as the requirement to have health insurance at least equivalent to German standards (which is difficult to prove when there is no local coverage). Moreover, processing times are still very slow, and lack of communication by some authorities remains an issue. Finally, some commentators argue in favor of access to a fast-track procedure and to special authorities or competence centers for corporate immigration. Federal President Joachim Gauck has welcomed immigration to Germany by stressing that immigration is key to Germany, whereas Chancellor Angela Merkel has been making the point that Germany is not in favor of any misuse of the EU social union s rights. This is, however, no contradiction because the issues do differ. President Gauck has been addressing the issue from a more general standpoint, such as in a speech on the 65th anniversary of the Federal Constitution, whereas Merkel has been commenting on the opinion of the Advocate General in preparing the upcoming decision of the European Court of Justice that any member state can limit the social rights of EU nationals that have not sought employment during their stay while 18