Wolfsdorf Rosenthal LLP

Global Immigration Update February 2015


VANDER ELST IMPLEMENTATION IN THE EUROPEAN UNION

This article provides an overview of Vander Elst implementation in several countries. The Vander Elst process derives from a 1994 ruling by the European Court of Justice regarding the right of a European Union (EU) company to provide services within the EU. It generally allows a non-European Economic Area (EEA) national who is legally employed by a company in an EU country to provide services on a temporary basis to a company in another EU country on behalf of his or her employer without the need to obtain a work permit. A further judgment was delivered in 2006 (Case C-244/04) regarding whether or not the non-EEA employee should have an employment history for a specific duration of time with his or her employer. The 12 months being imposed by some countries was considered disproportionate. However, as the court did not suggest what period of employment might be acceptable, a minimum period is not required before posting an employee to the State for the purpose of providing a service for a limited period.

Belgium

If certain conditions are met, no work permit is required for non-EEA employees employed by a company established in an EEA Member State that provides services in Belgium. Under Belgian law, the Vander Elst work permit exemption can be invoked for non-EEA employees who are entitled to reside in the EEA member state of their residence for more than three months. The employees must also be lawfully employed in the EEA member state of their residence. This implies that they have a work permit, valid for the duration of the work to be performed in Belgium, as well as a regular employment contract. The foreign employees must hold passports and residence permits, valid up to the duration of the work in Belgium, to guarantee their return to their countries of origin or residence. There is no seniority requirement for the employees with the sending companies.

The sending EEA company (for audits) and/or the employee (for visa applications, or for registration for residence purposes) must be able to prove that the Vander Elst exemption applies. In practice, the interpretation of the words “provide services” can be an issue. Most authorities require that the work in Belgium be performed on the basis of a direct contract between the sending EEA company and the Belgian company. The employee may encounter difficulties when registering for long-term residence on the basis of the Vander Elst work permit exemption. It can be a challenge to convince municipal authorities that the exemption applies.

France

France recognizes the treaty rights on delivery of service from a business in a member state to a client located in France. In the framework of such delivery of service, the business may post its third-country employee to France, without being subject to a work permit in France, in accordance with case law in the Vander Elst and subsequent rulings. Such third-country posted worker must be a local employee of the service provider and be authorized to live and work in the member state where the service provider is located. The employee must also be covered under the social security of the member state where he or she is employed. If the posting in France will last more than 90 days, the third-country employee will be subject to a EU service provider permit to stay. The permit to stay is valid for 12 months, and usually is renewed once only.

If the third-country employee is a visa national and will enter France from outside of the Schengen Area, he or she will be subject to a Schengen visa.

Italy

To qualify under the Vander Elst ruling, the employee must be hired by a company established in another European Union state. No specific seniority with the sending company is required. The Italian company must send an online notice to the Immigration Office. If the employee already holds a Schengen residence permit, he or she can enter Italy without applying for a visa. If, on the contrary, the employee holds a residence permit issued by a non-Schengen country, he or she must apply for the relevant visa at the Italian consulate in the country of residence. The posting to Italy cannot exceed four years. 

The Vander Elst ruling was implemented in Italy in 2007 with Law 46/2007. Until now, however, it has not been fully implemented. For workers coming from a Schengen country (who do not need a visa), the police—usually alleging that the individual does not have the “necessary” work visa—refuse to issue a permit of stay. For workers coming from a non-Schengen country (the United Kingdom, for example), the online system does not allow these kinds of applications. Therefore, Immigration Offices cannot send the required online notices to the consulates and the visas cannot be issued.

Netherlands

To qualify under Vander Elst in the Netherlands, the employee must be a regular employee of the company in the sending state in the European Union (EU), European Economic Area (EEA), or Switzerland and must have a valid permit to work and stay in that country. The work assignment in the Netherlands must be temporary (with a maximum duration of two years) and the authorities must be notified in advance.
Nature of the service provided: In its decision of September 11, 2014 (Essent case, C-91/13), EU Court of Justice (EUCJ) has made it clear that all types of services are allowed. Specifically, a service consisting of the posting of employees within the meaning of Directive 96/71/EC, article 1(3)(c), falls under the Vander Elst doctrine. The exclusion of workers of temp agencies under the Vicoplus case law (Case C-307/09) only applies to workers in newly acceded Member States during the transition period; i.e., currently to Croatian workers sent from Croatia to other Member States.

Procedure: The company must notify, in writing, a specific department of the Ministry of Social Affairs at least two days before the employee starts working. If the worker will stay in the Netherlands longer than the limit of his or her Schengen visa or visa-free stay, the employer must apply for a residence permit with the immigration authorities.

Partners and children under 18 can apply for a dependent residence permit based on family reunification.
Requirements and documents: For the notification, the employer should provide: 

  • a copy of the valid permit of the employee to stay and work in the member state where the company is based, and 
  • a copy of the service contract 
  • For the (optional) residence permit, the employer should provide the following additional documents: 
  • a labor contract between employer and employee, and 
  • a copy of pay slips
Complications: One problematic aspect is that the only feedback the employer receives on the notification is a confirmation once the notification is complete. This does not confirm in any way that the work to be carried out meets all requirements. If in the course of a random Labor Inspectorate audit the Inspectorate concludes that not all requirements of the cross-border provision of services are met, both the client and the service provider will be fined a fixed amount of €12,000 per deployed employee.

General:

  • BRAZIL – Brazil issued a new Service Order on time of service for a foreign company.
  • CANADA – Canada’s new “Express Entry” permanent residence immigration process is now open to applications. Also, a new immigrant investor venture capital pilot program is expected to be launched soon.
  • ITALY – The Italian government has released new quotas for subordinate work and autonomous work.
  • MEXICO – The new “Temporary Migration Regularization Program” took effect January 13.
  • UNITED KINGDOM – Several developments have been announced.

BRAZIL

Brazil issued a new Service Order on time of service for a foreign company.
Brazil issued a new Service Order (No. 01/2015) on January 15, 2015, providing that for purposes of proof of experience, when the candidate is, or was in the past, an employee of a company of the same economic group of the Brazilian sponsoring company, the time of service for the foreign company can be proven through a statement prepared by the Brazilian company, provided that the letter is signed by a statutory officer of the Brazilian company.
The order also states that “any document admitted by law” will also be accepted to prove the experience. The big question here is what will be considered as admitted by law.

CANADA

Canada’s new “Express Entry” permanent residence immigration process is now open to applications. Also, a new immigrant investor venture capital pilot program is expected to be launched soon.

New “Express Entry” Permanent Residence Immigration Process 

Citizenship and Immigration Canada (CIC) has introduced “Express Entry,” a new permanent residence immigration process modeled on New Zealand’s and Australia’s permanent residence immigration processes. As of January 2015, applicants for Canadian permanent residence under certain economic programs who will be residing outside of the Province of Québec must apply for permanent residence via Express Entry. Applicants who intend to reside in Québec are not subject to Express Entry and must apply to one of Québec’s permanent residence programs. 

Express Entry applicants must first create an Express Entry profile online and input their personal information such as age, level of education, proficiency in Canada’s official languages (English and French), Canadian and foreign work experience, and whether they have arranged employment in Canada. Upon creating the profile, applicants are then placed in a “pool,” are assigned points based on such factors, and are ranked against other applicants in the pool. Applicants who have arranged employment in Canada—that is employment backed by a Labour Market Impact Assessment (LMIA) issued by Employment and Social Development Canada—can receive 600 bonus points. To secure an LMIA, for which there is no charge for Express Entry purposes, an employer must advertise the permanent position and demonstrate that no Canadians can be found to fill it. Candidates without arranged employment must register with the Canadian

Job Bank to connect with potential employers.

CIC will be regularly performing “draws” to select the highest-ranked candidates in the Express Entry pool and issue them Invitations To Apply (ITAs) for permanent residence. Only candidates who are among the highest ranked in the pool and have received ITAs can proceed with submitting permanent residence applications.  

In addition to receiving an ITA, an eligible candidate must qualify for one of Canada’s existing permanent residence programs: the Canadian Experience Class Program, the Federal Skilled Worker Program, the Federal Skilled Trades Program, or the Provincial Nominee Program. CIC has stated that it will process permanent residence applications in 6 months or less, as opposed to a minimum of 12 months under the previous system.

Applicants wishing to proceed with creating an Express Entry profile should first take one of the designated English or French tests recognized by CIC and have their foreign academic records evaluated by a designated Educational Credential Assessment agency. This increases the chances of being awarded Express Entry points for official language proficiency and level of education. Where applicable, LMIAs should be sought by employers to permit the possibility of 600 bonus points to be accorded to Express Entry applicants. These processes can take several weeks to complete, so it is best that they be started well in advance of applicants activating their Express Entry profiles.

Immigrant Investor Venture Capital Pilot Program 

In December 2014, CIC announced the anticipated launch in late January 2015 of a new federal investor program, the Immigrant Investor Venture Capital Pilot Program. 

Pursuant to the Immigrant Investor Venture Capital Pilot Program, applicants will be required to make a non-guaranteed investment of $2 million for a period of 15 years to the Immigrant Investor Venture Capital Fund. The Immigrant Investor Venture Capital Fund will be used to fund Canada-based start-up companies with high growth potential. The previous federal Investor Program, closed to applications in February 2014 by CIC, required a guaranteed investment of $800,000 and was criticized for failing to generate new investment and jobs in Canada. 

To be eligible for the Immigrant Investor Venture Capital Pilot Program, applicants must possess a net worth of at least $10 million. This net worth must be evidenced by a due diligence report issued by a designated service provider to prove that the funds were obtained from a lawful, profit-making business or investment activities. In addition, applicants must meet the minimum official language threshold for knowledge of English or French, as demonstrated by taking a designated English or French test recognized by CIC. Applicants normally must have completed a minimum of one year of post-secondary studies, as evidenced by a Canadian post-secondary credential or an Educational Credential Assessment made of their foreign academic records by one of the designated Educational Credential Assessment agencies. However, it will be possible for applicants who have a net worth of at least $50 million to request an exemption from the

Educational Credential Assessment requirement.

CIC will accept up to a maximum of 500 applications within a specified period that has yet to be determined. Subsequently, a random lottery will be performed to select applications for processing until approximately 50 approved investor applications are finalized.  

ITALY

The Italian government has released new quotas for subordinate work and autonomous work.

The Italian government has announced the issuance of 17,850 new quotas for subordinate work and autonomous work. Applications have been available online since December 23, 2014, but they can only be submitted once a decree is officially published and comes into force. One thousand quotas are available for individuals who have completed study courses in their home countries, and 2,400 quotas are available for the following autonomous work activities: (i) entrepreneurs carrying out activities of interest for the Italian economy; (ii) freelancers, including workers in skilled regulated professions (e.g., lawyers, doctors, architects), or in professions not regulated by professional registers or by corporative arrangements but nationally representative and included in Public Administration lists; (iii) officers and owners of non-cooperative companies; (iv) internationally known artists or artists with high professional qualifications employed by public or private organizations; and (v) individuals willing to set up innovative start-up companies (per law no. 221, December 17, 2012). Two thousand quotas have been allocated to individuals assigned to work at the Milan Expo 2015.

One hundred quotas for subordinate and autonomous work are reserved for individuals of Italian origin, with at least one Italian parent (up to third in line of direct ascendancy) residing in Argentina, Uruguay, Venezuela, or Brazil.

12,350 quotas are for the conversion of existing permits into work permits. Among these, 6,000 quotas are for conversion of study/training permits into subordinate work permits; 1,050 quotas are for conversion of study/training permits into autonomous work permits; 4,050 quotas are for conversion of seasonal work permits into non-seasonal work permits; 1,000 quotas are for conversion of European Community (EC) long-term residence permits issued by other EU Member States into Italian subordinate work permits; and 250 quotas are for conversion of EC long-term residence permits issued by other EU Member States into Italian autonomous work permits.

As always, the quotas will be allocated on a first-come, first-served basis.

Online applications can be submitted until August 30, 2015, by registering on the website of the Ministry of Interior at https://nullaostalavoro.interno.it.

MEXICO

The new “Temporary Migration Regularization Program” took effect January 13.
On January 12, 2015, the Mexican government published an announcement in the Federal Official Gazette about the “Temporary Migration Regularization Program,” which became effective the day after and will expire on December 18, 2015.

The program incorporates requirements and procedures temporarily applicable to foreigners who entered Mexico legally before November 9, 2012, and who, as of January 13, 2015, have been living in Mexico under an irregular migration status. 

The program establishes that if the migration authority resolves the migration filing as approved (taking into account that the interested individual filed a migration regularization application), the authority will grant temporary resident status for four years with the possibility of requesting a work permit with authorization to perform remunerated activities in Mexico.

This program is aligned with various strategies of the Mexican government implemented in recent years (after publication of the Migration Act in 2011) that in general seek to promote specific actions that guarantee protection of the human rights of immigrants under unfavorable conditions, such as irregular status, which often represents a risk to their security, access to health services, and development in society.

UNITED KINGDOM

Several developments have been announced.

Prime Minister Pulls Back on Proposed Immigration Restrictions

Prime Minister David Cameron has scrapped his proposal to institute an “emergency brake” on immigration from the EU to the United Kingdom (UK). In January, it was reported that German Chancellor Angela Merkel expressed her willingness to discuss curbing EU migrant access to benefits with the Prime Minister, but warned that Germany was prepared to see the UK exit the EU rather than allow the UK to circumvent free movement.

Mr. Cameron’s inability to sway the EU to his position, as well as Conservatives’ concerns about debating immigration in the lead-up to the general election, have resulted in an odd calm for the moment. Most recently, and notably, the Prime Minister failed to include immigration in his six themes for the Tory manifesto despite a significant number of polls from a variety of sources showing it as one of the top issues across many demographics. 

In a recent YouGov survey, when Britons were asked to list the most important issues facing the country, 52% of those surveyed cited immigration. However, when those same individuals were asked to state the most important issues they and their families faced, immigration dropped to fourth place at 20%. A January 2014 Ipsos MORI report cited a similar survey, which showed that a far greater percentage of Britons (around 70%) viewed immigration as a national issue, but only about 20% viewed immigration as an issue where they lived.

Biometric Residence Permits for All Migrants To Be Rolled Out

The Home Office will shortly roll out Biometric Residence Permits (BRP) (otherwise known as BID) for all visa applicants applying to enter the UK from overseas. The BRP is a plastic card with details on the applicant’s visa type and visa validity dates. There will be a phased introduction once Parliament has approved the legislation and an upgraded visa application system has been introduced. Pakistan has been proposed as the first country to receive the new permits.

There are no confirmed dates, but the Home Office has indicated that the first roll-out should occur in March, followed by a second roll-out in India, China, and 32 other countries in April, and a roll-out in the United States at the end of May. All remaining countries will implement the new process at the end of July.
Detailed guidance on the new process is expected imminently. The following is an overview:
All applicants applying overseas for a visa of more than six months’ duration will receive a notification letter with details on where to obtain the BRP once they arrive in the UK.

To enter the UK, applicants will be issued a 30-day short-term travel visa vignette in their passport, which will be valid from their intended date of travel to the UK. If the applicant’s intended travel date is delayed after he or she has submitted a visa application, the applicant may need to apply for a further 30-day travel visa at a cost of £109. This may take up to 15 days to be issued.

Within 10 days after arriving in the UK, applicants must go to their nearest designated post offices with their passports to collect their BRPs. The post office selected will be based on the UK address that the applicant has included on the visa application (this can be a work address).

People applying for visas from within the UK will already be familiar with the process, although for these applicants the BRPs are mailed to the applicant or his or her nominated legal representative. With the roll-out of the new process for those applying from overseas, there are no plans for legal representatives to be able to collect the BRP from the post office on behalf of the applicant or be sent the BRP by mail. However, a nominated third party, approved by the Home Office, may collect the BRP on behalf of the applicant in exceptional circumstances; e.g., medical incapacity, visiting VIPs, and refugee support. The Home Office will arrange the third party collection with the relevant post office branch and provide a letter of authorization for the post office official to conduct an identity check.

Sponsors and migrants should be made aware of these changes and the implications if travel to the UK is delayed for any reason. It will be important for migrants to ensure that they collect their BRP within 10 days of arrival to avoid incurring a penalty charge of £125.

Non-EU Family Members With Valid EU Residency Permission Need Not Apply for Additional Permission To Enter the UK

In December, the European Court of Justice (ECJ) handed down a significant judgment regarding the rights of non-EU family members of EU citizens to enter the UK.

In that case, a dual British and Irish citizen, his Colombian wife, who held a Spanish residence card, and their children had resided in Spain since 2010. The family also had a house in the UK to which they would travel often. However, UK law required that the wife obtain an EEA family permit before entering the UK, a process that required applying at the diplomatic mission in Madrid, a significant distance from their home in Marbella.

The court held that “a person who is a family member of a Union citizen and is in a situation such as that of Ms. McCarthy Rodriguez is not subject to the requirement to obtain a visa or an equivalent requirement in order to be able to enter the territory of that Union citizen’s Member State of origin.”

The UK government has expressed its concern and disappointment with the ruling, citing a lack of consistency among EU member states with regard to the issuance of residence cards.

‘Right To Rent’ Checks Take Force for West Midlands

Landlords in the West Midlands must now undertake “right to rent” checks on all prospective tenants. The checks, which took force in the Midlands on December 1, 2014, come as part of a rolling implementation of the government’s latest immigration bill.

To adequately perform these checks, private landlords, letting agents, and homeowners who let rooms must obtain evidence of an individual’s identity and citizenship. This may come in the form of official documents such as a passport or biometric residence permit. If a prospective tenant does not have his or her documentation because of a pending Home Office application, landlords may use an online “right to rent” tool.  

Failure to undertake the appropriate checks may result in fines of up to £3,000.

Tier 2 Certificates of Sponsorship Expire on April 5, 2015

The Home Office has been sending out reminders about the expiration of Tier 2 certificates of sponsorship (CoS) on April 5, 2015. There is a three-month window in which to submit a request for an annual certificate allocation for the period April 6, 2015, to April 5, 2016. These requests can be submitted now. These notifications are sent annually to the Authorising Officer and it is important to watch for the emails sent from no-reply@homeoffice.gsi.gov.uk. Sometimes these emails go into a spam or junk folder, so this should be checked. The Home Office is advising sponsors to submit their requests sooner rather than later to ensure that they are allocated their new CoS allowances by April 6, when their existing certificates will have expired.

A change in process this year will affect some sponsors. The Home Office is automatically allocating a fresh batch of CoS for some sponsors with established businesses and/or who have had a Home Office audit. It will therefore be necessary to check the Sponsor Management System to find out whether the sponsor has been allocated the CoS automatically. If this is the case, the sponsor will not need to take any further action.

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