OUTBOUND/GLOBAL IMMIGRATION PRACTICE CLIENT BULLETIN FEBRUARY 5, 2010 The Global Immigration Group at Cohen & Grigsby would like to make you aware of the following changes in global immigration practice and regulation: INDIA As you know from previous updates, the government of India has taken measures to significantly tighten the restrictions on foreign travelers. Beginning in September 2009, the government announced that it would begin stricter enforcement of the existing Business and Employment visa regulations. This resulted in a great deal of scrambling for foreigners who were already in India, working on various projects with only a Business visa. Remember: Business Visas are for BUSINESS ONLY (e.g. meetings, sales calls, customer/supplier site visits, etc.), and Employment Visas are required for anyone performing any sort of WORK in India regardless of the duration of the assignment or employment relationship with an Indian company. Just before Christmas, the Ministry of Labour announced some additional changes which will, perhaps, have an even greater impact on companies wishing to send temporary workers into India. In addition to the documents traditionally required by Indian consulates in support of Employment Visa applications, the consulates now require an Employee Details form from the applicant and a tax letter from the sponsoring Indian company. The Employee Details form is an electronic form and should not present any undue difficulty for the applicant to complete. The tax letter, however, could be a deal-breaker. The tax letter must be signed/chopped by the Indian company, and must explain where and how the foreign worker s income taxes will be paid, and by what entity(ies). In addition to this simple declaration, the letter must also confirm the sponsoring company s commitment to hiring Indian workers. Specifically, the company must certify that, for the contract/project work at hand, the total number of foreigners being hired for the project will not exceed 1% of the company s total workforce or 20 employees whichever is LOWER. It will be possible for the total number to exceed 20 workers (as long as the total still remains within the 1% limitation), but the adjudication of these applications will be much longer and less assured of success. There are minor exceptions for certain industries, and exemptions can be requested for almost any project, but the issued guidance on these elements is not clearly defined. Our partners in India are communicating with the relevant authorities to clarify the new requirements, and we will have more detail for you soon. In the mean time, please plan well in advance for any potential Indian work assignment, and contact a member of the Cohen & Grigsby Global Immigration Practice staff before confirming any travel plans to India. 1
In addition to the new tax letter requirement for Employment Visas, the Indian Consulates now require photocopies of each applicant s original birth certificate or most recent educational diploma. This new requirement, effective 15 January 2010, applies to ALL visa applicants regardless of the visa type for which they are applying. CZECH REPUBLIC As of January 1 st, 2010, the government of the Czech Republic has implemented stricter requirements regarding medical insurance. While the requirement to have certified medical coverage while in the Republic was already in place, the new regulations significantly limit the options for long term residents. For travelers who will spend fewer than 90 days in the Republic, the insurance documentation requirements remain largely the same (i.e. consistent with standard Schengen requirements). Applicants and current holders of visas valid for entries shorter than 90 days may provide proof of insurance from any company legally allowed to provide this service either in the Czech Republic or in the applicant s home country. For those who are or will be staying in the Republic for more than 90 days, or who will be applying for long-term residence while in country as a temporary visitor, however, the requirements are now much stricter. The new regulations require that these long-term visitors and residents provide proof of insurance from one of the approved insurance companies that appear on a very short list. At present, this list includes only 21 providers all officially registered in the Czech Republic. Other providers (e.g. BUPA and CIGNA) are seeking to register and be added to this list, but there is no word on whether or when these additional companies may be added. The new requirement is effective immediately for all new applications, but the Czech government has allowed a grace period of three months (through 31 March) for those already with long-term permits to find and procure new insurance coverage, if necessary. For new applications, this new requirement will be enforced during the application process carried out at the Czech consular missions around the world, but there has been no official word on how the new requirements will be implemented and enforced for those who are currently resident in the Republic. We will continue to monitor this development and will advise of any additional changes of note. FRANCE A recent declaration in France will now allow certain foreigners access to a 10-year Residence Permit without many of the requirements normally associated with this permit. A foreign citizen who is legally resident in France and who makes exceptional economic contributions in France may apply for the long-term permit without first obtaining a work permit; residing permanently in France for more than five years; or providing evidence of stable and sufficient funds and proof of integrated residence in the country. If the foreigner is legally resident in France, and can show that he whether individually or through a company he heads or holds 30% stake in will either invest 10 million or more Euros, OR will create or save at least 50 jobs in France, he may obtain the long-term permit. The 10-year Residence Permit allows foreigners more rights as legal residents in France than shorter term permits, and will automatically renew every 10 years as long as the holder remains in compliance with the laws of France and is not absent from the country for more than three years at a time within the 10-year validity of the permit. Some investments (either in capital or workforce) which are speculative, or merely 2
intended, MAY be acceptable, but these will be reviewed periodically to monitor progress. If none can be shown within a year, or if the funds come from or fund illegal activities, the permit may be revoked. In December, the government of France also issued new guidelines on the potential penalties of illegal employment. Illegal Employment in France includes not only the hiring of foreign workers without proper work authorization, but also the failure to declare the correct number of foreign workers in the company and underreporting of the number of hours being worked by those foreign workers. This may also include instances of foreign workers who may have a proper work permit, but who are performing work inconsistent with the information provided at the time the work permit was obtained or those who are indirectly assigned to work for the client of the French subsidiary office (in cases of intra-company transfer), rather than in the company s French office. Penalties for engaging in illegal employment can include fines of up to 45,000 and three years imprisonment for company representatives/officers, for each offence. In addition, the new guidelines have widened the net on potentially liable parties. In addition to the employee and the French company directly engaging that worker s services, contracting, seconding, and even foreign parent companies may be held liable and subject to penalties. There is some discussion about how the French government plans to enforce the sanctions on companies outside of France, but there is no uncertainty about their plans to fully enforce the rules on those within France. AUSTRALIA For some time, Australia has required businesses that sponsor foreign workers to be formally registered to do so. Standard Business Sponsors may sponsor Subclass 457 Visas for foreign workers traveling to Australia for temporary, employment-based, residence including short-term, project-based work. These companies also agree to be fully responsible for meeting the Department of Immigration And Citizenship s requirements for working conditions, salary and benefit minimums, and maintenance of the worker and his/her family, if necessary. Until recently, only licensed Australian businesses were eligible to act as Standard Business Sponsors. In September, 2009, the Australian government began allowing non-australian entities to become licensed as Overseas Business Sponsors. Overseas Business Sponsors (OBS) may sponsor their own employees to perform short-term, project-based work in Australia. That is, the registered OBS may not sponsor any employee of the company s parent or subsidiary organizations, contractors, temps, etc. ONLY those who are DIRECTLY employed by the registered company. Applications to become an Overseas Business Sponsor can be filed at any time before, or concurrently with, an individual application for a 457 visa. ARGENTINA Although the basic visa requirements have not changed for Australian, Canadian, and U.S. citizens traveling to Argentina (i.e. no visa is required for stays up to 90 days for business or tourism), Immigration and Border Control authorities are now collecting reciprocity fees from citizens of these countries upon entry to Argentina. Also referred to as Entry Fees, these fees must be paid by every man, woman, and child who is a citizen of these three countries and who wishes to enter Argentina. The Entry Fee must be paid every time for citizens of Australia and Canada, but is good for multiple visits within 10 years for U.S. citizens. The fees are USD 100 for Australian citizens, USD 70 for Canadian 3
citizens, and USD 131 for U.S. citizens. These fees may be paid in Argentine Pesos or U.S. Dollars, and may be made by cash, credit card, or travelers checks. No additional requirements have been added for these travelers at this time. Also, Argentina and India have put into place a new agreement allowing more freedom of movement between the two countries for business travelers. As of November 30 th, 2009, citizens of Argentina and India who hold valid passports, are traveling for business, and who have applied for a business visa, will be issued 5-year, multiple-entry Business Visas, valid for 90 days per entry, for travel to the other country. Pursuant to this new agreement, the consular filing fees have also been waived. JAPAN Although we don t have full details on the procedural impact just yet, changes have been announced in Japan that will affect foreign workers and residents within the next three years. The biggest changes to immigration include: The maximum allowable duration of legal residence will be raised from three years, to five years. Re-entry permits will only be required if/when the foreign resident is absent from Japan for more than 12 months during the validity of his legal residence. A new, more secure, Residence Card will replace the current Alien Registration Card. These should be positive changes which will simplify the in-country requirements for foreign workers and their families. In addition to the improvements on the benefits side, however, there will also be additional and more strictly-enforced penalties for those found in violation of the immigration and labor laws of Japan. These and other changes are to be rolled out by mid 2012. We will keep you updated as we receive more information. UNITED KINGDOM Changes to the new Points Based System of immigration in the U.K. continue to come. Some of the latest changes include the issuance of national ID cards to Tier 2 sponsored workers, the exclusion of intra-company transferees to eligibility for earning Indefinite Leave to Remain (i.e. permanent residence); and the possible lowering of educational requirements for Tier 1 Highly Skilled foreign workers. We will continue to track these and any other changes Parliament brings up, and will keep you informed as new rules actually get put into play. ITALY Policy changes have also been announced in Italy that should benefit those companies who send multiple employees to work in Italy each year. These changes will allow the Italian company to file a pre-approved validation ( protocollo d intesa ) with the Ministry of Interior. Once the protocollo d intesa is filed, the company need only submit the standard online work permit request and obtain approval from the police without filing anything with the immigration office (as is the current practice). Approval to issue the visa is then sent directly to the relevant consulate. This new option will cut down the processing time for multiple work permit applications, as the corporate documents will only need to be submitted once, rather than with each individual work permit application. The Ministry of Interior is 4
still developing the procedures and forms, but we expect to have confirmation of the new procedure s implementation soon. As always, we will keep you informed. Please contact any member of the Cohen & Grigsby Immigration Department if you have any questions regarding the above at 412.297.4900. To receive future bulletins by e-mail, please send an e-mail to info@cohenlaw.com. Copyright 2010 by Cohen & Grigsby, P.C. (No claim to original U.S. Governmental material.) All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise, without prior written permission of Cohen & Grigsby, P.C. and is intended to alert the recipients to new developments in the area of immigration. The hiring of a lawyer is an important decision that should not be based solely on advertisements. Before you decide, ask us to send you free written information about Cohen & Grigsby's qualifications and experience. 5