1. Employment-based Immigration Programmes and Temporary Labour Migration Programmes Assessing Foreign Labour Demand... 9

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1 Employment and Residence Permits for Migrant Workers, 2009 Content: 1. Employment-based Immigration Programmes and Temporary Labour Migration Programmes Assessing Foreign Labour Demand Conditions Attached to the Employment Permits Source: Koser, Khalid, Study of Employment and Residence Permits for Migrant Workers in Major Countries of Destination, International Labour Office, International Migration Papers No. 95, Geneva 2009, pp

2 1. Employment-based Immigration Programmes and Temporary Labour Migration Programmes France Employment-based immigration programmes Points systems Work permits Students Types Four types of business work permits: Détachement, for assignees who will remain on the payroll of their foreign employer; Introduction, for assignees entering France to provide services to client companies and who will be placed on a French payroll; Carte Compétences et Talents, a three-year combined residence and work permit for influential cultural and scientific figures and exceptional athletes; and Carte de Séjour Salarié en Mission, a threeyear combined work and residence permit for Détachement and Introduction eligible individuals who are intracompany or intra-group transferees and have worked for an affiliated foreign entity for a minimum of three months. Applicants for the Carte de Séjour Salarié en Mission are exempt from the labour market test that applies to the Détachement and Introduction permits. The 2006 law made access to employment easier for foreign students and they can now work for up to 60 percent of the annual working time specified in the Labour Code. Those with a Master s degree are allowed to stay after their studies for six months to find a job related to their training. If successful they may obtain a renewable residence permit of one year duration. Temporary labour migration programmes MoUs and bilateral agreements Recruitment Recruitment occurs in regional employment offices that monitor labour shortages in their areas. Office des migration internationales has offices in Morocco, Poland, Tunisia and Turkey to run recruitment services and expedite permit applications. Page 2 of 15

3 1. Employment-based Immigration Programmes and Temporary Labour Migration Programmes Germany Ireland Employment-based immigration programmes Points systems Work permits Students Types Under the Immigration Act, highly skilled workers, such as senior academics, researchers, etc., may be granted permanent residence upon arrival. Self-employed foreigners may also immigrate to the country if their business is of economic interest and can be expected to have a positive economic impact. Employment Permit Act entered into force in January 2007, with a view to favouring skilled labour migration immigration from outside the EU and EFTA. Among the key changes was the introduction of a Green Card for highly skilled employees in most occupations with an annual salary above EUR 60,000, and in restricted number of occupations in sectors with skills shortages with an annual salary rank between EUR 30,000 and EUR 60,000. No labour market test. Two-stage system: Permits graduates of tertiary education institutions in Ireland to remain in Ireland for six months after termination of their studies to search for employment. If they are then offered a job, they can apply for a change of status. The seasonal workers programme operates under MoUs signed by the German Labor Ministry and Labour Ministries in source countries. The German Employment Service tests the local labor market, and also monitors employers on rights. The system of secondment under Werkvertrag: Contract workers are posted to Germany for employment, but continue to be employed by their employer in the origin country. Temporary labour migration programmes MoUs and bilateral agreements Contract worker scheme between Germany and Poland. Bilateral agreements with some central and eastern European countries. Recruitment The Federal Employment Agency hires seasonal workers directly in the origin countries through their respective local employment services. Managed by employers facing labour shortages. Page 3 of 15

4 1. Employment-based Immigration Programmes and Temporary Labour Migration Programmes Italy Netherlands Spain Employment-based immigration programmes Points systems Work permits Students Types In a position paper from 2006 the government announced its intention to introduce a points system. Duration of seasonal work permit can range between 20 days to a maximum of nine months. Seasonal migrant workers have priority for re-entry into Italy. After two years of employment, migrant workers may obtain a three year work permit. Family reunion is limited to spouses and minor children. The 2006 position paper of the government envisages an extension of the period of job search during which a graduate is allowed to stay in the country and to lower the current income thresholds for jobs. Temporary labour migration programmes MoUs and bilateral agreements Exchange readmission agreement for migrants in an irregular situation with Romania. MoUs or bilateral agreements by particular sub-national regions as a response to specific local labour shortages, example, the Friuli- Venezia-Giulia region has been actively recruiting agricultural workers in Romania. MoUs with major origin countries for migrants, including Columbia, Ecuador and the Dominican Republic Exchange readmission agreements for migrant in an irregular situation with Morocco. Recruitment Recruitment occurs in regional employment offices that monitor labour shortages in their areas. Contract with the International Organization of Migration to recruit low skilled workers from Ecuador. Page 4 of 15

5 1. Employment-based Immigration Programmes and Temporary Labour Migration Programmes United Kingdom Employment-based immigration programmes Points systems Work permits Students Types The pilot Highly Skilled Migration Programme requires candidates to accumulate points on the following criteria: Education qualifications; Work experience; Past earnings over the 12 month prior to the application, exceptions for young professionals under the age of 28, and the income level the applicant is required to demonstrate is adjusted to their country; Achievement and ability to continue to work in chosen field; Partners achievements; Knowledge of English is mandatory; sufficient savings and potential income to accommodate and support themselves and their families without recourse to the public funds; willingness to make the United Kingdom their main home. Applications from doctors (general practitioners) are currently given priority. There is a plan to incorporate the existing pointsbased systems into an integrated Points-Based Migration System, which defines five tiers from highly-skilled (Tier 1) to temporary workers (Tier 5). The Ordinary Work Permit Scheme is aimed at skilled worker. Entrants under this scheme have the right to apply for permanent residence after five years. It is a demand-driven system because it is the employer who applies for the work permit. The Scheme is divided into two parts: Business and Commercial Work Permits and Training and Work Experience work permits. Business and Commercial work permits are divided into two tiers. Tier 1 includes Intra-Company Transferees (ICTs), board level posts, positions related to inward investment, sponsored researchers, and skills shortage occupations. Tier 2 encompasses all other posts. The Training and Work Experience work permit issues temporary positions for training and work experience and beneficiaries are normally not able to switch to the other sort of work permits, so they must leave the country for a period of between 12 and 24 months before they can return on a further permit. Seasonal Agricultural Workers Scheme (SAWS): successful applicants (from outside the EEA, age over 18 years, students in full-time education) must approach recruitment organizations directly, or through their university or college to receive a work card. Sector Based Scheme (SBS): For applicants (aged between 18 and 30) work permits will only be issued for a maximum of 12 months and migrant workers must leave the country after this period; Employers are obliged to inform the authorities if they have any doubts as to whether the workers has left; Switching from SBS to another work permit scheme is not permitted; Previous holders of an SBS work permit may re-apply for admission under the SBS after they have been outside for at least two months. Temporary labour migration programmes MoUs and bilateral agreements Bilateral agreements with sub-saharan African nations. MoU between the Philippines and the Department of Health. Recruitment Managed by employers facing labour shortages. In other cases employers can use intermediaries such as private recruitment agencies in sending or receiving countries. There are nine approved Seasonal Agricultural Workers Scheme (SAWS) operators. Five of these are sole operators that recruit SAWS participants to fill their own seasonal worker need. Four are multiple operators that recruit SAWS participants on behalf of farmers and growers in the United Kingdom. Page 5 of 15

6 1. Employment-based Immigration Programmes and Temporary Labour Migration Programmes Australia Canada Employment-based immigration programmes Points systems Work permits Students Types A Skilled worker applicant must earn at least 67 points in the six selection criteria: Education, proficiency in the two official languages, work experience, age, secured employment in Canada, and adaptability, assessed in according to whether the applicant has, inter alia, previously studied or worked in Canada or has family member living there. There is an entry route for business immigrants, covering investors, entrepreneurs, selfemployed. Qualifying criteria for investors include: prior business experience; a legally obtained minimum net worth of CAD 800,000; and a written indication of the intention to invest at least CAD 400,000. The criteria for entrepreneurs and the self-employed vary in detail, but also include a commitment to create employment for the inhabitants. Working Holiday Maker (WHM) scheme: Ability to study or train for up four months and work for up to six months with any one employer; Range of covered industries has expanded from agriculture to include other primary industries; WHMs who have completed at least three months of seasonal work in regional Australia are able to apply for a second WHM visa. Foreign students at Canadian postsecondary institutions, who previously were entitled to work for a year after graduation outside Canada s main cities, can now prolong for a second year. Since April 2006, foreign students have also been allowed to seek off-campus employment during their studies. Temporary labour migration programmes MoUs and bilateral agreements Working Holiday Maker. MoUs or bilateral agreements by particular sub-national regions as a response to specific local labour shortages. MoUs or bilateral agreements by particular sub-national regions as a response to specific local labour shortages. Recruitment In Quebec, the government of Guatemala, the International Organization of Migration and FERMES, an agricultural non-profit agency operate an arrangement for temporary agricultural workers. Commonwealth Caribbean and Mexican Agricultural Seasonal Workers Programme allow Canadian farmers to import foreign workers for up to eight months a year from a range of countries Page 6 of 15

7 1. Employment-based Immigration Programmes and Temporary Labour Migration Programmes Japan Employment-based immigration programmes Points systems Work permits Students Types There are five different categories of work permit for skilled workers: intra-company transferee, investor or business manager, legal or accounting services, engineers, and specialists in international services. These work permits are issued for one to three year durations at the discretion of the Immigration Bureau. Extensions can be filed. The government is developing new policies to enhance entries of foreign students. At the same time revisions of student entry procedures are taking place within the wider context of immigration control. Working Holiday Maker programme for Australia, New Zealand, Canada, South Korea, France, Germany and the United Kingdom. The government is currently streamlining procedures for the scheme, while the Ministry of Foreign Affairs is also considering expanding the range of countries subject to the programme. Training and technical internship programmes are wellestablished. The last new policy developments are: First, a new residence status is being developed for interns, with clear limits on duration. Second, interns are being better informed of their rights while employers are being more closely monitored. Temporary labour migration programmes MoUs and bilateral agreements Recruitment Page 7 of 15

8 1. Employment-based Immigration Programmes and Temporary Labour Migration Programmes New Zealand Employment-based immigration programmes Points systems Work permits Students Types Skilled Migrant Category: Applicants must score at least 100 points in their Expression of Interest to be eligible. At the moment only those scoring above 140 points are actually being admitted under this category. Points awarded against the following criteria: an offer or current position in skilled employment in this country (50-60 points), work experience in skilled employment (10-30), qualifications (50-55), age (5-30), close family ties in New Zealand (up to 10). Additional points are given to occupations, recognized prior to arrival, that are included in the Long-Term Skill Shortage List, which includes almost all health occupations. Bonus points are also granted to an employment employment offer for the regions outside the capital. Additional points are also available if the applicant has a skilled partner. MoUs: Memorandums of Understanding. Temporary labour migration programmes MoUs and bilateral agreements Recruitment Page 8 of 15

9 2. Assessing Foreign Labour Demand Quotas Labour market tests a) France Identification of labour shortages by local authorities. Applicants for the Carte de Séjour Salarié en Mission are exempt from the labour market test that does however apply to the Détachement and Introduction permits. Germany Ireland Identification of labour shortages by local authorities. Government can create sub-quotas according to firm size. Italy Quota system introduced by Law 40/1998 for non-eu labour migration. The quotas are issued annually in the basis of Prime Ministerial decrees, and divided up according to region, type of labour, job category and nationality. Most quota jobs relate to medium or lower-skilled work. The government can also create subquotas according to occupation. The country has to double its quotas between 2005 and Despite the increase the quota was still reached in a few days in 2006, and there were still far more applications than permits (490,000 to 170,000) Netherlands Employment projections, based on flows in and out of the labour market and on expectations of labour demand to assess potential future shortages within occupations and sectors. Spain Identification of labour shortages by local authorities. The government also establishes fixed quotas after consultations with social partners and regional governments and authorities to identify shortage sectors in the labour market. Originally this quota system was used as a means of regularizing workers in unauthorized situations, but it is now open only to migrant workers coming from outside Spain. United Kingdom Quarterly sector-based panels to enable updates from employers on the labour market situation to measure labour shortages. Government can create sub-quotas according to sector. Applicants for the Green Card under the new Employment Permit Act do not need to pass a labour market test, whereas those for Work Permits do. Advertising the post and active recruitment are both required. Two-tier system : Certain sectors or occupations that are verifiable known to suffer from shortages of local workers are exempted from the labour market test, while other sectors remain subject to the test. Australia The Government can create sub-quotas according to the receiving region. Page 9 of 15

10 2. Assessing Foreign Labour Demand United States Quotas Labour market tests a) Congress sets an annual quota for the number of skilled and specialized migrants admitted under the H-1B programme. Attestation process for employers wishing to apply for an H-1B work permit, whereby employers attest that a rate of pay offered to the migrant workers will be higher than the prevailing wage for the occupation, an that the employment of the H-1B permit holder will not adversely affect the working conditions of similar US workers. In this system in effect employers not the government have practical control over migrant worker entries and employment. (a) The labour market test normally requires employers to advertise the post with the national labour authorities for a specified period or to demonstrate that they have taken other active steps to recruit for a specified period of time. EU member states are required to apply the EU preference principle and governments must ensure that employers do not hire non- EU or third country national workers before satisfying the authorities that no suitable EU workers can be found, including third country nationals legally resident in their territories. Several countries make exceptions to the labour market test in respect of admission of highly skilled workers or of categories of workers for sectors where there are particular shortages, such as health workers. Page 10 of 15

11 3. Conditions Attached to the Employment Permits Duration and renewability Occupational mobility a) Loss of employment b) Social benefits Family reunion Possibilities for permanent residence France Germany Offer for graduating students for a period of 6 months to find a job. For holders of a seasonal work contract who undertake to maintain their customary place of residence outside France a temporary residence permit is issued for 3 years. Holders may not work for more than 6 months in any 12 month period and may not reside in France for more than 6 consecutive months. Skilled Workers are granted an initial permit for 3 years. National law guarantees general exportability of contributory benefits like old-age, survivor, and other pensions. In addition, France has concluded around 30 bilateral social security agreements with countries outside the EU. These agreements are less advanced in their coordination of portability of social security rights than the EU agreements and do not cover complementary pensions, unemployment, and noncontributory allowances, but include provisions on the portability of old-age, survivor, disability, and work accident pensions. Germany has concluded bilateral social security agreements with 18 countries outside the EU, including all its main migrant-seeking countries like Turkey and the countries of former Yugoslavia. It is also with these countries that Germany has included health care benefits in the bilateral agreements. The law requires immigrants to prove they can independently support all family members who seek to come to France. They must earn at least the French minimum wage and not be reliant on assistance from the French state. Spouses of French citizens must wait 3 years (instead of 2 previously) before applying for a 10-year residence permit. 4 years of marriage are required for the spouse of a French citizen to apply for French citizenship. Page 11 of 15

12 3. Conditions Attached to the Employment Permits Ireland Italy Netherlands Duration and renewability Seasonal migrant workers may obtain a 3 year work permit after 2 years of employment for a limited or unlimited time if the conditions to do so exist. Applications are made on their behalf by an Italian employer. Occupational mobility a) There are three circumstances that allow work permit holders to move jobs. One is redundancy. A second is under special circumstances such as workplace exploitation. Third work permit holders may change job after one year but only to a job within the same employment sector. Seasonal workers are required to work for a minimum of 2 years before being eligible to apply for a work permit. The necessary period for free access to the labour market and permanent residence is 3 years. Loss of employment b) Social benefits Family reunion Possibilities for permanent residence The national Training and Employment Authority (FAS) has recently confirmed that non-eea work permit holders who have been made redundant can access both the self-service facilities of the FAS Employment Services offices as well as availing of an interview with an Employment Service Officer. Migrant workers access to public services and benefits, including unemployment benefits, is regulated by the habitual residency test, which means that migrants become eligible for certain benefits only after they have been in the country for a certain minimum period of time. A migrant worker must be habitually resident to qualify for the following payments: Jobseeker Allowance, State Pension, Blind Pension, Widow(er) s Non- Contributory Pension, Oneparent Family Payment, Carer s Allowance, Disability Allowance, Child Benefit, Supplementary Welfare Allowance. - Green Card holders are entitled to bring their family with them, whereas holders of regular work permits must live and work for at least 1 year in the country before their family can join them. Green Card holders can apply for permanent residence after 2 years, while Work Permit holders may apply for permanent residency after 5 years. Skilled workers are eligible to apply for permanent residence after 3 years. Page 12 of 15

13 3. Conditions Attached to the Employment Permits Spain United Kingdom Duration and renewability Sector-based Scheme (SBS): Temporary labour migration; only permits entry for 1 year initially. Seasonal workers admitted under the SAWS programme are issued a work card with a validity ranging from 5 weeks to 6 months. If the card is issued for less than 6 months, it is possible to apply for a new one when the first expires. Any new card will take into account any time already spent as a seasonal worker. The maximum period permissible is 6 months. Workers are permitted to reapply to the SAWS programme after a 3 month gap, during which time they will not have permission to remain to the country. Skilled workers are granted an initial permit for 5 years. Occupational mobility a) The necessary period for free access to the labour market and permanent residence is 3 years. The Highly Skilled Migrant Programme allows foreign professionals with sufficient points to work as free agents. The necessary period for free access to the labour market and permanent residence is 5 years. For low-skilled workers under the SAWS programme, workers require prior authorization to change jobs, but must remain within the agricultural sector and cannot switch into work permit employment. Loss of employment b) Social benefits Family reunion Possibilities for permanent residence Dependents cannot accompany workers admitted under SAWS or SBS programmes. Ordinary Work Permit holders may be joined by a dependent, defined as a husband, wife, civil partner or eligible partner or children under 18. Dependents of Ordinary Work holders are entitled to undertake any employment or self-employment provided they hold a valid Entry Clearence. Skilled workers are eligible to apply for permanent residence after 3 years. Entrants under the Highly Skilled Migration Programme are eligible to apply for permanent residence after 5 years. Page 13 of 15

14 3. Conditions Attached to the Employment Permits Duration and renewability Occupational mobility a) Loss of employment b) Social benefits Family reunion Possibilities for permanent residence Australia Canada Japan Working Holiday Maker (WHM) Schemes tend to have limited duration. WHMs who have completed at last 3 months of seasonal work in regional Australia are now able to apply for a 2nd WHM visa. 5 categories of work permit for skilled migrants are issued for one to 3 years durations at the discretion of the Immigration Bureau. Extension can be filed in Japan. The necessary period for free access to the labour market and permanent residence is 2 years. Live-in Caregiver Programme allows workers to change employers whilst in the country provided that are new employment offer is confirmed by the authorities. Dependents of all five categories of skilled migrant work permit holders are eligible to apply for a parttime work permit which allows parttime employment of up to 28 hours per week. Immigration programme tend to be oriented towards the possibility for permanent residence. The permit can be applied after a period of 2 years. Under the Live-in Caregiver Programme, migrants can apply permanent residence after 2 years. To be eligible for permanent residence applicants employed on temporary labour migration programmes must meet a certain minimum of work experience, funds for settlement, earn enough points on 6 selection factors (education, language skills, experience, age, arranged employment and adaptability). The government is considering new regulations to facilitate the acquisition of permanent residence rights by highly-skilled workers. Page 14 of 15

15 3. Conditions Attached to the Employment Permits United States Duration and renewability Occupational mobility a) The H1-B visa restricts even highly-skilled migrants from changing employers. The visa enables employers to hire foreign professionals with at least a university education. Even though H1-B visa holders can remain in the country for six years and in time be granted permanent residence status, they are essentially tied to their employers. Foreign students can find jobs as an adjunct to their studies without any employer restriction. Under the NAFTA, Canadian and Mexican professionals with proof of qualifications and a job offer can enter and are permitted to change employers later on. The attestation procedure in effect restricts the sectors into which migrant workers can move in order to prioritize the employment of national workers. Loss of employment b) Social benefits Family reunion Possibilities for permanent residence Immigration programme tend to be oriented towards the possibility for permanent residence SAWS: Seasonal Agricultural Workers Scheme. SBS: Sector Based Scheme. NAFTA: North American Free Trade Agreement. EEA: European Economic Area. ILO: International Labour Organization. (a) The EU allows freedom of movement, so that EU nationals can move and seek jobs on an equal basis with local workers. (b) There is a consensus in the specific ILO and UN standards that if a migrant worker loses his or her job, he or she does not necessarily or immediately have to leave the country but should be viewed as part of the normal workforce. Page 15 of 15