ICLG The International Comparative Legal Guide to: Corporate Immigration 2017

4th Edition

A practical cross-border insight into corporate immigration law

Published by Global Legal Group, with contributions from: AILA Global Migration Section Law firm Šafar & Partners, Ltd Analytics Committee Lenz & Staehelin Arendt & Medernach Lewis Silkin Barrios & Fuentes, Abogados Lund Elmer Sandager Law Firm LLP BDO Migration Services Magrath Global Čipčić-Bragadin and Associates Mayer Brown, LLP CMG LEGAL michels.pmks Rechtsanwälte CS Global Partners Partnerschaft mbB Debarliev, Dameski & Kelesoska, Mynta Law Attorneys at Law Nakai Immigration Services LPC Enrique Arellano Rincón Abogados, S.C. NAVARRO CASTEX Abogados Gjika & Associates Attorneys at Law Oberhammer Rechtsanwälte GmbH Gomberg Dalfen S.E.N.C. PricewaterhouseCoopers Middle East LLP Gulapa Law Skrine Günbay Attorney Partnership Studio Legale Associato Simonetti Immigration Law Associates Persico Scivoletto Kingsley Napley LLP The International Comparative Legal Guide to: Corporate Immigration 2017

General Chapters:

1 The Return of the Native: “Locals First” as the New Global Immigration Policy Trend – Nicolas Rollason & Benjamin Sookia, Kingsley Napley LLP 1

2 A Global C-Suite Through Second Citizenship – Micha-Rose Emmett & Beatrice Gatti Bennett, CS Global Partners 5

Contributing Editor 3 How Common or Exceptional is a Nationality-Based Entry Ban as an Instrument for Immigration Nicolas Rollason, Kingsley Napley LLP Control? – Marcel A.G. Reurs, AILA Global Migration Section Analytics Committee 9

Sales Director Florjan Osmani Country Question and Answer Chapters: Account Director 4 Albania Gjika & Associates Attorneys at Law: Evis Jani & Njazuela Braholli 12 Oliver Smith Sales Support Manager 5 Argentina NAVARRO CASTEX Abogados: Sofia Inchauspe & Florencia Cavazza 20 Paul Mochalski 6 Australia BDO Migration Services: Maria Jockel 27 Sub Editor Hollie Parker 7 Austria Oberhammer Rechtsanwälte GmbH: Ewald Oberhammer Senior Editors & Petra Pardatscher 35 Suzie Levy, Rachel Williams 8 Belgium Immigration Law Associates: Tanel Feldman 45 Chief Operating Officer Dror Levy 9 Canada Gomberg Dalfen S.E.N.C.: Avi Gomberg & Isabelle Owston 52 Group Consulting Editor Alan Falach 10 Croatia Čipčić-Bragadin and Associates: Silvije Čipčić-Bragadin & Publisher Tomislav Bartolić 59 Rory Smith 11 Denmark Lund Elmer Sandager Law Firm LLP: Michael Møller Nielsen Published by Global Legal Group Ltd. & Julie Flindt Rasmussen 66 59 Tanner Street London SE1 3PL, UK 12 France CMG LEGAL: Valerie Maricot & Stephane Coulaux 73 Tel: +44 20 7367 0720 Fax: +44 20 7407 5255 13 Germany michels.pmks Rechtsanwälte Partnerschaft mbB: Dr. Gunther Mävers 80 Email: [email protected] URL: www.glgroup.co.uk 14 Hong Kong Lewis Silkin: Antonia Grant 90 GLG Cover Design F&F Studio Design 15 Italy Studio Legale Associato Simonetti Persico Scivoletto: Corrado Scivoletto 97

GLG Cover Image Source 16 Japan Nakai Immigration Services LPC: Masahito Nakai 105 iStockphoto Printed by 17 Luxembourg Arendt & Medernach: Philippe Schmit & Françoise Faltz 112 Ashford Colour Press Ltd. August 2017 18 Macedonia Debarliev, Dameski & Kelesoska, Attorneys at Law: Dragan Dameski Copyright © 2017 & Ema Dimitrieska 119 Global Legal Group Ltd. All rights reserved 19 Malaysia Skrine: Selvamalar Alagaratnam & Sara Lau Der Yin 127 No photocopying 20 Mexico Enrique Arellano Rincón Abogados, S.C.: Enrique J. Arellano 133 ISBN 978-1-911367-68-0 ISSN 2054-7579 21 Netherlands Mynta Law: Arend van Rosmalen LL.M. 140

Strategic Partners 22 Peru Barrios & Fuentes, Abogados: Ariel Orrego-Villacorta Icochea & María Gracia De La Piedra 149

23 Philippines Gulapa Law: Aris L. Gulapa & Phillip Don G. Recentes 157

24 Singapore Magrath Global: Ruth Wilkins 164

25 Slovenia Law firm Šafar & Partners, Ltd: Martin Šafar & Polona Boršnak 171

26 Switzerland Lenz & Staehelin: Rayan Houdrouge & Dr. Matthias Oertle 177

27 Turkey Günbay Attorney Partnership: Başar Kural & Ahu Pamukkale Günbay 184

28 United Arab Emirates PricewaterhouseCoopers Middle East LLP: Anirban Chatterji 191

29 United Kingdom Kingsley Napley LLP: Nicolas Rollason & Kim Vowden 198

30 USA Mayer Brown, LLP: Paul W. Virtue & Elizabeth Espín Stern 211

Further copies of this book and others in the series can be ordered from the publisher. Please call +44 20 7367 0720

Disclaimer This publication is for general information purposes only. It does not purport to provide comprehensive full legal or other advice. Global Legal Group Ltd. and the contributors accept no responsibility for losses that may arise from reliance upon information contained in this publication. This publication is intended to give an indication of legal issues upon which you may need advice. Full legal advice should be taken from a qualified professional when dealing with specific situations.

WWW.ICLG.COM Chapter 1

The Return of the Native:

“Locals First” as the New Nicolas Rollason Global Immigration Policy Trend

Kingsley Napley LLP Benjamin Sookia

officials responsible for immigration to propose new rules and issue Introduction new guidance “to protect the interests of United States workers”. Announcing a review of the H-1B visa, his statements underlined The populist anti-immigration forces that have been at play in recent his wish to see that “American labor is hired to do the job” and political events (Brexit, Trump, the rise of the far right in the EU and his concern that “widespread abuse” in the US immigration system so forth) are now taking on a much more tangible and real form in was “allowing American workers of all backgrounds to be replaced the form of changes to employment-based immigration policies in by workers brought in from other countries to fill the same job for leading economies. sometimes less pay”. His statement also coincided with a USCIS The increasingly protectionist policies which have been a response memorandum which revised the current guidance on the H-1B to public concerns about immigration expressed at the ballot box “specialty occupation” designation of computer programmers, have recently been evident in announcements on skilled immigration essentially excluding entry level programmers from qualifying for made by government leaders across the globe. The last year has H-1B visas. seen a number of policy developments which show governments More recently, the US Secretary of Labor Alexander Acosta taking real action to respond to voters’ concerns about immigration announced on 6 June 2017 a number of measures “to increase and whether they are being bypassed in favour of cheaper migrant protection of American workers while more aggressively labour. confronting entities committing visa program fraud and abuse”. These policies have been particularly targeted at global tech Secretary Acosta said these measures will include “heightened use of outsourcing companies which often make up a considerable criminal referrals” while “the US Department of Labor will focus on percentage of visas issued to skilled individuals in developed preventing visa program abuse and take every available legal action economies. In the US, for example, the H-1B scheme is dominated against those who abuse these programs”. The announcement made by the large tech outsourcing companies, while in the UK the clear the new DOL policy to “enforce vigorously all laws within its Migration Advisory Committee’s review of Tier 2 in 2015 identified jurisdiction governing the administration and enforcement of non- tech outsourcing and consulting businesses as the highest users of immigrant visa programs”. In particular, this includes directing the the Tier 2 (Intra-company Transfer) visa route. Yet the wider trends DOL’s Wage and Hour Division to use all its tools in conducting emerging are targeting all employers with a clear policy goal of civil investigations to enforce employment protections provided by forcing them to recruit and invest in local workers. the visa programmes, to target resources at identifying systemic visa Recent announcements have focused on the following: fraud, to coordinate enforcement activities and to make referrals of ■ taxing employers who hire migrants through skill levies criminal fraud to the Office of the Inspector General. which fund local training and apprenticeships; ■ forcing employers to favour locals in their recruitment and United Kingdom HR policies; ■ naming and shaming of non-compliant employers; On 6 April 2017, a raft of new rules was brought for the main ■ significantly increasing visa processing fees; employer-sponsored Tier 2 visa route. These were the second part ■ extension and deepening of compliance and inspection of policies announced in 2016 in response to the Migration Advisory regimes to target higher risk employers; Committee’s recommendations on reforming the Tier 2 route. The ■ extending the use of resident labour market testing prior to April changes targeted the Intra-company Transfer (ICT) route, sponsorship; and under which established employees can be transferred from group ■ enforcing local wage controls to ensure local wages are not companies overseas to the UK. The minimum salary to be paid to undercut. those being transferred into the UK under this route was increased These trends are evident in a number of recent “locals first” significantly to £41,500 per annum, again making it less attractive immigration policy announcements which we will review below. to bring in junior or entry-level employees, while also extending the Immigration Health Surcharge of £200 per year of the visa to those coming under this route. A new Immigration Skills Charge was also United States introduced, placing a levy of up to £1,000 per year of a sponsored visa for both new hires and ICT transfers with the proceeds going On 18 April 2017, President Trump issued what he described to train and up-skill locals. These charges now mean that a large as a “Buy and Hire American” Executive Order, calling for US company sponsoring a skilled worker for five years will have to

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pay an additional £6,000 in addition to UK visa fees. Again, these Skilling Australians Fund levy is an example of this. Due to be changes have been targeted at making hiring migrants less attractive. introduced in March 2018, it will require small employers to pay The Conservative Party launched its manifesto for the 8 June 2017 AUD$12,00 per year of any temporary visa and a flat upfront fee UK general election with a continuing focus on driving down net of AUD$3,000 for permanent visas, while large employers will pay immigration. This manifesto stated that “skilled immigration AUD$1,800 and AUD$5,000 respectively. Australia’s Education should not be a way for government or business to avoid their and Training Minister Simon Birmingham said the fund would obligations to improve the skills of the British workforce”. It create 300,000 apprenticeships by July 2021 as well as delivering proposes doubling the Immigration Skills Charge to £2,000 per year “the skilled workforce Australian employers need to fill skills gaps of a Tier 2 sponsored visa by 2022. In addition, the manifesto also and enable their businesses to grow…[w]e will give Australians proposes a tripling of the Immigration Health Surcharge to £600 per the best opportunity to fill Australian jobs rather than relying on year. If implemented, this policy would mean that a five-year Tier overseas qualified workers”. The fund will replace the current 2 sponsored visa could cost over £14,000 in government fees and training benchmarks under which sponsoring Australian employers levies alone. contribute 1 or 2 per cent of their payroll to training if they employ foreign workers. The last six months has seen an increase in targeted compliance visits by the Home Office. While 2015/16 was the year of targeting care homes, 2016/17 appears to have be the year of targeting IT Canada companies, particularly those with high numbers of ICT visas issued to them and with staff working at client sites. These visits have Canada’s government has announced changes to the Temporary included not only interviewing staff at length about the roles which Foreign Workers Programme (TFWP) to give greater opportunities they are undertaking and whether these match with their sponsorship to Canadians. Patty Hajdu, the Minister of Employment, Workforce details, but also trawling through CVs of unsuccessful British Development and Labor said “the changes…will help ensure that applicants for the roles for which foreign migrants were sponsored Canadians have the first opportunity at available jobs, that vulnerable to see whether any of those British or UK resident candidates were workers are protected and that the Canadian economy can continue in fact suitable for the position. We have seen instances where to grow and thrive”. The proposed changes, approved through the Home Office have sought to revoke a UK employer’s sponsor the Federal budget in March 2017, aim to increase compliance licence on the basis that they should have hired a British national for inspections of firms employing temporary workers. the role. The recent Home Office guidance issued on 6 April 2017 The first of these new policies was launched as the Global Talent also now specifically requires UK sponsors to ensure that the Home Stream (GTS), a pilot scheme within the TFWP, on 12 June 2017. Office can access their client’s sites to be able to interview staff This new stream aims to support innovative Canadian companies deployed in client offices. in accessing talent. However, as part of an application to join the This trend has been ongoing for some time as concerns increase GTS, employers must now submit a Labour Market Benefits Plan, over immigration and the impact on potential voters who feel setting out its plans for job creation, training and skills development disenfranchised and locked out of the benefits of the increasingly and knowledge transfer to Canadians. Activities which can be globalised economy and workforce. Despite failing to achieve its recognised as meeting these requirements include: stated target, the UK government has rigidly stuck to its target on ■ Increasing the number of Canadians or permanent residents reducing immigration to below 100,000 per year in order to reassure employed. voters. ■ Establishing educational partnerships with local or regional post-secondary institutions or other organisations supporting Australia skills and training. ■ Paid internships. “We are putting Australians first” – the words of the Australian ■ Developing policies to support the hiring of underrepresented Prime Minister Malcolm Turnbull, the latest leader to advocate a groups. “locals first” immigration policy, announcing on 19 April that the ■ Training Canadians or permanent residents. 457 visa would be reformed and closed in 2017 to ensure that ■ Increasing growth, employment or investment. preference is given to Australians. Mr. Turnbull stated that “we ■ Developing partnerships with organisations that assist with [will] no longer let 457 visas be passports to jobs that could and identifying top domestic capital. should go to Australians”. As well as condensing the occupation Participant firms are “encouraged to recruit Canadians and lists used for skilled migration visas, including the subclass 457 permanent residents before offering a job to a temporary foreign visa, the new policy introduced the temporary skills shortage visa worker” and must pay the prevailing wage. In contrast to the which, among other things, includes more targeted occupation increasingly restrictive immigration policies in the US, the GTS is lists, a requirement to pay the Australian market salary rate and a new scheme which provides a fast track visa for firms to attract meet the Temporary Skilled Migration Income Threshold to ensure global talent to Canada. However, it is underpinned by a clear that “overseas workers cannot be engaged to undercut Australian commitment by participant companies to hire and train locals. workers”. A focus on protecting the local labour market was evident in the requirements for mandatory labour market testing, a non- discriminatory workforce test to ensure employers are not actively Singapore discriminating against Australian workers and a requirement to pay a contribution to the Skilling Australians Fund. This last requirement Singapore’s Fair Consideration Framework was implemented in would also be extended to employer sponsored permanent skilled 2014 to ensure that locals were considered for job openings and visas. includes increased advertising requirements and greater scrutiny of Of interest is the use of government fees and levies as a way of employers’ HR practices. A “watch list” was created in 2016, which not only dissuading employers from hiring foreign workers but as at March 2017 contained around 250 companies that are not seen also contributing to up-skilling the local workforce. Australia’s to be doing enough to possess and build a Singapore “core” in their

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workforce. Those on the watch list are subjected to much greater The first thing is that employers will have to engage much more scrutiny in their applications for Employment Passes and are subject meaningfully in showing that they are fully committed to training to six-monthly reviews. Employers wishing to come off the watch and developing local talent. In some jurisdictions such as Singapore, list and those seeking Employment Passes for foreign nationals now governments are taking the coercive approach, forcing businesses to have to go to great lengths to show that they are giving preference be “good” employers who favour and develop locals, while making to locals, including attending job fairs, working with local an example of the bad (or less good). Attendance at recruitment education institutions to help design better courses and creating in- fairs, assisting higher education institutions with designing and house programmes to hire locals. The Ministry of Manpower has developing their graduate programmes for locals, and applying announced that it will take a “differentiated approach”, effectively rigorous advertising and recruitment processes which do not rewarding compliant and progressive companies with faster access exclude locals are now de rigeur for those who want to be “good” to government services. A number of companies have now been sponsoring employers. In other jurisdictions such as the UK and selected to join the Human Capital Partnership which rewards Australia, this means paying a large premium for the privilege of “triple strong” companies in sectors crucial to Singapore’s future recruiting or transferring foreign workers. The UK is now the most growth. At the same time employers are reporting a significant expensive country in the world from which to sponsor a migrant, increase in the refusals of Employment Pass extension applications with government visa and levy fees now more than £7,000 for a long and Permanent Resident applications. term Tier 2 visa. Governments seem to be keen to price their local businesses out of the race for global talent. The race now seems to be about up-skilling the local work force as quickly as possible to New Zealand provide a local alternative for employers. Second, employers and their representative bodies will need to be On 19 April 2017, the day after a similar announcement by the much more vociferous than they have been in putting the positive Australian Prime Minister, New Zealand’s immigration minister argument for the benefits of skilled migration and immigration Michael Woodhouse announced changes to the skilled worker policies that ensure that talent can still come. In the current political visa. He stated that “the government has a Kiwis-first approach environment, one feels that they have been timid about pushing to immigration”. He went on to say “[i]t’s important that our this agenda for fear of being criticised as part of the problem of immigration settings are attracting the right people, with the right the globalised economy and representing the elite. Businesses do skills, to help fill genuine skill shortages and contribute to our not like to put their head above the parapet for fear of attracting growing economy”. The new policy was “aimed at managing the criticism and damaging their brand. Part of this concern may also be number, and improving the quality, of migrants coming to New employers feel that they are not doing enough themselves in terms Zealand”. The changes include increasing the minimum salary of training and development of locals to be advocating keeping the threshold for skilled migrants, classifying high earners as high- doors open to migrants. Now may be a good time to focus on this skilled and restricting the length of visas for low-skilled workers and incorporate it into their brand so that they can feel confident in to three years. making the arguments for a pro-business immigration policy. These changes have also been accompanied by an increase in Finally, employers will need to engage more directly with their compliance inspections targeted specifically at users of these visa own workforces about the issue. These businesses employ the very types. USCIS, the US government agency that deals with approving voters who are putting ballot box pressure on governments, so part H-1Bs and monitoring compliance, has indicated that it will target of the solution will be to engage with local employees to show what companies that have at least 15% of their US workforce on H-1Bs, wider benefits for the business skilled migrants may bring, while at with a focus on employers who have sponsored employees working the same time investing more in recruiting and training locals. In the at client sites. UK, a number of employers have undertaken pre-Brexit workforce audits, modelling the impact of the end of EU free movement and What Should Employers do? access to EU talent on their businesses and sharing this with staff. When locals can see that their own jobs might be at risk because The economic basis for these decisions appears to be extremely of political decisions, it may change opinions based on economic weak. Numerous studies have shown not only that foreign highly rather than political arguments. skilled workers do not displace resident workers but that in many What is clear is that businesses need to readjust the way they think instances they create more jobs in the economies in which they about immigration and global mobility. As the cost of immigration are working. That economic message appears to be falling on rises and as employers are having to respond to the political deaf ears when it comes to the voting population at large. As an imperative of “locals first”, there will need to be a major shift example, clear data and economic arguments about the impact of towards fairer recruitment policies, greater investment in training EU migration in the UK, and the fact that EU migrants not only and development, more targeted global mobility policies for the most contribute more than they take out of the economy but also claim cost-effective deployment of skilled staff into other jurisdictions significantly less benefits than their British counterparts, hadno and greater employee engagement. Meanwhile, employers will impact on what appears to be anti-immigration driven voting in the also have to be prepared to counter populist myths about migration Brexit referendum in June 2016. The UK is now on a path that with economic arguments which speak to local employees. What is will see it leave the world’s largest trading area and bring an end to clear is that politicians all over the world will continue to respond the free movement of EU citizens into the UK. The challenges for to populist anti-immigration sentiment by significant tightening business are immense. So what will employers need to do in order immigration rules and making employers pay more for the privilege to keep the doors open to talent? of hiring migrant workers, irrespective of the economic arguments. That, sadly, is politics for you.

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Nicolas Rollason Benjamin Sookia Kingsley Napley LLP Kingsley Napley LLP Knights Quarter Knights Quarter 14 St John’s Lane 14 St John’s Lane London EC1M 4AJ London EC1M 4AJ United Kingdom United Kingdom

Tel: +44 20 7814 1200 Tel: +44 20 7566 2942 Email: [email protected] Email: [email protected] URL: www.kingsleynapley.co.uk URL: www.kingsleynapley.co.uk

Nicolas Rollason is a partner and head of Kingsley Napley’s Ben joined Kingsley Napley LLP in March 2016 as a Global Immigration immigration practice. He advises on all areas of UK immigration and Manager in the corporate immigration team. He specialises in the nationality law, and has particular expertise in providing strategic coordination and project management of non-UK immigration matters. advice to businesses on their global immigration needs. This includes advising clients on work permit and consular processes with the assistance of KN Global’s partner network. Nicolas has extensive expertise across all immigration routes, with a widely-recognised breadth of knowledge enabling him and his team to Most recently, Ben led the EMEA immigration practice for a global offer clear solutions to complex immigration problems. He is a well- relocation and mobility services company. He has previously worked known expert in EU immigration law and has litigated key test cases as a Senior Consultant in the Client Services team at Fragomen before the European Court of Justice. He is regularly consulted by the LLP coordinating transactional immigration cases across complex UK immigration authorities on proposed changes to UK immigration jurisdictions and acting as a primary relationship contact to senior rules and policy. He is a regular conference speaker and has written executives. chapters on immigration in numerous publications. He is a long- Ben has several years’ experience advising a range of companies in standing member of the Immigration Law Practitioners Association, the IT, oil and gas and pharmaceutical sectors. He has also managed the American Immigration Lawyers Association and the Alliance short-term global immigration assignments for international law firms of Business Immigration Lawyers, and a founding member of the and media corporations. Most recently he facilitated visa applications European Immigration Lawyers Network. Nicolas is listed as a leading within a strict timeframe for a large-scale group project of specialised figure in theWho’s Who of Corporate Immigration Law, Chambers UK skilled individuals who required short-term entry into multiple and The Legal 500 UK. destinations. In addition, Ben is currently advising a well-known theatre production on their requirements to tour Asia and coordinating the process from various countries. Ben regularly advises clients with a growing global footprint and focus on the smooth transition of employees across borders in order to ensure future business success. This requires partnering with clients to deliver a strategic and pro-active approach to service delivery, an awareness of changing immigration regulations across multiple jurisdictions and a deep sense of empathy for individual employees being sent on assignment.

Kingsley Napley’s immigration team is recognised as one of the best in the UK, with over 15 years in the top tier of Chambers UK and The Legal 500. We have an established reputation for providing clear strategic immigration advice, tailored to each situation and client. Our dedicated business immigration team supports our global clients in all their immigration needs, ranging from companies setting up in the UK to assisting multinationals with transferring high volumes of staff into the UK and across the world. Our high levels of client care, together with our excellent relationships with the UK immigration authorities and our high-level policy work, enable us to deliver a service underpinned by our key values – excellence, integrity, quality and added value.

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A Global C-Suite

Through Second Micha-Rose Emmett Citizenship

CS Global Partners Beatrice Gatti Bennett

visa prior to leaving the transit area of an airport. For many, this can I. Introduction mean a missed opportunity to visit a far-away destination, or, more simply, a significant hassle. Second citizenship is most commonly hailed in the context of personal freedom and security, particularly when it acts to protect How, therefore, can businesspersons, executive decisionmakers, and families and assets from socio-political change and economic aspiring global individuals proactively take steps to improve their uncertainty. Today however, second citizenship does not simply ability to do business? A permanent, effective solution is offered play a role in responding to, or pre-empting, a crisis. It is a sought- by second citizenship, and, more specifically, by a naturalisation after quality in the business world, where mobility, exposure to process known as citizenship by investment. diverse cultures, and the ability to communicate effectively is highly prized. II. Citizenship by Investment as a Rapid Traditionally, world economic growth has been powered by the Solution United States, Europe, and certain Asia-Pacific nations such as Japan, Singapore, and Australia. International treaties reflect this, Second citizenship can revolutionise the prospects of ambitious allowing citizens of these countries to travel freely across borders businesspersons wishing to become global citizens and leaders in to facilitate trade and business connections. A notable example the international arena. However, not all second citizenship routes is the European Union’s freedom of movement for citizens of its are the same, and only a few deliver citizenship in such a way as to Member States, established by the Treaty of Maastricht in 1992. satisfy the needs of a businessperson seeking a swift outcome. Short stay visa-free treaties also illustrate this, with Germany, The most prevalent citizenship routes for those who are not dual several Scandinavian countries, Italy, Spain, and the United States citizens by birth include permanent residence and marriage. Yet consistently benefitting from travel rights to the highest number of both of these options require years of living in a host country destinations. What the status quo fails to reflect, however, is that prior to being able to claim citizenship. In the United Kingdom, these nations are no longer the sole epicentres of the business world. for example, spouses of UK citizens must wait three years before Countries like China and India are producing skilled labourers, they can naturalise. Similarly, in the United States, a Green Card businesspersons, and entrepreneurs, whose innovative drive is only holder must generally wait five years before being able to convert partly echoed in their nation’s GDP growth (around 6.7 and 6.8 per residency into citizenship. In addition, language tests apply, and cent respectively for 2016, according to the IMF). Yet for citizens of knowledge tests encompassing local history, law, and culture are these countries, developing interests abroad and solidifying business often non-waivable requirements. Both the United Kingdom and partnerships can be a challenge. United States citizenship models insist on a basic knowledge of Ordinary tasks, such as surveying overseas business opportunities, English, and a passing mark in the ‘Life in the UK’ test and Civics participating in last-minute meetings, and attending conferences, Test respectively. require flexibility and mobility. This is exacerbated by the fast- Very few people involved in the everyday running of a business are paced nature of today’s business world, in which we have grown able to commit to relocation for such extended periods of time, or, in accustomed to immediate feedback, quick turnaround times, and certain circumstances, to go as far as learning a new language. The easy communication. Those who lack flexibility and mobility businessperson with little time at hand is left with the straightforward therefore are at a disadvantage – vulnerable to being outperformed option of citizenship by investment. in a dynamic international environment. First devised in 1984 in the Caribbean twin island-nation of St Kitts In a company, C-suite executives are most likely to benefit from and Nevis, citizenship by investment is a legal procedure allowing greater flexibility and mobility, because it is with them that the applicants to receive citizenship upon the making of a significant business’ most pressing decisions rest, and by them that strategies economic contribution to a host country. Citizenship by investment for the future are formulated and adopted. Indeed, it is only when is thus founded on the premise that a commitment on the part of the the C-suite is able to make informed choices and deliver upon applicant to improve the economic standing of a nation is sufficient targets that the company as a whole can thrive. to earn that applicant the right to become a citizen, irrespective of It is not just conventional businesspersons who can suffer from whether that applicant held any previous link to the nation. their inability to flourish in an international environment. Pilots, In light of this principle, almost no citizenship by investment for example, despite habitually working across national frontiers, jurisdiction imposes residence requirements on its citizens. In are often required to obtain either a foreign crew visa or a standard the Caribbean, where five nations have embraced citizenship by

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investment, only Antigua and Barbuda requires applicants to travel applicant’s funds. Applications can be approved, delayed for cause, to its shores. Currently, applicants for citizenship by investment or denied – and it is these due diligence checks that play the largest must visit either island for five days within five years of receiving role in defining how an application will fare after submission. citizenship. Failure to do so results in loss of citizenship, although Citizenship by investment countries have also guarded themselves there is flexibility as to when the applicant can travel tothe against error. Provisions in some of their nationality laws afford jurisdiction – for example, all five days may be spent in Antigua and governments the right to deprive an individual of citizenship Barbuda in a single trip. Another prominent exception, this time if it is later found that the citizen provided false or incorrect originating from Europe, is provided by Malta, where applicants information, or concealed any material fact during the application. must prove a ‘genuine link’ to the island by completing 12 months Passport revocation has also occurred, as a matter of policy, of residency therein. when the individual in receipt of the passport used it to perform A handful of citizenship by investment jurisdictions retain some illicit activities. A significant takeaway, thus, is these countries’ form of ‘travel’ pre- or post-condition of citizenship. In Cyprus, determination to continue to review their applicants even after for example, applicants are required to travel to the country or any citizenship is obtained. Cypriot Consulate at least once for the purposes of signing their Applicants’ good behaviour, whether past, present, or future, is certificate of naturalisation and giving biometrics. crucial to their eligibility for citizenship by investment. What, else In addition to offering no, or limited, residence and travel then, must applicants demonstrate to be approved for citizenship? requirements, citizenship by investment jurisdictions are also Citizenship by investment programmes are only available to those gaining prominence for their processing proficiency. The Caribbean who are over the age of 18. Applicants must also show they are islands of Dominica, Grenada, St Kitts and Nevis, St Lucia, and in good health, primarily by submitting evidence that they are free Antigua and Barbuda, as well as Europe’s Cyprus, all stand out for from serious and contagious disease. Good moral character must their ability to process applications in around three months. St Kitts be substantiated by personal or professional references. Finally, and Nevis is set apart from its peers, however, having launched the the applicant must be both willing and able to make the required world’s first-ever citizenship by investment Accelerated Application investment. Process (AAP). The AAP, approved in October 2016, is a premium As a rule, citizenship by investment programmes offer two forms of option by which applicants can ensure that both their certificates qualifying investments: a donation to a national fund; or the purchase of registration and their passports are issued within 60 days of of pre-approved real estate. Certain programmes allow investments submission of their application. Bona fide applicants who select the in entrepreneurial projects or in government bonds, although these AAP are therefore guaranteed to receive their new documentation are often more costly alternatives. European programmes tend to within a fixed timeframe. give applicants less investment choice, with Malta, for example, Speedy processing can partly be attributed to citizenship by requiring that the applicant contribute to the local National investment jurisdictions developing a dedicated ‘Citizenship by Development and Social Fund, purchase or rent property, and invest Investment Unit’ to monitor and evaluate the application. Units are in government securities. By contrast, the Caribbean operates on often composed of individuals experienced in compliance, as well a personal preference system, allowing applicants to determine the as in anti-money laundering and the identification of financial crime. investment that best suits their needs. Another element of efficient processing is the introduction of online For the busy executive, the quickest route to citizenship is at all Case Management Systems (CMSs) to better oversee the progress times the national fund donation. This is because it is a one-time of applications, as well as store documentation safely. St Kitts and transaction made directly to the government and requiring no Nevis rolled out its CMS last year, while Dominica is in the process additional effort. This differs substantially from the real estate of launching its own. purchase, which comes with a number of supplementary steps, such From the perspective of applicants, processing is facilitated by as obtaining a land valuation, performing a survey, hiring a local the fact that citizenship by investment jurisdictions rarely request attorney or conveyancer, and signing a sale and purchase agreement. that they fulfil language or culture tests. None of the Caribbean jurisdictions, for example, expect applicants or their family members III. The Benefits of Second Citizenship for to learn English, despite this being the countries’ official language. The same is true of mandatory interviews. Once a staple of the Businesspersons citizenship process, in the context of citizenship by investment, Having outlined one of today’s most effective means of obtaining interviews are generally reserved for cases needing special attention second citizenship for businesspersons, it is now essential to turn on the part of the relevant Unit. our attention to the core reasons why such a businessperson would It should not be assumed, however, that by not assessing the applicant choose a citizenship solution. in person the host country is relinquishing its right to in-depth scrutiny. Citizenship by investment jurisdictions – particularly those of the Caribbean and Malta – have espoused multi-tiered due diligence a. Mobility Rights systems, with a view to vetting applicants originating from all across the globe. To begin with, these jurisdictions only accept applications Unable to travel freely, an entrepreneur is hindered in his or her submitted through authorised agents, who themselves have a duty ability to partake in growing markets, observe them develop, to the local government to ensure that their clients are genuine and build lasting rapports with overseas partners and prospective applicants for citizenship. Secondly, international, independent associates. With a second citizenship from a country with numerous due diligence firms specialised in performing background checks visa-free travel agreements, that same entrepreneur could instead are hired for their investigative expertise. Checks are made both visit countries freely, share in time-sensitive business opportunities, online and on the ground, where evidence provided by the applicant and take the initiative to enter new markets. is verified against, among other things, local testimony. Emphasis is Citizenship of Malta, for example, comes with the ability to placed not just on the applicant’s personal circumstances, including participate in the United States’ Visa Waiver Programme. Grenada, family and professional connections, but also on the source of the a tri-island nation in the Caribbean, is one of a handful of countries

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whose citizens can travel to the People’s Republic of China tax on their worldwide income, irrespective of whether that income without a visa. This is especially important to Chinese nationals was generated in the United States or abroad. In recent years, this who relinquish their citizenship of origin, but who wish to visit had led to record numbers of individuals renouncing their otherwise their families freely or continue to oversee their local properties or much-coveted US citizenship, with the Office of the Federal Register ventures. Businesspersons interested in exploring emerging markets revealing that 5,411 US citizens had given up their citizenship in may use their Grenadian passport to receive a visa-on-arrival from 2016, a 26 per cent rise from the previous year, which in turn had Iran – a country that ranked thirteenth for GDP growth in 2016 – the outdone 2014 by an additional 20 per cent. Philippines, Bangladesh, and several others. Other jurisdictions, on the other hand, champion less oppressive tax European Union Member States, including Cyprus and Malta, regimes. Malta has adopted remittance basis taxation for foreign can afford their citizens even more freedom of movement rights, income for non-domiciled residents and citizens, as has the United endowing them with the ability to travel and settle in any other EU Kingdom. In the Caribbean, citizens can take advantage of a wide state. range of tax benefits, such as no capital gains tax, no inheritance tax, and no foreign income tax. A citizen of St Kitts and Nevis, for example, could profit from generous personal and corporate b. Preserving Business Channels tax incentives, such as no corporate income tax on companies only carrying out their business with non-residents. Other advantages Relationships with international businesses take effort and include harmonised taxation within the Caribbean Community commitment to form, but, once established, they can bring significant (CARICOM): an international organisation composed of 15 revenue, playing on each partner’s comparative advantages. Whether Caribbean countries aiming to promote regional integration and these relationships will persist into the future is generally up to a stimulate economic growth. businessperson’s dedication to their continuation, as well as to the overall administration and success of the joint enterprise. At times, however, external events can force even the strongest partnerships e. Safety to break. Turkish entrepreneurs with longstanding ties to Russia could not factor into their business risk assessment the downing of Working internationally means encountering diverse customs, a Russian Su-24 by Turkish warplanes on 24 November 2015 – a cultures, and, at times, prejudices that may serve as impediments to one-time event that threw their countries into a diplomatic impasse. effective business. For example, certain Middle Eastern countries, Among other things, Russia suspended the visa-free regime that had including Lebanon and Saudi Arabia, bar entry to those with an previously existed with Turkey, stalling travel for Turkish citizens Israeli stamp on their passport, or presenting any other evidence of wishing to visit the nation, whether for business or for pleasure. a prior or intended visit to Israel. Someone wishing to work with As Turkish nationals struggled to pursue their rapports with their Israeli and Lebanese partners would thus find it difficult to include Russian counterparts, those with two citizenships continued to both these nations into a single business trip, or to visit one country be able to cross borders, and otherwise distance themselves from without first having obtained a new, stamp-free passport. It should the tense political climate that alienated Turkish and Russian also be noted that not all countries issue a new passport with ease, businesspersons from each other. A second citizenship can thus and that even fewer do so when one’s previous passport has not help preserve business channels even in the face of socio-diplomatic expired. A second citizenship – and a second passport – could pressure. alleviate this problem. In some instances, showing affiliation to a certain nation can be sufficient not only to discredit an individual and the business that c. Property Rights individual represents, but also to pose a risk to personal safety. In a travel warning updated by the United States’ Department of Foreign businesspersons looking to expand their real estate State on 31 January 2017, for example, US citizens are advised of portfolio, whether commercial or residential, often find that they the high risk of kidnapping and terrorist violence when travelling cannot independently purchase land without collaborating with a to Iraq, and of citizens’ susceptibility to becoming the victims of local. Cambodia is a case in point, as the country disallows foreign anti-US sectarian militias. Similarly, in a travel warning issued ownership of Cambodian land where that ownership constitutes the on 22 May 2017, the Department noted evidence that US citizens majority stake in the land. A foreign investor could, for example, in Pakistan had been identified as terrorist targets because of their set up a company to invest in Cambodian real estate, but he would close connection to the United States. only be able to retain at most 49 per cent of that company’s shares. The remaining 51 per cent would have to belong to a Cambodian When travel to a country is necessary or desirable, but one’s identity national. An immediate solution would be for the investor to apply could itself put one in danger, a second citizenship may not just for Cambodian citizenship, something that can be obtained following be a key business tool, but a lifeline. Where personal security is a contribution of between 1 billion and 1.25 billion Cambodian riels jeopardised, the value of a travel document from a remote country (about US$300,000). that is rarely in the media’s eye cannot be understated. Several island-states fit this requirement for relative anonymity. d. Taxation IV. Conclusion Taxation is a key determinant of both individual and company behaviour. From choosing to purchase an item at a duty-free store, Increasingly, businesses are operating not just within the borders of to setting up business headquarters in Ireland (where corporate their own countries, but across the globe – establishing subsidiaries, tax was reduced to 12.5 per cent in 1998), persons and businesses or finding support through associates, intermediaries, agents, and constantly seek ways to reduce their tax liability. distributors. They assess markets outside of their own, scope Citizenship plays a critical part in determining how a person is opportunities for profit, and delve into transnational transactions. taxed. Citizens of the United States, for example, are liable to pay To be able to take full advantage of this international environment,

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business executives should look to second citizenship as a means interest to look to citizenship by investment, a process that delivers of improving their mobility, ability to hold and invest in property, citizenship, and a new passport, within a short timeframe and by the tax efficiency, personal safety, and business links. Furthermore, to application of straightforward procedures. be able to receive a second citizenship quickly, it is in their best

Micha-Rose Emmett Beatrice Gatti Bennett CS Global Partners CS Global Partners 10 Dover Street 10 Dover Street Mayfair Mayfair London W1S 4LQ London W1S 4LQ United Kingdom United Kingdom

Tel: +44 20 7318 4343 Tel: +44 20 7318 4343 Fax: +44 20 3608 0368 Fax: +44 20 3608 0368 Email: [email protected] Email: [email protected] URL: www.csglobalpartners.com URL: www.csglobalpartners.com

Micha is the CEO of CS Global Partners, a leading international Beatrice is an attorney qualified both in the State of New York and advisory firm, and a dual-qualified attorney. in England and Wales. She is based in CS Global Partners’ London office as Assistant Legal Manager, where she advises high-net-worth Micha travels extensively to provide consultancy services to private individuals on second citizenship, helping them select the most clients and governments in Europe and the Caribbean. Micha also appropriate programme and guiding them through their application operates in Africa, the Middle East, and Asia, where she has been a process. Beatrice also plays a role in CS Global Partners’ government speaker at a wide array of international events focusing on citizenship advisory branch. by investment (CBI), global citizenship, and foreign direct investment. Beatrice is fluent in Italian and French, and holds a BA degreesumma In her role as government advisor, Micha has spearheaded many of cum laude from Tufts University and a Juris Doctor degree as a the recent developments in the field of CBI. She holds the strong belief Thurgood Marshall Scholar from the George Washington Law School. that CBI programmes can be of value both to governments seeking to attract investors, and to individuals pursuing greater freedom. A dual citizen herself, Micha recognises that citizenship is an affair of the heart as much as the mind. Micha is a member of several philanthropic organisations focusing on gender equality and education.

Headquartered in the heart of London and with nine offices worldwide, CS Global Partners is at the forefront of the citizenship and residence by investment industry. Our team of highly trained and experienced professionals is dedicated to finding the best solution to the needs of global individuals seeking freedom of mobility, personal security, economic prosperity, and a healthier and happier lifestyle. With its reputation for excellence, CS Global Partners was selected by the governments of Dominica, Grenada, St Kitts and Nevis, and St Lucia to promote, develop, and safeguard the integrity of their citizenship by investment programmes. Micha-Rose Emmett is the CEO of CS Global Partners, and is a dual-qualified attorney in the United Kingdom and South Africa with years of practice in the fields of citizenship, residence, immigration, and foreign investment law. Her team of multi-lingual professionals, fluent in over 13 languages, operate with absolute discretion, efficiency, and effectiveness – focusing on outstanding client service as the cornerstone of CS Global Partners’ success. For more information on CS Global Partners and citizenship solutions, kindly visit www.csglobalpartners.com.

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How Common or Exceptional is a Nationality-Based Entry Ban as an Instrument for Immigration Control?

AILA Global Migration Section Analytics Committee Marcel A.G. Reurs

February 2017), a redrafted executive order was issued on 6 March Introduction to AILA GMS AC 2017 (EO 13780 re Protecting the Nation from foreign terrorist entry into the United States; FR Doc. 2017-04837, 13209-13219). This The American Immigration Lawyers Association (AILA; www. order upholds the 90-day prohibition on entry for nationals of the aila.org) is the preeminent Bar Association for U.S.-licensed above-named countries with the exception of Iraq, and contains a attorneys practising immigration and nationality law. Home certain number of exceptions. The executive order became subject to over 15,000 members, AILA is a non-partisan, not-for- to a nationwide temporary restraining order, issued by the US District profit organisation that provides continuing legal education, Court for the District of Hawaii (Hawaii v. Trump). On 26 June 2017, information, professional services and expertise through its 39 the Supreme Court of the United States decided to consider later this local chapters and over 50 national committees. AILA aims to year the legal issues presented by these two lower court cases and to increase member participation in advocacy before Congress, the lift part of the injunction that had prevented the federal government Judiciary, federal agencies and the media for immigration-related from implementing the entry ban. As a result of this ruling, DHS issues, and to increase the level of knowledge and professionalism and other authorised officials will be authorised to ban refugees of its members. and travellers from the six countries who cannot show a bona fide In 2007, AILA established the non-member International Associate relationship with a U.S.-based family member or entity (582 U. S. status for attorneys practising immigration law in jurisdictions other (2017)). than the US. Currently, there are International Associates from over 50 jurisdictions. Also, recognising the growth of the global mobility field, AILA solidified its role as a key player in the global Survey immigration field by establishing the Global Migration Section (GMS), which is a community of AILA members and international How common or exceptional is a nationality-based entry ban as an associates who are interested in furthering the practice of global instrument for immigration control? The Analytics Committee has migration. The GMS provides a forum for members to share attempted to collect data to answer this question. We ran an email ideas and information and to receive mentorship and education on survey across GMS members, covering 59 jurisdictions. Members global migration-related issues. The GMS’s Analytics Committee were asked to confirm if their jurisdiction currently has or in the past identifies issues of global immigration law that are relevant to the had a nationality-based entry ban in place after World War II and, if practice of US immigration lawyers or global practitioners. The so, to provide details on its scope, nature and duration. The survey committee collects jurisdictional data to enable comparison and ran in February 2017 and resulted in the following responses. analysis from a global perspective, encourages GMS participants to share their knowledge, and provides resources in an accessible format that can be found online at the Global Migration Networking Responses Center at www.aila.org. Arab countries and Israel Executive Orders Following the guidance of the Arab League, the following On 27 January 2017, President Donald J. Trump issued Executive countries have a permanent entry ban for Israeli nationals: Algeria; Order 13769 re Protecting the Nation from foreign terrorist entry Bangladesh; Brunei; Iran; Iraq; Kuwait; Lebanon; Libya; Malaysia; into the United States (FR Doc. 2017-00281, 8977-8982), which Oman; Pakistan; Saudi Arabia; Sudan; Syria; United Arab Emirates; included a 90-day prohibition on the entry of nationals of Iraq, and Yemen. It is permanent and includes all immigration categories. Syria, Sudan, Iran, Somalia, Libya and Yemen, in connection with Several of these countries also refuse entry of individuals with a “review to determine the information needed from any country another nationality whose passport contains Israeli stamps. to adjudicate any visa, admission, or other benefit under the INA Mr. Thomas Donovan, who responded for Iraq, has advised that (adjudications) in order to determine that the individual seeking the the entry ban in Iraq has not been challenged in court, but it has benefit is who the individual claims to be and is not a security or essentially been a non-issue since its inception, because very few public-safety threat”. Israelis ever come to Iraq – and if they do, it is normally on a After a nationwide temporary restraining order was issued on 3 secondary passport. Enforcement of the ban is also scant or non- February 2017 (case of Washington v. Trump; upheld on appeal on 9 existent, with certain areas of Iraq (such as the Kurdistan Region)

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simply ignoring the law and actively engaging Israel and Israeli corporate interests. Additional Information IATA We did not receive any responses as to how the entry ban works in The survey did not result in any other responses confirming a past practice in the other countries listed above. or present entry ban in any of the surveyed jurisdictions. This does not mean that these do not exist. For example, The International South Africa Air Transport Association (IATA) offers IATA Travel Center (http:// www.iatatravelcentre.com) and Timaticweb2, offering passport, South Africa has an entry ban in place for nationals from Rwanda visa and other travel information. IATA provides the following and the Democratic People’s Republic of Korea. Ms. Zahida information on current entry or travel bans, however, the information Ebrahim, who responded for South Africa, explained that the entry has not been confirmed by immigration specialists: ban for Rwanda has been in place since 2015 due to the strained ■ Nationals of Armenia and any person of Armenian descent diplomatic relations between the countries. It is anticipated that are refused entry in Azerbaijan (this is due to the Azerbaijan- the entry ban will be lifted as soon as these have normalised. The Armenian conflict). ban covers all Rwandese nationals and all immigration categories. ■ Nationals of Qatar are refused entry and transit in Libya Further, Ms. Ebrahim explained that the entry ban for North Korea (if arriving at Bayda or Tobruk), the United Arab Emirates was introduced in connection with UN Resolution 2270. It applies (unless they are father, mother, children or spouse of a national of the UAE) and Saudi Arabia. to all citizens of North Korea and all immigration categories. ■ Effective 7 March 2017, Nationals of North Korea are not allowed to enter or leave Malaysia, even if they have a valid Hong Kong visa. ■ Nationals of Kosovo are refused entry and transit in Cuba. Mr. Philippe Tremblay, who responded for Hong Kong, explained that even though Hong Kong does not have an entry ban based on nationality, Hong Kong’s administrative guidelines regarding Conclusion and Reservations Foreign (‘imported’) Workers exclude all citizens of Afghanistan, Cambodia, Cuba, Laos, Democratic People’s Republic of Korea, The responses we received combined with information from IATA Nepal and Vietnam. Nationals of these countries are prevented from appear to indicate that no European country has a nationality-based obtaining a work permit solely based on their nationality. entry ban in place and in the Americas, only the US and Cuba do. Several Middle East and Asian countries have an entry ban in place, motivated by ongoing conflict between the specific states. We must note that this summary is based on the survey results the GMS Analytics Committee received between February and May 2017 and data retrieved from Timaticweb2 on 14 June 2017. Responses were not received from all jurisdictions that were surveyed. Therefore, while this summary is informative, it is not exhaustive.

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Marcel A.G. Reurs Everaert Advocaten IJdok 23 1013 MM Amsterdam The Netherlands

Tel: +31 20 752 32 16 Email: [email protected] URL: www.everaert.nl

Marcel Reurs is a partner in Everaert’s business immigration team. His practice encompasses a broad range of business immigration work for corporate clients across the globe. Marcel is a frequent lecturer, contributing co-editor to the leading commentary on the Dutch Immigration Act, editor-in-chief of the Journal on Dutch Immigration Law, and chief of the editorial board of Jurisprudence on Immigration Law, the Dutch immigration jurisprudence series. He teaches and examines the Dutch National Bar Association’s course on immigration law in the mandatory professional education programme for trainee attorneys and served the Ministry of Justice as an expert adviser in the immigration policy reform, Modern Migration Policies. Marcel is a member of the IBA and the Dutch specialist associations for immigration lawyers, SVMA and WRV. He is an international associate to AILA and chairs the GMS Analytics Committee. Marcel is annually listed in the Who’s Who of Corporate Immigration Law as a leading Dutch immigration attorney and was recognised as a ‘thought leader’ in the 2017 edition. Everaert was founded in 1982 as the first Dutch law firm exclusively dedicated to immigration law and is one of the most respected immigration law firms in the Netherlands. Our lawyers are atthe forefront of immigration law and policymaking and have litigated landmark cases before the national courts and the European Court of Justice, including Jany and Others (2001), S. and G. (2014) and Essent (2014). Our immigration practice continues to cover the whole field of immigration law, but with an emphasis on business immigration, nationality, and arts & entertainment. We have a well-respected pro bono practice.

This article has been provided by the Analytics Committee of the Global Migration Section of the American Immigration Lawyers Association (AILA; www.aila.org). The Global Migration Section is one of AILA’s 50 national committees, dedicated to global immigration law. The Analytics Committee aims to identify issues of non-US immigration law that is relevant to the practise of US immigration law. The committee works on collecting jurisdictional data, allowing comparison and analysis from a global perspective, encouraging GMS participants to share their knowledge and securing that information becomes available to GMS and AILA in a manageable and accessible format that can be accessed online at the Global Migration Networking Center kept at www.aila.org. In 2016–2017, the committee members were: ■■ Ann Chau. ■■ Jennifer Doreen. ■■ Gunther Mävers. ■■ Breno Torquato. ■■ Phil Tremblay. ■■ Marcel Reurs (Chair).

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Albania Evis Jani

Gjika & Associates Attorneys at Law Njazuela Braholli

■ Joint Instruction of the Ministry of Interior Affairs and the 1 Introduction Director of the Secret Intelligence Service no. 265/2015 “On the cooperation between the structures of the Ministry of Interior Affairs and of the Secret Intelligent Services with 1.1 What are the main sources of immigration law in your regard to the treatment procedures of the foreign employees jurisdiction? legally residing in Albania” (Instruction 265/2015).

■ Law 108/2013 “On foreigners” (Law 108/2013); ■ Law 9901/2008 “On entrepreneurs and commercial 1.2 What authorities administer the corporate immigration companies” (Law 9901/2008); system in your jurisdiction? ■ Law 7995/1995 “On employment promotion” (Law 7995/1995); The Ministry of Foreign Affairs, through its consular representation offices outside Albania, is the competent authority for granting ■ Decision of Council of Ministers (DCM) 513/2013 “On the determination of requirements, procedures and documentation entrance, residence and transit visas for foreigners (Section II (B) of entrance, residence, and treatment of foreigners in the of DCM 513/2013). Republic of Albania” (DCM 513/2013); The consular representation offices of other countries may grant ■ DCM 66/2014 “On the determination of requirements, entrance, residence and transit visas, if so stipulated in bilateral documentation and procedures for the obtainment, refusal or multilateral agreements. In some particular cases, the relevant and cancellation of the work permit for the highly skilled regional border and immigration authority is responsible for individuals of the type ‘A/KL’” (DCM 66/2014); granting visas at the border, as well as issuing residence permits ■ DCM 69/2014 “On the determination of requirements, (Articles 23, 26, 33, 61 of Law 108/2013). documentation and procedures for the obtainment, refusal Working permits are issued by regional Labour Offices where the and cancellation of the permanent work permit of type ‘D’” employer exercises its activities, or by the General Directorate (DCM 69/2014); of National Labour Service, in the case an employer exercises ■ DCM 74/2014 “On the determination of requirements, its activities in more than one region. The request for working documentation and procedures for the obtainment, refusal permits may also be filed with the diplomatic representations of and cancellation of the work permit for voluntary services of type ‘A/SHV’” (DCM 74/2014); the Republic of Albania in the country of origin of the foreigner, and is then transferred to the file of the General Directorate of the ■ DCM 78/2014 “On the determination of requirements, National Labour Service (point 4 of DCM 85/2014; point 6 of DCM documentation and procedures for the obtainment, refusal, renewal and cancellation of the work permit, for specific 80/2014). cases, of type ‘C’” (DCM 78/2014); ■ DCM 79/2014 “On the determination of requirements, 1.3 Is your jurisdiction part of a multilateral agreement documentation and procedures for the obtainment, refusal, between countries (EU/NAFTA/MERCOSUR) which renewal and cancellation of the work permit for independent facilitates the movement of people between countries professional activity, as an investor of type ‘B/I’” (DCM for employment purposes? 79/2014); ■ DCM 80/2014 “On the determination of requirements, Albania is not part of any multilateral agreements facilitating the documentation and procedures for the obtainment, refusal, movement of people for employment purposes. renewal and cancellation of the work permit for the family members of type ‘A/AF’” (DCM 80/2014); ■ DCM 82/2014 “On the determination of requirements, 2 Business Visitors documentation and procedures for the obtainment, refusal, renewal and cancellation of the work permit for professional training of type ‘A/FP’” (DCM 82/2014); 2.1 Can business visitors enter your jurisdiction under a relevant visa waiver programme? ■ DCM 85/2014 “On the determination of requirements, documentation and procedures for the obtainment, refusal and cancellation of the work permit for the secondees within Business visitors are not treated as a specific category under the companies of type ‘A/TN’” (DCM 85/2014); and Albanian law with regard to visa requirements for foreign citizens.

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Business visitors are entitled to freely enter into the territory of the Republic of Albania provided that they are: 3 Immigration Compliance and Illegal (1) citizens of countries that are excluded from the obligation of Working applying for a visa, namely citizens of Andorra, Argentina, Armenia, Australia, Azerbaijan, Bosnia and Herzegovina, 3.1 Do the national authorities in your jurisdiction operate Brazil, Canada, China, Chile, EU countries, the Holy See, a system of compliance inspections of employers Hong Kong, Israel, Japan, Kazakhstan, Kosovo, Kuwait, who regularly employ foreign nationals? Malaysia, Macedonia, Monaco, Montenegro, the Republic of South Korea, New Zealand, San Marino, Schengen zone countries, Serbia, Singapore, Taiwan, Turkey, Ukraine, the Employers who employ foreigners are subject to inspection by the Labour Inspectorate and the regional border and migration authority

United Arab Emirates and the USA; Albania (2) holders of a Schengen visa with multiple entries, provided (Article 137 (c) of Law 108/2013). that the visa has been previously used in one of the Schengen area Member States, or holders of a residence permit granted 3.2 What are the rules on the prevention of illegal in one of the Schengen area Member States; working? (3) holders of a visa with multiple entries, or a residence permit, granted from the USA, Great Britain or Northern Ireland, In order to prevent illegal working, Law 108/2013 stipulates rules provided that the visa has been previously used; or to be observed by employers, as well as the right of the relevant (4) citizens that are entitled to enter into and stay in the Schengen authorities to inspect such employers. Employers should: area Member States without a visa (Article 30 (1) of Law ■ request that a foreign employee provides a residence permit or 108/2013, section II (A) (2) (6) and Annex 3 of DCM other authorisation, valid for the duration of the employment 513/2013). period; ■ keep a copy of the residence permit or authorisation; 2.2 What is the maximum period for which business ■ notify the Labour Inspectorate and the relevant border visitors can enter your jurisdiction? and immigration authority within eight days as of the commencement or the termination of a foreigner’s Business visitors and citizens of countries that are excluded from the employment; obligation of applying for a visa, as well as business visitor holders ■ cover the expenses of repatriation for a foreign employee in of a type ‘C’ visa, are entitled to enter Albania for a maximum case they are found to have been illegally working for the period of 90 out of 180 days as of their first entrance date (Article respective employer; and 30 (2) of Law 108/2013). ■ pay any outstanding amount related to a foreign employee working illegally, i.e. social and health contributions, administrative penalties, etc. (Article 71 (7) and 137 (1) of 2.3 What activities are business visitors able to Law 108/2013). undertake? Failure to comply with the above may result in the following fines Business visitors are entitled to carry out negotiations for the being imposed on the employer: purpose of establishing a commercial activity, enter into agreements ■ from 350,000 Albanian lek (“ALL”) to 400,000 ALL per for services offered, manage a company or a department/section person in case of an illegal worker; within a company and supervise and manage employees (Article 3 ■ from 50,000 ALL to 100,000 ALL per person in case of (11) of Law 108/2013). failure to keep a copy of the residence permit or authorisation of a foreign employee; ■ from 20,000 ALL to 30,000 ALL per foreign employee 2.4 Are there any special visitor categories which will in case of failure to notify the relevant authorities on the enable business visitors to undertake work or provide commencement/termination of their employment (i.e. the services for a temporary period? Labour Inspectorate and the relevant border and immigration authority); or in case the foreign employee does not have the There are no special visitor categories; however, business visitors relevant identifying documentation, permit or visa, and has are entitled to stay in Albania for up to one month per year for been employed even if they do not have right to profit (i.e. the the purpose of their activity without being subject to work permit Labour Inspectorate and the relevant border and immigration requirements (Article 72 (b) (ii) of Law 108/2013). authority); and/or ■ from 200,000 ALL to 300,000 ALL in case of failure to comply with the obligations imposed by the Law on 2.5 Can business visitors receive short-term training? Foreigners, other than those listed above (Article 145 1 (a), iii, d, h, g and j). Business visitors can receive short-term training provided that In addition to the above, in case of an illegal worker (due to illegal they have obtained a residence permit for unpaid training from the residence in the territory of Albania), the relevant border and competent border and immigration authority. EU and Schengen immigration authority may propose to the competent Albanian zone citizens are excluded from the obligation to obtain the above authority additional measures, such as: permit (Article 48 of Law 108/2013). ■ exclusion from the right to take advantage of public benefits, aids or financing for a period up to five years; ■ exclusion from the right to enter into public contracts for a period up to five years; and/or ■ temporary or definitive closing of the legal entity that illegally employed an employee (Article 137 (4) of Law 108/2013).

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Nevertheless, foreigners that are employed in one of the following 3.3 What are the penalties for organisations found to be sectors are excluded from the annual employment quota: employing foreign nationals without permission to ■ immigrant employers on the basis of bilateral agreements; work? ■ employers that hold key positions in companies, branches and representative offices; Organisations found to be employing foreign nationals without permission to work are subject to a fine of between 350,000 ALL and ■ inter-company transfer employees; 400,000 ALL for each employee (Article 145 (j) of Law 108/2013). ■ employees self-employed by a company that they wholly own or in which they own more than 51% of shares; ■ service providers in the Republic of Albania on behalf of a

Albania 4 Corporate Immigration – General foreign employer; ■ teachers and lecturers in educational institutions that conduct teaching in language learning courses for national minorities; 4.1 Is there a system for registration of employers who wish to hire foreign nationals? ■ athletes and artists working in the Republic of Albania; ■ employees that are remunerated for their work in a foreign Albanian law does not provide for a general registration system non-profit organisation registered in the Republic of Albania; for employers, irrespective of whether the vacant position refers to ■ members of Boards of Directors of religious or humanitarian Albanian nationals or foreigners (Law 7995/1995). foundations registered in the Republic of Albania; ■ employees in the context of youth exchange activities in the Republic of Albania in cooperation with other countries; 4.2 Do employers who hire foreign nationals have ongoing duties to ensure immigration compliance? ■ scientific research employees in scientific research, educational institutions or legal entities; With the exception of the notification to the relevant Labour Office ■ university professors, lecturers, instructors and guest lecturers and the border and immigration authority for the commencement from other universities; and and termination of the employment of a foreign citizen, which ■ foreign employees that work on the basis of an international should be delivered within eight days of the commencement of the agreement (Article 83 of Law 108/2013). work or termination, there are no other ongoing duties for hiring foreign nationals (Article 71 (7) of Law 108/2013). 4.7 Are there restrictions on the number of foreign workers an employer may sponsor, in relation to a maximum percentage of foreign workers in the 4.3 Do the immigration authorities undertake routine employer’s workforce? inspections of employers who sponsor foreign nationals, to verify immigration compliance? The number of foreign workers an employer may sponsor should The competent border and immigration authority is entitled to not exceed 10% of the total number of employed staff in case of a undertake routine inspections in order to verify immigration company with ongoing activity, and should not exceed 10% of the compliance. Unless otherwise evidenced by the employer, the general staff at the moment of application in case of a newly opened employment relationship with illegal foreign workers shall be activity. deemed to have been entered into at least six months prior to the day However, it is to be noted that the number of foreign workers they were identified by the immigration authorities (Article 137 (3) employed should be in compliance with the annual employment of Law 108/2013). quota for foreigners, approved by the Council of Ministers every year by 1 October for the next year (Article 82 and Article 84 of Law 108/2013). 4.4 Do the immigration authorities maintain a list of skilled occupations which may be filled by foreign nationals? 4.8 Are employees who are sponsored to work in your jurisdiction required to demonstrate language There is no such formal list of skilled occupations which may be proficiency? filled by foreign nationals. With the exception of employers wishing to obtain a permanent work permit, which requires an employee to demonstrate good 4.5 Is there a recognition that some occupations may be knowledge of the Albanian language, there is no language in short supply and do special exemptions apply to certain sectors and occupations? proficiency requirement for the purposes of working in Albania (point 1 (e) of DCM 69/2014). Albanian law does not provide for an occupation shortage list. 4.9 Are employees who are sponsored to work in your jurisdiction required to undergo medical examinations 4.6 Are there annual quotas for different types of before being admitted? employment-related work permits or visas?

Foreign employees are not required to undergo any special medical The annual employment quota is approved by the Council of examination before being admitted to work in Albania, with the Ministers every year by 1 October, upon the proposal of the exception of requirements applied for specific works, which applies Ministry of Labour, Social Affairs and Equal Opportunities (Article for Albanian nationals as well (Article 145 (1) ë of Law 108/2013). 82 of Law 108/2013). The annual employment quotas determine the activities and professions allowed to employ foreigners, as well as the maximum number of foreigners allowed for such professions.

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4.10 Are employees who are sponsored to work in your 7 Temporary Work Permits jurisdiction required to have medical insurance or are they entitled to any free public medical services? 7.1 Is there an immigration category permitting the hiring of temporary workers for exchanges, career Considering that a foreign employee can work in Albania upon the development, internships or other non-economic acquisition of the relevant residence permit, the attainment of which purposes? is subject to its filing with the competent authorities of a health insurance certificate covering the territory of Albania, medical There is an immigration category permitting the hiring of temporary insurance is required (Section III (B), point 6 of DCM 513/2013). workers for youth exchanges and voluntary services, provided that the activity at hand does not exceed a period of one year. In Albania 4.11 Does the work permit system allow employees who addition, Albanian law offers another category of work permit to hold work permits to be seconded to a client site? foreign nationals wishing to undertake an internship in Albania; in such case, the work permit is issued for a duration equal to the Albanian legislation does not prohibit the secondment of an duration of the internship (Articles 93 and 95 of Law 108/2013). employee to a client site. Foreign employees are not required to undergo any special medical 7.2 Are there sector-specific temporary work permit examination before being admitted to work in Albania, with the categories which enable foreign workers to perform exception of requirements applied for specific works, which applies temporary work? for Albanian nationals as well (Article 145 (1) ë of Law 108/2013). In relation to a sector-specific temporary work permit, Albanian law provides for a seasonal employment category that enables foreigners 5 Highly Skilled Visas to perform temporary work in Albania for up to six months each year (Article 88 (1) and (5) of Law 108/2013).

5.1 Is there an immigration category which covers highly skilled individuals? 8 Group or Intra-Company Transfer Work Permits Albanian law does not provide for a category that covers highly skilled visas. 8.1 Does a specific immigration category exist for inter- company transfers within international groups of 6 Investment or Establishment Work companies? Permits Albanian law provides for a specific immigration category for inter-company transfers within international groups of companies, 6.1 Is there an immigration category which permits namely work permits of type “A/TN” (Article 89 of Law 108/2013). employees to be authorised to work based on investment into your jurisdiction? 8.2 What conditions must an employing company or A foreign investor is entitled to obtain a two-year work permit, organisation fulfil in order to qualify as part of a group provided that the following conditions are met: of companies? ■ the value of investment amounts to at least €200,000; A company shall be considered part of a group of companies, ■ the ratio of employees is 1:5 (one foreign employee to five provided that (a) it exercises its activities under the direction and Albanian employees; this is applicable to the governing bodies of the company as well); instruction of another company, (b) at least 30% of the members of its Board of Administration, Supervisory Board or administrators ■ the salary paid to employees is at least equal to the average salary in Albania for the same positions during the previous are appointed by another company, or (c) at least 30% of votes at year; and a General Meeting of Shareholders are held by another company (Article 207 of Law 9901/2008). ■ a foreign investor should prove that the company they invested in is not running at a loss and has no outstanding amounts owing to tax authorities. 8.3 What conditions must the employer fulfil in order The work permit for the foreign investor may be extended for a to obtain a work permit for an intra-company group period of time of three years provided that the conditions of the employee? works has not changed. Upon termination of the second work permit, the foreign investor is entitled to a permanent work permit Albanian law provides for a priority for the issuance of work permits provided that the conditions for which the second work permit is for intra-company group employees, by exempting the application issued has not changed. of the conditions related to the market as well as other conditions stipulated by the law. Foreign investors, as well as the business visitors, are entitled to obtain a permanent work permit provided that the value of the However, the procedure described in question 8.4 below should be investment amounts to over €1 million and that more than 10 followed for the purposes of obtaining the work permit (Article 85 Albanian employees are employed (Article 100 of Law 108/2013). (d) of Law 108/2013 and Point 3 of DCM 85/2014).

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■ the invitation by the employer to which the employee will 8.4 What is the process for obtaining a work permit for an be transferred, supported by an excerpt from the National intra-company group employee? Business Centre; and ■ a copy of the work permit issued by the competent Albanian An application for a work permit can be filed by the employee authority (point B of DCM 513/2013). themselves or the employer to which the employee will be In the case of a first-time application, the application should be filed transferred, to the duly authorised person at the relevant Labour personally by the employee. For follow-up/extension applications, and Office in the territory where the employer exercises its activities, if it is impossible for the employee to file the application personally, to the General Directorate of the National Labour Service, in case the application may be filed by an authorised person, provided that the the employer exercises its activities in more than one geographical application form is signed by the beneficiary of the visa. Albania region, or to the diplomatic representations of the Republic of Albania in the country of origin of the transferring company. 8.6 How long does the process of obtaining the work The following documents should be filed for the purpose of permit and initial visa take? obtaining a work permit: ■ the application form with personal data, duly signed; A work permit is issued within 10 days from the application ■ an excerpt from the commercial register of the country where date, provided that all of the required documents are submitted. the foreign company is registered; The issuance of a visa takes 15 days from the acceptance of the ■ the individual employment contract between the employee application and in exceptional cases it may take up to 30 days (point and the foreign company, for a duration of at least 12 months 7 of DCM 85/2014, Article 25 (3) of Law 108/2013). prior to the transfer, or the individual employment contract certifying the existing employment relationship for other employee categories; 8.7 How long are visas under the “initial” category valid ■ the declaration of transfer, issued by the foreign company, for, and can they be extended? certifying the transfer of the relevant employee, and determining the duration and content of the work to be Visas under the “initial” category of type “D” are valid for a one-year performed by the employee, as well as identifying the period. An extension is possible only in the case of force majeure or employer to which the relevant employee shall be transferred; in humanitarian cases, provided that the request for the extension is ■ any certificates and evidence of specialised qualifications and filed prior to the visa’s termination and that the foreigner was unable experience; to leave the Albanian territory prior to the visa’s termination (Article ■ a copy of the employee’s passport; 22 (2) and Article 27 (1) of Law 108/2013). ■ an authorisation in case the applicant is submitted by a third person; and 8.8 Can employees coming under the intra-company ■ five photos of the employee. transfer route apply for permanent residence? All the documents should be original or certified copies translated into the Albanian language. An employee coming under the intra-company transfer route may apply for permanent residence, provided that all of the requirements The work permit is issued within 10 days from the date of filing of for permanent residence, listed in Section 12 below, are fulfilled. the complete documentation. In case the application is filed with the diplomatic representations of the Republic of Albania in the country of origin of the transferring 8.9 What are the main government fees associated with this type of visa? company, the latter transfers the application to the Ministry of Social Welfare and Youth, through the Ministry of Foreign Affairs. The Ministry of Social Welfare and Youth examines the application The fee related to visa type C and D, which are the type of visa required for the purpose of obtaining the work permit, depends on through the relevant Labour Office or the General Directorate of the country of origin, number of entries and varies from €0 to €100 the National Labour Service, and notifies the relevant diplomatic (Section II (4), Annex 4 and Annex 7 of DCM 513/2013). representations of the Republic of Albania, through the Ministry of Foreign Affairs, of approval or refusal of the work permit (DCM For States not listed in the Annex 4 of DCM 513/2013, a fee based 85/2014, Article 89 of Law 108/2013). on the principle of reciprocity is applied and when none is set, a fixed fee of €35 applies. Further, a fee on the residence permit is applicable, which depends 8.5 What is the process for the employee to obtain a visa on the duration of the residence and varies between 5,000 ALL and under the intra-company group transfer category? 25,000 ALL plus the cost of the card. For U.S citizens, the residence permit fee is 70,000 ALL plus the cost of the card for all types of For the purpose of obtaining a visa, the employee should file residence permit. (Annex 4 of DCM 513/2013 and Annex 7 of the following documents with the diplomatic representations or DCM 513/2013.) consular offices outside Albania: ■ the application form for the visa; ■ one photo of 47mm x 36mm, no older than six months before 9 New Hire Work Permits the application; ■ a copy of a valid travel document (valid for at least three 9.1 What is the main immigration category used for months more than the period of validity of the requested employers who wish to obtain work permits for new visa); hires? ■ a Health Insurance Policy valid for the duration of the required visa, for a minimum of €30,000 (thirty thousand Albanian law does not provide for any immigration category for euros); employers who wish to obtain work permits for new hires.

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the same conditions as visas under the “initial” category, described 9.2 Is there a requirement for labour market testing, to in question 8.7 above. demonstrate that there are no suitable resident workers, before a work permit can be issued to new hires? 9.8 Is labour market testing required when the employee Before the approval of the foreign request for a work permit, the extends their residence? relevant state authority proposes appropriate candidates as per the required profile as below: In case of an extension of a residence permit, a labour market test is not required. ■ Albanian unemployed job-seekers; ■ foreigners who are family members of Albanian citizens; Albania ■ EU citizens and citizens of the Schengen zone; 9.9 Can employees coming as new hires apply for permanent residence? ■ family members of foreigners legally residing in Albania; and ■ citizens of countries with which Albania has entered into Employees coming as new hires may apply for permanent residence bilateral or multilateral employment agreements. under the same conditions as employees coming under the intra- Foreigners who enjoy priority are as listed below in question 9.3 company transfer route described in question 8.8 above. (Article 84 of Law 108/2013).

9.10 What are the main government fees associated with 9.3 Are there any exemptions to carrying out a resident this type of visa? labour market test? The fee related to visa type C and D, which are the type of visa The following categories of foreigner enjoy priority, and are required for the purpose of obtaining the work permit, depends on exempted from the labour market test for the purpose of obtaining the country of origin, number of entries and varies from €0 to €100 a work permit: (Section II (4), Annex 4 and Annex 7 of DCM 513/2013). ■ the spouse of an Albanian citizen holding a one-year residence For States not listed in Annex 4 of DCM 513/2013, a fee based on permit; the principle of reciprocity is applied and when none is set, a fixed ■ highly skilled professionals; fee of €35 applies. ■ transferred employees of an intra-company group; Further, a fee on the residence permit is applicable, which depends ■ a foreigner who has completed a public or private professional on the duration of the residence and varies between 5,000 ALL and high school in the Republic of Albania; 25,000 ALL plus the cost of the card. For U.S citizens, the residence ■ a foreigner who has been employed pursuant to an permit fee is 70,000 ALL plus the cost of the card for all types of international or inter-governmental agreement; and residence permit. (Annex 4 of DCM 513/2013 and Annex 7 of ■ a foreigner who will perform professional training in the DCM 513/2013.) Republic of Albania (Article 85 of Law 108/2013). 10 Conditions of Stay for Work Permit 9.4 What is the process for obtaining a work permit for a new hire? Holders

The process for obtaining a work permit for a new hire is the same 10.1 What are the conditions of stay of those who obtain as the process that applies for an intra-company group employee work permits and are resident on this basis? described in question 8.4 above. Any foreigner resident in the Republic of Albania on the basis of 9.5 What is the process for the employee to obtain a visa a work permit should comply with the conditions and the purpose as a new hire? of the work permit, and should notify the Labour Office or General Directorate of the National Labour Service immediately of any The process for obtaining a visa for a new hire is the same as the change in relation to the identity of the employer and/or the process described in question 8.5 above. In this case, the invitation employment contract and the activities authorised to undertake as mentioned in question 8.5 should be issued by the employer where an employee, and should obtain approval from the above-mentioned the employee shall commence as a new hire, supported by an excerpt authorities (Article 74 of Law 108/2013). from the National Business Centre. 10.2 Are work permit holders required to register with municipal authorities or the police after their arrival? 9.6 How long does the process of obtaining the work permit and initial visa for a new hire take? Work permit holders should, within 10 days as of their entry into The time period for obtaining a work permit and visa for a new hire Albania, notify the competent border and immigration authority of is the same as the time period for obtaining a visa under the intra- their address. Exceptionally, citizens of Australia, Andorra, Canada, company group transfer category described in question 8.6 above. the Holy See, Israel, Japan, Lichtenstein, New Zealand, San Marino, the USA and EU and Schengen area Member States are excluded from the above obligation (Articles 30 (5) and 134 of Law 108/2013, 9.7 How long are initial visas for new hires granted for Annex 1 of DCM 513/2013). and can they be extended?

Initial visas for new hires may be extended for the same time under

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11 Dependants 12 Permanent Residence

11.1 Who qualifies as a dependant of a person coming to 12.1 What are the conditions for obtaining permanent work on a sponsored basis? residence?

The following qualify as dependants of a person coming to work on For the purpose of obtaining permanent residence, a foreigner a sponsored basis: should: ■ spouses; ■ have legally resided in Albania for five consecutive years as of the first application for a residence permit. For the purpose Albania ■ civil/unmarried partners with whom the relationship is stable and has a proved character; of calculating such time limit, it is allowed for the foreigner to be out of the territory of Albania for up to six consecutive ■ minor and unmarried children who are part of the family, months, but for no more than 10 months within five years. including those placed in a custody regime who are in the In case that a foreigner has resided in Albania for study or charge of the person coming to work in Albania or adopted professional training reasons, the above time limit is 2.5 by the latter; years; ■ adult unmarried children when they cannot satisfy their needs ■ have sufficient revenue and legal financial resources to due to their state of health; and ensure the sustainability and continuity of his/her life, and ■ immediate ancestors, provided that they are in the charge any relevant dependants, without needing to address the of the person coming to work in Albania or their spouse social welfare system; according to the law of the country of origin and that they ■ have in place health insurance coverage in accordance with do not enjoy proper family support in the country of origin the health insurance system for Albanian citizens; (Article 3(14) of Law 108/2013). ■ have appropriate accommodation for himself/herself and his/ her family in Albania; 11.2 Do civil/unmarried or same-sex partners qualify as ■ have fulfilled all of the obligations towards the tax authorities; family members? ■ have status of refugee in Albania (if applicable); ■ have good knowledge of the Albanian language, certified by By virtue of Albanian law, civil/unmarried partners are considered a certificate; and family members, provided that their relationship is stable and has ■ have not been convicted (Article 61 of Law 108/2013). a proved character, while same-sex partners do not qualify as such (Articles 3(14) and 69(2) of Law 108/2013; Article 163 of the Family Code). 12.2 Is it possible to switch from a temporary work visa to a work visa which leads to permanent residence?

11.3 Do spouses and partners have access to the labour A foreigner is entitled to obtain permanent residence provided market when they are admitted as dependants? that the conditions stipulated above in question 12.1 are fulfilled. Therefore, in case a foreigner has obtained several temporary Spouses and partners have access to the labour market, through work visas, and complies with the rule of five consecutive years’ obtaining a one-year work permit on the basis of an employment residence, as well as the other above-mentioned conditions, they contract/employment certificate in a family business, provided may be entitled to a permanent residence permit. that they have obtained a residence permit for family reunification purposes and that the dependant has resided with the foreigner on a regular basis and for a continuous period of at least three years. 13 Bars to Admission Exceptionally, dependants that are EU and Schengen zone citizens are excluded from the obligation to obtain a work permit and therefore have access to the Albanian labour market under the same conditions 13.1 What are the main bars to admission for work? as Albanian citizens (Articles 71 (9) and 94 of Law 108/2013). The main bars to admission for work are the following: 11.4 Do children have access to the labour market? ■ the quotas determined every year by the Council of Ministers with regard to the number of foreign employees that may obtain work permits in Albania and the relevant sectors; and Minors of 16 years or older may be employed and undertake works that do not damage their health and development and that ■ the number of foreigners allowed to be employed in a company, which in case of an ongoing activity should not do not prevent their right to attend school, professional training exceed 10% of the total number of employed staff and in programmes or their capacity to benefit from them. Exceptionally, case of a newly opened activity should not exceed 10% of the minors aged between 15 and 16 may be employed during summer general staff at the moment of application (Article 84 of Law vacations only and undertake works that do not damage their health 108/2013). and development and that do not prevent their right to attend school, professional training programmes or their capacity to benefit from them. The employment of minors between the ages of 15 and 16 13.2 Are criminal convictions a bar to obtaining work permission or a visa? is subject to a prior authorisation from the Labour Inspectorate. Minors under 15 years may take part in cultural activities, under authorisation from the Labour Inspectorate, as far as their health By virtue of Albanian law, the issuance of a work permit or visa may and development is not damaged and their right to attend school, be refused in case a foreigner is considered to be a risk to public professional training programmes or their capacity to benefit from security. Therefore, criminal convictions may constitute a bar to them is not precluded. (Articles 98, 99 and 102 of the Labour Code; obtaining both a visa and a work permit; however this is decided on a Article 9 of DCM 108/2017.) case-by-case basis (Articles 29 (1) (e) and 77 (g) of Law 108/2013).

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Evis Jani Njazuela Braholli Gjika & Associates Attorneys at Law Gjika & Associates Attorneys at Law 20th Floor, Office No. 159 20th Floor, Office No. 159 Ambassador 3 Building, “Dervish Hima” Street Ambassador 3 Building, “Dervish Hima” Street Tirana Tirana Albania Albania

Tel: +355 42 400 900 Tel: +355 42 400 900 Email: [email protected] Email: [email protected] URL: www.gjika-associates.com URL: www.gjika-associates.com Albania Evis Jani joined Gjika & Associates when it was established, and Njazuela Braholli joined Gjika & Associates as an Associate in became a Partner in January 2014. She graduated from the Law November 2015. She graduated from the Law School of the University School of the University of Tirana and holds an LL.M. in European Law of Rome “La Sapienza”. from the University of Geneva. She has extensive experience in corporate law, employment law and Evis has extensive experience in providing legal counsel to domestic foreign law, providing legal assistance to both Albanian and foreign and international multinational companies, and focuses on business companies. and commercial, tax and employment law, administrative and public procurement law, mergers and acquisitions, re-organisations, and corporate governance, as well as litigation before Albanian courts. She is recognised as a rising star in the IFLR1000 2016 and 2017 editions.

Gjika & Associates is a dynamic business-oriented law firm, established in 2013 as a fruitful joining of highly skilled attorneys with extensive experience in the national and international arenas. Our attorneys possess the right combination of skills, experience and international understanding to help clients achieve their business goals. We identify and manage key commercial and legal risks, cutting through the law and solving business and legal issues sympathetically. The firm possesses a complete understanding of the subtle differences of local approaches, laws and customs, and thus may facilitate with an integrated approach the transaction management obstacles faced by our clients. We advise on all aspects of domestic and cross-border transactional and general corporate issues, including acquisitions and disposals, corporate governance, mergers and re-organisations, equity capital markets, joint ventures, public and private mergers and strategic alliances, and litigation before arbitration panels and courts of all instances, as well as before the European Courts in Luxembourg and the European Court of Human Rights in Strasbourg. Gjika & Associates is a recognised firm in the IFLR1000 2014, 2015, 2016 and 2017 editions. Gjika & Associates is member of Geneva Group International, a global alliance of consulting and law firms.

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Argentina Sofia Inchauspe

NAVARRO CASTEX Abogados Florencia Cavazza

seasonal workers, academics, and “special” categories. The National 1 Introduction Immigration Law failed to mention two main categories which were later included within the “special” categories, and regulated 1.1 What are the main sources of immigration law in your by Dispositions 1170/2010 and 1171/2010. These categories are, jurisdiction? respectively: a) workers: allowing foreigners to perform paid duties or not, within the scientific, professional technical, religious or The main sources of migration rules are: national laws; treaties; and artistic fields. These visas are granted for 30 days abroad and are bilateral agreements. renewable, or for 90 days if obtained directly in Argentina twice a calendar year with only one entry per visa; and b) business: for National laws: the National Immigration Law (No. 25.871), its foreigners engaged in the performance of business or commercial regulatory decree (decree 616/2010), the General Law on Refugee or economic transactions, on their own account, risk or capital or Recognition and Protection (No. 26.165) and the Law on Prevention with an interest in companies or juridical persons who conduct such and Sanction of Trafficking of Persons and Assistance to Victims activity on their behalf. This one is a restricted business visa as (No. 26.364). Moreover, Disposition 56.647/05 created the Single compared to the legislation of other countries in this regard. Registry for Petitioners for companies hiring foreigners. Regulation 1170/2010 remedies an omission in the National Immigration Law Treaties and bilateral agreements: the most important treaty is regarding temporary work visas. Disposition 1171/2010 allows that of Mercosur (Decision CMC No. 28), which considers any foreigners to obtain transitory visas qualifying them for employment national of a member country and adhering country to the Mercosur purposes. These same authorisations may be obtained directly in Treaty as qualified to obtain temporary residence. That is to say, the Argentina, after foreigners enter the country with a tourist visa, migratory criteria is nationality. at the National Immigration Department (Dirección Nacional de Bilateral agreements: although Argentina has signed agreements Migraciones, DNM), and are governed by Disposition 1824/2013. with several countries (e.g. with Brazil – São Borja), it is essential Within its open immigration policy, the National Immigration Law to check, before travelling to Argentina, the application of such provides that all individuals enjoy equal protection of the law; agreements since on several occasions they are not applicable due to both Argentine citizens and foreigners have access to public and the lack of awareness thereof by the immigration authorities at the free health and education, and have freedom to enter and leave the points of entry to the country. territory. The penalties are aimed at companies that employ illegal foreigners, 1.2 What authorities administer the corporate immigration who are responsible for ensuring their employees comply with the system in your jurisdiction? applicable rules. The sanctions and fines do not relieve the employer from its obligations under labour law. The National Immigration Department, under the scope of the The Immigration Law provides for three categories of residents: Ministry of Interior, Public Works and Housing, is the body in charge permanent residents; temporary residents; and transitory residents. of enforcing the National Immigration Law, its regulatory decree, provisions, the international treaties and bilateral agreements. It is a Permanent residents: foreigners who have a direct relative who is decentralised body headquartered in Buenos Aires. Argentine or has permanent residency or foreigners complying with the seniority required by the law. This applies for two years for In addition, this Office is responsible for controlling the entry and Mercosur nationals and three years for nationals other than those exit of foreigners, in addition to the police’s power over individuals from Mercosur (Mercado Común del Sur) nations and Brazil. and companies. Temporary residents: designed for foreigners who settle their The Ministry of Foreign Relations and Worship assists the DNM residency in Argentina for a term of at least one year. The main in two areas: it grants visas to enter the country; and signs bilateral categories are immigrant workers, annuitants, pensioners, investors, agreements. scientists or specialised staff, students, clergymen, refugees and The National Commissions for Refugees (Comisión Nacional nationals (this category covers the Mercosur Agreement). para los Refugiados, CONARE) assists the DNM within the scope Transitory residents: foreigners having habitual residence in their of the Ministry of Interior in the protection, entry and obtention country of origin and entering Argentina transitorily. In general, of documents for refugees. The CONARE is formed by officers this allows a stay of up to 90 days, renewable once. Here, the most from: the Ministry of Interior; the Ministry of Foreign Relations, important categories are tourists, sportsmen, passengers in transit, International Trade and Worship; the Ministry of Justice, Security

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and Human Rights; the Ministry of Social Development; the As regards foreigners who must apply for a business visa before National Institute against Discrimination, Xenophobia and Racism their trip to Argentina, they shall be granted a stay of up to two (INADI); and the United Nations High Commissioner for Refugees. months (60 days), renewable once.

1.3 Is your jurisdiction part of a multilateral agreement 2.3 What activities are business visitors able to between countries (EU/NAFTA/MERCOSUR) which undertake? facilitates the movement of people between countries for employment purposes? The Argentine business visa is restrictive and designed for foreigners engaged in the ordinary course of business or commercial or Argentina has signed the Mercosur Treaty and the agreement on economic diligences, on their own account, risk or capital or with an residency for nationals of Member States where the application interest in companies or juridical persons that perform such activity Argentina thereof is fully in force. on their behalf. In addition, it is granted to individuals entering the The agreement provides that all nationals of Member States can territory in order to participate in exhibitions or fairs. work, study, enter and exit the receiving state freely. A two-year On the other hand, it is worth bearing in mind that in order for a residency shall be granted and it shall need no other framing since foreigner to be able to apply for a business visa, he shall require an the National Immigration Law provides for this, in its article on invitation letter from a company or an individual in Argentina and temporary residence, as “nationality”. This implies that nationals it shall be recorded with the Single Record of Petitioners, which from the Mercosur Member States shall need no document allows them to invite or hire foreigners. evidencing the reasons for which they come to reside in Argentina, or an employment contract, study certificate, investment, annuity, etc. They shall only have to submit their personal documents and 2.4 Are there any special visitor categories which will enable business visitors to undertake work or provide evidence of their lack of criminal record. Originally this agreement services for a temporary period? was signed by the member countries of Mercosur. Later on, it was extended to the adhering countries and Argentina extended this There is no business visa enabling foreigners to work. The Argentine benefit to other Latin American countries. At present, those benefits immigration regulation enables tourists who have already entered are granted to nationals of the following countries: Bolivia; Brazil; to request a transitory work authorisation, for the same period of Chile; Colombia; Ecuador; Guyana; Paraguay; Peru; Suriname; time as that granted as a tourist, renewable only once and with one Uruguay; and Venezuela. single entry. That is to say, if the foreigner leaves the country, this authorisation shall lose its validity. Up to two work authorisations 2 Business Visitors may be applied for per calendar year. On the other hand, foreigners in need of obtaining a visa before travelling to Argentina, who are not covered in the visa waiver 2.1 Can business visitors enter your jurisdiction under a programme for tourists, may access this transitory work visa at the relevant visa waiver programme? relevant Argentine Consulate of the place of habitual residency. The term granted shall be 30 days, renewable. The rules do not mention Argentina has entered into bilateral agreements with certain how many times a year a foreigner can apply for this visa; it is the countries under the visa waiver regime for business visas. These Consulate’s decision. This visa may also be applied for by foreign countries are: Andorra; Armenia; Australia; Austria; Barbados; nationals of countries where Argentina has a tourist visa waiver Belgium; Bulgaria; Canada; Chile; Colombia; Costa Rica; Croatia; regime. Cyprus; the Czech Republic; Denmark; the Dominican Republic; Ecuador; El Salvador; Estonia; Finland; France; Germany; Grenada; Greece; Guatemala; Guyana; Haiti; Honduras; Hong Kong; 2.5 Can business visitors receive short-term training? Hungary; Iceland; Ireland; Israel; Italy; Jamaica; Japan; South Korea; Latvia; Liechtenstein; Lithuania; Luxemburg; Macedonia; Disposition 1171/2010 expressly provides for the duties which Malaysia; Malta; Mexico; Monaco; the Netherlands; New Zealand; a holder of a business visa is permitted to carry out. Short-term Nicaragua; Norway; Panama; Peru; Poland; Portugal; Romania; training is not provided for. Russia; San Marino; Serbia; Singapore; Slovakia; Slovenia; South Africa; Spain; St. Lucia; St. Vincent and the Grenadines; Suriname; Sweden; Switzerland; Thailand; Trinidad and Tobago; Turkey; the 3 Immigration Compliance and Illegal United Kingdom; the United States; Ukraine; Vatican City; and Working Venezuela. Although this is used with some countries (e.g. United States, Canada), we have found systematic errors by the migration 3.1 Do the national authorities in your jurisdiction operate authorities in charge of entries at the airports. Due to the lack of a system of compliance inspections of employers due knowledge thereof, it has not been possible to apply these who regularly employ foreign nationals? agreements. Yes. The DNM conducts regular inspections of companies that 2.2 What is the maximum period for which business employ foreign nationals. Considering that, in Argentina, in order to visitors can enter your jurisdiction? hire a foreign national (from a country outside the Mercosur area) it is mandatory to be registered with the DNM at the National Registry The period granted by the DNM to business visitors with visa of Petitioners of Foreigners, heavy fines are imposed on companies waiver is up to 90 days, renewable once. employing illegal foreigners and inspections are the main tools used to comply with the National Immigration Law.

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3.2 What are the rules on the prevention of illegal 4.3 Do the immigration authorities undertake routine working? inspections of employers who sponsor foreign nationals, to verify immigration compliance? It is forbidden to employ foreigners residing illegally in the country. The lack of a visa suitable for the duties to be undertaken shall be Yes, the DNM makes periodic inspections of companies that hire deemed as illegal residence. Giving housing for consideration or foreign employees. being recidivist shall aggravate the sanctions that the DNM imposes on companies. 4.4 Do the immigration authorities maintain a list of skilled occupations which may be filled by foreign nationals? Argentina 3.3 What are the penalties for organisations found to be employing foreign nationals without permission to work? There is no list of skilled occupations to be filled by foreign nationals. The National Immigration Law imposes sanctions for those who employ foreigners who are working illegally. The sanction is 20 4.5 Is there a recognition that some occupations may be statutory monthly minimum wages for each foreigner working in short supply and do special exemptions apply to illegally. If the company is a repeat offender, the amount of the fine certain sectors and occupations? shall be increased by 50%. If, in addition, the company gives housing for consideration, this The National Immigration Law does not provide for exemptions for fine shall be increased to 50 statutory monthly minimum wages. sectors or occupations. All sectors and occupations are equal in the The Argentine company shall not be exempted from the relevant law. claims due to a breach of the labour law, or from the payment of contributions in favour of the foreign employee. 4.6 Are there annual quotas for different types of Finally, any person who promotes or facilitates the illegal stay of employment-related work permits or visas? foreigners in the territory of the Republic of Argentina in order to obtain a benefit directly or indirectly shall be punished with Argentina’s National Immigration Law does not provide for quotas. imprisonment or confinement from one (1) to six (6) years. There is no limit for hiring foreigners, either in number or by industry. 4 Corporate Immigration – General 4.7 Are there restrictions on the number of foreign workers an employer may sponsor, in relation to 4.1 Is there a system for registration of employers who a maximum percentage of foreign workers in the wish to hire foreign nationals? employer’s workforce?

In 2005, the DNM created the Single National Registry of The National Immigration Law does not provide for a limit on the Petitioners of Foreigners. This registry was created to record the number of employees that a company can hire. companies or individuals who hire foreigners who are not nationals of the Mercosur Agreement. 4.8 Are employees who are sponsored to work in your In order to be enrolled in such Registry, the companies must jurisdiction required to demonstrate language submit corporate information (corporate by-laws, appointment proficiency? of authorities, domicile and company name), accounting and tax information, in order to obtain a Registration Number that allows The National Immigration Law does not require a demonstration them to hire foreign staff or send the relevant invitations for the of Spanish language proficiency. However, if the foreigner applies latter to be able to enter with a business visa. for a temporary or permanent residence, it should be borne in mind that it will be mandatory to obtain an Argentine driving licence No Argentine company may hire a foreign national from outside the if he should wish to drive a car. It is an essential requirement to Mercosur area without being first enrolled in this Registry. understand the Spanish language to obtain a driving licence, given It is mandatory to renew the Registration Number periodically and that there is an exam in Spanish about the local driving rules. keep the requested information permanently updated.

4.9 Are employees who are sponsored to work in your 4.2 Do employers who hire foreign nationals have jurisdiction required to undergo medical examinations ongoing duties to ensure immigration compliance? before being admitted?

In addition to keeping all the documents required for the registration At present, the DNM does not require any medical examinations. updated, the Argentine company must inform the DNM of the expiration of the contract or termination within 15 days from the 4.10 Are employees who are sponsored to work in your date on which the foreign employee has ceased its duties. jurisdiction required to have medical insurance or are If these requirements are not met, the DNM shall not renew the they entitled to any free public medical services? Registration Number, shall impose sanctions and suspensions, and may even order the temporary or permanent cancellation of the Every foreigner has access to the public health system. Migration company’s Registration Number. The company shall be disqualified law requires no insurance or special medical coverage. from the future hiring of foreigners.

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transfers. In practice, the DNM applies this same category for inter- 4.11 Does the work permit system allow employees who company transfers. hold work permits to be seconded to a client site?

This item is not regulated by immigration laws. The real domicile 8.2 What conditions must an employing company or organisation fulfil in order to qualify as part of a group must be declared. Companies must generally state if a foreigner is of companies? working at a client site. There are no specific conditions required in the Argentine 5 Highly Skilled Visas immigration rules. It is customary to submit a letter explaining the commercial relationship between both companies or groups

of companies. If an inter-company visa is applied for by several Argentina 5.1 Is there an immigration category which covers highly foreigners of the same foreign company, it is most likely that skilled individuals? the DNM will request that the contracts be signed between both companies or groups of companies. The DNM may request Yes, section 23, item e) of the National Immigration Law provides additional documentation if this is deemed appropriate. for scientists and specialised staff, i.e. any person engaged in scientific research activities, whether in a technical or advisory capacity, or as directors or technicians. Residency shall be obtained 8.3 What conditions must the employer fulfil in order to obtain a work permit for an intra-company group through a work contract or letter of intra- or inter-company transfer. employee?

6 Investment or Establishment Work The Argentine company must be enrolled at the Single National Permits Registry for Petitioners and shall request the visa from the DNM.

8.4 What is the process for obtaining a work permit for an 6.1 Is there an immigration category which permits intra-company group employee? employees to be authorised to work based on investment into your jurisdiction? This kind of visa may be obtained in two ways: The National Immigration Law provides for an investor visa for a) Directly from the DNM: under this procedure, the foreigner any foreigner who makes a productive, commercial or service shall enter Argentina directly with a tourist visa and shall make an appointment with the National Immigration Office. investment of interest into the country. The minimum investment The day of the appointment, the foreigner shall appear with is one million five hundred thousand Pesos ($1,500,00) and the the personal and company document required, the DNM shall investor shall submit the investment project to the DNM, proving open the application for temporary residence and obtention of the origin and legality of the funds and their entry to the country the National Identity Document (DNI), and on that same day through banking or financial institutions authorised by the Central it shall grant interim residence (Residencia Precaria), valid Bank of the Republic of Argentina. for 90 days, which allows the foreigner to work immediately. The temporary visa for one year shall take approximately 90 days to be approved and the DNI of the foreigner shall be 7 Temporary Work Permits issued. b) At the Argentine Consulate of the habitual residence of the foreigner: the Argentine company shall request an entry 7.1 Is there an immigration category permitting the permit in favour of the foreigner at the DNM. Within hiring of temporary workers for exchanges, career approximately one month, this office issues this Entry Permit, development, internships or other non-economic which will allow the foreigner to make an appointment with purposes? the Argentine Consul. Having the Entry Permit and other personal documents required, the Argentine Consul shall There is no such category under the National Immigration Law. grant a visa which allows the foreigner to work. This process takes approximately one month, though it depends on each consulate. 7.2 Are there sector-specific temporary work permit categories which enable foreign workers to perform Once the foreign employee enters Argentina, he shall apply for his temporary work? DNI (National Identity Document), which is mandatory within 90 days, and fix a domicile in the Argentine territory. This category is not provided for under the National Immigration Law. 8.5 What is the process for the employee to obtain a visa under the intra-company group transfer category? 8 Group or Intra-Company Transfer Work The foreigner must obtain his personal documentation such as a Permits passport, criminal record, proof of his place of lawful residence during the last three years, résumé, birth certificate, and marriage 8.1 Does a specific immigration category exist for inter- certificate if applicable. In addition, he shall submit a letter from his company transfers within international groups of employer company explaining the transfer to Argentina. If the visa companies? is obtained in Argentina, he shall travel with such documentation; otherwise, if the visa is applied for at the Argentine Consulate, he The National Immigration Law provides only for intra-company shall submit the documents at the time of the appointment.

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8.6 How long does the process of obtaining the work 9.2 Is there a requirement for labour market testing, permit and initial visa take? to demonstrate that there are no suitable resident workers, before a work permit can be issued to new If the visa is obtained directly at the DNM, it takes approximately hires? 15 days for the foreigner to start the visa procedure. Thereupon, he shall be qualified to work, as the DNM shall grant interim residence There is no such requirement in our immigration law. (valid for 90 days) pending the approval of the temporary residency for up to one year. 9.3 Are there any exemptions to carrying out a resident If the visa is applied for at the Argentine Consulate in the place labour market test?

Argentina of the applicant’s habitual residency, the visa shall be granted in two stages: 1) application at the National Immigration Office for There is no such requirement, as explained above. an entry permit and, once approved, receipt of the same; and 2) the foreigner shall request an appointment at the Argentine Consulate to 9.4 What is the process for obtaining a work permit for a apply for the visa. This two-step process takes approximately three new hire? months (depending on each Argentine Consulate). The process is the same as that described in question 8.4, although 8.7 How long are visas under the “initial” category valid instead of submitting a letter from the company, it is necessary to for, and can they be extended? submit an employment contract between the Argentine company and the foreign employee. Intra- and inter-company visas are granted for a term of up to one year, and may be extended indefinitely. Here, it is worth noting that 9.5 What is the process for the employee to obtain a visa although immigration law authorises indefinitely the extension of as a new hire? these visas, it differs from labour law in that the latter provides that employees in Argentina must be registered. This is the same process as that described in question 8.5, although instead of submitting a letter from the foreign company, the foreigner 8.8 Can employees coming under the intra-company shall submit an employment contract with the Argentine company. transfer route apply for permanent residence?

9.6 How long does the process of obtaining the work Yes; after three years of uninterrupted legal residency abroad, they permit and initial visa for a new hire take? can apply for permanent residence. It is mandatory to analyse the appropriateness of applying for permanent residence, since this has The processing time is the same as that described in question 8.6. consequences in terms of the various income tax arrangements in place across different countries. 9.7 How long are initial visas for new hires granted for and can they be extended? 8.9 What are the main government fees associated with this type of visa? Visas for immigrant workers are granted for a term of up to one year, renewable indefinitely. Visa in Argentina: ■ Good conduct certificate: USD 30 approximately (500 Pesos). 9.8 Is labour market testing required when the employee extends their residence? ■ Visa: USD 118 approximately (2,000 Pesos). ■ DNI (National Identity Document): USD 3.5 approximately This requirement does not exist in our immigration law. (60 Pesos). ■ Urgent appointment: USD 118 approximately (2,000 Pesos). 9.9 Can employees coming as new hires apply for Visa at the Argentine Consulate: permanent residence? ■ First step at the Immigration Department: USD 118 approximately (2,000 Pesos). Employees cannot apply for permanent residence for a new hire. It ■ Visa at Consulate: 600 UC (consular units). is a requirement that they must have at least three years’ temporary ■ DNI, once in Argentina: USD 3.5 approximately (60 Pesos). residence. As an exception, those who may obtain permanent residence directly are: family members of Argentines or permanent residents; and Brazilian nationals. Nationals from the member 9 New Hire Work Permits countries of Mercosur can obtain permanent residence after two years of temporary residence. 9.1 What is the main immigration category used for employers who wish to obtain work permits for new 9.10 What are the main government fees associated with hires? this type of visa?

The visa category mostly used by companies is that of “immigrant Visa in Argentina: worker”, which is applied for under an employment contract. ■ Good conduct certificate: USD 30 approximately (500 Pesos).

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■ Visa: USD 118 approximately (2,000 Pesos). ■ DNI (National Identity Document): USD 3.5 approximately 11.3 Do spouses and partners have access to the labour (60 Pesos). market when they are admitted as dependants? ■ Urgent appointment: USD 118 approximately (2,000 Pesos). Yes, spouses can work. The National Immigration Law authorises Visa at the Argentine Consulate: all foreigners having temporary or permanent residence to work and ■ First step at the Immigration Department: USD 118 study in the country. approximately (2,000 Pesos). ■ Visa at Consulate: 600 UC (consular units). 11.4 Do children have access to the labour market? ■ DNI, once in Argentina: USD 3.5 approximately (60 Pesos).

Yes, with restrictions for children older than 14 years of age and Argentina 10 Conditions of Stay for Work Permit without restrictions for children over 18. Holders 12 Permanent Residence 10.1 What are the conditions of stay of those who obtain work permits and are resident on this basis? 12.1 What are the conditions for obtaining permanent residence? For those who have obtained a visa through an employment contract, they may stay in the country for the duration of the validity of their The following persons can obtain permanent residence: 1) the visa. To renew the visa, it is essential that they have stayed in the children, spouse and parents of an Argentine or foreigner with country for at least half a calendar year plus one day. Moreover, permanent residence; 2) foreigners who have temporary residence, they must submit a letter from the company requesting the renewal renewed, after three years of residence in the country; 3) foreigners and must have received a salary duly registered in Argentina. who are nationals of member countries and those adhering to Mercosur who have resided under temporary residence for two 10.2 Are work permit holders required to register with years in the country; and 4) Brazilians, who may obtain permanent municipal authorities or the police after their arrival? residence as soon as they enter the Republic of Argentina.

It is not necessary for work permit holders to be registered with 12.2 Is it possible to switch from a temporary work visa to the municipal or police authorities once they enter the country. It a work visa which leads to permanent residence? is mandatory, however, for those foreigners who have applied for residence with the Argentine Consulate, to apply for their DNI and Yes, it is possible after residing lawfully in the country for three arrange a real domicile in Argentina. years.

11 Dependants 13 Bars to Admission

11.1 Who qualifies as a dependant of a person coming to 13.1 What are the main bars to admission for work? work on a sponsored basis?

The National Immigration Law does not provide for bars under Dependants are children younger than 18 years of age, disabled which a foreigner may enter the country to work, except for criminal children (even if older than 18 years of age), spouses, and elder convictions of more than three years. parents (grandparents). In Argentina, equal marriage between same-sex partners is allowed. 13.2 Are criminal convictions a bar to obtaining work permission or a visa? 11.2 Do civil/unmarried or same-sex partners qualify as family members? The National Immigration Law requires a certificate of criminal record from the country where the foreigner has resided in the last Since 2010, marriage of same-sex partners is lawful and three years. Despite that which is mentioned in question 13.1 above, acknowledged at a national level in Argentina. Therefore, in this case, although there is no clear definition in this regard, in practice those the spouse shall be considered as an accompanying family member, foreigners who have a criminal background of serious offences (for may obtain a visa and, if the residence is temporary or permanent, instance, armed robbery) have their visa revoked. There are cases shall be qualified to work and study. With regard to civil or de facto of less severe crimes where the visa is applied for and approved partnerships, they are not acknowledged at a national level, and thus without much inconvenience (for instance, driving under the residence as a partner cannot be applied for at the DNM. influence of alcohol).

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Sofia Inchauspe Florencia Cavazza NAVARRO CASTEX Abogados NAVARRO CASTEX Abogados Viamonte 1145, 6th Floor Viamonte 1145, 6th Floor C1053ABW C1053ABW Buenos Aires Buenos Aires Argentina Argentina

Tel: +54 11 5277 2220 Tel: +54 11 5277 2220 Email: [email protected] Email: [email protected] URL: www.navarrolaw.com.ar URL: www.navarrolaw.com.ar

Argentina Position: Associate. Position: Partner. Qualifications: Bachelor’s degree in Political Sciences, specialising in Qualifications: Law degree, University of Buenos Aires, School of International Relations (Universidad Católica Argentina). Law, 1995; postgraduate degree in Business Law, Argentine Notarial University (Buenos Aires), 2000; Course on Legal English and Languages: Spanish and English. Seminar on Orientation in the US Legal System, International Law Professional Practice: From 1997 to 2007, Sofia was Head of the Institute (Washington, D.C., USA), 2001. Department of Migration at Brons y Salas Law Firm, where she was Languages: Spanish and English. in charge of developing the migration practice, for which 90% of the clients were multinational companies. Expertise: Florencia specialises in mergers and acquisitions, providing advice to local and foreign individuals and companies on commercial In 2010, she founded the company GPS Relocation, which she matters, including day-to-day transactions, financial agreements and managed until April 2015. During this period, this new company capital markets. She has further expertise in corporate law, corporate became one of Argentina’s most prestigious firms specialising finance and general practice. in relocation services, assisting multinational companies both in Argentina and abroad. In February 2016, Sofia became an Associate at Navarro Castex Abogados. With her team, contacts within the country and partners and representatives abroad, the department delivers a comprehensive service both to foreigners settling in Argentina and Argentines arranging residence abroad. Expertise: Sofia specialises in migration and the relocation of foreign nationals.

NAVARRO CASTEX Abogados is an Argentine corporate law firm that provides, through a team of experienced professionals, full legal services to local and international clients in a wide range of industries. The legal and business background of our lawyers allows us to provide a professional service which always aims at combining creativity and customised attention in an environment of growing competitiveness and complexity. We also stand out for our team of bilingual lawyers, accountants and experts in finance. Our firm works with prestigious Of Counsel advisors in the resolution of cases requiring a high degree of specialisation. We also work with a network of correspondent lawyers in the main cities across the country. Internationally, in the last 30 years we have developed professional relationships with law firms over the five continents. Our firm has correspondent lawyers in the main Latin American cities, and associated offices across Mercosur. Our active and renowned international presence has allowed us to accompany our clients beyond Argentina, assisting them in jurisdictions where they find themselves inexperienced or have yet to find suitable support.

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Australia

BDO Migration Services Maria Jockel

As all FTAs are different, each FTA needs to be looked at separately 1 Introduction and in the context of determining whether in a given instance there is a need for LMT. 1.1 What are the main sources of immigration law in your The aim of LMT of the Australian labour market is to demonstrate jurisdiction? whether a suitably qualified and experienced Australian citizen or permanent resident is readily available to fill the prescribed position. The Migration Act 1958 (Cth) (the Act) and the Migration Unless exempted, certain nominated occupations as specified by Regulations 1994 (Cth) (the Regulations) provide the legal and the Minister of Immigration and Border Protection in a Legislative regulatory framework for the entry into, and presence in, Australia Instrument are subject to LMT. of persons who are non-citizens.

1.2 What authorities administer the corporate immigration 2 Business Visitors system in your jurisdiction? 2.1 Can business visitors enter your jurisdiction under a The Department of Immigration and Border Protection (the relevant visa waiver programme? Department) administers Australia’s Migration Programme, which includes corporate immigration. Business visitor visas allow holders to enter Australia to engage in business activities. Eligible passport holders may apply online or 1.3 Is your jurisdiction part of a multilateral agreement through an approved travel agent for: between countries (EU/NAFTA/MERCOSUR) which ■ an Electronic Travel Authority (ETA) (Subclass 601) visa; or facilitates the movement of people between countries ■ an eVisitor (Subclass 651) visa. for employment purposes? Otherwise, a paper-based or online (for eligible passport holders Australia is a signatory to the World Trade Organization General only) application can be made for: Agreement on Trade in Services 1994 (WTO GATS), which allows ■ a Visitor (Business Visitor stream) (Subclass 600) visa; or for the movement of persons seeking access to the employment ■ a Temporary Work (Short Stay Activity) (Subclass 400) visa. market on a temporary basis. Australia is a signatory to a number of bilateral and regional Free 2.2 What is the maximum period for which business Trade Agreements (FTAs) that allow for the movement of persons visitors can enter your jurisdiction? supplying services without the need for Labour Market Testing (LMT). Subclass 601 visas can be granted to travel to and enter Australia on Australia’s FTAs are complex. Australia currently has the following multiple occasions within the shorter of either 12 months from the FTAs in force: date of the grant of the visa or the life of the holder’s passport and to 1. Association of Southeast Asian Nations (ASEAN)– remain in Australia, after each entry, for three months. Australia–New Zealand FTA. Subclass 400 visas are generally granted with the right to remain in 2. Australia–Chile FTA. Australia for three months after first entry, but up to six months in 3. Australia–New Zealand Closer Economic Relations. limited circumstances if supported by a strong business case. 4. Australia–United States FTA. 5. Japan–Australia Economic Partnership Agreement. 2.3 What activities are business visitors able to undertake? 6. Korea–Australia FTA. 7. Malaysia–Australia FTA. The Subclass 651 and Subclass 600 visas are granted subject to 8. Singapore–Australia FTA. Condition 8115, which allows limited work. For example, it relates 9. Thailand–Australia FTA. to the making of a general business enquiry or negotiating a business 10. China–Australia FTA. contract.

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The Subclass 400 visa allows for: times to verify the visa status and work rights of foreign nationals; ■ short-term, highly specialised, non-ongoing work; for example, by checking the Department’s records prior to allowing ■ participation in an event or events of a non-ongoing basis at a person to work and thereafter, to see if the person is still allowed the invitation of an Australian organisation; or to work. ■ in limited circumstances, participation in an activity or work ‘Work’ is defined in Regulation 1.03 of the Regulations and is taken relating to Australia’s interests. to mean any work, be it paid work, voluntary work or work done in return for accommodation, food or any other benefit.

2.4 Are there any special visitor categories which will enable business visitors to undertake work or provide 3.3 What are the penalties for organisations found to be services for a temporary period? employing foreign nationals without permission to Australia work? The Highly Specialised Work stream of the Subclass 400 visa allows for short-term, highly specialised, non-ongoing work. The Migration Amendment (Reform of Employer Sanctions) Act The Invited Participation stream of the Subclass 400 visa allows 2013 has a three-tiered sanctions framework; namely, infringement for applicants who are invited to participate in an event by an notices, civil penalty orders and criminal offence provisions. There organisation that is lawfully operating in Australia and the activities are four types of civil liability offences: cannot have adverse consequences for employment or training ■ Allowing an unlawful non-citizen to work. opportunities for Australian citizens or permanent residents. ■ Allowing a lawful non-citizen to work in breach of a work- The Australia’s Interest stream of the Subclass 400 visa allows related condition. applicants to participate in an event, or engage in an activity or ■ Referring an unlawful non-citizen for work. work that relates directly to compelling circumstances that affect ■ Referring a lawful non-citizen for work in breach of a work- Australia’s interests, and require the applicant’s entry into and stay related condition. in Australia. The civil penalties are: ■ For an individual: $16,200. 2.5 Can business visitors receive short-term training? ■ For executives of bodies corporate: $16,200. There are four types of criminal liability offences: Some business visitor visas allow for attendance at specialised ‘one- ■ Allowing an unlawful non-citizen to work. off’ training courses. Subclass 600 visas are granted subject to the ■ Allowing a lawful non-citizen to work in breach of a work- mandatory Condition 8201, ‘no study for more than three months’. related condition. If the primary purpose for the visa is to obtain an approved degree ■ Referring an unlawful non-citizen for work. or qualification, a student visa may be appropriate. ■ Referring a lawful non-citizen for work in breach of a work- The Subclass 407 Training visa allows persons to take part in related condition. workplace-based training to enhance their skills in their occupation, The penalty of two years’ imprisonment applies where the elements area of tertiary study and field of expertise and to participate in a of knowledge or recklessness can be proved. If the worker is professional development training programme in Australia. subject to or will be subject to exploitation and the person knows of, or is reckless to that circumstance, then they may be liable to the 3 Immigration Compliance and Illegal aggravated criminal offence in which event the penalty is five years’ imprisonment. Working

4 Corporate Immigration – General 3.1 Do the national authorities in your jurisdiction operate a system of compliance inspections of employers who regularly employ foreign nationals? 4.1 Is there a system for registration of employers who wish to hire foreign nationals? The Department, together with Fair Work Australia, have significant powers to monitor employers to ensure compliance with Australia’s The Subclass 457 visa programme enables Australian and overseas immigration and employment laws. This is to ensure that foreign businesses to sponsor skilled overseas workers to fill prescribed nationals are lawfully permitted to work in Australia, undertake positions on a temporary basis (of up to four years). work in accordance with the basis upon which their visa is granted, including any work restrictions or work prohibitions, and that all employees, be they foreign nationals or Australians, are provided 4.2 Do employers who hire foreign nationals have ongoing duties to ensure immigration compliance? with the minimum terms and conditions of employment under the Fair Work Act 2009 and the National Employment standards. Employers who hire foreign nationals under the Subclass 457 visa programme must comply with the sponsorship obligations and the 3.2 What are the rules on the prevention of illegal Fair Work Act 2009, which provides for a safety net of minimum working? terms and conditions of employment. Sponsorship obligations apply to all approved sponsors and former The Migration Amendment (Reform of Employer Sanctions) Act approved sponsors and must include, but are not limited to, the 2013 contains civil and criminal liability provisions for allowing following: unlawful non-citizens to work or allowing lawful non-citizens to work in breach of work-related conditions. This imposes an ■ To ensure non-discriminatory employment. obligation for employers to take reasonable steps at reasonable ■ To cooperate with inspectors.

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■ To ensure equivalent terms and conditions of employment these occupations are in short supply. The MLTSSL provides (namely to pay the market salary rate, however described) to for occupations that require foreign workers for four years and the primary Subclass 457 visa holder. are considered occupations which the Australian Labour Market ■ To pay prescribed costs of the departure of the visa holder (or requires for “medium to long-term” periods. a former visa holder) from Australia. The STSOL provides for occupations that require foreign workers ■ To pay prescribed costs to the Commonwealth in relation to for two years and are considered occupations which the Australian locating the former visa holder, and removing the former visa Labour Market requires for “short-term” periods. holder from Australia. ■ To keep records. Certain nominated occupations as specified by the Minister of Immigration and Border Protection in a Legislative Instrument are ■ To provide records and information to the Department. exempt from LMT. ■ To notify the Department of prescribed changes in the Australia circumstances of an approved sponsor, a former approved The Legislative Instrument exempts specified nominated sponsor, a visa holder or a former visa holder. occupations of Skill Levels 1 or 2 from the LMT requirement. ■ To ensure that a visa holder works or participates in an Skill Level 1 nominated occupations relate to nominated occupations occupation, programme or activity nominated by an approved which require a relevant Bachelor’s degree or higher and/or five or sponsor (including by preventing the on-hire of a visa holder). more years of relevant work experience. ■ To require an approved sponsor or former approved sponsor Skill Level 2 nominated occupations relate to nominated occupations not to recover, transfer or take actions that would result in which require a relevant associate degree, advanced diploma or another person paying for certain prescribed costs. diploma covered by the Australian Qualifications Framework and/ ■ To require an approved sponsor or former approved sponsor or three or more years of relevant work experience. to meet prescribed training requirements.

4.6 Are there annual quotas for different types of 4.3 Do the immigration authorities undertake routine employment-related work permits or visas? inspections of employers who sponsor foreign nationals, to verify immigration compliance? The Subclass 457 visa programme is demand-driven and is not subject to a quota. Employers, including approved sponsors under the Subclass 457 visa programme, are monitored by the Department to ensure that The ENS is subject to an annual quota as determined by the Minister they comply with the obligations in relation to the foreign worker of Immigration and Border Protection. (and any accompanying family member/s). Sponsors are monitored by the Department and Fair Work Inspectors 4.7 Are there restrictions on the number of foreign through interviews and site visits, desk auditing through monitoring workers an employer may sponsor, in relation to forms, referral to other agencies and/or other sections of the a maximum percentage of foreign workers in the Department, as well as education and awareness-raising activities. employer’s workforce?

There are no restrictions as such on the number of foreign workers 4.4 Do the immigration authorities maintain a list of an employer may be able to sponsor provided that the sponsor is skilled occupations which may be filled by foreign able to meet specified criteria including that the employer has a nationals? strong record of, or commitment to, employing local labour and non-discriminatory employment practices. From 1 July 2017, foreign workers must be nominated by an Australian employer to fill a position in an occupation that appears in the Medium and Long-Term Strategic Skills List (MLTSSL) or the 4.8 Are employees who are sponsored to work in your Short-Term Skilled Occupation List (STSOL). These Occupation jurisdiction required to demonstrate language Lists apply to the following visa programmes: proficiency? ■ The Temporary Work (Skilled) (Subclass 457) visa. The English language requirements depend on the visa category ■ The Training (Subclass 407) visa. applied for. ■ The Temporary Graduate (Subclass 485) (Graduate Work Employees who are sponsored to work in Australia under the stream) visa. Subclass 457 visa programme are required to demonstrate language ■ The Skilled Regional (Provisional) visa (Subclass 489). proficiency, unless exempted because: ■ The Employer Nomination Scheme visa (Subclass 186). ■ the person holds a valid passport issued by the United ■ Regional Sponsored Migration Scheme visa (Subclass 187). Kingdom, the United States of America, Canada, New ■ Independent points-based Skilled Migration who are Zealand or the Republic of Ireland; not nominated by a state or territory government agency ■ the person has completed at least five years of full-time study (Subclass 189). in a secondary and/or higher education institution where the ■ Points-based Skilled Migration who are nominated by a state teaching instruction was delivered in English; or or territory government agency under a State Migration Plan ■ the person is an employee of an overseas business who is (Subclass 190). coming to Australia to work for that company or their associated entity and they have a nominated base rate of pay of at least $96,300 per annum (in addition to superannuation). 4.5 Is there a recognition that some occupations may be in short supply and do special exemptions apply to Unless exempted, the person must undertake a prescribed English certain sectors and occupations? language test and demonstrate that their level of English proficiency meets the necessary requirements. Both Occupation Lists maintain occupations on the basis that

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Otherwise, applications for ENS and Regional Sponsored Migration The Distinguished Talent (Subclass 124) visa is a visa for Scheme (RSMS) under the Temporary Residence Transition individuals with an internationally recognised record of exceptional (TRT) stream lodged on or after 1 July 2017 require an IELTS (or and outstanding achievement in: equivalent) score of six in each component (Competent English). ■ a profession; ■ a sport; 4.9 Are employees who are sponsored to work in your ■ the arts; or jurisdiction required to undergo medical examinations ■ academia and research. before being admitted?

Employees who are sponsored to work are required to undergo 6 Investment or Establishment Work Australia medical examinations if the health, physical or mental condition of Permits the person is relevant to the grant of the visa. The health assessment process depends on the visa applied for, the age of the person, the proposed length of stay, the person’s medical 6.1 Is there an immigration category which permits history, the types of activities they intend to engage in while in employees to be authorised to work based on investment into your jurisdiction? Australia, and the relevant Public Interest Criteria (PIC) which must be met in regard to health. This can include medical and X-ray examinations and in certain cases, an HIV test, Hepatitis B or C test The Business Innovation and Investment Programme (BIIP) is or other specific test. designed to attract high-quality investors and entrepreneurs to invest in Australia. The Subclass 188 Significant Investor visa stream All applicants and their migrating dependants (and, in some requires the applicant to make a complying investment of at least $5 instances, dependants who may not be migrating with the main million and for the applicant to maintain the complying investment applicant) must meet the health criteria. for at least four years. If an applicant or a member of their family cannot satisfy the health requirements, then the application must be refused, unless the visa The new Premium Investor stream visa requires an investment of applied for allows for a health waiver. $15 million and provides access to a permanent residence after 12 months.

4.10 Are employees who are sponsored to work in your jurisdiction required to have medical insurance or are 7 Temporary Work Permits they entitled to any free public medical services?

Unless exempted, employees sponsored to work under the Subclass 7.1 Is there an immigration category permitting the 457 visa programme must provide private working health insurance hiring of temporary workers for exchanges, career development, internships or other non-economic for them and their migrating family. purposes? Employees from countries that have a Reciprocal Health Care Agreement (RCHA) with Australia may be eligible for limited Please see the answer to question 2.5 as to the Subclass 407 visa Medicare benefits. The nature of the free public medical services stream, which relates to work-based training and participating in a depends on the terms of the RCHA with the relevant country. professional development training programme in Australia. The Temporary Activity visa (Subclass 408) allows a person to 4.11 Does the work permit system allow employees who come to Australia on a temporary basis to: hold work permits to be seconded to a client site? ■ Participate in activities at the invitation of an Australian organisation. Under the Subclass 457 programme, the employee is engaged generally ■ Participate or observe in an Australian research project. only as an employee of the sponsoring company or an employee of an associated entity of that company. As such, an approved Subclass ■ Work in a skilled position under a staff exchange arrangement. 457 company must demonstrate that a direct employer-employee ■ Participate in high-level sports competitions or sports training relationship is available including in circumstances where the programmes. employee who holds the Subclass 457 visa is seconded to a client site. ■ Participate in a special programme approved by the Certain occupations are exempt from the direct employer Department that provides for opportunities for youth exchange, cultural or community benefits. requirement and specified Subclass 457 visa holders may work as independent contractors (for example, general managers sitting ■ Participate in a government-endorsed event. on the board of directors of several unrelated businesses, medical The Subclass 600 (Tourist stream) visa allows for internships where professionals working as locums at various hospital clinics). the applicant is a student of an overseas university undertaking Otherwise, employees can only be seconded to a client site pursuant research as part of their course, and the internship is purely on an to the On-Hire Labour Agreement requirements. observational basis.

5 Highly Skilled Visas 7.2 Are there sector-specific temporary work permit categories which enable foreign workers to perform temporary work? 5.1 Is there an immigration category which covers highly skilled individuals? The Temporary Activity visa (Subclass 408) allows persons to come to Australia on a temporary basis to: The Subclass 457 visa programme and the ENS cover highly skilled ■ Work in the entertainment industry. individuals.

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■ Participate in high-level sports competitions or sports training ■ it will be the direct employer or ‘related to’ the direct programmes. employer of the employee; ■ Do full-time religious work. ■ there is no adverse information regarding the sponsor; ■ Be employed as a superyacht crew member. ■ it has a strong record of, or commitment to, employing ■ Do full-time domestic work in the household of certain senior local labour and non-discriminatory employment foreign executives. practices; and The Temporary Work (Short Stay Activity) (Subclass 400) visa ■ it meets the training benchmark as part of its commitment to the ongoing training of their Australian citizen and (please see the answer to question 2.3). permanent resident staff. ■ Nomination application, which is lodged by the company, 8 Group or Intra-Company Transfer Work relates to the nominated occupation and meets the following Australia Permits requirements: ■ the position is on the MLTSSL or STSOL and meets the minimum skills threshold for that occupation; 8.1 Does a specific immigration category exist for inter- ■ the base salary meets or exceeds the temporary skilled company transfers within international groups of migration income threshold (TSMIT) (currently $53,900 companies? gross per annum) in addition to superannuation for a 38- hour week; The Subclass 457 visa allows for intra-company transfers within ■ the terms and conditions of employment are no less international corporations. favourable than those provided to Australian staff in the same position in the workplace’s regional locality (‘the market salary rate’); 8.2 What conditions must an employing company or ■ the details of the employee are provided; and organisation fulfil in order to qualify as part of a group of companies? ■ unless exempted, it meets the LMT requirements. ■ Visa application, which is lodged by the employee nominated In order for a company or organisation to qualify as part of a to fill the position, who must: group of companies, the requirements of section 50AAA of the ■ demonstrate they have the requisite skills and experience Corporations Act 2001 (as to the term ‘associated entity’) must be for that position; met. An associated entity is a party that is either controlled by, or ■ be offered employment at the relevant market salary rate operates wholly (or to a significant extent) for the benefit of, one or (which cannot be below the TSMIT); more parties. Those parties are considered to be associated. ■ if necessary, provide evidence they meet the English language requirements;

8.3 What conditions must the employer fulfil in order ■ if necessary, provide a skill assessment; to obtain a work permit for an intra-company group ■ provide a police check; and employee? ■ if necessary, undertake a health check.

The Subclass 457 visa programme enables inter-company group 8.5 What is the process for the employee to obtain a visa employees to obtain a work permit to work for the associated entity under the intra-company group transfer category? in Australia for up to four years.

All 457 visa holders have the condition 8107, which provides that Please see the answer to question 8.4 above. they must not: ■ Cease to be employed by the employer for which the visa was granted. 8.6 How long does the process of obtaining the work permit and initial visa take? ■ Work in a position or occupation inconsistent with the position or occupation in relation to which the visa was granted. The processing times vary depending on a range of factors including whether the person holds a “low risk” or “high risk” passport. ■ Engage in work for another person while undertaking employment in relation to which the visa was granted. The current indicative processing times in respect of applications Please see the answer to question 8.4 for details as to the process to under the Subclass 457 visa programme may range from four to obtain a work permit for an intra-company group employee. seven months. The current indicative processing times for ENS applications range from nine to 13 months. 8.4 What is the process for obtaining a work permit for an intra-company group employee? The current indicative processing times for RSMS applications range from 13 to 14 months. There are three main steps in the approval process under the Subclass 457 visa programme: 8.7 How long are visas under the “initial” category valid ■ Sponsorship application which is lodged by the company and for, and can they be extended? which evidences that: ■ the company is actively and lawfully operating the Under the Subclass 457 visa programme, occupations under the business; MLTSSL can be granted for a period of up to four years and can be ■ the employment of the employee will benefit Australia; extended for further periods of up to four years each. ■ it is able to comply with sponsorship obligations; However, occupations on the STSOL can only be granted for two years and can only be renewed once while the person is onshore.

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Further, there is no permanent residency pathway for occupations on the STSOL. 9.6 How long does the process of obtaining the work permit and initial visa for a new hire take?

8.8 Can employees coming under the intra-company Please see the answer to question 8.6 above. transfer route apply for permanent residence?

The ENS programme allows for employees coming under the intra- 9.7 How long are initial visas for new hires granted for company transfer route to apply for permanent residence by being and can they be extended? nominated by their employer. Please see the answer to question 8.7 above. Australia 8.9 What are the main government fees associated with this type of visa? 9.8 Is labour market testing required when the employee extends their residence? The Subclass 457 visa programme fees and charges for visas are: ■ Sponsorship Application: $420. Under the Subclass 457 visa programme, certain nominated occupations as specified by the Minister of Immigration and Border ■ Nomination Application: $330 per nominee. Protection in a Legislative Instrument (unless exempted) are subject ■ Visa Application: $1,080 for a primary applicant; $1,080 for to LMT. an additional applicant 18 years and over; and $270 for an additional child applicant under 18. Please also see the answer to questions 4.5 and 8.4 above. The Subclass 186 ENS visa programme fees and charges for visas are: 9.9 Can employees coming as new hires apply for ■ Nomination Application: $540. permanent residence? ■ Visa application: $3,670 for a primary applicant; $1,835 for additional applicants 18 years and over; and $920 for The ENS Direct Entry stream is for: additional child applicants under 18 years. ■ people who have been nominated by their employer under the Direct Entry stream; ■ people who have never, or only briefly, worked in Australia; 9 New Hire Work Permits or ■ temporary residents who do not qualify for permanent 9.1 What is the main immigration category used for residency under the Temporary Residence Transition stream. employers who wish to obtain work permits for new hires? 9.10 What are the main government fees associated with this type of visa? The Subclass 457 visa programme and the ENS are the main visa programmes for new-hire work permits. The Subclass 186 ENS visa programme fees and charges for visas are: ■ Nomination Application: $540. 9.2 Is there a requirement for labour market testing, to ■ Visa application: $3,670 for a primary applicant; $1,835 demonstrate that there are no suitable resident workers, for additional applicants 18 years and over; and $920 for before a work permit can be issued to new hires? additional child applicants under 18 years. Please also see the answer to question 8.9 above. Labour Market Testing is required unless exempted as referred to in questions 1.3 and 4.5 above. The LMT requirement does not apply to nomination applications 10 Conditions of Stay for Work Permit lodged by parties under a Labour Agreement. Holders LMT will not need to occur where it conflicts with Australia’s international trade obligations. 10.1 What are the conditions of stay of those who obtain work permits and are resident on this basis? 9.3 Are there any exemptions to carrying out a resident labour market test? Persons who are approved under the ENS are permanent residents of Australia and have work rights. Please see the answer to questions 4.5 and 9.2 above. All primary 457 visa holders’ visas are subject to condition 8107, which means that the holder must not: 9.4 What is the process for obtaining a work permit for a ■ cease to be employed by the employer in relation to which the new hire? visa was granted; ■ work in a position or occupation inconsistent with the Please see the answer to question 8.4 above. position or occupation in relation to which the nomination was granted; or

9.5 What is the process for the employee to obtain a visa ■ engage in work for another person or on the holder’s own as a new hire? account while undertaking the employment in relation to which the visa was granted. Please see the answer to question 8.4 above. The secondary 457 visa holder has unrestricted work rights.

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the Regulations, then the child would be expected to be a full-time 10.2 Are work permit holders required to register with student and be wholly or substantially reliant on their parents for municipal authorities or the police after their arrival? financial support. Therefore, any access to the labour market is required to be consistent with the dependency requirements. Please No, they are not. see the answer to question 11.1 for further details.

11 Dependants 12 Permanent Residence

11.1 Who qualifies as a dependant of a person coming to 12.1 What are the conditions for obtaining permanent work on a sponsored basis? residence? Australia

A ‘dependant’ must be a ‘member of the family unit’ (MOFU) of The conditions for obtaining permanent residency depend on the the person coming to work on a sponsored basis. MOFU is defined visa subclass applied for. in Regulation 1.12 of the Regulations. Generally, a person is Under the ENS, the process has two steps: considered to be a MOFU of the ‘family head’ if the person: Step 1 – nomination of an ‘approved appointment’ requires the ■ is a spouse or de facto partner of the family head; employer to show that: ■ is a child or step-child of the family head or of a spouse or de facto partner of the family head (who is not engaged, married ■ the business is lawfully operating in Australia and is of good or in a de facto relationship); or standing; ■ is a dependent child. ■ it has the need to fill a full-time nominated position; ‘Spouse’ is defined in section 5F(1) to mean two persons who are in ■ it meets the training benchmark as part of its commitment to the ongoing training of its Australian citizens and permanent a married relationship. resident staff; The concept of a ‘de facto partner and de facto relationship’ is ■ the terms and conditions of employment and salary meet at defined in section 5CB(1) of the Act to mean that a person is the de least the salary specified in the Legislative Instrument and facto partner of another person (whether of the same sex or different accord with the relevant market salary rate for that position; sex) if the person is in a de facto relationship with the other person. and For this purpose, a person is in a de facto relationship with the other ■ the position is on the MLTSSL or the STSOL. if they are not married to one another, and: The second step of the ENS depends on whether the applicant ■ they have a mutual commitment to a shared life to the applies under the Temporary Residence Transition stream or the exclusion of all others; Direct Entry stream. ■ their relationship is genuine and continuing; An applicant for an ENS under the Temporary Residence Transition ■ they live together or do not live separately and apart on a stream must meet the following: permanent basis; and ■ they are not related by family. Step 2 – a visa application is made by the person to fill the position, who must: ‘Dependent child’ is defined in Regulation 1.03 and means a single ■ have the relevant skills; or unattached person who has not turned 18. ■ have worked in Australia for at least the past two years as a If they have turned 18, the ‘adult dependent child’ must be wholly primary Subclass 457 visa holder in the nominated occupation or substantially reliant on the ‘family head’ or the ‘family head’s with the nominating employer prior to the lodgement of the spouse’ or de facto partner or interdependent partner for their basic nomination application; and unless the applicant or nominated needs, or are incapacitated for work. position, or both, fall within a specified exemption, the person must: 11.2 Do civil/unmarried or same-sex partners qualify as ■ be under 50 years of age; and family members? ■ have ‘competent’ English. An applicant for an ENS under the Direct Entry stream must meet Yes; civil, unmarried or same-sex partners can qualify as family the following: members, provided they are in a de facto relationship with the person Step 2 – a visa application is made by the person who is nominated coming to work on a sponsored basis. Under the Subclass 457 visa programme, the de facto relationship must have existed for at least to fill the position, who must: six months immediately before the person applies for the visa. ■ provide evidence of a positive skills assessment from the relevant authority; and ■ unless the person or the nominated position falls within a 11.3 Do spouses and partners have access to the labour specified exemption, the person must: market when they are admitted as dependants? ■ be under 45 years of age; Yes, spouses and partners have unrestricted work rights. ■ have three years of relevant work experience; and ■ have ‘competent’ English.

11.4 Do children have access to the labour market? 12.2 Is it possible to switch from a temporary work visa to If a child’s visa is granted on the basis that the child meets the a work visa which leads to permanent residence? requirements of ‘dependent child’ as defined in Regulation 1.03 of Yes, if the employer wishes to nominate the person under the ENS.

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13 Bars to Admission Maria Jockel BDO Migration Services Collins Square, Tower 4, Level 18 13.1 What are the main bars to admission for work? 727 Collins Street Melbourne, Victoria 3008 Australia’s immigration laws are complex. There are 101 operational Australia visa subclasses including nine bridging visa, with prescribed criteria Tel: +61 414 714 626 to be met including in respect of permission to work. Email: [email protected] URL: www.bdo.com.au

Australia 13.2 Are criminal convictions a bar to obtaining work permission or a visa? Maria Jockel is acknowledged as one of Australia’s leading immigration lawyers. Maria has been listed in “The International Who’s Who of Corporate Immigration Lawyers” (2010–2017) and has All visa applicants seeking to enter or stay in Australia must be been recognised in the peer-reviewed “Best Lawyers” in the areas of assessed against Section 501 of the Act, which defines the character Immigration law (2008–2017). requirements. Maria’s book 457 visa law addressing Australia’s skilled labour The onus is on the person to show that they are of good character. shortage is considered to be the definitive resource providing an overview on this complex and dynamic area of law. The character test also introduces mandatory and discretionary powers to either refuse or cancel visas if the person does not pass Maria has also contributed to the Australian chapters in Immigration the character test. Law Client Strategies in the Asia-Pacific (Aspatore, 2009), Getting the Deal through: Corporate Immigration (Law Business Research 2012– Whether a person meets the character test depends on the nature 2017), Global Mobility (ILW, 2012–2016); and Corporate Immigration of the criminal record, their past and present criminal or general Annual Review (Financier worldwide). conduct and whether there is a significant risk posed by that person Maria’s high standing is also reflected in her appointment by Federal to the Australian community or a segment of the community. and State Governments to advise on sensitive policy issues relating to immigration and related matters. Under clause 457.224 of the Regulations, all applicants must be of good character and satisfy the PIC. Where the person does not pass the character test, the departmental officer will decide whether to refuse the application or cancela visa after consideration of a range of factors that are relevant to the exercise of this discretion.

BDO’s Migration Services is a dedicated incorporated immigration law firm led by Maria Jockel, offering pre-eminent expertise in all aspects of immigration and nationality law – with particular emphasis on skilled temporary and permanent residency and business skills visas. BDO focuses on employer-sponsored temporary and permanent residency visas and business migration. As part of the BDO global network, BDO Migration Services offers market-leading expertise including: ■■ 457 Visa Programme – Addressing Australia’s skilled labour force needs. ■■ 457 Visa Programme – Monitoring & Sanctions. ■■ Employer-Sponsored and Related Advice. ■■ Business Skills Visas and Business Innovation and Investment Programme. ■■ Significant Investor Visa. ■■ Healthcare Sector. ■■ International Education Providers and Related Advice. ■■ Risk, Governance and Compliance – The new immigration regulatory environment. BDO Migration Services immigration lawyers work closely with BDO Australia’s Tax-employment & Expatriate practice, which offers a full range of services to employers. It is part of BDO holistic human resources and related services. BDO Migration Services works collaboratively with business lines across BDO including: ■■ Tax-Employment and expatriate services. ■■ Conducting due diligence and developing strategies for compliance and risk minimisation. ■■ Programme and project management and operational planning. ■■ Human capital and workforce capability. ■■ Planning non-statutory and special purpose audits. BDO Migration Services, together with BDO, provide comprehensive and seamless support to business.

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Austria Ewald Oberhammer

Oberhammer Rechtsanwälte GmbH Petra Pardatscher

1 Introduction 2 Business Visitors

1.1 What are the main sources of immigration law in your 2.1 Can business visitors enter your jurisdiction under a jurisdiction? relevant visa waiver programme?

Immigration law in Austria is regulated by special laws. These are “Business visitors”, who are entitled to come to Austria only for mainly the Alien Employment Act (Ausländerbeschäftigungsgesetz, a very short period (a maximum of one week), can enter Austria AuslBG), the Settlement and Residence Act (Niederlassungs- without applying for a work permit or other declaration. Nationals und Aufenthaltsgesetz, NAG) and the Alien Police Act who need a visa for entering Austria will have to apply for such a (Fremdenpolizeigesetz, FPG). Further, various other laws are visa. For business visitors, a normal visa C will be appropriate, relevant for aliens who want to work in Austria, e.g. the Austrian which enables the holder to stay in Austria for up to 90 days. Visa- Staffing Act (Arbeitskräfteüberlassungsgesetz, AÜG) and the Salary free nationals do not need a visa. and Social Dumping Prevention Act (Lohn- und Sozialdumping- However, it must be noted that the term “business visit” has its Bekämpfungsgesetz, LSD-BG). It is expected that the Austrian own meaning in Austrian immigration law and does not apply to all legislative bodies will make further changes to the Settlement and short-term activities (see question 2.2 below). Residence Act (Niederlassungs- und Aufenthaltsgesetz, NAG) in the It is not considered a “short-term business visit” if an assignee second half of 2017 due to the implementation of the ICT Directive periodically carries out activities for a few days within a period of into Austrian law. weeks or months, or if the activities exceed the one-week period. In these cases, all third-country nationals need a business/working visa 1.2 What authorities administer the corporate immigration in combination with a work permit. system in your jurisdiction? Therefore, if the scope of the stay exceeds the one-week period, the foreign employee does not qualify as a business visitor any longer, Immigration law in general is administered by the Labour Authority but qualifies as an assigned worker. In such a case, the employee (Arbeitsmarktservice, AMS) and the municipal authorities needs a working visa C issued for a period of up to 90 days, or a (Magistrate or Bezirkshauptmannschaften), as well as the Austrian working visa D issued for a period of not less than 91 days and not consular missions. Further, a special authority exists in the form of more than six months, even if the foreign employee is, in principle, the financial police that is responsible for checking the compliance a visa-free national. of aliens working in Austria.

2.2 What is the maximum period for which business 1.3 Is your jurisdiction part of a multilateral agreement visitors can enter your jurisdiction? between countries (EU/NAFTA/MERCOSUR) which facilitates the movement of people between countries for employment purposes? Business visitors can only carry out very “short-term” activities, such as business meetings and visits to trade fairs and conferences. The interpretation of “short-term” is currently uncertain. General Austria is part of the European Union (EU) and the European guidelines allow one to assume that a stay of up to three days can be Economic Area (EEA). There are various regulations according considered “short-term”. to or based on EU law that facilitate the movement of people between countries for employment purposes. These exemptions apply to EU/EEA and Swiss nationals, as well as to third-country 2.3 What activities are business visitors able to nationals employed by an employer having its seat in the EU, EEA undertake? or Switzerland. However, under these exemption rules, certain notifications may also be required to be filed with the competent The general business meeting exemption applies only to very short- authorities in due time before the start of an assignment. Such term activities and is limited to activities that cannot be carried out requirements have to be evaluated on a case-by-case basis. by local employees in Austria. Hence, business visitors can only

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perform certain activities while in Austria without obtaining a work permit. Permissible activities as a business visitor (without 3 Immigration Compliance and Illegal obtaining a work permit) are: attending business meetings; Working interviews; conferences or trade fairs; conducting site visits; and other so-called urgent “task force” activities. The same applies 3.1 Do the national authorities in your jurisdiction operate to the demonstration of new technology in Austria by an assignee. a system of compliance inspections of employers However, the law does not provide an exhaustive list. It is of utmost who regularly employ foreign nationals? importance to point out that, in the case that services of any kind are provided to a (direct or indirect) client in Austria, the business In Austria, a special authority exists in the form of the financial meeting exemption is not applicable at all. police that is responsible for checking compliance with the Austrian Austria legal provisions regarding the employment of all foreigners. The 2.4 Are there any special visitor categories which will inspections are carried out irrespective of the duration or frequency enable business visitors to undertake work or provide of the employment of foreign nationals. In the course of such services for a temporary period? inspections, not only work permits, working visas and residence permits are reviewed, but also compliance with the Austrian No. “Business visitor” status only allows for a stay of a few days, if minimum salary and documentary record-keeping requirements. the requirements mentioned in questions 2.2 and 2.3 above are met. If the scope of the stay exceeds the one-week period, the foreign 3.2 What are the rules on the prevention of illegal employee does not qualify as a business visitor any longer, but working? qualifies as an assigned worker. In such a case, the employee needs a working visa C issued for a period of up to 90 days, or a working Austrian immigration law foresees severe pecuniary and non- visa D issued for a period of not less than 91 days and not more than pecuniary fines in the case of non-compliance with the immigration six months. rules and regulations (see question 3.3 below).

2.5 Can business visitors receive short-term training? 3.3 What are the penalties for organisations found to be employing foreign nationals without permission to EU, EEA and Swiss nationals do not need immigration permissions work? to receive short-term training. However, Croatian nationals need a training permit to receive training in Austria. Depending on the Employers (this term also covers Austrian companies which accept in content of the training programme, the scope of the training and their premises foreigners who are on secondment from other foreign the duration of the training, declarations for EU, EEA and Swiss employers) are responsible for allowing access to their premises nationals may have to be submitted to the local immigration only to employees (whether locally hired or on assignment) holding police before the start of the training (so-called ZKO 3 or ZKO 4 valid work permits or required declarations. There are sanctions declarations). for work permit-related violations such as failure to keep certain Third-country nationals need special permissions in order to receive documents on display, or failure to comply with the minimum short-term training or to act as a trainer, namely a training permit salary requirements that range between EUR 1,000 and EUR 80,000 and, depending on the duration of the training, a business/working (per case) depending on the number of foreign nationals illegally visa. A training permit is issued in the form of a Declaration employed and the recurrence of the illegal employment. With Confirmation for volunteers, internships, training programmes or regard to documentary record-keeping requirements, additional joint ventures. It applies to: employees posted in the course of a financial penalties in the amount of up to EUR 70,000 (per case) joint venture cooperation for training purposes for no longer than six may apply. Financial penalties may be imposed on each single months; employees of an international group of companies posted managing director of the sending or receiving entity. to Austrian headquarters on the basis of a qualified inter-company Further consequences of non-compliance with immigration rules are education programme for no longer than 50 weeks; foreign nationals that certain violations will be registered in a central register, and seeking experience via an unpaid volunteering programme; and may lead to prohibition from employing new foreign nationals for a foreign nationals studying at Austrian universities and undertaking certain period. In case of severe and repeated violations of Austrian a compulsory internship pursuant to their degree programme. immigration rules and regulations, the Austrian authorities can also The training or education may only commence after the apply criminal charges, revoke the trade licence of the Austrian acknowledgment confirmation has been issued. The competent entity violating immigration rules and regulations, or prohibit Austrian fiscal authority must also be notified of certain training business activities in Austria for a certain period of time. Currently, programmes two weeks prior to the start of the training at the latest. in case of suspicion that Austrian provisions have been violated, the immigration police issues “stop payments” orders to the customers After the issuance of the training permit, the employee or trainee of foreign suppliers and forces such clients to pay a security deposit can apply for the respective visa at the Austrian consular mission up to the amount of an alleged financial penalty. in his or her country of residence outside Austria. The visa will be issued based on the training permit as received from the local Labour Office. 4 Corporate Immigration – General Some training programmes arranged between certain international universities are exempted from the notification requirements of the above-mentioned labour and fiscal authorities. Further, certain 4.1 Is there a system for registration of employers who wish to hire foreign nationals? activities within international organisations may be exempted.

There is no general registration system for employers who wish to hire foreign nationals. Depending on the respective case, a certain

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procedure has to be applied. However, foreign nationals and Employment, permits for dependants joining the principal during Austrian nationals can be registered on the Austrian unemployment the stay in Austria, or permits to work as seasonal worker, a quota list, to which interested employers have access. system is applicable.

4.2 Do employers who hire foreign nationals have 4.7 Are there restrictions on the number of foreign ongoing duties to ensure immigration compliance? workers an employer may sponsor, in relation to a maximum percentage of foreign workers in the In general, the Austrian minimum salary requirements have to be employer’s workforce? met during the whole employment period, as do the record-keeping No, there is no limitation on the number of foreign workers that requirements. In particular, work permits or other declarations have Austria to be kept on display, as well as German-language salary information an employer may sponsor. However, the immigration authority and any other information which is needed to allow the authorities reserves the right to reject work permit applications for foreigners in to be in a position to verify compliance in case of a control (i.e. case they are of the opinion that a local resource is equally qualified time records, pay slips, bank transfer statement, and similar). Of for a proposed job. particular interest is the obligation to keep evidence that the foreign national is covered either by a local social insurance or an acceptable 4.8 Are employees who are sponsored to work in your foreign social insurance (i.e. the A1 certificate issued by EU/EEA jurisdiction required to demonstrate language Member States and Switzerland, or the respective certificates issued proficiency? under an applicable bilateral agreement between the states involved, e.g. USA/A1 waiver certificates). Proof of German language skills is only required for long-term In most cases of local hire or assignment of third-country nationals, employment in Austria (i.e. exceeding six months), which usually the Austrian employer or the Austrian receiving entity (in case of goes along with a residence/settlement permit. assignments) has to inform the Labour Authority in due time of the In general, all individuals applying for settlement permits have to start and end date of the work. comply with the integration agreement. Within two years of the issuance of the first permit, immigrants have to present a German language certificate, proving they have attained level A2. Dependants 4.3 Do the immigration authorities undertake routine inspections of employers who sponsor foreign of these applicants have to present a German language certificate at nationals, to verify immigration compliance? the time of the first application, proving they have attained level A1. This requirement is waived if the applicant has completed Yes. Compliance checks can take place at any time and without high school education, qualifying him or her to attend university, previous announcement at the premises of employers that employ or if the applicant already holds a university degree. Dependants of or receive foreign nationals. individuals applying for an EU Blue Card do not need to present a German language certificate upon the first application. After five years of residence in Austria, the integration agreement 4.4 Do the immigration authorities maintain a list of skilled occupations which may be filled by foreign regarding German language skills has to be fulfilled in order to have nationals? access to a long-term residence permit issued for a period of five years. At this stage, B1-level German language skills are required. Austrian authorities follow a criteria system under which salary elements, qualification skills, previous experience and the age of the 4.9 Are employees who are sponsored to work in your applicant are taken into consideration. Such elements are reflected jurisdiction required to undergo medical examinations in a points system. If the employee reaches a certain number of before being admitted? credits in this evaluation process, he/she is eligible to apply for a permit to work and reside in Austria. Generally, the undertaking of medical examinations is not required, except in the case of a visa application for some countries. However, the Austrian immigration authorities are allowed to require a 4.5 Is there a recognition that some occupations may be in short supply and do special exemptions apply to medical check after granting a residence permit. It depends on the certain sectors and occupations? regional immigration authority as to whether it requests a medical examination after the arrival of the employee. Yes. The Labour Ministry regularly publishes a list with certain occupations (e.g. cutters, roofers, turners, mechanical engineers, 4.10 Are employees who are sponsored to work in your electricity engineers, qualified nurses, etc.) that are rarely filled by jurisdiction required to have medical insurance or are Austrians and therefore can be filled by foreign nationals. This list they entitled to any free public medical services? is published and adapted on an annual basis. Foreign nationals who want to work in these industries can apply Employees working in Austria must have suitable medical insurance for a Red-White-Red Card, which is a combined work and residence cover. In the case of assignments, medical insurance covering the permit. following risks is necessary: (i) medical care, including emergency medical treatment; (ii) hospital accommodation and specialist medical treatment of acute illness and injury; (iii) hospitalisation 4.6 Are there annual quotas for different types of and repatriation; and (iv) emergency evacuation. The minimum employment-related work permits or visas? coverage amount is EUR 30,000. Locally hired employees have to be enrolled in the Austrian social and health insurance system For visas, there is no quota system applicable. In very few cases (unless case-related exceptions apply). of work/residence permits, such as a Settlement Permit without

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4.11 Does the work permit system allow employees who 7 Temporary Work Permits hold work permits to be seconded to a client site?

7.1 Is there an immigration category permitting the It depends on the type of underlying permit. In the case of an hiring of temporary workers for exchanges, career assignment, the employee can work for the target entity mentioned development, internships or other non-economic on the permit and in the application forms. In the case of local hire, purposes? the employee can be seconded to a client site without additional permits. In the case of such a secondment, attention must be paid Foreign nationals who are working as volunteers (without payment) to the concrete circumstances in order to evaluate whether such for a period of up to three months, or as trainees, do not need a Austria secondment qualifies as the leasing of personnel. In that case, work permit. However, the Austrian employer has to notify the particular authorisations and licences are required for the Austrian responsible authority of the employment of these volunteers/trainees employer. in advance and the authority will issue a special permit (known as a Declaration Confirmation). 5 Highly Skilled Visas Further, under the new ICT regime, a work permit can be obtained for trainees who are employed with a company outside the EU and who are assigned to an Austrian group company for training 5.1 Is there an immigration category which covers highly purposes for up to one year. skilled individuals? Also, secondments within intra-company lease programmes are possible. There is a special route for highly skilled individuals. They can apply for a job-seeker visa (with a validity of 180 days) in their country of residence. They have to submit all their diplomas and 7.2 Are there sector-specific temporary work permit qualifications, which are scrutinised according to a points system. categories which enable foreign workers to perform temporary work? A job-seeker visa enables them to travel to Austria and to seek employment. As soon as they find a job, they can exchange the visa for a Red-White-Red Card, which is a combined work and residence Notwithstanding our answer to question 7.1, the Austrian Labour permit. If the candidate reaches the required amount of credits Ministry can issue regulations, stating certain industries that require (points), the authorities will grant the permit. Candidates who have workers who are third-country nationals to meet the anticipated already found a job while still residing in their home country can demand for workers. These are typically industries with a seasonal apply directly for a Red-White-Red Card. need for additional workers, such as the hotel or agriculture industries. Workers in these industries can apply for a work permit. Further, there is the EU Blue Card, which is also a combined work and residence permit and is granted to people who are highly educated and earn a certain amount of money that is above the 8 Group or Intra-Company Transfer Work average salary in Austria. The essential requirements for getting Permits an EU Blue Card are a university qualification, work experience, a job offer according to the pre-qualifications, and the meeting of minimum salary requirements (which are published once a year). 8.1 Does a specific immigration category exist for inter- company transfers within international groups of companies? 6 Investment or Establishment Work Permits Austria is currently implementing the ICT Directive and it is expected that the Austrian ICT rules will be applicable as of October 2017. The Austrian ICT system creates two new residence and work 6.1 Is there an immigration category which permits permits for managers, specialists and trainees who are employed employees to be authorised to work based on with a third country employer and are assigned to an Austrian group investment into your jurisdiction? company: ■ The “ICT Card” is a combined residence and work permit Investors can apply for a Red-White-Red Card only as self-employed and is issued by the Austrian authorities within eight weeks persons. The investor category is designed for high-net-worth as of filing of the application. It can only be obtained by individuals intending to make a substantial financial investment in managers, specialists or trainees who have been employed Austria or a valuable contribution to the Austrian economy. The with a third country employer for at least six months thresholds for such substantial financial investments or valuable (concerning trainees)/nine months (concerning managers and contributions to the economy are not fixed by the immigration rules specialists), and are assigned to an Austrian group company and regulations. for more than 90 days and up to one year (trainees)/three years (managers and specialists). The assigned candidate Individuals undertaking a notable investment may also receive is allowed to work for client projects of the Austrian group Austrian citizenship (through the “citizenship by investment” company. programme). However, this route is entirely dependent on the ■ The “Mobile ICT Card” is also a combined residence and discretion of the Ministry of Internal Affairs and is evaluated and work permit that is issued by the Austrian authorities. It can only granted after a deep analysis of the effected – not only the only be obtained by managers, specialists or trainees who planned – investment. have been assigned by a third country employer to a group company in the EU under the ICT regime and therefore already hold an ICT Card that was issued by another EU Member State. Holders of ICT Cards of another EU Member State who are subsequently assigned to an Austrian group

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company for more than 90 days, can obtain this permit. As company must not be established for the purpose to facilitate the candidate already went through the application process assignments under the ICT regime. In any case, the Austrian in another EU Member State, the process in Austria is employment, salary and social insurance conditions must be met accelerated: the assignee will receive the residence and work and the transfer to the EU group company must not exceed one permit “Mobile ICT” within eight weeks as of filing the year (in case of trainees) or three years (in case of managers and application according to the Austrian rules. However, he is specialists). allowed to start to work in Austria 20 days after the complete application has been filed. Like the ICT Card, the Mobile Foreign nationals who do not qualify for ICT permits, e.g. employees ICT Card also entitles the assignee to work for client projects who are not managers, specialists or trainees, must have a university of the Austrian group company. degree or alternatively sufficient work experience, and their salary

Dependants of holders of an ICT Card or a Mobile ICT Card can must meet the minimum amount provided by an Austrian collective Austria apply for a residence permit for dependants that also grants access bargaining agreement. If these requirements are met, a work permit to the Austrian labour market. and residence permit (or visa process, if the duration of the transfer is below six months) can be initiated. In recent months, intra- Further, there will be a separate process for holders of an ICT Card company transfers have been under special review as, due to the of another EU Member State who are assigned to Austria for a current legal set-up, most intra-company transfers will no longer period of up to 90 days within a 180-day period: in this case, a ZKO- qualify as Assignment but as Staffing. This means that the work declaration will have to be filed with the Austrian authorities prior permits are subject to an intense labour market test, and the outcome to the arrival of the candidate in Austria. The Labour Authority of such labour market test is not predictable at the beginning of the will issue an EU-Secondment Declaration afterwards, provided that process. This also leads to the fact that the processing time for all requirements for the assignment are fulfilled. In this case, no Staffing is considerably longer than that for traditional Assignment additional Austrian working visa is required. permits to companies which are not part of a group. For junior executive training programmes a new Declaration Permit will be established as of October 2017 allowing junior executives to receive intra-group trainings in Austrian group companies for a 8.4 What is the process for obtaining a work permit for an period of up to 24 months. intra-company group employee? If the requirements of the ICT regime are not fulfilled (e.g. if an Under the ICT regime, the processes are as follows: employee does not qualify as a manager, specialist or trainee), there are two other employment authorisation regimes that may For an ICT Card, the application and a written compliance, signed be applicable for cases of inter-company transfer within an by the receiving Austrian group company, has to be filed with the international corporate group: Assignment pursuant to the Austrian responsible immigration authority either by the assignee in his home Alien Employment Act; or Personnel Leasing (“Staffing”) pursuant country or by the Austrian group company on behalf of the assignee to the Austrian Secondment Act. in Austria. The documents are then forwarded to the Labour Authority that has to check within four weeks if all requirements are fulfilled. In case of a positive assessment, the application is 8.2 What conditions must an employing company or forwarded again to the immigration authority that issues the ICT organisation fulfil in order to qualify as part of a group Card. The whole process must not exceed eight weeks. of companies? For a mobile ICT Card, the rules are basically the same. However, According to the Austrian Commercial Code, a group of companies as the candidate already holds an ICT Card of another EU Member (also referred to as affiliated enterprises) are companies which are State and therefore is already pre-approved, the process in Austria included in the consolidated financial statements of the parent entity is accelerated: the application has to be filed with the Austrian within the framework of full consolidation. immigration authority at least 20 days prior to the intended arrival of the candidate in Austria. The Labour Authority checks For the purposes of ICT permits, the definitions of the ICT-Directive the fulfilment of the requirements and in the case of a positive are applicable. Under the ICT regime, “group of undertakings” assessment and the immigration authority issues the Mobile ICT means two or more undertakings recognised as linked under national Card. The whole process must not exceed eight weeks. However, law when: an undertaking, in direct relation to another undertaking the candidate is allowed to start his work with the Austrian group holds a majority of that undertaking’s subscribed capital; controls company after 20 days of filing the complete application with the a majority of the votes attached to that undertaking’s issued share Austrian immigration authority. capital; is entitled to appoint more than half of the members of that undertaking’s administrative, management or supervisory body; For holders of an ICT Card of another EU Member State who or the undertakings are managed on a unified basis by the parent are assigned to Austria for a period of less than 90 days in a 180- undertaking. day period, a ZKO-declaration has to be filed with the Austrian authorities prior to the arrival of the candidate in Austria. The Labour Authority will issue an EU-Secondment Declaration within 8.3 What conditions must the employer fulfil in order two weeks, provided that all requirements for the assignment are to obtain a work permit for an intra-company group fulfilled. employee? For assignments to Austria that are not ICT cases, the employment In order to obtain an ICT permit, the assignee must qualify as a authorisation process involves the processing of applications for manager or specialist who has been working with the foreign three principal documents: employer for at least nine months (uninterrupted) or must be a ■ To begin the employment authorisation process, the Austrian trainee with a university degree who has been working with the company must apply for a Guarantee Certificate with the local Labour Office which holds jurisdiction over the foreign employer for at least six months (uninterrupted) prior intended place of work. to the assignment to the Austrian group company. Further, the posting company or the Austrian group company must exercise ■ After the issuance of the Guarantee Certificate, the foreign national must apply for a visa (for a stay of less than six real operational business activities. The receiving Austrian group

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months) or a residence permit (for a stay of more than six other EU Member States are entitled to start to work in Austria 20 months) from the Austrian consular post with jurisdiction days after filing a complete application for the issuance of a Mobile over the applicant’s place of legal residence. In case of an ICT Card with the Austrian authorities. application for a residence permit, final approval has to be granted by the immigration authorities in Austria. In case of Short-term permits of up to six months outside the application of this approval, an application for a so-called “collection visa” the ICT-Directive: the Labour Office, by law, has up to six weeks to must be filed by visa nationals with the relevant consular post decide on the application for a Guarantee Certificate. The processing to enter Austria, and the applicant must be able to “collect” times for visa applications can vary across Austrian consular posts; the granted residence permit. Upon issuance of the visa and/ usually there is a minimum processing time of two weeks. The or residence permit, the Austrian company may request the work permit should be issued within one week because the Labour issuance of the final work permit.

Austria Office has already reviewed it in the course of the issuance of the ■ In the case of Staffing, a Staffing permit must be issued by Guarantee Certificate. Nevertheless, by law the Labour Office again the Austrian authorities before the process described above has up to six weeks to issue the final work permit. can begin. Staffing permits are only granted as an exception. Long-term permits exceeding six months outside the application of Only after a staffing permit is granted can the application for the issuance of a Guarantee Certificate, the visa/residence the ICT-Directive: the application process for long-term permits is permit and the final work permit be submitted. considerably longer and can take up to 16 weeks, or up 20 weeks in cases where the transfer qualifies as the leasing of personnel. ■ For junior executives, a Declaration Permit and a working visa will be required. The above timelines are applicable as of the day on which all In any case, if the employee is transferred to the local Austrian relevant documents for the application process are available. The group company, the Austrian group company can also apply for a gathering of the documents, in particular for long-term permits, can local hire work and residence permit in the form of a Red-White- take up to six weeks and these pre-filing requirements have to be Red Card or EU Blue Card. considered for the planning of the start date on which the resource is needed in Austria.

8.5 What is the process for the employee to obtain a visa under the intra-company group transfer category? 8.7 How long are visas under the “initial” category valid for, and can they be extended? For assignments to Austria that are not ICT cases and do not exceed six months, a working visa is required. The visa applicant must ICT permits (ICT Card and Mobile ICT Card): ICT permits for apply at the Austrian consular post in person and must submit trainees can be issued for a period of 91 days up to one year, ICT biometric data (fingerprints). The documentation requirements permits for managers or specialists can be issued for a period of for visa applications are as follows: a passport valid for more than 91 days up to three years. The validity of Mobile ICT Cards is three months beyond the validity of the requested visa, with a limited with the validity of the original ICT Card that was issued by blank visa page to affix the visa sticker; the assignment agreement the other EU Member State. If the maximum period (one or three and the Guarantee Certificate; booking confirmation for transport years) has been spent in the EU, the assignee has to leave the EU to Austria (round trip) and proof of accommodation; and proof for at least four months (cool-off period) and can afterwards apply of comprehensive accident and medical insurance, valid for all for a new ICT permit. To avoid this, the ICT permit can be replaced Schengen countries and which must exceed the validity of the visa. by another permit type (e.g. a local hire permit) prior to its expiry. If the transfer exceeds six months, the candidate has to apply for Short-term permits outside the application of the ICT-Directive: a residence permit instead of a working visa. In order to obtain a the visa for a short stay (type C) entitles a foreigner to enter the residence permit, the following additional documents are required: Schengen Area and to stay for a maximum period of 90 days within a birth certificate; a fresh police clearance certificate; and a marriage a six-month period. The type D visa is the Austrian national visa certificate (all documents must be duly apostilled or diplomatically which entitles a foreigner to stay for more than 90 days and less authenticated, if applicable). In certain cases, rent agreements than six months. covering the first year of stay are also requested. Long-term permits outside the application of the ICT-Directive: in Assignments to Austria in the scope of the ICT regime have to the case of long-term assignments, the initial permit is valid for a exceed 90 days and entitle the candidate to apply for a residence period of 12 months and can be extended afterwards for a further permit (either an ICT Card or a Mobile ICT Card). The candidate period of 12 months. Local hire permits can be issued for 12 or 24 has to file the application form and the declaration of the Austrian months, depending on the type of application. In case of extension, receiving group company, as well as the usual personal documents the extended permits can have a duration of 12 to 36 months, mentioned above. If the ICT Card is issued, the candidate only depending on the type of initial permit. After an initial period of needs a visa to enter Austria and to collect the permit, if he is a visa five years, permits can be issued for a duration of a further five years national. For visa free nationals, no collection visa is necessary. if German language skills at level B1 have been achieved. Family reunion permits are available for dependents of ICT Card and Mobile ICT Card holders but are not available for any other type 8.8 Can employees coming under the intra-company of intra-company assignment/transfer. transfer route apply for permanent residence?

ICT permits: as ICT permits are only issued for a limited period of 8.6 How long does the process of obtaining the work time (up to one year for trainees and up to three years for managers permit and initial visa take? and specialists), they do not entitle the holder to apply for a permanent residence permit. As of filing of all necessary application documents, Austrian authorities have eight weeks processing time to decide on the Assignment transfers: assigned employees can apply for a issuance of an ICT permit (ICT Card and Mobile ICT Card). permanent residence permit only after 10 years of continuous and Irrespective of the actual processing time, holders of ICT Cards of lawful residence in Austria. A permanent residence card, serving

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also as a work permit, is issued for an initial period of five years and of universities and colleges of higher education in Austria. can be extended thereafter. The Red-White-Red Card is extendable and when extended, a settlement permit Red-White-Red Plus Card will be Local hire transfers: foreigners who are transferred to Austria and issued. Applicants for a Red-White-Red Card are allowed are employed with the Austrian company with a local hire permit to bring their family members to Austria, if dependants can apply for a permanent residence permit after five years of meet certain German language skill requirements or if they continuous and lawful residence in Austria. A permanent residence have undertaken a high school education, which issues card, serving also as a work permit, is issued for an initial period of qualifications to enter university. The essential requirements five years and can be extended afterwards. for getting a Red-White-Red Card are qualification, work experience, age, language skills, job offer according to the pre-qualifications, and meeting the minimum salary 8.9 What are the main government fees associated with requirements (at least EUR 2,490 for employees aged up to Austria this type of visa? 30 years and EUR 2,988 for employees aged 30 years and above; these salary requirements are updated on an annual As the ICT permit process is not yet established, the exact amount basis; the above-stated figures are valid for 2017); it must be of government fees is not yet determined. However, it is estimated considered that for most industries, employees are entitled to that government fees will range from EUR 120 to EUR 165 for the 14 monthly salary payments in a year; combined residence and work permit. ■ settlement permit – EU Blue Card: this permit serves as a Government fees for short term assignment permits (up to six combined work and residence permit and is issued for an initial period of up to 24 months. The EU Blue Card is also months – outside the application of the ICT-Directive) amount to extendable and in such case, a Red-White-Red Plus Card approximately EUR 65 for the work permit and EUR 100 for the will be issued. Applicants for an EU Blue Card are allowed working visa (visa fees may vary). to bring their family members to Austria, who have to fulfil Government fees for long-term assignment permits (exceeding six certain German language skill requirements only after an months – outside the application of the ICT-Directive) amount to initial period of two years of stay in Austria. The essential approximately EUR 65 for the work permit and EUR 165 for the requirements for getting an EU Blue Card are qualification, residence permit. work experience, job offer according to the pre-qualifications, and meeting the minimum salary requirements (at least EUR 4,266; this salary requirement is updated on an annual 9 New Hire Work Permits basis; the above figure is valid for the year 2017); it must be considered that for most industries, employees are entitled to 14 monthly salary payments in a year; and 9.1 What is the main immigration category used for ■ permit for special cases of employment, for example: special employers who wish to obtain work permits for new executives of internationally active companies whose hires? monthly gross salary amounts to approximately EUR 5,976 (this figure applies to the year 2017); certain scientists; and Local hire work permits can be granted in different forms, other employees who do not need a work permit pursuant to depending on the nationality (EU/EEA/Swiss or third-country) and the Alien Employment Act: the individual qualifications of the applicant. ■ permit for those who are self-employed, for example, freelancers; In Austria, a distinction must be made between EU, EEA, Swiss nationals and third-country nationals who are transferred to ■ permit for researchers; and Austria in order to be locally hired (settlement permits), those who ■ permit for artists. are transferred to Austria while remaining on a foreign payroll Special rules apply to Turkish nationals under the EU Accession (residence permits – secondments), and those who are assigned to Treaty. Austria based on a staffing agreement.

EU, EEA and Swiss nationals 9.2 Is there a requirement for labour market testing, Nationals of the following countries do not need a work and to demonstrate that there are no suitable resident residence permit in the case of local hire: Austria; Belgium; workers, before a work permit can be issued to new Bulgaria; Cyprus; the Czech Republic; Denmark; Estonia; Finland; hires? France; Germany; Greece; Hungary; Iceland; Ireland; Italy; Latvia; Liechtenstein; Lithuania; Luxembourg; Malta; the Netherlands; In Austria, there is a labour market test carried out regarding the Norway; Poland; Portugal; Romania; Slovakia; Slovenia; Spain; application of specific permits for locally hired people, such as Sweden; Switzerland; and the United Kingdom. However, certain the Red-White-Red Card for key employees or the EU Blue Card. post-arrival registration requirements apply. This does not apply to Employers must demonstrate that they have been unable to fill the Croatian nationals. Croatian nationals still need a work permit in vacancy with a suitable settled worker. order to be locally hired in Austria and such work permit must be obtained before the start date of the employment. 9.3 Are there any exemptions to carrying out a resident Third-country nationals labour market test? For third-country nationals who are to be locally hired in Austria, the following residence permits are available: For certain residence permits, there is no labour market test. This applies, for example, to Red-White-Red Cards for skilled workers ■ settlement permit – Red-White-Red Card: this permit serves as a combined work and residence permit and is issued in a scarce occupation (see question 4.5) and students which have for an initial period of 12 months (as of October 2017: 24 completed their studies in Austria. months). The permit applies to the following four categories of workers: very highly qualified workers; skilled workers in scarce occupations; other key workers; and graduates

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9.4 What is the process for obtaining a work permit for a 9.9 Can employees coming as new hires apply for new hire? permanent residence?

An individual who has received a binding job offer from the Immigrants can apply for permanent residence only after five years Austrian employer (local hire) has to apply for the suitable residence of continuous and lawful residence in Austria, provided that the permit (settlement permit or residence permit), valid for more than individuals have obtained a German language level of at least B1. six months, in the respective home country of the employee at the consular mission. Most consulates require an appointment that has to be booked via a service provider or the embassy prior to filing. 9.10 What are the main government fees associated with this type of visa? Austria Such an appointment for filing may not be immediately available. Applications for Red-White-Red Cards and EU Blue Cards can also be filed by the Austrian employer at the respective competent Depending on the number of documents that have to be filed with immigration authority in Austria. In addition, visa-free nationals are the Austrian authorities to obtain a residence or settlement permit, allowed to file the application directly in Austria. government fees can range from EUR 120 to EUR 165, depending on whether the candidate is a visa national or a visa free national. The consular office forwards the documents to the competent The government fees for a collection visa are approximately EUR Austrian immigration authority. Subsequently, the documents 100 and can vary. are forwarded to the local Labour Office so that a labour market test may be carried out. If there is a positive result, the Austrian immigration authority approves the permit and notifies the employee 10 Conditions of Stay for Work Permit accordingly. Visa-exempted nationals are entitled to travel directly Holders to Austria and will receive the combined work and residence permit after the fingerprints have been taken. Third-country nationals who are not visa-free nationals will be granted an entry and collection 10.1 What are the conditions of stay of those who obtain visa in order to enter Austria for the collection of the combined work work permits and are resident on this basis? and residence permit. During the application process, the employee is not allowed to work The conditions of stay are that the applicant has ongoing as long as no other work permit or working visa/residence permit employment and insurance cover. In case of a significant change has been issued for this time period. of the employment conditions after the approval of the permit, such significant changes have to be communicated to the authorities. 9.5 What is the process for the employee to obtain a visa Applications for extensions have to be submitted in due time before as a new hire? expiry – at the earliest, three months before the expiry date.

The visa process is always the same, irrespective of the type of visa. 10.2 Are work permit holders required to register with Once the authority has approved the residence permit, visa nationals municipal authorities or the police after their arrival? need an additional collection visa to enter Austria and to collect the residence permit. Yes. A town hall registration is necessary within three days of arrival in Austria. The authority has to be informed of the residence 9.6 How long does the process of obtaining the work address of the employee in Austria. Also, de-registration is required permit and initial visa for a new hire take? within three days of the end of residence in Austria. It should be noted that after the end of the stay in Austria, the The duration of the process depends on the respective work/ Austrian residence card has to be returned to the immigration residence permit, and can vary. The processing time also varies authority without delay following the return to the home country or from one immigration office to another. The general issuance of a the arrival in the new destination country. settlement permit or residence permit in combination with a work permit requires a period of eight to 16 weeks, calculated from the day when the respective application is filed either with the Austrian 11 Dependants immigration authority or with the respective consular mission office abroad. This timeline does not include the time required to prepare 11.1 Who qualifies as a dependant of a person coming to the application up to the point of submission. There is no priority work on a sponsored basis? service available. Dependants are the spouse or any underage single child (children 9.7 How long are initial visas for new hires granted for under the age of 18), including adopted and step-children. and can they be extended? 11.2 Do civil/unmarried or same-sex partners qualify as For local hire scenarios, only residence permits are available. As of family members? October 2017, residence permits will be in general granted for a period of 24 months. Upon expiry, the permits can be extended accordingly. The term “spouses” refers to those who are in opposite-sex marriages and same-sex registered partnerships, and they have to be at least 21 9.8 Is labour market testing required when the employee years old. extends their residence? Cohabitation partners do not qualify as dependants (exemptions apply to EU/EEA/Swiss nationals). In case of extension, no further labour market test will take place.

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11.3 Do spouses and partners have access to the labour 12.2 Is it possible to switch from a temporary work visa to market when they are admitted as dependants? a work visa which leads to permanent residence?

All dependants of principals holding a Red-White-Red Card or an Short-term visas cannot be converted into longer-term authorisations. EU Blue Card can apply for a family reunion permit, which will be The application for the issuance of the long-term permit has to granted in the form of a Red-White-Red Plus Card. Such permit be started and carried out under the general rules for long-term allows the family member to work for any employer in the territory residence/work permits. of Austria. The only exception to this rule is the job-seeker visa for highly In the case of an assignee, family reunion is not possible. qualified employees (see question 5.1). Austria Dependants of ICT permit holders can apply for a family permit that Holders of long-term temporary residence permits and work permits, entitles them to work in Austria. such as assigned employees, can apply for a permanent residence permit only after 10 years of continuous and lawful residence in Austria. 11.4 Do children have access to the labour market?

Children (under the age of 18) of principals holding a Red-White- 13 Bars to Admission Red Card or an EU Blue Card can apply for a Red-White-Red Plus Card. This permit allows the family member to work for any employer in the territory of Austria. For the employment of children 13.1 What are the main bars to admission for work? under the age of 18, certain legal requirements have to be fulfilled. Children are obliged by law to attend school in Austria from the age In general, the processing times for obtaining the work and residence of six years until the age of 15. Hence, for children of this age, they permit have to be considered. Depending on the respective permit, must attend school while in Austria. Any school can be attended processes can take from a few weeks to several months. This has to with a residence or a settlement permit. Children who are five years be taken into consideration when planning assignments to Austria. old are obliged to attend kindergarten according to the respective Another issue is proof of German language skills at the time of filing law of the federal state in which the family has its residence. an application for a long-term residence and work permit, as this is required for some applications. In certain cases, a person might not be able to apply for a Red- 12 Permanent Residence White-Red Card or an EU Blue Card because he or she earns less than is required for the application of these permits. 12.1 What are the conditions for obtaining permanent residence? 13.2 Are criminal convictions a bar to obtaining work permission or a visa? Immigrants can apply for permanent residence only after five years of continuous and lawful residence in Austria, provided that the For all long-term processes (all residence permits valid for more individuals have obtained a German language level of at least level than six months), applicants have to submit a criminal clearance B1. The respective residence permit will be issued for a period of certificate, which must not be older than three months. In case of five years and has to be extended upon its expiry. registered criminal convictions, the Austrian immigration authorities may refuse to issue permits.

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Ewald Oberhammer Petra Pardatscher Oberhammer Rechtsanwälte GmbH Oberhammer Rechtsanwälte GmbH Karlsplatz 3/1 Karlsplatz 3/1 1010 Vienna 1010 Vienna Austria Austria

Tel: +43 1 503 3000 Tel: +43 1 503 3000 Email: [email protected] Email: [email protected] URL: www.oberhammer.co.at URL: www.oberhammer.co.at Austria Ewald Oberhammer is admitted to both the Italian and Austrian Bar Petra Pardatscher studied business law at the Vienna University Associations, and specialises in corporate immigration matters. of Economics and Business, graduating in 2012. She worked as a Ewald Oberhammer and his team have been dealing with corporate tax associate with an international tax advisory company for more immigration matters since 1999, and assist large international and than two years, and joined the immigration team at Oberhammer local Austrian companies in obtaining work permits, residence permits Rechtsanwälte GmbH as an associate in 2014. and working visas. In addition, Ewald Oberhammer and his team assist clients in monitoring and maintaining their compliance with immigration laws and regulations.

Oberhammer Rechtsanwälte GmbH is specialised in all legal matters related to the processes through which international companies second employees to Austria and Austrian companies employ foreign experts. This encompasses advising clients in labour law issues, answering questions regarding immigration law, drafting project agreements and applying for visas. Our clients trust in our expertise in the area of corporate migration. As a supplement to our legal corporate migration advice, we also offer ancillary services such as personal accompaniment to appointments with the relevant authorities, and supporting clients with choosing kindergarten or school places or applying for subsidies and co-insurances. Our clients thus have the advantage of being serviced by a legal one-stop shop.

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Belgium

Immigration Law Associates Tanel Feldman

Immigration Office, is responsible for matters relating to the entry, 1 Introduction stay, settlement and removal of foreign nationals. Diplomatic Missions (Federal Public Service Foreign Affairs, 1.1 What are the main sources of immigration law in your Foreign Trade and Development Cooperation) are receiving jurisdiction? visa applications and issuing visas in liaison with the Belgian Immigration Office. “Belgium is a federal state, comprising the communities and the Local administrations (Municipalities) on behalf of the Federal regions” (Belgian Constitution). Public Service Home Affairs, General Direction Institutions The decision-making powers are divided between the federal state, and Population and scruntinised by the Immigration Office are three communities and three regions. proceeding for the control of residence and for issuing, renewing, Since 1 July 2014, the sixth State Reform has been in force and, extending, replacing and the cancelling of the foreigner’s permits. as a consequence, a number of federal competences have been The local administrations are also responsible for updating the transferred to the Regions and the Communities. National Register of natural persons. The primary sources of immigration law are as follows: Legislative power relating to work permits for employed workers ■ Aliens Act (Law of 15 December 1980) on entry, stay, and professional cards for self-employed workers is regionalised. settlement and removal of foreign nationals. The federal government maintains a regulating power on rights derived from residency such as, but not limited to, work permits for ■ Royal Decree of 8 October 1981 implementing the Law of 15 December 1980. asylum seekers and students and professional card exemptions. The Regions are authorised for the application, control and enforcement ■ Foreign Workers (Employment) Act of 30 April 1999. of the work permits and professional cards: ■ Royal Decree of 9 June 1999 implementing the Foreign Workers (Employment) Act of 30 April 1999, amended by ■ Ministry of Brussels-Capital Region (Employment and several Regional Government Decrees. Mixed Economy Policy Directorate). ■ Act of 5 March 2002 implementing Directive 96/71/EC and ■ Flemish Ministry Work and Social Economy (Departments of enforcing Directive 2014/67/EU of the European Parliament Economic Migration). and of the Council, concerning the posting of workers in the ■ Ministry of the Walloon Region – Directorate-General for framework of the provision of services. the Economy, Employment and Research (Department of ■ Programme Act of 27 December 2006, Royal Decrees of 28 Employment and Vocational Training). March 2007, 31 August 2007 and 19 March 2013 establishing ■ Ministry of the German-Speaking Community (part of the a mandatory declaration for foreign employees and self- Walloon Region which has delegated the power to issue work employed workers posted in Belgium. permits and professional cards). ■ Act of 6 June 2010 (Social Criminal Code). The competent institutions for social security matters are: ■ The Act of 24 July 1987 amended by the Acts of 13 ■ National Social Security Office (NSSO). February 1998, 12 August 2000 and the Programme Act of ■ National Institute for the Social Security of the Self- 27 December 2012, lays down the rules for the hiring out of workers. employed. ■ Aliens Self-Employment Act of 19 February 1965, Royal As from 1 July 2017, the inspection service of the NSSO and the Decree of August 1985 and Royal Decree of 3 February 2003 Social Inspection will join to become one single inspection service as amended by Regional Government Decrees. under the banner of the NSSO. ■ The Act of 28 June 1984 (Belgian Nationality Code) amended by the Act of 4 December 2012 with a view to making the 1.3 Is your jurisdiction part of a multilateral agreement acquisition of nationality neutral from an immigration point between countries (EU/NAFTA/MERCOSUR) which of view. facilitates the movement of people between countries for employment purposes? 1.2 What authorities administer the corporate immigration system in your jurisdiction? Belgium is a member of the European Union (EU), the European Economic Area (EEA) and the Schengen Agreement. The Federal Public Service Home Affairs, notably the Belgian

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The basic rights of free movement derived from EU citizenship are from Article 21 TFEU and Directive 2004/38/EC (Citizens Rights 2.2 What is the maximum period for which business Directive (CRD)). These rights apply for workers, but also for visitors can enter your jurisdiction? economically inactive EU citizens. However, the latter, to enforce residence rights from the CRD after three months and up to five Twenty consecutive calendar days and a maximum of 60 days per years, must have sufficient means of subsistence not to become an calendar year, for genuine business activity. It must be distinguished unreasonable burden on the welfare system of the Member State. between the short stay visa validity and the right to stay for business Article 45 TFEU lays down the principle of free movement of purposes. workers, providing for additional rights for citizens who are economically active. These rights are developed in Regulation 2.3 What activities are business visitors able to Belgium 492/2011 (Workers’ Regulation). undertake? Rights of entry and residence, including for economically active citizens, are subject to derogations on grounds of public policy, Business visitors may attend conferences, specialised seminars and public security and public health. business meetings. Family members who are not nationals of a Member State, beneficiaries of Directive 2004/38/EC or enforcing settled case law 2.4 Are there any special visitor categories which will of the European Court of Justice, are granted the same rights of free enable business visitors to undertake work or provide movement for employment purposes if they accompany or join an services for a temporary period? EU national. In regard to the intra-EU mobility of other third-country nationals No, business visitors may not undertake work or provide services. economically active: ■ In the Walloon Region, holders of a long-term residency 2.5 Can business visitors receive short-term training? permit issued by another Member State (in the sense of Directive 2003/109/EC), will be exempt from obtaining a work permit after working in Belgium whist holding a work No, business visitors cannot receive short-term training. The Royal permit type B, during an uninterrupted period of 12 months. Decree of 9 June 1999 provides for different training categories; In the same context, for jobs where there is a shortage of however, not under the business visitor status. candidates, the authorisation of employment (i.e. for the first period of 12 months) will be issued within five working days. In the Flanders Region and in Brussels, the work permit 3 Immigration Compliance and Illegal exemption applies after working for an uninterrupted period Working of 12 months whilst holding a work permit type B, only if the latter was issued for a job where there was a shortage of candidates. The authorisation of employment will be issued 3.1 Do the national authorities in your jurisdiction operate within five working days. a system of compliance inspections of employers ■ Holders of an EU Blue Card issued by another Member State who regularly employ foreign nationals? may move to Belgium after 18 months of legal residence, but must apply for another EU Blue Card while still residing As laid down by Article 18 of the Social Criminal Code, social in the first Member State or within one month of arrival in inspectors are empowered to monitor compliance with the Belgium. The only real advantage is determined by the EU provisions of such code and other related acts and decrees. The Blue Card holders’ right to accumulate periods of residence in different Member States to meet the criteria of eligibility foreign national’s conditions of employment are covered by the for long-term residency in Belgium (providing that the last Social Criminal Code and related acts and decrees. two years immediately preceding the application for the long- term resident status are covered by an EU Blue Card issued in Belgium). 3.2 What are the rules on the prevention of illegal working? ■ Third-country nationals employed by an undertaking located in another Member State and posted to Belgium in the framework of Directive 96/71/EC, are work-permit The national law provides for the conditions of employment of -exempt. In regard to the conditions of entry and stay, a foreign nationals, as well as states the sanctions for breaching these third-country national posted from another Member State provisions. within the Schengen territory does not need an entry visa for Belgium. Where the duration of stay exceeds three months, local registration is mandatory. Such category also covers 3.3 What are the penalties for organisations found to be researchers posted to Belgium. employing foreign nationals without permission to work?

2 Business Visitors If an employer employs or allows to work a third-country national without obtaining an authorisation of employment and/or who is not holding a work permit, such employer will be liable to an 2.1 Can business visitors enter your jurisdiction under a administrative fine of EUR 400–4,000 or a criminal fine of EUR relevant visa waiver programme? 800–8,000. Failure to comply with the validity and/or limitations imposed by the authorisation of employment, or employing or Yes they can, provided that they hold a passport issued by one of allowing to work a third-country national after the withdrawal of the the countries referred to in Article 1(2) Council Regulation (EC) authorisation of employment or the work permit results in the same 539/2001 of 15 March 2001. category of fines.

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Employing or allowing to work a third-country national who is unlawfully staying in Belgium, or merely facilitating the entry into 4.5 Is there a recognition that some occupations may be Belgium of a third-country national for the purpose of employment, in short supply and do special exemptions apply to certain sectors and occupations? unless the latter holds a valid work permit (or is eligible for an exemption), unless the law explicitly provides that the employer may obtain an authorisation of employment post-dating the third- Lists of shortages are held by the Regions. Third-country nationals country national’s entry into Belgium, results in a liability to an who hold a long-term residency permit issued by another Member administrative fine of EUR 2,400–24,000 or a criminal fine of EUR State are mainly concerned (see the response to the question 1.3). 4,800–48,000 and/or imprisonment (six months to three years). With regards to highly qualified workers, the minimum wage Other criminal sanctions (prohibition of exploitation, professional threshold laid down by the national law for such category (i.e. Article prohibition, closure of establishment) may also be applicable. 9.6 Royal Decree of 9 June 1999) does not apply. Their employers Belgium The fine is multiplied by the number of workers in respect of which are eligible for employment authorisation which derogates from the the offence occurred. usual labour market test. Furthermore, such category is not limited to nationals of countries that have entered employment agreements with Belgium. 4 Corporate Immigration – General In regard to other third-country nationals, the authorisation of employment can be issued only where it concerns nationals of countries that have entered employment agreements with Belgium 4.1 Is there a system for registration of employers who wish to hire foreign nationals? and if the labour market test is satisfied.

No, in Belgium, there is not a system for registration of employers 4.6 Are there annual quotas for different types of who wish to hire foreign nationals. employment-related work permits or visas?

No, Belgium does not apply quotas for work permits and visas. 4.2 Do employers who hire foreign nationals have ongoing duties to ensure immigration compliance? 4.7 Are there restrictions on the number of foreign Before hiring a third-country national, and during their employment, workers an employer may sponsor, in relation to the following obligations apply: a maximum percentage of foreign workers in the employer’s workforce? ■ The obligation to check whether the third-country national holds a valid residence permit or authorisation of stay. There are no restrictions provided by the national law. ■ The obligation to keep available for inspection, at least during the term of the employment, a copy (or details) of the residence permit or any other valid residence document. 4.8 Are employees who are sponsored to work in your ■ The obligation to notify of the commencement and end of jurisdiction required to demonstrate language the employment (Dimona or Limosa declarations). It must proficiency? be noted that in regard to the Limosa declaration (posted workers), the undertaking making the posting and the No. Employees are not required to demonstrate language proficiency recipient of services are jointly and severally liable. to be admitted to work in Belgium. ■ In regard to workers posted to Belgium, there is an obligation to designate a person to liaise with the competent authorities and to send out and receive documents. Such person also has 4.9 Are employees who are sponsored to work in your the obligation to provide, where required, during the period jurisdiction required to undergo medical examinations of the assignment and within one year after its completion a before being admitted? copy of the letter of assignment, time sheets, a copy of the pay slips and proof of the payment of wages. Yes, before being admitted to work, the majority of third-country nationals must undergo a medical examination, unless they have been lawfully residing in Belgium for at least two years. 4.3 Do the immigration authorities undertake routine inspections of employers who sponsor foreign nationals, to verify immigration compliance? 4.10 Are employees who are sponsored to work in your jurisdiction required to have medical insurance or are Yes. Social inspectors may undertake routine controls considering they entitled to any free public medical services? the principle of proportionality laid down by Article 19 of the Social Criminal Code. Third-country nationals employed in Belgium, and their family members, are subject to the local social security system, and as a consequence are entitled to local public health insurance (which is 4.4 Do the immigration authorities maintain a list of not free). skilled occupations which may be filled by foreign nationals? Third-country nationals posted to Belgium are required to have health insurance to cover health needs and repatriation in case of emergency. Foreign nationals may fill in any skilled occupation considering Where the posting country has entered into a bilateral agreement with the “public service proviso” and the restriction related to regulated Belgium in regard to health insurance, or a social security agreement professions. covers health insurance, the third-country nationals and family members are, for the entire period of posting, entitled to health care in Belgium at the expense of the posting country.

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4.11 Does the work permit system allow employees who 8 Group or Intra-Company Transfer Work hold work permits to be seconded to a client site? Permits

Third-country nationals can be posted by an undertaking located out 8.1 Does a specific immigration category exist for inter- of the community to the customer site in Belgium and a work permit company transfers within international groups of is, in principle, required. companies? Third-country nationals, employed by an undertaking located in another Member State, can be posted to the customer site in Belgium is yet to transpose the ICT Directive (Directive 2014/66/ Belgium (in the framework of Directive 96/71/EC) and are work- EU). However, the current legislation does not make a distinction Belgium permit-exempt. between the posting within international groups of companies and Third-country nationals employed in Belgium cannot be hired out to the posting to the customer site. In short, the category of third- a customer, unless the national law provisions are strictly complied country nationals posted to Belgium widely covers all posting with. categories. It must be noted that under the national schema, the intra-EU mobility is not an option. 5 Highly Skilled Visas 8.2 What conditions must an employing company or organisation fulfil in order to qualify as part of a group 5.1 Is there an immigration category which covers highly of companies? skilled individuals? All related and/or associated companies established in at least Article 9 Royal Decree of 9 June 1999 provides, inter alia, for three different countries, qualify as a part of a group of companies. different categories of highly qualified individuals, who are eligible The concepts of related and associated companies are provided by for a work permit under terms that derogate from the usual labour Articles 11 and 12 of the Companies Code. market test. Further, Article 2 provides for certain work permit exemptions for the same category. Authorisations of employment 8.3 What conditions must the employer fulfil in order under Article 9 are not limited to nationals of countries that have to obtain a work permit for an intra-company group entered into employment agreements with Belgium. employee?

Firstly, the employer must fulfil the conditions laid down by the Act 6 Investment or Establishment Work of 5 March 2002 implementing Directive 96/71/EC and enforcing Permits Directive 2014/67/EU of the European Parliament and of the Council, concerning the posting of workers in the framework of the 6.1 Is there an immigration category which permits provision of services (as amended). employees to be authorised to work based on Lastly, the employer must comply with all the other national law investment into your jurisdiction? provisions concerning the occupation of third-country nationals in Belgium, considering the specific case. A third-country national employee can be authorised to work providing that the eligibility criteria are met. Investment only is not 8.4 What is the process for obtaining a work permit for an a ground to gain right to work in Belgium. intra-company group employee?

7 Temporary Work Permits An application must be lodged with the labour authority having jurisdiction of the region where the employer is located. An authorisation of employment will be issued to the employer and a 7.1 Is there an immigration category permitting the work permit will be issued to the employee. hiring of temporary workers for exchanges, career development, internships or other non-economic purposes? 8.5 What is the process for the employee to obtain a visa under the intra-company group transfer category? The national law provides for different categories, such as internships and traineeships, in different contexts (local employment or posting Where the duration of stay exceeds 90 days in any 180-day period, to Belgium). These categories are work-permit-exempt or not, in principle, a D-visa (work visa) is required. The application must depending on the nature of the activity, the applicant’s nationality be lodged with the Belgian diplomatic mission in the country of and the duration of the employment. registered residence or home country. Third-country nationals and their dependants that are exempt from 7.2 Are there sector-specific temporary work permit obtaining a short stay visa for the Schengen area may switch their categories which enable foreign workers to perform short stay to a long stay in Belgium. In short, the D-visa is not temporary work? mandatory but advisable. Third-country nationals that require a short stay visa to enter the No, the national law does not provide for the concept of “temporary Schengen area may switch their short stay to long stay in Belgium work permit”. A temporary authorisation of employment is issued but their dependants may not. only in the context of an EU Blue Card application.

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8.6 How long does the process of obtaining the work 9.4 What is the process for obtaining a work permit for a permit and initial visa take? new hire?

An application for a work permit must be submitted at the latest one See the response to question 8.4 above. month before the commencement of employment in Belgium. That is the approximate processing time by the labour authority. 9.5 What is the process for the employee to obtain a visa The work visa (issued to the employee) is processed in general as a new hire? within several days, directly by the Belgian diplomatic mission. The delay provided by the national law for the issuance of D-visas See the response to question 8.5 above. Belgium for family reunification is up to nine months and, in exceptional circumstances, can be longer. The effective delay depends on 9.6 How long does the process of obtaining the work whether the dependants are accompanying or joining the employee. permit and initial visa for a new hire take? It must be noted that where the former procedure is strongly advisable, in the latter case, the right to family reunification cannot See the response to question 8.6 above. be enforced before the employee’s residence permit is issued.

9.7 How long are initial visas for new hires granted for 8.7 How long are visas under the “initial” category valid and can they be extended? for, and can they be extended? See the response to question 8.7 above. Regardless of the D-visa validity (up to one year), it must be converted to a local residence permit and cannot be extended. 9.8 Is labour market testing required when the employee extends their residence? 8.8 Can employees coming under the intra-company transfer route apply for permanent residence? Yes, where it concerns a work permit submitted to the labour market test, unless the authorisation of employment expressly exempts the In the context of residency rights, posting is deemed to constitute employer from such requirement. a ground of a temporary nature and cannot determine the right to permanent residence. 9.9 Can employees coming as new hires apply for permanent residence? 8.9 What are the main government fees associated with this type of visa? Yes, they can after five years of lawful and uninterrupted stay.

The main government fees (where applicable) are the D-visa fee (i.e. EUR 180) and the fee charged by the Immigration Office 9.10 What are the main government fees associated with (i.e. EUR 350, EUR 200 and EUR 60, dependent on the specific this type of visa? immigration case). See the response to question 8.9 above.

9 New Hire Work Permits 10 Conditions of Stay for Work Permit Holders 9.1 What is the main immigration category used for employers who wish to obtain work permits for new hires? 10.1 What are the conditions of stay of those who obtain work permits and are resident on this basis? In the context of corporate immigration, the main category is highly qualified workers. The right of stay is determined by the right to work and a work permit is valid only if covered by a valid authorisation of stay. 9.2 Is there a requirement for labour market testing, to demonstrate that there are no suitable resident 10.2 Are work permit holders required to register with workers, before a work permit can be issued to new municipal authorities or the police after their arrival? hires? Yes they are, with municipal authorities. Yes. In addition, the work permit can be issued only to nationals of countries that have entered employment agreements with Belgium. 11 Dependants 9.3 Are there any exemptions to carrying out a resident labour market test? 11.1 Who qualifies as a dependant of a person coming to work on a sponsored basis? Yes, there are, such as but not limited to highly qualified workers, providing that the minimum wage threshold and the duration of The spouse or the partner with whom the third-country national occupation imposed are complied with.

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coming to work has contracted a registered partnership equivalent to marriage in Belgium and joins the latter. 12 Permanent Residence Their descendants and those of one of the spouses/partners, under the age of 18 and unmarried may join the third-country national in 12.1 What are the conditions for obtaining permanent Belgium. Where it concerns descendants of one of the spouses/ residence? partners, the latter must have custody of the children, and where this concerns shared custody, the other parent’s consent is required. The main conditions a third-country national must satisfy are as The partner with whom the third-country national coming to follows: work has contracted a partnership recognised by a law, and the ■ Lawful and uninterrupted stay in Belgium during a period of five years immediately preceding the application.

Belgium descendants of that partner join the third-country national in Belgium before turning 18 years old and if they are not married. ■ Stable, regular and sufficient means of subsistence to meet his The partner must have custody of the children, and where it own needs and those of his dependants to avoid becoming a concerns shared custody, the other parent’s consent is required. burden on the public welfare system. However, the partners must bring evidence of a durable and stable ■ Health insurance valid in Belgium. relationship. Unless the partners have a common child, they must It should also be noted that certain categories, such as posted bring proof of legal cohabitation in Belgium or in any other country, workers, are not eligible for permanent residence status. during an uninterrupted period of at least one year preceding the demand, either proof that they have known each other for at least two years and during that period have maintained regular contact 12.2 Is it possible to switch from a temporary work visa to a work visa which leads to permanent residence? (by phone, courier, email) and have met three times during the past two years preceding the demand, spending together at least 45 days in aggregate. The concept of a temporary work visa is not provided for by national law. It is not possible to switch from a short stay visa to a work The law also provides for two other categories of dependants. visa; instead a work visa must be applied for (e.g. whilst holding a short stay visa). It is, however, possible to change residency status 11.2 Do civil/unmarried or same-sex partners qualify as in Belgium. family members?

Yes, considering the criteria abovementioned in question 11.1. In 13 Bars to Admission addition, third-country nationals that are partners of EU nationals may qualify as “other family members”, and this is provided for in 13.1 What are the main bars to admission for work? the national legislation in the light of the case law of the European Court of Justice. In regard to third-country nationals that are highly qualified workers, beneficiaries of the minimum wage threshold provided for 11.3 Do spouses and partners have access to the labour such category (national scheme) is the requirement to hold a post- market when they are admitted as dependants? secondary degree stating completion of a minimum of four years (Bachelor’s degree). However, the EU Blue Card scheme requires Yes, spouses and recognised partners of third-country nationals only three years post-secondary degree, but a higher minimum wage admitted to work and stay in Belgium have access to the labour threshold. The minimum wage threshold must be adhered to, and market but are not exempt from obtaining a work permit. Regarding must represent the compensation for the work carried out. In regard a category eligible for work permit on derogation of the labour to third-country nationals posted, allowances paid in reimbursement market test, this is not limited to nationals of countries who have of expenditure actually incurred on account of the posting, such as entered employment agreements with Belgium, and concerns highly expenditure on travel, board and lodging, cannot be considered to be qualified workers, not bound by the minimum wage threshold laid part of such minimum wage threshold. down for that category. Spouses and recognised partners of EU nationals have unrestricted 13.2 Are criminal convictions a bar to obtaining work access to the labour market if they accompany or join the EU permission or a visa? national. Criminal convictions can be a bar where justified on grounds 11.4 Do children have access to the labour market? of public policy or public security. The grounds are subject to proportionality. The rejection must be based on personal conduct. The personal conduct must be a genuine present and sufficiently The general principle is that is it prohibited to employ or allow to serious threat to one of the fundamental rights of society. The work children under the age of 15 or those who are still bound by grounds cannot be used to serve economic ends. full-time school attendance.

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Tanel Feldman Immigration Law Associates 7 Avenue des Petits Bois 1640 Rhode Saint Genese Belgium

Tel: +32 486 46 07 31 Email: [email protected] URL: www.corporateimmigration.eu Belgium Co-founder and senior partner of Immigration Law Associates Tanel Feldman is specialised in European immigration matters. He is a member of the International Bar Association and has significant experience in advising corporations on general immigration matters and, in particular, matters related to the intra-EU mobility of third- country nationals. Tanel is conducting extensive research on the derived right of residence granted to third-country nationals who are family members of EU nationals. Tanel is continuously improving his expertise in European Law through continuing courses organised by the Academy of European Law.

Immigration Law Associates is a firm specialising in corporate immigration, employment and social security law and European-related law. Immigration Law Associates provides legal advice to private clients, for matters related, but not limited to, citizenship law, unmarried partners’ rights of residence and derived right of residence for third-country nationals who are dependants of EU nationals. Immigration Law Associates is directly active in Belgium and Luxembourg.

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Canada Avi Gomberg

Gomberg Dalfen S.E.N.C. Isabelle Owston

1 Introduction 2 Business Visitors

1.1 What are the main sources of immigration law in your 2.1 Can business visitors enter your jurisdiction under a jurisdiction? relevant visa waiver programme?

The Immigration and Refugee Protection Act (IRPA) and the Yes. A person may enter Canada as a business visitor without a work Immigration and Refugee Protection Regulations (IRPR) constitute permit under Regulation 186 (a) within the meaning of Regulation the foundation of immigration law in Canada. 187. If the individual wishing to enter Canada as a business visitor is a citizen of a country requiring a visa to travel to Canada, such authorisation will be needed prior to entering the country. 1.2 What authorities administer the corporate immigration system in your jurisdiction? Effective November 10, 2016, certain international travellers will need an entry document called an Electronic Travel Authorization Immigration, Refugees and Citizenship Canada (IRCC) is (eTA) to travel by air to Canada. This applies to visa-exempt foreign responsible for all immigration applications made from abroad nationals; in other words, non-Canadians who are not required to such as the issuance of work permits and temporary resident visas, have a visa to enter Canada. The requirement only applies to those which are processed at different visa offices worldwide. Canada travelling by air, not those travelling by land or sea. It does not Border Services Agency (CBSA) examines such applications at all apply to citizens of the United States (those with U.S. residency Canadian ports of entry and determines an individual’s eligibility to (Green Cards) will require an eTA). Thus, if you require a visa to enter Canada. enter Canada or you are a U.S. citizen, you will not require an eTA. On December 1, 2016, the visa requirement for Mexican citizens was lifted. As such, citizens of Mexico must now obtain an eTA in 1.3 Is your jurisdiction part of a multilateral agreement between countries (EU/NAFTA/MERCOSUR) which order to fly or to transit through a Canadian airport. facilitates the movement of people between countries Moreover, since May 1, 2017, certain citizens of Brazil, Bulgaria for employment purposes? and Romania are able to apply for an eTA instead of the usual requirement to obtain a visa to fly to or to transit through a Canadian Yes. Canada operates the International Mobility Program, which airport. This new exemption to obtain a visa applies to citizens of facilitates temporary entry into Canada for business visitors, these three countries who have held a Canadian visa in the past 10 professionals, intra-company transferees, traders and investors. years or who currently hold a valid United States non-immigrant For example, the North American Free Trade Agreement (NAFTA) visa. enables citizens of the United States and Mexico to apply for work permits without going through the regular Labour Market Impact Assessment (LMIA) procedure, and to submit their applications 2.2 What is the maximum period for which business directly at the port of entry (for Mexicans, effective 1 December visitors can enter your jurisdiction? 2016). A business visitor can normally enter Canada for a maximum period Canada is also a member to the General Agreement on Trade in Services (GATS), which enables business visitors, intra-company of six months. transferees, and certain types of professionals to enter Canada for a short-term period. Canada is also a signatory to similar Free Trade 2.3 What activities are business visitors able to Agreements with Chile, Peru, Colombia and South Korea. undertake? Recently, there have been discussions between the European Union and Canada surrounding the coming into force of the Canada- A business visitor is defined by Regulation 187(1) as an individual European Union Comprehensive Economic and Trade Agreement who enters Canada with the goal of “engag[ing] in international (CETA) which is likely to occur in the near future. It is expected business activities in Canada without directly entering the Canadian that this agreement will facilitate the entry into Canada of two kinds labour market”. According to the Regulations, a business visitor of professionals namely, contract service suppliers and independent can be an individual intending to purchase Canadian goods or professionals. services for a foreign business or government and receive related

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training, or an individual who will be receiving or giving training “within a Canadian parent or subsidiary of the corporation that 4 Corporate Immigration – General employs them outside Canada”, or selling goods for the foreign business or government. 4.1 Is there a system for registration of employers who wish to hire foreign nationals? 2.4 Are there any special visitor categories which will enable business visitors to undertake work or provide Yes, an employer needs authorisation before hiring a temporary services for a temporary period? foreign worker. An employer must provide all requested details on the job offer to be extended to the foreign national, as well as personal details regarding the foreign worker. While business visitors per se are not authorised to enter the Canada Canadian labour market, there are exceptions allowing certain individuals to undertake work or provide services without a work 4.2 Do employers who hire foreign nationals have permit. All exceptions are listed in Regulation 186. ongoing duties to ensure immigration compliance?

2.5 Can business visitors receive short-term training? Yes. Employers are responsible for ensuring that they continue to abide by the Temporary Foreign Worker Program, update ESDC Yes. Regulation 187(2) sets the conditions under which a business with any changes or corrections to be made to their approved visitor may receive training. A business visitor is also permitted to LMIA, and keep records of their LMIA applications, since ESDC enter Canada in order to give training “within a Canadian parent or has the authority to conduct inspections for up to six years after the subsidiary of the corporation that employs them outside Canada”. temporary foreign worker begins employment under the Temporary Foreign Worker Program. For LMIA-exempt work permits, there is also a requirement to remain compliant. 3 Immigration Compliance and Illegal Working 4.3 Do the immigration authorities undertake routine inspections of employers who sponsor foreign nationals, to verify immigration compliance? 3.1 Do the national authorities in your jurisdiction operate a system of compliance inspections of employers who regularly employ foreign nationals? The inspections carried out by ESDC are not routine. They can occur when ESDC has a reason to suspect non-compliance or Yes. Employment and Social Development Canada (ESDC) operates when there has been non-compliance in the past. Inspections can the Temporary Foreign Worker Program, which allows Canadian also be conducted on a random basis. These random inspections employers to hire foreign workers. ESDC and Service Canada affect approximately 25% of all employers using the Temporary have the authority to monitor employer compliance and to conduct Foreign Worker Program and can take place up to six years after the inspections. For Labour Market Impact Assessment (LMIA)-exempt temporary foreign worker begins employment. For LMIA-exempt work permits, there is also a compliance scheme in place. work permits, there also are random inspections. If an inspection is conducted and the employer is found to be non- compliant with the Temporary Foreign Worker Program, as of 4.4 Do the immigration authorities maintain a list of December 2015, the penalties range from having the employer’s skilled occupations which may be filled by foreign name published on a “Public Blacklist Website”, being forbidden nationals? from hiring temporary foreign workers for a temporary period or permanently, receiving various fines (up to $1,000,000 over a period A work permit can be issued to American and Mexican citizens for of one year for the most severe violations) and having their LMIA temporary work in Canada under NAFTA for certain designated revoked. professions. There are also lists of designated professions under the Canada-Peru Free Trade Agreement, the Canada-Chile Free Trade Agreement and the Canada-Korea Free Trade Agreement. 3.2 What are the rules on the prevention of illegal working? 4.5 Is there a recognition that some occupations may be If a person is working in Canada without having first obtained a work in short supply and do special exemptions apply to certain sectors and occupations? permit, they face the possibility of being deported from Canada. Moreover, they run the risk of being forbidden from re-entering Canada if there is a finding that the foreign national misrepresented Yes. Employers who wish to hire foreign workers in certain themselves when initially entering Canada. categories are subject to a variation in the advertising requirements (e.g. academics, the entertainment sector, owner/operators, specialised service technicians/providers, etc.). 3.3 What are the penalties for organisations found to be The province of Quebec also maintains a list, which currently employing foreign nationals without permission to work? contains 44 occupations recognised as being in shortage in the province, and for which employers can obtain a LMIA under a simplified procedure. According to paragraph 124(1) (c) and section 125 of IRPA, if an organisation employs a person who does not hold a valid work Effective June 12, 2017, Employment and Social Development permit, they can be found liable to pay a fine of up to a maximum Canada (ESDC) launched a new stream of its Temporary Foreign of $50,000 or can be sentenced to a term of imprisonment of a Worker Program called the Global Talent Stream. Under this new maximum of two years. initiative, certain Canadian employers can benefit from a facilitated and streamlined LMIA process (and a corresponding 10-day Work

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Permit priority processing timeframe from IRCC) if they are period, it would be prudent for the foreign worker to have private referred to the Global Talent Stream by one of ESDC’s designated medical insurance coverage. partners and plans to hire unique and specialised talent or if they are seeking to recruit foreign workers to occupy positions for which 4.11 Does the work permit system allow employees who there is a shortage in the Canadian labour market (as determined hold work permits to be seconded to a client site? by a “Global Talent occupations list”). Finally, a mandatory Labour Market Benefit Plan is required from all employers under A work permit is usually issued in relation to one specific employer. the Global Talent Stream who need to commit to benefitting the However, it is possible, for example, under Management Consultant Canadian economy through either job creation, skills and training work permits and for other work permits, to have the foreign worker investments and other activities to reach this important objective.

Canada work at a client site. This will always depend on the conditions of the work permit issued. 4.6 Are there annual quotas for different types of employment-related work permits or visas? 5 Highly Skilled Visas Immigration quotas are not related to types of employment, but rather with regard to permanent residency applications. IRCC 5.1 Is there an immigration category which covers highly limits the number of applications for permanent residency that they skilled individuals? are willing to process, depending on the category under which the candidate is applying. Yes. Under the Temporary Foreign Worker Program, there exists a Also, under the Provincial Nominee Program, IRCC is responsible stream dedicated to high-wage positions. Moreover, professionals for determining the number of applicants that a province is allowed can obtain work permits under Canada’s Free Trade Agreement. to nominate for permanent residency. Effective June 12, 2017, ESDC and IRCC launched the Global Talent Stream and the Global Skills Strategy programmes to facilitate the 4.7 Are there restrictions on the number of foreign entry into Canada of highly skilled workers, to attract foreign talent workers an employer may sponsor, in relation to and to stimulate Canada’s economic growth. These programmes a maximum percentage of foreign workers in the include in certain cases, a commitment to faster processing times, employer’s workforce? short-term work permit exemptions and the development of a “Global Talent occupations list” that will allow employers to hire Yes. In June 2014, changes to the Temporary Foreign Worker highly skilled foreign workers to occupy in-demand occupations. Program for low-skilled positions were introduced. Under this stream, temporary foreign workers cannot represent more than 20% of an employer’s total workforce (this does not include a total 6 Investment or Establishment Work workforce of fewer than 10 employees). There is no similar type of Permits cap for employers who employ skilled foreign workers.

6.1 Is there an immigration category which permits 4.8 Are employees who are sponsored to work in your employees to be authorised to work based on jurisdiction required to demonstrate language investment into your jurisdiction? proficiency? The province of Quebec is the only province in Canada that operates Under Regulation 200(3)(a), a work permit will not be issued if an immigrant investor programme since the Federal programme was an officer has reason to believe the foreign worker will be unable terminated in 2014. The requirements involve investing $800,000, to perform his job duties. As such, it is possible for a temporary having management experience and having $1.6 million in assets. foreign worker to have to demonstrate language proficiency. Language tests will be required for most permanent residency applications. 7 Temporary Work Permits

4.9 Are employees who are sponsored to work in your 7.1 Is there an immigration category permitting the jurisdiction required to undergo medical examinations hiring of temporary workers for exchanges, career before being admitted? development, internships or other non-economic purposes? Certain occupations in the fields of health or working with children require the foreign worker to undergo a medical examination. In Yes. Under International Experience Canada, individuals from addition, a medical examination will be required if the foreign certain countries can apply to enter Canada in order to perform a worker spent six months or more within the last 12 months in certain work placement or internship that is related to their field of study. designated countries or territories that are listed on IRCC’s website. Canada is a signatory to many bilateral agreements that allow such individuals to enter Canada.

4.10 Are employees who are sponsored to work in your jurisdiction required to have medical insurance or are 7.2 Are there sector-specific temporary work permit they entitled to any free public medical services? categories which enable foreign workers to perform temporary work? Temporary foreign workers will be entitled to free public medical services after having worked in the province over a given period of Yes. Examples include certain performing artists, participants in time, which fluctuates from province to province. In this waiting sports activities, employees of foreign news companies, clergy, etc.

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payment of the required fee; a work permit is likely to be issued on 8 Group or Intra-Company Transfer Work the spot. Permits

8.7 How long are visas under the “initial” category valid 8.1 Does a specific immigration category exist for inter- for, and can they be extended? company transfers within international groups of companies? An initial work permit is normally granted for a three-year period and can be extended up to seven years for an employee who holds Yes. Under the International Mobility Program, pursuant to an executive or senior managerial position and five years for an Regulation 205(a), citizens of any country may enter as intra- employee who holds a specialised knowledge position. Canada company transferees to work within a “parent, subsidiary, branch or affiliate” of a company they currently work for outside Canada if they are executives, senior managers or specialised knowledge 8.8 Can employees coming under the intra-company workers. Moreover, a category for intra-company transferees exists transfer route apply for permanent residence? for citizens of countries with a Free Trade Agreement with Canada. Yes. Depending on what stream is chosen to apply for Canadian permanent residency, the eligibility criteria will vary in terms of 8.2 What conditions must an employing company or the type of occupation and the required length of Canadian work organisation fulfil in order to qualify as part of a group experience. of companies?

The companies must have a qualifying relationship which means 8.9 What are the main government fees associated with that both companies must be doing business and must be legal this type of visa? entities that have a “parent, subsidiary, branch or affiliate business relationship”. IRCC demands the payment of a fee of $155 Canadian dollars for the issuance of a work permit. For accompanying spouses who are eligible to obtain an open spousal work permit, the fee is $155 8.3 What conditions must the employer fulfil in order Canadian dollars in addition to a $100 compliance fee. to obtain a work permit for an intra-company group employee? For Intra-Company Transferees who are exempt from the Labour Market Impact Assessment process, IRCC requires an employer to pay a $230 Canadian dollar compliance fee pursuant to their offer of Under the International Mobility Program, the general requirements employment to a foreign national. to obtain a work permit are that the individual seeking to enter Canada must have been employed outside Canada in a parent, subsidiary, branch or affiliate company in a full-time position for at least 12 9 New Hire Work Permits months within the last three years and is being transferred to work in an executive, senior manager or specialised knowledge capacity. 9.1 What is the main immigration category used for employers who wish to obtain work permits for new 8.4 What is the process for obtaining a work permit for an hires? intra-company group employee? The “regular” process by which temporary foreign workers are If the temporary foreign worker does not require a visa to enter hired is to obtain a LMIA, which application is reviewed by ESDC Canada, the application, with the required documents, can be in order to ensure that the employer has made all efforts to hire a processed directly at any Canadian port of entry. Opinions can be Canadian or a permanent resident before resorting to the services of obtained from an IRCC International Mobility Worker Unit prior to a foreign worker and that the new hire will have a neutral or positive travelling to Canada. effect on the Canadian labour market. New hires may also be issued work permits under LMIA-exempt categories. 8.5 What is the process for the employee to obtain a visa under the intra-company group transfer category? 9.2 Is there a requirement for labour market testing, to demonstrate that there are no suitable resident workers, For individuals who require a temporary resident visa to enter before a work permit can be issued to new hires? Canada, a work permit application is filed and processed at an overseas visa office. They will need to submit proof of an offer Yes. The “regular” way to hire temporary foreign workers is to of employment, proof of current work with the parent company apply for an LMIA which will be conducted by ESDC to determine outside Canada, and may need to undergo a medical examination, whether the employer has advertised correctly to ensure no qualified depending on their country of origin. Canadian or Canadian Permanent Resident was available to occupy the position for which the temporary foreign worker is being hired. 8.6 How long does the process of obtaining the work permit and initial visa take? 9.3 Are there any exemptions to carrying out a resident labour market test? For citizens who need a visa, applications are assessed at visa offices abroad with processing times that vary depending on the number of Yes. There are many LMIA-exempt work permit categories, most applications received at that specific visa office. notably for workers falling under a Free Trade Agreement or intra- For visa-exempt citizens that can apply directly at the port of entry, company transferees. As of June 2016, a new LMIA-exempt applications are assessed immediately upon arrival and pending the category was established for French-speaking individuals who

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intend to work outside the province of Quebec and whose habitual language is French. 9.10 What are the main government fees associated with this type of visa?

9.4 What is the process for obtaining a work permit for a IRCC demands the payment of a fee of $155 Canadian dollars for new hire? the issuance of a work permit. For accompanying spouses who are eligible to obtain an open spousal work permit, the fees are $155 If the new hire qualifies pursuant to a Free Trade Agreement Canadian dollars in addition to a $100 compliance fee. or another LMIA-exempt category, then the work permit can If a Labour Market Impact Assessment is submitted to support the be obtained at a port of entry if the individual is a national of a work permit application, ESDC requires a $1,000 Canadian dollar

Canada Temporary Resident Visa (TRV)-exempt category, and if not, the processing fee (in addition to a $388 Canadian dollar processing fee application is normally processed through a Canadian visa office. If in the Province of Quebec). they do not qualify for a work permit exempt from an LMIA, then an application for an LMIA must first be made. For foreign nationals exempted from the Labour Market Impact Assessment process, IRCC requires an employer to pay a $230 Canadian dollar compliance fee pursuant to their offer of 9.5 What is the process for the employee to obtain a visa employment to a foreign national. as a new hire?

Once an employee meets all eligibility criteria, the process is the 10 Conditions of Stay for Work Permit same as that outlined in question 9.4. Holders

9.6 How long does the process of obtaining the work 10.1 What are the conditions of stay of those who obtain permit and initial visa for a new hire take? work permits and are resident on this basis?

Applications received directly upon arrival at a Canadian port of All conditions are listed in the work permit document that is issued. entry are processed immediately. If an application is required to be Generally speaking, a person will be tied to one specific employer processed at a visa office, processing times depend on the volume of and will be prohibited from engaging in post-secondary study while applications received and typically take approximately one to four working in Canada. months to be processed.

10.2 Are work permit holders required to register with 9.7 How long are initial visas for new hires granted for municipal authorities or the police after their arrival? and can they be extended?

No, they are not. For high-wage positions, work permits under the “regular” LMIA procedure are usually granted for up to two years depending on the justification for the length of employment and the nature of the 11 Dependants position to be filled. For low-wage positions, the duration of a work permit under an approved LMIA is limited to one year. 11.1 Who qualifies as a dependant of a person coming to work on a sponsored basis? In all cases, work permits cannot be used as a way to permanently remain in Canada without applying for Canadian permanent Under current legislation, dependants fall into two categories: the residency. spouse or common-law partner of a person with a valid work permit or a minor child of under 19 years of age who is not married or in a 9.8 Is labour market testing required when the employee common law relationship. extends their residence? It was recently announced that as of October 24, 2017, children aged 21 and younger who are not married or in a common-law An LMIA is not required to apply for permanent residency. relationship will be able to be included as dependants in spousal However, an applicant for Canadian permanent residency must sponsorship applications. maintain a valid status while the application is being processed and, as such, may need to obtain a new LMIA if the work permit is an LMIA-based work permit and is expected to expire while the 11.2 Do civil/unmarried or same-sex partners qualify as family members? permanent residency application is pending.

Yes. Same-sex partners are included in the definition of spouses 9.9 Can employees coming as new hires apply for and common-law partners who have been cohabiting in a conjugal permanent residence? relationship for at least one year.

Yes. Under the Express Entry Program, though it can be difficult to qualify, it is possible to apply for permanent residence. Moreover, 11.3 Do spouses and partners have access to the labour market when they are admitted as dependants? under certain Provincial Nominee Programs, a worker can apply from abroad with a pre-arranged offer of employment, and apply Yes. Spouses of foreign workers in Canada can apply for an open directly for permanent residency. work permit. However, this work permit is only available if the

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foreign worker will be employed in Canada for at least six months in Canada must do so according to the regulations of the stream they and in an occupation that is considered to be skilled (NOC 0, A, B). choose to apply under.

11.4 Do children have access to the labour market? 13 Bars to Admission

Minor children are eligible to apply for a visitor record or a study permit if accompanying their parent or legal guardian in Canada on 13.1 What are the main bars to admission for work? a valid work permit. Moreover, if a study permit is issued, a child studying at the A person may be deemed inadmissible to Canada if there is a post-secondary level can access the labour market under certain finding of security, human rights violations, criminality or medical Canada conditions. or financial inadmissibility pursuant to sections 34–39 of IRPA. A foreign national may also be considered inadmissible if a finding of misrepresentation is found. 12 Permanent Residence 13.2 Are criminal convictions a bar to obtaining work permission or a visa? 12.1 What are the conditions for obtaining permanent residence? Criminal convictions normally make a foreign national inadmissible Permanent residency can be obtained in a variety of ways. Under the to Canada if less than 10 years have passed since the conviction economic stream, there are programmes with different requirements and what the court ordered were completed. However, if five years to apply either directly at the federal level or to be nominated by a have passed since the criminal conviction and all the court-ordered province under a Provincial Nominee Program. Permanent residency requirements were completed, it is possible to apply for criminal can also be obtained through spousal or parental sponsorship under rehabilitation, which, if approved, will remove the inadmissibility the family stream, which have their own eligibility criteria. for a person to obtain a work permit. Convictions for driving under the influence of alcohol also make a foreign national inadmissible.

12.2 Is it possible to switch from a temporary work visa to a work visa which leads to permanent residence?

Work permits are temporary in nature and do not lead to permanent residency. An individual wishing to apply for permanent residency

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Avi Gomberg Isabelle Owston Gomberg Dalfen S.E.N.C. Gomberg Dalfen S.E.N.C. 281 de la Commune Street West 281 de la Commune Street West Montreal Montreal Quebec Quebec Canada Canada

Tel: +1 514 845 0993 Tel: +1 514 845 0997 Email: [email protected] Email: [email protected] URL: www.gombergdalfen.ca URL: www.gombergdalfen.ca Canada Avi Gomberg is a partner with Gomberg Dalfen, having founded his Isabelle Owston was called to the Quebec Bar in 2014. Isabelle own immigration law firm in 1992 and formed the partnership with Seth discovered her passion for immigration law while studying for her Dalfen in 2000. The firm and Avi focus exclusively on immigration- J.D. degree at Queen’s University. Determined to pursue immigration related matters, and clients include foreign individuals and Canadian law, she completed her Master’s degree related to this field of law at employers. Assistance is provided in the relocation to Canada of Osgoode Hall Law School. Isabelle’s practice is focused exclusively executives, businesspeople and skilled professionals. on immigration-related matters. Isabelle works on files pertaining to the admission of skilled professionals to Canada, obtaining temporary Avi’s three decades of experience in the field and his passion for work permits and permanent resident status through both the federal the domain of immigration law have made him a successful and and provincial immigration programmes. compassionate advocate on behalf of his clients, including many multinational corporations and skilled foreign workers. LEXPERT has consistently recognised Avi Gomberg as a leading practitioner in immigration law. Avi has received a Martindale-Hubbell peer review rating of A-V – the highest rating – attesting to his legal ability and professional ethics.

Gomberg Dalfen assists clients with all aspects of the immigration process by providing complete, current information on policy, regulations and laws, and by facilitating immigration-related matters. We ease the immigration process for clients bringing to Canada the talent they need to grow their businesses. We are experts in our field and we treat each client’s file as if it were our very own. At Gomberg Dalfen, our success is our client’s success.

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Croatia Silvije Čipčić-Bragadin

Čipčić-Bragadin and Associates Tomislav Bartolić

1 Introduction 2.2 What is the maximum period for which business visitors can enter your jurisdiction?

1.1 What are the main sources of immigration law in your jurisdiction? This is not applicable in Croatia.

In the Republic of Croatia, the work of foreigners is regulated by 2.3 What activities are business visitors able to the Aliens Act. undertake? Croatia is a Member State of the EU and EEA (European Economic Area), and therefore grants immigration and employment benefits This is not applicable in Croatia. to EU, EEA, and EFTA (European Free Trade Area) citizens in compliance with EU freedom of movement legislation. 2.4 Are there any special visitor categories which will Aliens that are members of third countries can work in Croatia enable business visitors to undertake work or provide based on residence and work permits, work registration certificates services for a temporary period? and “EU Blue Cards”. This is not applicable in Croatia. Nationals of EEA Member States do not need a residence and work permit or work registration certificate; however some nationals of EEA Member States may have limited access to the Croatian labour 2.5 Can business visitors receive short-term training? market due to reciprocity. This is not applicable in Croatia. 1.2 What authorities administer the corporate immigration system in your jurisdiction? 3 Immigration Compliance and Illegal The Ministry of Interior Affairs and the relevant police Working administration/station administer the corporate immigration system. 3.1 Do the national authorities in your jurisdiction operate a system of compliance inspections of employers who regularly employ foreign nationals? 1.3 Is your jurisdiction part of a multilateral agreement between countries (EU/NAFTA/MERCOSUR) which facilitates the movement of people between countries Yes, the national authorities operate such a system. for employment purposes?

3.2 What are the rules on the prevention of illegal working? Yes, Croatia is a Member State of the EU and EEA (European Economic Area), and therefore grants immigration and employment State entities and legal and natural persons have an obligation to benefits to EU, EEA, and EFTA (European Free Trade Area) citizens report any illegal work. There are regular controls of employers by in compliance with EU freedom of movement legislation. the relevant inspectorate. Every employer is obliged to verify that the person they are employing has the right to work in Croatia. 2 Business Visitors 3.3 What are the penalties for organisations found to be employing foreign nationals without permission to 2.1 Can business visitors enter your jurisdiction under a work? relevant visa waiver programme?

Organisations can face potential closure of business in Croatia, No. There is no visa waiver programme applicable in Croatia in seizure of business assets and a potential fine of up to 100,000 HRK relation to business visitors. EU/EEA/EFTA nationals do not (approximately EUR 15,000) for every illegal worker. require a visa in any case.

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4 Corporate Immigration – General 4.10 Are employees who are sponsored to work in your jurisdiction required to have medical insurance or are they entitled to any free public medical services? 4.1 Is there a system for registration of employers who wish to hire foreign nationals? Yes, every employee must have health insurance. Yes, there is such a system. 4.11 Does the work permit system allow employees who hold work permits to be seconded to a client site? 4.2 Do employers who hire foreign nationals have

Croatia ongoing duties to ensure immigration compliance? Yes, secondment is allowed. Yes, employers have ongoing duties. 5 Highly Skilled Visas 4.3 Do the immigration authorities undertake routine inspections of employers who sponsor foreign nationals, to verify immigration compliance? 5.1 Is there an immigration category which covers highly skilled individuals?

Not specifically. Inspections are carried out in the ordinary course A stay and work permit (EU Blue Card) for highly qualified third- of business. country nationals is at the same time a permit to temporarily stay and work in the Republic of Croatia. An EU Blue Card may be 4.4 Do the immigration authorities maintain a list of granted to a third-country national who meets the requirements skilled occupations which may be filled by foreign under Article 54 of the Aliens Act and who encloses the following nationals? documents: 1. a contract of employment or any other appropriate contract No, there is no such list. for doing a highly qualified job, for a period of at least a year (the enclosed contract of employment or other appropriate contract has to state a gross annual salary which should 4.5 Is there a recognition that some occupations may be in short supply and do special exemptions apply to amount to at least one-and-a-half times the average gross certain sectors and occupations? annual salary in the branch of activity in which the third- country national is to be employed according to the official data published by the competent statistics office); No, these occupations are determined through a national quota 2. proof of a university degree – a Bachelor’s or Master’s system. degree, an integrated Bachelor’s/Master’s degree or a specialised Master’s degree. A stay and work permit (EU 4.6 Are there annual quotas for different types of Blue Card) is issued to third-country nationals in the form employment-related work permits or visas? of a residence permit. Further residence and work permits outside the annual quota for that year may be issued to: Yes, every year quotas of foreign workers are issued depending on ■ daily migrant workers, under the reciprocity principle; the labour market needs. ■ key personnel, service providers, workers and their family members, whose status is regulated by the Stabilization and Association Agreement between the European 4.7 Are there restrictions on the number of foreign Communities and their Member States and the Republic workers an employer may sponsor, in relation to of Croatia; a maximum percentage of foreign workers in the employer’s workforce? ■ foreigners holding key positions in companies, branch offices and representative offices*; No, there are no such restrictions. ■ foreigners transferred as part of internal staff relocation inside companies and other necessary persons, as defined by the Protocol on the Accession of the Republic of 4.8 Are employees who are sponsored to work in your Croatia to the Marrakesh Agreement Establishing the jurisdiction required to demonstrate language World Trade Organization; proficiency? ■ foreigners, self-employed in their own company, or in a company in which they hold a share exceeding 51%, or in No, there is no language proficiency requirement. their own craft**; ■ workers providing services on behalf or in the name of a foreign employer, who are not entitled to business 4.9 Are employees who are sponsored to work in your settlement in a Member State of the EEA; jurisdiction required to undergo medical examinations before being admitted? ■ teachers and lecturers at educational institutions of the language and script of a national minority; No, there is no medical examination requirement. ■ professional athletes or sport workers working in the Republic of Croatia;

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■ artists working in cultural institutions in the Republic of b) performs jobs or carries out projects in the Republic of Croatia; Croatia pursuant to international treaties on professional and ■ foreigners employed in foreign associations registered as technical assistance, which the Republic of Croatia concluded foreign associations in the Republic of Croatia and in at with the European Union, some other state or an international least three other states; organisation. ■ foreigners who are members of the trust bodies of the representative offices of foreign trusts and foundations 6 Investment or Establishment Work registered in the Register of the Representative Offices of Foreign Trusts and Foundations in the Republic of Permits Croatia; Croatia ■ foreigners working under youth mobility programmes, 6.1 Is there an immigration category which permits carried out by the Republic of Croatia in cooperation with employees to be authorised to work based on other states; investment into your jurisdiction? ■ scientists and foreigners employed in scientific legal entities to perform scientific work, teaching or other Not directly, but the investment can be one of the terms for obtaining research positions; a work permit in some cases. See question 5.1 above. ■ university professors that are native speakers of foreign languages, foreign language instructors and other lecturers at the Croatian universities or registered schools 7 Temporary Work Permits for foreign languages; and ■ foreigners working pursuant to an international treaty, other than the treaty referred to in Article 79, Paragraph 1, 7.1 Is there an immigration category permitting the Point 2 of the Treaty on the Functioning of the European hiring of temporary workers for exchanges, career Union. development, internships or other non-economic purposes? *Foreigners performing key activities in a company, branch office or representative office of a foreign company are considered to be: Yes, the following categories of aliens may work for up to 90 days in 1. persons having a higher rank in a company, branch office or a calendar year based on a work registration certificate: representative office, persons managing business activities, 1. procurators, key personnel and members of the supervisory persons under the general supervision or management of board of a company who perform services for the company the management board or shareholders or members of but are not employed; the company and persons carrying out identical activity, including: 2. service providers in tourism, tourist agents or recreation workers in accordance with special regulations; ■ managing work of the company’s divisions or subdivisions; 3. scientists on scientific and professional training, scientist- representatives of international organisations and scientists ■ monitoring and supervision of the work of other who are to participate in the implementation of scientific employees, i.e. carrying out of supervisory or managerial projects important for the Republic of Croatia; tasks; and 4. administrative staff, experts, teachers and lecturers at foreign ■ authorisation to employ and dismiss workers and to give cultural, educational and scientific institutions performing recommendations related to employment, dismissal or services in the Republic of Croatia as part of a cultural and other personnel-related tasks; or educational cooperation programme, and administrative 2. a person working in a company, branch office or representative staff, experts, teachers and lecturers at foreign cultural, office who possesses special professional knowledge and/or educational and scientific institutions having branch offices powers indispensable for providing services, using research in the Republic of Croatia, provided that they come from equipment, applying technology or carrying out the business their home institutions; operations of a company, branch office or representative 5. civilian and military officials of the governments of other states office. coming to the Republic of Croatia to work further to cooperation **If: agreements with the Government of the Republic of Croatia; a) the value of share capital or assets for certain type of 6. foreign correspondents, accredited in the Republic of Croatia companies is a minimum of 100,000 HRK; or foreign media reporters; b) in the same company, representative office or branch office, 7. representatives and staff of religious communities performing at least three Croatian citizens are employed in work different activities exclusively related to religious or charitable service; from a procurator, director or supervisory board member; and 8. aliens who come to volunteer in work camps or on similar c) the gross salary is at least half the average gross salary paid in work and educational programmes organised by Croatian the Republic of Croatia for the last year. associations or institutions, or who are on training programmes at diplomatic missions and consular posts Further, a residence and work permit outside the annual quota accredited in the Republic of Croatia; may be granted to foreigners who meet the criteria of temporary 9. volunteers working in non-profit associations and institutions residence, and who: in the Republic of Croatia in accordance with special a) perform key activities in a company, or who hold an regulations or based on international exchange and volunteer ownership of shares in such a company of at least 51%, and cooperation programmes; the company is a holder of incentive measures in accordance 10. aliens coming to the Republic of Croatia to complete their with the regulation on investment promotion, or carries traineeship in companies, branch offices or representative out strategic investment projects in conformity with the offices owned by foreign companies, provided that the regulation on strategic investment projects of the Republic of said aliens come from the registered office (seat) of such Croatia; or companies or from their representative office or branch office in some other state;

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11. aliens performing the activities of supervision and inspection of overhaul and shipbuilding and aliens performing the 8 Group or Intra-Company Transfer Work activities of supervision or inspection of production, assembly Permits of equipment, machinery and other facilities under an export or order contract for a foreign client; 8.1 Does a specific immigration category exist for inter- 12. aliens working on vessels, entered on a list of crew; company transfers within international groups of 13. aliens completing traineeship, professional training or companies? volunteer work within the Community Programmes, Lifelong Learning and Youth in Action programme, and Yes. A posted worker is a worker who is posted to work for a limited other programmes and initiatives carried out by the authority

Croatia competent for education and science and the authority period of time in the Republic of Croatia by a foreign employer, competent for volunteer work; in the framework of temporarily or occasionally providing cross- border services, provided that the Republic of Croatia is not a state 14. experts in the area of cultural heritage protection, library and archives science; in which such a worker usually works. 15. aliens carrying out vocational or professional training or Such a worker may be posted to work in the Republic of Croatia: education of workers employed with legal and natural 1. on the basis of a contract between a user of services and the persons in the Republic of Croatia; employer; 16. aliens engaged in activities related to the delivery, assembly 2. to his/her branch affiliated company or a company owned by or service of machinery or equipment, whose work is a the employer; or condition for exercising warranty rights or is related to the 3. if assigned to the user of services in the Republic of Croatia delivery of machinery or equipment; in the capacity of an agency for temporary employment (A-R 17. aliens completing professional training at a legal person with labour relationship). registered office (seat) in the Republic of Croatia which has A posted worker may be a national of a third-country or an EEA organisational links to a foreign employer; Member State. A foreign employer is a natural or legal person 18. pupils receiving their practical education through an established in the EEA. authorised organisation or pupils’ exchange programme; and A posted worker can be a national of a third country or of the EEA. 19. aliens who come to Croatian legal or natural persons, A foreign employer is a natural or legal person established in the institutions or associations to complete their traineeship without being paid. EEA. Posted workers (EEA or third-country nationals) must bear the A1 certificate issued by their home states from which they were Aliens who come under items 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14 posted to the Republic of Croatia. A foreign employer shall send a and 15 above who intend to stay and work in the Republic of Croatia posting declaration to the Ministry of Labour and Pension System for a period longer than 90 days may be issued a stay and work by e-mail to [email protected]. A posting permit outside the annual quota if they meet the requirements for declaration form can be found at http://www.mrms.hr/posting/. temporary stay and if they provide proof of performing activities and their length in the Republic of Croatia. For work lasting fewer than 90 days, no work registration certificate or stay and work permit is necessary. A copy of the A1 certificate Further, the following categories of aliens may work up to 60 days should be furnished to the Croatian Pension Insurance Institute. in a calendar year on the basis of a work registration certificate: During his/her work in the Republic of Croatia, an alien should at 1. providers of auditing and consulting services; all times carry a copy of the A1 certificate with him/her. 2. lecturers taking part in organised conferences and seminars; Should the mentioned category of foreign nationals work in the 3. artists and technical staff participating in opera, ballet, Republic of Croatia for more than 90 days, they have to regulate theatre, concert, visual arts and other cultural events, and their status in the following manner: a police administration/police authors and performers in film and television arts; and station shall grant a temporary stay for the purposes of work of a 4. aliens employed in circuses or amusement parks. posted worker to a third-country national if he/she furnishes the A1 Further, the following categories of aliens may work up to 30 days certificate and meets the conditions under the Aliens Act, Articles 54 in a calendar year on the basis of a work registration certificate: and 86 (1). Also, he/she shall be issued a residence permit. 1. authors and performers in the field of music and performing A police administration/police station shall issue a certificate arts, as well as accompanying reporting, organisational and of reporting a temporary stay for the purpose of work to an EEA technical staff; and national on grounds of a furnished A1 certificate and a valid ID or 2. aliens participating in fairs and exhibitions where their travel document. employers are exhibitors.

8.2 What conditions must an employing company or 7.2 Are there sector-specific temporary work permit organisation fulfil in order to qualify as part of a group categories which enable foreign workers to perform of companies? temporary work? Please see question 8.1 above. Yes, please see question 7.1 above.

8.3 What conditions must the employer fulfil in order to obtain a work permit for an intra-company group employee?

Please see question 8.1 above.

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8.4 What is the process for obtaining a work permit for an 9.2 Is there a requirement for labour market testing, intra-company group employee? to demonstrate that there are no suitable resident workers, before a work permit can be issued to new Please see question 8.1 above. hires?

Fundamentally no, but a suitable explanation must be given during 8.5 What is the process for the employee to obtain a visa the process of obtaining a work permit as to why there is a necessity under the intra-company group transfer category? for hiring a foreign worker.

Please see question 8.1. above. For work for a period of up to Croatia 90 days, there is no need to further regulate the status of a posted 9.3 Are there any exemptions to carrying out a resident worker. For a period of work longer than 90 days, temporary labour market test? residence should be obtained. This is not applicable in Croatia.

8.6 How long does the process of obtaining the work permit and initial visa take? 9.4 What is the process for obtaining a work permit for a new hire? The relevant authority is obliged to decide on a request within 30 days of submission of the application. 1. Submitting an application (in specified form 9a) to the competent police administration or police station with the necessary documents. 8.7 How long are visas under the “initial” category valid 2. Receiving a notification from the competent police for, and can they be extended? administration or station of the acceptance of the application. If application is successful, the foreigner will be issued a Please see question 1.1 above. biometric residence permit and a residence and work permit. Visas are issued for transit through the territory of the Republic of 3. If the application is successful, the foreigner is obligated to Croatia or a stay in the territory of the Republic of Croatia for a pay 800 HRK for the issuance of a residence and work permit maximum period of 90 days in any 180-day period. The validity and 240 HRK for the issuance of a biometric residence permit on behalf of the Republic of Croatia. Both amounts must be period of a visa and/or the duration of stay granted on the basis of paid separately, and can be paid via a bank, post office or the issued visa may be extended if the Ministry considers that the internet banking system. visa holder has delivered proof of: 4. After submitting proof of payment, the competent police ■ force majeure or humanitarian reasons that have prevented administration or police station shall hand off the residence an alien from leaving the territory of the Republic of Croatia and work permit and biometric residence permit to the prior to the visa’s expiry or the expiry of the duration of stay employer. granted by said visa; or Applications must be submitted to the relevant authority in the ■ serious personal reasons that justify the extension of the visa proper form, enclosing: or the duration of stay. ■ a 35x45mm photo, in colour; ■ a copy of a valid travel document (passport); 8.8 Can employees coming under the intra-company transfer route apply for permanent residence? ■ evidence of a health insurance; ■ a copy of valid travel document, which will be verified by an Yes, if conditions for permanent residence are met. Please see official after checking the original document; question 12.1 below. ■ proof of insured funds to support his/her stay; ■ an employment contract, a written certificate on employment or another appropriate document; 8.9 What are the main government fees associated with this type of visa? ■ proof of education or qualification; ■ proof of the registration of a company, branch office, Please see question 9.4 below. representative office, craft, association or institution in the Republic of Croatia; ■ an explanation of why the employment of the foreigner 9 New Hire Work Permits is justified, including information on his professional knowledge, qualification and working experience and reasons why the position cannot be fulfilled from the domestic 9.1 What is the main immigration category used for Croatian national labour market; and employers who wish to obtain work permits for new ■ a consular fee if the application is submitted through a hires? diplomatic mission or consular office or stamp duty in the amount of 20 HRK if the application is submitted in the There is no specific category, and usually a regular work permit Republic of Croatia. application within issued quotas is required.

9.5 What is the process for the employee to obtain a visa as a new hire?

Please see question 9.4 above.

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3. persons living in cohabitation in accordance with Croatian 9.6 How long does the process of obtaining the work legislation; permit and initial visa for a new hire take? 4. minor children who were born of the marriage or of the cohabitation or who were adopted, and minor children of The relevant authority is obliged to decide on a request for any of the partners, on condition that they have not formed the issuance of a residence and work permit within 30 days of families of their own; and submission of the application. 5. the parents or adopted parents of minor children. Further, any other relative may also be regarded as a member of the 9.7 How long are initial visas for new hires granted for nuclear family of a Croatian national or alien granted temporary or and can they be extended? permanent stay and an alien with asylum seeker status if there are Croatia special personal reasons or serious humanitarian grounds for family Residence and work permits have limited validity for a period reunification in the Republic of Croatia. identical to the period which is required to complete the job or for which the employment contract is concluded, but shall not exceed 11.2 Do civil/unmarried or same-sex partners qualify as one year. However, residence and work permits may be issued for family members? up to two years if a shorter period is not requested in the application for the residence and work permit. Based on a registration Yes, if conditions for such cohabitation are met in accordance with certificate, foreigners can work up to 90 days annually. “EU Blue Croatian legislation. Cards” are issued for a two-year period; if the employment contract is concluded for a shorter period, the “EU Blue Card” will be issued for that period plus three additional months. 11.3 Do spouses and partners have access to the labour market when they are admitted as dependants?

9.8 Is labour market testing required when the employee Yes, if they have been granted a temporary residence. extends their residence?

No such test is required. 11.4 Do children have access to the labour market?

Minors below the age of 15 cannot enter the labour market. Minors 9.9 Can employees coming as new hires apply for permanent residence? aged 15 and older can enter into an employment agreement by receiving permission from their legal guardian. Yes, new hires can apply for permanent residence. 12 Permanent Residence 9.10 What are the main government fees associated with this type of visa? 12.1 What are the conditions for obtaining permanent residence? Please see question 9.4 above. Permanent residence may be granted to an alien who, before the 10 Conditions of Stay for Work Permit submission of the related application in the Republic of Croatia, had Holders legal residence for an uninterrupted period of five years, including granted temporary residence, asylum or subsidiary protection. It is also deemed that an alien had an uninterrupted residence in the 10.1 What are the conditions of stay of those who obtain Republic of Croatia if, within a period of five years, he was absent work permits and are resident on this basis? from the Republic of Croatia on multiple occasions up to 10 months in total, or up to six months in the case of a one-time absence. Besides reporting the address of residence in Croatia (please see Marriage of aliens to Croatian nationals or aliens who have been question 10.2 below), there are no other special conditions. granted permanent stay in the Republic of Croatia shall no longer be grounds for the acquisition of a permanent stay status. Permanent residence shall be granted to a foreigner who fulfils the 10.2 Are work permit holders required to register with following: municipal authorities or the police after their arrival? ■ has a valid foreign travel document; Aliens must report their address of residence within three days of ■ has a means of subsistence; entering Croatia and, in the same period, any amendments to that ■ has health insurance; address. ■ knows the Croatian language and the Latin script, and who has knowledge of Croatian culture and the social system; and ■ does not pose danger to public order, national security or 11 Dependants public health. A national of an EEA Member State shall be entitled to permanent 11.1 Who qualifies as a dependant of a person coming to residence after a period of five years of uninterrupted legal residence work on a sponsored basis? in the Republic of Croatia. A national of an EEA Member State has right to permanent residence 1. members of the nuclear family; before the above-stated five-year period in some cases, which are 2. spouses; regulated by Article 174 of the Aliens Act.

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12.2 Is it possible to switch from a temporary work visa to 13.2 Are criminal convictions a bar to obtaining work a work visa which leads to permanent residence? permission or a visa?

Technically yes, if all relevant conditions are met. Not per se, but this can be a reason for not granting a stay in, or deportation from, Croatia if they pose a threat to national security, public order or health. 13 Bars to Admission

13.1 What are the main bars to admission for work? Croatia

The main bar to admission to work for non-EEA Member State citizens is to fulfil all conditions set by the Alien Act but fall within the limited and sometimes not very well-designed quota system.

Silvije Čipčić-Bragadin Tomislav Bartolić Čipčić-Bragadin and Associates Čipčić-Bragadin and Associates Masarykova 15 Masarykova 15 HR-10000, Zagreb HR-10000, Zagreb Croatia Croatia

Tel: +385 1 467 8870 Tel: +385 1 467 8870 Email: [email protected] Email: [email protected] URL: www.cipcic-bragadin.com URL: www.cipcic-bragadin.com

Silvije is a partner mainly in charge of the firm’s vast corporate, Tomislav’s practice comprises knowledge focused around corporate, banking and finance and commercial practice. Clients include a roster commercial, banking and finance and insolvency practice, litigation of international companies, financial institutions, funds, investment and arbitration. Besides his legal diploma, he holds a diploma in managers and public entities. To date, he has counselled on some German commercial law and European law organised by Dresden of the biggest transactions and projects in Croatia. His list of clients Law University. He is a well-recognised and experienced lawyer who include some of the leading Fortune Global 500 companies. Silvije regularly counsels many international and domestic clients ranging is also regularly involved in various complex dispute resolution from large corporate and public bodies to SMEs and private clients. proceedings, including arbitration processes. He has particular experience in the complex area of pre-bankruptcy and bankruptcy proceedings and related dispute resolution solutions Silvije is one of the founders of the Croatian Private Equity and and restructurings. He has been involved in some of the most Venture Capital Association and Croatian Business Angels Network complicated bankruptcy and dispute resolution proceedings to date in and the initiator of the establishment of ICC Croatia, the National Croatia (including in arbitration) with a total value of more than EUR Committee of the ICC. Silvije was also a member of several working 300 million. His experience in high stakes dispute resolution is of groups responsible for drafting new laws in Croatia, e.g. the law on paramount value to his clients. He is fluent in German and English, investment funds and an enforcement law (as a representative of the knowledgeable and is gifted with admirable analytical skills. Croatian Employers Association).

Čipčić-Bragadin and Associates is one of the leading legal practices in Croatia, recommended and recognised by many leading international legal guides such as The Legal 500, IFLR1000, Chambers and Partners, etc., that serves companies, financial institutions and private clients. With roots from 1928, after years of professional development, we now probably have more tradition, experience and market presence than almost any other law firm in Croatia. That puts us in a unique situation where we could help our clients not just on law-related issues but also on almost any business- related issue. At Čipčić-Bragadin and Associates today, the flavour is definitely international. Around 80% of our major clients are international enterprises doing business in Croatia. We work closely with the leading international law firms and consultants, so we’re able to manage complex, cross-border projects and deals seamlessly and successfully.

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Denmark Michael Møller Nielsen

Lund Elmer Sandager Law Firm LLP Julie Flindt Rasmussen

1 Introduction 2 Business Visitors

1.1 What are the main sources of immigration law in your 2.1 Can business visitors enter your jurisdiction under a jurisdiction? relevant visa waiver programme?

The Danish Aliens Act, Consolidated Act no. 863 of 25 June 2013, Danish companies, educational institutions and organisations can as amended (in Danish: Udlændingeloven), provides regulation on obtain preliminary approval from the Danish Immigration Service residence and work permits in Denmark. in order to receive business visitors from countries for which a visa Furthermore, EU law has decisive influence on Danish law. is otherwise required. Preliminary approval makes it more flexible and faster for the company to receive business visitors, since the Denmark is an EU Member State but has four opt-outs with regard application process is usually handled by the diplomatic mission to EU cooperation. The opt-out regarding justice and home affairs without the need to involve the Danish Immigration Service. means that Denmark can pursue an independent immigration policy in spite of other policies and regulations that may be adopted by the A general visa waiver programme applies to Swiss and EU citizens EU within this area. However, Danish immigration policy cannot as well as to citizens of the Nordic countries. Furthermore, other be in conflict with the basic principles of EU law, which means that, countries are visa-exempt. The decisive factor is thus the nationality in relation to some cases involving EU citizens, the opt-outs are of the visitor. somewhat illusory. 2.2 What is the maximum period for which business 1.2 What authorities administer the corporate immigration visitors can enter your jurisdiction? system in your jurisdiction? The maximum period for a visa is 90 days within a period of 180 Residence and work permits are administered by the Danish Agency days, and the visa is normally valid for the entire Schengen region. for International Recruitment and Integration (in Danish: Styrelsen Additionally, there is the possibility of obtaining a multiple-entry for International Rekruttering og Integration), which is an agency and long-term visa valid for a period of anywhere between six under the Danish Ministry of Immigration and Integration that months and five years. The multiple-entry and long-term visa works on recruitment of foreign labour. can be issued if you are able to document a necessity for visiting In addition, the Danish Immigration Service (in Danish: Denmark/Schengen often or regularly, particularly in connection Udlændingestyrelsen) under the Ministry of Justice handles, inter with business or a personal relationship, and if you can prove your alia, cases regarding permanent residence and visa applications. integrity and reliability.

1.3 Is your jurisdiction part of a multilateral agreement 2.3 What activities are business visitors able to undertake? between countries (EU/NAFTA/MERCOSUR) which facilitates the movement of people between countries During visits of fewer than three months in duration, the visitor for employment purposes? can teach and attend courses, participate in meetings, negotiations, briefings, training, instructions and the like. Denmark is a member of the European Union, where the free A work permit is, however, required if the visitor is to contribute to movement of workers and services and the freedom of establishment the creation or changing of a product, or in any other way contribute are fundamental principles stipulated in Articles 45, 49 and 56 of the to a company’s commercial output. Treaty on the Functioning of the European Union. Furthermore, Denmark participates in the Schengen Agreement, which is a treaty signed by several European countries aimed at 2.4 Are there any special visitor categories which will creating a common area without internal borders. enable business visitors to undertake work or provide services for a temporary period? Citizens from Norway, Sweden, Finland and Iceland are covered by agreements entered into between the Nordic countries which If the stay does not exceed three months, the following visitors, specify, for instance, the right to reside, study and work in Denmark among others, can work in Denmark without a work permit: without a visa, residence or work permit.

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■ scientists and speakers who are invited to teach or carry out persists. A penal sanction of imprisonment for up to two years can similar activities; even be imposed. ■ artists who are of significance to an artistic event; Being expelled from Denmark means you will be banned from ■ representatives on business trips for foreign companies that entering all EU and Schengen countries, including Denmark, for a do not have business offices in Denmark; minimum of two years. ■ service engineers, consultants and instructors who will mount, install, inspect or repair machines, equipment, IT programs or the like, or inform about the use thereof, provided that they 4 Corporate Immigration – General are employed by the company that delivers the equipment (“the fitter rule”) and that the task is expected to last less than 4.1 Is there a system for registration of employers who

90 days; Denmark wish to hire foreign nationals? ■ persons that are employed in the household of foreigners who are visiting Denmark for three months or fewer; and The web portal www.workindenmark.dk, hosted by the Danish ■ professional athletes and coaches who will participate in an government, offers companies information about how to recruit and isolated sports event or in test training in a Danish sports club. retain foreign employees. The portal has a job database which is tailor-made for international recruiting. The visitor must still hold a visitor’s visa if the foreigner is a citizen of a country with a visa requirement to enter Denmark. Diplomats Additionally, the largest job portal in Denmark is www.jobnet.dk, as well as personnel working within the industry of international which is the Danish Job Centres’ website for jobseekers and employers ground transportation can work in Denmark without a residence and nationwide. work permit. Foreign businesses/companies and self-employed people without employees have to register with the Register for Foreign Service Providers (in Danish: RUT-registeret) if they are to work temporarily 2.5 Can business visitors receive short-term training? in Denmark. Registration has to take place three days after the work has commenced, at the latest. Negligence of such registration is Business visitors can receive short-term training without having to punished by fines starting at DKK 10,000 (EUR 1,300). obtain a work permit, provided that the training does not contribute to the company’s commercial output. 4.2 Do employers who hire foreign nationals have ongoing duties to ensure immigration compliance? 3 Immigration Compliance and Illegal Working Employers have an obligation to ensure immigration compliance. This means that everything from salary to working conditions must correspond to Danish standards. 3.1 Do the national authorities in your jurisdiction operate a system of compliance inspections of employers who regularly employ foreign nationals? 4.3 Do the immigration authorities undertake routine inspections of employers who sponsor foreign Both the Danish Immigration Service and the Danish Agency for nationals, to verify immigration compliance? Labour Market and Recruitment conduct continuous controls in order to ensure that the Danish Aliens Act is being complied The immigration authorities generally conduct spot-checking, with; for example, by correlating data from the Civil Registration but they also organise separate controls within specific industries, System (CPR), the income registry (e-Income) and the Building particularly in the event of intensified suspicion of non-compliance and Accommodation Register (BBR), and by conducting company with the law. Furthermore, the authorities correlate certain registers, visits. e.g. the Civil Registration System, the Building and Accommodation Register and the Tax Register, to ensure that the legislation is respected. 3.2 What are the rules on the prevention of illegal working? 4.4 Do the immigration authorities maintain a list of Extensive cooperation between various Danish authorities, such as skilled occupations which may be filled by foreign nationals? the Danish Agency for Labour Market and Recruitment, the Danish tax authorities, the police, the Danish Immigration Service and the Danish Working Environment Authority, seeks to prevent the The Danish authorities have drafted a so-called “Positive List” prevalence of illegal work by controlling and informing about visa with examples of professional fields lacking specially qualified rules, residence and work permits. manpower. The list is continuously revised and mentions professions such as IT consultants, doctors, dentists and engineers.

3.3 What are the penalties for organisations found to be employing foreign nationals without permission to 4.5 Is there a recognition that some occupations may be work? in short supply and do special exemptions apply to certain sectors and occupations? If a foreign national works illegally in Denmark, the foreigner can be deported from the country and refused re-entry. Furthermore, Foreign nationals who have been offered a job within professional both the employee and the employer may be punished by fines areas lacking specially qualified manpower (i.e. those fields on the of approximately DKK 10,000–20,000 (EUR 1,300–2,700) per Positive List) have particularly easy access to the Danish labour employee for each month or part of a month in which the breach market. The Danish Agency for International Recruitment and

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Integration will not need to consult with the local Employment EU citizens who are employed in Denmark are entitled to social Regions if the job offered is on the Positive List, but will only need to security in the same way as Danish employees. verify that the pay and employment conditions correspond to Danish Employees who reside in Denmark without being registered in the standards, and that the employee has the required education, which National Register of Persons (in Danish: Folkeregistret) are entitled makes the application process faster. Sometimes there is a condition to free emergency hospital treatment in case of an accident, sudden that the foreigner must obtain authorisation from the Danish Health illness, childbirth or exacerbation of a chronic disease, etc. and Medicines Authority, i.e. from a doctor or psychologist. However, treatment of a non-emergency illness can, depending on the employee’s nationality, require a valid health insurance policy. 4.6 Are there annual quotas for different types of employment-related work permits or visas?

Denmark 4.11 Does the work permit system allow employees who hold work permits to be seconded to a client site? No such quotas apply. As a main rule, the work permit is issued for a specific employer. 4.7 Are there restrictions on the number of foreign It is therefore advisable to confer with the Danish Agency for workers an employer may sponsor, in relation to International Recruitment and Integration on a case-by-case basis. a maximum percentage of foreign workers in the employer’s workforce? 5 Highly Skilled Visas There are no restrictions on the amount of foreign workers which an employer can recruit. 5.1 Is there an immigration category which covers highly However, the general rights and obligations of a foreign employee skilled individuals? must be the same as for any Danish employees, e.g. the salary of the foreign employee and the content of the employment contract The Positive List described in questions 4.4 and 4.5 also covers cannot be different from what would usually be provided for a highly skilled individuals. Danish employee in the same position. This is also the case with another scheme, “The Pay Limit Scheme”, which applies to cases where foreigners are offered jobs with an 4.8 Are employees who are sponsored to work in your annual cash pay that exceeds DKK 408,800 (approx. EUR 54,500) jurisdiction required to demonstrate language (2017 level). The salary level in the Pay Limit Scheme will be proficiency? adjusted each year and foreigners using the Pay Limit Scheme have to meet the required salary level when submitting the visa There are no requirements for language skills for foreign employees application. working in Denmark. Furthermore, researchers, athletes, coaches, artists and entertainers However, the passing of a specific Danish language test is a have easier access to the Danish labour market. It is also possible to requirement for a permanent residence permit in Denmark. be granted a work and residence permit in order to be self-employed and to operate as an independent company in Denmark. 4.9 Are employees who are sponsored to work in your jurisdiction required to undergo medical examinations before being admitted? 6 Investment or Establishment Work Permits No medical examination is required before coming to work in Denmark. 6.1 Is there an immigration category which permits employees to be authorised to work based on 4.10 Are employees who are sponsored to work in your investment into your jurisdiction? jurisdiction required to have medical insurance or are they entitled to any free public medical services? Investing in Denmark does not entail easier access to the Danish labour market. As a rule, an employee is covered by the social security legislation of the country where the employee works, regardless of where the employee lives. 7 Temporary Work Permits When an employee is covered by social security in Denmark, the employer must: 7.1 Is there an immigration category permitting the ■ have valid industrial injury insurance; hiring of temporary workers for exchanges, career ■ notify the insurance company and the National Board of development, internships or other non-economic Industrial Injuries (in Danish: Arbejdsskadestyrelsen) of any purposes? accident; ■ pay contributions to the Labour Market Occupational You can be granted a residence and work permit as a trainee for the Diseases Fund (in Danish: AES); purpose of working in a company in Denmark for a limited period of time for educational purposes. ■ pay the supplementary labour market pension (in Danish: ATP); and You can also receive a residence and work permit as an intern if ■ provide sickness benefits to the employee during sickness certain educational requirements are fulfilled. absence. Furthermore, Denmark has established working-holiday agreements with a number of countries, which permit young citizens from these

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countries to be on holiday and supplement their travel resources by working. 8.4 What is the process for obtaining a work permit for an intra-company group employee? As a rule, foreigners that study in Denmark are permitted to work but their working hours must not exceed 20 hours per week, except An application for Fast-track scheme certification must be submitted during the months of June, July and August where full-time work online, where the employer or employee must create a case order ID is permitted. and normally pay a fee (a case processing fee). A company which meets the conditions of the Fast-track scheme will 7.2 Are there sector-specific temporary work permit be certified for a period of four years with the option of extending categories which enable foreign workers to perform the certification, provided that the conditions are still met. temporary work? The Danish Agency for International Recruitment and Integration Denmark No sector-specific temporary work category exists. Please see will continuously check that certified companies meet the conditions, question 2.4. including those of having at least 20 full-time employees, no serious issues with the Danish Working Environment Authority and not having been convicted under the Danish Aliens Act. Verification can 8 Group or Intra-Company Transfer Work be carried out, for example, in the form of spot-checks. In addition, Permits verification of residence permits under the Fast-track scheme will take place as part of the Agency’s regular checks to verify whether the conditions for a residence and work permit as an employee 8.1 Does a specific immigration category exist for inter- continue to be met by both the employee and the company. company transfers within international groups of companies? 8.5 What is the process for the employee to obtain a visa Denmark has a so-called “Fast-track scheme” that makes it easier for under the intra-company group transfer category? companies with operations in Denmark to transfer employees with certain qualifications from the foreign department of the company If a foreign national wishes to make use of the Fast-track scheme’s to Denmark in order to work on a project or carry out work that is possibility for starting a job at short notice, he or she must arrange innovative or educational. for legal entry into Denmark by him/herself. Before the foreign national starts working, he or she must appear in person at the The Fast-track scheme enables certified companies to hire highly Danish Agency for International Recruitment and Integration and qualified foreign nationals on short notice without having to wait be subjected to a number of checks, including an identity check, for an application to be processed by the Danish Agency for a check that he or she has not been registered as barred from the International Recruitment and Integration. At the same time, the Schengen region, and a check that he or she has entered into a scheme offers the foreign national the option of working alternately contract with a certified company. in and outside Denmark. If all the conditions have been fulfilled, a temporary permit allowing The Fast-track scheme is intended for larger companies with a real the foreign national to start working will be granted. The permit is need to recruit highly qualified foreign employees quickly. The valid until a decision has been made regarding the application for a scheme encompasses both private and public companies, including residence and work permit. universities. If the foreign national is not exempt from the visa requirement and not already able to enter Denmark legally and appear in person at the 8.2 What conditions must an employing company or Agency, the employer must submit an online application for a Fast- organisation fulfil in order to qualify as part of a group track permit using a power of attorney from the foreign employee. of companies? If there is no need to commence employment at short notice, the A Danish company using the Fast-track scheme must be certified by foreign national can apply for a residence permit under the Fast-track the Danish Agency for International Recruitment and Integration. In scheme from his or her home country and await a decision from the order to be certified, the company must meet a range of conditions; Danish Agency for International Recruitment and Integration. among these, the company must have at least 20 full-time employees and the company must not be involved in any legal labour disputes 8.6 How long does the process of obtaining the work or have serious issues with the Danish Working Environment permit and initial visa take? Authority. In addition, the company must not have been convicted repeatedly or been subject to a fine of DKK 20,000 (EUR 2,700) or The processing time for an application under the Fast-track scheme higher under the Danish Aliens Act within the past two years. should not exceed 30 days.

8.3 What conditions must the employer fulfil in order 8.7 How long are visas under the “initial” category valid to obtain a work permit for an intra-company group for, and can they be extended? employee? A residence and work permit under the Fast-track scheme can The Danish company must have at least 20 employees, and the be granted for a period of up to four years, unless the application company’s salary and employment conditions must correspond concerns a short-term stay of up to three months. In this case, a to Danish standards. If the company is not part of a collective residence permit can be granted for one short-term stay of a maximum bargaining agreement, it must declare that it has salary and of three months within a one-year period. employment conditions that meet Danish standards. A residence and work permit for a short-term stay cannot be extended and the three months cannot be divided into several

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stays. An application must be submitted for each short-term stay in requirements are met. In some cases, a statement from the relevant Denmark and the three months will be calculated from the date of industry association or local Employment Region must be obtained entry into Denmark. in order to process an application.

8.8 Can employees coming under the intra-company 9.4 What is the process for obtaining a work permit for a transfer route apply for permanent residence? new hire?

Employees under the Fast-track scheme can apply for permanent The employee must hold a written employment contract or a job residence if the employees meet all the requirements in this regard. offer which specifies salary and employment conditions meeting Please refer to question 12.1, where the conditions for permanent Danish standards. Denmark residence are listed. Applications for a residence and work permit should be submitted It is important to be aware that the application for permanent (online) to the Danish Agency for International Recruitment and residence must be submitted before the temporary residence permit Integration. expires. When the residence and work permit is obtained, the employee must register with the Civil Registration System and choose a Danish doctor, whereupon a health insurance card is issued. Furthermore, 8.9 What are the main government fees associated with this type of visa? the employee must obtain a tax card from the local tax centre and establish a Danish bank account. The Danish company must pay a fee to be certified under the Fast- Please note that in some cases, it is necessary to submit the track scheme. The certification fee is currently DKK 3,440 (approx. application for a work permit to a Danish representative in the home EUR 461). country of the employee. Additionally, the employee has to pay a fee when applying for a work and residence permit under the Fast-track scheme. The fee is 9.5 What is the process for the employee to obtain a visa currently DKK 3,440 (approx. EUR 461). as a new hire?

Please note that in most cases, a new hire will need a work permit as 9 New Hire Work Permits only certain work-related activities can be performed on a visa; see questions 2.1, 2.3 and 8.5. 9.1 What is the main immigration category used for employers who wish to obtain work permits for new 9.6 How long does the process of obtaining the work hires? permit and initial visa for a new hire take?

If the employee is a citizen of the Nordic countries, the EU/EEA or The process should not exceed 30 days if all the necessary Switzerland, a work permit is not required. However, EU/EEA and documentation is submitted with the application. Swiss citizens should obtain an EU residence document (registration certificate) from the state administration. 9.7 How long are initial visas for new hires granted for In other cases, the immigration category used depends on the and can they be extended? qualifications of the employee. There are special schemes designed for highly qualified professionals to work in Denmark, e.g. the Please refer to questions 2.2 and 8.7. Positive List and the Pay Limit Scheme.

9.8 Is labour market testing required when the employee 9.2 Is there a requirement for labour market testing, extends their residence? to demonstrate that there are no suitable resident workers, before a work permit can be issued to new hires? It is a requirement that the employee still meets the conditions of the original residence permit. For example, this may mean that the When processing applications for residence and work permits, employee must still be employed in the same job, with the same the Danish Agency for International Recruitment and Integration employer, and on the same terms. considers whether there are any qualified individuals currently residing in Denmark who can perform the specific job and whether 9.9 Can employees coming as new hires apply for the job is of such special character that a residence and work permit permanent residence? can be recommended. Please refer to question 12.1 where the conditions for permanent 9.3 Are there any exemptions to carrying out a resident residence are listed. labour market test? 9.10 What are the main government fees associated with As residence and work permits are only granted if professional this type of visa? or labour market considerations warrant it, the Danish Agency for International Recruitment and Integration will ensure that the When applying for a work and residence permit under the Positive List and/or the Pay Limit Scheme, the fee is currently DKK 3,440 (approx. EUR 461).

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10 Conditions of Stay for Work Permit 11.3 Do spouses and partners have access to the labour Holders market when they are admitted as dependants?

The accompanying family member does not need to acquire a work 10.1 What are the conditions of stay of those who obtain permit as this residence permit includes the right to work or study work permits and are resident on this basis? during the stay in Denmark.

If a foreign national has been granted a work and residence permit based on an indefinite employment contract, the duration of the 11.4 Do children have access to the labour market? permit will normally be four years. If the foreign national is still in the same job after four years, on the same terms, he/she must apply Children under the age of 15 do not have access to the labour Denmark for an extension. market. Special rules apply regarding work performed by 15- to A residence permit will expire 14 days after the end of the 18-year-olds. employment contract. If the employment contract is temporary, the period of duration of the residence permit will be the same as the 12 Permanent Residence employment contract plus six months. This will enable the foreign national to look for a new job after the temporary employment relationship has expired. However, the foreign national is not 12.1 What are the conditions for obtaining permanent allowed to work based on the work permit pertaining to the residence? temporary employment in the job-seeking period. Please note that if a foreign national finds a new job, he/she must The following conditions are a simplification of the requirements: you always apply for a new work and residence permit no later than the must still qualify for temporary residence, be over the age of 18, and day the new the job commences. have resided in Denmark legally for at least five years. Additionally, you must not have a criminal record (if so, you are either disqualified If the employment is terminated, the work and residence permit will or temporarily disqualified). Furthermore, you cannot have overdue usually be revoked. However, if the termination is due to reasons public debt or have received certain types of public benefits within a not attributable to the employee, e.g. due to redundancy, a six-month period of three years prior to submitting the application for permanent residence permit is usually granted to the foreign national. residence. Moreover, you must sign a declaration of integration and active citizenship in Denmark and pass a Danish language test. 10.2 Are work permit holders required to register with Finally, you must have held full-time employment or have been municipal authorities or the police after their arrival? enrolled in an educational programme for at least three of the five years prior to the application for permanent residence. Foreign employees are obliged to register with the local municipal Some groups are exempt from one or more of the above-mentioned authorities. The employee will then receive a so-called “CPR requirements. number” (a number in the Danish Civil Registration System) and a tax card. 12.2 Is it possible to switch from a temporary work visa to a work visa which leads to permanent residence? 11 Dependants Permanent residence can be granted if the foreigner meets the requirements listed in the answer to question 12.1. Foreigners with 11.1 Who qualifies as a dependant of a person coming to permanent residence are exempted from obtaining a work permit. work on a sponsored basis?

You can usually bring your family with you to Denmark if you hold 13 Bars to Admission a residence and work permit. A residence permit can be granted to your spouse, registered partner or cohabitant partner. Furthermore, children under the age of 18 who live in the household qualify as 13.1 What are the main bars to admission for work? dependants. It is a requirement that you and your family live at the same address, Criminal convictions of a certain degree of seriousness are a and that you can provide for your family financially. hindrance to admission for work in Denmark. Other circumstances where the foreigner is considered to be a danger to the safety of the state, public order or public health are also a barrier. 11.2 Do civil/unmarried or same-sex partners qualify as family members? 13.2 Are criminal convictions a bar to obtaining work To be regarded as a cohabitant partner, you must normally have permission or a visa? lived together for at least 18 to 24 months. Same-sex partners have equal rights. Criminal convictions may prevent foreigners from obtaining a visa or work permission or may postpone the application process; cf. question 13.1.

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Michael Møller Nielsen Julie Flindt Rasmussen Lund Elmer Sandager Law Firm LLP Lund Elmer Sandager Law Firm LLP Kalvebod Brygge 39–41 Kalvebod Brygge 39–41 1560 Copenhagen 1560 Copenhagen Denmark Denmark

Tel: +45 33 300 262 Tel: +45 33 300 227 Email: [email protected] Email: [email protected] URL: www.les.dk URL: www.les.dk

Denmark Michael is Partner and the Head of Employment Law at Lund Elmer Julie works as an attorney in the Employment Law department at Sandager. Lund Elmer Sandager. Julie has experience in advising both domestic and international companies and organisations within all areas of Michael has broad experience within dispute resolution, litigation employment law; inter alia, reorganisation and redundancies, transfer and due diligence in connection with transactions and outsourcing. of business, individual employment issues, restrictive covenants, Further, he is skilled in negotiating terms for business transfers. discrimination and trade secrets and corporate immigration. Michael primarily advises international and domestic employers Furthermore, Julie has experience in dispute resolution and litigation. on all aspects of employment law, particularly in relation to variable remuneration, stock options and pensions. As a special area of expertise, he assists enterprises which are subject to collective bargaining agreements in questions related to the interpretation of such agreements and disputes with trade unions concerning breaches of these, and continuously advises companies met with claims by trade unions wishing to enter into such agreements.

Lund Elmer Sandager is a full-service law firm dedicated to advising clients on commercial legal issues and legislation. Our primary activities include counselling and advising clients in connection with mergers and acquisitions, company law, IP rights, real estate, tenancy law, construction law, financing, employment law, contracts, agency and sole distributorship matters, shareholders’ agreements and insolvency law. We have a comprehensive client base, spanning many categories, such as small sole traders, large individual proprietorships and family businesses, as well as listed companies and international groups. Through our international network, we also offer competent local, legal counselling in major European countries and in the US. Lund Elmer Sandager ranks as a major Danish law firm, and as of 2017 our staff numbered approximately 100 employees, 37 of whom are attorneys.

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France Valerie Maricot

CMG LEGAL Stephane Coulaux

■ the Office of Migration (“OFII”): administers various steps of 1 Introduction the immigration process (work permit process in liaison with DIRECCTE and French consulates, medical examinations and validation visa process); and 1.1 What are the main sources of immigration law in your jurisdiction? ■­ the Prefectures: administers the initial residence permit applications, renewal applications, change of status applications, applications for permanent residence and The main sources of French immigration law are: naturalisation, etc. ■­ the Code of Entry and Stay of Foreigners and Rights of Refuge (“CESEDA”): it integrates the Immigration Law of March 7th 2016 applicable since November 1st 2016, a major 1.3 Is your jurisdiction part of a multilateral agreement reform of French immigration provisions notably aiming between countries (EU/NAFTA/MERCOSUR) which to attract highly skilled workers. It provides regulations facilitates the movement of people between countries regarding entry and stay in France, various types of visas and for employment purposes? residence permits and qualification criteria for their issuance and renewal, as well as regulations relating to sanctions for France is a Member State of the EU and EEA (European Economic non-compliance with the set of immigration rules; Area including Member States of the EU and Iceland, Liechtenstein ■ the Labour Code: French authorities being very attentive to and Norway) and therefore grants immigration and employment providing protection to employees working in its territory benefits on Nationals of its Member States in application ofthe along with scrutinising potential sources of “social dumping”, freedom movement of workers and services and the freedom of it provides various employment regulations applying to establishment. Third-country nationals who are relatives of EU employees sent to France, either on a local contract or on Nationals benefit from similar rights. secondment. It also defines work permit requirements and qualification criteria, work permit exemptions, as well Nationals of EU/EEA and Switzerland do not need a permit or visa as rules relating to secondment requirements and related to enter and work in France. sanctions; France is also part of the Schengen Agreement, which is a treaty ■­ the French Civil Code, which governs nationality matters; signed by several European countries creating a common area ■­ the laws and decrees integrated in these above-mentioned without internal borders but a single external border and a common codes are supplemented by various circulars and visa policy regulating the entry into the Schengen area for short administrative notes providing further guidance on how these stays. regulations should be interpreted and implemented by French authorities; and ■ other important sources are EU Regulations (most of them 2 Business Visitors being implemented in the above-mentioned codes) and bilateral or multilateral international treaties to which France is a signatory. 2.1 Can business visitors enter your jurisdiction under a relevant visa waiver programme?

1.2 What authorities administer the corporate immigration EU/EEA/Swiss nationals do not require any visa to come to France. system in your jurisdiction? Nationals of other limited specific countries are visa-exempt for short stays for business purposes based on bilateral agreements The main following authorities administer the immigration system: related to visa waiver programmes applying to the nationals of these ■ the Ministry of Foreign Affairs: oversees notably visa countries. issuance and entry, through its consulates abroad and border officers; ■­ the local labour authorities (“DIRECCTE”) notably under 2.2 What is the maximum period for which business the supervision of the immigration section of the Ministry visitors can enter your jurisdiction? of Interiors and of the Labour Ministry: administers work permit applications and carries out verification of labour and The maximum period of stay applying to Third-Country Nationals is immigration compliance through inspection on work sites; 90 days in any 180-day reference period.

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This maximum of 90 days includes any short stay in any Schengen The work permit exemption applies when the employee is seconded/ country and the day of entry and exit day from the Schengen area posted in France for this short-stay period in the following limited is integrated within this maximum period. The lengths of the scenarios: traveller’s proposed stay plus the duration of all prior stays within (i) within the framework of a service agreement drawn up the 180-day period must equal 90 days or less. between the foreign employer and the beneficiary of the Even holders of a Schengen “circulation visa” remain subject to this service established or operating in France; same Schengen limitation. (ii) for posting of employees between establishments belonging to the same company group or to companies of the same group; or 2.3 What activities are business visitors able to

France (iii) on the home employer’s own behalf without any contractor undertake? beneficiary in France. Employees in these categories who do not qualify for a visa waiver France does not have any written formal regulations defining programme for France (i.e. Third-Country Nationals subject to a “business visits” and related allowed business activities that can fall Schengen visa requirement) will still need to apply to the French out of the requirement for a specific permit or legal work permit consulate abroad for a short-term Schengen visa. In order to get such exemption. There is, however, usual tolerance as an exception visa, the visa application will have to be accompanied by documents to the general rule of all kind of work in France being subject to evidencing their eligibility to the work permit exemption. authorisation. Third-Country Nationals entering France as business visitors are limited to a range of activities which do not produce immediate 2.5 Can business visitors receive short-term training? economic value and are not billable activities, nor part of a product or service purchased by a client. As a result, this may include the Business visitors sent to France to receive short-term professional following activities: training (without any productive work) have to hold a training ■ attending punctual business meetings, discussions and agreement approved by French authorities (prior notification of the negotiations; training to the “DIRECCTE” or obtention of a Schengen visa from ■ making sales calls to potential clients as far as the business French consulate abroad upon presentation of a training agreement if visitor acts on behalf of a commercial entity located outside the business visitor is not under a waiver visa programme with France). of France; and/or Out of this specific training regulation, business visitors can only ■ attending seminars and conferences. gather information if remaining in the scope of allowed “business activities”. 2.4 Are there any special visitor categories which will enable business visitors to undertake work or provide 3 Immigration Compliance and Illegal services for a temporary period? Working The general rule is that any gainful/hands-on productive work or provision of services is not allowed in France for business visitors. 3.1 Do the national authorities in your jurisdiction operate However, a short-term work permit exemption system has been a system of compliance inspections of employers implemented in France, applicable as of November 1st 2016, for stay who regularly employ foreign nationals? of less than or equal to three months of Third-Country Nationals who are not already residing in France and who are sent to France, Yes, in France, the local labour inspection authorities carry for this limited period of up to 90 days, for specific listed salaried out inspections on work sites to verify labour and immigration activities in the following occupational fields: compliance with French regulations. 1. sporting, cultural, artistic and scientific events; 2. conferences, seminars and trade shows; 3.2 What are the rules on the prevention of illegal 3. film, audio-visual, entertainment and phonographic working? publishing production and distribution when the employee is an entertainer artist or technical personnel directly attached to Various French authorities such as labour inspection authorities, production or direction/making; police and tax and social security authorities can cooperate and 4. modelling and artistic posing; share information to ensure that Third-Country Nationals working 5. domestic workers during their employer’s stay in France; or in France hold appropriate authorisations to stay and work in France 6. educational activities performed on an occasional basis by and that home employers of seconded/posted employees comply invited professors. with relevant labour, social security and immigration regulations. This work permit exemption also applies to employees posted/ Labour inspection authorities have the authority to enter freely seconded to France (who are not on a local contract in France) for up any work premises to carry out inspections and interrogate the to 90 days maximum as auditors or experts (“operations of evaluation/ employees and employers. assessment, investigations, verifications or control due to regulatory/ normative requirements”) in the following limited professional fields: 3.3 What are the penalties for organisations found to be ■ information technology (“IT”); employing foreign nationals without permission to ■ management; work? ■ finance; Criminal sanctions applicable to the management of corporate ■ insurance; entities: ■ architecture; and ■ Imprisonment of up to five years (increased to up to 10 ■ engineering.

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years if the violation is conducted by an organised group of duty to ensure that the foreign worker has valid work and stay persons). authorisations. ■ A fine of up to EUR 15,000 per Third-Country National Even when foreign nationals are working in France on assignment/ concerned (sanctions increased to up to EUR 100,000 if the posting (no local contract), there is still a requirement to comply violation is conducted by an organised group of persons). with minimum labour law provisions and with social security Criminal sanctions applicable to the corporate entities itself: provisions, the French host company being jointly liable with the ■ A fine of up to EUR 75,000 per Third-Country National assigning home company. concerned.

■ Closure – either permanent or for a maximum duration of five 4.3 Do the immigration authorities undertake routine years – of one or more entities used to commit the violations. inspections of employers who sponsor foreign France ■ Closing down of several or all of the company’s branches or nationals, to verify immigration compliance? offices used to commit the offence. ■ Prohibition from pursuing the line of business that gave rise Yes, French authorities indeed undertake such routine inspections. to the violation(s). ■ Prohibition – either permanent or for a maximum duration 4.4 Do the immigration authorities maintain a list of of five years – from exercising, directly or indirectly, one or skilled occupations which may be filled by foreign more professional or social activities. nationals? ■ Placement under judicial surveillance for a duration of up to five years. Yes, French authorities maintain a list of job positions for highly ■ Exclusion from government contracts for up to five years. qualified positions “in short supply” (per activity sectors and ■ Confiscation of assets used in or resulting from commission geographical locations) exempted from the labour market test that of the offence. may be occupied by a Third-Country National. ■ Publication of the conviction in the press or on the internet. ■ Prohibition, for a period of up to five years, from receiving 4.5 Is there a recognition that some occupations may be public funding. in short supply and do special exemptions apply to Administrative sanctions: certain sectors and occupations? ■ Contribution to the immigration authorities (OFII) in the amount of 5,000 times the French minimum gross hourly Yes, but this corresponds to the above-mentioned job position reference for each illegal employee (contribution of EUR list only; however, the foreign national is still required to get the 17,700 for 2017) for a first offence (increased to 15,000 appropriate visa/residence permit to enter, work and stay in France. times this same minimum in case of second offence) – this contribution may be reduced to 1,000 times (EUR 3,540 for 2017) if the employer seeks to redress the infraction 4.6 Are there annual quotas for different types of spontaneously and only one employee is concerned. employment-related work permits or visas? ■ If either the Third-Country Employer or the French host entity or the Third-Country Employee has been non-compliant with No, there are no immigration quotas in France. the rules on employment or social security, the application for a work permit can be rejected on the grounds of such past 4.7 Are there restrictions on the number of foreign non-compliance (R 5221-20 Labour Code). workers an employer may sponsor, in relation to a maximum percentage of foreign workers in the 4 Corporate Immigration – General employer’s workforce?

The French provisions do not set any specific restrictions relating 4.1 Is there a system for registration of employers who to maximum percentage of foreign workers that an employer can wish to hire foreign nationals? recruit. However, French authorities will remain attentive to a possible high or increasing proportion of foreign workers that may Yes, French employers intending to hire a Third-Country National lead to controls and strict verification of immigration compliance already holding a French residence permit must notify the relevant with labour and immigration laws (e.g. the salary paid should not Prefecture of the intention to hire this individual at least two be lower than the one that would be paid to a French employee in business days prior to the hiring date. If the foreign national does the same position). not already hold a residence permit allowing them to work in France, the employer will have to sponsor a work permit application and/or 4.8 Are employees who are sponsored to work in your relevant visa with the relevant labour authorities (“DIRECCTE”) jurisdiction required to demonstrate language or French consulate abroad. Moreover, any foreign employer proficiency? seconding/posting employees in France must submit to French authorities through a dedicated online web portal (“SIPSI”) a prior Third-Country Nationals have to sign an integration contract notification of this posting. (“CIR”) with French authorities, including duty to carry out language courses if they cannot demonstrate language proficiency 4.2 Do employers who hire foreign nationals have except where they can benefit from a specific exemption related ongoing duties to ensure immigration compliance? to their specific status and/or temporary period of stay (e.g. Talent Passport holders, ICT temporary permits). French employers have to comply with the same duties as with the hiring of national workers. Moreover, they also have an ongoing

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■ foreign nationals with an innovative project recognised by 4.9 Are employees who are sponsored to work in your French authorities; and jurisdiction required to undergo medical examinations ■ foreign nationals who invest directly in France. before being admitted?

Employees are required to undergo a medical examination with 7 Temporary Work Permits “OFII” before being admitted to stay in France, except if eligible to an exemption applicable to specific categories (e.g. Talent Passport holders). 7.1 Is there an immigration category permitting the hiring of temporary workers for exchanges, career development, internships or other non-economic France 4.10 Are employees who are sponsored to work in your purposes? jurisdiction required to have medical insurance or are they entitled to any free public medical services? In France, there is a specific immigration category/visa dedicated to foreign nationals sent to France to attend training and internships Foreign employees seconded to France must be either covered by a (see question 2.5). There is also, for long-stay intra-group training social security certificate approval from their home country (if there sessions, a specific “ICT trainee” residence permit category with a is an agreement relating to social security between this home country specific pre-requirement to qualify for this category. and France) or will have to be otherwise registered with the French Moreover, France has signed with specific countries working- national social security authorities. Foreign employees placed on a holiday or youth mobility agreements. French contract and French payroll will have to be registered with the French national social security authorities. When registered with Third-Country Nationals who hold a student residence permit in the French social security scheme, they will benefit from national France are, except for specific nationalities, allowed to work part- medical coverage. When under a foreign social security scheme, time (up to 964 hours per year) without a prior work permit approval. their medical coverage will be ruled by this agreement. 7.2 Are there sector-specific temporary work permit categories which enable foreign workers to perform 4.11 Does the work permit system allow employees who temporary work? hold work permits to be seconded to a client site?

As a general rule, there are no sector-specific temporary work In order to second a foreign employee to a client site, the foreign permit categories. home employer must ensure that the employee gets an appropriate st authorisation/work permit corresponding to this category of However, since November 1 2016, a short-term work permit international service agreements. exemption system has been implemented in France for stay of less than or equal to three months of Third-Country Nationals who are sent to France in specific occupational fields (see question 2.4). 5 Highly Skilled Visas 8 Group or Intra-Company Transfer Work 5.1 Is there an immigration category which covers highly Permits skilled individuals?

The Immigration Law of March 7th 2016 , applicable since November 8.1 Does a specific immigration category exist for inter- 1st 2016, introduced a major reform of French immigration company transfers within international groups of provisions notably aiming to attract highly skilled workers. It companies? notably introduced the “Talent Passport” category (with a residence permit valid for up to four years) for specific highly skilled profiles Yes, in France there is a system of inter-company transfers, with a suppression of prior work permit authorisation for these implementing the Directive 2014/66/EU relating to conditions of categories and a faciliated immigration process. entry and residence of Third-Country Nationals in the framework of an intra-corporate transfer.

6 Investment or Establishment Work 8.2 What conditions must an employing company or Permits organisation fulfil in order to qualify as part of a group of companies?

6.1 Is there an immigration category which permits employees to be authorised to work based on The French host company must be a parent, sister or controlled investment into your jurisdiction? subsidiary of the home company and have the incapacity to provide an official document evidencing this condition. The Immigration Law of March 7th 2016 provides for specific immigration schemes dedicated to work based on investment in 8.3 What conditions must the employer fulfil in order France. to obtain a work permit for an intra-company group The “Talent Passport” category includes notably the following, each employee? category having its own eligibility requirements: ■ holders of a French Master’s degree creating a business in Pursuant to immigration provisions set in the Immigration Law of th France; March 7 2016, there are two possible options for intra-company mobility, each one having its own pre-requirements.

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The Talent Passport – employee on assignment – salarié en mission – permit is subject to the following cumulative conditions being met: 8.8 Can employees coming under the intra-company transfer route apply for permanent residence? ­■ employee seniority within the Group outside France of at least three months prior to applying; No, this immigration category does not allow applying for ■­ employee gross minimum salary of at least 1.8 times more than the French minimum salary (“SMIC”): EUR 31,974 per permanent residence. year in 2017); and ■ intra-company temporary transfer under a local French 8.9 What are the main government fees associated with employment of more than three months with an employer this type of visa? established in France. France The ICT seconded employee permit is subject to the following Visa fees, work permit fees and Prefecture fees. cumulative conditions to being met: ■ employee seniority within the Group outside France of at least three months prior to applying; 9 New Hire Work Permits ■ intra-company temporary transfer under an employment contract with the foreign home employer having real and 9.1 What is the main immigration category used for significant business activity outside France; employers who wish to obtain work permits for new ■ secondment of employee for a senior management position or hires? contribution of expertise to the French branch or subsidiary; ■­ no specific salary threshold, but remuneration level must Except for one specific Talent Passport categories, the main be equivalent to that of a local employee holding a similar immigration category for employers intending to hire a Third- position; Country Nationals is the “salaried” permit through the standard ■ the place of work must be the premises of the French host “introduction” process. company; and ■ the assignment must be up to three years maximum. 9.2 Is there a requirement for labour market testing, to demonstrate that there are no suitable resident workers, before a work permit can be issued to new 8.4 What is the process for obtaining a work permit for an hires? intra-company group employee?

Yes, a labour market test applies. Pursuant to the provisions of the Immigration Law of March 7th 2016 applicable since November 1st 2016, the intra-company employees meeting the conditions of eligibility (see question 8.3) are no longer 9.3 Are there any exemptions to carrying out a resident subject to obtaining a prior work permit authorisation. The applicant labour market test? directly files a visa application to the French consulate abroad. Yes, see question 4.4. 8.5 What is the process for the employee to obtain a visa under the intra-company group transfer category? 9.4 What is the process for obtaining a work permit for a new hire? The visa application must be filed by the employee at the French consulate with an application package containing all required The employer submits to DIRECCTE a complete application documentation for this category (including signed forms and a evidencing the absence of any available appropriate candidate in support letter from the employer/host company). The French France for this position. consulate is the single authority having jurisdiction to process the visa application. 9.5 What is the process for the employee to obtain a visa as a new hire? 8.6 How long does the process of obtaining the work permit and initial visa take? The application is submitted to DIRECCTE and, if approved, is transferred to OFII and then to the French consulate abroad. The As of submission of a complete application to the French consulate employee applies for a visa and upon entry in France, a residence abroad (requiring to first book an appointment with the French permit. consulate or its service provider in countries where the French consulate appointed such a service provider), processing time to get 9.6 How long does the process of obtaining the work the visa is about 15 to 20 business days in most countries. In practice, permit and initial visa for a new hire take? the processing time depends on the location where the application is filed and on the authorities’ workload at the time of application. Usually around three months or more.

8.7 How long are visas under the “initial” category valid 9.7 How long are initial visas for new hires granted for for, and can they be extended? and can they be extended?

The initial entry visa has a validity period of 90 days from issuance The initial entry visa has a validity period of 90 days from issuance and the employee must apply to the Prefecture upon entry in France and the employee must apply to the Prefecture upon entry in France for a residence permit valid up to three years. for a residence permit. Renewal is at the discretion of the authorities.

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9.8 Is labour market testing required when the employee 11.3 Do spouses and partners have access to the labour extends their residence? market when they are admitted as dependants?

Yes, if the employee changes employer/assignment. Access to the labour market is limited to specific categories of dependants.

9.9 Can employees coming as new hires apply for permanent residence? 11.4 Do children have access to the labour market?

France Yes, except those who entered on a temporary status such as ICT No, they do not. mobility.

12 Permanent Residence 9.10 What are the main government fees associated with this type of visa? 12.1 What are the conditions for obtaining permanent Visa fees, work permit fees and prefecture fees. residence?

Only specific categories are allowed this status (e.g. students and 10 Conditions of Stay for Work Permit ICT employees are not eligible). The main condition, except for Holders specific categories, is a five-year continuous residence with evidence of integration and adequate financial means.

10.1 What are the conditions of stay of those who obtain work permits and are resident on this basis? 12.2 Is it possible to switch from a temporary work visa to a work visa which leads to permanent residence? The nature and period of stay must comply with the conditions that allowed the granting of the permit originally. Any change of status In principle, yes, but this is at the discretion of the authorities and must be authorised by French authorities. is rarely granted.

10.2 Are work permit holders required to register with 13 Bars to Admission municipal authorities or the police after their arrival?

Yes, they must apply to the prefecture for a residence permit or at 13.1 What are the main bars to admission for work? OFII for validation of their visa, depending on their category. The main bars to admission result from failure to pass the labour market test. 11 Dependants

13.2 Are criminal convictions a bar to obtaining work 11.1 Who qualifies as a dependant of a person coming to permission or a visa? work on a sponsored basis? Yes, criminal convictions can lead to rejection of a work permit Both spouses and minor children qualify as dependants. or visa if related to a conduct which makes the foreign national a danger to national security, public order or health. 11.2 Do civil/unmarried or same-sex partners qualify as family members?

The partners must be married – same-sex marriage is recognised in France.

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Valerie Maricot Stephane Coulaux CMG LEGAL CMG LEGAL 25 rue Saint Ferdinand 25 rue Saint Ferdinand 75017 Paris 75017 Paris France France

Tel: +33 15 805 20 40 Tel: +33 15 805 20 40 Email: [email protected] Email: [email protected] URL: www.cmglegal.net URL: www.cmglegal.net France Valerie Maricot is a partner at CMG LEGAL, Paris, France. Stephane Coulaux is a partner at CMG LEGAL, Paris, France. Member of the Paris Bar since 2001, she received her legal Member of the Paris Bar since 1997, he frequently appears as education at the Universities of Paris (France). Ms. Maricot heads a speaker on current corporate immigration issues and foreign the Employment & Corporate Immigration Law department. She investments in France at national and international conferences. is recognised as one of the leading French business immigration Mr. Coulaux received his legal education at the Universities of Paris lawyers by Who’s Who Legal. She is a member of the American (France) and University of Kent, Canterbury (UK). He heads the Immigration Lawyers Association (AILA). Further information about Foreign Investment Department, focusing on areas such as corporate the firm is available at www.cmglegal.net and Ms. Maricot may be immigration, regulatory matters and international litigation. He is the contacted at [email protected]. IBA National Representative for France at the Immigration Committee and regularly appears on panels for the IBA, AILA, ABIL and CILS organisations. Mr. Coulaux is recognised as one of the leading French business lawyers by Who’s Who Legal. Further information about the firm is available at www.cmglegal.net and Mr. Coulaux may be contacted at [email protected].

CMG LEGAL is one of the few independent firms in France to have a business immigration-focused team. Since the late 1990s, Valérie Maricot and Stephane Coulaux have developed a corporate immigration law practice in France. They have been recognised as part of the leading French business immigration lawyers in France by Who’s Who Legal over the past years. They provide French immigration services (inbound), mostly for corporate and multinational clients, including as local counsel for foreign law firms.

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Germany

michels.pmks Rechtsanwälte Partnerschaft mbB Dr. Gunther Mävers

and the latter with the Federal Employment Office Bundesagentur( 1 Introduction für Arbei) and the Centre for the Recruitment of Foreign and Expert Staff (ZAV). Nevertheless, in order to facilitate proceedings further, 1.1 What are the main sources of immigration law in your a pre-approval application has been implemented effective July 1, jurisdiction? 2013 and since then it is possible to file an application upfront with the labour authorities in order to find out whether consent is needed The key immigration law in Germany is the German and – if so – will be granted if that would help to expedite matters. Residence Act (Aufenthaltsgesetz), which regulates granting of residence titles to foreign nationals and the German Citizenship 1.3 Is your jurisdiction part of a multilateral agreement Act (Staatsangehörigkeitsgesetz). Furthermore, the Employment between countries (EU/NAFTA/MERCOSUR) which Regulation (Beschäftigungsverordnung) sets out the conditions for facilitates the movement of people between countries the grant of residence titles for the purpose of employment (see below for employment purposes? for further details). Finally, both the Federal Ministry of Internal Affairs (Bundesministerium des Inneren) and the Federal Labour Germany is a member of the European Union and the European Office (Bundesagentur für Arbeit) have issued detailed instructions Economic Area both of which facilitate the movement of people on how to apply the aforementioned laws and regulations. between countries for employment purposes. Moreover, the EU has the authority to create some laws that affect As far as entry and residence are concerned, there are no limitations: all member nations directly (e.g., the visa waiver programme according to Art. 18 EU Treaty, any EU national is entitled to enter that waives the need for a visa for citizens of most industrialised any Member State and to remain there at will. In particular they do countries for a maximum stay of 90 days in any EU Member State) not require visas. EU-nationals, i.e. nationals of 28 Member States or the EU Visa Code (dealing with the conditions and procedures at present (Belgium, Denmark, Germany, Finland, France, Greece, for issuing visas for short stays in maximum of three months during Great Britain, Ireland, Italy, Luxemburg, the Netherlands, Austria, any six-month period and transit through the Member States of the Portugal, Sweden and Spain plus the following accession states: EU and the associated states applying the Schengen acquis in full). Estonia, Latvia, Lithuania, Malta, Poland, Slovenia, Czech Republic, Furthermore, there are some (sort of “grey”) areas where it cannot be Slovakia, Hungary and Republic of Cyprus (since May 1st, 2004), said anymore whether its source is European or national law. This is Bulgaria and Romania (since January 1st, 2007) and Croatia (since due to the fact that only the EU Treaties and EU Regulations apply July 1st, 2013)) – like the members of their family – therefore only with immediate effect in the Member States whereas EU directives have to keep their passports or any accepted alternative documents have to be transposed into national law in order to implement a with them and produce such document on request to the responsible certain framework set by the EU directives. public officials. Further, they will have to keep their passport with them when crossing the border and show it to public officials if requested, cf. also the Freedom of Movement Act for EU Nationals 1.2 What authorities administer the corporate immigration system in your jurisdiction? (“Freizügigkeitsgesetz-EU”) for further details. Like any German national, an EU national taking residence in With regard to corporate immigration matters, the following Germany also has to comply with the obligation to register with authorities are involved: the main immigration authorities the responsible resident’s registry office Meldebehörde(“ ”) concerned with applications for visas are the German Embassies within the registration periods that are stipulated by the Federal and/or Consulates abroad, as well as the local Foreigners Offices Registration Act (“Bundesmeldegesetz”), e.g. two weeks after (Ausländerbehörde) and the local labour offices Agenturen ( für taking residency, by presenting a certificate from the landlord Arbeit), respectively the Centre for the Recruitment of Foreign and (“Wohnungsgeberbestätigung”). The resident’s registry office will Expert Staff (Zentralstelle Auslands- und Fachvermittlung – ZAV) submit any information and supporting documents to the responsible in Germany. The process is as follows: except for nationals of some Foreigners Office. The latter may also request that the preconditions privileged states, a residence permit is to be obtained by means for the right to free movement of workers are proven as probable of a visa prior to entering Germany. When filing the application, within an appropriate period of time. The information required to the responsible diplomatic representation abroad, e.g. the German establish the probability can be submitted to the responsible registry Embassy or Consulate, is solely responsible for the applicant, which office when registration is made and – if required – the original nevertheless reconciles internally with the local Foreigners Office document besides a certified translation shall be presented.

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EU citizens have the right of residence for longer than three months days (single entry visa for one short-term stay). The visa for short- if they: term stays can also be granted for several stays for a period of ■ are employees or self-employed persons working in the host validity of up to five years, provided that the duration of stay does Member State without any limitation in time; not exceed a period of three months within a floating 180-day period ■ are employees or self-employed persons that are seeking (multiple entry visa for several short-term stays). employment for in principle no more than six months or longer if they can prove to be seriously looking for a position 2.3 What activities are business visitors able to and to have prospects of success of finding a job (these undertake? limitations are based and approved by EU case law); ■ are not in employment or are students or trainees and have Any activities implying dependant employment are not permitted.

sufficient resources and comprehensive health insurance Germany This particularly applies for, but is not limited to, the following cover without any limitation; or activities: ■ have the right of permanent residence (following legal residence of five years) without any limitation. ■ participation in trainings (except for intra-company trainings, cf. below for further details); Family members, regardless of their citizenship, accompanying or joining an EU citizen who satisfies these conditions also have the ■ organisation of training courses for the transfer of knowledge; right of residence for more than three months. ■ participation in the operational business or production; and On a par with EU nationals are the nationals of the states of the ■ performance of services. European Economic Area (Iceland, Liechtenstein, Norway); they However, under certain conditions, it is possible for the Foreigners also enjoy the freedom of movement and are solely obligated to get Office to grant a permit with regard to the training of foreign registered. specialists being employed by a group company in Germany without Finally, Swiss nationals are also entitled to move freely throughout the consent of the labour office. the European Union and are also on a par with EU nationals (Freedom of Movement Act of June 21, 1999). 2.4 Are there any special visitor categories which will Citizens of the EU Member States are – as a result of the provisions enable business visitors to undertake work or provide of community law (free movement of labour, Art. 45 TFEU) – services for a temporary period? exempted from the obligation to apply for and obtain a “residence permit for the purpose of employment”. A certificate of residency Since § 30 Employment Regulation stipulates that such activities right, respectively an EU residence permit, is issued for them and the are not considered to be employment, there is no need for those members of their family if requested. There are no administrative employees benefitting from the EU visa waiver programme to fees charged. obtain a residence title for the purpose of employment and they can therefore enter the country for stays up to 90 days within a reference period of 12 months without a visa and without the need for a work 2 Business Visitors permit for stays within the aforementioned time limit. In the case that the stay is going to last longer than the aforementioned period (of 90 days within a reference period of 12 months), it is not clear 2.1 Can business visitors enter your jurisdiction under a whether the non-visa nationals can benefit from the privilege of not relevant visa waiver programme? having to secure a work permit in case they have entered the country with the intention to stay. Whereas some say that this shall not be The grant of a business visa is regulated in the provisions of permitted since the conditions for the benefit would not apply for th Regulation (EC) No 810/2009 dated July 13 , 2009 establishing a stays lasting longer than 90 days, others argue that these nationals Community Code on Visas (Visa Code) as well as by the regulations have the privilege not only to enter visa-free, but also to file the of the Schengen Implementation Convention and the regulations application from Germany within 90 days upon arrival and in that issued under these Conventions. The 26 Member States of this case to stay on until the final decision will be rendered – cf. § 41 convention are Austria, Belgium, Czech Republic, Denmark, Ordinance Governing Residence (“Aufenthaltsverordnung”) – and Estonia, France, Finland, Germany, Greece, Hungary, Iceland, therefore to exclude them from entering visa and work permit-free Italy, Latvia, Lithuania, Liechtenstein, Luxembourg, Malta, the would be in contrast to that privilege. Against the aforementioned Netherlands, Norway, Poland, Portugal, Slovakia, Slovenia, Spain, background, it is recommended to at least inform the authorities to Sweden and Switzerland. For the time being, the provisions of respectively seek clearance upfront. the Schengen Convention are not partially or solely applicable for some of the new Member States that have joined the European 2.5 Can business visitors receive short-term training? Union effective May 1st, 2004 (Cyprus), effective January 1st, 2007 (Bulgaria, Romania) and effective July 1st, 2013 (Croatia). Finally, the UK, Ireland and Denmark have opted out and are not applying According to § 17 Employment Regulation, a residence permit the Schengen regime at all. can be granted for up to 90 days within a referencing period of 12 months to specialists being employed abroad if these employees are assigned to Germany for the purpose of internal training within 2.2 What is the maximum period for which business the company. Whereas the wording of the stipulation seems to visitors can enter your jurisdiction? suggest that only the participation in training is covered, the official instructions on how to apply the law as published by the labour Under certain circumstances, a foreigner can, on the basis of these administration clarify that participation as a trainer or teacher regulations, be granted a Schengen Transit Visa or a Schengen Visa shall also be covered. Nevertheless, engaging in any other kind of permitting short-term stays in the signatory states of the convention employment that is going beyond the intra-company training shall for no more than 90 days within a floating reference period of 180 not be permitted.

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3 Immigration Compliance and Illegal 4 Corporate Immigration – General Working 4.1 Is there a system for registration of employers who 3.1 Do the national authorities in your jurisdiction operate wish to hire foreign nationals? a system of compliance inspections of employers who regularly employ foreign nationals? No, there is not.

Depending on the provision in question, there are different 4.2 Do employers who hire foreign nationals have authorities in charge of enforcement of the German immigration ongoing duties to ensure immigration compliance? Germany laws, including, for instance, the Foreigners Office, the public prosecutor, or the customs authorities. Once sponsoring an application, the sponsoring company is obligated to provide all of the information as requested by the authorities in a 3.2 What are the rules on the prevention of illegal due and diligent manner by using a specific form; the so-called job working? description form that has to be signed and stamped. Moreover, the sponsoring company is obligated to inform the authorities of any Cf. below. change of the facts that might have an impact on the decision of the authorities, such as change of employer, change of job title, change of job location, decrease of salary, termination of employment, etc. 3.3 What are the penalties for organisations found to be employing foreign nationals without permission to work? 4.3 Do the immigration authorities undertake routine inspections of employers who sponsor foreign Within the last few years, sanctions against such commencement nationals, to verify immigration compliance? of work without a residence permit for the purpose of employment have been tightened. If no attention is paid to these sanctions, an There are audits that might be carried out by either the tax, social administrative fine of up to €500 can be imposed. In particular, security or financial authorities on a regular or irregular basis. according to § 404 Social Security Code III, fines up to the following amounts may be imposed: 4.4 Do the immigration authorities maintain a list of ■ €500 to employers that let other companies assign a skilled occupations which may be filled by foreign significant amount of staff to let them work on their premises nationals? whilst knowing or whilst they could have known that these companies do employ foreigners without having a legal Generally, no. Nevertheless, the authorities may carry out a job residence permit for the purpose of employment (§ 404 par. 1 market test if prescribed by the requirements of the visa category no 1, par. 3 Social Security Code III); in question and for the purpose of such test will check if the ■ €30 to employers that employ foreigners that do not have requirements for the grant of the residence title for the purpose of a legal residence permit for the purpose of employment or employment are given on a case-by-case basis. However, there provide false information with regard to salary, working time or other conditions of employment (§ 404 par. 2 no 3, par. 3 are certain privileges under the EU Blue Card. According to the Social Security Code III); and provisions of § 19 a German Residence Act and §§ 2 par 1 no. 2, par. 3, par.4 German Employment Regulation, an EU Blue Card (“Blaue ■ €5,000 to foreigners engaging in employment without having a legal residence permit for the purpose of employment (§ Karte EU”) may be granted if the applicant: 404 par. 2 no 4, par. 3 Social Security Code III). ■ holds a German university degree or a foreign university Moreover, as foreseen by Section 18 par. 6 Employment Regulation, degree that is recognised or comparable to a German university degree or has a comparable qualification that is the authorities may deny the grant or the extension of a residence proven by professional experience of at least five years; and permit for the purpose of employment in case either the applicant or the company have infringed the aforementioned stipulations and ■ earns a salary of at least ⅔ of the social security contribution have been condemned accordingly. Furthermore, the company may ceiling for the statutory pension scheme (e.g. €50,800 or 52% of said ceiling (e.g. €39,624) for certain job categories, e.g. be subject to exclusion from subsidies (§ 98b German Residence natural scientists, mathematicians, engineers, doctors, or IT Act) or exclusion from the award of public contracts (§ 98b German consultants. Residence Act) under certain conditions. The regular EU Blue visa category, as well as the one for shortage In individual cases, the person concerned can also be expelled from occupations, shall attract the talent needed. In Germany, like the country and a re-entry ban can be imposed. in most industrialised countries, it is not only the research sector Moroever, the employer may be subject to civil sanctions. In that struggles to attract first-rate recruits. Industry, too, is finding accordance with § 98a German Residence Act, an employer is it increasingly hard to secure graduates with so-called STEM obliged to pay the agreed remuneration to a foreigner whom he or she (science, technology, engineering, and mathematics) qualifications has employed who lacks a residence title for the prupose of gainful since, in addition to engineers, there is also a substantial demand for employment required pursuant to § 4 par. 3 German Residence scientists, mathematicians, and IT experts. Act. For the purpose of remuneration, it shall be assumed that the foreigner has been employed by the employer for three months. Moreover, it is foreseen that the agreed remuneration shall be 4.5 Is there a recognition that some occupations may be considered to be the usual remuneration unless the employer agreed in short supply and do special exemptions apply to a lower or higher remuneration with the foreigner on a permissible certain sectors and occupations? basis. The foreigner may institute legal proceedings for fulfilment of payment obligations before a German court for labour matters. Cf. above.

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without the need for a job market test on the basis of § 2 par. 1 4.6 Are there annual quotas for different types of no. 1 Employment Regulation in connection with § 19 Residence employment-related work permits or visas? Act. This is intended to enable highly qualified persons to be able to plan reliably, and to give them an incentive for establishment in Unlike many other countries, Germany has no such quotas and, Germany. hence, it does not make any difference if one files for a visa at the According to the legal definition of § 19 para. 2 Residence Act, beginning, during or at the end of the year. Subject to meeting the highly qualified individuals are especially: conditions for the grant of the permit under the visa category in question, the likelihood of receiving a visa are the same for each 1. scientists with special theoretical knowledge; or applicant. 2. teachers or professors of high standards or scientific assistants as high-standard people. Germany Against the background that Germany has a special economic and 4.7 Are there restrictions on the number of foreign social interest in staffing the top positions in the fields of economy workers an employer may sponsor, in relation to a maximum percentage of foreign workers in the and science, the employment of highly qualified persons is possible employer’s workforce? without prior permission of the labour authorities. However, the requirements of the law concerning foreigners must be complied No, there are not. with, especially with respect to integration into the standards of living in the Federal Republic of Germany and meeting living expenses without state subsidy. The Foreigners Office may grant 4.8 Are employees who are sponsored to work in your a permanent residence permit but is not obligated to do so; the jurisdiction required to demonstrate language foreigner is only entitled to a decision without abuse of discretion. proficiency?

Generally no. 6 Investment or Establishment Work Permits 4.9 Are employees who are sponsored to work in your jurisdiction required to undergo medical examinations before being admitted? 6.1 Is there an immigration category which permits employees to be authorised to work based on investment into your jurisdiction? No, they are not. Given the lack of any investor visa category, investors and 4.10 Are employees who are sponsored to work in your freelancers from third countries must comply with the immigration jurisdiction required to have medical insurance or are laws related to self-employment. Any third-country national must they entitled to any free public medical services? file an application for a residence permit to take up an economic activity (including employment and self-employment) in Germany. Applicants must prove to have sufficient health insurance coverage Based on the provision of § 21 Residence Act, this includes during the period of stay. certain restrictions for the grant of residence permits where self- Proof of having sufficient health insurance that is at least equivalent employment residence permits may only be granted if: to German standards needs to be filed (otherwise the permit will not ■ there is an economic interest or a local requirement; be granted). Against this legal background, there are two options: ■ the activity is expected to have positive effects on the ■ asking the insurance company to ideally fill-in the sample economy; and certificate provided by the Foreigners Office of the cityof ■ the financing of the implementation is assured by equity or Berlin or to issue a certificate that explicitly states that there promised credit. is sufficient coverage as to the aforementioned standard (level st of coverage that is at least equivalent to German standards); Until July 31 , 2012, the first two preconditions were regarded as or met if at least €250,000 was invested and five jobs had been created. st ■ sign up a new contract with a company that provides such However, since August 1 , 2012, these thresholds no longer exist coverage for Germany. in order to attract more entrepreneurs to invest in Germany and to facilitate the investment in Germany. Moreover, and differing from the previous stipulation, since August 1st, 2012, an economic interest 4.11 Does the work permit system allow employees who as opposed to a higher economic interest and a local requirement as hold work permits to be seconded to a client site? opposed to a particular local requirement does suffice. However, the following criteria still applies to the assessment of the preconditions: Generally no, but this depends on the visa category in question and carrying capacity of the business idea; entrepreneurial experiences the facts of the case. of the foreigner; and amount of the capital investment. To be able to make an accurate assessment, the Foreigners Office ordinarily 5 Highly Skilled Visas asks for an expert’s statement from a competent authority, e.g., the local Chamber of Industry and Commerce. Foreigners aged over 45 should be issued with a residence permit only if they possess 5.1 Is there an immigration category which covers highly adequate provision for old age. skilled individuals? A residence permit for the purpose of self-employment may also be granted if special privileges apply according to agreements under If the conditions for the highly skilled visa category are met, the international law on the basis of reciprocity, cf. § 21 par. 2 German Foreigners Office does not require consent from the labour authorities Residence Act. and can grant a settlement permit (“Niederlassungserlaubnis”)

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Moreover, according to § 21 par. 2a of the German Residence Act, a residence permit for the purpose of self-employment may also be 8.2 What conditions must an employing company or granted to a foreigner having a degree from a German university or organisation fulfil in order to qualify as part of a group of companies? a comparable German educational institution without meeting the aforementioned conditions. The same applies for the holder of a residence permit for research or scientific purposes (§§ 18 and 20 of The conditions for an intra-company transfer are laid down by the German Residence Act) if the envisaged activity is connected to Section 10 Employment Regulation that stipulates as follows: the educational background. “§ 10 International intra-company transfer, projects abroad[:] In principle, the period of validity of the residence permit is [f]or an employment for a period of up to three years[,] the consent limited to a maximum of three years according to § 21 par. 4 for the grant of a residence permit can be given without a priority Germany Residence Act. However, after three years, a settlement permit check as laid down in § 39 para 2 sentence 1 no. 1 and 2 AufenthG (“Niederlassungserlaubnis”) may be issued where the foreigner has [Residence Act][;] successfully performed the planned activity and the subsistence of 1. if, within an intra-company transfer inside a worldwide-acting the foreigner and the dependants living with him or her as a family company or group company, skilled labour is concerned who unit of whom he or she is required to support are supported by provides university degree or higher education or similar adequate income. qualifications[; or] 2. if an employee of a worldwide-acting company or group company who is working abroad must necessarily be 7 Temporary Work Permits transferred to the inland establishment of the company or group company in order to ensure the preparation of a project abroad, if the employee is responsible for the realization of 7.1 Is there an immigration category permitting the the project abroad and provides a qualification which is hiring of temporary workers for exchanges, career comparable to the qualification of skilled German workers development, internships or other non-economic and he/she, moreover, provides a specific and, above all, a purposes? company-related knowledge. In the cases specified in Sentence 1 no. 2, the consent for the grant There are various categories dealing with the hiring of temporary of a residence permit can also be given for the skilled labour of the workers for exchanges, career development, internships or other initiator of the project abroad if such skilled staff is temporarily non-economic purposes in Germany, such as: entrusted with the preparation works by the contractor, if the project ■ the religious activity or charity visa category; assignment involves a respective obligation for the contractor and ■ the au-pair visa category; or such employment is required with view to a future engagement ■ the internship visa category, etc., within the finalised project. Sentence 2 is also applicable ifthe contractor has no branch or establishments abroad.” each of them following different requirements. According to the implementing provisions of the Foreigners Office, a worldwide-acting company is a company whose foreign business 7.2 Are there sector-specific temporary work permit (holding company or subsidiary) holds a capital share of at least categories which enable foreign workers to perform 50%. An intra-company transfer is an issue only when foreign temporary work? employees are transferred to Germany and when there is a transfer of German employees abroad to (roughly) the same extent. With a There are various categories dealing with temporary work permit view to the contractual implementation, an employment contract of a categories in Germany, such as: foreign employee is normally either supplemented by a secondment ■ management and executive visa category; agreement or suspended for the period of transfer. In any case, ■ academics visa category; the return of the employee must have been previously determined, although no specific date for the return needs to be given. ■ company specialist visa category; The idea of an intra-company transfer is that no examination of ■ EU Blue Card visa category; and the labour market must be carried out in the event of a transfer of ■ ‘any employment’ visa category for some privileged personnel from abroad to Germany and from Germany abroad that nationals, takes place between the companies of the employer or the group it each of them following different requirements. belongs to. The exchange of personnel needs to be roughly the same in terms of the number of employees involved so there is no impact on the German labour market – “10 in / 10 out”. 8 Group or Intra-Company Transfer Work Permits 8.3 What conditions must the employer fulfil in order to obtain a work permit for an intra-company group 8.1 Does a specific immigration category exist for inter- employee? company transfers within international groups of companies? Cf. above.

If the conditions for the intra-company transfer visa category are 8.4 What is the process for obtaining a work permit for an met, the Foreigners Office does not require consent from the labour intra-company group employee? authorities and can grant the residence title for the purpose of employment without the need for a job market test. In practice, it is not always easy to prove that the conditions for an intra-company transfer have been met when the application is filed

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for the first time and therefore such applications should be prepared carefully. In particular, the following documents are required: 9.2 Is there a requirement for labour market testing, to demonstrate that there are no suitable resident ■ curriculum vitae (both in English and German if possible); workers, before a work permit can be issued to new ■ photographs; hires? ■ copy of the identification card/passport; ■ job description form; This cannot be generally answered and depends on the visa category ■ offer of employment/employment contract/assignment letter; in question. ■ health insurance coverage equivalent to German standards; ■ excerpt from the commercial registry; 9.3 Are there any exemptions to carrying out a resident

labour market test? Germany ■ annual report of the company; and ■ report on the personnel exchange. Cf. above. In addition, the annual report of the company and the report on the personnel exchange between the companies involved must be filed 9.4 What is the process for obtaining a work permit for a on an annual basis. new hire?

8.5 What is the process for the employee to obtain a visa Unless nationals of privileged states that do benefit from the EU under the intra-company group transfer category? visa waiver programme are concerned (entitling these nationals to visa-free entry and stays up to 90 days within a floating period Cf. above. of six months), the residence permit is to be obtained by means of a visa before entering Germany. The responsible diplomatic representation abroad, respectively the local Foreigners Office, is 8.6 How long does the process of obtaining the work solely responsible for the applicant, which nevertheless reconciles permit and initial visa take? internally with the Federal Employment Office (Bundesagentur für Arbeit), respectively the local labour office (until April 30th, 2011) The intra-company transfer application process is likely to take and the Centre for the Recruitment of Foreign and Expert Staff (ZAV) place 6–10 weeks after all documentation has been compiled and (since May 1st, 2011). Moreover, effective March 5th, 2013, there is the application has been completely filed. no need for the Embassy or Consulate to seek consent from the local Foreigners Office in case of an application with regard to a residence 8.7 How long are visas under the “initial” category valid permit for the purpose of (dependant) employment – in this case, the for, and can they be extended? file will be directly transferred to the local labour authorities via the Federal Administration Office Bundesverwaltungsamt ( ) when The permit will be granted for a period of up to three years and there the decision has been made. The latter does not, however, apply is generally no extension possible. in case the applicant has previously been staying in Germany or is entitled to file the application in Germany under the EU visa waiver programme (the latter does, however, only apply to nationals from 8.8 Can employees coming under the intra-company transfer route apply for permanent residence? some countries including, for instance, the USA and Australia). Since the last major reform of the German immigration law system st No, they cannot. that came into effect on January 1 , 2005, residence and work permits are granted in the form of one single permit in the name of a residence permit for the purpose of employment (Aufenthaltstitel zur 8.9 What are the main government fees associated with Ausübung einer Beschäftigung), which is granted by the Foreigners this type of visa? Office, after the Federal Employment Office, respectively the regional labour office, has given its consent to the grant ifso The fee for a so-called national visa (residence permit for long-term required. Hence, unlike the previous proceeding, there is no need stays of more than three months – e.g. intended studies) amounts to for the applicant to deal with two different authorities or to file two €100, respectively, and €110 if the visa shall cover a period of more separate applications (“one-stop-government”). than a year; in the case of filing for extension, the fee amounts to €65 Until April 30th, 2011, the decision on the approval to engage in for a period of less than three months, €80 for a period of more than employment was made by the labour office, where the place of three months, and €90 in case the permit needs to be altered because employment of the person concerned is located. The place of of the purpose of the stay changes including its extension, cf. § 45 employment is the place where the company’s domicile is situated Ordinance Governing Residence (“Aufenthaltsverordnung”). In the or where the head office of an employer is situated. Concerning case of the grant of a fictional permit, an additional fee of €20 (§ 47 employments at various work places, the company’s domicile is the par. 1 no. 8 Ordinance Governing Residence) applies. place where the correspondent running the payroll for the employer is located. Since May 1st, 2011, the Centre for the Recruitment 9 New Hire Work Permits of Foreign and Expert Staff is competent for the decision on the consent; it will nevertheless touch base with the local labour office located in the place of the intended employment and ask them 9.1 What is the main immigration category used for to carry out the job market test if needed. However, in practice, employers who wish to obtain work permits for new what has been meant to facilitate proceedings actually sometimes hires? complicates matters further, especially when there is no feedback given by the authority officially in charge with regard to the status Cf. question 7.2. quo of the matter or the reason for a decision of such information is

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pending with the labour authorities. On the other hand, to deal with (Fiktionsbescheinigung) that allows its holder to stay on until the a centralised agency having detailed and special knowledge is surely decision with regard to the extension will be rendered. not a disadvantage and helps a lot to professionalise and expedite proceedings. In addition, in order to facilitate proceedings further, 9.8 Is labour market testing required when the employee a pre-approval application has been implemented effective July 1st extends their residence? 2013, and since then it is possible to file an application upfront with the labour authorities in order to find out whether consent is needed Generally not, but this depends on the visa category in question and and, if so, will be granted. the facts of the case. Consent may be given for the duration of the employment up to a period of three years, cf. § 34 para 2 Employment Regulation.

Germany However, it is common practice to grant such consent initially for 9.9 Can employees coming as new hires apply for a period of one year only, regardless of the intended duration of permanent residence? the employment relationship. Nevertheless, filing for extension is possible of course and any applicant having applied for such Employees coming as new hires cannot immediately apply for extension with a valid permit will be given a fictional permit permanent residence. The settlement permit as regulated in § 9 (Fiktionsbescheinigung) that allows its holder to stay on until the German Residence Act (Niederlassungserlaubnis) is a permanent decision with regard to the extension will be rendered. residence permit that shall be granted to foreigners in order to enable them to stay in Germany and to keep their centre of life in Germany The approval to engage in employment may be limited with regard both for commercial and family-related reasons. to: ■ the job-related occupation; ■ the employer; 9.10 What are the main government fees associated with this type of visa? ■ the district of the labour office; and ■ the situation and the allocation of the working hours. The fee for a so-called national visa (residence permit for long-term In order to expedite proceedings, effective July 1st 2013, the stays of more than three months – e.g. studies – is intended) amounts to following is stipulated by section 36 Employment Regulation: if €100–€110, respectively, if the visa shall cover a period of more than the labour authorities do not replyto the query within two weeks a year; in the case of filing for an extension, the fee amounts to €65 for by requesting additional information or by complaining that the a period of less than three months, €80 for a period of more than three employer has not sufficiently or not timely given the information months and €90 in case the permit needs to be altered because of the requested by the authorities, the consent shall be deemed to be purpose of the stay changes including its extension, cf. § 45 Ordinance given. Moreover, the labour authorities shall check upfront if the Governing Residence (Aufenthaltsverordnung). In case of the grant of conditions for the consent are given if the employer has provided the a fictional permit, an additional fee to the amount of €20 (Section 47 information requested (in particular with regard to salary, working par. 1 no. 8 Ordinance Governing Residence) applies. time and other conditions of employment) and if hereby proceedings can be expedited. 10 Conditions of Stay for Work Permit Holders 9.5 What is the process for the employee to obtain a visa as a new hire? 10.1 What are the conditions of stay of those who obtain Cf. above. work permits and are resident on this basis?

Cf. above. 9.6 How long does the process of obtaining the work permit and initial visa for a new hire take? 10.2 Are work permit holders required to register with The process usually lasts between eight and 12 weeks once all municipal authorities or the police after their arrival? documents have been submitted, but can be shorter or even much longer depending on how busy the authorities of the city where the Like any German national, a foreign national taking residence application is filed are. For those nationals having the privilege to in Germany also has to comply with the obligation to register file from within Germany, filing abroad might therefore be an option with the responsible resident’s registry office Meldebehörde ( ) to consider if the local authorities are too busy (the latter generally within the registration periods that are stipulated by the Federal being the case for the big international cities such as Frankfurt and Registration Act (Bundesmeldegesetz), e.g. two weeks after Berlin). taking residency, by presenting a certificate from the landlord (Wohnungsgeberbestätigung). 9.7 How long are initial visas for new hires granted for and can they be extended? 11 Dependants

Consent may be given for the duration of the employment up to a period of three years, cf. § 34 para 2 Employment Regulation. 11.1 Who qualifies as a dependant of a person coming to However, it is common practice to grant such consent initially for work on a sponsored basis? a period of one year only, regardless of the intended duration of the employment relationship. Nevertheless, filing for extension As a matter of principle, family reunification shall be limited to is possible of course and any applicant having applied for such the spouse and children of the holder of a residence title whereas extension with a valid permit will be given a fictional permit the grant of a residence title to other family members (such as, in

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particular, parents) shall be limited to some very exceptional cases and their children do consequently not qualify as dependants, they are the requirements of which are seldom met in practice. For instance, considered a de facto family as a matter of case law. the authorities may consider the grant of a residence title to a parent if otherwise there would be no one abroad being able to take care of 11.4 Do children have access to the labour market? the family member and if the family member would not be able to live on his or her own without assistance or (nursery) care. Cf. above.

11.2 Do civil/unmarried or same-sex partners qualify as family members? 12 Permanent Residence

Generally not, unless the same-sex partnership is registered in Germany 12.1 What are the conditions for obtaining permanent accordance with the German laws. residence?

11.3 Do spouses and partners have access to the labour The settlement permit allows the holder to take up employment market when they are admitted as dependants? (without the need for the Foreigners Office to require consent from the labour office prior to the grant) and may only be supplemented Traditionally, the right to spousal employment had been linked to with a subsidiary provision in those cases that are expressly permitted the right of employment of the applicant or holder of the (main) by law. According to § 9 German Residence Act, a foreigner shall permit. Hence, it had been permitted for the spouse to engage in be granted the settlement permit provided that: employment to the same extent as the applicant or holder of the 1. he or she has held a residence permit for five years; permit. Whenever the applicant or holder needs the consent of the 2. his or her livelihood is secure; labour authorities or has been restricted to a certain region, the same 3. he or she has paid compulsory or voluntary contributions is applied to the spouse. Whenever the applicant or the holder of into the statutory pension scheme for at least 60 months or the residence permit does not need any such consent to engage in furnishes evidence of an entitlement to comparable benefits employment will be fully permitted to the spouse as well. However, from an insurance or pension scheme or from an insurance where marital cohabitation has lawfully existed in Germany for company; time off for the purposes of childcare or nursing at at least two years and the residence permit of the foreigner whom home shall be duly taken into account; the subsequently immigrating dependants are joining had not been 4. the granting of such residence permit is not precluded by subject to a subsidiary provision or extension of his or her residence reason of public safety or order, giving full consideration to is not excluded by law or by an ordinance, the spouse is entitled to the severity or the nature of the breach of public safety or also engage in employment. order or the danger emanating from the foreigner, with due regard to the duration of the foreigner’s stay to date and the Over the last few years, some exceptions to this principle have been existence of ties in the federal territory; introduced in several steps to make it more attractive for namely researchers and highly-skilled migrants to migrate to Germany. In 5. he or she is permitted to be in employment, insofar as he or she is in employment; a first step, effective January 1st, 2009, the spouses of holders of a highly skilled permit for researchers and scientists have also been 6. he or she is in possession of the other permits that are given the right to engage in employment without any limitation required for the purpose of the permanent pursuit of his or her economic activity; whatsoever. Effective August 1st, 2013, at the same time of the implementation of the EU Blue Card visa category and some other 7. he or she has an adequate knowledge of the German language; facilitations as described above, the right to spousal employment 8. he or she possesses a basic knowledge of the legal and social has been extended to spouses of the holder of either a residence system and the way of life in the federal territory; and permit for highly-skilled migrants or a EU Blue Card, whereas for 9. he or she possesses sufficient living space for himself or all other spouses the aforementioned conditions still apply. herself and the members of his or her family forming part of his or her household. Since September 6th, 2013, the right to spousal employment is fully granted to all family members of a foreigner regardless of the reason Furthermore, the grant of a settlement permit is foreseen by law in the holder of the main permit is entitled to reside in and engage in the following cases: employment in Germany, cf. Section 27 par. 5 German Residence ■ For highly qualified foreigners, there are justifiable grounds to Act. However, this generally only applies in the case that the holder assume that integration into the way of life which prevails in the of the main permit has a permit entitling him to stay in Germany Federal Republic of Germany and the foreigner’s subsistence for more than one year. This shall allow all family members in the without state assistance are assured; this applies in particular for: researchers with special technical knowledge; teaching same way to contribute through their own employment to secure personnel in prominent positions; or scientific personnel in the livelihood in Germany and sets another incentive to foreigners prominent positions (§ 19 German Residence Act). and their spouses to migrate to Germany. However, the grant of the ■ For holders of a EU Blue Card, if they have held a position unlimited right to the spouse might result in the spouse – traditionally of employment with a EU Blue Card for at least 33 months referred to as the dependant in this context also – having more rights and have made mandatory or voluntary contributions to the than the holder of the main permit in a case where the latter has been statutory pension insurance scheme for that period and if they granted the permit under a visa category that comes with limitations have basic German language skills, such period being reduced as to the employer, activity or region in Germany. to 21 months if the foreigner has a sufficient command of the With regard to the right of employment, the same conditions for German language (§ 19a par. 6 German Residence Act). spouses goes for other dependants, such as the children and/or parents ■ For certain foreign family members (e.g. a German national of the permit holder. Dependants in the meaning of the German spouse, minor, unmarried child of a German, parent of a minor, Residence Act are the parents and their children regardless of whether unmarried German for the purpose of care and custody), if he the parents are married or living in a same-sex registered civil union or she has been in possession of a residence permit for three years, the family unit with the German continues to exist in partnership. Even though the partners of an extra-marital cohabitation the federal territory. There are no grounds for expulsion if the

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foreigner has a sufficient command of the German language the Foreigners Office without having to request the consent from (§ 28 par. 2 German Residence Act). the labour office and is not limited, neither in time nor with regard ■ If the Federal Ministry of the Interior or the body designated to the activity or the employer. Whereas the latter is of course an by the Federal Ministry of the Interior to uphold the political advantage for the holder of the permit, it may be disadvantageous interests of the Federal Republic of Germany has declared for the employer since it obviously facilitates changing employers. that the foreigner is to be admitted (§ 22 sentence 3 German Residence Act). Since August 1st, 2012, there are facilitations with regard to the grant 12.2 Is it possible to switch from a temporary work visa to a work visa which leads to permanent residence? of a settlement permit to holders of a German degree. According to § 18 b of the German Residence Act, a settlement permit shall Yes, this is possible.

Germany also be granted to a foreigner with a German university degree or a German degree from a comparable institution if the applicant: 1. is in possession of a residence permit for the purpose of 13 Bars to Admission employment; 2. is adequately employed given his academic background; 13.1 What are the main bars to admission for work? 3. has contributed to the German pension scheme for at least 24 months; and The main bar to admission for work is the processing time. 4. has complied with the other general conditions for the grant of a settlement permit. If an employee meets the conditions for the grant of a settlement 13.2 Are criminal convictions a bar to obtaining work permit, he/she may remain in the country indefinitely and apply permission or a visa? for permanent status. Differing from a residence permit for the purpose of employment, the settlement permit can be granted by Generally not, but this depends on the circumstances of each case.

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Dr. Gunther Mävers michels.pmks Rechtsanwälte Partnerschaft mbB Hohenstaufenring 57 50674 Cologne Germany

Tel: +49 221 50003 606 Email: [email protected] URL: www.michelspmks.de

Dr. Mävers is an equity partner with michels.pmks Rechtsanwälte Germany Partnerschaft mbB, a boutique law firm with eight lawyers (and seven labour lawyers) based in Cologne and operating throughout Germany. Dr. Mävers, a registered employment law specialist, is also a founding partner of the firm. Since the beginning of his law career, hehas been active in all fields of labour and employment law. Among his specialisations is the legal assistance of international companies, especially from the Anglo-American world, concerning cross-border matters with all the related labour law issues. Thanks to his world- wide network of independent partners, Mr. Mävers also coordinates labour law matters for clients abroad together with foreign counsel. Amongst others, he consults companies from the IT and automotive sector. Beyond that, Dr. Mävers has accumulated considerable experience in the field of corporate immigration law and citizenship law. He is also a board member of Visalaw International, as well as a board and global member of the Alliance of Global Business Immigration Lawyers and regularly speaks at the sessions of the Immigration & Nationality Law Committee of the International Bar Association, where he has been appointed Chair. Dr. Mävers speaks German, English and French.

michels.pmks stands for personal legal assistance at the highest level. The focus of our activity lies in the areas of labour and health law. We offer you a personal face-to-face service. Diligence and promptness characterise our modus operandi. By teaming up with a highly specialised, manageable unit, we are convinced that this way we meet the interests and needs of our clients, offering them the highest service quality at reasonable prices. We are a well-practised team with common principles. The five founding members have been working together for many years. Not only do we, as partners and associates, appreciate each other’s professional competence but we can also fully rely on each other. We attach great importance to a working atmosphere of professionalism, individualism and colleagueship. On this basis, we successfully complete major projects hand-in-hand with our clients. michels.pmks is well connected nationally and internationally. In cross-border cases, we work with carefully selected international partners that we have known personally for many years. As a member of the networks Visalaw International and Alliance of Business Immigration Lawyers, michels. pmks is also well positioned in the field of international personnel deployment. Even in the case of legal issues beyond our specialisation, we can rely on our network of reputable experts, allowing us to offer our clients tailor- made solutions.

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Hong Kong

Lewis Silkin Antonia Grant

Kong for tourism or business without a prior visa application. 1 Introduction Dependent on the nationality of the visitor, the period of entry may range from seven days to 90 days, for example, for US or Australian 1.1 What are the main sources of immigration law in your nationals, or through to 180 days for British nationals. jurisdiction? 2.2 What is the maximum period for which business The ‘Basic Law’, the Immigration Ordinance (Chapter 115) and the visitors can enter your jurisdiction? Immigration Regulations (Chapter 115A) of the Hong Kong Special Administrative Region (HKSAR). These cover issues such as right For the majority of nationalities, the maximum period of visa- of abode, immigration control in general and illegal immigration. free entry to the HKSAR as a visitor is 90 days. However, British They also cover conditions of stay, breach of conditions and the nationals may enter and remain visa-free for up to 180 days. penalties for illegally employing persons or persons working illegally in Hong Kong. 2.3 What activities are business visitors able to undertake? Regulatory requirements, policy and procedure for entry with an employment category visa are not addressed in the Immigration Business visitors must confine their activities to those permitted Ordinance and requirements tend to be set through internal as a business visitor in the HKSAR. The permitted activities are government policy found on the Hong Kong Immigration set out in Regulation 2(1) of the Immigration Regulations (Chapter Department’s (HKID) website (www.immd.gov.hk). Such policy 115A) which stipulates that permission given to a visitor entering is often amended and is implemented in response to business or the HKSAR shall be subject to the following conditions of stay: economic needs of the HKSAR. ■ he/she shall not take employment, whether paid or unpaid; ■ he/she shall not establish or join in any business; and 1.2 What authorities administer the corporate immigration system in your jurisdiction? ■ he/she shall not become a student at a school, university or other educational institution. The HKID is responsible for enforcing immigration control, law and In addition, the Regulation strictly limits the types of business- policy. The Department is solely responsible for the processing and related activity that a visitor to the HKSAR may engage in, which approval of visa applications for employment in Hong Kong and include: is overseen by the Security Bureau which ultimately reports to the ■ negotiation and concluding contracts or submitting tenders; Chief Secretary for Administration through to the Chief Executive ■ examining or supervising the installation/packaging of goods of the HKSAR government. or equipment; ■ participating in exhibitions or trade fairs (except selling 1.3 Is your jurisdiction part of a multilateral agreement goods or supplying services direct to the general public or between countries (EU/NAFTA/MERCOSUR) which constructing exhibition booths); facilitates the movement of people between countries ■ settling compensation or other civil proceedings; for employment purposes? ■ participating in product orientation; and ■ attending short-term seminars or other business meetings. No. The HKSAR is not party to any such multilateral agreement Persons contravening conditions of stay shall be guilty of an covering the facilitation of movement of people. offence. If convicted, an individual may be subject to a maximum fine of HKD 50,000 and imprisonment for two years under Section 2 Business Visitors 41 of the Immigration Ordinance (Chapter 115).

2.1 Can business visitors enter your jurisdiction under a 2.4 Are there any special visitor categories which will relevant visa waiver programme? enable business visitors to undertake work or provide services for a temporary period?

Yes. Foreign nationals from around 170 countries can enter Hong No. An individual must apply for a Hong Kong Employment Visa

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in order to undertake work or provide services within the HKSAR, HKSAR in order to take employment. Employers must ensure that even for a limited temporary period. such foreign national employees hold the proper work authorisation from the HKID.

2.5 Can business visitors receive short-term training? Other duties also include reporting to the HKID on the termination of employment of a foreign national visa holder and changes due Yes. Provided that they are not remunerated, a business visitor can to the corporate entity on restructuring, or a change of name of the undertake short term training within the permitted period of entry as sponsoring entity. An employer will also have the responsibility for a business visitor. repatriation to the country of origin upon expiry of the employment visa in the event that an individual fails to depart the HKSAR.

3 Immigration Compliance and Illegal 4.3 Do the immigration authorities undertake routine Hong Kong Working inspections of employers who sponsor foreign nationals, to verify immigration compliance?

3.1 Do the national authorities in your jurisdiction operate The HKID does not operate a systematic process of compliance a system of compliance inspections of employers who regularly employ foreign nationals? inspections of employers of foreign nationals. It will, however, undertake random unannounced compliance visits in certain industry The HKID does not operate a systematic process of compliance sectors or where illegal employment of foreign nationals is suspected. inspections of employers of foreign nationals. It will, however, Random ‘spot check’ compliance raids will often taken place in undertake random unannounced compliance visits in certain industry industry sectors considered to be ‘risk’ sectors such as compliance, sectors or where illegal employment of foreign nationals is suspected. food and beverage and massage parlours where the work is All employers of foreign nationals are vetted via the documentation considered to be low or unskilled labour. submitted during the visa application process and due diligence is Professional sector employers are less likely to be visited by undertaken to ensure that the company is properly established and Compliance Officers unless there is a strong suspicion of systematic trading in the HKSAR. Start-up companies tend to be more highly non-compliance. vetted during this process and questions may be raised as to financial viability, the staffing arrangements and business capability. 4.4 Do the immigration authorities maintain a list of skilled occupations which may be filled by foreign nationals? 3.2 What are the rules on the prevention of illegal working?

Whilst there is no uniform guidance on prevention of illegal working No. Applications for employment visas are assessed on a case- requirements, the HKID requires all employers to properly ascertain by-case basis taking into account the justification for employing a a prospective employee’s legal entitlement to work in the HKSAR foreign national in the role. Whilst the HKID will focus on ensuring through verifying immigration status. It is advisable to keep on file that the resident labour market is not saturated with foreign labour, documentary evidence of such right to work. it will also adjust immigration policy in line with socio-economic needs in the HKSAR. This year the HKSAR government has elected to adopt the recommendations of the Audit Committee in relation to immigration applications and prevention of illegal working and we are likely to 4.5 Is there a recognition that some occupations may be see a shift towards a greater focus on compliance. in short supply and do special exemptions apply to certain sectors and occupations?

3.3 What are the penalties for organisations found to be Employment visas are generally granted to individuals who employing foreign nationals without permission to work? hold degree-level qualifications and have either professional/ managerial experience or specific experience of the industry sector Upon conviction, an employer may be liable to a fine of that cannot be sourced in the resident labour market. But unlike HKD350,000 and three years’ imprisonment under Section 17I of some jurisdictions, the HKID does not specifically recognise the Immigration Ordinance (Chapter 115). shortage occupations within the HKSAR and will not grant industry exemptions on that basis. In addition to the General Employment visa category, the HKID 4 Corporate Immigration – General operates two specific employment visa categories: Foreign Domestic Helpers; and Imported Workers. The latter category, whilst not in itself an industry exemption, enables employers to take foreign 4.1 Is there a system for registration of employers who wish to hire foreign nationals? national workers where they are struggling to find lower-skilled labour within the resident labour market. No, unlike many other jurisdictions, the HKID does not operate a system for registration of employers hiring foreign nationals. 4.6 Are there annual quotas for different types of employment-related work permits or visas?

4.2 Do employers who hire foreign nationals have ongoing duties to ensure immigration compliance? The immigration system in the HKSAR is relatively flexible and there are no quota-based limitations on employment visas for professional and managerial positions. Similarly, there are no Any individual who does not hold a right of abode or permanent quotas applied by sector or industry. residence in the HKSAR must have an ongoing right to work in the

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of certain nationalities to the HKSAR. Applicants are not required 4.7 Are there restrictions on the number of foreign to have an offer of local employment, but must go through several workers an employer may sponsor, in relation to stages in order to be granted a visa. Firstly, the individual must a maximum percentage of foreign workers in the fulfil the prerequisites including age, financial requirement, good employer’s workforce? character, language proficiency in Chinese or English, and have basic education qualification; secondly, the individual must be The HKID does not set such restrictions as a general rule, although awarded points under one of the two points-based tests, which are there may be specific circumstances in which such restrictions will (i) the General Points Test, and (ii) the Achievement-based Points operate, for example, foreign law firms seeking to establish a Hong Test; thirdly, the individual must pass the selection exercise which Kong partnership. is determined based on the socio-economic needs of the HKSAR; However, in all cases the HKID will assess each business on its and fourthly, the individual must attend an interview in person with Hong Kong merits and will consider closely the justification for employing a the HKID. foreign national rather than an individual from the resident labour Most individuals opt to apply under the General Points Test market. Various factors are taken into account including the nature instead of the Achievement-based Points Test which only caters of the business, the mode of operations, any growth plans within for individuals with exceptional talent or skill with outstanding the region and the likelihood of employing local staff alongside achievements (e.g. national or international awards). Under the any non-local staff. The General Employment Permit (GEP) visa General Points Test, individuals are required to satisfy a minimum category application form has specific questions about the current of 80 points, comprising of several factors including age, academic make-up of staff within the sponsoring entity in addition to financial or professional qualifications, work experience, and family viability. background where they have dependants in the HKSAR.

4.8 Are employees who are sponsored to work in your jurisdiction required to demonstrate language 6 Investment or Establishment Work proficiency? Permits

Whilst an employer might specify a particular language capability for the proposed role in Hong Kong where it is a genuine requirement 6.1 Is there an immigration category which permits employees to be authorised to work based on for the post, the HKID does not set any eligibility requirement based investment into your jurisdiction? on language proficiency. Foreign national entrepreneurs may apply for a visa granting entry 4.9 Are employees who are sponsored to work in your for Investment as Entrepreneur to enable them to either establish jurisdiction required to undergo medical examinations their own business or join an existing trading business in the before being admitted? HKSAR. The success of the application will be dependent on whether the business is of real benefit to the HKSAR economy. No, there is no requirement to undergo a medical examination. Where a business is backed or funded by a government programme within the HKSAR, this is likely to add weight to the application and improve the chances of success as the basis of assessment will 4.10 Are employees who are sponsored to work in your jurisdiction required to have medical insurance or are focus on the benefits to the HKSAR economy and the potential for they entitled to any free public medical services? creating jobs for the local resident labour market. Where an investor applicant can show a strong business plan that There is no mandatory requirement but many employers provide maps out the scope for economic development and for creating private medical insurance to those employees on secondment. job opportunities locally, the application is likely to be considered Where a foreign national employee holds a valid visa for Hong more favourably. However, the HKID does not specify a minimum Kong and is in possession of a Hong Kong Identity Card, he/she level of financial investment. Instead it will consider the nature of will be entitled to receive public medical services. the business operations, the financial forecasting and the financial viability to establish a business in the HKSAR. To this end, the investor must be prepared to secure suitable business premises (to 4.11 Does the work permit system allow employees who demonstrate a long term commitment to setting up a viable Hong hold work permits to be seconded to a client site? Kong company) and be able to evidence available funding to ensure that the business operations are not hampered in the early In a genuine secondment to a client site, where the individual days. In addition, the HKID will assess the individual attributes remains an employee of the sponsoring entity, there is no issue from of the applicant including academic qualifications and background, an immigration perspective. Individuals who are actually seeking specific skills or industry knowledge and any relevant business to change their employer cannot legally work for a new employer achievements to support that. without prior authorisation of the change from the HKID. As a guide (and much will depend on the nature of the business operations), it is advisable for the potential investment amount to 5 Highly Skilled Visas cover the start up and operational expenses of the business for the initial three to six-months period. Start-up businesses that have no demonstrable revenue generation to 5.1 Is there an immigration category which covers highly rely on will be more closely monitored and due diligence undertaken skilled individuals? by the HKID will be greater than for applications involving well established and long-trading companies that have a history of Yes, the Quality Migrant Admission Scheme (QMAS) is a quota- audited accounts, strong customer or client base and proven revenue based entrant scheme that is used to attract highly skilled individuals generation.

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Although each applicant will be assessed on the same criteria, applications involving an industry sector that is particularly 8.2 What conditions must an employing company or beneficial to the HKSAR economy, or a business idea that pushes organisation fulfil in order to qualify as part of a group of companies? forward the HKSAR in a particular new technology, may be favourably considered even where the financial investment sits at the lower level of the scale, because the HKID will consider the The HKID will require documentary evidence of the corporate wider benefits to the Hong Kong community. relationship or connection between companies, for example, as a subsidiary of the overseas parent company or an affiliate company. Such The category is not open to mainland Chinese nationals, and other documents might include a company ownership or organisation chart, nationalities including individuals from Afghanistan, Cuba, Laos, articles of association, evidence of the proportion of shareholdings and Korea, Nepal and Vietnam. financial support documents such as audited accounts.

The separate Capital Entrant Investment Scheme which was Hong Kong Aside from such documents, the HKID does not actually specify any designed for individuals who would invest financially into HKSAR conditions that the company must meet in order to be considered a but not be involved in the actual running of a business was suspended qualifying entity in the company group. in January 2015 until further notice.

8.3 What conditions must the employer fulfil in order 7 Temporary Work Permits to obtain a work permit for an intra-company group employee?

7.1 Is there an immigration category permitting the The employing entity must first establish the usual conditions hiring of temporary workers for exchanges, career pertinent to the company in the HKSAR, i.e. that the company is development, internships or other non-economic purposes? properly established and registered under the HKSAR Companies Registry and that it is actively trading or conducting business Unlike other jurisdictions, there is no specific visa designated for activity in the HKSAR. This should be supported by evidence of these purposes. Under the GEP visa category, it is possible to obtain the link with the parent or affiliate and the relevant academic and a Training Visa for a period of 12 months where an applicant needs employment experience of the individual applicant. to acquire skills or knowledge not available in their own country of domicile. This is a non-extendable visa. 8.4 What is the process for obtaining a work permit for an There is also a working holiday visa scheme for those aged between intra-company group employee? 18 and 30 from participating countries. This is intended to facilitate cultural and educational exchange and individuals may take The process for applying for the general employment visa based temporary short-term employment or enrol in short study or training on intra-company experience is relatively straightforward. The courses. It is not designed exclusively for internships, for example, sponsoring entity must submit the completed ID990A and the but it could possibly cover such scenarios. completed ID990B forms with all of the relevant documentation proving the company status and financial viability and the applicant’s specific experience to the HKID for consideration. 7.2 Are there sector-specific temporary work permit categories which enable foreign workers to perform The application is made by the sponsoring entity in the HKSAR on temporary work? behalf of the individual applicant. Straightforward applications for established companies may be processed within four weeks from No. Individuals wishing to enter the HKSAR for such purposes the date of submission. Applications for start-up companies will would need to qualify under the GEP visa category or apply for a invariably take longer due to the increased due diligence involved. training visa if appropriate. 8.5 What is the process for the employee to obtain a visa under the intra-company group transfer category? 8 Group or Intra-Company Transfer Work Permits The process is as described above in question 8.4.

8.1 Does a specific immigration category exist for inter- 8.6 How long does the process of obtaining the work company transfers within international groups of permit and initial visa take? companies? For a straightforward general employment visa application, the No, there are no specific categories. However, an employer can base processing period may be four weeks from the date of submission. an application under the GEP or Admission Scheme of Mainland An individual applying outside Hong Kong will be issued with a Talents and Professionals (ASMTP) on the fact that an individual visa label to adhere to his/her passport before entry. An individual has in-house knowledge and skills that would be difficult to source applying within Hong Kong must exit and then re-enter with the within the resident labour market. Provided that the sponsoring visa label to activate the visa. entity can put forward strong representations as to why such experience gained within the company is essential for the role in the HKSAR, the HKID may grant the application on the basis of a 8.7 How long are visas under the “initial” category valid transfer within the company. for, and can they be extended?

Generally, visas under the GEP visa category are issued for a period of 24 months, extendable in periods of three years at a time

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where the employing entity continues to sponsor the application. The visa may be issued for a shorter period if the applicant has a 9.5 What is the process for the employee to obtain a visa lesser validity period on the passport or if the employer specifies a as a new hire? shorter period within the contract of employment or the secondment assignment letter. Please see question 8.5 above. The submission process followed for an employee to obtain a visa as a new hire is the same.

8.8 Can employees coming under the intra-company transfer route apply for permanent residence? 9.6 How long does the process of obtaining the work permit and initial visa for a new hire take? Yes, an individual who has continuously resided in HKSAR on the For a straightforward application, it will generally take four weeks Hong Kong basis of a valid qualifying employment visa (through intra-company transfer) for a period of seven years may apply for permanent residence. from the submission date if all relevant documents are submitted to the HKID.

8.9 What are the main government fees associated with this type of visa? 9.7 How long are initial visas for new hires granted for and can they be extended? At the time of the writing, the applicable government fees for a GEP visa and for the ASMTP is HKD 190. The first grant of the employment visa for a new hire will be two years in duration and can usually be extended for three years at a time. The number of times an individual can extend is not limited 9 New Hire Work Permits by the HKID but most individuals who have legally resided in the HKSAR with an employment visa for a period of seven years will seek to apply for permanent residence at the appropriate time. 9.1 What is the main immigration category used for employers who wish to obtain work permits for new hires? 9.8 Is labour market testing required when the employee extends their residence? Employers may choose to use a range of categories described above, including the GEP, the ASMTP or the 12-month Training As the resident labour market testing is not mandatory for an visa, if a candidate has less experience. It would be essential for the employment visa application, there is no requirement to undertake company to demonstrate the benefit to the company’s operations in testing before the visa can be extended. It should be noted, however, the HKSAR that the new hire undertake such training. that the HKID has authority in each case to request additional documents and information to satisfy itself that the extension application should be approved and that the business operations are 9.2 Is there a requirement for labour market testing, to demonstrate that there are no suitable resident workers, still viable. before a work permit can be issued to new hires? 9.9 Can employees coming as new hires apply for Unlike other jurisdictions, for example, Singapore and the UK, there permanent residence? is no formulated requirement imposed by the HKSAR for resident labour market testing. There is no specific requirement to advertise As per question 8.8, the same process applies. A new hire who has the role for a prescribed period of time. However, the HKID will continuously resided in the HKSAR for a period of seven years with expect the sponsoring entity to justify the reasons why it requires a a valid employment visa may apply for permanent residence. worker from outside of the resident labour market. In such cases, an employer may refer to the particular niche skills and experience that cannot be easily sourced in the local market. In the last 12 months 9.10 What are the main government fees associated with this type of visa? there has been a shift in the HKID’s processing of applications and greater questions are asked and evidence sought as to justification Please see question 8.9 above. for taking on outside hires. The application for verification of eligibility and the first issue of permanent identity card is free of charge. 9.3 Are there any exemptions to carrying out a resident labour market test? 10 Conditions of stay for work permit Because resident labour market testing is not a mandatory holders requirement, there are no specific exemptions. In the author’s opinion, given the recent recommendations of the Audit Commission in the HKSAR, it is likely that we will see a greater shift towards 10.1 What are the conditions of stay of those who obtain more stringent requirements of resident labour market testing. work permits and are resident on this basis?

To ensure that conditions of stay are not breached, an employment 9.4 What is the process for obtaining a work permit for a visa holder must observe the following: new hire? ■ In all cases, a visa holder must depart Hong Kong on or before the expiry date of the visa unless an extension application has Please see question 8.4 on process. The submission process been submitted for consideration. It is important that visa followed for a new-hire employment visa is the same. holders do not overstay the permitted period of the visa.

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■ An employment visa is issued for a specific sponsoring entity. An individual cannot change employment and work for a 12 Permanent Residence different employer in Hong Kong without first submitting a change of employment application to the HKID. 12.1 What are the conditions for obtaining permanent ■ An extension to a visa must be submitted prior to the expiry residence? date of the visa and should be dealt with in a timely manner. Applications to extend may be submitted up to one month An individual can apply for permanent residence where he/she has before the visa expiry date. continuously and ordinarily resided in the HKSAR for a period of ■ In the case where the employment terminates early, the seven years in a valid qualifying category. individual may still remain in Hong Kong for the remainder of the period granted on the visa. However he/she cannot Such categories include employment-type visas such as GEP,

work for another employer (without first applying to the ASMTP, training visa and Investment as an Entrepreneur, and the Hong Kong HKID for a change of employment visa) and must not QMAS scheme. conduct self-employed work. The individual must ensure The question of what is ordinarily resident is assessed by considering that he/she does not overstay the period of the visa. the basis on which the individual is in the HKSAR i.e. voluntarily, legally and for settled purposes, such as employment. 10.2 Are work permit holders required to register with In assessing continuous residence, the HKID may consider such municipal authorities or the police after their arrival? factors as the duration of any absence from the HKSAR and the reasons for such an absence. The frequency may also be considered All foreign nationals issued with visas with a validity period of more and assessed in light of any employment reasons that require than six months must apply for a Hong Kong Identity Card from overseas travel. The HKID may also look at the place of residence of the HKID within 30 days of arrival. The card is evidence of the the individual’s immediate family members (spouse and children). individual’s right to reside and work in Hong Kong and must be carried at all times. 12.2 Is it possible to switch from a temporary work visa to a work visa which leads to permanent residence? 11 Dependants There are no specific separate temporary work visas. All visa categories qualify for permanent residence provided that the 11.1 Who qualifies as a dependant of a person coming to conditions of ordinary and continuous residence are met over a work on a sponsored basis? seven-year qualifying period. All visas issued for the purposes of employment have an expiry date and an individual is required to The employment visa holder’s spouse and dependant unmarried extend their visa as necessary to reach the seven-year qualifying children under the age of 18 may apply for dependant visas based period. on the sponsorship of the main applicant.

11.2 Do civil/unmarried or same-sex partners qualify as 13 Bars to Admission family members? 13.1 What are the main bars to admission for work? There is no recognition in Hong Kong of unmarried heterosexual partners. Similarly, there is no recognition of same-sex unmarried The HKID has discretion not to admit an individual for work where partners or of same-sex civil partnerships. they pose a serious security threat to the HKSAR. On that basis, even a long-term cohabiting unmarried couple living Certain professional bodies have requirements that must be met in a relationship akin to marriage cannot obtain a dependant visa. before an individual may undertake employment in the HKSAR. The unmarried or same sex partner would have to enter Hong Kong For example, the Law Society has compliance requirements for as either a visitor (which would not enable them to take employment foreign lawyers. or consultancy work or to study) or obtain an employment or investor visa in their own right. Minimum age regulations must also be complied with.

13.2 Are criminal convictions a bar to obtaining work 11.3 Do spouses and partners have access to the labour permission or a visa? market when they are admitted as dependants?

Spouses holding a valid dependant visa may take employment The Director of Immigration has broad discretion to assess the without any other permission from the HKID. eligibility for entry to the HKSAR. The current Immigration Ordinance does not specifically address the issue of criminal convictions so as to impose a ban on entry. The question of whether 11.4 Do children have access to the labour market? a criminal conviction will prevent an individual from entering the HKSAR is based on the discretion of the HKID. The visa Provided that the government restrictions on age of child workers are application form for an employment category visa does not ask observed, children holding valid dependant visas may take work in specific questions about previous criminal convictions. the HKSAR without any other permission from the HKID. Labour Generally, the HKID will assess the seriousness of the offence and Department regulations on minimum age for full-time work is 15 the nature of the offending together with any assessment of the years of age, and for part-time work 13 years of age, subject to relevant police force or courts involved. conditions.

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Antonia Grant Lewis Silkin Suite 2904, 29th Floor 3 Arbuthnot Road Hong Kong

Tel: +852 2972 7100 Email: [email protected] URL: www.lewissilkin.com

Antonia is a UK/HK dual-qualified partner in Lewis Silkin’s Hong Kong Hong Kong office and specialises in corporate and personal immigration including providing advice on and managing international cross-border projects, particularly across the Asia-Pacific region. Her client base is drawn from a broad range of industries internationally and she acts for start- up businesses through to multinationals. Her work covers industry sectors such as law firms, investment banks, airline leasing companies, auction houses and high-end fashion houses and restaurants. Antonia also handles a range of immigration options for high net worth individuals seeking permanent residence or citizenship in the UK and other jurisdictions and individuals or companies who need advice on long-term options for establishing a business and a team of staff in the UK. Although Antonia’s practice is heavily international, she regularly advises on all areas of UK immigration law and is noted by The Legal 500 for ‘providing practical and commercial advice’ and ‘always responsive, even in demanding time frames’.

Lewis Silkin is a commercial law firm with offices in London, Oxford, Cardiff and Hong Kong. The firm has particular specialism in employment and immigration law and has many years of experience advising on all aspects of immigration and global mobility. Lewis Silkin’s team of 20 immigration specialists, which is highly rated by independent directories, covers both business and personal immigration, advising a range of multinationals, start-ups and high-net-worth individuals from around the world on their UK and US inbound immigration. Additionally, the firm coordinates movement to international clients across the Asia-Pacific region through its Hong Kong office.

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Italy

Studio Legale Associato Simonetti Persico Scivoletto Corrado Scivoletto

Embassies and Consular offices, under the authority of the Foreign 1 Introduction Office, manage visa applications.

1.1 What are the main sources of immigration law in your 1.3 Is your jurisdiction part of a multilateral agreement jurisdiction? between countries (EU/NAFTA/MERCOSUR) which facilitates the movement of people between countries The main sources of Italian legislation on immigration are for employment purposes? Legislative Decree No. 286 of 25 July 1998 (the Consolidated Immigration Act) and Presidential Decree No. 394 of 31 August Italy is a Member State of the European Union (EU), which grants 1999 (which sets out the implementation rules of the Consolidated to EU nationals (and to certain third-country nationals’ family Immigration Act). members) the freedom to move and reside in each EU Member State. Legislative Decree No. 30 of 6 February 2007 implemented Directive The most important pieces of legislation at EU level are the 2004/38/EC and lays down the rights of the citizens of the European Schengen Convention dated 14 June 1985, to which Italy adhered Union and of their family members to move and reside freely in Italy. on 27 November 1990, the Schengen implementing Convention of Inter-ministerial Decree No. 850 of 11 May 2011 lists the various 19 June 1990, the Common Consular Instructions on visas dated types of visas that can be applied for in order to enter and stay in 14 December 1993, Regulation EC 562/2006 of 15 March 2006 Italy and the pertinent conditions of issuance. that sets out the so-called Schengen Borders Code, Regulation EC No. 539/2001 of 15 March 2001 that lists the third countries The Directive of the Home Office dated 1 March 2000 lays down whose nationals must be in possession of visas when crossing the the criteria to quantify the means of subsistence that third-country external borders and those whose nationals are exempt from that nationals must meet in order to enter and stay in Italy. requirement, and Regulation EC No. 1091/2001 of 28 May 2001 on freedom of movement with a long-stay visa. 1.2 What authorities administer the corporate immigration Italy is a member of the European Economic Area (EEA), which system in your jurisdiction? unites the EU Member States and three Member States of the European Free Trade Association (Iceland, Liechtenstein and Several authorities concur in the management of the immigration Norway) into an internal market governed by the same basic rules. system. The citizens of Iceland, Liechtenstein and Norway are therefore free The Cabinet every year establishes the quotas of work permits (for to move and reside in Italy for employment purposes as well. The seasonal, non-seasonal work and for self-employment purposes) same rules also apply to Swiss nationals pursuant to an agreement that are made available to third-country nationals, thereby managing signed between the EU and Switzerland on 21 June 1999. the immigration flows according to market conditions and economy Italy has entered into a bilateral treaty with the Republic of San trends. Marino which, as of 1939, grants the freedom of movement between Within each Province of Italy there is an office of the Home Office, the citizens of the two countries. called “Prefettura”. Each Prefettura has established an Immigration Italy is also a party to several bilateral agreements with other Office (“Sportello Unico per l’Immigrazione”) which is in charge of countries which concern social security matters: these agreements the entire process concerning the hiring of third-country nationals. define, inter alia, the social security regime applicable to the Local Police offices (“Questura”) are in charge of all security checks nationals of one Member State when posted to work for a temporary concerning third-country nationals who apply for a work permit and period in the other Member State. As a rule, such agreements (in certain instances) the issuance and renewal of residence permits. allow the said workers to remain subject to their home country’s The National Labour Inspectorate (“Ispettorato Nazionale del social security regimes while working abroad, thus facilitating their Lavoro”) supervises the terms and conditions of employment movement abroad for employment purposes. applied to third-country nationals by local employers and verifies At present, bilateral agreements are in force with the following the capacity of the local employer to qualify as a sponsor for the countries: Argentina, Australia, Brazil, Canada and Quebec, immigration process, in particular by checking if the number of Israel, Channel Islands, Isle of Man, Mexico, former Yugoslavia applications filed by the same sponsor is consistent with its business countries (Republics of Bosnia Herzegovina, Kosovo, Macedonia, and business needs. Montenegro, Serbia, Vojvodina), Principality of Monaco, Republic

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of Cabo Verde, Republic of Korea, Republic of San Marino, The Holy See, United States of America, Tunisia, Turkey, Uruguay and 3 Immigration Compliance and Illegal Venezuela. Working

2 Business Visitors 3.1 Do the national authorities in your jurisdiction operate a system of compliance inspections of employers who regularly employ foreign nationals? 2.1 Can business visitors enter your jurisdiction under a relevant visa waiver programme? A national agency, named “Ispettorato Nazionale del Lavoro” Italy (National Labour Inspectorate), is in charge of all inspections Pursuant to EU Regulation 539/2001, the following third-country concerning employment and health and safety matters, including nationals are exempted from the requirement of a visa for short stays compliance with immigration law. concerning, inter alia, business purposes: Albania; Andorra; Antigua Among the other tasks, and pursuant to the national legislation that and Barbuda; Argentina; Australia; Bahamas; Barbados; Bosnia- has implemented EU Directive 2009/52/EC providing for minimum Herzegovina; Brazil; Brunei; Canada; Chile; Colombia; Costa standards on sanctions and measures against employers of illegally Rica; Croatia; Dominica; El Salvador; Former Yugoslav Republic staying third-country nationals, this agency (in cooperation with other of Macedonia (FYROM); Georgia; Grenada; Guatemala; Honduras; offices) shall carry out inspections on this matter on a routine basis. Hong Kong; Israel; Japan; Kiribati; Malaysia; Macao; North Marianne; Marshall; Mauritius; Mexico; Micronesia; Principality 3.2 What are the rules on the prevention of illegal of Monaco; Montenegro; Nicaragua; New Zealand; Palau; Panama; working? Paraguay; Peru; Saint Kitts and Nevis; Samoa; Santa Lucia; Serbia; Seychelles; Singapore; Salomon Islands; South Korea; St. Vincent Employers can be disqualified as sponsors for local recruitment and Grenadine; Taiwan; Timor East; Tonga; Trinidad and Tobago; of foreign workers when they have been condemned in the five- Tuvalu; United Arab Emirates; the United States of America; year period preceding an application for a work permit for abetting Uruguay; Vanuatu; and Venezuela. clandestine immigration or for illicit mediation of illegal foreign workers or for illegal hiring of foreign workers. 2.2 What is the maximum period for which business See also the answers to questions 3.1 and 3.3. visitors can enter your jurisdiction?

The maximum period is 90 days, to be calculated in any period of 3.3 What are the penalties for organisations found to be 180 days. employing foreign nationals without permission to work?

2.3 What activities are business visitors able to Employers that hire foreign nationals who do not have a work undertake? permit, or whose residence permit has expired failing an application for renewal, or has been revoked, are sanctioned by way of According to the definition contained in the Inter-ministerial imprisonment from six months to three years and with a criminal Decree No. 850 of 11 May 2011, a business visitor can be engaged fine of €5,000 for each foreigner employed in breach of thelaw. in activities that have a business and commercial purpose, that are These penalties are increased in a measure ranging from one third aimed at establishing business contracts, entering into business to half the original measure in case there are more than three illegal negotiations, learning or verifying the use and functioning of workers, the workers are below the minimum working age (see instrumental goods sold or purchased by means of commercial question 11.4), or they are illegally exploited. contracts or agreements for industrial cooperation. In addition, the employers will also be condemned to pay an administrative fine equal to the average cost of repatriation of 2.4 Are there any special visitor categories which will the foreign worker who has been hired in breach of the law on enable business visitors to undertake work or provide immigration. services for a temporary period? If the employers are legal entities, an administrative fine (of up to €150,000) will be levied also against this entity where it is found that No; a business visitor cannot perform work or be engaged in the the recruitment of foreign nationals in breach of the immigration provision of paid services in the framework of a visa waiver scheme law has been carried out for the ultimate benefit of this same entity. or with a business visa.

2.5 Can business visitors receive short-term training? 4 Corporate Immigration – General

As mentioned in question 2.3, a business visitor can receive training 4.1 Is there a system for registration of employers who (including refresher training) which is instrumental for learning how wish to hire foreign nationals? to use machinery that is the object of a sale and purchase contract. Italian employers and foreign employers legally residing in Italy that wish to hire foreign nationals must submit an online application to the Immigration office. Upon the submission of the said applications, they are registered in the database of the Immigration Office and of the other entities involved in the process.

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4.2 Do employers who hire foreign nationals have 4.5 Is there a recognition that some occupations may be ongoing duties to ensure immigration compliance? in short supply and do special exemptions apply to certain sectors and occupations? Employers have an ongoing duty to ensure that all their foreign workers have a regular and valid residence permit: this is due to the See the answers to questions 4.4 and 4.6. fact that the criminal sanctions mentioned in the answer to question 3.3 may apply not only at the time of hiring the foreign worker, 4.6 Are there annual quotas for different types of but also at a later stage if the foreign worker does not apply for the employment-related work permits or visas? renewal of the residence permit or the same is revoked or annulled. Italy Because of a change in the structure of the criminal sanctions A quota system applies to employment-related work permits addressing these matters, however, at present employers should (including seasonal work and self-employment work). Every three be liable from a criminal standpoint only if they act with wilful years the Government issues a “programmatic document” analysing misconduct, not for negligence. immigration flows and defining the immigration policy. Based on In addition, employers have an ongoing duty to communicate to the such document, every year the Cabinet issues a decree establishing Immigration Office all amendments and changes to the employment the number of work permits, visas and residence permits that can be relationship with the foreign worker (including, by way of example, released to third-country nationals. the change of the place of work, dismissal, resignation, etc.). Quotas are established taking into account several factors, such as sectors where there is a labour shortage, conversion of study and training permits into work permits, market conditions for the 4.3 Do the immigration authorities undertake routine inspections of employers who sponsor foreign issuance of self-employment work permits, completion of training nationals, to verify immigration compliance? programmes by nationals of third countries with which Italy has signed bilateral treaties, etc. Immigration authorities perform checks in the course of the work As mentioned in the answer to question 4.4, certain categories of permit application. Immigration compliance once the work permit workers are exempted from the quota system. is issued is supervised by the National Labour Inspectorate and other authorities involved as part of the more broad controls over 4.7 Are there restrictions on the number of foreign employment relationships. workers an employer may sponsor, in relation to a maximum percentage of foreign workers in the employer’s workforce? 4.4 Do the immigration authorities maintain a list of skilled occupations which may be filled by foreign nationals? No. As mentioned in question 1.2, though, upon each application for a work permit, the Labour Office verifies the capacity of the Certain skilled occupations are listed in the Consolidated local employer to act as a sponsor for the immigration process by Immigration Act as occupations that can be filled at any time by checking if the number of applications filed by the same sponsor foreign workers irrespective of and beyond the quotas that are is consistent with its business and business needs. This does not otherwise set forth each year for all occupations that do not fall entail, however, a threshold or cap to the number of foreign workers within the said list (see the answer to question 4.6). that can be hired by the same employer. These occupations concern: ■ managers; 4.8 Are employees who are sponsored to work in your ■ highly skilled workers; jurisdiction required to demonstrate language proficiency? ■ university lecturers; ■ university professors; All foreigners over 16 years old who apply for a residence permit ■ translators and interpreters; for a duration of at least one year shall sign, as a condition precedent ■ certain domestic helpers; to obtain the residence permit, a so-called “integration agreement” ■ trainee employees; whereby they undertake to achieve knowledge of various Italian cultural and social items that are deemed to facilitate their integration ■ maritime workers; in the Italian society. This includes, inter alia, the target to acquire ■ workers posted to Italy in the frame of a work contract at a a knowledge of the Italian language at least equal to level A2 of client’s site; the Common European Framework of Reference for Languages ■ artists of circuses; (CEFR). ■ artistic and technical staff of ballet or theatre or concert The integration agreement is credit-based. Language proficiency shows; may be shown either by submitting suitable documentation or by ■ artists performing in in the framework of cultural or passing a language test. Failure to achieve the minimum number folkloristic shows; of credits required (including language proficiency) may lead to the ■ sport professionals; revocation of the residence permit or the refusal to renew it, and to ■ journalists and reporters; the expulsion of the foreign worker. ■ au pairs; and ■ professional nurses.

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4.9 Are employees who are sponsored to work in your 6 Investment or Establishment Work jurisdiction required to undergo medical examinations Permits before being admitted?

Not in principle and not because they are foreign workers. In certain 6.1 Is there an immigration category which permits employees to be authorised to work based on sectors of work, where employees are subject to mandatory health investment into your jurisdiction? and safety checks, a preliminary medical examination might be required. Investors are allowed to apply for a self-employment visa, within Italy the quotas that are set forth each year by the Government. 4.10 Are employees who are sponsored to work in your Save for a few cases (which mainly concern Board members jurisdiction required to have medical insurance or are of companies and freelance licensed professionals), actually, they entitled to any free public medical services? investment is a prerequisite for being eligible to apply for a self- employment visa. At present, in fact, entrepreneurs are entitled to Foreign workers with a valid permit of stay are obliged to enrol in apply for a self-employment visa when, among other requirements, the national health care system and are thereafter entitled to public they plan to carry out an investment of at least €500,000 in a project medical services. that is of interest to the Italian economy and which also entails the creation of at least three new jobs in the newly established enterprise. 4.11 Does the work permit system allow employees who Another option to obtain a self-employment visa based on investment hold work permits to be seconded to a client site? is the so-called start-up visa, reserved for foreigners who intend to incorporate an innovative start-up company in Italy, i.e. a company Foreign workers employed by foreign employers (i.e. non-resident which has as its main business scope that of producing or distributing employers) can be posted temporarily to Italy at a client’s site in innovative services or products with a high technological value and the framework of a work contract, for the time strictly necessary to which, inter alia, invests in research and development at a ratio of perform the services or deliver the opus which is the object of the at least 15% of the higher value between the production cost and work contract. production value. In this case the applicant shall prove to have at Foreign workers who are locally hired in Italy can work at the least €50,000 available for the investment in the company. client’s site as set out in the framework, again, of a work contract or There is also a category of investors’ visas that can be issued to of a business mission. foreign individuals for the mere fact that they are willing to make an In both cases, the employer cannot assign the foreign worker to the investment in Italy of at least €2 million in Government bonds, or at client (i.e. transfer to the client the power to manage the employment least €1 million in shares or quotas of a corporation incorporated and relationship and to instruct, direct and coordinate the foreign worker established in Italy (€500,000 if the investment is made in the share as if he/she were an employee of the client). capital of innovative start-up companies), both investments to be maintained for at least two years, or, finally, to make a philanthropic 5 Highly Skilled Visas donation of at least €1 million in a cultural, scientific or educational project of public interest. There is, however, no indication in the law that this type of visa enables the holder to carry out work in Italy. 5.1 Is there an immigration category which covers highly skilled individuals? 7 Temporary Work Permits There are several schemes concerning skilled workers, all of which allow the entry and stay of foreign workers even in excess of yearly 7.1 Is there an immigration category permitting the quotas. hiring of temporary workers for exchanges, career Managers and specialists (as defined in the answers to section 8) are development, internships or other non-economic entitled to intra-company and intra-group mobility. purposes? Scientific researchers can be hired in Italy by private and public institutions which are accredited by the Ministry of the University The temporary entry and stay in Italy is permitted to university and Instruction in order to carry out research programmes approved lecturers on an exchange programme, trainees (in the framework by the Board of said institutions. Foreign workers qualify as or not of an intra-company or intra-group transfer), volunteers to be researchers if they have a degree which entitles them to access Ph.D. assigned to NGOs and other authorised volunteering entities (within courses and are systematically engaged in activities related to the a yearly quota). improvement of scientific, cultural or humanistic knowledge. Highly skilled individuals are also those who qualify under the Blue 7.2 Are there sector-specific temporary work permit Card scheme, i.e. workers who have a degree issued after at least three categories which enable foreign workers to perform years of superior study and have a qualification falling under levels temporary work? from 1 to 3 of a national classification which concerns, inter alia, top managers, scientists and highly specialised workers and technicians. In principle, all work permits are temporary, but they are not In order to apply for a Blue Card work permit these workers must be based on the sector of activity. The work visa which is inherently sponsored by a local employer offering them an employment contract temporary (i.e. it assumes that the work to be rendered in Italy is for at least one year and a salary of at least €25,500 per year. intrinsically limited in time) is the one for workers posted to Italy in the framework of a work contract.

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be attached); that the employee has a length of service of at least 8 Group or Intra-Company Transfer Work three months immediately preceding the intra-corporate transfer; Permits that the employee will take a position as a manager, specialist or trainee employee (in this latter case evidence shall also be given of the university degree of the trainee and of the training programme 8.1 Does a specific immigration category exist for inter- company transfers within international groups of under which he/she will work in Italy); and the envisaged duration companies? of the transfer, place of work, terms and conditions of employment. It is worth mentioning that the host entity would not qualify as a Directive 2014/66/EU on the conditions of entry and residence sponsor if it has been established for the main purpose of facilitating of third-country nationals in the framework of an intra-corporate the entry of intra-corporate transferees, or if it has been the subject Italy transfer has been implemented in Italy by Legislative Decree No. of assessments concerning the breach of tax or social security or 253 of 29 December 2016. This applies to managers, specialists employment duties. and trainee employees.

Managers are those employees who perform highly specialised 8.4 What is the process for obtaining a work permit for an duties with a broad autonomous decision-making power, who are intra-company group employee? directly liable vis-à-vis the board of directors or the shareholders of the business and who have the power to direct the whole business of The host entity in Italy must act as a sponsor and file an online the employer or an autonomous branch of that business. application for a work permit at the Immigration Office. Once the Specialists are those employees who possess specialised knowledge online form is filled-in and filed, the host entity must also submit to essential to the host entity’s areas of activity, or to the technical the Immigration Office those documents mentioned in question 8.3. operations or management of the same. In assessing such Background checks are performed by the Immigration Office. Such knowledge, account shall be taken not only of knowledge specific checks might request the host entity to provide additional data and to the host entity, but also of whether the person has a high level of documentation. Additional checks are performed by the National qualification including adequate professional experience referring Employment Inspectorate (regarding the conditions laid out by to a type of work or activity requiring specific technical knowledge, the law for intra-corporate transfers) and by the Police (regarding including possible membership of an accredited profession. The obstacles to the entry of the third-country national transferee). If level of qualification shall be assessed with reference to the the applicant meets all of the conditions set forth by the law, a work European Qualifications Framework – EQF. permit is issued enabling the foreign worker to apply for a visa. Trainee employees have a university degree and are transferred to a host entity for career development purposes or in order to obtain 8.5 What is the process for the employee to obtain a visa training in business techniques or methods, and are paid during the under the intra-company group transfer category? transfer. All of the above workers qualify for intra-corporate transfers to the The issuance of the ICT work permit is communicated to the extent they have been employed by the undertaking from which they Consular Office of the place of residence of the employee, who, are transferred for at least three uninterrupted months immediately within the following six months, shall thereafter apply for a visa and preceding the date of the intra-corporate transfer. submit the necessary documentation (application form, passport, travel documents, etc.).

8.2 What conditions must an employing company or organisation fulfil in order to qualify as part of a group 8.6 How long does the process of obtaining the work of companies? permit and initial visa take?

The transferring entity and the host entity in Italy must either belong In principle, the ICT work permit should be issued (or denied) within to the same undertaking, where the hosting entity established in 45 days of the filing of the application. The actual duration of the Italy is the registered office or a branch or a representative office of process also depends on the backlog of the processing Immigration that undertaking, or must belong to the same group of undertakings. Office and on the completeness of the documentation submitted by Two undertakings belong to the same group when one of them holds the host entity. a majority of the subscribed capital of the other undertaking, or The visa must be issued within 30 days of the application. controls a number of votes sufficient to exercise a dominant influence at the ordinary shareholders’ meetings or can exercise a dominant 8.7 How long are visas under the “initial” category valid influence because of contractual ties. Two undertakings are deemed for, and can they be extended? to belong to the same group when they are linked because one can exercise at least one-fifth of the votes at the ordinary shareholders’ Intra-corporate transfers have a maximum duration of three years for meetings of the other (one-tenth for listed companies). managers and specialists, and one year for trainee employees. The pertinent permits, when issued for a shorter period, can be extended 8.3 What conditions must the employer fulfil in order within the said maximum duration. At least three months must elapse to obtain a work permit for an intra-company group between the end of the maximum duration of an intra-corporate employee? transfer and the application for a new one for the same employee.

The host entity must give the following evidence and details, by means of an assignment letter executed between the host entity 8.8 Can employees coming under the intra-company transfer route apply for permanent residence? and the transferring entity: that the two entities belong to the same undertaking or group (evidence of the corporate ties shall also See the answer to question 12.2.

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from the Police Office concerning both the foreign worker and the 8.9 What are the main government fees associated with employer. this type of visa? If all conditions of law are met, the Immigration Office issues the work permit to the sponsoring employer. The issuance (and renewal) of the residence permit has a fixed cost of €76.46 for stamp and postal duties. 9.5 What is the process for the employee to obtain a visa as a new hire? 9 New Hire Work Permits

Italy Once a work permit has been granted by the Immigration Office, this is forwarded (at the request of the sponsoring employer) to 9.1 What is the main immigration category used for the Italian Consular Office of the place of residence of the foreign employers who wish to obtain work permits for new hires? worker, together with all relevant information attached to the file. The foreign worker shall then apply in person for a work visa, which will be issued by the Consular office. Employers who wish to hire staff must resort to the general immigration category for subordinated employees (as opposed to self-employed ones). This general category is limited by an 9.6 How long does the process of obtaining the work annual quota system, meaning that the occupational shortage of the permit and initial visa for a new hire take? employer may not be filled in by foreign workers if the quotas are no longer available in a given year. In principle, the work permit should be issued or denied within 60 Please also refer to the answers to question 4.4 and 5.1 for workers days of the application. Processing time, however, largely depends that do not fall under the quota system. on the backlog of the Immigration office involved and may well exceed such deadline. Visas for work are issued within 30 days of the application. 9.2 Is there a requirement for labour market testing, to demonstrate that there are no suitable resident workers, before a work permit can be issued to new hires? 9.7 How long are initial visas for new hires granted for and can they be extended? Before filing an application for the hiring of a foreign worker, the employer shall verify with the Employment Agency (Centro per Work visas are issued for a maximum duration of one year. Visas, l’Impiego) whether there are suitable candidates in Italy (whether however, have the purpose of allowing the legal entrance into the Italian or foreign individuals legally residing in Italy). territory of Italy. Once the foreign worker is in Italy, and receives The employer is nonetheless entitled to apply for the work permit a permit of stay for work purposes, it is the work permit that can be for a foreign worker even if there are other available candidates, renewed, thereby extending the period of legal residence in Italy. especially when the application is filed for a specific candidate whose name and professional background are known to the employer. 9.8 Is labour market testing required when the employee extends their residence? 9.3 Are there any exemptions to carrying out a resident labour market test? No, it is not.

Foreign workers who have completed in their home country training 9.9 Can employees coming as new hires apply for or study programmes approved by the Italian Government have a permanent residence? right of precedence in the hiring by local employers (in Italy) and are exempted from the labour market test. Please see the answer to question 12.1. Furthermore, an exemption from the labour market test is made for all workers listed in the answer to question 4.4, excluding only translators, interpreters and professional nurses. 9.10 What are the main government fees associated with this type of visa?

9.4 What is the process for obtaining a work permit for a The issuance (and renewal) of the residence permit has a fixed cost new hire? of €76.46 for stamp and postal duties. An additional contribution ranging from €80 to €200, depending on the length and on the nature Employers must submit an online application to the Immigration of the work permit, previously required by the Immigration Office, Office (this can be either the one territorially competent in the was cancelled at the end of 2016 on the grounds that it imposed an Province where the employer is established or the one of the undue burden limiting the freedom of establishment and has now Province where the employee will perform the job). been replaced by a lower contribution ranging from €40 to €100. The employer shall also submit evidence of its business standing (from a commercial and social security standpoint), documentation concerning the accommodation of the foreign worker in Italy, and shall 10 Conditions of Stay for Work Permit undertake to apply certain terms and conditions of employment which Holders are embodied in an employment offer called a “contract of stay”. The Immigration Office performs preliminary checks on the 10.1 What are the conditions of stay of those who obtain application and acquires clearance from other authorities such as: work permits and are resident on this basis? clearance concerning the quotas (where applicable) and the business qualification of the employer from the Labour Office; clearance Foreign workers need a work permit and a visa to enter Italy. Within

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eight working days of their arrival, foreign workers must file an application for a residence permit at the Immigration Office which 11.4 Do children have access to the labour market? issued their work permit. Once these conditions are fulfilled the foreign worker enjoys the Children can work when they are aged 15 years or older and they same civil rights as Italian citizens and is entitled to equal treatment have completed the mandatory study courses. Exceptions to this (including those concerning working conditions) with respect to rule can be made for certain sectors such as sports activities, cultural Italian citizens. activities, advertisement and show business and maritime work, subject to the agreement of the parents and to clearance given by the Labour Office. 10.2 Are work permit holders required to register with Italy municipal authorities or the police after their arrival? 12 Permanent Residence In addition to the application for the residence permit, and once this formality has been accomplished, foreign workers must also register themselves (and their family members, if any) at the General 12.1 What are the conditions for obtaining permanent Registry Office Anagrafe( ). residence?

A foreign worker can apply for a EU resident permit for long-term 11 Dependants residents after having legally and continuously resided in Italy for at least five years based on a valid residence permit (excluding short term ones). Absences from the territory are admitted (and are 11.1 Who qualifies as a dependant of a person coming to calculated in the five-year term) within the limit of an overall period work on a sponsored basis? of 10 months in the five-year term and when they do not exceed six consecutive months (though serious and documented health problems Foreign workers can apply for family reunification if they have a or the need to perform military service abroad excuse the applicant). residence permit with a duration of at least one year. The foreign worker shall give evidence of having an income Foreign workers who work in Italy in the framework of an intra- sufficient to support himself (and the family members, if any) and corporate transfer are entitled to apply for family reunification suitable accommodation compliant with the minimum standards irrespective of the duration of their residence permit (i.e. even if the applicable to public housing, and shall pass a test showing applicant has a work permit for less than one year). knowledge of the Italian language. Family members are: The EU resident permit for long-term residents is open-ended and ■ a legally married spouse, aged at least 18, not legally entitles the holder, inter alia, to travel to Italy without a visa and to separated; perform any kind of working activity. ■ children – including those of the spouse or born outside marriage, those adopted and those of whom one member of the couple has custody, not over 18 years of age and 12.2 Is it possible to switch from a temporary work visa to not married, provided the other spouse agrees upon the a work visa which leads to permanent residence? application for reunification in Italy; ■ children of age if they are dependent on their parent, i.e. if they Managers and specialists who are seconded to Italy in the framework are unable to take care of their essential life needs because of of an intra-company or intra-group transfer can be hired locally by poor health conditions entailing total invalidity; and the hosting employer at the end of the transfer period; the duration ■ parents who are dependent because they do not have other of such period cannot exceed five years. children in their home country, or if they are aged over 65 and This may lead to permanent residence according to the rules their other children in the home country cannot support them mentioned in the answer to question 12.1. because of serious and documented health problems.

13 Bars to Admission 11.2 Do civil/unmarried or same-sex partners qualify as family members? 13.1 What are the main bars to admission for work? Same-sex partners qualify as family members provided they are of age (18), their civil union is duly registered (according to Italian law The quota system which applies to all candidates for subordinate or to the foreign law governing the union in such a way to produce employment who do not fall under the categories of skilled workers, the same effects of marriage) and they are not legally separated at and to all applicants for a self-employment work permit, may the time of the application for family reunification. constitute the main bar to legally work in Italy. Unmarried de facto partners (heterosexual or homosexual) do not qualify as family members. 13.2 Are criminal convictions a bar to obtaining work permission or a visa? 11.3 Do spouses and partners have access to the labour market when they are admitted as dependants? Yes. Foreigners who are deemed to be a threat to the public order and the national security (including that of countries which, together Yes; once family members obtain a family residence permit, they with Italy, are a party to an agreement for the suppression of border are entitled to work as employees or as self-employed freelancers. controls), or who have been sentenced for crimes concerning, inter alia, drug dealing, rape, illegal immigration and prostitution may be denied work permits and visas.

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Corrado Scivoletto Studio Legale Associato Simonetti Persico Scivoletto Via Alberto Caroncini 51 00197 Rome Italy

Tel: +39 06 455 09 150 Email: [email protected] URL: www.spslex.com Italy

Corrado Scivoletto graduated in law maxima cum laude at the University of Rome, Tor Vergata, and further obtained a Ph.D. maxima cum laude in Employment, Labor and Social Security Law at the University of Rome, La Sapienza. Corrado was admitted to the Bar of Rome in 1996 and thereafter was licensed to plead before the Court of Cassation and the Higher Courts in Italy. He attended the Academy of The Southwestern Institute for International and Comparative Law in the United States of America and was trained as a visiting lawyer by the UK law firm Slaughter and May, in London and Paris. Corrado Scivoletto is a founding partner of Studio Legale Associato Simonetti Persico Scivoletto and is a member of the International Bar Association (IBA), the European Employment Lawyers Association (EELA), the Visa Law International, the Alumni Academy of The Southwestern Institute for International and Comparative Law. A native Italian speaker, Corrado is fluent in English, Spanish and French.

Studio Legale Associato Simonetti Persico Scivoletto is based in Rome, Italy, and provides assistance to corporate clients and individuals in corporate and commercial law matters, employment and labour matters, antitrust and arbitration issues, national and international taxation matters. Corrado Scivoletto practises as an employment and labour lawyer, assisting corporations in the management of individual and collective employment issues, litigation, employment contracts and dismissals, disciplinary matters, trade union negotiations, reorganisation plans, transfers of undertakings and collective redundancies. His practice also focuses on agency and work contracts. Corrado also specialises in assisting foreign corporations in the start-up of their activities in Italy, from a corporate and employment law standpoint, advising foreign businesses while establishing their presence and operations in Italy, including the incorporation of branches, subsidiaries or representative offices, and the management of all ensuing employment and social security issues. Within the employment and labour area, Corrado Scivoletto provides legal advice and assistance to local and foreign corporations in several immigration matters, mainly concerning the mobility of third country managers and skilled workers to Italy. Corrado also assists individuals in dealing with citizenship matters.

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Japan

Nakai Immigration Services LPC Masahito Nakai

bilateral visa exemption agreement with Japan can enter Japan 1 Introduction without a visa.

1.1 What are the main sources of immigration law in your 2.2 What is the maximum period for which business jurisdiction? visitors can enter your jurisdiction?

The Immigration Control and Refugee Recognition Act is the At a port of entry, a maximum of 90 days’ stay can be granted for main source of immigration law in Japan. It consists of the entry business visitors. Extension of the duration is not permitted unless procedure, the residence management system, the deportation the business person is from a country which has a six-month visa procedure, and others. Ministerial ordinances by the Ministry of exemption agreement with Japan. Justice and Orders by the Minister of Justice regulate details. Depending on the agreement, business visitors can stay for 15 days, 90 days or 180 days at most during one visit. Citizens from 1.2 What authorities administer the corporate immigration Brunei, Indonesia and Thailand are allowed to stay for 15 days system in your jurisdiction? only, under the visa waiver programme, while those from the UK, Ireland, Germany, Austria, Switzerland, Liechtenstein and Mexico The Immigration Bureaus under the Ministry of Justice control can stay up to 180 days. Nationals of 57 countries or regions that entries, departures, and other permissions to stay for foreign workers can stay in Japan for 90 days under the bilateral visa exemption in Japan. The bureaus can also issue a certificate of eligibility agreement are those from Andorra, Argentina, Australia, Bahamas, to the sponsoring company in Japan as a kind of pre-examined Barbados, Belgium, Bulgaria, Canada, Chile, Costa Rica, Croatia, recommendation document to issue a working visa. Working visas Cyprus, the Czech Republic, Denmark, the Dominican Republic, El themselves are issued by an embassy or consulate office overseas Salvador, Estonia, Finland, France, Greece, Guatemala, Honduras, upon submission of the certificate. Those overseas missions are Hong Kong, Hungary, Iceland, Israel, Italy, the Republic of Korea, under the Ministry of Foreign Affairs. Latvia, Lesotho, Lithuania, Luxembourg, Macao, the Former Yugoslav Republic of Macedonia, Malaysia, Malta, Mauritius, Monaco, the Netherlands, New Zealand, Norway, Poland, Portugal, 1.3 Is Japan part of a multilateral agreement between countries (EU/NAFTA/MERCOSUR) which facilitates Romania, San Marino, Serbia, Singapore, Slovakia, Slovenia, the movement of people between countries for Spain, Suriname, Sweden, Taiwan, Tunisia, Turkey, the United employment purposes? States and Uruguay. There are some additional restrictions such as possessing an ePassport or machine-readable passport (MRP), even No, Japan does not have a multilateral agreement with the countries for the above nationals which can be found in the home page of the of EU/NAFTA/MERCOSUR to exempt visas, while business persons Ministry of Foreign Affairs at http://www.mofa.go.jp/j_info/visit/ from 19 countries in APEC can enter Japan without any visa for visa/short/novisa.html. short-term business purposes when they are issued an ABTC (APEC Business Travel Card). APEC member economies fully participating 2.3 What activities are business visitors able to in the scheme include Australia, Brunei Darussalam, Chile, China, undertake? Hong Kong (China), Indonesia, Japan, Korea, Malaysia, Mexico, New Zealand, Papua New Guinea, Peru, the Philippines, Russia, Singapore, Business visitors are able to engage in attending meetings or lectures, Chinese Taipei, Thailand, and Vietnam. Canada and the United States negotiating and exchanging a contract, marketing research or other are transitional members, and are still working towards issuing ABTCs. similar activities, but are not allowed to undertake work in Japan.

2 Business Visitors 2.4 Are there any special visitor categories which will enable business visitors to undertake work or provide services for a temporary period? 2.1 Can business visitors enter Japan under a relevant visa waiver programme? No, there are no visitor categories enabling business visitors to undertake work. They are not allowed to provide services Yes, they can. Business visitors of the countries which have the

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during their stay with temporary visitor status when they receive remuneration in return, either in Japan or overseas. 4.2 Do employers who hire foreign nationals have ongoing duties to ensure immigration compliance?

2.5 Can business visitors receive short-term training? Yes, employers who hire foreign nationals are required to report the employment status of foreign nationals to the labour authorities and Yes, they can receive short-term training. If, in the course of such information shall be transferred to the immigration authorities. training, a business visitor would help to produce value or profit at the recipient organisation as a “Technical Intern”, visa status should be obtained rather than a temporary visitor visa or trainee visa. 4.3 Do the immigration authorities undertake routine Japan inspections of employers who sponsor foreign nationals, to verify immigration compliance? 3 Immigration Compliance and Illegal Working No, the immigration authorities do not undertake routine inspections of employers who sponsor foreign nationals, though they may investigate an employer upon application for extension of the 3.1 Do the national authorities in your jurisdiction operate employee’s period of stay, change of status, certificate of eligibility, a system of compliance inspections of employers among other things, as well as revocation of the employee’s status of who regularly employ foreign nationals? residence. They may require the foreign national and other persons concerned to appear, may ask questions or request the presentation Yes, the immigration authorities within the Ministry of Justice of of documents, and may make inquiries to public offices or to public Japan operate a system of inspections of employers who are going or private organisations and request submission of reports on to employ or have employed foreign nationals. necessary facts in relation to the inquiry. The inspectors may inquire into the facts, if necessary, in order to conduct dispositions relating to revocation of status of residence, 4.4 Do the immigration authorities maintain a list of application for extension of period of stay, application for change skilled occupations which may be filled by foreign of status, application for certificate of eligibility and so on. If there nationals? is any change in the employment, both employer and employees are required to report to the immigration authorities or other authorities. No, the Japanese immigration laws do not have a regulation to Employment conditions should be inspected by the labour standards maintain a list of skilled occupations which may be filled by foreign management authorities within the Ministry of Health, Labour and nationals, since the basic policy has been to accept only highly Welfare. skilled workers who may contribute to society and who will not have a detrimental effect on the Japanese workforce. Therefore, 3.2 What are the rules on the prevention of illegal foreign nationals may engage only in high-skill jobs, and they are working? not able to engage in jobs that do not require high skills regardless of shortage of labour. Penalties on both employers and employees including fines, imprisonment and deportation may prevent foreign workers from 4.5 Is there a recognition that some occupations may be working illegally. in short supply and do special exemptions apply to certain sectors and occupations?

3.3 What are the penalties for organisations found to be employing foreign nationals without permission to Yes, it is widely recognised that some occupations including nurses, work? caregivers, and construction workers face short supply of labour. The Japanese government has been accepting nurses and caregivers Organisations found to be employing foreign nationals without from the Philippines, Indonesia and Vietnam due to bilateral EPAs proper status of residence shall be punished with imprisonment of (Economic Partnership Agreements), but so far the number of those no longer than three years, a fine not exceeding three million yen, workers seems negligible because of the Japanese language barrier, or shall be subject to the cumulative imposition of imprisonment qualification system and other social factors. Construction workers and a fine. and domestic helpers are allowed to work by special programmes. The abovementioned employer is also subject to a deportation order if he or she is a foreign national. 4.6 Are there annual quotas for different types of employment-related work permits or visas?

4 Corporate Immigration – General No, there is no quota system that applies to employment-related work visa statuses. General work visas have a requirement of receiving no less salary than a Japanese national should receive 4.1 Is there a system for registration of employers who wish to hire foreign nationals? for the same type of job, so the number of highly skilled workers is limited because of the salary requirement and other factors, notwithstanding the quota. No, there is no registration system for employers who wish to hire foreign nationals in the immigration offices, though they can Meanwhile, there is a numerical limitation in the number of nurses register their wishes at a public job-placement office in order to look and caregivers from the Philippines, Indonesia, and Vietnam in the for foreign citizens within Japan. bilateral agreements.

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require individuals to have a Bachelor’s degree or 10 years’ job 4.7 Are there restrictions on the number of foreign experience in a relevant field, and they are only permitted to take up workers an employer may sponsor, in relation to positions which require such high skills. In addition to the above a maximum percentage of foreign workers in the statuses, in 2012 Japan started a points-based evaluation system employer’s workforce? – a promotion to receive a larger number of further highly skilled foreign professionals by giving preferential immigration treatment. Except for foreign workers holding “Technical Intern” legal This new HSP (Highly Skilled Professional) visa also requires a status, there is no restriction on the number of foreign workers in a contract of employment with an organisation in Japan for the first sponsorship arrangement. five years. An employer may sponsor no more than 5% of the total number of Japan their regular employees as Technical Interns. 6 Investment or Establishment Work

4.8 Are employees who are sponsored to work in your Permits jurisdiction required to demonstrate language proficiency? 6.1 Is there an immigration category which permits employees to be authorised to work based on No, in general employees who are sponsored to work in Japan investment into your jurisdiction? are not required to have language proficiency. In the meantime, a person applying for an HSFP or Highly Skilled Foreign Professional Yes, there is an “Business Manager” category which permits visa status through the points-based evaluation system can receive employees to work in Japan that were dispatched by a company extra points by demonstrating their Japanese language proficiency. which has invested into Japan. This status requires a real business office and business plan in addition to the investment, andthe 4.9 Are employees who are sponsored to work in your employees should engage in the operation or management of the jurisdiction required to undergo medical examinations company in Japan. before being admitted?

No, employees are not required to undergo any medical examinations 7 Temporary Work Permits in general before being admitted to Japan; however, if a foreign national is found at a port of entry to have certain infectious diseases 7.1 Is there an immigration category permitting the that are designated in the immigration law, they shall be denied hiring of temporary workers for exchanges, career entry to Japan. In addition, the law says that any person who, due to development, internships or other non-economic a mental disorder, is unable to distinguish right from wrong, shall be purposes? denied permission to enter Japan. Yes, there are “Trainee” and “Cultural Activities” categories covering foreign nationals who are to study in a private organisation 4.10 Are employers who are sponsored to work in your jurisdiction required to have medical insurance or are on the job. If he or she is an employee of an organisation outside they entitled to any free public medical services? of Japan, a trainee visa is applicable. If he or she is a student belonging to an overseas university and their working for a certain In principle, all employers with any nationality are required to be organisation in Japan will help them to acquire academic credits enrolled in a health insurance system. from the university, the Cultural Activities or Designated Activities visa is applicable. Some municipalities offer a free medical service to children of any nationality. 7.2 Are there sector-specific temporary work permit categories which enable foreign workers to perform 4.11 Does the work permit system allow employees who temporary work? hold work permits to be seconded to a client site? No, there are no specific temporary work categories. However, the Japan does not have a work permit system. Work visa statuses period of stay granted by the immigration authorities varies from with Resident Cards allow a foreign national to engage in activities three months to five years. A work visa with a three-month duration permitted within their status of residence. Most work-type statuses enables foreign workers to perform temporary work within the of residence will allow employees to work at a client site or to be permitted activities in each category. seconded to another organisation when salaries are paid by the visa sponsor recipient company or the dispatching company, directly to the employees who are still working under its supervision. 8 Group or Intra-Company Transfer Work Permits 5 Highly Skilled Visas 8.1 Does a specific immigration category exist for inter- company transfers within international groups of 5.1 Is there an immigration category which covers highly companies? skilled individuals? Yes, an “Intra-Company Transferee” status exists in the work Yes, there is a highly skilled workers category in Japanese status categories, serving transfers within international groups of immigration law. In fact, most work-type statuses of residence companies.

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8.2 What conditions must an employing company or 8.9 What are the main government fees associated with organisation fulfil in order to qualify as part of a group this type of visa? of companies? No fee is required for a Certificate of Eligibility application, while A company or organisation which will accept an employee with 4,000 yen should be paid when the status and resident card is Intra-Company Transferee status must have a certain capital tie with renewed within Japan. the dispatching company.

9 New Hire Work Permits Japan 8.3 What conditions must the employer fulfil in order to obtain a work permit for an intra-company group employee? 9.1 What is the main immigration category used for employers who wish to obtain work permits for new The employer has to pay the transferee a salary no less in total hires? than that of a Japanese employee engaging in similar activities. The employee must have been employed at the dispatching Other than the “Intra-Company Transferee” status, the main work organisation or other related office outside of Japan for at least one visa status categories are “Engineer/Specialist in Humanities/ year immediately prior to the transfer to Japan, during which time International Services”, and “Business Manager”. Unlike some he or she was engaged in duties which fall under the categories of European countries, there is no work permits system in Japan, as “Engineer/Specialist in Humanities/International Services”. a work visa itself will lead to a Resident Card which allows the employee to work without obtaining any additional permission. In the following sections a “Resident Card” is called “work permit”, 8.4 What is the process for obtaining a work permit for an intra-company group employee? since the card with work status certifies eligibility to work in Japan.

First of all, the recipient organisation in Japan needs to proceed with 9.2 Is there a requirement for labour market testing, an application for a Certificate of Eligibility being filed at a regional to demonstrate that there are no suitable resident immigration bureau office in Japan. workers, before a work permit can be issued to new hires?

8.5 What is the process for the employee to obtain a visa No, there is no requirement for labour market testing. During the under the intra-company group transfer category? evaluation of an application for a Certificate of Eligibility by the immigration office, they examine whether: proposed job descriptions The employee should apply for a working visa with an issued in Japan require high skills and knowledge; the applicant has Certificate of Eligibility at a Japanese embassy or consulate located enough educational background or job experience; the employer in either the country where they reside or that of their nationality. has a stable financial background to hire the applicant; and other factors. Essentially, the jobs foreign workers are allowed to engage 8.6 How long does the process of obtaining the work in within each category of work status of residence seem to have permit and initial visa take? been designed not to invade the labour market of Japanese nationals.

It would take one to three months for an immigration office in Japan 9.3 Are there any exemptions to carrying out a resident to issue a Certificate of Eligibility, and then it would take two to labour market test? seven days to issue a work visa at a Japanese overseas mission with the Certificate of Eligibility. No; as mentioned in question 9.1 above, the resident labour market test itself is not required for any type of work status. Meanwhile, 8.7 How long are visas under the “initial” category valid Technical Intern status is given to only certain job types designated for, and can they be extended? by the regulation.

The validity of visas should be three months to one year or longer, 9.4 What is the process for obtaining a work permit for a which cannot be extended. The visa is used for a landing application new hire? at a port of entry to Japan only. At the airport, a landing permission and a Resident Card will be issued by the work visa with a duration Although there is no work permit needed in addition to work visa of stay of three months, one year, three years or five years. This status, the process starts with the employer filing an application duration of work status can be extended at a regional immigration for the Certificate of Eligibility at a regional immigration bureau, office in Japan. followed by the employee applying for a work visa with the Certificate of Eligibility at a Japanese overseas mission upon the 8.8 Can employees coming under the intra-company issuance of the Certificate. At the time of landing permission at the transfer route apply for permanent residence? airport of entry, a Resident Card is issued, which will be evidence for a work permit, allowing the employee to work within the range Yes, employees with Intra-Company Transferee status can apply specified by the status of residence and period, which areboth for permanent residence after 10 years’ consecutive stay in Japan. indicated on the card. If a new hire is living in Japan, the change of When he or she has a HSP visa type with a high score, permanent status application within Japan is available. residence can be applied for only after one year’s stay.

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9.5 What is the process for the employee to obtain a visa 9.10 What are the main government fees associated with as a new hire? this type of visa?

The employee should apply for a work visa with the Certificate No fee is required for a Certificate of Eligibility application, while of Eligibility at a Japanese overseas consulate office upon the 4,000 yen should be paid when the status and resident card is issuance of the Certificate issued by a regional immigration bureau. renewed within Japan. Afterwards, the employee should apply for a landing permission at the airport of entry with the work visa issued by the overseas consulate office. A residence card will be issued together with 10 Conditions of Stay for Work Permit Japan the landing permission. The card itself can be a “work permit,” Holders allowing the employee to work for the employer in Japan.

If the employee is staying with a temporary visitor status in Japan 10.1 What are the conditions of stay of those who obtain at the time of issuance of the Certificate of Eligibility, his or her work permits and are resident on this basis? temporary status may be changed into a work status at a regional immigration bureau within Japan; so they do not need to leave Japan Foreign nationals who obtain a work permit, i.e. a Resident Card, and obtain a visa at a Japanese embassy or consulate overseas. In can only engage in the activities allowed within the status of this case, the Residence Card, i.e. the work permit, will be issued residence for a limited period stated in the card, which is renewable. at the immigration bureau after the change of status application If they have changed their place of residence, they are asked to bring has been granted permission. Please note that this change of status their Resident Cards to the municipal office and notify the residence. procedure is an exception, and only applied on special grounds. If they leave an organisation and move into another organisation, notification of their change of employer to a local immigration 9.6 How long does the process of obtaining the work office is required. If duties in the new organisation are not within permit and initial visa for a new hire take? the permitted status of residence, an application for change of status should be filed. It would take two to four months or longer in total from the Certificate of Eligibility process to the granting of a Resident Card, i.e. a work 10.2 Are work permit holders required to register with permit for a new hire, as it would take one to three months to receive municipal authorities or the police after their arrival? a Certificate of Eligibility, a week or so for a work visa, and a few days for the work permit, i.e. the Resident Card. Yes, work permit holders, i.e. Resident Card holders, are required to register their residential address at the local municipal office within 9.7 How long are initial visas for new hires granted for two weeks of settlement, though they are not required to go to the and can they be extended? police.

The duration of “initial” status, which includes an initial visa, as well as a Resident Card, is three months, four months, six months, 11 Dependants one year, three years or five years. It can be extended in Japan as the Resident Card can be renewed by an application of extension of 11.1 Who qualifies as a dependant of a person coming to period of stay. The application is allowed to be filed from the date work on a sponsored basis? of three months prior to the expiry date. A spouse and unmarried children supported by a work status 9.8 Is labour market testing required when the employee holder are qualified as “dependants” when they are living with the extends their residence? employee.

No, there is no market testing when the employee extends their 11.2 Do civil/unmarried or same-sex partners qualify as residence. When the employee files an application for an extension family members? of their period of stay, their income, payment of tax and social insurance, job descriptions, the financial condition of the employer Yes, civil/unmarried partners have a chance to be qualified as family company and other factors will be examined, although no labour members by the immigration authorities upon application, but their market testing is carried out. status will never be that of a “dependant”. It is not always permitted, but sometimes they are granted a 9.9 Can employees coming as new hires apply for “designated activities” status, only when the Minister of Justice permanent residence? finds some humanitarian ground for their living together in Japan. A same-sex partner with an official marriage certificate may have No, currently a new hire to Japan is not able to apply for permanent the same status. residence since there is a requirement of minimum duration of stay before an employee can apply for permanent residence. In general they can apply for Permanent Residency after a 10-year stay, and 11.3 Do spouses and partners have access to the labour if they are found to make a good contribution to Japan, the PR market when they are admitted as dependants? application can be filed after a five-year stay. In addition, foreigners with a score of over 80 HSP or Highly Skilled Professional status Spouses and partners are not admitted to work in Japan. When can obtain permanent residency after only one year’s stay in Japan. they receive permission to take a part-time job, upon application for “permission to engage in activity other than that permitted by

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the status of residence previously granted”, they can work up to (2) The person has stayed in Japan for more than five years 28 hours a week. Meanwhile, a spouse of an HSP (Highly Skilled consecutively with the status of long-term resident. Professional) status holder is allowed to engage in full-time work (3) The person has been recognised as a refugee, and has without the above permission. stayed in Japan for more than five years consecutively after recognition. (4) The person has been recognised to have made a 11.4 Do children have access to the labour market? contribution to Japan in diplomatic, social, economic, cultural or other fields, and has stayed in Japan for more than No, the children of a work visa status holder do not have labour five years. market access. They can work up to 28 hours per week upon

Japan (5) The person has stayed in Japan for more than three years additional permission by the immigration authorities. consecutively with the status of HSP over 70 points. (6) The person has stayed in Japan for more than one year 12 Permanent Residence consecutively with the status of HSP over 80 points.

12.2 Is it possible to switch from a temporary work visa to 12.1 What are the conditions for obtaining permanent a work visa which leads to permanent residence? residence?

Yes, it is possible to switch from temporary visitor visa to work The conditions for obtaining permanent residence, as published in a visa status in some circumstances, although there is no temporary Guideline by the Minister of Justice, are as follows: work visa in Japan. Work visa status can be changed to permanent 1. Legal requirements residence only when the applicant fulfils all the requirements stated (1) The person is of good conduct. in question 12.1, including the condition regarding the length of The person observes Japanese laws and his/her daily living as time spent living in Japan. a resident does not invite any social criticism. (2) The person has sufficient assets or ability to make an independent living. 13 Bars to Admission The person does not financially depend on someone in society in his daily life, and his/her assets or ability, etc. are 13.1 What are the main bars to admission for work? assumed to continue to provide him/her with a stable base of livelihood into the future. The main bar to admission for work in Japan is the fact that foreign (3) The person’s permanent residence is regarded to be in nationals can engage only in the jobs which require high-level accord with the interests of Japan, as follows: skills. For instance, hotel jobs, e.g. receptionist, bell person or room a) In principle, the person has stayed in Japan for more service person, are generally not admitted. In addition, “skills” are than 10 years consecutively. It is also required that evaluated by possession of Bachelor’s degree or equivalent; or a during his/her stay in Japan the person has had a work 10-year high-skill job experience. Other bars include criminal permit or the status of residence for more than five years consecutively. conviction, certain infections, illegal stay record, and deportation from Japan. b) The person has never been sentenced to a fine or imprisonment. The person fulfils public duties such as tax payment. 13.2 Are criminal convictions a bar to obtaining work c) The maximum period of stay allowed for the person permission or a visa? with his/her current status of residence under Annexed Table 2 of the Immigration Control and Refugee Yes, criminal convictions are a bar to obtaining work permission Recognition Act is to be fully utilised. and a visa. The immigration law of Japan says a person who has d) There is no possibility that the person could do harm been convicted of a violation of any law or regulation of Japan, or of from the viewpoint of the protection of public health. any other country, and has been sentenced to imprisonment for one N.B. Requirements (1) and (2) above do not apply to spouses year or more, or to an equivalent penalty, shall be denied permission and children of Japanese nationals, special permanent to land in Japan. residents or permanent residents, and requirement (2) does not apply to those who have been recognised as refugees. 2. Special requirements for 10-year residence in principle (1) The person is a spouse of a Japanese national, special permanent resident or permanent resident, has been in a real marital relationship for more than three years consecutively, and has stayed in Japan for more than one year consecutively. Or the person is a true child of a Japanese national, special permanent resident or permanent resident, and has stayed in Japan for more than one year consecutively.

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Masahito Nakai Nakai Immigration Services LPC 6th floor, Shiba Kaga Bldg. 2-3-1 Shiba Koen, Minato-ku Tokyo 105-0011 Japan

Tel: +81 3 6402 7654 Fax: +81 3 6402 7650 Email: [email protected]

URL: www.tokyovisa.co.jp Japan

Masahito Nakai started his practice in March 1992 in Tokyo and is widely recognised as one of the leading immigration lawyers in Japan. Masahito has been a lecturer and speaker on immigration law issues on numerous occasions, including at an American law school, Tsukuba University, Nagoya University, the India IT Club, and the foreign Chambers of Commerce in Tokyo, as well as at the International Bar Association. He is a member of the Gyoseishoshi Lawyers Association. In addition, he has been the chair of JILPA (the Japan Immigration Law Practitioners Association) since its foundation in August 2011. The association now has about 100 members. The organisation has provided a monthly course to about 70 immigration lawyers. Masahito is currently the Managing Partner of Nakai Immigration Services LPC.

Nakai Immigration Services LPC is one of the largest and longest-established immigration law firms in Japan. The firm has two offices in Tokyo and one in Osaka and is comprised of seven Gyoseishoshi immigration lawyers, a New York attorney, and over 10 multilingual staff members including some from Europe, Australia and China; with an adviser who’s a former director general of Tokyo immigration bureau. They have filed applications to the immigration offices every day over a 25-year period, to provide extensive, quality service to thousands of corporate clients, including more than 400 listed companies worldwide and leading foreign law offices in Tokyo. The university of Tokyo is one of their regular clients, and they send consultants to the three campuses every week. At the same time the law office has been taking care of numerous individual clients to obtain permanent residency and various work permits, with foreign language communication services in English, Spanish, German, Portuguese, Korean, Chinese, and other languages, by handling a range of complex cases including deportation and denial of landing permission in a quick and efficient manner.

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Luxembourg Philippe Schmit

Arendt & Medernach Françoise Faltz

Citizens of the following third countries currently do not require 1 Introduction a visa for short stays (i.e. less than 90 days): Albania; Andorra; Antigua and Barbuda; Argentina; Australia; Bahamas; Barbados; 1.1 What are the main sources of immigration law in your Bosnia-Herzegovina; Brazil; Brunei; Canada; Chile; Costa Rica; jurisdiction? Croatia; Dominica; El Salvador; Former Yugoslav Republic of Macedonia (FYROM); Grenada; Guatemala; Honduras; Hong The main source is the Law of 29 August 2008 on the freedom of Kong; Israel; Japan; Macao; Malaysia; Mauritius; Mexico; Monaco; movement and immigration (the “Immigration Law”), as recently Montenegro; New Zealand; Nicaragua; Northern Mariana Islands; amended by the law of 8 March 2017. Panama; Paraguay; St. Kitts and Nevis; Samoa; St. Lucia; Serbia; Seychelles; Singapore; South Korea; St. Vincent and the Grenadines; Taiwan; Timor-Leste; Trinidad and Tobago; United Arab Emirates; 1.2 What authorities administer the corporate immigration the United States of America; Uruguay; Vanuatu; and Venezuela. system in your jurisdiction? The concerned citizens can stay for maximum 90 days during any period of 180 days in Luxembourg or the Schengen Area for The Immigration Directorate – Department for Foreigners of the business purposes. Ministry of Foreign and European Affairs administers all aspects of immigration including corporate immigration. Citizens from the other third countries can enter on the basis of a short stay visa (visa C) to transit through or stay in the Schengen area or for a long stay visa (visa D). 1.3 Is your jurisdiction part of a multilateral agreement between countries (EU/NAFTA/MERCOSUR) which facilitates the movement of people between countries 2.2 What is the maximum period for which business for employment purposes? visitors can enter your jurisdiction?

Luxembourg is a founding Member State of the EU, as well as the Third-country nationals may enter the Luxembourg territory for Schengen Area, and is a member of the EEA (European Economic business reasons either for a short stay (i.e. maximum 90 days), with Area). or without a visa (depending on the concerned person’s citizenship), It grants immigration and employment of EU, EEA, and EFTA or a long stay (i.e. for a period exceeding 90 days), subject to a (European Free Trade Association) citizens in compliance with the temporary residence authorisation and a long-term residence permit. EU freedom of movement principle. EU citizens as well as third-country nationals whose direct relatives 2.3 What activities are business visitors able to are EU nationals do not need to secure a permit or visa to enter and undertake? work in Luxembourg. Within the Schengen territory all internal borders were abolished Business visitors who come to Luxembourg on a short-term to create one single external border. The Schengen Agreement also basis can undertake business trips (visiting professional partners, proclaims shared common rules and procedures for visas for short negotiating and concluding contracts, etc.), participate in board of stays, asylum requests and border controls. directors’ meetings and general meetings or provide services within a group of companies.

2 Business Visitors 2.4 Are there any special visitor categories which will enable business visitors to undertake work or provide services for a temporary period? 2.1 Can business visitors enter your jurisdiction under a relevant visa waiver programme? Yes, but subject to prior authorisation by the authorities. EU citizens do not need a permit or visa to enter and/or work in It is further to be noted that the Immigration Law provides for the Luxembourg. This benefit is in principle also granted to third- possibility to use Luxembourg as a back-up centre. In case a serious country nationals whose direct relatives are EU nationals as well as incident occurs in a third country, the relevant foreign company to EEA or EFTA nationals. may temporarily, and on very short notice, send employees to

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Luxembourg in order to ensure business continuity, subject to a pre- In case an employer located in Luxembourg wishes to employ a clearing procedure. non-EU or non-EEA/Swiss national for a period exceeding 90 days, the general procedure is as follows:

2.5 Can business visitors receive short-term training? The employer must notify the job vacancy to the public Employment Development Agency (Agence pour le développement de l’emploi, This is currently not expressly foreseen under the Immigration Law ADEM). and would have to be verified on a case-by-case basis. The notification must state that the employer intends to employ a non-EU or non-EEA/non-Swiss national. If the ADEM cannot fill the vacancy with a registered European jobseeker within three 3 Immigration Compliance and Illegal weeks, the employer may apply to ADEM for a certificate entitling Working the employer to recruit a non-EU or non-EEA/non-Swiss national. Luxembourg Such certificate will be granted only under the condition that the employment of a non-EU or non-EEA/non-Swiss national meets 3.1 Do the national authorities in your jurisdiction operate a system of compliance inspections of employers Luxembourg’s national interests. who regularly employ foreign nationals? Once the employer has found a suitable non-EU candidate, it may sign an employment contract with him/her. Illegal working is controlled by the Luxembourg police and While still in his/her country of residence, the prospective employee by customs officers. It can also be controlled by the Labour must lodge an application with the Luxembourg Immigration Inspectorate and by the department of the Ministry of Economy Directorate of the Ministry of Foreign and European Affairs which is in charge of delivering business permits. These authorities for a temporary residence authorisation. The application must have to notify the tax and the social security administrations of any be accompanied by various documents, including a copy of the offences observed. employment contract and of the employer’s ADEM certificate permitting it to employ a non-EU or non-EEA/non-Swiss national. 3.2 What are the rules on the prevention of illegal Alternatively the prospective employee may authorise the working? prospective employer to make the application on his/her behalf. Once a temporary authorisation to stay has been granted, the The employer must verify that an authorisation to stay (or working employee may lawfully enter Luxembourg territory. Depending on permit, depending on the case) has been granted to the employee the individual’s country of origin, he/she must also secure a visa before he/she is recruited as well as during the working relationship. before entering the country. During his/her employment, the employee has to keep a copy of Upon his/her arrival in Luxembourg, the employee must make a his/her authorisation to stay with him/her for possible examination declaration of arrival to the local authorities in the area where he/ which may occur from time to time. The employee must also spontaneously inform the employer, should the employee’s she intends to live, and undergo a medical examination. authorisation to stay (or working permit, depending on the case) After the medical examination and within 90 days of arrival, the forfeit during the working relationship. employee must apply for a long-term residence permit to the Ministry of Foreign and European Affairs.

3.3 What are the penalties for organisations found to be For any employment lasting less than 90 days, the employer must employing foreign nationals without permission to notify ADEM of the vacancy and obtain a certificate permitting work? employment of a non-EU or non-EEA/non-Swiss national and then sign an employment contract with the individual concerned. Employers who illegally employ one or more employees from third The employee (or the employer on his/her behalf) must then apply countries with no valid authorisation to stay and work in Luxembourg to the Immigration Directorate for a work permit, entitling him/ may face administrative, financial and criminal sanctions. her to work in Luxembourg for the relevant period. On arrival in In addition, the sanctioned employer can be forced to pay any Luxembourg, the employee only needs to declare his/her arrival to outstanding remuneration to the illegally employed third-country the local authorities. national as well as an amount equal to any taxes and social security contributions that the employer would have paid, including relevant 4.2 Do employers who hire foreign nationals have administrative fines or legal fees. ongoing duties to ensure immigration compliance?

4 Corporate Immigration – General Pursuant to Luxembourg law, any employer employing foreign nationals must verify whether the concerned employees meet all the applicable legal requirements in order to perform the contemplated 4.1 Is there a system for registration of employers who activity on Luxembourg territory. wish to hire foreign nationals?

4.3 Do the immigration authorities undertake routine The employment of nationals of any EU Member State, other EEA inspections of employers who sponsor foreign countries and Switzerland is not subject to specific requirements. nationals, to verify immigration compliance? If EU nationals or EEA/Swiss nationals intend to stay in Luxembourg for more than three months, they must merely declare No specific controls are foreseen by the Immigration Law. However, their arrival and obtain a registration certificate from the local the Labour and Mines Inspectorate controls whether working authorities in the area where they are living. conditions and legal requirements are being complied with.

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4.4 Do the immigration authorities maintain a list of 4.10 Are employees who are sponsored to work in your skilled occupations which may be filled by foreign jurisdiction required to have medical insurance or are nationals? they entitled to any free public medical services?

No specific list of skilled occupations to be filled by foreign nationals In principle, any person staying in Luxembourg for a period is in place or about to be established. exceeding 90 days and/or carrying out an activity on Luxembourg However, the Immigration Law foresees the possibility to apply territory needs to be covered by health insurance. In some cases, for a residence permit as a “highly qualified employee”. The given non-EU/non-EEA nationals may have to provide proof of private residence permit is generally treated as a priority by the Ministry of health cover before being granted a visa. Foreigners intending to Foreign and European Affairs and the residence permit in question live in Luxembourg without an occupation must produce some proof of health insurance in order to obtain a residence permit. Luxembourg is valid for four years. In case an employer would like to employ a highly qualified employee it does not need to follow the labour market test and obtain the above-mentioned ADEM certificate. 4.11 Does the work permit system allow employees who Luxembourg immigration law generally encourages the hiring of hold work permits to be seconded to a client site? highly skilled foreigners. This is possible as the employee remains the employee of his/her 4.5 Is there a recognition that some occupations may be initial employer. in short supply and do special exemptions apply to certain sectors and occupations? 5 Highly Skilled Visas The Immigration Law facilitates the immigration of certain IT specialists and scientists by providing less burdensome immigration 5.1 Is there an immigration category which covers highly requirements. skilled individuals?

4.6 Are there annual quotas for different types of Specific rules apply, under the “European Blue Card” scheme, to employment-related work permits or visas? highly qualified non-EU or non-EEA/Swiss workers, which are defined as workers in possession of a higher education degree or No, this is not foreseen by the Immigration Law. at least five years of highly skilled work experience. An employer wishing to recruit such an employee does not need to obtain a certificate from the ADEM permitting employment of anon- 4.7 Are there restrictions on the number of foreign EU/non-EEA/non-Swiss national. The market test is hence not workers an employer may sponsor, in relation to applicable to highly qualified workers. The employing entity must a maximum percentage of foreign workers in the sign an employment contract with the prospective employee. The employer’s workforce? prospective employee must apply to the Immigration Directorate of the Ministry of Foreign and European Affairs for a temporary No, this is not foreseen by the Immigration Law. residence certificate, providing a copy of an employment contract with a duration of at least one year, and proof of an offer of 4.8 Are employees who are sponsored to work in your remuneration above a certain level (generally 1.5 times the average jurisdiction required to demonstrate language gross pay in Luxembourg). If the certificate is granted, the employee proficiency? must obtain an entry visa, if required, and, once in Luxembourg, must declare his/her arrival to the local authorities and undergo a No, this is not foreseen by the Immigration Law. medical examination. Within 90 days of arrival, the employee must apply to the Ministry of Foreign Affairs for the residence permit as highly qualified employee (the European Blue Card). 4.9 Are employees who are sponsored to work in your jurisdiction required to undergo medical examinations The holder of the European Blue Card may work in any highly- before being admitted? qualified position and may, after a certain waiting period, take up another position within Europe without securing a prior authorisation When an employer wishes to recruit a new employee, the employee in the concerned foreign country. must undergo a medical check with the occupational health practitioner of the occupational health service with which the 6 Investment or Establishment Work employer is affiliated, irrespective of the employee’s citizenship. Permits The practitioner will determine whether the employee’s health status allows him/her to fill the contemplated position. After the recruitment of an employee, the employer must, in certain 6.1 Is there an immigration category which permits cases, also organise regular medical examinations. employees to be authorised to work based on investment into your jurisdiction? Third-country nationals who require a residence permit in Luxembourg must further undergo a medical examination before they are granted a An amendment to the Immigration Law introduced a resident permit residence permit, based on the requirements of the Immigration Law. for investors from third countries. This examination will be carried out by an accredited medical doctor in Luxembourg. In order to be granted a residence permit as an investor, a third- country national interested in investing in Luxembourg may opt for Any person refusing to undergo the required examination will be one of the following investments: denied a residence permit as it is a preliminary condition for the application for a residence permit.

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■ invest at least EUR 500,000 in an existing Luxembourg seasonal work in Luxembourg for a maximum period of five months company and commit to maintaining the existing jobs for over a reference period of one year whilst maintaining his/her main five years, except if the company is in difficulties at the time residence in a third country. of purchase, in which case the aforementioned employment condition is not applicable; ■ invest at least EUR 500,000 in a new Luxembourg company 8 Group or Intra-Company Transfer Work and commit to creating at least five jobs in the next three Permits years (the vacancies have to be filled in collaboration with the Luxembourg Employment Agency); ■ invest at least EUR 3,000,000 in an existing or new 8.1 Does a specific immigration category exist for inter- investment/management structure which has its registered company transfers within international groups of office in Luxembourg and has proven appropriate substance. companies? Furthermore, the investment and management structure must Luxembourg employ at least two people and have appropriate accounting A specific immigration category for temporary intra-group transfers and governance rules; or for third-country nationals has recently been implemented (inter- ■ deposit at least EUR 20,000,000 with a financial institution company transfer – ICT). established in Luxembourg and maintain this investment for The given residence permit allows a third-country national who at least five years. has entered into an employment contract with an undertaking established outside the territory of the European Union to be 7 Temporary Work Permits temporarily seconded for occupational or training purposes to a group entity which is established in the EU and should, where applicable, facilitate mobility between host entities established in 7.1 Is there an immigration category permitting the one or several other EU Member States. hiring of temporary workers for exchanges, career development, internships or other non-economic The holder of a valid ICT permit issued by a Member State is in purposes? principle allowed to enter, stay and work in one or more other Member States, in accordance with the provisions governing short- The Immigration Law foresees the possibility to apply for a term and long-term mobility, provided certain conditions are met. residence permit as a student, trainee or au pair. It is also possible to apply for a residence permit as a researcher or a professional 8.2 What conditions must an employing company or sportsman. Hence, several immigration possibilities exist for non- organisation fulfil in order to qualify as part of a group economic purposes. of companies?

Pursuant to the law of 2 September 2011 governing access to 7.2 Are there sector-specific temporary work permit artisanal, commercial or industrial activities in Luxembourg as well categories which enable foreign workers to perform temporary work? as certain liberal professions, companies which fulfil one of the following conditions may qualify as a group company: The Luxembourg Parliament recently passed a new law on ■ a company which has the majority votes of the shareholders immigration, implementing Directive 2014/36/UE on the conditions of another company; of entry and stay of third-country nationals for the purpose of ■ a company which has the right to nominate and to revoke the employment as seasonal workers and Directive 2014/66/UE on the majority of the members of the board of directors and which is at the same time a shareholder of the given company; conditions of entry and residence of third-country nationals in the framework of an intra-corporate transfer. ■ a company which has the right to exercise a dominant influence on another company of which it is a shareholder due The implementation of these two directives introduces four new to a contract concluded between the companies or because of categories of residence permits in Luxembourg, three of which are a provision in the statutes of the company; and of a temporary nature, namely the residence permit for seasonal ■ a company which is a shareholder or associate of a company workers, the residence permit in case of temporary intra-company and which, by way of an agreement with other shareholders and transfers, and the residence permit within the framework of a associates, controls by itself the majority of the voting rights. business continuity plan for non-EU companies. On top of these conditions, the Immigration Law foresees that the It is hence possible to opt for a residence permit within the group company must exercise the relevant activity for a duration of framework of a business continuity plan for non-EU companies. at least 24 months in another EU Member State, must be considered The business continuity plan allows a relevant foreign company to a medium-sized or large company and must genuinely carry on an temporarily send employees on very short notice to Luxembourg in activity in Luxembourg. order to ensure a business continuity plan in case a serious incident appears in a third country. 8.3 What conditions must the employer fulfil in order The residence permit for temporary intra-group transfers should to obtain a work permit for an intra-company group allow a third-country national who has entered into an employment employee? contract with an undertaking established outside the territory of the EU to be temporarily seconded for occupational or training The host company must prove that it belongs to the same group purposes to a group entity which is established in the EU. Where of companies as the concerned company, which is established in a applicable, it should also facilitate the mobility between host entities third country. established in one or several other EU Member States. It must prove that the citizen from the third-party country has been Furthermore, there exists a possibility to apply for a residence working in the given country for a period of at least three to 12 permit as a seasonal worker. The residence permit as a seasonal months prior to the intra-group transfer (for experts and upper worker will allow a given employee to legally reside and carry out management). For trainees, a period of six to 12 months is required.

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It must evidence that the concerned employee has entered into In case of an intra-group transfer, an employee must therefore apply an employment contract with the third-party country and present for a type D visa, which allows a stay of more than three months as an engagement letter of the initial employer which foresees the well as the possibility to work. duration of the transfer and the localisation of the host company, proof that the employee will be employed as upper management, 8.8 Can employees coming under the intra-company expert or trainee, remuneration as well as the working conditions transfer route apply for permanent residence? during the transfer period and proof that the concerned employee may return to work for a company of the group post transfer. Such a possibility seems rather unlikely in practice, as the intra- It must prove that the employee has the necessary qualifications and company transfer should by nature be temporary and limited in time experience to work for the host company. and the possibility to request permanent residence is subject to a stay in Luxembourg for at least five years. Luxembourg 8.4 What is the process for obtaining a work permit for an intra-company group employee? 8.9 What are the main government fees associated with this type of visa? Please refer to question 8.3 for the conditions. As regards the process, the transferred employee will be subject to In order to apply for a visa and for a residence permit, the applicant the general immigration procedure, meaning that he/she will first will be obliged to pay a tax to the Ministry of Foreign and European have to apply for an authorisation to stay, register with the local Affairs which amounts to about EUR 80. authorities, undergo a medical examination and then apply for a residence permit. 9 New Hire Work Permits

8.5 What is the process for the employee to obtain a visa under the intra-company group transfer category? 9.1 What is the main immigration category used for employers who wish to obtain work permits for new hires? The question of whether an employee is subject to a visa requirement or not before entering the country depends on his/her nationality. As The main immigration categories used are the residence permit regards the applicable process, a visa application must be submitted for ordinary employed persons and the residence permit for highly in the country of origin to the Luxembourg embassy or consulate in skilled employees. the given country. Ordinary employed persons are persons without a higher education degree or equivalent diploma. 8.6 How long does the process of obtaining the work Highly-qualified non-EU or non-EEA/non-Swiss workers are permit and initial visa take? defined as those evidencing a higher education degree or at least five years of highly-skilled work experience. For work permits, the process should not take more than three months as of the day the applicant has submitted the application for an authorisation to stay, including all the relevant documents, to the 9.2 Is there a requirement for labour market testing, to Immigration Directorate of the Ministry of Foreign and European demonstrate that there are no suitable resident workers, before a work permit can be issued to new hires? Affairs. In practice, the delays are often shorter. As a matter of Luxembourg law, all vacancies within a company In case the applicant has been granted an authorisation, she/he may have to be declared to the ADEM before the company is allowed subsequently apply for a residence permit. Again, the procedure to hire employees. The ADEM will check whether unemployed should not exceed three months. citizens of EU Member States would qualify for the considered As regards the application for a visa, the applicant must apply for vacancy. Should this be the case, it is unlikely that the certificate the said visa from his/her home country. The duration of the process which is necessary in order to employ a third-country national will be varies from one country to the other, but usually does not exceed a issued by the Luxembourg Employment Administration, unless the few business days. It is recommended to expect at least 15 business employer is able to justify why it prefers to employ a third-country days. national rather than an EU citizen (e.g. the vacant position requires extensive knowledge on the home country of the employing entity).

8.7 How long are visas under the “initial” category valid for, and can they be extended? 9.3 Are there any exemptions to carrying out a resident labour market test? In case a given person wants to stay in Luxembourg for fewer than 90 days over a period of 180 days, the applicant must apply for a The labour market test does not apply in case an employing entity type C visa. This type of visa will allow a stay of a maximum period would like to hire a highly qualified employee. of 90 days in Luxembourg over a period of 180 days. The given visa category does, however, not allow the visa holder to pursue a paid 9.4 What is the process for obtaining a work permit for a activity in Luxembourg. new hire? Should an applicant wish to carry out a paid activity, then he/she must apply for a type D visa. A type D visa is valid for a period of In case a foreign, non-EU national would like to take up office within 90 days to one year maximum. Luxembourg and reside on Luxembourg territory, he/she must first obtain a temporary residence authorisation and a subsequent long- term permit.

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The application for the residence authorisation/permit is divided into three practical steps. The first step is the application for the temporary 10 Conditions of Stay for Work Permit residence authorisation which the applicant must submit from his/ Holders her home country. As soon as the applicant has received his/her temporary residence permit, he/she may enter Luxembourg territory 10.1 What are the conditions of stay of those who obtain (in some cases, a prior application for a visa is, however, necessary). work permits and are resident on this basis? As a next step, the foreign non-EU national will have to register with a local municipality and undergo a medical test. After that, he/ No specific conditions apply. she can apply for the long-term residence permit.

10.2 Are work permit holders required to register with

9.5 What is the process for the employee to obtain a visa municipal authorities or the police after their arrival? Luxembourg as a new hire? Each foreign national who wants to apply for a long-term residence Foreign non-EU nationals may not take up work on the sole basis of permit in Luxembourg will need to register with the municipal a visa. Accordingly, each new hire must obtain a work permit before authorities upon his/her arrival in Luxembourg. starting work on Luxembourg territory, irrespective of the duration of service in Luxembourg. In addition, certain persons may be subject to a visa obligation before entering Luxembourg territory 11 Dependants (see question 2.1). 11.1 Who qualifies as a dependant of a person coming to 9.6 How long does the process of obtaining the work work on a sponsored basis? permit and initial visa for a new hire take? The following family members are generally permitted to accompany The issuance of a work permit may take up to three months as or join a foreign employee and live with him/her in Luxembourg: from the date of submission of all the requested documents to the ■ spouse or registered partner; Ministry of Foreign and European Affairs. In practice, shorter ■ direct descendants; and delays are often experienced. ■ direct ascendants. The application for a visa should not take more than a couple of In some cases, persons financially dependent on the foreign employee working days. or persons able to evidence a lasting relationship with the concerned employee are allowed to benefit from family reunification. 9.7 How long are initial visas for new hires granted for and can they be extended? 11.2 Do civil/unmarried or same-sex partners qualify as family members? A type D visa is granted for a period of 90 days to one year. An extension is possible; however, in general, it will not be necessary They do, provided they fulfil the above-mentioned conditions. provided the the applicant has received his/her long-term residence permit in the meantime. 11.3 Do spouses and partners have access to the labour market when they are admitted as dependants? 9.8 Is labour market testing required when the employee extends their residence? Family members of EU citizens (or citizens of a country treated as such) may access the job market without any prior authorisation. No, this is not necessary. Third-country national family members of an EU citizen may take up a remunerated activity subject to prior approval by the local 9.9 Can employees coming as new hires apply for immigration authorities. permanent residence?

It will be possible to apply for a permanent residence permit after a 11.4 Do children have access to the labour market? stay of five years in Luxembourg. Children have access to the labour market subject to certain limitations set by the Luxembourg Labour Code and prior approval 9.10 What are the main government fees associated with of the immigration authorities. this type of visa?

The applicant will be obliged to pay a tax to the Ministry of Foreign 12 Permanent Residence and European Affairs which amounts to about EUR 80.

12.1 What are the conditions for obtaining permanent residence?

The main condition for permanent residence consists in having officially resided in Luxembourg for an uninterrupted period of five years.

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accountants, doctors and leading positions in the financial industry. 12.2 Is it possible to switch from a temporary work visa to Certain qualifications and authorisations may be necessary to a work visa which leads to permanent residence? exercise regulated activities. In some cases, minimum language requirements apply. This is possible, subject to certain prior formalities.

13.2 Are criminal convictions a bar to obtaining work 13 Bars to Admission permission or a visa?

Depending on the conviction, a criminal conviction may constitute a 13.1 What are the main bars to admission for work? bar to obtaining residence permission or even a visa.

Luxembourg There are no specific bars to admission for work in Luxembourg except for regulated positions such as the professions of lawyers,

Philippe Schmit Françoise Faltz Arendt & Medernach Arendt & Medernach 41A, avenue J.F. Kennedy 41A, avenue J.F. Kennedy L-2082 L-2082 Luxembourg Luxembourg

Tel: +352 40 78 78 240 Tel: +352 40 78 78 240 Email: [email protected] Email: [email protected] URL: www.arendt.com URL: www.arendt.com

Philippe Schmit is a Partner in the Employment Law, Pensions & Françoise Faltz is an Associate within the Employment Law, Pensions Benefits practice. & Benefits practice. Philippe advises employers in the financial and industrial sectors on She advises employers in the financial and industrial sectors on all all aspects of the employment relationship. He also specialises in all aspects of the employment relationship (e.g. corporate restructuring matters related to restructuring and reorganisation, negotiation in the and transactions, negotiation and setting up of employment contracts, context of collective dismissals and collective bargaining procedures, review of employment contracts…). as well as any other HR aspects triggered by corporate restructuring, Françoise is also regularly involved in expatriation and immigration including M&A (e.g. transfers of undertakings). matters and provides legal advice with respect to business immigration. His practice encompasses advice on compensation and benefits Françoise has been a member of the Luxembourg Bar since June schemes, equity schemes, share options plans and pension schemes. 2015. Philippe also has extensive knowledge of expatriation matters and provides legal advice with respect to business immigration and all related aspects. He has been a member of the Luxembourg Bar since 2006. He is a member of several associations focusing on employment law, including the Employment Law Alliance.

Arendt & Medernach is the leading independent business law firm in Luxembourg. The firm’s international team of 325 legal professionals represents clients in all areas of Luxembourg business law, from our head office in Luxembourg and our foreign offices in Dubai, Hong Kong, London, Moscow, New York and Paris. Our specialised practice areas allow us to offer a complete range of Luxembourg legal services tailored to client’s individual needs across all areas of business law. Our firm advises international and domestic clients in all areas of business law relevant to their business activities, ranging from fund formation, banking, insurance, private equity and real estate to corporate and tax matters. Our Employment Law, Pensions & Benefits practice serves domestic and international institutional clients on day-to-day issues ranging from appointments to terminations, business immigration and expatriation, restructurings and corporate transactions, industrial relations, collective dismissals, collective bargaining negotiations, compensation and benefits schemes, equity schemes, pension schemes, restrictive covenants, data protection and privacy at work. We represent employers in all employment courts, defending dismissal and discrimination claims.

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Macedonia Dragan Dameski

Debarliev, Dameski & Kelesoska, Attorneys at Law Ema Dimitrieska

system in the Republic of Macedonia; however, temporary residence 1 Introduction permits and work permits are still required for all foreign nationals whose intention is to perform work in the Republic of Macedonia. 1.1 What are the main sources of immigration law in your jurisdiction? 2 Business Visitors The immigration law system in independent Macedonia was established in the 1990s and has since been amended. The latest 2.1 Can business visitors enter your jurisdiction under a change of the immigration law system took place in 2015 when relevant visa waiver programme? new Law on Employment and Work of Foreigners was adopted that provides Foreigners, as well as Macedonian authorities, a simpler According to the Law on Foreigners, business visitors are allowed and faster procedure for obtaining residence and work permits. to enter Macedonia without regulating their residence for business Thus, the main sources of immigration law in Macedonia are: visits, in which case they may stay in Macedonia no longer than 90 ■ Law on Employment and Work of Foreigners (Official days in every six-month period, calculated as of their first entrance Gazette of the Republic of Macedonia no.217/2015). into the country. ■ Law on Foreigners (Official Gazette of the Republic of Macedonia no.35/2006 and amended from time to time). 2.2 What is the maximum period for which business ■ Law on Labor Relations (Official Gazette of the Republic of visitors can enter your jurisdiction? Macedonia no.62/2005 and amended from time to time). ■ Rulebook on the manner for issuance of opinion for fulfilment As stated in the answer to question 2.1, business visitors are allowed of the conditions for issuing temporary residence permits for to enter Macedonia without regulating their residence for business the foreigner for work (Official Gazette of the Republic of visits, in which case they may stay in Macedonia no longer than 90 Macedonia no.117/2016). days in every six-month period, calculated as of their first entrance There are also a number of bylaws related to the regulation of the into the country. residence of foreign citizens in Macedonia; however, the stated laws and bylaws above are the main sources that regulate corporate 2.3 What activities are business visitors able to undertake? immigration. Even though the Macedonian immigration law system does not 1.2 What authorities administer the corporate immigration provide exact activities that business visitors are able to undertake system in your jurisdiction? without obtaining a residence/work permit, according to the established practice, as well as in accordance of the opinion of the The Government of the Republic of Macedonia, Ministry of Internal relevant authorities, the business visitors may reside in Macedonia Affairs of the Republic of Macedonia, Ministry of Foreign Affairs for: concluding agreements related to the business activity of the of the Republic of Macedonia, Ministry of Labour and Social Policy established company or a company that is in the process of founding; of the Republic of Macedonia and the Employment Agency of attending business meetings; undertaking activities related to the the Republic of Macedonia are the authorities that administer the establishment of a company, etc. However, according to practice, it corporate immigration system in Macedonia. is not allowed for business visitors to perform any activities which may be considered as work in accordance with the Law on Labor Relations, for which a work permit is required. 1.3 Is your jurisdiction part of a multilateral agreement between countries (EU/NAFTA/MERCOSUR) which facilitates the movement of people between countries 2.4 Are there any special visitor categories which will for employment purposes? enable business visitors to undertake work or provide services for a temporary period? The Republic of Macedonia strives to become a Member of the European Union and constantly harmonises its legislation to the The Law on Employment and the work of a foreigner provides legislation of the EU. This also refers to the corporate immigration law certain cases when the foreigner may provide services on the territory

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of the Republic of Macedonia only on the bases of registration of the beginning and end of their work in the Employment Agency, 3.2 What are the rules on the prevention of illegal without obtaining a work permit or temporary residence permit working? for work. Such cases are: creative services in the field of culture; services for trade fairs; short-term services provided by Foreigners; As stated in the answer to question 3.1, the State Labour Inspectorate, and works performed by Foreigners that reside in the Republic of as the state authority within the Ministry of Labour and Social Policy, Macedonia for studying and emergency services. conducts the inspection on whether the employers obey and act in accordance with the mandatory provisions of the labour regulations. However, the Law does not provide separate categories which would In the case of determined irregularities, such as but not limited to: enable business visitors to undertake work or provide services for a engaging employees without concluded employment agreements; temporary period, other than these stated in this sector. and engaging foreign employees without temporary residence Macedonia permit for work, i.e illegal working, the State Labour Inspectorate 2.5 Can business visitors receive short-term training? is entitled to impose a fine on the employer or may also oblige the employer within a certain period of time (usually eight days) to The Macedonian immigration law system does not contain any remove the irregularities. If the employer acts upon the decision specific provisions if business visitors may receive short-term and directions of the State Labour Inspectorate, the Inspectorate training. However, business visitors may receive short-term training shall not impose a monetary fine to the employer, which leads to the if these activities are not considered as doing work under the Law prevention of illegal working in future. on Labour Relations, as stated in the answer to question 2.3 above. 3.3 What are the penalties for organisations found to be 3 Immigration Compliance and Illegal employing foreign nationals without permission to work? Working The Law on Employment and Work of Foreigners stipulates that a 3.1 Do the national authorities in your jurisdiction operate fine of up to EUR 1,500 in case an employer allows, encourages or a system of compliance inspections of employers participates in illegal employment of Foreigners in the Republic of who regularly employ foreign nationals? Macedonia or of Macedonian citizens abroad, as well as a fine in the amount equal to 30% of the imposed fine to the company, shall be The Ministry of Internal Affairs keeps records of all foreign imposed to the responsible person (manager) of the employer. nationals in Macedonia as an integrated database for Foreigners, Also, pursuant to the Law on Labor Relations, a fine of up to EUR which contains data for all issued residence/work permits to foreign 7,000 may be imposed on the employer in the case that the employer nationals and their close family, as well as data for person/s where and employee did not conclude an employment agreement, a fine the foreigner resides in Macedonia. The data recorded in this equal to 30% of the imposed fine to the company shall also be database are also processed by the Ministry of Foreign Affairs, the imposed to the responsible person (manager) of the employer. Ministry of Labour and Social Policy and the Employment Agency. The Employment Agency also keeps records in electronic form of the foreign nationals who are employed or who work on the 4 Corporate Immigration – General territory of the Republic of Macedonia. The Employment Agency may collect, exchange or process data from the integrated database 4.1 Is there a system for registration of employers who for Foreigners kept by the Ministry of Internal Affairs. The wish to hire foreign nationals? Employment Agency is also obliged to provide monthly reports to the Public Revenue Office of employers that are employing foreign There is no separate system for registration of employers who wish nationals or that engage foreign nationals on the bases of service to hire foreign nationals in the Republic of Macedonia. agreements. The Ministry of Internal Affairs is entitled to visit and inspect if 4.2 Do employers who hire foreign nationals have the foreigner is residing at the address stated in the application ongoing duties to ensure immigration compliance? for obtaining the temporary residence permit; this is in addition to checking if the foreigner fulfils his/her obligations stipulated in the Generally, all employers who hire foreign nationals must ensure Law on Foreigners and other relevant laws. that they comply with all obligations as provided in the Law on In relation to inspections of employers, the regulations do not Employment and Work of Foreigners, Law on Foreigners, as well as distinguish the employers who regularly employ foreign nationals the Law on Labour Relations. from the employers who employ local nationals. The inspection The employers who hire foreign nationals must ensure that the of employers is performed by the State Labour Inspectorate, as an foreigner possesses a valid temporary residence permit for work or authorised state authority within the Ministry of Labour and Social a valid work permit. Also, the employers who hire foreign nationals Policy of the Republic of Macedonia. The State Labour Inspectorate must ensure that they have registered the beginning and the end determines if the employers are acting in accordance to the Law on of the work of the Foreigners with the Employment Agency as Labour Relations and the other relevant laws and bylaws related provided in the Law on Employment and Work of Foreigners. to labour relations, including (but not limited to) if, in the case of foreign employees, all requirements are met, such as: obtaining a valid temporary residence permit for Foreigners for work; 4.3 Do the immigration authorities undertake routine concluding an employment agreement; and a valid registration for inspections of employers who sponsor foreign the foreign employee in the Employment Agency, etc. nationals, to verify immigration compliance?

As stated in the answer to question 3.1, the State Labour Inspectorate

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conducts inspection to check that the employers of the territory of restrictions on the number of foreign workers that an employer may the Republic of Macedonia comply with the mandatory labour sponsor in relation to a maximum percentage of foreign workers in regulations. While conducting the inspection, the State Labour the employer’s workforce. Inspectorate inspects if the employer who has hired foreign nationals However, pursuant to the Law on Employment and Work of complies with the mandatory regulations referring to employment Foreigners, the quotas for different groups of permits as stated in the of foreigner. answer to question 4.6, may not annually exceed 5% of the population As also stated in the answer to question 3.1 above, the Ministry of the Republic of Macedonia that is legally employed, in accordance of Internal Affairs may also conduct inspections related to the with the information provided by the State Statistical Office. regulation of the stay of foreign nationals in Macedonia. 4.8 Are employees who are sponsored to work in your

4.4 Do the immigration authorities maintain a list of jurisdiction required to demonstrate language Macedonia skilled occupations which may be filled by foreign proficiency? nationals? The immigration laws in Macedonia do not stipulate a general The immigration authorities do not maintain a separate list of skilled obligation for the foreign employees to demonstrate language occupations which may be filled by foreign nationals. However, proficiency. However, the demonstration of language proficiency the authorities must ensure that employing a foreigner will not may be required in accordance to other special laws that are relevant influence the domestic unemployment, i.e. it should not increase for the employment of a certain foreign employee. domestic unemployment. In any case, the employer must prove that Also, due to the fact that all documents related to the employment of the foreigner possesses experience or skills that cannot be provided the foreign employee (such as the employment agreement) must be in by the domestic employees. Macedonian language or at least bilingual, it may be recommended that the foreign employees be familiar with the Macedonian language or attend a course for studying the Macedonian language. 4.5 Is there a recognition that some occupations may be in short supply and do special exemptions apply to certain sectors and occupations? 4.9 Are employees who are sponsored to work in your jurisdiction required to undergo medical examinations The authorities must ensure that employing a foreigner shall not before being admitted? influence domestic unemployment, i.e. it should not increase domestic unemployment. In any case, the employer must prove that the The immigration laws of the Republic of Macedonia do not foreigner possesses experience or skills that cannot be provided by stipulate an obligation for foreign employees to undergo medical domestic employees. If the authorities determine that such skilled examinations before being admitted, except otherwise stated in employees cannot be found within domestic unemployed nationals, other special laws. they will issue a positive opinion for the hiring the foreign national. In any case, when applying for a temporary residence permit, the Also, a permanent residence permit for the purpose of work may be foreign national must provide proof of valid health insurance issued issued to a foreigner who possesses high or scarce qualifications or by an authorised state body in the foreign country. education necessary for the operation of the relevant institution, or authority in the Republic of Macedonia. 4.10 Are employees who are sponsored to work in your jurisdiction required to have medical insurance or are they entitled to any free public medical services? 4.6 Are there annual quotas for different types of employment-related work permits or visas? When applying for a temporary residence permit for work, the applicant must provide proof of valid health insurance of the foreign The Minister of Labour and social policy suggest to the Government employee issued by an authorised state body in the foreign country. of the Republic of Macedonia quotas for work permits for Foreigners. The quotas are divided into groups of permits for the In the case of employment of the foreign national in Macedonia, following purposes: the foreigner shall be entitled to health insurance as granted to the domestic employees, in accordance with the Law on Labour ■ employment of foreign nationals in the Republic of Relations and the Law on Health Insurance. Macedonia; ■ season work of foreign national; and ■ separate services provided by foreign nationals. 4.11 Does the work permit system allow employees who hold work permits to be seconded to a client site? The quotas for each separate purpose determined by the Government shall be determined in accordance to the following priorities: All rights and obligations stipulated in the Law on Labour Relations ■ valid work permits; which apply to the Macedonian citizens are also applicable to the ■ work permits issued based on ratified international agreements foreign employees, thus the work permit system allows employees covering already agreed quotas; and who hold work permits to be seconded to a client site. ■ new work permits and temporary residence permits for work. 5 Highly Skilled Visas 4.7 Are there restrictions on the number of foreign workers an employer may sponsor, in relation to a maximum percentage of foreign workers in the 5.1 Is there an immigration category which covers highly employer’s workforce? skilled individuals?

The Law on Employment and Work of Foreigners does not stipulate There is not a separate immigration category which covers highly

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skilled individuals; however, as stated previously, the employer inter-company transfers within international groups of companies. must prove that the foreign national possesses skills and education The employer may apply for a temporary residence permit for that cannot be provided by the domestic employees. work for employees employed within the company group, to be transferred to work in a related company having a registered seat in the Republic of Macedonia for a period of no longer than one year, 6 Investment or Establishment Work in which the permit may be prolonged after its expiry. Permits

8.2 What conditions must an employing company or 6.1 Is there an immigration category which permits organisation fulfil in order to qualify as part of a group employees to be authorised to work based on of companies?

Macedonia investment into your jurisdiction? When applying for a temporary residence permit for work for The immigration laws do not provide special or separate procedures the transfer of a foreign employee within the company group, the for obtaining a temporary residence permit for work for foreign following documents are required: investors, nor categories which would allow employees to be ■ Act for the transfer of the employee to a temporary work in authorised to work on the bases of investment, thus the regular the organisational unit. procedures as provided in the immigration laws shall apply to ■ Trade register excerpt of the foreign company, as well as employees who have invested in Macedonia. trade register excerpt for the Macedonian company. However, the Law on Citizenship provides that Foreigners may ■ Employment agreement concluded between the foreign obtain Macedonian citizenship if this is of special scientific, company and the foreigner. economic, cultural, sports or other national interest, which includes ■ Copy of the foreigner’s passport. foreign investment. Based on the obtained Macedonian citizenship, ■ Proof of social insurance of the foreigner issued by an the foreigner may apply for a work permit for an indefinite period authorised body in the foreign country. of time in front of the Employment Agency of the Republic of Macedonia, which would allow the foreigner to register as ■ Proof of health insurance of the foreigner issued by an authorised body in the foreign country. unemployed person within the Employment Agency, as well as to apply for work on the whole territory of the Republic of Macedonia ■ Lease agreement as proof that the foreigner has provided and exercise all rights as provided in the Law on Labour Relations. accommodation in the Republic of Macedonia. ■ Proof for non-conviction and that there is no on-going criminal procedure against the foreigner issued by an 7 Temporary Work Permits authorised body in the foreign country.

7.1 Is there an immigration category permitting the hiring of 8.3 What conditions must the employer fulfil in order temporary workers for exchanges, career development, to obtain a work permit for an intra-company group internships or other non-economic purposes? employee?

The Law on Employment and Work of Foreigner provides certain When applying for a temporary residence permit for work for cases when a foreigner may provide services on the territory of the transfer of a foreign employee within the company group, the the Republic of Macedonia only on the bases of registration of the following documents are required: beginning and end of their work with the Employment Agency, ■ Act for the transfer of the employee to a temporary work in without obtaining a work permit or temporary residence permit the organisational unit. for work. Such cases are: creative services in the field of culture; ■ Trade register excerpt of the foreign company, as well as services for trade fairs; short-term services provided by foreigners; trade register excerpt for the Macedonian company. and works performed by foreigners that reside in the Republic of ■ Employment agreement concluded between the foreign Macedonia for studying and emergency services. company and the foreigner. ■ Copy of the foreigner’s passport. 7.2 Are there sector-specific temporary work permit ■ Proof of social insurance of the foreigner issued by an categories which enable foreign workers to perform authorised body in the foreign country. temporary work? ■ Proof of health insurance of the foreigner issued by an authorised body in the foreign country. As stated in the answer to question 7.1 above, foreign nationals may ■ Lease agreement as proof that the foreigner has provided perform temporary work without obtaining a work permit, but only accommodation in the Republic of Macedonia. on the basis of registration of the beginning and the end of the work ■ Proof for non-conviction and that there is no on-going with the Employment Agency. criminal procedure against the foreigner issued by an authorised body in the foreign country. 8 Group or Intra-Company Transfer Work Permits 8.4 What is the process for obtaining a work permit for an intra-company group employee?

8.1 Does a specific immigration category exist for inter- In order to obtain a temporary residence permit for work for company transfers within international groups of transfer of an intra-company group employee, the application companies? with all required and necessary documents stated in the answers to questions 8.2 and 8.3 above are submitted to the Ministry of Internal Yes, the Law on Employment and Work of Foreigners recognises

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Affairs. The Ministry of Internal Affairs requests an opinion from the Employment Agency related to the employment of the foreign 8.8 Can employees coming under the intra-company national, which the Employment Agency is obliged to give within transfer route apply for permanent residence? five days as of the day of receipt of the request. Based on the provided documents and the obtained opinion from Employees who possess temporary residence permit for work, the Employment Agency, the Ministry of Internal Affairs is obliged including intra-group transfer permit, may apply for permanent to issue a Decision for allowing or not allowing the temporary residence if they prove that they have continued uninterrupted residence to the foreigner, within 15 days as of the day of receipt residence in the Republic of Macedonia for five years. of the application. If the Decision is positive, the foreigner is obliged to apply for 8.9 What are the main government fees associated with this type of visa? issuance of an ID card (temporary residence permit for work). Macedonia The employer is obliged to register the beginning of the work of the foreigner with the Employment Agency on a prescribed form one Except the fees related to the collecting and providing of all day prior to commencing the work. necessary documents and translations of the same into Macedonian language, which are are payable by the employer or employee, there are administrative fees of up to EUR 130 for obtaining temporary 8.5 What is the process for the employee to obtain a visa residence permit for work and a Macedonian ID card. under the intra-company group transfer category?

It is possible for the employee to apply for a visa under the intra- 9 New Hire Work Permits group company transfer category in front of the Embassy of the Republic of Macedonia abroad, in which case all required documents as stated in the answers to questions 8.2 and 8.3 above 9.1 What is the main immigration category used for must be submitted. In this case, the Embassy of the Republic of employers who wish to obtain work permits for new Macedonia abroad delivers the application and the documents to the hires? Ministry of Internal Affairs in the Republic of Macedonia and to the Employment Agency. The Ministry of Internal Affairs and the The employer may apply for temporary residence permits for work Employment Agency inspect if all required conditions are met and for the following categories: give their opinion. ■ employment; After obtaining the opinion from the Employment Agency, the ■ intra-group transfer of foreign employees; Ministry of Internal Affairs issues a Decision for allowing or not ■ transfer of employees based on a concluded service agreement allowing a temporary residence permit for work to the foreigner. between a local company and a foreign company, in which If in the case of a positive decision, the foreign employee shall case the foreign employee must be employed in the foreign obtain Visa D in front of the Embassy of the Republic of Macedonia company; and abroad, and within five days as of the day of entrance in the Republic ■ seasonal work of foreigners. of Macedonia with the Visa D, the foreigner must pick up the Decision for allowing a temporary residence permit for work from the Ministry of Internal Affairs and apply for issuance of an ID card. 9.2 Is there a requirement for labour market testing, to demonstrate that there are no suitable resident After completing the procedure, the employer is obliged to register workers, before a work permit can be issued to new the beginning of the work of the foreigner with the Employment hires? Agency. In case of employment of a foreign national, the employer is 8.6 How long does the process of obtaining the work obliged to prove that the foreign national possesses certain skills permit and initial visa take? and education that cannot be provided by the domestic employees. However, the Employment Agency checks if the employment of In case the application for obtaining a temporary residence permit a foreign national has a negative influence on the labour market for work for intra-group transfer is submitted to the Ministry of in Macedonia, the domestic unemployment, the structure of the Internal Affairs by the employer, the Ministry of Internal Affairs employment or the needs for new employment positions. is obliged to issued a Decision for allowing or not allowing a temporary residence permit for work to the foreigner, within 15 days 9.3 Are there any exemptions to carrying out a resident as of the day of receipt of the application. labour market test? In case the application for obtaining a temporary residence permit for work for intra-group transfer is submitted to the Embassy of Resident labour market testing is not required in case of a transfer the Republic of Macedonia abroad by the foreigner, the procedure of foreign employees from a foreign company to a local company takes approximately three months as of the day of submission of the based on a concluded service agreement, intra-group transfer of application. employees and seasonal work of foreigners.

8.7 How long are visas under the “initial” category valid 9.4 What is the process for obtaining a work permit for a for, and can they be extended? new hire?

The temporary residence permit for work can be issued for no In order to obtain a temporary residence permit for work, the longer than one year and the same may be extended by applying application with all required and necessary documents stated in for an extension 30 days prior the expiry of the previously issued the answers to questions 8.2 and 8.3 above (as well as proof for temporary residence permit for work. completed education and special skills in case of employment

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of the foreign national) are submitted to the Ministry of Internal for an extension 30 days prior to the expiry of the previously issued Affairs. The Ministry of Internal Affairs requests an opinion from temporary residence permit for work. the Employment Agency related to the employment of the foreign national, which the Employment Agency is obliged to give within 9.8 Is labour market testing required when the employee five days as of the day of receipt of the request. extends their residence? Based on the provided documents and the obtained opinion from the Employment Agency, the Ministry of Internal Affairs is obliged to No, labour market testing is not required when the employee extends issue a Decision for allowing or not allowing a temporary residence their residence. permit for work to the foreigner, within 15 days as of the day of receipt of the application. 9.9 Can employees coming as new hires apply for

Macedonia If the Decision is positive, the foreigner is obliged to apply for the permanent residence? issuance of an ID card (which represents the temporary residence permit for work). Employees who possess a temporary residence permit for work may The employer is obliged to register the beginning of the work of the apply for permanent residence if they prove that they had continued foreigner in front of the Employment Agency on a prescribed form uninterrupted residence in the Republic of Macedonia for five years. within one day as of the day of commencing the work.

9.10 What are the main government fees associated with 9.5 What is the process for the employee to obtain a visa this type of visa? as a new hire?

Except the fees related to the collecting and providing of all It is possible for an employee to apply for a Visa D in front of the necessary documents and translations of the same into Macedonian Embassy of the Republic of Macedonia abroad, in which cases all language, which are payable by the employer or employee, there required documents as stated in the answers to questions 8.2 and 8.3 (as well as proof for completed education and special skills in case are administrative fees of up to EUR 130 for obtaining a temporary of employment of the foreign national) must be submitted. In this residence permit for work and Macedonian ID card. case, the Embassy of the Republic of Macedonia abroad delivers the application and the documents to the Ministry of Internal Affairs in 10 Conditions of Stay for Work Permit the Republic of Macedonia and to the Employment Agency. The Ministry of Internal Affairs and the Employment Agency inspect if Holders all required conditions are met and give their opinion. After obtaining the opinion from the Employment Agency, the 10.1 What are the conditions of stay of those who obtain Ministry of Internal Affairs issues a Decision for allowing or not work permits and are resident on this basis? allowing of a temporary residence permit for work to the foreigner. If in the case of a positive decision, the foreign employee shall The foreigner who has obtained a temporary residence permit for obtain Visa D in front of the Embassy of the Republic of Macedonia work may perform only the work for which the temporary residence abroad, and within five days as of the day of entrance in the permit for work was issued and within its validity period. Republic of Macedonia with the Visa D, the foreigner must pick up The temporary residence permit shall not be extended if it is the Decision for allowing a temporary residence permit for work established that the foreigner unjustifiably has not stayed in the from the Ministry of Internal Affairs and apply for the issuance of Republic of Macedonia for a period longer than one quarter of the an ID card. period of the validity of his/her temporary residence permit. After completing the procedure, the employer is obliged to register the beginning of the work of the foreigner with the Employment Agency. 10.2 Are work permit holders required to register with municipal authorities or the police after their arrival?

9.6 How long does the process of obtaining the work All foreign nationals are obliged to register within the local police permit and initial visa for a new hire take? station in the municipality of their residence in the Republic of Macedonia within 48 hours as of their arrival. However, this In case the application for obtaining a temporary residence permit only applies to foreigners who do not have regulated residence for work is submitted to the Ministry of Internal Affairs by the in the Republic of Macedonia or are in the process of obtaining a employer, the Ministry of Internal Affairs is obliged to issue temporary residence permit. Decision for allowing or not allowing temporary residence for After obtaining a temporary residence permit for work, the holders of work to the foreigner, within 15 days as of the day of receipt of the the permit are not obliged to register with the municipal authorities application. or police after their arrival. In case the application for obtaining a temporary residence permit for work is submitted to the Embassy of the Republic of Macedonia abroad by the foreigner, the procedure takes approximately three 11 Dependants months as of the day of submission of the application.

11.1 Who qualifies as a dependant of a person coming to 9.7 How long are initial visas for new hires granted for work on a sponsored basis? and can they be extended? Pursuant to the Law on Employment and Work of Foreigners, family The temporary residence permit for work can be issued for no members which are considered include: longer than one year and the same may be extended by applying

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■ spouse; ■ on the basis of a temporary residence permit for the purpose ■ children of the foreigner up to age of 18 years who are not of scientific research; married; ■ on the basis of a temporary residence permit for the purpose ■ children of the spouse of the foreigner up to age of 18 years of medical treatment; who are not married; ■ on the basis of a residence permit for humanitarian reasons; ■ parents of a minor foreigner; and ■ on the basis of temporary protection; ■ adult children who are not married and parents of the ■ as a recognised refugee or an asylum-applicant for whose foreigner or spouse, which the foreigner or the spouse is application there is no final decision in the procedure defined responsible to sustain according to the laws of the country of by law; and which the foreigner is a citizen. ■ on the basis of a legal statute regulated by the 1961

Vienna Convention on Diplomatic Relations, 1963 Vienna Macedonia Convention on Consular Relations or Vienna Convention 11.2 Do civil/unmarried or same-sex partners qualify as family members? on the Representations of States in Their Relations with International Organizations of a Universal Character.

The Law on Employment and Work of Foreigners does not contain A permanent residence permit for the purpose of work may be any specific provisions on civil/unmarried or same-sex partners and issued to a foreigner who possesses high or scarce qualifications or whether they qualify as family members. The Law on Employment education necessary for the operation of the relevant institution or and Work of Foreigners, beside that stated in the answer to question authority in the Republic of Macedonia. 11.1, provides that close family members of the foreigner shall also A permanent residence permit on the basis of a family reunion can be considered, other relatives who possess a residence permit in the be issued only to close family members of a foreigner who has Republic of Macedonia due to family reunion. previously obtained a permanent residence permit provided that they live together in a real matrimony or family union.

11.3 Do spouses and partners have access to the labour A foreigner whose residence is in the interests of the Republic of market when they are admitted as dependants? Macedonia can be issued a permanent residence permit prior to expiry of the time limit referred to in paragraph 1. All foreign nationals who obtained a temporary residence permit in the Republic of Macedonia based on any ground, including based 12.2 Is it possible to switch from a temporary work visa to on family reunion, are entitled to apply for a work permit with the a work visa which leads to permanent residence? Employment Agency and to have access to the labour market. As stated above, a permanent residence permit shall be issued 11.4 Do children have access to the labour market? to a foreigner who, prior to the submission of an application for a permanent residence permit, has stayed on the territory of the According to the Law on Labor Relations, children are allowed Republic of Macedonia for an uninterrupted period of a minimum to work if they are older than 15 years and in such cases certain of five years on the basis of a temporary residence permit. conditions should be met. Also, a permanent residence permit for the purpose of work may be issued to a foreigner who possesses high or scarce qualifications or education necessary for operation of the relevant institution or other 12 Permanent Residence authority in the Republic of Macedonia.

12.1 What are the conditions for obtaining permanent 13 Bars to Admission residence?

A permanent residence permit shall be issued to a foreigner who, 13.1 What are the main bars to admission for work? prior to the submission of an application for a permanent residence permit, has stayed on the territory of the Republic of Macedonia for The relevant authorities, such as the Ministry of Internal Affairs an uninterrupted period of a minimum five years on the basis of a and the Employment Agency inspect if the foreign national fulfils temporary residence permit. all required conditions stipulated in the Law on Employment and The requirement for an uninterrupted five-year period of stay in Work of Foreigners and the Law on Foreigners, in order to obtain a the Republic Macedonia shall be deemed as fulfilled if, within the temporary residence permit for work. In case some of the required period of five years prior to the submission of the application for conditions are not fulfilled, the Employment Agency shall issue a permanent residence, the foreigner did not stay out of the territory negative opinion and the Ministry of Internal Affairs shall issue a of the Republic of Macedonia for a period of subsequent six months, Decision for not allowing a temporary residence permit for work. or for a total period not exceeding 10 months. The permanent residence permit shall not be issued to a foreigner 13.2 Are criminal convictions a bar to obtaining work who has stayed in the Republic of Macedonia: permission or a visa? ■ on the basis of a temporary residence permit for the purpose of attending school or studies; One of the requirements for obtaining a temporary residence permit ■ on the basis of a temporary residence permit for the purpose for work is to prove that the foreigner has not been convicted and of participating in international studies or student exchange that there is no ongoing criminal procedure against the foreigner programmes; issued by a competent authority in the foreign country, thus criminal ■ on the basis of a temporary residence permit for the purpose convictions are a bar to obtaining a work permission permit or visa. of specialisation, vocational education or practical training;

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Dragan Dameski Ema Dimitrieska Debarliev, Dameski & Kelesoska, Debarliev, Dameski & Kelesoska, Attorneys at Law Attorneys at Law Str. Mirce Acev no.2, 3rd floor Str. Mirce Acev no.2, 3rd floor Skopje Skopje Macedonia Macedonia

Tel: +389 2 3136 530 / +389 2 3215 471 Tel: +389 2 3136 530 / +389 2 3215 471 Email: [email protected] Email: [email protected] URL: www.ddklaw.com.mk URL: www.ddklaw.com.mk

Macedonia Dragan Dameski is one of the founders and the head of the foreign Ema Dimitrieska has been a part of Debarliev, Dameski & Kelesoska, investments department in Debarliev, Dameski & Kelesoska, Attorneys at Law since 2012. Her previous experience includes Attorneys at Law. He works mostly for foreign clients and has working in the Basic Court Skopje 1, Skopje. She works with domestic been involved as legal counsel in practically all important projects and foreign clients in providing legal advice and support in accordance in Macedonia, especially in energy, capital markets and real estate. with the needs arising out of the daily operations of the clients. Her Dragan is member of the Macedonian Bar Association, Association area of expertise are labour law, litigation, public procurement and of mediators, the International Union of Lawyers (UIA), and the public-private partnerships, as well as procedures for regulating the International Bar Association (IBA). His areas of expertise include stay of foreigners in the Republic of Macedonia and obtaining work M&A, foreign investments, real estate, energy, securities and finance, permits for foreigners. as well as procedures for regulating the stay of foreigners in the Practice areas: Republic of Macedonia and obtaining work permits for foreigners. ■■ Corporate & M&A. Practice areas: ■■ Infrastructure and projects. ■■ Banking & finance. ■■ Intellectual propert. ■■ Business. ■■ Labour relations. ■■ Corporate & M&A. ■■ Litigation and arbitration. ■■ Energy & environment. ■■ Infrastructure & projects. ■■ Real estate & construction. ■■ Labour relations.

Accepting the premise that no one can be equally versed in all fields of law, Debarliev, Dameski & Kelesoska, Attorneys at Law (DDK) has been created as a company committed to be the leading business law firm in Macedonia. Debarliev, Dameski & Kelesoska, Attorneys at Law is also the first law company established in the territory of the Republic of Macedonia, distinguishing itself in the market with a clear business and corporate law orientation, complemented by an excellent network of legal experts covering the complete territory of the Republic of Macedonia. The quality of Debarliev, Dameski & Kelesoska, Attorneys at Law rests mainly upon the quality of its attorneys, their accessibility and efficiency. DDK’s attorneys at law share outstanding academic backgrounds, as well as a strong commitment to legal perfection. The partners of DDK have more than 15 years’ law practise experience and have exceeded clients’ expectations by providing sophisticated and efficiently-managed legal services. DDK offers excellent legal services to clients related to Employment and Labour Law, as well as employment of foreign nationals and regulating the residence of foreign nationals.

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Malaysia Selvamalar Alagaratnam

Skrine Sara Lau Der Yin

There is also the APEC Business Travel Card, which relieves the 1 Introduction foreign visitor of a visa when entering Malaysia for short stay business visits. However, the APEC Business Travel Card is limited 1.1 What are the main sources of immigration law in your to citizens of the following participating economies: Australia; jurisdiction? Brunei; Chile; China; Hong Kong; Indonesia; Japan; Korea; Mexico; New Zealand; Papua New Guinea; Peru; the Philippines; The main source of immigration law in Malaysia is the Immigration Russia; Singapore; Taiwan; Thailand; and Vietnam. Act 1959/63. 2.2 What is the maximum period for which business 1.2 What authorities administer the corporate immigration visitors can enter your jurisdiction? system in your jurisdiction? A Social Visit Pass is normally valid for a single entry and for a The following authorities administer the corporate immigration period of three months from the date of issue. However, there may system in Malaysia: be differing validity periods depending on country of origin and the ■ Ministry of Home Affairs – Immigration Department, Social Visit Pass may be as short as 30 days. Expatriate Services Division/ Expatriate Committee. ■ Malaysia Investment Development Authority (MIDA). 2.3 What activities are business visitors able to ■ Multimedia Development Corporation (MDeC). undertake? ■ Central Bank of Malaysia (BNM). Under a Social Visit Pass, the following activities are permitted: ■ Securities Commission. (i) Social visit. ■ Iskandar Regional Development Authority (IRDA). (ii) Visiting relatives. ■ East Coast Economic Region Development (ECERDC). (iii) Tourism. ■ Talent Corporation Malaysia Berhad (TalentCorp), Malaysia Expatriate Talent Service (MYXpats). (iv) Journalism and reporting. ■ Malaysia Global Innovation & Creativity Centre (MaGIC). (v) Attending meetings and conferences. ■ Public Service Department Malaysia (JPA). (vi) Business discussions. (vii) Factory inspection.

1.3 Is your jurisdiction part of a multilateral agreement (viii) Auditing company accounts. between countries (EU/NAFTA/MERCOSUR) which (ix) Signing an agreement. facilitates the movement of people between countries (x) Carrying out a survey on investment opportunities/setting up for employment purposes? a factory. (xi) Attending seminars. No, it is not. (xii) Students on goodwill missions or taking examinations at a university. 2 Business Visitors (xiii) Taking part in sports competitions. (xiv) Other activities approved by the Director General of Immigration. 2.1 Can business visitors enter your jurisdiction under a relevant visa waiver programme? 2.4 Are there any special visitor categories which will enable business visitors to undertake work or provide Every foreigner must enter Malaysia with a valid and applicable services for a temporary period? visa/pass. Visitors may obtain a single entry visa (social visit pass) valid for a single entry, which may be used to attend to business A business visitor may undertake work or provide services for any meetings and discussions, but does not extend to employment in period only if the business visitor obtains an Employment Pass or a Malaysia.

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Professional Visit Pass. If the visit is temporary, the business visitor Permit shall be guilty of an offence and shall on conviction be liable may opt to apply for a shorter term Employment Pass, i.e. Category to a fine of not less than 10,000 ringgit but not more than 50,000 II, which is valid for less than 24 months or a Professional Visit ringgit or to imprisonment for a term not exceeding 12 months, or to Pass, which is valid for a maximum of 12 months. both, for each such employee. However, if it is proved that the person has at the same time 2.5 Can business visitors receive short-term training? employed more than five such employees, that person shall upon conviction be liable to imprisonment not less than six months but Yes, but only under a Professional Visit Pass. not more than five years and shall also be liable to a whipping of not more than six strokes. If the offence has been committed by a body corporate, any person Malaysia 3 Immigration Compliance and Illegal who at the time of the commission of the offence was a member of Working the board of directors, a manager, a secretary or a person holding an office or a position similar to that of a manager or secretary of the body corporate shall be guilty of the offence. 3.1 Do the national authorities in your jurisdiction operate a system of compliance inspections of employers Under Section 56 of the Immigration Act 1959/63, any person who who regularly employ foreign nationals? harbours any person whom he knows, or has reasonable grounds to believe, that such person has acted in contravention of the There are two categories of foreign nationals undertaking Immigration Act shall be guilty of an offence and may be liable to a employment in Malaysia. The first category is known as fine of not less than 10,000 ringgit and not more than 50,000 ringgit “expatriates” and refers to high level, skilled labourers. The second for each person harboured. Where it is proved to the satisfaction of category is known as “foreign workers” and refers to low level, the court that the person has at the same time harboured more than unskilled labourers, often employed for manual labour. five such persons, that person shall be liable to imprisonment for a term of not less than six months but not more than five years and If the foreign national is an expatriate, inspections are usually shall also be liable to a whipping of not more than six strokes. conducted upon tip-offs. There is also a general penalty under Section 57 of the Immigration However, in the case of foreign workers, the Immigration Act 1959/63 wherein any person guilty of an offence against the Department often conducts raids to check for work pass availability Immigration Act where no special penalty is provided shall, on or validity. conviction, be liable to a fine not exceeding 10,000 ringgit or to imprisonment for a term not exceeding five years, or to both. 3.2 What are the rules on the prevention of illegal working? 4 Corporate Immigration – General Under Section 6(1) of the Immigration Act 1959/63, no person other than a citizen shall enter Malaysia unless he is in possession of a 4.1 Is there a system for registration of employers who valid pass or a valid Entry Permit on which his name is endorsed. wish to hire foreign nationals? Under Section 6(3) of the Immigration Act 1959/63, any person who contravenes subsection (1) shall be guilty of an offence and shall, Yes; for expatriates, the registration is online through the Expatriate on conviction, be liable to a fine not exceeding 10,000 ringgit or to Services Division (ESD) portal. imprisonment for a term not exceeding five years, or to both, and In relation to foreign workers, an application has to be made to the shall also be liable to a whipping of not more than six strokes. Ministry of Home Affairs. Under Section 15(1), a person shall not remain in Malaysia, inter alia, following the cancellation of any Permit or expiration of the period of any Pass issued to him. 4.2 Do employers who hire foreign nationals have ongoing duties to ensure immigration compliance? Under Section 32(1), any person in contravention of, inter alia, Section 6 shall be liable to be removed from Malaysia by order of Yes. Employers are to ensure that expatriates or foreign workers the Director General. employed by them are in possession of a valid work pass and are Under Section 33(1), where the presence of any person in Malaysia working in the premises of the employer as stated in the work pass. is unlawful by reason of, inter alia, Section 15, the person shall, whether or not any proceedings are taken against him in respect of any offence under this Act, be removed from Malaysia by the order 4.3 Do the immigration authorities undertake routine inspections of employers who sponsor foreign for the Secretary General. nationals, to verify immigration compliance? Under Section 34(1), where any person is ordered to be removed from Malaysia under this Act, such person may be detained in Inspections are usually conducted upon tip-offs, but the authorities custody for such period as may be necessary for the purpose of may undertake routine inspections if they wish to do so. making arrangements for his removal.

4.4 Do the immigration authorities maintain a list of 3.3 What are the penalties for organisations found to be skilled occupations which may be filled by foreign employing foreign nationals without permission to nationals? work? In relation to skilled occupations, there is no specific list, but the Under Section 55B of the Immigration Act 1959/63, any person who Immigration Department retains discretion to reject the applicant of employs one or more persons who is not in possession of a valid an Employment Pass, including if it is of the opinion that the work

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may be done by a Malaysian citizen. There is, however, a minimum For foreign workers, there is a requirement to undergo medical requirement of education eligibility as follows: examinations. ■ Degree and above, with at least three years’ experience in the relevant field. 4.10 Are employees who are sponsored to work in your ■ Diploma, with at least five years’ experience in the relevant jurisdiction required to have medical insurance or are field. they entitled to any free public medical services? ■ Technical Certificate or equivalent, with at least seven years’ experience in the relevant field. Expatriates are not required to have medical insurance but are entitled to seek medical treatment in public or private clinics or hospitals and subject to charges.

4.5 Is there a recognition that some occupations may be Malaysia in short supply and do special exemptions apply to For foreign workers, the Ministry of Health implemented the certain sectors and occupations? Foreign Workers Health Insurance Protection Scheme in 2011, under which there is mandatory Foreign Workers Hospitalisation There is no specific recognition of shortage in the supply of skilled and Surgical Scheme. All foreign workers in Malaysia are required professionals in certain sectors and occupations. to be insured for an annual premium of 120 ringgit. This insurance In relation to foreign workers, only select industries may employ is borne by the foreign worker themselves and failure to subscribe foreign labourers, i.e. manufacturing, construction, agriculture, may result in a non-renewal of the Work Pass. plantation, services, the restaurant sub-sector (cooks only), the resort island sub-sector and the cleaning and sanitation sub-sector. There 4.11 Does the work permit system allow employees who are further restrictions on the nationalities that may occupy the jobs in hold work permits to be seconded to a client site? such sectors, for example, only nationals from Thailand, Cambodia, Myanmar, Laos, Vietnam, Kazakhstan, Nepal, Pakistan, Sri Lanka, The expatriate is required to work at the address of the office stated Turkmenistan and Uzbekistan are allowed. Only male workers from on his Employment Pass, and for the employer stated on the same the Philippines are allowed to work in the sectors. Workers from and may not undertake other work. The foreign worker is required India are allowed to work only in the services sector (restaurants to work for the employer stated in his Pass. only), construction sector (high tension cables), agricultural sector and plantation sector. Male workers from Indonesia are allowed to work in all sectors except for the manufacturing sector. 5 Highly Skilled Visas Please note that as of February 2016, there is a nationwide freeze on bringing in new low-level labour foreign workers. Only four 5.1 Is there an immigration category which covers highly sectors are exempted from this freeze, namely the manufacturing, skilled individuals? construction, plantation and furniture-making industries. Yes, namely: the Employment Pass; and the Professional Visit Pass. 4.6 Are there annual quotas for different types of employment-related work permits or visas? 6 Investment or Establishment Work No, but the company is required to provide projections to the Permits Immigration Department on how many expatriates it intends to hire for the year. 6.1 Is there an immigration category which permits employees to be authorised to work based on 4.7 Are there restrictions on the number of foreign investment into your jurisdiction? workers an employer may sponsor, in relation to a maximum percentage of foreign workers in the No, there is not. employer’s workforce?

No, there are not. 7 Temporary Work Permits

4.8 Are employees who are sponsored to work in your 7.1 Is there an immigration category permitting the jurisdiction required to demonstrate language hiring of temporary workers for exchanges, career proficiency? development, internships or other non-economic purposes? No, they are not. This category is covered under the Professional Visit Pass, but the holders of the Professional Visit Pass do not assume employment 4.9 Are employees who are sponsored to work in your with the local company. jurisdiction required to undergo medical examinations before being admitted? 7.2 Are there sector-specific temporary work permit For expatriates, there are no requirements from the Immigration categories which enable foreign workers to perform Department to undergo medical examinations but this may be temporary work? required by the employing company. No there are not.

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skilled new hires. The Employment Pass is divided into the 8 Group or Intra-Company Transfer Work following three different categories: Permits ■ Category I – for expatriates with a contract of employment for a minimum of 24 months and with a minimum salary of 8.1 Does a specific immigration category exist for inter- 5,000 ringgit. company transfers within international groups of ■ Category II – for expatriates with a contract of employment companies? for less than 24 months and with a minimum salary of 5,000 ringgit. No, it does not. ■ Category III – for expatriates with a contract of employment for less than 12 months and with a salary of between 2,500

Malaysia ringgit and 4,999 ringgit. 8.2 What conditions must an employing company or organisation fulfil in order to qualify as part of a group of companies? 9.2 Is there a requirement for labour market testing, to demonstrate that there are no suitable resident workers, before a work permit can be issued to new hires? This is not applicable.

There is no labour market testing required. However, the 8.3 What conditions must the employer fulfil in order companies intending to hire expatriates may be required to prove to obtain a work permit for an intra-company group to the Immigration Department that there is no suitably qualified employee? Malaysian national to undertake the work. This decision is at the discretion of the Immigration Department. This is not applicable.

9.3 Are there any exemptions to carrying out a resident 8.4 What is the process for obtaining a work permit for an labour market test? intra-company group employee? This is not applicable. This is not applicable.

9.4 What is the process for obtaining a work permit for a 8.5 What is the process for the employee to obtain a visa new hire? under the intra-company group transfer category? For expatriates, the Company will have to register itself on the This is not applicable. ESD portal to create a company profile, which return time is 14 days. The Company will thereafter have to project the number of 8.6 How long does the process of obtaining the work expatriates it wishes to bring in. Once the projection is approved, permit and initial visa take? the Company may apply for the Employment Pass. The return time for each Employment Pass application is five days. However, these This is not applicable. timelines may be extended if the documents submitted on the ESD portal are insufficient or incomplete. There is no “initial visa” and the expatriate may not work in Malaysia until a valid pass is issued 8.7 How long are visas under the “initial” category valid to them. The expatriate may then only enter once it is confirmed by for, and can they be extended? the Immigration Department that a valid pass may be endorsed on the expatriate’s passport. This is not applicable.

9.5 What is the process for the employee to obtain a visa 8.8 Can employees coming under the intra-company as a new hire? transfer route apply for permanent residence?

Employees may not obtain a obtain a visa as a new hire on their own. This is not applicable. Only local companies are allowed to apply for the Employment Pass or Professional Visit Pass on behalf of the expatriate. 8.9 What are the main government fees associated with this type of visa? 9.6 How long does the process of obtaining the work permit and initial visa for a new hire take? This is not applicable. Please refer to question 9.4. 9 New Hire Work Permits 9.7 How long are initial visas for new hires granted for and can they be extended? 9.1 What is the main immigration category used for employers who wish to obtain work permits for new hires? There are no initial visas.

The Employment Pass or Professional Visit Pass will apply for

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9.8 Is labour market testing required when the employee 11.2 Do civil/unmarried or same-sex partners qualify as extends their residence? family members?

No, it is not. No, they do not.

9.9 Can employees coming as new hires apply for 11.3 Do spouses and partners have access to the labour permanent residence? market when they are admitted as dependants?

Employees who have worked in Malaysia for a minimum period No. However, they may request special permission to undertake of three years may be eligible to apply for permanent residency social or welfare activities. Malaysia through the professional category.

Please note that a recommendation from the authority governing the 11.4 Do children have access to the labour market? field of expertise in which the employee works in is required. A Certificate of Good Conduct from the employee’s country of origin No, they do not. is also required.

9.10 What are the main government fees associated with 12 Permanent Residence this type of visa?

12.1 What are the conditions for obtaining permanent The fees vary from year to year. The current fees, which are subject residence? to 6% GST are: ■ Employment Pass – 300 ringgit. Any foreign national who is not a citizen of Malaysia intending to ■ Dependent Pass – 70 ringgit. enter and reside in Malaysia as a permanent resident may apply for There are no applicable charges for a Professional Visit Pass. an Entry Permit. There are four eligible categories of foreign nationals intending to apply for permanent residency: 10 Conditions of Stay for Work Permit Investor Holders ■ Individual with a minimum of USD 2 million fixed deposit (FD) at any bank in Malaysia and will only be allowed for 10.1 What are the conditions of stay of those who obtain withdraw the funds after five (5) years. work permits and are resident on this basis? ■ Spouse and child/children below the age of 18 years of the investor will also be eligible to be granted permanent Those who obtain work permits may not breach the terms and residence after five years of stay in Malaysia. conditions of the relevant work permits, including in relation to ■ An investor requires one Malaysian sponsor. place of work. Expert Holders of a Professional Visit Passes are not allowed to bring in ■ Individual with expertise, talent and skill recognised as dependants. Holders of an Employment Pass (Category III) may “World Class” by any international organisation. not bring in dependants or hire a foreign maid. Holders of an ■ Requires recommendation by a relevant agency in Malaysia. Employment Pass (Categories I and II) are allowed to bring in their ■ Requires Certificate of Good Conduct from their country of spouses and children under 18 years of age as dependants and may origin. obtain long-term social visit passes for their parents/parents-in-law or children above the age of 18; they may also hire foreign maids. ■ Requires one Malaysian sponsor. However, holders of all these categories of passes may only work Professional in West Malaysia. ■ A professional in any field with outstanding skills. ■ Requires recommendation by a relevant agency in Malaysia. 10.2 Are work permit holders required to register with ■ Requires Certificate of Good Conduct from their country of municipal authorities or the police after their arrival? origin. ■ Requires one Malaysian sponsor. No, they are not. ■ Have worked in any Government Agency or Private Company in Malaysia for a minimum period of three years and are certified by the relevant agency in Malaysia. 11 Dependants Spouse of a Malaysian citizen ■ Married to a Malaysian citizen. 11.1 Who qualifies as a dependant of a person coming to ■ Has been issued with a long-term Visit Pass and has stayed work on a sponsored basis? continuously in Malaysia for a period of five years. ■ Required to submit “Surat Akuan Perkahwinan” (Certification Spouse and children below 18 years old. of Marriage). ■ The spouse has to be the sponsor. ■ For child/children of a Malaysian citizen below age six, parents must be the sponsor.

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12.2 Is it possible to switch from a temporary work visa to 13.2 Are criminal convictions a bar to obtaining work a work visa which leads to permanent residence? permission or a visa?

No, it is not. Please refer to question 13.1. There is no mechanism in which a foreign employee is required to declare a past criminal conviction. 13 Bars to Admission

13.1 What are the main bars to admission for work? Malaysia

The Immigration Department retains all discretion to accept or reject any foreign worker from commencing work in Malaysia.

Selvamalar Alagratnam Sara Lau Der Yin Skrine Skrine Unit No. 50-8-1, 8th Floor, Wisma UOA Unit No. 50-8-1, 8th Floor, Wisma UOA Damansara Damansara 50, Jalan Dungun, Damansara Heights 50, Jalan Dungun, Damansara Heights Kuala Lumpur Kuala Lumpur Malaysia Malaysia

Tel: +603 2081 3999 Tel: +603 2081 3999 Email: [email protected] Email: [email protected] URL: www.skrine.com URL: www.skrine.com

Selvamalar Alagaratnam heads the Immigration Practice Group and Sara Lau is an Associate in Skrine’s Dispute Resolution Division. Sara co-heads the Employment Practice Group in Skrine, one of Malaysia’s is a Barrister-at-Law of Lincoln’s Inn and an Advocate and Solicitor of largest law firms. She has more than 20 years’ experience inall the High Court of Malaya. Her work focuses on all areas of Employment aspects of employment law, including both contentious and non- and Industrial Relations and she has vast experience in employment- contentious immigration matters. based immigration matters. Besides her Employment and Industrial Relations portfolio, her areas of practise include Shipping & Maritime, She is an officer of the International Bar Association’s Employment and General Civil and Commercial Litigation and Medical Negligence. Industrial Relations Committee, a member of Lawasia’s Industrial Law Committee, a national committee member of the Malaysian chapter of the International Society for Labour and Social Security Laws and a member of the Malaysian Bar’s Industrial Law Committee. She has co-authored several publications including The Law of Dismissal, The Malaysian Court Forms: Employment Law Section and The Legal Guide to Employee Dispute Resolution – Malaysia; and is a regular presenter at domestic and international legal conferences. Selvamalar is listed in the Chambers Asia Pacific guide as a leading lawyer for employment law and in Who’s Who Legal Management & Labour.

Skrine is one of the largest full-service law firms in Malaysia with in-depth experience on a range of legal matters acquired through more than 54 years of its practise. The firm is currently led by 43 partners with over 100 lawyers across the Corporate, Dispute Resolution and Intellectual Property Divisions. Skrine is the exclusive Malaysian member of Lex Mundi, a network of leading independent law firms in over 160 jurisdictions around the world and the Pacific Rim Advisory Council, a network of 30 top-tier independent member law firms. The firm has been named as the Malaysia Law Firm of the Year 2017 byAsian Legal Business; Malaysia Law Firm of the Year in 2015 by Chambers Asia Pacific; Malaysian Firm of the Year 2013–2017 by Who’s Who Legal; ranked as Leading Firm by Chambers Asia Pacific and Global from 2011–2017; ranked as a Top-Tier Firm by The Legal 500 Asia Pacific from 2014–2017; ranked in the Top 100 International Arbitration Practice since 2012 by Global Arbitration Review (GAR) 100 and have been named as Malaysian Firm of the Year for 2014–2016 by Managing Intellectual Property (Managing IP).

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Mexico

Enrique Arellano Rincón Abogados, S.C. Enrique J. Arellano

citizens from such countries wishing to travel do not require visas. 1 Introduction The nationals from said countries may enter Mexican territory through any land, maritime or air entry point. It is relevant to 1.1 What are the main sources of immigration law in your consider that any foreign visitor who wishes to enter Mexico should jurisdiction? have a valid ordinary passport with a minimum validity of six months. In addition, there are visa-waiver programmes, applicable The main sources of immigration law are: to foreigners from non-visa-exempt nations who hold: a) a valid visa for the US, Canada, UK, Japan or the Schengen countries; b) ■ The Political Constitution of the United Mexican States. permanent residence in the US, Canada, UK, Japan, the Schengen ■ International treaties signed by Mexico. countries or the Pacific Alliance member countries (Colombia, Peru ■ The Immigration Law published in the Federal Official and Chile); or c) an APEC Business Travel Card (ABTC card). Gazette on 25 May 2011. ■ The Immigration Law Rulings, published in the Federal Official Gazette on 28 September 2012. 2.2 What is the maximum period for which business visitors can enter your jurisdiction? ■ Guidelines for Immigration Filings and Procedures, published in the Federal Official Gazette on 8 November 2012. Any business visitor without remunerated activities in Mexico shall ■ Guidelines for the criteria of visa issuance of the Ministries be authorised to transit through, or remain in, Mexican territory for of the Interior and Foreign Affairs, published in the Federal an indefinite period of time and for no longer than 180 days. Visa- Official Gazette on 10 October 2014. waiver nationals may enter Mexico for a new 180-day period every ■ Administration resolutions and bulletins published by the time they visit, which means they will have a maximum stay period National Immigration Institute. of 180 days for every visit. The prior is applicable to non-visa- exempt nationals that do not apply under any programme when they 1.2 What authorities administer the corporate immigration wish to obtain a new visitor’s visa. system in your jurisdiction?

2.3 What activities are business visitors able to The administration of corporate immigration is entrusted to the undertake? Federal Executive Branch, through the Ministry of Foreign Affairs and the Ministry of the Interior; the former via the Mexican consular The activities of business visitors may be defined in two ways: posts and the latter via the National Immigration Institute (INM). a) Business visitors without remunerated activities in Mexico (with a maximum stay in the country of 180 days). 1.3 Is your jurisdiction part of a multilateral agreement b) Business visitors who perform remunerated activities in between countries (EU/NAFTA/MERCOSUR) which Mexico (with a maximum stay in the country of 180 days). facilitates the movement of people between countries for employment purposes? Such visitors may carry out any activity within the Mexican territory so long as such activity is legal and honest and there is no legal Mexico has signed 12 Free Trade Agreements with 46 countries. restriction on it being carried out by foreigners. It is important By means of Free Trade Agreements and other major trade and to specify that foreign nationals that fall under category a) above commerce agreements, Mexico seeks to encourage investment, cannot receive any type of remuneration, originating from a commerce and the free movement of people between nations from Mexican source, while in Mexico. the signatory countries. Category b) above is usually applicable to artists performing and paid in Mexico. 2 Business Visitors 2.4 Are there any special visitor categories which will enable business visitors to undertake work or provide 2.1 Can business visitors enter your jurisdiction under a services for a temporary period? relevant visa waiver programme? To date, no special conditions or categories exist in Mexico for Mexico has signed treaties with several countries meaning that business visitors.

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Foreign nationals may face deportation for not having the correct 2.5 Can business visitors receive short-term training? authorisation to work in Mexico.

Yes, as long as they do not receive any remuneration and do not exceed the 180-calendar-day stay in Mexico. 4 Corporate Immigration – General

3 Immigration Compliance and Illegal 4.1 Is there a system for registration of employers who Working wish to hire foreign nationals?

Mexico In accordance with the Immigration Law of Mexico, said registration 3.1 Do the national authorities in your jurisdiction operate shall be performed through the Employer Registry Certificate, before a system of compliance inspections of employers the National Immigration Institute and pursuant to the provisions of who regularly employ foreign nationals? Article 166 of the Rulings of the Immigration Law. The individuals and companies that hire foreign personnel or The National Immigration Institute has a Control and Verification who make a job offer to a foreigner shall apply to the National Area to control and supervise the regular stay of foreigners in Mexico. Immigration Institute for an Employer Registry Certificate. The National Immigration Institute may carry out inspection visits With this Employer Registry Certificate the employer can prove its in homes or offices – private as well as governmental – to prove legal capacity and authority in such a manner that in further filings, that foreigners found in the Mexican national territory comply with where the employer makes a job offer and acts as an applicant, it the obligations set forth under its laws and regulations, as well as to shall only be required to deliver the updated Certificate in order to ensure that a company, when offering a job, actually exists and is prove the legal capacity and authority of the Legal Representative. operating regularly. The regularity of site visits may increase when job offers are issued to nationals from countries that are flagged due to a substantial increase in the number of applications from these 4.2 Do employers who hire foreign nationals have countries or whenever the authorities have grounds to believe that a ongoing duties to ensure immigration compliance? job offer is sponsored in contravention of the law. Yes, they shall keep the Employer Registry Certificates up to date, notifying the authorities of any of the following changes: 3.2 What are the rules on the prevention of illegal working? a) Changes to domicile. b) Changes to legal representatives. The prevention of illegal working is monitored through the conditions of the Work Offer Visa. This is granted when a foreigner c) Changes to the corporate name. is invited to work for the first time in Mexico. The hiring company d) Filing of annual and monthly tax returns. must file the Work Offer Visa with the National Immigration It is important to request the renewal of the Employer Registry Institute. In these circumstances, it is very important to take into Certificates on an annual basis. account that the company inviting the foreigner to work in Mexico must have its Employer Registry Certificate. 4.3 Do the immigration authorities undertake routine N.B. If the foreigner has a Visitor Visa, Temporary Residence or inspections of employers who sponsor foreign Permanent Residence, the document’s validity shall be verified nationals, to verify immigration compliance? when the person is hired. The validity of the Permanent Residence Permit granted to a foreigner who has a Work Permit shall also be Yes, immigration authorities in Mexico may perform verification verified. If the foreigner does not have a Permanent Residence visits at any time, pursuant to Articles 194 and 195 of the Rulings of Permit, the company must notify the relevant authorities. the Immigration Law, which provide that: Article 194 – “The National Immigration Institute shall have 3.3 What are the penalties for organisations found to be the authority to verify that foreigners in Mexico comply with employing foreign nationals without permission to the obligations set forth under the Law and its Rulings.” work? Immigration authorities shall carry out the corresponding procedures and shall apply the sanctions established under law, notwithstanding Immigration authorities shall set financial sanctions, based on the provisions of other legal provisions, at all times seeking to the liability of the offender, taking into account the following respect human rights. circumstances: Article 195 – “Personnel from the National Immigration a) The socio-economic level of the foreigner. Institute who perform verification visits or immigration b) The background of this process. reviews shall have an official writ from the commission as c) Recurrence of the breach of the law by said foreigner. well as the relevant verification or review order, as applicable. d) An analysis of the damage and detriment caused by the Both documents shall be issued by the competent immigration defendant not holding the necessary valid documentation. authority and shall be duly founded and reasoned.” e) The hierarchal level of the offender and his/her seniority in said company. 4.4 Do the immigration authorities maintain a list of In accordance with the Immigration Law, as required by the same, skilled occupations which may be filled by foreign the rights of the immigrant shall always be fully respected. nationals? Is important to mention that if a company hires a foreign national who is not fully authorised to work in Mexico, it is noted on the company’s This does not apply in Mexico; nonetheless, a Mexican company record and it may affect any future applications to hire foreign may consider the provisions of Article 7 of the Federal Labour Law, nationals. which establishes the following:

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Article 7 – “In any company or establishment, at least 90% sponsored by a Mexican entity. All foreigners in Mexico, regardless of workers hired by the employer shall be Mexican. In the of their immigration status, have access to free public medical services categories of technicians and professionals, workers must be in the country, as it is established and recognised in the Constitution. Mexican, except if same do not exist in a certain specialty, in which case the employer may hire, temporarily, foreign workers, Employers must enrol all of their employees, despite their in a proportion that does not exceed 10% of the specialty. The nationality, with the Mexican Institute of Social Security (IMSS). employer and the foreign workers shall have a joint obligation to train Mexican workers in the relevant specialty. Medics at the service of companies shall be Mexican.” 4.11 Does the work permit system allow employees who hold work permits to be seconded to a client site? The legal provision we have referred to contains a restriction regarding

the percentage of foreigners: an employer may hire a maximum of Mexico A foreign employee of a certain company, in the exercise of 10% of foreigners. The purpose is to train Mexican personnel in the the duties related to his/her position, who is authorised by the industrial or business sectors or areas of production in the country. immigration authorities of Mexico, may visit or assist any client Directors, Administrators and General Managers are excluded from outside the company’s premises without any restriction. this quota restriction as they would be considered key roles for the development of a foreign company’s operations in the country. 5 Highly Skilled Visas 4.5 Is there a recognition that some occupations may be in short supply and do special exemptions apply to 5.1 Is there an immigration category which covers highly certain sectors and occupations? skilled individuals?

In Mexico there are no special exemptions of any type. No, the Immigration Law in Mexico does not have any special category for highly skilled individuals but there exists an obligation on 4.6 Are there annual quotas for different types of those of certain professions to obtain, through the General Directorate employment-related work permits or visas? of Professions of the Ministry of Public Education, the corresponding Professional ID for the exercise of the activity the person is to carry Currently, the Immigration Law and its Rulings establish an Annual out. These professions are: medics; engineers; lawyers, etc. Quota System which shall be assessed by the Ministry of Labour; nonetheless, to date, said system has not become effective in Mexico. 6 Investment or Establishment Work The day on which said system will take effect is governed by Permits Articles 119 and 120 of the Rulings of the Immigration Law.

4.7 Are there restrictions on the number of foreign 6.1 Is there an immigration category which permits workers an employer may sponsor, in relation to employees to be authorised to work based on a maximum percentage of foreign workers in the investment into your jurisdiction? employer’s workforce? It is possible, as long as the employee complies with either of the There are no restrictions of this kind in Mexico and employers may following: sponsor any number of work applications for foreign nationals, a) When the foreigner is the holder of a Temporary Resident ID regardless of their current foreigners’ workforce. and has previously legally incorporated a company in Mexico where it evidenced its investment, pursuant to the amounts set forth under the General Business Corporations Law, as 4.8 Are employees who are sponsored to work in your well as the Immigration Law. jurisdiction required to demonstrate language proficiency? ■ Foreign National investment is regulated by the Foreign National Investment Act, in which it is specified the percentages a foreigner may invest in certain types of Foreign employees are not required to prove a proficient knowledge activities. of the Spanish language to request a Work Visa in Mexico. The only exception we have found, and where full knowledge of Spanish is b) Where the foreigner has made an investment qualified by a system of points; nonetheless, this is not in effect at the required, is when the foreigner files for Mexican Nationality due to current time. naturalisation.

4.9 Are employees who are sponsored to work in your 7 Temporary Work Permits jurisdiction required to undergo medical examinations before being admitted? 7.1 Is there an immigration category permitting the hiring of temporary workers for exchanges, career No, it is not required to submit any type of medical certificate or development, internships or other non-economic vaccines prior to visiting the Mexican territory. purposes?

4.10 Are employees who are sponsored to work in your This may happen in any of the following cases (depending on the jurisdiction required to have medical insurance or are time the foreigner is to stay in Mexico): they entitled to any free public medical services? a) A visitor without a permit to carry out remunerated activities, as long as he/she is to stay for less than six months and does Medical insurance is not required as a condition for work permits not leave Mexico during this time.

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b) A Temporary Resident without a permit to carry out remunerated activities, which shall be personally filed by 8.4 What is the process for obtaining a work permit for an the interested party before the Mexican consulate with intra-company group employee? jurisdiction over his/her country of residence. This is appropriate for permits for more than 180 days. The permit to work must necessarily be sponsored by the company established in Mexico and the latter shall be registered with the National Immigration Institute (INM), in order to support the visa 7.2 Are there sector-specific temporary work permit categories which enable foreign workers to perform application. Said registration is called the Employer Registry temporary work? Certificate and has a validity of one year. It usually takes between four and six weeks to obtain said registration. Mexico Yes, pursuant to Article 52 of the Immigration Law, Paragraphs II, Once the company in Mexico has obtained said registration with the III and IV: INM, it must request an entry permit which authorises the foreigner II. Visitor With Permit to Carry Out Remunerated Activities: to appear before any Mexican consular representation, where an authorises the foreigner to receive a job offer, with an entry visa with the status of Temporary Resident shall be stamped invitation by any authority or academic, artistic, sporting or on his/her passport. When said visa has been affixed to the passport, cultural institution for which it may receive remuneration in the foreigner may enter Mexico and exchange the consular visa for Mexico or shall perform a remunerated activity for a seasonal a Temporary Resident ID, with an initial validity of one year and station pursuant to the inter-institutional agreements executed that, strictly speaking, shall be the labour document that allows the with foreign entities, to stay in the Mexican territory for an company to register the foreigner with the Social Security and tax uninterrupted time no longer than 180 days, as of the date of authorities, etc. The entry permit takes between four and six weeks entry into the country. to be issued, while the local registry (or exchange of resident ID) III. Regional Visitor: authorises the foreigner from, or resident takes an additional one or two weeks. of, a neighbouring country to enter the border regions with This immigration document may be renewed for one, two or three the right to enter and exit as many times as desired, without his/her stay exceeding three days and without being allowed additional years. to receive remuneration in the country. IV. Border Visiting Worker: authorises the foreigner that is a 8.5 What is the process for the employee to obtain a visa national of the countries with which the United Mexican under the intra-company group transfer category? States share territorial limits, to stay up to one year in the Mexican States so determined by the Ministry. The Border The immigration process is not different from any other resolution Visiting Worker shall have a permit to work for remuneration in Mexico, in the activity related to the job offer he/she of a Job Offer Visa. has received, and is entitled to enter and exit the Mexican territory as many times as he/she wishes. 8.6 How long does the process of obtaining the work permit and initial visa take? 8 Group or Intra-Company Transfer Work Permits The permit for the resolution of a Job Offer Visa has a duration of four to six weeks, followed by the consular process that the foreigner shall follow at the Mexican consulate nearest to his/her 8.1 Does a specific immigration category exist for inter- place of residence, and shall take from one to three business days. company transfers within international groups of Finally, the exchange process when the foreigner enters Mexico companies? shall take five to eight business days, and we should once again mention that there is no distinction or special category for an intra- No, the Immigration Law does not consider any benefit or special company transfer. treatment when referring to intra-company personnel transfers.

8.7 How long are visas under the “initial” category valid 8.2 What conditions must an employing company or for, and can they be extended? organisation fulfil in order to qualify as part of a group of companies? The validity of immigration documents depends on each of the conditions of stay currently provided for under the Immigration The company must: Law and its Rulings, as follows: a) be legally incorporated pursuant to Mexican laws; ■ Regional Visitor: does not have permission to receive b) hold an Employer Registry Certificate, issued by the National remuneration in Mexico and may freely enter and exit the Immigration Institute; and territory at will and stay for a maximum of three days. c) fulfil all the requirements of personal documentation of the ■ Border Worker Visitor: may stay for up to one year. foreigner. ■ Visitor Without Permit to Carry Out Remunerated Activities: validity is for 180 calendar days without the possibility of an extension. 8.3 What conditions must the employer fulfil in order to obtain a work permit for an intra-company group ■ Temporary Resident: validity ranges from one to four years, employee? depending on the job offer.

The employer must fulfil the same conditions as for any authorisation 8.8 Can employees coming under the intra-company of a Job Offer Visa, since there is no distinction for intra-company transfer route apply for permanent residence? transfers. The conditions to apply for Permanent Residence in Mexico are

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the same for all foreigners and there is no distinction regarding any intra-company movement. 9.8 Is labour market testing required when the employee extends their residence?

8.9 What are the main government fees associated with No, it is only necessary to prove that the labour conditions are this type of visa? maintained, pursuant to which the Temporary Residence was initially granted. Approximately, the fees that are paid for this visa are: ■ $36.00 USD for consular fees (visa stamped). 9.9 Can employees coming as new hires apply for ■ $250.00 USD for government fees (local registration). permanent residence? Mexico

9 New Hire Work Permits To the extent they have a link with a Mexican national (parents, son, or daughter) or apply under the case of pensioned or retired individuals. The Immigration Law establishes a points system that 9.1 What is the main immigration category used for is not currently in effect in Mexico. employers who wish to obtain work permits for new hires? 9.10 What are the main government fees associated with this type of visa? The main category used in such cases is the status of stay as a Temporary Resident, obtained through a job offer. The fees are the same as referred in question 8.9.

9.2 Is there a requirement for labour market testing, to demonstrate that there are no suitable resident workers, 10 Conditions of Stay for Work Permit before a work permit can be issued to new hires? Holders

It is established under the Immigration Law and its Rulings that there is a requirement to review the list of quotas which shall be issued 10.1 What are the conditions of stay of those who obtain by the Ministry of State pursuant to the recommendations issued by work permits and are resident on this basis? the Ministry of Commerce and the Ministry of Labour in Mexico. Said list is not currently in effect and has not been published in the The conditions of stay applicable in Mexico with a work permit are: Official Gazette to become effective. a) Temporary Resident, valid for one year, and renewable for three more. b) Permanent Resident, indefinite validity. 9.3 Are there any exemptions to carrying out a resident labour market test? c) Temporary Resident Student, same conditions as under a) above. This does not apply in Mexico. A Temporary Resident Student needs to obtain work authorisation once in Mexico. Foreigners granted Permanent Residence shall have the possibility 9.4 What is the process for obtaining a work permit for a of obtaining a Work Permit to work in exchange for remuneration in new hire? Mexico, subject to a job offer and with the right to enter and exit the country as many times as they wish. It is the same process as that referred to under question 8.4 above.

10.2 Are work permit holders required to register with 9.5 What is the process for the employee to obtain a visa municipal authorities or the police after their arrival? as a new hire?

No, they shall only comply with the obligations set forth under the The same documentation is required for any visa obtained through Immigration Law in relation to registers. The same shall notify the a job offer. Mexican immigration law does not distinguish between municipal authorities within 90 days after any change of name, civil the process to obtain a work permit for an intra-company transfer status, nationality, domicile or workplace. and a new hire.

9.6 How long does the process of obtaining the work 11 Dependants permit and initial visa for a new hire take? 11.1 Who qualifies as a dependant of a person coming to Please refer to the timing described under question 8.6. work on a sponsored basis?

9.7 How long are initial visas for new hires granted for A Temporary or Permanent Resident may bring to Mexico (within and can they be extended? the definition of the family unit) the following: a) A parent. The term initially authorised is only for one year but upon expiration b) A spouse. of the year the visa may be renewed for one, two or even three years, c) A live-in partner or similar figure. through the same process, in such a manner that allows a regular d) Children of the resident and children of the spouse or live-in uninterrupted stay in Mexico for four years. partner, as long as they are under the age of 18 years.

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e) Siblings of a Permanent Resident, as long as they are under VII. if the individual is a direct-line ascendant or descendant, up the age of 18 years. to the second generation, of a Mexican national by birth. Foreigners granted Permanent Residence shall have the possibility 11.2 Do civil/unmarried or same-sex partners qualify as of obtaining a work permit to work in exchange for remuneration in family members? Mexico, subject to a job offer and with the right to enter and exit the country as many times as they wish. Yes, as long as they have irrefutable documentation, duly apostilled Moreover, Permanent Residents may introduce their movable assets and/or legalised, issued by their country of residence and that, in the form and terms set forth under the applicable law. pursuant to Mexican civil law, may be comparable to a cohabitation

Mexico scheme. 12.2 Is it possible to switch from a temporary work visa to a work visa which leads to permanent residence? 11.3 Do spouses and partners have access to the labour market when they are admitted as dependants? Yes, it is possible to change a Temporary Visa to Permanent Residence; generally, this occurs in the following cases: Yes, they can work, to the extent that: a) if four prior and uninterrupted years have elapsed as a regular a) they have a job offer from a company registered as an resident in Mexico, under the state of Temporary Resident; or employer before the National Immigration Institute; and b) having children that were born in Mexico. b) they carry out the filing before the National Immigration Institute to obtain the relevant resolution of the Labour Permit. 13 Bars to Admission

11.4 Do children have access to the labour market? 13.1 What are the main bars to admission for work?

No minor may become part of the labour market. Only those who An applicant will be barred from admission if: are of the legal age to work, pursuant to the labour laws that allow ■ the company is not legally incorporated pursuant to the legal working, may enter the labour market. In case of complying with provisions in Mexico; such requirement, a Labour Permit from the National Immigration ■ the company is not registered with the Employer Registry; Institute shall be requested, leaving said authority to grant such ■ he/she does not have a job offer; permit according to its criteria. ■ he/she does not have authorisation from the National Immigration Institute as a Visitor or Temporary Resident with 12 Permanent Residence a Permit to Work in Mexico; ■ the foreign national fails to provide proper and truthful information; or 12.1 What are the conditions for obtaining permanent ■ the company fails to provide proper and truthful information. residence?

The main conditions are found under Article 54 of the Immigration 13.2 Are criminal convictions a bar to obtaining work Law and number 109 of its Rulings. permission or a visa? Article 54 – The Status of Permanent Resident shall be granted to a There is no impediment to obtaining a Labour Permit or visa in foreigner considered in any of the following cases: Mexico; nonetheless and pursuant to Article 43 of the Immigration I. due to political asylum, acknowledgment of the status as Law, it is established that immigration authorities may withhold the refugee and complementary protection or for the determination issuance of a visa, regular entry into Mexico, or their stay, from as stateless, prior fulfilment of the requirements established under the Immigration Law, its Rulings and other applicable foreigners found to fall within any of the following categories: legal provisions; a) they are subject to a criminal process or have been convicted II. for the right to preserve a family unity in the cases set forth of a grave crime pursuant to the Mexican laws relating to under Article 55 of this Law; criminal matters or the provisions under the International Treaties or Agreements to which Mexico is a party, or who, III. retired or pensioned individuals that receive from a foreign pursuant to their background in Mexico or abroad, may government or international organisms or private companies, compromise national or public security; for services rendered abroad, an income that allows the individual to live in Mexico; b) they do not fulfil the requirements established in this Law, its Rulings and other applicable legal provisions; IV. by decision of the National Immigration Institute, pursuant to the points system so established, pursuant to Article 57 of this c) the authenticity of their documents or the accuracy of the Law; elements provided therein is doubted; V. if four years have passed since the foreigner has obtained a d) they are subject to express authorisations from the competent temporary resident permit; authority; and VI. if the individual has children of Mexican nationality by birth; e) as established under other legal provisions. and

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Enrique J. Arellano Enrique Arellano Rincón Abogados, S.C. Moliere 39-9, Col. Chapultepec Polanco Mexico City, 11560 Mexico

Tel: +52 55 5280 1233 Fax: +52 55 5280 3067 Email: [email protected] URL: www.arellanoabogados.com.mx Mexico Enrique J. Arellano is the founder and senior partner of Enrique Arellano Rincón Abogados, S.C., specialising in Mexican corporate immigration law since 1976. The firm is committed to delivering high-quality, professional immigration services for a wide variety of multinational companies. The main offices are located in Mexico City, with regional offices in Monterrey, Guadalajara and Puebla. Mr. Arellano is a native of Mexico City and is a graduate of the Universidad Nacional Autónoma de México (UNAM) Law School, where he currently serves as the immigration specialist on the university’s board of regents’ legal committee. He speaks Spanish and English. He is a member of the National Bar Association of Mexico; the Mexican National College of Lawyers; the National Association of Immigration Lawyers of Mexico; the American Immigration Lawyers Association (AILA), VP Mexico Chapter 2012/2013; the International Bar Association (IBA), the Immigration & Naturalization Committee (as Chair from 2011 to 2013); the Alliance of Business Immigration Lawyers; and Visalaw International, among other organisations. He is the Director of the immigration studies committee for UNAM and was the 2011–2012 Chair of the immigration and nationality law committee of the International Bar Association. Mr. Arellano lectures frequently at national and international immigration conferences. He has published various articles and has contributed to several global publications related to Mexican immigration issues. He served as a member of the Immigration Commission for the National Development Plan during Mexican President Ernesto Zedillo Ponce de León’s term. Mr. Arellano has been an immigration consultant for over 350 multinational corporations. As of 2013 and each year thereafter consecutively, Mr. Arellano has been selected among the top 15 most highly regarded individuals internationally in his field worldwide by The International Who’s Who of Corporate Immigration Lawyers.

Founded in 1976, the firm Enrique Arellano Rincón Abogados, S.C. specialises in Corporate Immigration Law, as well as Nationality Law (Ley de Nacionalidad). Our experienced and professional team of attorneys offers services to Mexican and multinational companies. The services that we offer are based on the needs of each of our clients, amongst which we offer a wide range of services related to the transfer of personnel to and from Mexico. The team is formed of more than 55 professionals who are dedicated to responding proactively to your immigration needs and providing and expediting efficient solutions. You can depend on us to communicate with the Mexican immigration authorities on your behalf and notify you of the milestones of your case throughout the process. In Mexico, Enrique Arellano Rincón Abogados, S.C. is one of the leading firms in Immigration Law. The trajectory and prestige of the firm have afforded us acknowledgments by the relevant authorities and invitations to several national and international forums and conferences.

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Netherlands

Mynta Law Arend van Rosmalen LL.M.

US citizens and Japanese citizens benefit from favourable immigration 1 Introduction rules as well. These exemptions flow from the 1956 Treaty of Friendship, Commerce and Navigation between the Netherlands and 1.1 What are the main sources of immigration law in your the United States of America and the 1912 Treaty of Commerce and jurisdiction? Navigation between the Netherlands and Japan, respectively.

The basic immigration law in the Netherlands is the Immigration 1.2 What authorities administer the corporate immigration Act 2000 (Vreemdelingenwet 2000 or Vw), which sets out the basic system in your jurisdiction? authorities and legal boundaries for the government to deal with immigration matters. Delegated rules are laid down at government The executive power to issue, alter and withdraw visas and residence level in the Immigration Decree 2000 (Vreemdelingenbesluit 2000 permits is in practice administered by the IND. or Vb) and at ministerial level in the Immigration Regulation Aside from the IND, there are advisory roles for the Netherlands 2000 (Voorschrift Vreemdelingen 2000 or Vv). The Immigration Enterprise Agency (Rijksdienst voor Ondernemend Nederland and Naturalisation Service (Immigratie- en Naturalisatiedienst or or RVO), a department of the Ministry of Economic Affairs, IND), which executes these laws for the most part, has published and the Employee Insurance Agency (Uitvoeringsinstituut its policies and binding interpretations in the Immigration Circular Werknemersverzekeringen or UWV), which is a department of the 2000 (Vreemdelingencirculaire 2000 or Vc). Ministry of Social Affairs and Employment. UWV is responsible The Employment of Foreign Nationals Act (Wet arbeid for issuing work permits. vreemdelingen or Wav) holds the rules on employability of foreign The police are charged with the control of foreign nationals and may nationals, and sets out the basics of the sanctions regime for breaches take measures to ensure the return of illegally residing persons. The of this law. Delegated rules are laid down at governmental level in Inspectorate for Social Affairs and Employment (Inspectie SZW) the Executive Decree Employment of Foreign Nationals Act (Besluit is charged with the control of employers, and will issue severe uitvoering Wet arbeid vreemdelingen or BuWav), and at ministerial administrative sanctions upon finding foreign nationals at work in level in the Executive Regulation Employment of Foreign Nationals breach of the rules. Act (Regeling uitvoering Wet arbeid vreemdelingen or RuWav). The Ministry of Social Affairs and Employment has published its policies on sanctions in the Sanctions Policy Employment of 1.3 Is your jurisdiction part of a multilateral agreement Foreign Nationals Act 2016 (Beleidsregel boeteoplegging Wet between countries (EU/NAFTA/MERCOSUR) which arbeid vreemdelingen 2016 or BbWav 2016). facilitates the movement of people between countries for employment purposes? Central to the Dutch immigration rules is the distinction between EU citizens (mostly comprising EEA nationals and Swiss citizens The Netherlands is a Member State of the EU. This means first of all as well, but in some respects not including Croatian citizens until that EU citizens and their families benefit from the free movement 1 July 2018) and third-country nationals. EU citizens and their of persons, and EU employers benefit from the free movement of dependant family members (regardless of nationality) can be goods and services. Also, the immigration rules for third-country employed without a work permit, and in general will incur much nationals are increasingly influenced by EU directives. less difficulties in almost any immigration-related situation. The Netherlands is a member of the World Trade Organization, Although Turkish citizens are third-country nationals, there are which provides for a few minor benefits in employment-based extensive exemptions for this category due to the applicability of immigration. the 1963 Agreement creating an association between Turkey and the then EEC (Turkish Association Agreement), and related (case) law. Turkish workers gain an independent position on the Dutch labour 2 Business Visitors market much faster and easier than non-privileged third-country nationals do. This also counts for their dependants, regardless of nationality. Turkish entrepreneurs’ immigration applications are 2.1 Can business visitors enter your jurisdiction under a assessed according to a test less strict than the one applied to non- relevant visa waiver programme? privileged third-country nationals. EU citizens do not need a visa to enter the Netherlands. Anyone

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holding a valid residence permit of a Schengen state, regardless of the Netherlands) to temporarily send their employees over in nationality, may enter the Netherlands without a visa. order to provide services. No work permit is required for this, In addition, visa free travel is also allowed for citizens of Albania, regardless of the employees’ nationalities, so long as the employees Andorra, Antigua and Barbuda, Argentina, Australia, the Bahamas, have permission to work in the employer’s home state in the EU. Barbados, Bosnia and Herzegovina, Brazil, Brunei Darussalam, Prior notification is mandatory in case of third-country nationals. Canada, Chile, Colombia, Costa Rica, Dominica, El Salvador, Inspections may be made to assess compliance with the applicable Georgia, Grenada, Guatemala, Holy See (Vatican City), Honduras, immigration and employment laws. We strongly advise companies Israel, Japan, Kiribati, Macedonia (Former Yugoslav Republic), intending to post third-country nationals to the Netherlands under Malaysia, Marshall Islands, Mauritius, Mexico, Micronesia, this exemption to seek expert legal advice beforehand. Moldova, Monaco, Montenegro, New Zealand, Nicaragua, Palau, It appears the above should also be applicable in case the employer Panama, Paraguay, Peru, Samoa, San Marino, Seychelles, Serbia, is based in the European Economic Area or Switzerland, but there Netherlands Singapore, Solomon Islands, South Korea, St. Kitts and Nevis, St. is no precedent. Lucia, St. Vincent and the Grenadines, Timor-Leste, Tonga, Trinidad Apart from this, since 1 April 2017, companies may ask UWV to and Tobago, Tuvalu, Ukraine, United Arab Emirates, United States of America, Uruguay, Vanuatu and Venezuela. give prior approval to a longer term project (up to three years, but extendable) that requires the transfer of many (short-term) visitors. The visa-waiver also applies to citizens of Hong Kong and Macau, UWV may approve the project, in which case work permits are no British nationals (overseas), British overseas territories citizens, British longer required for work carried out within the framework of the overseas citizens, British protected persons and British subjects. project. This regulation targets the temporary transfer of specialists, and longer term projects that would (heavily) compete with local 2.2 What is the maximum period for which business employment are not likely to be approved. The arrival of individual visitors can enter your jurisdiction? short-term visitors and workers within an authorized project must still be notified to UWV. Inspections will then be carried The maximum period for which business visitors can enter the out to assess compliance with the project plan and the applicable Netherlands are: employment laws. i) EU citizens can stay up to three months with no restrictions and may extend their stay under very lenient conditions. 2.5 Can business visitors receive short-term training? Overstay in their case is not severely sanctioned. ii) Third-country nationals can stay up to 90 days in any period Yes, the receiving of short-term training and/or instructions on the of 180 days, whether they hold a Schengen business visa or fall under the visa waiver. Overstay is not permitted. use of goods made in the Netherlands or services to be performed in the Netherlands is an activity for which business visitors need no work permit. If the training does not relate to the use of goods made 2.3 What activities are business visitors able to undertake? in the Netherlands or services to be performed in the Netherlands, or if the training exceeds 12 weeks within a 36-week period, a work EU citizens (except Croatian citizens) face no restrictions on the permit is required. Dutch labour market, and may perform any kind of work. For Croatian citizens a transitional regime is in force until 1 July 2018. Outside the sphere of EU law, a work permit is in principle always 3 Immigration Compliance and Illegal required for any kind of work, but the law exempts specific activities Working carried out by business visitors. Important general exemptions, for which no work permit is required, are the following short-term 3.1 Do the national authorities in your jurisdiction operate activities: a system of compliance inspections of employers ■ repairing, maintaining or installing machines, devices or who regularly employ foreign nationals? software, and giving instructions on the use of these, if the activities are carried out by employees of the foreign-based Yes, they do. seller of these products (up to 12 weeks within any period of 36 weeks); ■ receiving short-term trainings or instructions on the use of 3.2 What are the rules on the prevention of illegal goods made in the Netherlands or services to be performed working? in the Netherlands (up to 12 weeks within any period of 36 weeks); It is unusual for breaches of the work permit requirement to be ■ having negotiations or business meetings and signing addressed through criminal prosecution, save in severe cases contracts; and (human trafficking and so forth). ■ organising presentations or stands if the activities are carried Breaches of the work permit requirement are more often addressed out for a foreign company (up to 12 weeks within any period by administrative penalties, (the threat of) exclusion from obtaining of 36 weeks). further work permits and (the threat of) temporary closures of There are more specific exemptions in particular sectors, such as business sites. All administrative sanctions that the Inspectorate for journalism, arts and sports, science, international transport including Social Affairs imposes are made public. inspections, diplomacy, military and international education.

3.3 What are the penalties for organisations found to be 2.4 Are there any special visitor categories which will employing foreign nationals without permission to enable business visitors to undertake work or provide work? services for a temporary period? If work is performed in breach of the Wav, an administrative penalty EU law allows companies established within the EU (but outside

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will be imposed against every party which either directly or indirectly If the sponsor is a recognized sponsor, there are additional “let this happen”, meaning there is a far-reaching “chain-liability”. responsibilities related to the accelerated admission procedure. Since The amount of the administrative penalty is primarily calculated on recognized sponsors may often simply declare that immigration the basis of the BbWav. Legal persons incur a standard penalty of requirements are met, they have the legal obligation to keep all EUR 8,000 per individual breach of the rules (per illegal employee). documentation on record to support these statements. The Inspectorate The amount is increased by 50% if aggravating circumstances can be for Social Affairs will periodically assess this documentation and may proven, such as if the person(s) concerned had no legal stay, if there hold interviews with employees to assess compliance. are more than three foreign workers involved, or in case of recidivism. A second or even third breach of the rules within a five-year period 4.3 Do the immigration authorities undertake routine of time will result in much higher penalties and may ultimately give inspections of employers who sponsor foreign cause for a temporary closure of an entire business site. nationals, to verify immigration compliance? Netherlands Additionally, employers incurring these kinds of penalties are increasingly excluded from obtaining future work and residence Routine inspections occur. The Inspectorate for Social Affairs permits. and Employment uses untransparent profiling policies to prioritize All sanctions imposed by the Inspectorate for Social Affairs are inspections. It is our general impression that these profiling policies made public. differentiate between sectors. Construction and agriculture, for instance, seem more likely to be checked. Additionally, we tentatively maintain that a certain degree of importance seems be attached to 4 Corporate Immigration – General the respective countries of origin of businesses and migrant workers, even though the government for obvious reasons will deny this.

4.1 Is there a system for registration of employers who wish to hire foreign nationals? 4.4 Do the immigration authorities maintain a list of skilled occupations which may be filled by foreign nationals? Yes, such a system exists. Employers may apply to be recognized as a sponsor. In the course of this recognition process, the IND assesses In general, this is not how the authorities determine which positions the reliability and solvability of the company as an employer. Only may be filled by foreign nationals and which may not. There entities established in the Netherlands and registered with the are, however, certain sectors where particular occupations can Netherlands Chamber of Commerce can be recognized as a sponsor. practically be filled by foreign nationals, such as religious teachers, The admission process is straightforward for larger employers Asian cuisine chefs and professional musicians in orchestras. Apart long established in the Netherlands, so long as there are no serious from this, the determination which foreign workers are admitted fiscal antecedents or criminal records, etc. For newly established and which ones are not is done mainly on the basis of salary levels. companies (or subsidiaries) and for smaller employers, whose Higher paying occupations may be filled by highly skilled migrants solvability is less obvious, the admission process may involve more (see below). Lower paying jobs can in practice only be filled by extensive documentation. persons with a priority on the Dutch labour market (EU citizens and Recognition as a sponsor has the following advantages: third-country nationals with full access to the labour market). ■ Recognized sponsors are allowed to process their immigration applications through an accelerated admissions procedure using different types of forms (or online). The IND strives 4.5 Is there a recognition that some occupations may be in short supply and do special exemptions apply to to decide within two weeks. This term is usually met even certain sectors and occupations? though it is not enforceable. ■ Recognized sponsors are seen as trusted parties by the IND. They do not need to provide as much documentary evidence The possibility to obtain a regular work permit after a full as other sponsors do. A declaration to the effect that the assessment of the Dutch labour market is in our opinion mainly immigration requirements are met will often be sufficient theoretical. Employers should be advised against these regular evidence. Such declarations are of course the responsibility work permit applications, except for the fulfilment of extremely of the employer (and employee); the IND never foregoes the unique job vacancies that really do not exist in the Netherlands at right to withdraw residence permits issued on the basis of all. We assume that if an employer indeed has a vacancy so rare that information that turns out to have been incorrect. Recognized a regular work permit could indeed be issued for it, they will likely sponsors thus bear a crucial responsibility to “know what be amenable to set a suitable candidate’s salary sufficiently high in they are doing”. order to have the position filled under the Highly Skilled Migrant ■ Recognized sponsors are exclusively allowed to hire highly policy (see below). skilled migrants (see below). There is a temporary policy under which Asian cuisine chefs may be employed in restaurants. The policy builds on the assumption 4.2 Do employers who hire foreign nationals have that, even though there is plenty of supply available, the prioritized ongoing duties to ensure immigration compliance? candidates will need time to be made accustomed to working in Asian disciplines. In exchange for each work permit, the restaurant This is usually the case, but it depends on whether the employer must commit to hiring prioritized candidates as well, or to provide is the employee’s sponsor. If the employee is an EU citizen, for relevant training to one of their employees. example, he or she does not need a sponsor and the employer does not need to accept the legal responsibilities of sponsorship. 4.6 Are there annual quotas for different types of As a sponsor, the employer is obliged to inform the IND of any employment-related work permits or visas? changes that could warrant the withdrawal of the employee’s residence permit, such as a change in position, salary, termination of A system of annual quotas currently only applies to the temporary the employment contract and so forth. admission of Asian cuisine chefs.

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Highly Skilled Migrant policy 4.7 Are there restrictions on the number of foreign The Highly Skilled Migrant policy hinges on the assumption that an workers an employer may sponsor, in relation to a maximum percentage of foreign workers in the employee’s salary reflects his or her added value for the employer – employer’s workforce? and indirectly for the wider economic interests of the Netherlands. The most important requirements under the Highly Skilled Migrant A comparable regime is currently in place for the Asian catering policy are the following: sector. In general, this kind of restriction is not maintained. ■ The employer must be recognized as a sponsor (see above). ■ The employee has an employment contract with the recognized sponsor. The salary must at least meet the 4.8 Are employees who are sponsored to work in your applicable thresholds set out below: jurisdiction required to demonstrate language

proficiency? ■ If the employee is 30 years old or older: EUR 4,324 gross Netherlands per month. No, they are not. However, the candidate must have the necessary ■ If the employee is younger than 30 years: EUR 3,170 qualifications to fulfil the position. gross per month. ■ If the employee holds a Search Year Visa (see below at “New Hires”) or would qualify for one (regardless of the 4.9 Are employees who are sponsored to work in your person’s age): EUR 2,272 gross per month. jurisdiction required to undergo medical examinations before being admitted? The thresholds mentioned are for 2017. These are increased at the start of each calendar year to correct for inflation. The thresholds Newly admitted persons need to undergo a TB test within three relate to the fixed monthly salary, which excludes any additional months after arriving in the Netherlands. This does not apply to compensation like holiday allowances, bonuses, company cars, EU/EEA and Swiss citizens, nor to the citizens of Albania, Andorra, pensions and so forth. Antigua and Barbuda, Argentina, Armenia, Australia, Bahamas, The offered salary must objectively reflect the Highly Skilled Bahrain, Barbados, Belize, Bosnia and Herzegovina, Brazil, Canada, Migrant’s added value. The beauty of the Highly Skilled Migrant Chile, Colombia, Comoros, Costa Rica, Cuba, Dominica, Egypt, El policy is of course that market forces ensure this will indeed be the Salvador, Grenada, Guatemala, Honduras, Iceland, Iran, Iraq, Israel, case, and it usually is. The legislation does enable the IND to reject Jamaica, Japan, Jemen, Jordan, Kosovo, Kuwait, Lebanon, Libya, abusive applications where salaries are artificially raised in order to Liechtenstein, Macedonia, Maldives, Mauritius, Mexico, Monaco, be able to apply under the Highly Skilled Migrant policy. Montenegro, New Zealand, Niue, Oman, Panama, Paraguay, Qatar, Blue Card Samoa, San Marino, Saudi Arabia, Serbia, Seychelles, Singapore, St. Kitts and Nevis, St. Lucia, St. Vincent and the Grenadines, With the European Blue Card, the Netherlands government has Suriname, Syria, Tonga, Trinidad and Tobago, Tunisia, Turkey, implemented Directive 2009/50/EC. Although the aim of both United Arab Emirates, United States of America, Uruguay and policies is the same – to attract highly qualifying employees and Venezuela. companies that employ them, in practice the European Blue Card regime is stricter than the Highly Skilled Migrant policy in almost every aspect. 4.10 Are employees who are sponsored to work in your jurisdiction required to have medical insurance or are The most important requirements under the Blue Card regime are they entitled to any free public medical services? the following: ■ The employee has a binding offer for employment of at least Medical insurance is mandatory for everyone legally residing in the one year with a company based in the Netherlands. Netherlands. Insurance companies are bound by law to accept the ■ The employment must be for “highly qualified employment” employee on the same terms applying to Dutch citizens. in the sense of article 2, under b of Directive 2009/50/EC. This means the employee must have higher professional education or a Bachelor’s, Master’s or Ph.D. title. This will 4.11 Does the work permit system allow employees who be verified by the Dutch government. hold work permits to be seconded to a client site? ■ The employee’s salary must be at least EUR 5,066 gross per month. This depends on whether the secondment is inherent to the admitted ■ The employer need not be a recognized sponsor, but if the employment, and was known by UWV from the application. company has incurred administrative penalties for breaches of immigration law, the application for a Blue Card may be turned down. 5 Highly Skilled Visas

6 Investment or Establishment Work 5.1 Is there an immigration category which covers highly skilled individuals? Permits

There are such policies in the Netherlands: the Highly Skilled 6.1 Is there an immigration category which permits Migrant policy; and the European Blue Card. The Highly Skilled employees to be authorised to work based on Migrant policy is by far the most widely used employment-based investment into your jurisdiction? immigration policy in the Netherlands. In fact, there appear to be only around five Blue Card holders in the Netherlands in total. EU/ EU citizens enjoy the fundamental freedom of establishment in the EEA and Swiss citizens have full access to the Dutch labour market Netherlands, and may set up and run businesses in the Netherlands and do not need a residence permit. with no significant restrictions. For third-country nationals, the Netherlands has three immigration policies for business owners/

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investors and a residence permit for entrepreneurs, for innovative market and may be hired for any type of employment with no prior startups and for investors. permission being required. Entrepreneurship The Netherlands has signed several Working Holiday treaties (see American and Japanese citizens can file straightforward applications below at question 7.2). for entrepreneurship purposes due to the applicability of bilateral Third-country nationals who have recently graduated from a global treaties. American and Japanese citizens are required to invest a top university can obtain a Search Year Visa, which is a temporary comparatively small amount of capital in their business or Dutch residence permit of one year that grants full access to the Dutch subsidiary. In their case there is no points-based test. labour market during the year. The residence permit is meant to Also, for Turkish citizens there is no strict points-based test because stimulate young top talents to come to the Netherlands, adding to the of the applicability of article 41 of the Additional Protocol to the creation of a talent pool that is deemed to serve the wider economic

Netherlands Turkish Association Agreement. However, in the course of the interests of the Netherlands. A Search Year Visa cannot be extended applications of Turkish citizens to be admitted as entrepreneurs, the except if the applicant has obtained a new qualifying degree. The IND seeks advice from the RVO, which will determine on the basis of transition to a Highly Skilled Migrant residence permit is very much a rather untransparent policy document whether the intended business facilitated (see above). activities might have a negative impact on the Dutch economy. A Search Year residence permit will be issued if the applicant holds For third-country nationals who hold a Long Term Resident status a recent Master’s degree, Ph.D. or postdoctoral degree from any in a different EU Member State, regardless of their nationality, the university ranking in at least the top 200 in the general rankings points-based test also does not apply. In this case, applicants need of Times Higher Education, QS and ARWU, or at a faculty that to show their business will at least generate sufficient resources for ranks in the top 200 in their available faculty and subject rankings. the entrepreneurs themselves and their families to make a living. Proficiency in the English language is required. This proficiency All other third-country nationals who seek admission as will be assumed if the education was in English. Otherwise an ILTS entrepreneurs need to pass a points-based test. The applicants test has to be passed with a score of 6 or above. need to submit their business plans, CVs and much documentary Aside from the above, specific work permit policies relating to evidence. The entrepreneur in general needs to have both a very internships and apprenticeships are in place. These rules contain good and well-evidenced CV (higher education and a relevant very specific requirements, but no labour market test. professional career) and a solid business case in the Netherlands – preferably with some concrete letters of intent or signed contracts, (Working Holiday Program (WHP), or Australian or New Zealand and significant capital to invest in the Dutch enterprise. nationality.) Startup Since 2015, innovative startup entrepreneurs have been exempted 7.2 Are there sector-specific temporary work permit categories which enable foreign workers to perform from the abovementioned points-based test under the following temporary work? conditions: ■ they have at least sufficient capital to fund their own living The Netherlands has signed bilateral Working Holiday treaties expenses for one year (at least EUR 14,201.16 for a single with Argentina, Australia, Canada, New Zealand and South Korea. person and at least EUR 20,287.68 to support a family); These treaties enable young nationals of the contracting states to ■ they submit a plan which shows an innovative business idea obtain a temporary residence permit for up to one year, entitling or concept, as well as the steps the entrepreneurs intend to them to work with no restrictions during that year. It should be take to realize a viable business from that concept; noted that the treaties with Argentina and South Korea include a cap ■ they sign a facilitation agreement with at least one of many of 100 permits per year. startup facilitators in the Netherlands. This could be an acceleration program or a similar guidance agreement; and ■ the startup visa is temporary and valid for one year. If 8 Group or Intra-Company Transfer Work the startup facilitator declares the holder has successfully Permits participated in their program, the permit can be changed to a general entrepreneurship residence permit without the full applicability of the points-based test. 8.1 Does a specific immigration category exist for inter- Investors company transfers within international groups of companies? The Netherlands has an investment immigration policy, but at present it hardly competes with similar policies of other countries. The Dutch legislation provides ample possibilities to enable The checks on the origin of the invested capital are strict, the immigration for this purpose, but there is no single set of rules amount of investment required is steep (EUR 1,250,000 per permit) governing all inter-company transfers. and there is a requirement to invest in either innovative businesses, government seed funds or certain private equity funds. First of all, EU citizens (excluding Croatian nationals), and EEA and Swiss citizens may be transferred to the Netherlands with no restrictions. For Croatian nationals a transitional regime is in force 7 Temporary Work Permits until 1 July 2018. Secondly, the rules governing the inter-company transfer of third- country nationals makes a big difference between secondments 7.1 Is there an immigration category permitting the originating from a group entity established within the EU and hiring of temporary workers for exchanges, career development, internships or other non-economic secondments originating from a group entity established outside purposes? the EU. This is due to the fact that companies established on the single European market enjoy the fundamental freedom to provide services, whereas companies established outside the EU do not EU/EEA and Swiss citizens have full access to the Dutch labour enjoy this freedom.

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The temporary secondment of a third-country national legally to refuse Intra-Company Transfers if the local Dutch entity “was employed by a company established within the EU towards another established for the main purpose of facilitating the entry of intra- European group company – notably a Dutch one – comprises a corporate transferees” or if there is no economic activity in the host service that the sending company is fundamentally entitled to entity. Previous administrative penalties the host entity may have perform. The Dutch authorities have long resisted acknowledging incurred for breaches of immigration rules, as well as serious fiscal this fact, but since the European Court of Justice’s Essent judgment antecedents, may cause applications to be turned down. of 2014, no work permits are required anymore for these kinds of temporary secondments. Likewise, there are logically no specific 8.4 What is the process for obtaining a work permit for an conditions on the employee’s part – such as any relevant education, intra-company group employee? a specialist position, a particularly high salary, and so forth. The sending EU company is after all fundamentally entitled to second The work and residence permits are combined into one single its legal employees to the Netherlands to work on any temporary Netherlands permit. A separate work permit is therefore not required. assignments that comprise a “service”. This is not so if the inter-company transfer involves a third-country national who is to be seconded from a group entity established 8.5 What is the process for the employee to obtain a visa under the intra-company group transfer category? outside the EU to a group entity established in the Netherlands. In that case, Directive 2014/66/EU will usually apply to the conditions of entry, although in some cases the Highly Skilled Migrant policy If the employee is an EU citizen (but not a Croatian national) or an (see above at question 5.1) could be applicable instead. That will EEA or Swiss citizen, a work permit is not required. For Croatian be the case only if the transferee is actually not seconded at all, nationals, a transitional regime is in force until 1 July 2018. but is rather offered a local Dutch employment contract while the If the employee is a third-country national who is seconded from employment contract with the “sending” group entity is completely a group entity within the EU/EEA or Switzerland to a group entity severed. established in the Netherlands, the following conditions have to be met: ■ The employee is legally employed by the sending EU/EEA or 8.2 What conditions must an employing company or organisation fulfil in order to qualify as part of a group Swiss entity. of companies? ■ The work and residence permit in the home state should be valid for the entire duration of the secondment to the The concept of a “group of companies” is only relevant under the Netherlands. applicability of Directive 2014/66/EU – meaning if a transfer is ■ There should be no employment agreement between the made from an entity outside the EU to an entity established within Dutch group entity and the intra-corporate transferee. The the EU. If the transfer is between two EU-based companies, this secondment should, after all, comprise a “service”. transfer would after all fall under the freedom to provide services, ■ The salary must meet local Dutch minimum standards. Social which is not limited to inter-company situations. security contributions can be arranged in the Netherlands or may temporarily be assigned to the sending Member State. Under Directive 2014/66/EU, the definition of a “group of If the secondment is from outside the EU to a group entity in the undertakings” as given in article 4, under l of Directive 2014/66/EU, Netherlands, the most important requirements on the employee’s seems to hinge on the assertion of control. Where one undertaking part are the following: either directly or indirectly holds a majority of another undertaking’s subscribed capital, controls a majority of the votes attached to that ■ The employee must have already been employed by the other undertaking’s issued share capital or is entitled to appoint more sending group entity outside the EU for at least three months. than half of the members of that other undertaking’s administrative, ■ The employee must qualify as either a manager, a specialist, management or supervisory body, then these companies form part of or a trainee employee. the same group. Sister companies also form part of the same group ■ Several particulars of the transfer, including assurance the if they are managed on a unified basis by the parent undertaking. employee will be transferred outside the EU after completion of the assignment, must show from the transferee’s It seems to us that mere contractual ties between companies would employment contract or assignment letter. be insufficient to constitute a “group of undertakings”, but that may ■ The employee must have the necessary professional depend on the specific contracts, and it may just be too early to qualifications for his/her position. In case of the transfer of judge. If this point causes ambiguity, we advise to apply under the trainee employees, a Master’s diploma is required. Highly Skilled Migrant policy so as to let the IND decide the issue. ■ The employee’s salary must be at least a usual salary given the position. The IND maintains that this requirement is met 8.3 What conditions must the employer fulfil in order if the salary meets the applicable Highly Skilled Migrant to obtain a work permit for an intra-company group salary threshold (see above at question 5.1). employee?

8.6 How long does the process of obtaining the work The local entity must be registered with the Netherlands Chamber permit and initial visa take? of Commerce. Recognition as a sponsor is not strictly required, but the application process is significantly simplified in case the Dutch If the sponsor is recognized, the IND will strive to decide within entity is a recognized sponsor (see above at question 4.1). Processing two weeks, except in case of the transfer of a trainee employee. If times will also be much shorter if the sponsor is recognized. the sponsor is not recognized, applications usually take between one There is no annual global turnover benchmark anymore, as and three months, depending on the workload of the IND and the this is not required under Directive 2014/66/EU. However, the complexity of the application. Directive and implementing legislation provide for the possibility

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8.7 How long are visas under the “initial” category valid 9.3 Are there any exemptions to carrying out a resident for, and can they be extended? labour market test?

EU/EEA and Swiss citizens can be seconded indefinitely. There are several exemptions. If the transfer of a third-country national is between EU-based group First of all, the Highly Skilled Migrant policy does not function on entities that make use of the freedom to provide services, then the the basis of labour market testing, which is why it is so widely used. residence permit will be issued for the duration of the assignment Secondly, since 1 April 2017 companies may ask UWV to give with a maximum of two years. This permit is extendable, but only prior approval of a longer term project (up to three years, but up to a maximum of two years in total. extendable) that requires the transfer of many employees. UWV If the transfer of a third-country national is from outside the EU may approve the project, in which case work permits are no longer Netherlands to the Netherlands, the residence permit will be issued for the required for work carried out within the framework of the project. duration of the assignment with a maximum of three years in case of This regulation targets the temporary transfer of specialists, and managers and specialists and one year in case of trainee employees. longer term projects that would (heavily) compete with local The permit is extendable, but only up to a maximum of three years employment are not likely to be approved. The arrival of individual in total in case of managers and specialists and up to one year in case workers within an authorized project must still be notified to UWV. of trainee employees. Inspections will then be carried out to assess compliance with the project plan and the applicable employment laws. A Highly Skilled Migrant permit will be issued for the duration of Apart from this, there are exemptions in particular sectors, such the local Dutch employment contract, with a maximum of five years. as arts and sports, science, international transport including This permit is extendable indefinitely as long as the conditions inspections, diplomacy, military, international education, and for continue to be met. Asian cuisine chefs.

8.8 Can employees coming under the intra-company transfer route apply for permanent residence? 9.4 What is the process for obtaining a work permit for a new hire?

They cannot, unless their secondment is realized through the Highly The most common applications are for so-called single permits, Skilled Migrant policy. If the secondment is realized under the meaning a combined residence and work permit. A Highly Skilled sending company’s freedom to provide services, the employee may Migrant’s residence permit entitles the sponsor to employ him/her. be eligible for permanent residence in the sending company’s EU The same applies to intra-company transferees. Member State.

9.5 What is the process for the employee to obtain a visa 8.9 What are the main government fees associated with as a new hire? this type of visa?

Usually it is the employer that files the immigration application in Government fees are EUR 926 if the transfer is conducted under writing or digitally. If the application is approved, the employee Directive 2014/66/EU. If the transferee is a Turkish citizen, the fees will be issued with a residence permit. It depends on the employee’s are EUR 64 instead. If the transferee is a citizen of San Marino or nationality if he/she then still needs an entry visa. If that is the case, Israel, no government fees are charged. the IND will directly inform the assigned embassy or consulate to issue the entry visa to the approved employee. 9 New Hire Work Permits 9.6 How long does the process of obtaining the work permit and initial visa for a new hire take? 9.1 What is the main immigration category used for employers who wish to obtain work permits for new hires? This depends on whether the employer is a recognized sponsor. If the employer is a recognized sponsor, the IND endeavours to make The most widely used immigration category is the Highly Skilled a decision within two weeks. If not, the processing time varies Migrant policy (see above at question 5.1). between one and three months, depending on the workload of the IND and the complexity of the application.

9.2 Is there a requirement for labour market testing, to demonstrate that there are no suitable resident 9.7 How long are initial visas for new hires granted for workers, before a work permit can be issued to new and can they be extended? hires? The entry visa is valid for three months, within which the applicant EU/EEA and Swiss citizens have full access to the labour market must use it to come to the Netherlands. The validity of the initial and need no work permit. residence permits in the Netherlands is usually equal to the For third-country nationals, the following applies: if a regular work employment offered, with a maximum of five years. permit is applied for, a labour market test is indeed performed, and this would almost always lead to a refusal; or if the application 9.8 Is labour market testing required when the employee is under the Highly Skilled Migrant policy or the Intra Company extends their residence? Transfer policy, or under another policy, then labour market testing is not a part of the application process. Theoretically, if the employee would be admitted after a labour

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market test, then in order to have a work permit extended, the labour market test would have to be done again. However, if the 11.3 Do spouses and partners have access to the labour employee applies under an exempted policy (such as the Highly market when they are admitted as dependants? Skilled Migrant policy), then labour market testing is not part of the application process at all. In most cases, spouses have unrestricted access to the labour market.

9.9 Can employees coming as new hires apply for 11.4 Do children have access to the labour market? permanent residence? In most cases, children have unrestricted access to the labour market. EU/EEA and Swiss nationals may obtain permanent residence status after five years of legal stay. 12 Permanent Residence Netherlands Third-country nationals can obtain a permanent residence permit after five years of legal stay, under certain conditions. This does not apply to persons residing on a strictly temporary residence permit 12.1 What are the conditions for obtaining permanent (such as intra-company transferees). residence?

The most important conditions are the following: 9.10 What are the main government fees associated with this type of visa? ■ The applicant needs to have resided in the Netherlands on a legal basis for an uninterrupted period of five years, directly preceding the date of the application. EU/EEA and Swiss citizens do not need to obtain a residence permit and pay no fees. ■ An application for permanent residence cannot be made so long as the applicant resides on a residence permit for Government fees are EUR 926 if the new hire is applied for under a strictly temporary purpose, such as an Intra-Company the Highly Skilled Migrant policy. If the employee is a Turkish Transfer. citizen, the fees are EUR 64 instead. If the employee is a citizen of ■ The applicant must have sufficient and lasting means of San Marino or Israel, no government fees are charged. support. ■ The applicant must have passed a Dutch language and 10 Conditions of Stay for Work Permit integration exam. Holders 12.2 Is it possible to switch from a temporary work visa to a work visa which leads to permanent residence? 10.1 What are the conditions of stay of those who obtain work permits and are resident on this basis? Yes, that is possible. In most cases, the time spent on the temporary work visa will afterwards even be taken into account in the The conditions of the residence permit need to be maintained at all determination of whether the applicant is eligible for a permanent times. Also, third-country nationals are required to keep their main residence permit. residency in the Netherlands in order for their residence permits not to be withdrawn. 13 Bars to Admission 10.2 Are work permit holders required to register with municipal authorities or the police after their arrival? 13.1 What are the main bars to admission for work?

All residents in the Netherlands need to register with municipal Prior illegal stay in the Netherlands, having submitted false authorities after arriving in the Netherlands. Relevant changes can information to the IND in the past and a criminal background are subsequently be notified digitally in most municipalities. important bars to admission.

11 Dependants 13.2 Are criminal convictions a bar to obtaining work permission or a visa?

11.1 Who qualifies as a dependant of a person coming to Criminal convictions will quickly cause a bar to obtaining work work on a sponsored basis? permission or a visa. The more time a foreign national has spent in the Netherlands, the more severe a conviction has to be in order to Spouses, registered partners and unmarried partners, as well as the trigger the withdrawal of his/her residence permit. applicant’s and his/her partner’s children or foster children under the age of 18, are regarded as family members who can join the family in the Netherlands.

11.2 Do civil/unmarried or same-sex partners qualify as family members?

Yes, they do. Polygamous marriages are not recognized similarly.

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Arend van Rosmalen LL.M. Mynta Law PO Box 85547, 2508CE The Hague Netherlands

Tel: +31 70 205 11 63 Email: [email protected] URL: www.mynta.nl

Arend obtained his Master of Laws (LL.M.) from the University of Netherlands Groningen, where he studied Dutch private law and European law. Creativity and optimism are qualities that characterize Arend. Arend’s thesis on EU citizenship was awarded The Hanneke Steenbergen prize. Arend previously worked at a law firm in Amsterdam, where he achieved outstanding results for both corporate and individual clients. Arend regularly files objections and court appeals against municipalities, IND, the Ministry of Security and Justice, the Ministry of Economic Affairs, the Ministry of Foreign Affairs and the Ministry of Social Affairs and Employment. Through his creative and thorough style, Arend has helped clients to achieve outstanding results. Arend is a member of the Administrative Law Association, the Dutch Lawyers Committee on Human Rights and the Dutch Association for European Law.

Mynta Law is a law firm in The Hague that goes beyond borders. Complex international issues are a constant challenge. Our mission is to meet this challenge and make your international ambitions come true. Our clients, both companies and individuals, can expect excellent services from us. We handle cases in corporate immigration, (international) corporate law, contract law, and Dutch real estate law. Within these jurisdictions, our international experts commit themselves every day to serve your best interests. We are fluent in Dutch, English, and Chinese, and are therefore able to bridge gaps between the Netherlands, Europe, and the world.

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Peru Ariel Orrego-Villacorta Icochea

Barrios & Fuentes, Abogados María Gracia De La Piedra

1 Introduction 2 Business Visitors

1.1 What are the main sources of immigration law in your 2.1 Can business visitors enter your jurisdiction under a jurisdiction? relevant visa waiver programme?

The main sources of immigration law in Peru are the following: Foreign nationals from Mexico, Chile and Colombia are exonerated 1. Legislative Decree N°1350 (MIGRACIONES’ new Act) in from applying for and obtaining a Temporary Business Visa at a force since March 1st 2017. Peruvian consulate abroad to enter Peru for business purposes, as 2. Supreme Decree N° 007-2017-IN, Regulations of the per the Pacific Alliance Agreement recognised in Peru by Legislative Legislative Decree N° 1350, also in force since March 1st Resolution No. 30053 and Supreme Decree N° 024-2013-RE. 2017. Likewise, Brazilian nationals, according to Supreme Decree N° 052- 3. The Single Text of Administrative Procedures of 2004-RE, are exempted from applying for a Temporary Business Peru’s National Superintendence of Immigration Visa, prior to their entry into Peru. (MIGRACIONES). A new text is due to be issued soon. Moreover, Panamanian nationals are exonerated from applying for 4. The Single Text of Administrative Procedures of Ministry of and obtaining a Temporary Business Visa at a Peruvian consulate Foreign Relations. Also, a new one shall be issued soon. abroad, as per Supreme Decree N° 003-2015-RE. 5. Guidelines issued and posted by MIGRACIONES and/or the Additionally, foreign nationals from the European Union belonging Ministry of Foreign Relations. to the Schengen Area, according to Supreme Decree N° 058-2015- 6. Other related rules. RE, are exempted from applying for a Temporary Business Visa abroad prior to their entry in Peru. Likewise, foreign nationals 1.2 What authorities administer the corporate immigration from Bulgaria, Croatia, Cyprus, Romania, Iceland, Switzerland, system in your jurisdiction? Liechtenstein and Norway are exempted as per Supreme Decree N° 008-2016-RE. The corporate immigration system is administered by: Exemption of the requisite to obtain abroad the immigration status 1. MIGRACIONES. of business prior to their entry in Peru has been granted for nationals 2. The Ministry of Foreign Relations. from People’s Republic of China with basis on the Supreme Decree 3. The Peruvian Ministry of Labour, but only in certain labour N° 069-2016-RE. matters related to the hiring of foreign employees. Recently, Indian nationals also have been exempted from applying for the obtainment of a temporary business visa abroad prior to their entry into Peru, as per Supreme Decree N° 006-2017-RE. 1.3 Is your jurisdiction part of a multilateral agreement between countries (EU/NAFTA/MERCOSUR) which facilitates the movement of people between countries 2.2 What is the maximum period for which business for employment purposes? visitors can enter your jurisdiction?

Yes, it is: At present, in general, the maximum period is 183 calendar days 1. Peru has signed and has in force a Multilateral Agreement consecutive or cumulative over a period of one year, counted from with some countries of the Andean Community Nations his/her first entry to the Peruvian territory. However, e.g. for foreign (CAN) such as Ecuador, Colombia and Bolivia. nationals from the European Union belonging to the Schengen Area, 2. Peru is an Associate State of the MERCOSUR Agreement. the maximum period is 90 calendar days for one or consecutive 3. Peru maintains in force a bilateral agreement with Spain for entries, during a period of six months. employment purposes about labour reciprocity. It is not renewable.

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The New Law of MIGRACIONES establishes that this authority 2.3 What activities are business visitors able to undertake? and the Ministry of Labour will share the information on the infractions committed by employers, foreign persons and third Business visitors are able to undertake business, legal, contractual, parties, for the exercise of the functions that are within their specialised technical assistance or similar activities. Among these, competencies. the following can be carried out:

■ perform business, legal or similar arrangements; 3.2 What are the rules on the prevention of illegal ■ attend business meetings or discussions with Peruvian working? affiliates or related parties; Peru ■ attend sales calls to potential Peruvian clients provided the Peruvian labour legislation prohibits the hiring of underage or alien represents a commercial entity outside of Peru; undocumented workers, or foreign workers with an illegal status in ■ observe the operations of a Peruvian affiliate or client; the country, among other rules. However, our system fundamentally ■ attend “fact-finding” meetings with Peruvian affiliates or focuses on penalising rather than preventing illegal work. clients; ■ attend seminars; 3.3 What are the penalties for organisations found to be ■ sign documents, contracts or settlements; employing foreign nationals without permission to ■ act as an international lecturer or consultant; work? ■ act as the director of a company domiciled in Peru; The main legal aspects of Peruvian labour and immigration ■ collect data or information regarding investments and similar legislation are as follows. activities; and In the specific situation of foreigners who hold a Temporary ■ supervise business or investments. Business Visa or Tourist Visa, when the applicable Resident Worker Visa or Temporary Worker Visa is required to work in Peru or 2.4 Are there any special visitor categories which will foreign nationals with an illegal status are found to be rendering enable business visitors to undertake work or provide services without the corresponding migratory status and Work Visa services for a temporary period? at a local company under a subordinated, paid working relationship, according to Peruvian Labour legislation, they will be subject to the Strictly, there is no a typical short-term visitor technical visa in our applicable penalties in force. legislation that authorises foreign individuals to work or provide The local employer might be subject to labour penalties if found services in Peru for a short period of time. However, with the New liable for hiring foreign nationals without a Work Visa in the Law of MIGRACIONES, the definition of the business migratory event that such foreign nationals are presumed to be performing status applicable for business visitors allow them to perform among subordinate work in its favour, without an employment contract other activities, specialised technical assistance, although only for with the local company duly approved by the Peruvian Ministry of a maximum period of 183 consecutive or cumulative days over a Labour as required by law. This applies to Business, Tourist, and period of one year. Student Visa-holders, among other types of visa that do not entitle the holder to work, and it also applies to those with no visa or with an illegal status in the country. In such cases the infractions are 2.5 Can business visitors receive short-term training? basically of an administrative nature.

As per the scope of the temporary business migratory status In the event the Administrative Labour Authority carries out an established by the New Law of MIGRACIONES and its Regulation, administrative labour inspection and verifies that a breach of the a foreigner non-resident as a business visitor would be able to rules on foreign recruitment prescribed in the General Labour Inspection Regulations – Supreme Decree N° 019-2006-TR – has receive short-term training, assessed on a case-by-case basis. occurred, the Ministry of Labour and Employment Promotion may impose the following penalties, taking into consideration the 3 Immigration Compliance and Illegal seriousness of the “offence” committed: Working 1. Very serious violations in the recruitment of foreigners The following breaches are considered very serious offences: ■ “Engaging or hiring foreign workers without prior 3.1 Do the national authorities in your jurisdiction operate administrative approval thereof.” a system of compliance inspections of employers who regularly employ foreign nationals? ■ “Submitting false information or documentation before the Peruvian Ministry of Labour in order to have personnel exempted from the limiting percentages established by the Yes, the National Superintendence of Labour Inspection (SUNAFIL) Law of Hiring Foreign Personnel.” is the labour authority that conducts compliance inspections of companies that employ foreign or national workers, without any ■ “Fraudulent hiring of foreign nationals.” distinction. 2. Serious offences in the recruitment of foreigners A team of labour inspectors is responsible for advising employers on The following breaches are considered moderately serious offences: the standards to be met, monitoring whether employers act according to the labour rules on hiring foreign personnel, and penalising ■ “Not signing written employment contracts with foreign companies that commit violations. Violations are punishable with workers in accordance with the requirements established in the Special Law of Hiring Foreign Personnel.” fines up to a significant amount of money in cases of very serious violations, or serious and minor ones accumulated, with the amount ■ “Non-compliance with the limiting percentages of the depending on the number of foreign workers affected by the non- hiring of foreign nationals, as established by law.” compliance.

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3. Minor offences in the recruitment of foreigners within the framework of any migratory statuses, shall inform The following breaches are considered minor offences: MIGRACIONES about the termination of their relation with the ■ “Breaches affecting formalities or documentary aforementioned foreigners, whatever the reason is, in order that the obligations in the recruitment of foreign workers, public entities, within the scope of their competences, evaluate the provided they are not classified as serious offences.” information and, accordingly, apply the corresponding sanction, to ■ “Not delivering a copy of the employment contract both foreign and the contracting entity, if applicable. duly approved by the Peruvian Ministry of Labour to the foreign employee within the deadline and with the 4.3 Do the immigration authorities undertake routine formalities established by law.” inspections of employers who sponsor foreign In order to illustrate the above, the amount of the fine depends nationals, to verify immigration compliance? Peru directly on the number of workers affected by the non-compliance. It is therefore important to mention that the rules governing MIGRACIONES with the support of the Aliens Police, if it is the mechanics of the sanctions to be imposed by SUNAFIL (the necessary, can carry out inspection and verification activities in the National Superintendence of Labour Inspection) determine that the workplaces of those companies which employ foreign nationals to penalty could reach a high amount of money in case of “very serious check compliance with the immigration legislation as per the New violations”, on the basis of the applicable factor established by the Law of MIGRACIONES. Likewise, the Labour Ministry, through authority for this circumstance, which is the Peruvian Tax Reference SUNAFIL, will also monitor employers’ compliance with labour Unit (UIT) (currently, in 2017, the UIT is PEN 4,050 – equivalent regulations. to approximately USD 1,250). Thus, e.g. in cases where one to 10 foreign employees are involved, the penalty could be 5 UIT as a 4.4 Do the immigration authorities maintain a list of minimum (equivalent to approximately USD 6,260), and in cases skilled occupations which may be filled by foreign of 1,000 or more foreign employees, it could reach 100 UIT as a nationals? maximum (equivalent to approximately USD 125,193). Without prejudice to the aforementioned, according to Law N° 30222, until There is no such list held by MIGRACIONES, but the Labour 12 July 2017, the penalty to be imposed must not be higher than Ministry website has a jobs board with job positions available to 35% of the applicable fine. everyone, which may be filled by either national workers or foreign Likewise, the amount of the penalty should be less significant in workers if they comply with the provisions for the hiring of foreign case of “serious offences” or “minor offences”, respectively. workers. On the other hand and as is stated in Article 161° of the Regulation of Legislative Decree N° 1350, the foreign individuals and their local 4.5 Is there a recognition that some occupations may be employer that will subscribe an employment contract must comply in short supply and do special exemptions apply to with the cited immigration legislation. Thus, in the particular certain sectors and occupations? event that a foreign national is found working in Peru without the corresponding Work Visa, it is likely that an administrative Currently, there are no occupations in short supply that have been sanction will be imposed to the employer by MIGRACIONES. declared as such. However, there are occupations where a larger Nevertheless, MIGRACIONES must establish the applicable fine in workforce is needed, but there are no exemptions applicable to any such circumstance through a corresponding guideline. special sectors or occupations.

4 Corporate Immigration – General 4.6 Are there annual quotas for different types of employment-related work permits or visas?

4.1 Is there a system for registration of employers who There are no annual employment quotas. wish to hire foreign nationals?

There is no system as such at this time. However, local companies 4.7 Are there restrictions on the number of foreign workers an employer may sponsor, in relation to must be registered with the Public Registry, the Tax Authority and a maximum percentage of foreign workers in the the Labour Ministry in order to hire foreign or local workers. employer’s workforce?

4.2 Do employers who hire foreign nationals have In Peru there are maximum percentage limitations on the hiring ongoing duties to ensure immigration compliance? of foreign employees, which are contained in Legislative Decree N° 689 – the Law on the Hiring of Foreign Workers – and its Employers must ensure that their foreign workers’ employment Regulations approved by Supreme Decree N° 014-92-TR, which contracts, as well as the extension of their resident or temporary limits the hiring of foreign individuals to no more than 20% of the permits, are renewed on time, provided that such foreign employees total number of workers and states that their remunerations shall not will continue working for the local company. exceed 30% of the local company’s payroll. Exemptions regarding Also, the employer must guarantee the income tax payment from the such limiting percentages are permitted according to the cited law. exiting foreign employee, once he/she leaves the country after his/ her employment relationship has ended (in case of a Cancellation of 4.8 Are employees who are sponsored to work in your Resident Worker Visa process). jurisdiction required to demonstrate language Additionally, as per the Regulation of the Law of MIGRACIONES proficiency? public entities, private companies or natural persons that have requested the entry of foreign persons into Peruvian territory, Language proficiency is not a legal requirement in order tohire foreign workers in Peru.

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establish, develop or manage one or more lawful investments within 4.9 Are employees who are sponsored to work in your the framework of Peruvian legislation. The specific conditions for jurisdiction required to undergo medical examinations the granting of this status are: A) to accredit an investment equal before being admitted? to or higher than five-hundred-thousand Soles (PEN 500,000.00 equivalent to US$ 155,000 approximately); and B) foreign persons Undergoing medical examinations prior to admission to Peru is not may only serve as Manager or Director of their company, for which currently mandatory for foreign workers. However, this may be they must comply with the corresponding labour or tax norms. necessary depending on the working area within Peru where the This place of foreigner is not included in the quotas of the payroll foreign worker will render services effectively (e.g. in the jungle or established on the Legislative Decree 689 “Hiring Foreign Personnel remote areas where special vaccinations are required). It is important Peru Law” before mentioned. In no case will the foreign person be able to mention that, according to the Law of Safety and Health at Work to support the investment through the transfer of shares. No. 29783 and its Regulation, both foreign and national employees are required to undergo a medical examination at the beginning, during, and at the end of the labour relationship as an obligation of the 7 Temporary Work Permits employer in the case that these employees carry out high-risk activities.

7.1 Is there an immigration category permitting the 4.10 Are employees who are sponsored to work in your hiring of temporary workers for exchanges, career jurisdiction required to have medical insurance or are development, internships or other non-economic they entitled to any free public medical services? purposes?

Foreign or national employees on a local company’s payroll are Yes, this is the Training/Investigation Temporary migratory status. covered by the Public Health System (ESSALUD), although health This category allows the entry and stay of foreigners who wish to plans provided by employers, contracted through private healthcare carry out the same activities referred to in the Migratory Statuses of providers (Entidades Prestadoras de Salud or EPS), may also be Resident Training (allows the foreigner to develop regular studies used in complement to ESSALUD. of superior education, basic education, arts or crafts, in institutions The employer exclusively is responsible for paying the ESSALUD recognised by the Peruvian State. It includes foreigners from student contribution related to healthcare, as a monthly contribution exchanges, pre-professional or professional, cultural practices, equivalent to 9% of the employee’s salary. and other training modalities recognised by Peru) and Resident The public social security health system offers the following Research (granted to the foreigner who has recognised knowledge benefits, among others: prevention; recovery; subsidies for health and experience in science, technology or innovation, as well as high care; social welfare; and work-related and professional illness. specialised education, through the specialised Peruvian Authority), although not for the purpose of residence.

4.11 Does the work permit system allow employees who A previous emission of an Extraordinary Temporary Work Permit hold work permits to be seconded to a client site? granted by MIGRACIONES is required.

Yes, it is allowed, provided this is specified in the scope of the 7.2 Are there sector-specific temporary work permit employment contract and as long as the foreign employee remains categories which enable foreign workers to perform under a subordinated working relationship with his/her local temporary work? employer and not with the client. As per the New Law of MIGRACIONES, in the case of sector- specific temporary work permit categories, such as Arts/Sports and 5 Highly Skilled Visas Journalism, foreigners can be permitted to perform temporary work.

5.1 Is there an immigration category which covers highly skilled individuals? 8 Group or Intra-Company Transfer Work Permits There is no immigration category as such, but foreign workers such as highly qualified professionals, specialised technicians (those who 8.1 Does a specific immigration category exist for inter- are under a subordinated labour relationship with a local company) company transfers within international groups of or Appointed Workers (those who work for their employer overseas, companies? not the local company) are required to be highly specialised in order to perform certain services in Peru which cannot be performed by Currently, as per the New Law of MIGRACIONES, in order to nationals. be able to work in Peru, employees of multinational companies or corporations who travel to Peru to work in a company of the 6 Investment or Establishment Work same economic group or holding company, to perform as senior management or trusted personnel or as specialist or specialised Permits personnel, may apply for the corresponding migratory status existing in Peru according to the current legislation, either as a Temporary 6.1 Is there an immigration category which permits or Resident Worker. employees to be authorised to work based on investment into your jurisdiction?

The Investor-Resident migratory status allows the foreigner to

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visa process may take up to 60 working days, according to Peruvian 8.2 What conditions must an employing company or immigration rules, if an in-country proceeding takes place (to organisation fulfil in order to qualify as part of a group change the immigration status of the applicant internally in Peru). of companies? However, if an overseas visa proceeding is chosen (which involves an additional consular step) where the applicant will remain abroad The local company in Peru must either be an affiliate, subsidiary or from the time the proceeding is initiated with MIGRACIONES and branch of any parent company abroad, making the local company, while it is ongoing, it will take up to 30 working days. in all aforementioned cases, a company linked with the principal It is important to bear in mind that in practice, both kinds of abroad (head office). The main company abroad must always be the proceedings may take less time depending on MIGRACIONES’

sole owner of the local company branch or own most or part of the Peru workload. shares in the affiliate or subsidiary local company.

8.7 How long are visas under the “initial” category valid 8.3 What conditions must the employer fulfil in order for, and can they be extended? to obtain a work permit for an intra-company group employee? In the case of a Temporary Worker, once it is approved, the initial Please see our answer to question 8.1. The local employer must authorised length of stay will be 183 calendar days consecutive or comply with Peru’s special legislation on the hiring of foreign staff, cumulative over a period of one year counted form his/her first entry and with Peruvian immigration rules, in order to obtain a work to Peru. It is extendable for the same term. permit for any foreign employee. On the other hand, in the case of a Resident Worker, once it is approved, the resident permit is granted for one (1) year, renewable.

8.4 What is the process for obtaining a work permit for an intra-company group employee? 8.8 Can employees coming under the intra-company transfer route apply for permanent residence? Along the same lines as the answers to questions 8.1 and 8.3, any local employer who wishes to hire foreign personnel in Peru must Yes. Foreigners with the migratory status of a worker may apply follow the corresponding visa process to obtain the appropriate work for the change of status to permanent residency after three years permit and applicable visa in favour of any foreign employee to be residing in Peru, consecutively. enrolled on the local company’s payroll, in order that the foreign employee may start the labour relationship and render his services 8.9 What are the main government fees associated with in Peru. this type of visa? The visa process for a foreign employee who will perform labour activities in Peru under a subordinated labour relationship for a Government fees include: local company as a dependent worker, unless otherwise indicated, ■ Application Government Fee: 117.50 PEN (36 USD). has two (2) stages. The first one, the labour stage, is related to ■ Interpol Fee: 80.50 PEN (25.15 USD) in case of Resident the obtainment of the work permit to be granted by the Peruvian Workers. Ministry of Labour with the approval of the employment contract ■ Employment Contract Approval Government Fee: 21.60 subscribed by the local employer and the foreign employee. After PEN (7USD). the work permit has been obtained, the second stage of the visa process, the immigration stage, is done through MIGRACIONES by applying for the Work Visa, which will authorise the foreign 9 New Hire Work Permits employee to perform work activities at the local company in Peru as a dependent worker. 9.1 What is the main immigration category used for employers who wish to obtain work permits for new 8.5 What is the process for the employee to obtain a visa hires? under the intra-company group transfer category? The main category used in these cases is a Resident with Worker At present, the process is the same as indicated in the answer to immigration status. question 8.4 above. Once the new Single Text of Administrative Procedures of MIGRACIONES has been issued, we shall know any particular characteristic or difference to be noted. 9.2 Is there a requirement for labour market testing, to demonstrate that there are no suitable resident workers, before a work permit can be issued to new 8.6 How long does the process of obtaining the work hires? permit and initial visa take? Currently, there is no labour market testing required in Peru in order In the case of workers under a subordinated working relationship to fulfil any kind of occupation. with the local company, applying either for a Temporary Worker Visa (lasting less than a year) or a Resident Worker Visa (lasting one year, 9.3 Are there any exemptions to carrying out a resident renewable annually), the first stage of the visa process – approval labour market test? by the Peruvian Ministry of Labour of the employment contract signed by the foreign employee and the local company (employer) This is not applicable. Please refer to question 9.2. – takes up to five business days to obtain. The second stage of the

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9.4 What is the process for obtaining a work permit for a 9.9 Can employees coming as new hires apply for new hire? permanent residence?

This visa process has two (2) stages: Yes. Please refer to the answer provided under question 8.8. 1. Labour stage: the employment contract, which is signed between the foreign employee and the local company, must 9.10 What are the main government fees associated with be approved by the Peruvian Ministry of Labour. this type of visa? 2. Immigration stage: once the first phase is completed, the

Peru foreign employee can apply for either a Resident Worker Please see the answer to question 8.9. Visa or a Temporary Worker Visa. The process can be done internally in Peru via MIGRACIONES, in which case it would be called a “Change of Migratory Status” or, if performed 10 Conditions of Stay for Work Permit while the foreign national remains abroad and involves a consular step, through the “Obtainment Visa Process”. Holders Nevertheless, in this second case, the complete file with documents duly certified by apostille or legalised abroad is also required, and must be submitted before MIGRACIONES 10.1 What are the conditions of stay of those who obtain in Peru even if the applicant remains abroad. work permits and are resident on this basis?

In the case of Resident Visa holders, they must comply with the 9.5 What is the process for the employee to obtain a visa following conditions, among others: as a new hire? 1. If they continue performing work activities in Peru, they must sign their work contract extension with their local employer Please refer to the answer to question 8.4. prior to the end of the contract term, and have it approved by the Peruvian Ministry of Labour. 9.6 How long does the process of obtaining the work 2. Once the employment contract extension has been approved, permit and initial visa for a new hire take? they shall request from MIGRACIONES the corresponding extension of the residence permit for another year. In the case of new hires under a subordinated working relationship 3. Every time foreign Resident Workers exit Peru, they must with a local company, either for a Temporary Worker Visa (less than declare that they have complied with their income tax a year) or Resident Worker Visa (one year, renewable annually), the payment obligations and deliver their tax form over to the Immigration Control Officer at the international airport or first stage of the visa process (the labour stage), at the level of the any port of exit, prior to their departure. Peruvian Ministry of Labour, takes up to five business days as this is the period required to obtain the approval of the employment contract 4. They must not remain outside Peru for a period exceeding 183 calendar days, otherwise they might lose their residence signed by the foreign employee and the local company (employer). permit, except if they have a special authorisation. The second stage of the visa process (the immigration stage), if an 5. Pay the foreigner annual rate during the first quarter of every in-country proceeding takes place (to change the immigration status year. of the applicant internally in Peru), will take up to 60 working days according to Peruvian immigration rules. However, if an overseas visa proceeding is chosen (that involves an additional consular step) 10.2 Are work permit holders required to register with where the applicant remains abroad when the proceeding is initiated municipal authorities or the police after their arrival? before MIGRACIONES and while it is ongoing, this will take up to 30 working days. Nonetheless, it is important to bear in mind No, they are not. However, residence permit holders with the that in practice both procedures may take less time depending on migratory status of “worker” must report mandatorily any change of MIGRACIONES’ workload. address in Peru each time to MIGRACIONES to keep their records and personal files updated.

9.7 How long are initial visas for new hires granted for and can they be extended? 11 Dependants

In the case of a Temporary Worker, once it is approved, the initial authorised length of stay by law shall be 183 calendar days extendable 11.1 Who qualifies as a dependant of a person coming to work on a sponsored basis? for the same term. However, if the term of the employment contract is less than 183 days, the authorised length of stay shall be shorter, accordingly. On the contrary, in the case of a Resident Worker, Dependants include: once it is approved, the residence permit is granted in favour of the ■ the spouse or the person who is a member of the “de facto foreign national for a year, and is renewable annually. union”, according to the provisions of the Peruvian Civil Code; ■ a son or daughter who is a minor; 9.8 Is labour market testing required when the employee extends their residence? ■ the son or daughter of legal age up to the age of twenty-eight (28) years and of single marital status, who is following technical or higher studies; Currently, labour market testing is not required in Peru to fulfil ■ the son or daughter of legal age and unmarried, who is not any kind of occupation; neither is it necessary for the extension of able to attend to their subsistence due to physical or mental residency permits. disabilities, duly proven;

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■ the son or daughter underage of the spouse or the member of the de facto union abroad; 12 Permanent Residence ■ the son or daughter of legal age and unmarried of the spouse or member of the de facto union, who is not able to attend to 12.1 What are the conditions for obtaining permanent their subsistence due to physical or mental disabilities duly residence? proven; ■ first-degree ascendant; and In general terms, after residing for three years in Peru consecutively ■ the first-degree ascendant of the spouse or member of the de with a valid visa. facto union. Peru All of them can be sponsored by a Resident Worker Visa holder. 12.2 Is it possible to switch from a temporary work visa to A national who has a family relationship with a foreigner can apply a work visa which leads to permanent residence? before MIGRACIONES and RREE, as appropriate, for the Resident immigration status of any of the members of the family nucleus. Only foreigners with immigration status of religious, investor, This scope also assists the foreigner to apply for family reunification worker, research, family of resident, consular, diplomatic, official in the situations provided for in the Regulations. Foreign relatives and family migrants may apply for the change to permanent with Temporary immigration status with a stay of more than ninety migratory status. (90) days are assigned by family reunification in the same migratory status as the foreign holder. The migratory status of the foreign holder extends to his/her relatives. 13 Bars to Admission On the other hand, the relatives of the foreigner with a migratory status of Resident may or may not choose the Resident status or 13.1 What are the main bars to admission for work? another of their choice, as long as they meet the requirements required by current legislation. The migratory status of the foreign Fundamentally, foreign workers must demonstrate that they possess holder does not extend to their relatives, and may be different. the experience, qualifications, knowledge, skills and capabilities to transfer their know-how to national staff in the same position they 11.2 Do civil/unmarried or same-sex partners qualify as were hired for in the local company, depending on their profession or family members? specialty. This is a mandatory aspect which the local employer and the foreign worker must comply with, as agreed in the employment As per the Political Constitution of Peru and the Civil Code, same- contract with the foreign worker, to prevent any labour violations of sex partners do not qualify as family members and cannot be the Law of Hiring of Foreign Personnel. sponsored by a Resident Worker Visa holder. Currently, as per the Foreign workers in some occupations are required to have their New Law of MIGRACIONES, unmarried (common law) partners foreign diploma, certifications and credentials evaluated by the qualify to apply for a Family Call proceeding. National Superintendence of University Higher Education, and to obtain a permit from the corresponding professional associations 11.3 Do spouses and partners have access to the labour (e.g. those for architects, physicians, and other professions). market when they are admitted as dependants? 13.2 Are criminal convictions a bar to obtaining work Yes, as per the Article 29.2° section i) of the New Aliens Law in permission or a visa? force, the Dependant Resident Visa allows residence to the foreigner who is a member of the family unit of a Peruvian or of a Foreign Yes, they are. Any Resident Worker Visa applicant or person with a resident, and it allows carrying out lucrative activities of subordinate Temporary Visa applying for an extension beyond the 90-day initial form or independent. term of stay must undergo a criminal background check by visiting INTERPOL’s offices in Peru. 11.4 Do children have access to the labour market?

Peruvian labour regulations do not allow underage foreign children to work.

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Ariel Orrego-Villacorta Icochea María Gracia De La Piedra Barrios & Fuentes, Abogados Barrios & Fuentes, Abogados Julian Arias Aragüez N° 250 Julian Arias Aragüez N° 250 San Antonio Urbanization San Antonio Urbanization Miraflores District, Lima Miraflores District, Lima Peru Peru

Tel: +511 610 6100 Tel: +511 610 6100 Fax: +511 242 2403 / +511 445 1015 Fax: +511 242 2403 / +511 445 1015 Email: [email protected] Email: [email protected]

Peru URL: www.bafur.com.pe URL: www.bafur.com.pe

Mr. Ariel Orrego-Villacorta is a Peruvian lawyer, qualified from the Ms. María Gracia De La Piedra is a Peruvian lawyer and alumnus of University of Lima, with a Post-graduate Diploma in Finance and Pedro Ruiz Gallo University of Lambayeque, Peru. She is a member Corporate Law from ESAN University (Peru). He is a main partner of the Chiclayo, Peru Bar Association. She holds extensive experience and director of the Labour & Immigration Division at Barrios & Fuentes and practice in Immigration and Administrative Law. Abogados (Lima, Peru) and holds extensive experience of 25 years in Ms. De La Piedra focuses her practice on Peruvian Immigration and legal practice, assisting his clients in the field of Immigration, Labour, Labour Law. Her professional experience includes obtaining Resident Employment, and Tax/Labour matters. Worker and Appointed Worker Temporary Visas, providing services He is a member of the Lima Bar Association, the International Bar on different immigration proceedings, both in-country and overseas, Association (IBA), the Alliance of Business Immigration Lawyers including, but not limited to: change of migratory status; exit and entry (ABIL), MULTILAW, and is an AILA (American Immigration Lawyers records; exit permits; final exit proceedings; visa extensions; and Association) Associate. He is an international lecturer on Peruvian others. She prepares documentation and liaises with clients in both Labour, Employment and Immigration Law, having lectured at: the IBA English and Spanish, and advises local and international companies, Immigration and Nationality Law Committee and the IBA Employment mainly in the Corporate Immigration field, helping them achieve their and Discrimination Law Committees Annual meetings (Argentina, business and immigration objectives successfully. 2008, Dubai, UAE, 2011, Washington D.C., USA 2016, respectively); the AILA Annual Global Immigration Forums (Washington, D.C., USA 2010; San Francisco, USA, 2013; Boston, USA, 2014, and Maryland, USA, 2015); the Global Summits of Worldwide ERC (São Paulo, Brazil, 2014 and 2015 and Houston, TX, USA, 2016); as well as being a lecturer at the Peruvian-Spanish Chamber of Commerce, the American Chamber of Commerce of Peru (AMCHAM), the Peruvian- French Chamber of Commerce and Industry, and the Peruvian-British Chamber of Commerce. He is author of articles for the IBA, AILA, ABIL, Análisis Laboral Peru and many specialised publications.

Barrios & Fuentes, Abogados is a leading law firm established in January 1968, with over 49 years of experience in various areas of law such as Corporate, Labour, Immigration, Tax, Oil, Gas & Energy, and others, identifying the needs of our clients according to the economic dynamics of the country, the region and worldwide, as a result of social, economic and technological changes. We are a very well-reputed law firm worldwide in the field of immigration law, specialised in advising international and local clients, with a particular emphasis on corporate immigration, labour, employment and tax/labour matters and related issues, providing assistance from the start of the labour relationship, through its course, to its conclusion. We advise in: the obtainment of Working Visas for Resident, Temporary and Appointed Workers; the Naturalisation process, Business, Student, Immigrant, Investor Visas and, amongst others, the calling of family proceedings; exit permits; cancellations; foreign worker employment contract approvals; as well as providing comprehensive legal advice in Peruvian Labour and Immigration Law matters. We also provide training on labour and immigration legislation to HR departments. Our advice and support is continuous, combining our solid expertise with the versatility required by our clients, helping them to achieve their corporate business and immigration goals effectively.

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Philippines Aris L. Gulapa

Gulapa Law Phillip Don G. Recentes

1 Introduction 1.3 Is your jurisdiction part of a multilateral agreement between countries (EU/NAFTA/MERCOSUR) which facilitates the movement of people between countries 1.1 What are the main sources of immigration law in your for employment purposes? jurisdiction? Yes. The Philippines is a Member State of the Association of The main source of immigration law in the Philippines is the Southeast Asian Nations (“ASEAN”). The ASEAN is a 10-member Commonwealth Act 613 (“CA 613”), also known as The Philippine regional organisation, which includes Brunei Darussalam, Cambodia, Immigration Act of 1940, as amended by Republic Act (“R.A.”) Indonesia, Lao PDR, Malaysia, Myanmar, the Philippines, 118, R.A. 135, R.A. 144, R.A. 503, R.A. 749, R.A. 827, R.A. 1901, Singapore, Thailand, and Vietnam. Under the ASEAN Economic R.A. 4376, R.A. 5171, R.A. 5701 and Presidential Decree (“P.D.”) Blueprint, several Mutual Recognition Agreements (“MRA”) have 542. Other related statutes, which are sources of immigration law been established in support of liberalising and facilitating trade in in the Philippines, include Executive Order (“E.O.”) No. 292, also services in the following priority sectors: (1) engineering services; known as the Administrative Code; R.A. 562, also known as the (2) nursing services; (3) architectural services; (4) surveying; (5) Alien Registration Act of 1950; R.A. 7919, also known as The Alien dentistry; (6) medical services; (7) accounting services; and (8) Social Integration Act of 1995, as amended by R.A. 8247; R.A. tourism professionals. 9225, also known as the Citizenship Retention and Reacquisition Act of 2003; E.O. 226, also known as the Omnibus Investments Code of 1987 as amended by R.A. 8756; R.A. 9139, also known 2 Business Visitors as the Administrative Naturalization Law of 2000; R.A. 9208, also known as the Anti-trafficking in Person Act of 2003, as amended by R.A. 10364; P.D. 1034; LML-M-03-A12-001; E.O. 408; and LML- 2.1 Can business visitors enter your jurisdiction under a relevant visa waiver programme? MC-15F15-064. Other sources include bilateral or multilateral treaties entered into by and between the Philippines and other sovereign states. Yes. The Philippines has a visa-waiver programme under E.O. 408 (1960). This programme allows foreign nationals of certain countries to enter the Philippines without a visa for business 1.2 What authorities administer the corporate immigration purposes and for an initial limited period depending on their country system in your jurisdiction? of nationality. E.O. 408 contains a list of countries, whose nationals are eligible to participate under this programme. The Bureau of Immigration (the “BI”) is principally responsible for the administration and enforcement of alien registration laws including admission, registration, exclusion, deportation and 2.2 What is the maximum period for which business visitors can enter your jurisdiction? repatriation of aliens in accordance with the provision of CA 613 as provided under E.O. 292. The BI also supervises the immigration into and emigration from the Philippines of aliens. The maximum duration will depend on whether the foreign national who enters the Philippines requires a visa or not. Other authorities, which administer the immigration system in the Philippines, include the Department of Foreign Affairs (“DFA”), No visa required foreign nationals, who are nationals of countries which administers the visa-waiver programme of the Philippines, as listed under E.O. 408 as amended, are allowed an initial stay (“Initial well as the BI, which still issues the relevant visa. Foreign service Period”) of either fifty-nine (59) days, thirty (30) days, fourteen (14) posts also administer immigration laws with respect to issuing days, or seven (7) days, depending on the country of nationality. A temporary tourist visas for visa-required nationals. There are also ‘No Visa Required’ (“NVR”) foreign national admitted for an Initial special non-immigration visas that are administered and issued by Period of 30 days may apply for a visa-waiver, which will grant agencies, which have jurisdiction over special economic zones such them an extension of stay for twenty-nine (29) more days. Prior to as the Clark Development Corporation (“CDC”), the Subic Bay the expiration of the Initial Period or of the twenty-nine (29) day Metropolitan Authority (“SBMA”), Authority of the Freeport Area extension for foreign nationals admitted for 30 days, such foreign of Bataan and the Cagayan Economic Zone and Freeport Area. nationals may apply for a one (1) month, two (2) months or six (6) months extension at least one week prior to the expiration of the

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valid stay. All NVR nationals may extend their stay up to a total of (15) days after signing the contract or before the commencement thirty-six (36) months. of employment (if employment commences after the said 15-day For nationals who require a visa, they may apply for an extension of period). stay for up to two (2) months per extension. This is renewable but DOLE regional directors are authorised to conduct an ocular the total period of stay should not exceed twenty-four (24) months. inspection to verify the legitimacy of employment of foreign nationals and a verification inspection of the establishment employing foreign nationals within thirty (30) days after issuance of the AEP. 2.3 What activities are business visitors able to undertake? 3.3 What are the penalties for organisations found to be Business visitors can explore investment opportunities, attend employing foreign nationals without permission to

Philippines conferences, negotiate contracts, and attend business meetings and work? conferences. A penalty of PhP 10,000 per year or a fraction of such year shall be imposed against a foreign national for working without an AEP 2.4 Are there any special visitor categories which will or against an employer for employing a foreign national without a enable business visitors to undertake work or provide services for a temporary period? valid AEP.

Yes. The following are the special visitor categories that enable 4 Corporate Immigration – General business visitors to undertake work or provide service for a temporary period: (1) nationals of the United States of America, Japan and Germany who enter the Philippines to develop and direct 4.1 Is there a system for registration of employers who the operations of an enterprise in the country; (2) foreign nationals wish to hire foreign nationals? seeking work or employment in the Philippines who apply for a pre- arranged employment visa provided that they secure the necessary There are none. employment permit from the Department of Labor and Employment (“DOLE”); (3) a foreign national employed under the public interest 4.2 Do employers who hire foreign nationals have category, which includes those involved in power generation, ongoing duties to ensure immigration compliance? reforestation, special technical and academic exchange programmes and industry; (4) a foreign national who is assigned by any foreign Yes. Employers are required to hire and continue the employment bank to work in its offshore banking unit in the Philippines; (5) a of foreign nationals who have a valid working visa and AEP. foreign national or executive of a regional or area headquarter or Employers who fail to observe the law by hiring and continuing to regional operating headquarter of a multinational company; and (6) employ foreign nationals without a valid working visa or AEP shall a foreign national who works in special economic zones. be penalised by either a fine of PhP 10,000 or imprisonment.

2.5 Can business visitors receive short-term training? 4.3 Do the immigration authorities undertake routine inspections of employers who sponsor foreign Yes. Business visitors who are either NVRs or have a temporary nationals, to verify immigration compliance? visitor’s visa can receive short-term training in the Philippines. Yes. The BI, through its Intelligence Division together with the relevant unit of the DOLE, conducts periodic and routine inspections 3 Immigration Compliance and Illegal of employers who sponsor foreign nationals to ensure proper and Working effective implementation of immigration rules and regulations.

3.1 Do the national authorities in your jurisdiction operate 4.4 Do the immigration authorities maintain a list of a system of compliance inspections of employers skilled occupations which may be filled by foreign who regularly employ foreign nationals? nationals?

Yes. The DOLE monitors the compliance of employers who No. The employment of a foreign national depends on there being employ foreign nationals through the Labor Law Compliance no qualified and able Philippine citizens available for the position System (the “LLCS”) programme. The LLCS is implemented which is determined after a labour market test by the DOLE. through the following: (1) Joint Assessment; (2) Compliance Visit; and (3) Occupational Safety and Health Standards Investigation. 4.5 Is there a recognition that some occupations may be Employers and establishments, which are compliant with labour in short supply and do special exemptions apply to laws, are issued a Certificate of Compliance by the regional director certain sectors and occupations? of DOLE, which is valid for two years. Yes. The DOLE keeps a list called the Skills Occupational Shortage 3.2 What are the rules on the prevention of illegal List, which enumerates occupations where there is a shortage of working? skills. The law also recognises that there are some occupations that are in short supply by providing for the issuance of Pre-Arranged A foreign national who seeks employment in the Philippines, unless Employment Visas (Commercial) to foreign nationals with skills, he is exempted or excluded under the laws, must apply for an qualifications and experience which may not be available or are in Alien Employment Permit (“AEP”) from the DOLE within fifteen short supply in the Philippines.

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There are currently no special exemptions that apply to certain sectors and occupations. 4.11 Does the work permit system allow employees who hold work permits to be seconded to a client site?

4.6 Are there annual quotas for different types of No. This is not expressly allowed under the law, and the DOLE and employment-related work permits or visas? the BI, in practice, look for an AEP that names the client (i.e., site owner) as the employer. Generally, there are no annual quotas for issuing AEPs or working visas. Working visas are categorised as non-quota visas under Philippine Immigration Law. The exemption to this general rule 5 Highly Skilled Visas is the issuance of AEPs or a working visa to foreign nationals who

will be employed by Philippine Economic Zone Authority (“PEZA”) Philippines registered companies. Employment by PEZA registered companies of 5.1 Is there an immigration category which covers highly foreign nationals is capped at five percent (5%) of the total work force. skilled individuals?

Yes. The Philippines may grant a quota immigrant visa to a foreign 4.7 Are there restrictions on the number of foreign national who, among other requirements, possess qualifications, workers an employer may sponsor, in relation to skills, scientific, educational or technical knowledge, which will a maximum percentage of foreign workers in the employer’s workforce? advance and be beneficial to national interest. This type of visa is limited because it is granted to not more than fifty (50) foreign nationals of any one nationality for a given calendar year. Generally, there is no restriction on the number of foreign workers an employer may sponsor. The rule is that an AEP may be issued to a foreign national or to an applicant employer only after it 6 Investment or Establishment Work is determined that there is no available Philippine citizen who is Permits competent, able and willing at the time of application to perform the services desired. That said, please note that employment by PEZA registered 6.1 Is there an immigration category which permits companies of foreign nationals is capped at five percent (5%) of the employees to be authorised to work based on investment into your jurisdiction? total work force.

Yes. The Philippines grants special types of visas based on 4.8 Are employees who are sponsored to work in your investments made in the country. First, there is a visa called jurisdiction required to demonstrate language Special Investor’s Resident Visa (“SIRV”), which is available to proficiency? a foreign national who invests in some viable economic activities and tourist-related projects and establishments. This is issued upon There is no current rule or regulation that requires a sponsored the endorsement of the Board of Investments pursuant to Book V foreign national working in the Philippines to demonstrate language of the Omnibus Investment Code of 1987. Second, a Special Visa proficiency. for Employment Generation (“SVEG”) is available to a foreign national who shall actually employ at least ten (10) Filipinos in a 4.9 Are employees who are sponsored to work in your lawful and sustainable enterprise, trade or industry. Third is the jurisdiction required to undergo medical examinations Special Employment Visa for Offshore Banking Unit under PD before being admitted? 1034 (“PD1034 Visa”), which is granted to a foreign national who is assigned by any foreign bank to work in its offshore banking unit Yes, but this requirement is limited. Certain employees applying for in the Philippines. And fourth, the Special Non-Immigrant Visa a conversion to a Pre-Arranged Employee Visa, who are nationals under R.A. 8756 (“RA8756 Visa”), which is for foreign personnel or of any of the countries listed under Annex A of the Immigration executives of regional or area headquarters and regional operating Operations Order No. SBM-14-059-A and who arrived in the headquarters of multinational companies. Philippines In or after June 2014, are required to present a certified true copy of a Bureau of Quarantine Medical Clearance. There are also municipalities, that require the medical clearance of certain 7 Temporary Work Permits employees of establishments, whether they are foreign or local hires, before the necessary permit to operate is issued or renewed. 7.1 Is there an immigration category permitting the It is the employer’s prerogative to also require its employees to hiring of temporary workers for exchanges, career undergo a medical examination. development, internships or other non-economic purposes?

4.10 Are employees who are sponsored to work in your jurisdiction required to have medical insurance or are None. The Philippines allows only two types of temporary work they entitled to any free public medical services? permits and both are for economic purposes. The first one is called a Special Work Permit issued to a foreign national who comes Foreign national employees are not required to have medical insurance. to the Philippines to render a short or temporary work or service Philippine law may allow a foreign national working in the Philippines assignment. The other one is called a Provisional Work Permit and to be covered by the Philippine Health Insurance Programme if is issued to a foreign national who is a holder of a temporary visitor their respective countries of nationality have existing reciprocity visa and whose application for a work visa is being processed. agreements with the Philippines and if they apply for the Philippines Health Insurance Programme and comply with the requirements.

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On the other hand, the processing time for the work visa will 7.2 Are there sector-specific temporary work permit depend on the type of visa being applied for. Generally, based on categories which enable foreign workers to perform the Anti-Red Tape Act, all applications filed before any government temporary work? office should be acted upon by the assigned officer within ten (10) working days from the date of receipt of the application if it involves Yes. The Philippines issues a Special Work Permit to a foreign complicated transactions, which require the use of discretion in national who comes to the Philippines to render temporary service the resolution of a complicated issue by the officer. That said, or assignment. depending on the volume of applications for visas, the processing period may take up to two (2) months. 8 Group or Intra-Company Transfer Work

Philippines Permits 8.7 How long are visas under the “initial” category valid for, and can they be extended?

8.1 Does a specific immigration category exist for inter- The validity of the initial visa will depend on the type of visa. Pre- company transfers within international groups of Arranged Employment Visas are valid for an initial one to three companies? years and may be extended for another one to three years. Both the 47A2 Visa and PD1034 Visa have an initial validity of one (1) year Yes. The Philippines allows intra-corporate transfers of employees and it can be extended from year to year. An RA8756 Visa has an from the foreign origin company to any branch, subsidiary, affiliated initial validity of three years or less depending on the contract of the or representative office in the Philippines. foreign personnel. The Subic Free Port Work Visa and the Clark Special Economic Zone Work Visa have an initial validity of one 8.2 What conditions must an employing company or to two years depending on the contract of the foreign personnel and organisation fulfil in order to qualify as part of a group may be extended from year to year. of companies?

8.8 Can employees coming under the intra-company The employing company or organisation must be a branch, transfer route apply for permanent residence? subsidiary, affiliate, or representative office of the sending foreign origin company. No, not on the sole basis of coming under an intra-company transfer.

8.3 What conditions must the employer fulfil in order to obtain a work permit for an intra-company group 8.9 What are the main government fees associated with employee? this type of visa?

The employing company must have employed the intra-corporate The main government fees will include applicable application and transferee for at least one (1) year prior to his/her deployment and processing fees for the visa being applied for. Another type of fee the transfer must be based on a secondment agreement between the is for the Alien Certificate of Registration Identity CardACR (“ foreign origin company and the Philippine-based company. I-Card”) and it will depend on the period of validity of the ACR I-Card. For a Pre-Arranged Employment Visa, the applicant has to pay an 8.4 What is the process for obtaining a work permit for an application fee, which will depend on whether the employer belongs intra-company group employee? to the top 1,000 corporations or not as determined by the BI and on the period of validity of the visa. For non-top 1,000 corporations, Foreign nationals who work in the Philippines as an intra-corporate the visa application fee is PhP 12,861.50 for a visa valid for one transferee are excluded from securing an AEP. (1) year, Php 21,633 for a visa valid for two (2) years, and PhP 30,904.50 for a visa valid for three (3) years. For the top 1,000 8.5 What is the process for the employee to obtain a visa corporations, the visa application fee is PhP 12,861.50 for a visa under the intra-company group transfer category? valid for one (1) year, PhP 22,633 for a visa valid for two (2) years, and PhP 32,404.50 for a visa valid for three (3) years. The employee, through his/her employer in the Philippines, must first For 47A2 Visa applications, the applicant has to pay the required secure a certificate of exclusion as an intra-corporate transferee from legal fees amounting to PhP 2,525 as well as the applicable ACR the DOLE. Thereafter, the employee can apply for an appropriate I-Card fees. working visa which can be a (1) Pre-Arranged Employment Visa, For PD1034 Visa and RA8756 Visa applications, the applicant has (2) 47A2 Visa, (3) PD1034 Visa, (4) RA8756 Visa, (5) Subic Free to pay a visa application fee of PhP 5,530. Port Work Visa, or (6) Clark Special Economic Zone Work Visa. For Subic Free Port Working Visa and Clark Special Economic Zone Working Visa applications, the applicant has to pay USD 100 8.6 How long does the process of obtaining the work for a visa valid for one (1) year. permit and initial visa take? In addition to the above visa application fees, an applicant also has to pay an ACR I-Card fee. The amounts will range depending on The Certificate of Exclusion from an AEP is processed within the period of validity. For an ACR I-Card valid for one (1) year, the twenty-four (24) hours. fee is USD 50; for two (2) years, it is USD 100; and for three (3) years, it is USD 150.

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9 New Hire Work Permits 9.5 What is the process for the employee to obtain a visa as a new hire?

9.1 What is the main immigration category used for employers who wish to obtain work permits for new Subject to certain exceptions, the local employer must first file an hires? application for an AEP as mentioned in question 9.4. Once the AEP is issued, an application for the relevant visa must be filed. The main immigration category used for employers who wish to Applications for Pre-Arranged Employment Visas, PD1034 Visa and obtain work permits for new hires refers to non-resident foreign RA8756 Visas are filed with the BI. Applicants for a Pre-Arranged nationals seeking work or employment in the Philippines who Employment Visas are required to attend a hearing before the BI. possess skills, qualifications and experience which may not be The approval of Pre-Arranged Employment Visa applications are Philippines available or in short supply in the Philippines. Under this category, uploaded onto the BI website. the Philippines issues a visa type called a Pre-Arranged Employment Applications for 47A2 Visas are filed with the Department of Justice Visa. Applicants under this category are required to first secure an (“DOJ”) who will decide on the application and issue the 47A2 AEP. Visa, if approved. An application for a Subic Free Port Work Visa is filed with the 9.2 Is there a requirement for labour market testing, SBMA. to demonstrate that there are no suitable resident An application for a Clark Special Economic Zone Working Visa is workers, before a work permit can be issued to new hires? filed with the CDC who will also issue the visa. Both the Subic Free Port Working Visa and the Clark Special Yes. The DOLE publishes in a newspaper of general circulation Economic Zone Visa require applicants to undergo an interview and on their website all applications for new AEPs, including process. change or additional positions in the same company or subsequent assignment in related companies within two (2) working days from 9.6 How long does the process of obtaining the work receipt of the application. The DOLE will also refer to the DOLE permit and initial visa for a new hire take? Skills Registry System, the Professional Regulation Commission Registry of Professionals, and the Technical Education and Skills The average time to process and obtain a work permit is ten (10) Development Authority Registry of Certified Workers to establish working days while the average time to obtain an initial visa is forty the availability or non-availability of able and qualified Philippine (40) days depending on the volume of applicants and provided that resident citizens. all documentary requirements submitted are complete.

9.3 Are there any exemptions to carrying out a resident 9.7 How long are initial visas for new hires granted for labour market test? and can they be extended?

None. It is mandatory for the DOLE to carry out a resident labour The initial visa for a new hire is usually valid for one (1), two (2), market test before a work permit can be issued to new hires pursuant or three (3) years. The foreign national holding a Pre-Arranged to Section 6 of DO 146-15 implementing Article 40. Employment Visa may apply for an extension of the visa.

9.4 What is the process for obtaining a work permit for a 9.8 Is labour market testing required when the employee new hire? extends their residence?

All applications for an AEP should be filed with and processed by Labour market testing is not required when the foreign employee the DOLE regional office having jurisdiction over the intended extends his/her residence. The labour market test is only required place of work. Thereafter, the DOLE regional office shall conduct for new AEP applications or when the position of the foreign a labour market test by publishing, in a newspaper of general employee is changed or an additional position is added. circulation and on the DOLE website, all applications for new AEPs, changes or additional positions in the same company or any subsequent assignment in related companies within two (2) 9.9 Can employees coming as new hires apply for working days from receipt of application. The publication of permanent residence? the AEP application shall contain information such as the name, position, employer and address, a brief description of the functions No. Permanent residence is not granted based on employment in the to be performed by the foreign national, the qualifications, monthly Philippines alone. In order to apply for permanent residence, the new salary range and other benefits of the position, if there are any. The hire has to prove that he/she is legally married to a Philippine citizen. publication shall also indicate that any person in the Philippines who is competent, able and willing at the time of application to perform 9.10 What are the main government fees associated with the services for which the foreigner national is desired may file an this type of visa? objection at the DOLE regional office. All AEP applications shall be processed within twenty four (24) hours after the publication and See our response to question 8.9. payment of required fees or fines. The regional office will issue the AEP unless there exists grounds listed under the Revised Rules for Issuance of Employment Permits to Foreign Nationals to deny the AEP application.

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able to permanently reside in the Philippines – the foreigner must 10 Conditions of Stay for Work Permit have the necessary visa: (a) he may apply for a quota immigrant visa Holders which is limited to not more than fifty (50) of any one nationality for any one calendar year; or (b) he may apply for a non-quota immigrant visa provided that he falls under any of the listed foreign 10.1 What are the conditions of stay of those who obtain work permits and are resident on this basis? nationals under Section 13 of The Philippine Immigration Act of 1940 as amended. Foreign nationals who obtain work permits are expected to obey and Applicants for a quota immigrant visa should file their application abide by Philippine laws, including the payment of correct taxes, together with any proof of the applicant’s special qualifications, and maintain his/her employment with the employer for which such as academic degrees, awards, certificates of recognition, or

Philippines the AEP was issued. The AEP is valid only for the position and other documents attesting to the applicant’s special qualifications, company it was issued. Any change in the position or company skills or knowledge, or proof of financial capacity or investment shall require a new AEP. such as but not limited to (a) bank certification of inward remittance of at least USD 50,000 or its equivalent foreign currency, (b) documents evidencing ownership of condominum unit/s acquired 10.2 Are work permit holders required to register with within four (4) years prior to the filing of the application and municipal authorities or the police after their arrival? with corresponding proof that the amount invested came from or was inwardly remmitted from foreign sources, or (c) documents It varies from local government to local government. Certain local evidencing ownership or investment in a corporation or a business governments require registration prior to actual work. concern acquired within four (4) years prior to the filing of the application with corresponding proof that the amount invested came 11 Dependants from or was inwardly remmitted from foreign sources. Under the Philippine Immigration Act, the following foreign nationals may apply for a non-quota immigrant visa: (1) the wife, 11.1 Who qualifies as a dependant of a person coming to husband or unmarried child under twenty-one (21) years old of a work on a sponsored basis? Philippine citizen; (2) a child of alien parents who is born during a temporary visit abroad of the mother who is a permanent resident of The spouse and children, who are unmarried and are under 21 years the Philippines, provided the child applies within five (5) years from of age, of the principal applicant qualify as dependants. birth; (3) a child born subsequent to the issuance of the immigration visa of the accompanying parent; (4) a former Filipina who lost her 11.2 Do civil/unmarried or same-sex partners qualify as citizenship by virtue of her marriage to a foreign national; (5) a family members? returning permanent resident who went for a temporary trip abroad; and (6) a natural-born Philippine citizen who is returning back to the No. To be a valid dependant spouse, there must be a valid and Philippines after being naturalised in the foreign country. subsisting marriage between the spouse and the principal holder. 12.2 Is it possible to switch from a temporary work visa to 11.3 Do spouses and partners have access to the labour a work visa which leads to permanent residence? market when they are admitted as dependants? No. There is no type of work visa, which leads to permanent No. Spouses admitted as dependants are not allowed to work in the residence currently available in the Philippines. Philippines without a valid working visa and AEP. 13 Bars to Admission 11.4 Do children have access to the labour market?

No. Children admitted as dependants have no access to the labour 13.1 What are the main bars to admission for work? market. The main bars to admission for work include: having a criminal record or being a fugitive from justice in the Philippines or abroad; 12 Permanent Residence availability of a Philippine citizen who is competent, able and willing to do the job in question; and/or being afflicted with an incurable and communicable disease. 12.1 What are the conditions for obtaining permanent residence? 13.2 Are criminal convictions a bar to obtaining work To acquire permanent residence in the Philippines, a foreigner permission or a visa? must satisfy the following conditions: (1) actual presence; and (2) intention to reside in the country. For this purpose – that is to be Yes. One of the grounds for the denial of an AEP application, which is a pre-requisite for a working visa, is conviction of a criminal offence or being a fugitive from justice in the Philippines or abroad.

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Aris L. Gulapa Phillip Don G. Recentes Gulapa Law Gulapa Law 12-A, 12th Floor, Marco Polo Ortigas Manila 12-A, 12th Floor, Marco Polo Ortigas Manila Ortigas Center Ortigas Center Pasig City Pasig City Philippines Philippines

Tel: +632 960 2845 to 47 Tel: +632 960 2845 to 47 Email: [email protected] Email: [email protected] URL: www.gulapalaw.com URL: www.gulapalaw.com

Aris obtained his Master of Laws degree from New York University Phil obtained his Juris Doctor degree (Second Honors) from Ateneo Philippines in 2011 as a Vanderbilt scholar. He obtained his Juris Doctor degree de Manila University in 2016, and was admitted to the Philippine Bar from the Ateneo de Manila University in 2003 and was ranked fifth in in 2017. his class. He was admitted to the Philippine Bar in 2004 and to the Since joining Gulapa Law, Phil has been providing assistance to Gulapa New York State Bar in 2014. Law’s corporate clients with regard to matters involving Philippine Aris is a corporate lawyer who also deals with immigration matters that immigration laws and labour laws related to alien employment. arise out of his corporate transactions. Due to his admission to both the Philippine and New York State Bar, he is able to provide assistance to clients in relation to Philippine and US immigration laws.

Gulapa Law (or G-Law) was established in September 2015 by Aris L. Gulapa together with Charmaine Haw-Lim, Melissa Chavez- Dee, Angel Machuca, Yasmin Sanchez, Aileen Sanguir, Dake Mandocdoc, and Janine Mesina, who all worked closely with Aris on various cross-border transactions and projects prior to the firm’s establishment. From the initial eight lawyers when it started, the firm has almost doubled its size by currently having 15 lawyers. Gulapa Law’s main specialisation is assisting foreign investors in doing business in the Philippines, which would include obtaining the necessary work permits, visa and immigration-related documents for investors and their officers, directors and employees. In February 2017, Gulapa Law launched its New York office, Gulapa & Baclay LLP. Gulapa Law, in coordination with Gulapa & Baclay LLP, seeks to strengthen its immigration practice by providing assistance to clients in relation to both Philippine and United States (“US”) immigration matters. A year since its establishment, Gulapa Law has already been nominated for legal awards by foreign legal organisations and has been ranked as a leading Philippine law firm by international legal publications. It has been named byAsian Legal Business as one of the “Firms to Watch” in Asia for 2017 and was awarded Boutique Law Firm of the Year at the 2016 Asian Legal Business Philippine Law Awards.

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Singapore

Magrath Global Ruth Wilkins

1 Introduction 1.3 Is your jurisdiction part of a multilateral agreement between countries (EU/NAFTA/MERCOSUR) which facilitates the movement of people between countries 1.1 What are the main sources of immigration law in your for employment purposes? jurisdiction? Singapore is a member and participant in the Asian-Pacific The key legislation determining Singapore foreign manpower is the Economic Cooperation Scheme (APEC) scheme. The APEC Employment of Foreign Manpower Act (Chapter 91A) (EFMA) Business Travel Card (ABTC) facilitates pre-cleared and short- and the Immigration Act. The subsidiary legislation includes term entry into participating member countries by pre-approved Employment of Foreign Manpower (Work Passes) Regulations – business travellers. The participating economies are currently Condition of Work Pass, the Employment of Foreign Manpower Australia, Brunei Darussalem, Chile, China, Chinese Taipei, Hong (Levy) Order 2011, the Employment of Foreign Manpower Kong, Indonesia, Japan, Republic of Korea, Malaysia, Mexico, New (Security Measures for Work Place) Notification, the Employment Zealand, Papua New Guinea, Peru, the Philippines, the Russian of Foreign Manpower (Work Pass Exemptions) Notifications 2 Federation, Singapore, Thailand and Vietnam. The USA and Canada and 4, the Employment of Foreign Manpower (Bail and Personal are transitional economies in the ABTC scheme and are not listed on Bond) Regulations, the Employment of Foreign Manpower (Work the card, but ABTC holders may use ‘fast-track’ immigration lanes Passes) Regulations 2012, the Employment of Foreign Manpower at all major airports in these two countries. (Infringement and Appeal Board Proceedings) Regulations Approved ABTC applications are currently granted for five years, or 2013, and the Employment of Foreign Manpower (Work Passes) up to the validity of the passport, whichever is shorter. Regulations – Conditions of Work Pass. Following the introduction of the Fair Consideration Framework in 2014, the Ministry of Manpower (MOM) together with the 2 Business Visitors Tripartite Alliance for Fair Employment Practices (TAFEP) promotes the adoption of fair, responsible and progressive 2.1 Can business visitors enter your jurisdiction under a employment practices which directly impacts on the MOM’s review relevant visa waiver programme? of work pass applications. TAFEP was established together with the National Trades Union Congress (NTUC) and the Singapore Yes, Singapore enables a number of foreign nationals to enter as a National Employers Federation (SNEF) in 2007. Elements of the business visitor without a visa through the grant of a Short Term TAFEP Guidelines in relation to the Fair Consideration Framework Visit Pass (STVP) issued upon arrival in Singapore. which have a particular bearing on corporate immigration are those Those foreigners holding travel documents that are expressly requiring employers not to discriminate based on race, gender, age, excluded from this programme, and require a visa to enter Singapore, religion or marital status during the advertisement, recruitment and are currently listed by the Immigration & Checkpoints Authority selection process. While these remain Guidelines, the importance (ICA) as Afghanistan, Algeria, Bangladesh, Commonwealth attached to these processes by MOM can result in work pass of Independent States (stated as Armenia, Azerbaijan, Belarus, privileges being curtailed for those employers considered to hold Kazakhstan, Kyrgyzstan, Moldova, Russia, Tajikistan, Uzbekistan), discriminatory practices. Democratic People’s Republic of Korea, Egypt, Georgia, Ukraine, India, Iran, Iraq, Jordan, Kosovo, Lebanon, Libya, Mali, Morocco, 1.2 What authorities administer the corporate immigration Nigeria, People’s Republic of China, Pakistan, Saudi Arabia, system in your jurisdiction? Somalia, Sudan, Syria, Tunisia, Turkmenistan, Yemen, Hong Kong Document of Identity, Macao Special Administrative Region The MOM is the ministry within the Government of Singapore that (MSAR) Travel, Palestinian Authority Passport, and Refugee Travel is responsible for the development and implementation of labour Document issued by Middle-Eastern countries. policies related to the Singapore workforce. In this capacity, MOM retains authority to oversee matters relating to immigration, 2.2 What is the maximum period for which business and consequently, the issuance of relevant passes including an visitors can enter your jurisdiction? Employment Pass to foreign professionals. The period of stay granted is subject to the discretion of the

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reviewing ICA officer at the point of entry. The typical period of These include illegal employment by an employer, a foreign worker stay granted ranges from 30 to 90 days; however, in some cases, this working without a valid pass, employment otherwise in accordance may be as short as 14 days. with work pass conditions, obstruction of an employment inspector and providing false information to the controller of work passes.

2.3 What activities are business visitors able to undertake? 3.3 What are the penalties for organisations found to be A business visitor may typically engage in limited activities such employing foreign nationals without permission to as attend company meetings, explore business opportunities, work? attend corporate retreats or meetings with business partners, attend workshops, seminars and conferences as a participant, or exhibitions The penalty for employing a foreign employee without a valid as a trade visitor. work pass can include a fine between S$5,000 and S$30,000, or Singapore Work activities or paid employment under a contract of service or imprisonment for up to one year or both. For subsequent convictions, contract for services is expressly forbidden without a relevant work a mandatory imprisonment and a fine between S$10,000 and pass. S$30,000 may be imposed.

2.4 Are there any special visitor categories which will 4 Corporate Immigration – General enable business visitors to undertake work or provide services for a temporary period? 4.1 Is there a system for registration of employers who MOM enables certain defined activities to be carried out for a wish to hire foreign nationals? limited time without a work pass. This category is referred to as a Work Pass Exemption (WPE). Eligible WPE activities require The process of application to the MOM for the relevant work pass notification to MOM on arrival in Singapore, and require a valid requires submission of all relevant corporate details relating to the STVP issued by the ICA for the duration of the activity. The employer. An additional system of registration of employers is not maximum duration of WPE activities is up to 90 days in a calendar required in Singapore for these purposes. year (this maximum number of days can be performed over any number of visits to Singapore, for example, three visits of 30 days). 4.2 Do employers who hire foreign nationals have A WPE notification is separate to any specific legal requirements in ongoing duties to ensure immigration compliance? Singapore (for example, the registration requirements to practise in Singapore for specific professions). It is an offence to commence Yes. Employers of foreign nationals have various reporting duties work under the WPE before notification to the MOM. to ensure continuing immigration compliance for each foreign The 10 listed categories of WPE activities are: arbitration; employee. This includes notification and updating MOM of a exhibitions; journalism; junket activities; location filming and change of address, notification of any salary reduction during the fashion shows; performances; specialised services related to a new term of the work pass, and cancellation of the work pass upon plant/operations/equipment; seminars and conferences; sports; and termination of employment. tour facilitation. Certain specific restrictions apply to each category, however, a general provision is that an activity must not relate to either religious belief or religion, race or community generally, or 4.3 Do the immigration authorities undertake routine cause related or directed towards a political end. inspections of employers who sponsor foreign nationals, to verify immigration compliance?

2.5 Can business visitors receive short-term training? Yes, the MOM is enabled through the EFMA to send an Employment Inspector to the premises of an employer to verify immigration Business visitors may attend training courses or workshops without compliance in relation to its foreign employees. further notification to MOM. A business visitor who is a trainer or speaker at a training course or workshop will need to notify MOM for a WPE or obtain a Miscellaneous Work Pass. On the job training 4.4 Do the immigration authorities maintain a list of skilled occupations which may be filled by foreign requires a work pass. nationals?

3 Immigration Compliance and Illegal The relevant legislation and policies in Singapore do not set out a list Working of skilled occupations that may be filled solely by foreign nationals.

4.5 Is there a recognition that some occupations may be 3.1 Do the national authorities in your jurisdiction operate in short supply and do special exemptions apply to a system of compliance inspections of employers certain sectors and occupations? who regularly employ foreign nationals?

Formal exemptions for occupations in short supply in certain sectors Yes, MOM is enabled to carry out compliance inspections of do not exist. However, strategic skills in demand are recognised and employers at any time. would be a factor taken in to consideration during the assessment of such work pass application for a relevant position. 3.2 What are the rules on the prevention of illegal working?

The EFMA sets out the criminal offences relating to illegal working.

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4.6 Are there annual quotas for different types of 4.10 Are employees who are sponsored to work in your employment-related work permits or visas? jurisdiction required to have medical insurance or are they entitled to any free public medical services? No quota exists for the Employment Pass category of work pass designed for foreigners engaging in managerial, executive or Foreigners are not entitled to free public medical services in specialised jobs. Singapore. Employers can elect whether or not to provide medical A foreign worker quota (and related levy) does exist for the S Pass insurance for its Employment Pass holders. category designed for mid-level skilled professionals and for Work Employers of S Pass holders must buy and maintain medical Permits for skilled and unskilled foreign workers in the construction, insurance with coverage of at least S$15,000 per year and cover

Singapore manufacturing, marine, process or services sector. inpatient care and day surgery for the duration of their employment. The same provisions apply for employers of Work Permit holders with the additional requirement that hospital bills for conditions that 4.7 Are there restrictions on the number of foreign may not be work related are covered. workers an employer may sponsor, in relation to a maximum percentage of foreign workers in the employer’s workforce? 4.11 Does the work permit system allow employees who hold work permits to be seconded to a client site? As mentioned above, no formal quota or number restrictions exist for the category of Employment Pass holders. However, An Employment Pass holder is understood to be performing work the criteria for an Employment Pass has been tightened in recent at the stated premises of the sponsoring employer. In circumstances years and the overall profile of an employer and its diversity of where an employee is required to attend at a client site to perform local citizen employees contrasted with foreign employees will be duties directly attributable to the delivery of contracted services subject to assessment during the MOM’s individual review of an between the parties, this is generally permissible, subject to application. An employer’s adherence to the Fair Consideration the employee continuing to be subject to the employment and Framework as set out by TAFEP and its related Tripartite Guidelines supervision of its employing and sponsoring company. on Fair Employment Practices will be taken into consideration. These promote the adoption of fair, responsible and progressive employment practices with the encouragement of employers not to 5 Highly Skilled Visas discriminate based on race, gender, age, religion or marital status during the advertisement, recruitment and selection process. Failure 5.1 Is there an immigration category which covers highly to demonstrate adequate adherence to these Guidelines can result skilled individuals? in work pass privileges being curtailed by the MOM for those employers considered to hold discriminatory practices. The Employment Pass category of work pass covers foreign The number quotas in force in relation to an S Pass is currently professionals who work in a managerial, executive or specialised capped at 15% in the services sector and 20% in other sectors. Work job. Permit quotas for blue collar workers vary according to nationality and industry sector. 6 Investment or Establishment Work 4.8 Are employees who are sponsored to work in your Permits jurisdiction required to demonstrate language proficiency? 6.1 Is there an immigration category which permits employees to be authorised to work based on No; the demonstration of language proficiency is not a formal investment into your jurisdiction? requirement. There is not a special category of work pass for foreign investors. 4.9 Are employees who are sponsored to work in your Options exist for foreign investors wishing to apply for Singapore jurisdiction required to undergo medical examinations Permanent Residence through available investment schemes but before being admitted? this is subject to strict investment type and eligibility criteria and assessed by the ICA. It is not standard practice for an Employment Pass applicant to be required to undergo a medical examination before being issued an Employment Pass. However, following In-Principle Approval 7 Temporary Work Permits of an application, the individual must sign a declaration that they have not suffered from or are not suffering from Acquired Immune 7.1 Is there an immigration category permitting the Deficiency Syndrome (AIDS) or Tuberculosis, or are not infected hiring of temporary workers for exchanges, career with Human Immunodeficiency Virus (HIV). development, internships or other non-economic In relation to S Pass and Work Permit applications, each applicant purposes? must undergo a medical examination following In Principle Approval of the pass and before issuance of the actual S Pass or Work Permit. The Training Employment Pass is available for eligible foreign students or foreign trainees wishing to undergo training in Singapore. It is granted for up to three months and is non-renewable. Qualifying criteria includes that the training attachment in Singapore must be part of the course of study, students must be studying at a recognised

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institution or earn a fixed monthly salary of at least S$3,000, and be sponsored by a well-established Singapore company. A trainee 8.4 What is the process for obtaining a work permit for an from a foreign office or subsidiary is required to earn the same intra-company group employee? minimum fixed monthly salary of S$3,000 and be sponsored by a well-established Singapore registered company. The process for applying for an Employment Pass for an intra- company group employee is the same as the process set out in A foreign student may also have the option of applying for the Work question 9.4, with the exception that the requirement to advertise Holiday Programme which enables eligible foreign students or the position on the Singapore Jobs Bank for 14 days in advance of graduates to work and holiday in Singapore for up to a period of six submission of an application may be exempt for an ICT (subject to months. The criteria includes the limited age range of 18–25 and the stringent definition referred to in question 8.1 above). The MOM being an undergraduate or graduate of a recognised university from may also request supporting documents referred to in questions 8.2 one of nine countries: Australia; France; Germany; Hong Kong; Singapore and 8.3 at its discretion during the application process. Japan; New Zealand; Switzerland; United Kingdom; or the United States. The capacity of places are limited to 2,000 in Singapore at any one time. 8.5 What is the process for the employee to obtain a visa A Training Work Permit (TWP) is available for unskilled or semi- under the intra-company group transfer category? skilled foreign trainees requiring practical training in Singapore for up to six months. A TWP is not renewable, and following the expiry Please refer to the process set out in question 9.5 below. or cancellation of an existing TWP, holders must wait six months before being enabled to apply for another. 8.6 How long does the process of obtaining the work permit and initial visa take? 7.2 Are there sector-specific temporary work permit categories which enable foreign workers to perform Please refer to the answer to question 9.6 below. temporary work? 8.7 How long are visas under the “initial” category valid This is not applicable in Singapore. for, and can they be extended?

8 Group or Intra-Company Transfer Work ICTs are restricted to a three-year term, but this may be extended for up to two additional years, for a total term not exceeding five years. Permits

8.8 Can employees coming under the intra-company 8.1 Does a specific immigration category exist for inter- transfer route apply for permanent residence? company transfers within international groups of companies? An Employment Pass holder falls within a category eligible to apply for Singapore Permanent Residence subject to assessment of an Inter-company transfers fall within the Employment Pass category. applicant’s individual profile. An Intra-Corporate Transferee (ICT) may be exempted from the mandatory requirement to advertise the job posting on the Singapore Jobs Bank prior to submission of an Employment Pass application 8.9 What are the main government fees associated with subject to compliance with the strict definition of ICTs under the this type of visa? World Trade Organisation (WTO)’s General Agreement on Trade in Services (GATS) or any applicable free trade agreements to which The government fees associated with an Employment Pass Singapore is party. application are S$70 payable upon submission of the application, followed by S$150 per pass and S$30 for each Multiple Journey Visa (if applicable) upon issuance of the approved pass. 8.2 What conditions must an employing company or organisation fulfil in order to qualify as part of a group of companies? 9 New Hire Work Permits

The MOM may request documents that demonstrate the relationship between the group of companies at its discretion. It may also request 9.1 What is the main immigration category used for documents that demonstrate that the Employment Pass applicant employers who wish to obtain work permits for new meets the definition of an ICT, such as an organisational chart of the hires? Singapore company and the applicant’s position in it. The Employment Pass category of a work pass is the appropriate category for new hires of foreigners working in a managerial, 8.3 What conditions must the employer fulfil in order executive or specialised role. to obtain a work permit for an intra-company group employee? 9.2 Is there a requirement for labour market testing, An ICT must have worked for the company or organisation outside to demonstrate that there are no suitable resident of Singapore for at least one year before being posted to the branch, workers, before a work permit can be issued to new hires? subsidiary or affiliate in Singapore. Where the applicant possesses specialist skills or knowledge, their stated job description would be required to demonstrate this advanced level of expertise. Yes. The Fair Consideration Framework was introduced in 2014 as part of the Singapore Government’s move to strengthen the

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Singaporean core in the workforce and the requirement to consider Singaporean candidates fairly for job opportunities prior to the hiring 9.6 How long does the process of obtaining the work of a foreigner to a position. Before an Employment Pass application permit and initial visa for a new hire take? is submitted, an employer must advertise the job vacancy on the Jobs Bank website administered by Workforce Singapore, a statutory The typical processing time from submission of an application board under the MOM. The advertisement must satisfy a number to MOM is three weeks. However, this may be extended where of requirements and be open to Singaporeans, must comply with the requests for further information or documents are made by MOM Tripartite Guidelines on Fair Employment Practices and run for at least or if there are complicating factors relating to an individual case. 14 calendar days before an Employment Pass application is submitted. 9.7 How long are initial visas for new hires granted for

Singapore 9.3 Are there any exemptions to carrying out a resident and can they be extended? labour market test? The duration of the Employment Pass granted will be at the The MOM permits the following practical exemptions from the Jobs discretion of the MOM but typically would be up to two years for a Bank advertising requirement where: first time candidate. An application to renew can be made up to six ■ The company has 25 or fewer employees. months in advance of the expiry of the existing pass, typically for a further two years. ■ The fixed monthly salary of the job position is S$12,000 and above. ■ The position is to be filled by an Intra-Corporate Transferee 9.8 Is labour market testing required when the employee (ICT as referred above). In line with the WTO GATS, extends their residence? ICTs relate to positions of seniority in the organisation or individuals who possess an advanced level of expertise. No, the requirement to advertise in the Jobs Bank does not apply ■ The job is necessary for short-term contingencies (considered when applying to renew an existing pass for a foreign employee. a period of employment in Singapore for not more than one However, where an Employment Pass holder determines to change month). jobs and apply for a new position with a different employer in Notwithstanding the above categories of exemptions, the MOM Singapore, such job would be subject to the Jobs Bank advertising strongly encourages employers to advertise all positions on the requirements. Jobs Bank to facilitate access to a larger pool of local candidates and to demonstrate that the company is serious in its endeavour 9.9 Can employees coming as new hires apply for to implement fair employment and recruitment practices that are permanent residence? founded on open, merit-based and non-discriminatory principles, even in such circumstances where a technical exemption from Once a foreign employee holds a valid Employment Pass, they do advertising applies. fall within one of the eligible categories to apply for Singapore Permanent Residence. However, each individual application would 9.4 What is the process for obtaining a work permit for a be subject to strict assessment by the ICA of the strength and profile new hire? of the application.

Following completion of the Jobs Bank advertising process, the 9.10 What are the main government fees associated with employer must submit an Employment Pass application through the this type of visa? designated MOM online application system. Typically, the review process by MOM requires three weeks; however, this can be longer The government fees for a Permanent Resident are typically around where requests for further information are made by MOM and S$230 subject to the individual’s requirement for an entry visa. subject to the individual profile of the application. Upon approval, an ‘In-Principle Approval’ letter is issued. Once the applicant is present in Singapore, a request for the pass to be issued can be made. 10 Conditions of Stay for Work Permit This step must be completed within six months from the issuance Holders of the In-Principle Approval. Once the Employment Pass is issued online, a notification letter is issued that enables the individual to commence working and also facilitates travel in and out of Singapore 10.1 What are the conditions of stay of those who obtain for one month pending issuance of the pass card. Within two weeks work permits and are resident on this basis? of the pass issuance, the individual must make an appointment to attend the Employment Pass Services Centre to register biometric An Employment Pass holder is permitted to reside and work in details. The Employment Pass card will subsequently be delivered Singapore for the duration of the pass granted. The employer/ four working days later to the individual. sponsor undertakes to bear responsibility for the employee’s upkeep and maintenance in Singapore and to indemnify the Singapore Government for any charges or expenses which may be incurred by the 9.5 What is the process for the employee to obtain a visa Government in respect of the foreign employee or their dependants. as a new hire? Up to six months prior to its expiry, a renewal application may For foreign nationals who require an entry visa to enter Singapore, a be submitted for a further period. In order to start working for a Multiple Journey Visa will be issued concurrently with the issuance different employer in Singapore, the new employer must apply for of the Employment Pass for the same duration. The Government a new Employment Pass in compliance with the advertising and fee for this is S$30. submission requirements, and the previous employer must cancel the existing work permit upon termination of the employment.

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10.2 Are work permit holders required to register with 12 Permanent Residence municipal authorities or the police after their arrival?

12.1 What are the conditions for obtaining permanent This is not applicable in Singapore. residence?

11 Dependants An Employment Pass holder falls within one of the eligible categories of foreigner able to apply for Permanent Residence in Singapore. Applications for Permanent Residence are assessed by 11.1 Who qualifies as a dependant of a person coming to the ICA and are subject to strict scrutiny of the applicant’s personal

work on a sponsored basis? profile, qualifications, and experience. The number of new PRs Singapore granted has been tightened significantly in recent years. A legally married spouse and unmarried children under 21, including those that are legally adopted, are eligible to apply for a Dependant 12.2 Is it possible to switch from a temporary work visa to Pass. Unmarried step-children under 21 and unmarried handicapped a work visa which leads to permanent residence? children above 21 are eligible to apply for a Long Term Visit Pass. There is no automatic progression to Permanent Residence from 11.2 Do civil/unmarried or same-sex partners qualify as an Employment Pass. An individual must elect to submit an family members? application.

A common law spouse is eligible to apply for a Long Term Visit Pass. The Singapore government does not recognise same-sex 13 Bars to Admission partners. 13.1 What are the main bars to admission for work? 11.3 Do spouses and partners have access to the labour market when they are admitted as dependants? The main bars to admission for work in Singapore would include a criminal record or a person infected with AIDS or HIV. The A Dependant Pass holder is eligible to apply for a Letter of Consent Immigration Act (Chapter 133) Part II section 8 defines all attached to their Dependant Pass to work in Singapore provided their Prohibited Immigrants to Singapore. In relation to individual work pass has a remaining validity of at least three months. Alternatively, pass applicants, each application will be carefully scrutinised as to they may obtain an Employment Pass in their own right subject to whether the personal profile, professional skills and qualifications, their own eligibility criteria. salary and job scope are commensurate with the level of job expertise required. 11.4 Do children have access to the labour market? 13.2 Are criminal convictions a bar to obtaining work If a child is a dependant of an Employment Pass holder and is at permission or a visa? least 18 years of age and holds a Dependant Pass of at least three months remaining validity, they may be eligible to apply for a Letter Work Pass and Permanent Resident applications must declare of Consent to work. Any such application would be subject to the any criminal convictions and such a declaration will result in an individual assessment by MOM in the usual way as to whether it is application rejection. approved.

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Ruth Wilkins Magrath Global 30 Raffles Place 23-00 Chevron House Singapore 048622

Tel: +65 6233 6801 Email: [email protected] URL: www.magrath.co.uk

Singapore Ruth Wilkins is a qualified UK lawyer at Magrath Global in Singapore and has over 10 years of experience in advising on all aspects of Singapore inbound immigration. This includes advising multinational corporations through to high-net-worth individuals on the compliance procedures and practical considerations of navigating Singapore’s immigration options, particularly in light of the increased tightening measures implemented in recent years. She also provides policy advice to employers on immigration matters and strategic updates to HR professionals.

Magrath LLP Solicitors is an independent law firm practising as a Limited Liability Partnership, regulated by the Solicitors Regulation Authority (SRA) of England and Wales. Founded in 1990, we are a “top tier” Business Immigration practice headquartered in London. Our primary focus, and largest department, is Business Immigration. We are ranked as a leading firm by The Legal 500 and the Chambers Directory (Guide to the Legal Profession). Our Partners are listed as “Leading Practitioners” in these directories. Our partners are also listed as market leading practitioners in Who’s Who Legal, Legal Experts and Super Lawyers. We have one of the largest dedicated business immigration departments in the United Kingdom. As one of the first commercial immigration departments to be established, the firm’s integrity is recognised by both the immigration authorities and our colleagues in other law firms in the UK, as well as overseas. Our focus We focus on all aspects of UK immigration requirements as they apply to businesses and their employees, and we were the first solicitors firm to offer both a dedicated US immigration law department and a global immigration service to our corporate clients. We also provide advice and assistance on immigration and nationality issues to a wide range of private clients. We act for some of the world’s leading companies, providing a fully outsourced bespoke service, taking devolved responsibility for all aspects of UK immigration compliance. In particular, we act as representatives and Level 1 Users on the Sponsor Management System (SMS) for over 200 registered corporate sponsors.

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Slovenia Martin Šafar

Law firm Šafar & Partners, Ltd Polona Boršnak

Iceland and the Swiss Confederation, do not need work permits to 1 Introduction work in Slovenia, which enables them to have free access to the labour market. Citizens of EU Member States, the EEA (Norway, 1.1 What are the main sources of immigration law in your Liechtenstein, Iceland) and the Swiss Confederation are equal to jurisdiction? Slovene workers when it comes to job-seeking and employment. However, the process still differs for Croatian citizens as Slovenia The main sources of immigration law in the Republic of Slovenia has extended the two-year transitional period (from the 1 July are the Aliens Act, the Employment, Self-employment and Work 2013 until 30 June 2015) for the employment and work of Croatian of Aliens Act and the Residence Registration Act. Furthermore, citizens in Slovenia. From 1 July 2015, the Act on the extension of immigration law is regulated by various other laws, rules and the transitional period in the field of the free movement of citizens of decrees such as the Employment Relationship Act and Labour the Republic of Croatia and their family members has extended the Market Regulation Act. transitional period by another three years (from 1 July 2015 until 30 June 2018). Family members of workers coming from the EU, EEA The new Employment, Self-employment and Work of Aliens Act or Swiss Confederation (who are citizens of a third country) also entered into force on 15 July 2015, and became applicable on 1 have the right to access the labour market freely. This means that September 2015. The new Act redefines the employment of foreign they can be employed or become self-employed without obtaining a nationals and introduces a single permit for work and residence and work permit. They prove their right to do so with a residence permit the principle of a “one-stop shop”, to which an alien or his employer for a family member for the purpose of family reunification. submits a single application for a single permit (for residence and work), without prior application for a working permit. In 2018, the Transnational Provision of Services Act will enter into 2 Business Visitors force. This Act sets the criteria under which a legal or natural person that is registered for performing services in the Republic of Slovenia can temporarily provide services in other EU countries and the 2.1 Can business visitors enter your jurisdiction under a relevant visa waiver programme? criteria under which a legal or natural person that is registered for performing services in other EU country can temporarily provide services in the Republic of Slovenia. A business visitor is an alien who resides in the Republic of Slovenia without generating income in the Republic of Slovenia or directly performing public sales or providing services and who fulfils other 1.2 What authorities administer the corporate immigration conditions stipulated in the answer to question 2.3. Business system in your jurisdiction? visitors can enter Slovenia and participate in some activities without a work permit; however, they still need to apply for a visa to enter A single permit for residence and work is issued by the the Republic of Slovenia. Administrative Unit offices, with the consent of the Employment Service of Slovenia. An alien is required to register his temporary or permanent residence at the Administrative Unit offices; supervision 2.2 What is the maximum period for which business visitors can enter your jurisdiction? of the employment and work of aliens is the responsibility of the Labour Inspectorate of the Republic of Slovenia, and visas are issued by embassies or consulates of the Republic of Slovenia abroad. Business visitors can stay in the Republic of Slovenia for a limited period of 90 days within six months, counting from the day of first entry. 1.3 Is your jurisdiction part of a multilateral agreement between countries (EU/NAFTA/MERCOSUR) which facilitates the movement of people between countries 2.3 What activities are business visitors able to for employment purposes? undertake?

The Republic of Slovenia is a member of the European Union (EU) Business visitors can only participate in business meetings and the and European Economic Area (EEA). Citizens of Member States of establishing of business contracts, including negotiations regarding the European Union, as well as citizens of Norway, Liechtenstein, the provision of services and similar activities and those services

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and activities which relate to a foreign employer’s preparation for seasonal work. The Employment Service keeps registers in order establishing a market presence in the Republic of Slovenia. to decide whether to give or withdraw consent in order to decide upon issuance or revocation of permits for seasonal work and for the purpose of monitoring the labour market. 2.4 Are there any special visitor categories which will enable business visitors to undertake work or provide services for a temporary period? 4.2 Do employers who hire foreign nationals have ongoing duties to ensure immigration compliance? Business visitors may be employed, self-employed or perform work if their residence in the Republic of Slovenia is in accordance with Yes, employers have ongoing duties to ensure immigration the legislation governing the residence of aliens. compliance. Upon the conclusion of an employment relationship Slovenia (which must be in accordance with the law governing labour 2.5 Can business visitors receive short-term training? relationships and potential collective agreements binding on the employer), an employer is obligated to register aliens in social insurance schemes. Aliens who are employed in the Republic of No, business visitors can only undertake activities listed in the Slovenia have equal rights and obligations arising from the work answer to question 2.3 without generating income in the Republic of Slovenia or directly performing public sales or providing services. relationship to those of Slovenian citizens. If an alien is employed If a business visitor wants to receive short-term training, he will on the basis of a single permit for residence and work, he has all of need a single permit for residence and work. the rights and obligations, in accordance with national law, related to the wages, working time, breaks, rest periods, and safety at work, among other rights. 3 Immigration Compliance and Illegal Working 4.3 Do the immigration authorities undertake routine inspections of employers who sponsor foreign nationals, to verify immigration compliance? 3.1 Do the national authorities in your jurisdiction operate a system of compliance inspections of employers who regularly employ foreign nationals? Inspections can take place at any time if there is an indication of illegal working or non-compliance with the Employment, Self- Supervision of the employment and work of aliens is the responsibility employment and Work of Aliens Act. Inspections and supervision of the Labour Inspectorate of the Republic of Slovenia, and partly the can be initiated by any legal or natural person and ex officio by the police. National authorities do not operate a system of compliance Employment Service if it suspects that a violation of the employment inspections of employers who regularly employ foreign nationals. and working situation of aliens has occurred.

3.2 What are the rules on the prevention of illegal working? 4.4 Do the immigration authorities maintain a list of skilled occupations which may be filled by foreign nationals? Illegal working in the Republic of Slovenia is regulated by the Prevention of Undeclared Work and Employment, Self-employment No, the immigration authorities do not maintain a list of skilled and Work of Aliens Act, which both prohibit illegal working and occupations which may be filled by foreign nationals; however, in impose pecuniary and non-pecuniary fines. some cases, the labour market test is not required (see question 9.3).

3.3 What are the penalties for organisations found to be employing foreign nationals without permission to 4.5 Is there a recognition that some occupations may be work? in short supply and do special exemptions apply to certain sectors and occupations? A fine ranging from 3,000 to 30,000 EUR is imposed on an employer that commits an offence by enabling the work of an alien, which For certain occupations, determined by the Minister of Labour, does not possess a valid single permit for residence and work. In labour market control is not necessary (see question 9.3). addition, a fine ranging from 500 to 5,000 EUR is imposed on the person responsible at the place of employment. 4.6 Are there annual quotas for different types of A fine ranging from 500 to 5,000 EUR is imposed on an alien who employment-related work permits or visas? commits an offence by performing work for which a valid single permit for residence and work was not issued. The Government of the Republic of Slovenia may, taking into If a fine is imposed, such employer is banned from employing aliens account the situation and anticipated trends of the labour market, for a period of two years; the same applies to an alien. annually determine the quota of consents to the issuance of single permits and the quota of permits for seasonal work, through which it restricts the number of aliens in the labour market. The quota is 4 Corporate Immigration – General determined with a decree.

4.1 Is there a system for registration of employers who 4.7 Are there restrictions on the number of foreign wish to hire foreign nationals? workers an employer may sponsor, in relation to a maximum percentage of foreign workers in the employer’s workforce? No, however, the Employment Service keeps a register on consents, given by the Employment Service and on permits, issued for No, there are no such restrictions.

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4.8 Are employees who are sponsored to work in your 6 Investment or Establishment Work jurisdiction required to demonstrate language Permits proficiency?

No, but language proficiency can be required by an employer. 6.1 Is there an immigration category which permits employees to be authorised to work based on Aliens who are third-country nationals are entitled to Slovenian investment into your jurisdiction? language courses, facilitating integration into the cultural, economic and social life of the Republic of Slovenia. In any case, knowledge No, there is no such category, although by the opinion of the of the Slovene language might benefit an alien while working and competent ministry, an alien may represent economic interest for living in the Republic of Slovenia. Slovenia the Republic of Slovenia. If so, a long-stay visa and permit for temporary residence and single permit for residence and work will 4.9 Are employees who are sponsored to work in your be issued for such alien on grounds of economic interest for the jurisdiction required to undergo medical examinations Republic of Slovenia. before being admitted?

In order to establish a candidate’s health condition for carrying 7 Temporary Work Permits out work, an employer has to refer the applicant for a preliminary medical examination (at his own cost) in accordance with the regulations on safety and health at work. 7.1 Is there an immigration category permitting the hiring of temporary workers for exchanges, career development, internships or other non-economic 4.10 Are employees who are sponsored to work in your purposes? jurisdiction required to have medical insurance or are they entitled to any free public medical services? Aliens who perform work on the grounds of agreements with international organisations, agreements between the competent In accordance with specific regulations, an employer is obligated institutions or related to international projects on technical to register an employee with a compulsory pension, disability and assistance, education, training or research, as well as aliens who health insurance, and insurance against unemployment, no later perform clerical jobs in established religious communities, can than on the day of commencement of work. Foreigners who are become employed, self-employed or perform work if their residence not included in the health insurance system of the Republic of in the Republic of Slovenia is in accordance with the legislation Slovenia have the right to urgent or necessary healthcare services, governing the residence of aliens. the payment of which is provided in accordance with the European legal order, international agreements or from the state budget. 7.2 Are there sector-specific temporary work permit categories which enable foreign workers to perform 4.11 Does the work permit system allow employees who temporary work? hold work permits to be seconded to a client site? Seasonal work can be performed in agriculture or forestry, which An alien who possesses a single permit for residence and work is inseparably connected to a season, in which, for an individual may change workplace, change employer, get employment with activity, a distinct increase in the scope of the need for the labour two or more different employers or conclude a new contract of force is typical. An alien can perform seasonal work under a permit employment, on the grounds of a written authorisation provided by for seasonal work, if the seasonal work does not exceed 90 days in the authority competent to issue such authorisation after receiving one year. If seasonal work exceeds the period of 90 days within the consent of the Employment Service of Slovenia. a year, an alien can perform such work on the grounds of a single permit for residence and work, issued with consent for seasonal work, given by the Employment Service. 5 Highly Skilled Visas

8 Group or Intra-Company Transfer Work 5.1 Is there an immigration category which covers highly Permits skilled individuals?

Yes, there is a special immigration category for highly qualified 8.1 Does a specific immigration category exist for inter- employment, which represents the employment of a third-country company transfers within international groups of national (not a citizen of the EU, EEA or Switzerland) who has companies? required relevant and special competences, is certified with proof of higher education, and is receiving appropriate payment. A person Yes, there is a special category for inter-company transfers within who meets these criteria can receive an EU Blue Card, which is a international groups of companies. temporary residence permit for highly qualified employment, issued in accordance with the law governing the residence of aliens, and 8.2 What conditions must an employing company or enabling the holder to enter, reside and take up employment in the organisation fulfil in order to qualify as part of a group Republic of Slovenia. of companies?

Training of seconded alien workers may be performed if the Slovenian and foreign companies are capital-related, or in the case

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of business and technical cooperation or transfer of technology. short-stay visa) is EUR 60. Diplomatic missions and consular posts Slovenian and foreign companies are capital-related if either of the of the Republic of Slovenia may also accept the fee in the counter- companies has at least a 10% share in the other company, which value of other convertible currencies used in the receiving country. shall not be lower than 10,000 EUR. The fee is the same for both types of visas at all diplomatic missions and consular posts of Schengen States. A different visa fee amount may be fixed by international agreement. 8.3 What conditions must the employer fulfil in order to obtain a work permit for an intra-company group employee? 9 New Hire Work Permits Training of foreign seconded workers is performed on the basis of Slovenia a contract for training concluded by the Slovenian and the foreign 9.1 What is the main immigration category used for companies. The contract for training must contain provisions on employers who wish to obtain work permits for new the payment, board and lodging of seconded workers, as well as hires? a training programme, approved by the responsible chamber or association of employers. A single permit for seconded workers is The main category used by employers who wish to obtain work issued on application by a foreign company. permits for new hires is a single permit for residence and work, which enables an alien to enter, reside and work in the Republic of Slovenia and is issued by the Administrative Unit office with 8.4 What is the process for obtaining a work permit for an the consent of the Employment Service. The consents of the intra-company group employee? Employment Service differs considering the purpose of issuing a single permit. The first single permit is issued for a maximum The conditions for obtaining a single permit are listed in the answer period of one year and can be extended. to question 8.3 above. The consent of the Employment Service can only be given for workers who are continuously employed by the foreign employer or by the capital-related company in a third 9.2 Is there a requirement for labour market testing, to country for at least six months. demonstrate that there are no suitable resident workers, before a work permit can be issued to new hires?

8.5 What is the process for the employee to obtain a visa Yes, the consent of the Employment Service to single permit for under the intra-company group transfer category? residence and work is given only if there are no suitable persons in the records of the Employment Service. Foreign employees must obtain a visa at a diplomatic mission or consulate of the Republic of Slovenia abroad prior to entering the Republic of Slovenia. 9.3 Are there any exemptions to carrying out a resident labour market test?

8.6 How long does the process of obtaining the work Yes, the minister responsible for labour can lay down cases in permit and initial visa take? which the employment of aliens is not dependent on the labour market because of the nature of the work involved or because of the In principle, a visa application should be lodged at least 15 calendar special circumstances of the employer or an alien. In such cases, days before the intended visit (as this is the normal processing time). the consent of the Employment Service is not dependent on a labour It is the applicant’s responsibility to take the necessary precautions market test. The minister responsible for labour can also lay down to respect the deadlines where an appointment system is in place. professions for which a labour market test is not necessary. A single permit for residence and work should be issued within 30 days after the submission of the complete application. 9.4 What is the process for obtaining a work permit for a new hire? 8.7 How long are visas under the “initial” category valid for, and can they be extended? An alien can only find work or employment in Slovenia if he has previously obtained a single permit for residence and work, unless A short-stay visa (type C) entitles its holder to free movement he is entitled to free access to the labour market. The application throughout the entire territory of the EU Member States, but is limited for a single permit can be filed by an alien or by the employer. to 90 days’ stay within 180 days. A long-stay visa (type D) is issued The application is filed with all necessary documents, including a to a third-country national who intends to obtain a residence permit in contract of employment or work. After receiving the application, the the Republic of Slovenia to reunite his family. Visas can be extended. Administrative Unit office will require consent of the Employment Service, which shall be given within 15 days. 8.8 Can employees coming under the intra-company transfer route apply for permanent residence? 9.5 What is the process for the employee to obtain a visa as a new hire? No, a permanent residence permit can only be granted after five years of continuous legal stay in the Republic of Slovenia. Employees from one of the Member States of the EU, EEA or Swiss Confederation do not need a work permit or visa. If a third-country 8.9 What are the main government fees associated with national (all countries except EEA Member States, which include this type of visa? EU member countries and Norway, Iceland and Liechtenstein) wishes to enter the Republic of Slovenia or stay there for tourism, The visa procedure fee for A- and C-type visas (airport transit visa, business, personal or other purposes, he is required to obtain a visa

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at a diplomatic mission or consulate of the Republic of Slovenia abroad prior to entering the Republic of Slovenia. A visa application 11 Dependants should be lodged at least 15 calendar days before the intended visit. 11.1 Who qualifies as a dependant of a person coming to work on a sponsored basis? 9.6 How long does the process of obtaining the work permit and initial visa for a new hire take? A spouse and unmarried minor children qualify as dependants. After submitting a complete application, a single permit for residence and work should be granted within 30 days. Visas should 11.2 Do civil/unmarried or same-sex partners qualify as be processed within 15 days. family members? Slovenia

9.7 How long are initial visas for new hires granted for A spouse, registered partner or partner with whom the aliens resides and can they be extended? in a long-term partnership is also considered a family member.

A short-stay visa (type C) entitles its holder to free movement 11.3 Do spouses and partners have access to the labour throughout the entire territory of the EU Member States but is market when they are admitted as dependants? limited to 90 days’ stay within 180 days. Visas can be extended. Aliens residing in the Republic of Slovenia on the basis of a permit 9.8 Is labour market testing required when the employee for temporary residence for family reunification with a Slovene extends their residence? citizen have the right to free access to the Slovenian labour market.

The Employment Service will give consent to the extension of a 11.4 Do children have access to the labour market? single permit without labour market testing if an alien will continue to work for the same employer and at the same workplace. In other An employment contract in the Republic of Slovenia can only cases, a labour market test will be required. be concluded by persons who have reached the age of 15. An employment contract concluded with a person who has not reached 9.9 Can employees coming as new hires apply for the age of 15 shall be deemed null and void. permanent residence?

A first permit for residence in the Republic of Slovenia may only 12 Permanent Residence be issued as a temporary residence permit. The conditions for obtaining a permanent residence permit are listed in the answer to 12.1 What are the conditions for obtaining permanent question 12.1. residence?

9.10 What are the main government fees associated with The conditions for obtaining a permanent residence permit are: this type of visa? five years of continuous legal stay in the Republic of Slovenia on the basis of a temporary residence permit; or a certificate attesting The fee for issuing a long-stay visa (type D) for the Republic of to the submission of an application for an extension or the issue Slovenia is governed by the Administrative Fees Act and is set at of a renewed temporary residence permit and that the conditions EUR 77. that apply for the first residence permit have been fulfilled. The application for a permanent residence permit must be submitted by an alien or his legal representative or assignee at the administrative 10 Conditions of Stay for Work Permit unit in the area of his residence. While the application is being Holders processed, an alien is required to reside in the Republic of Slovenia on the basis of a temporary residence permit. The condition of five years of continuous legal stay is also fulfilled 10.1 What are the conditions of stay of those who obtain work permits and are resident on this basis? if, during this period, an alien was not in the Republic of Slovenia and was not issued a temporary residence permit or a certificate attesting to the submission of an application for the extension or During his stay, an alien must observe the Constitution of the Republic renewal of a temporary residence permit, if his absences were of Slovenia, laws and other regulations in the Republic of Slovenia shorter than six consecutive months and, if combined, they do not and comply with measures of competent national authorities. exceed 10 months in a five-year period. The duration of an alien’s stay on the basis of a long-stay visa is 10.2 Are work permit holders required to register with considered part of the period of the issue of a permanent residence municipal authorities or the police after their arrival? permit if he applied for a temporary residence permit before the expiry of his visa and was issued a residence permit as a holder of For registration or change of temporary or permanent residence, a long-stay visa. the competent administrative units are responsible. If an alien is Only half of the duration of an alien’s stay on the basis of a accommodated in tourist, catering or accommodation facilities, the temporary residence permit for education and vocational training host must register his arrival with the police station within 12 hours purposes is considered part of the period of the issue of a permanent from his arrival. residence permit.

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Time spent in the Republic of Slovenia on the basis of a temporary order to obtain the permit, an alien will have to possess a valid residence permit for the purposes of seasonal work, as a posted passport, health insurance covering urgent healthcare services in worker or a daily commuter or as a person under temporary the Republic of Slovenia as a minimum requirement, sufficient protection is, however, not considered part of the period of the issue means of subsistence in a monthly amount at least equal to the of a permanent residence permit. basic minimum income in the Republic of Slovenia, etc. If an alien does not meet these conditions, he will be unable to work in the Republic of Slovenia. An alien may also not meet the conditions 12.2 Is it possible to switch from a temporary work visa to a work visa which leads to permanent residence? of an employer. Furthermore, failure of the market test can be a problem, or if the annual quota of permits is exceeded. Permanent residence can only be granted after five years of Slovenia continuous legal stay in the Republic of Slovenia, as explained in 13.2 Are criminal convictions a bar to obtaining work the answer to the question above. permission or a visa?

When applying for a residence permit, an alien will have to provide 13 Bars to Admission the authorities with a police clearance certificate, no older than three months, issued by his country (if the country in question issues it), translated into Slovenian and verified. A residence permit 13.1 What are the main bars to admission for work? may also be terminated or permanent residence revoked if an alien was convicted of a criminal offence in Slovenia and given an If an alien wishes to work in the Republic of Slovenia, he will need unconditional prison sentence of more than three years. to be in possession of a single permit for residence and work. In

Martin Šafar Polona Boršnak Law firm Šafar & Partners, Ltd Law firm Šafar & Partners, Ltd Resljeva cesta 25 Resljeva cesta 25 1000 Ljubljana 1000 Ljubljana Slovenia Slovenia

Tel: +386 1 432 20 84 Tel: +386 1 432 20 84 Fax: +386 1 234 27 70 Fax: +386 1 234 27 70 Email: [email protected] Email: [email protected] URL: www.op-safar.si URL: www.op-safar.si

Martin Šafar is a Founding and Managing Partner at Law firm Šafar Polona Boršnak studied law at the University of Ljubljana and & Partners, Ltd. He counsels clients on a wide range of employment graduated cum laude in 2013, with her diploma thesis on the law of and labour law issues as well as other matters. He also practises in succession. She is currently undertaking an internship at Law firm the areas of company disputes, commercial litigation and contracts. Šafar & Partners, Ltd. The majority of her counselling is focused on Martin also specialises in insolvency cases. labour law, although she also practises the law of succession, contract law and social security law, among other areas. Aside from her Together with his partners, he counsels some of the most influential employment, Polona dedicates her time and skills to her hometown as companies in Slovenia. His clients hold him in high regard for his the President of the monitoring committee for municipality operations. litigation skills. He regularly represents companies in court in all kinds This position requires knowledge of regional autonomy legislation and of civil law matters. He is a member of the Bar Association of Slovenia public finance. and can represent his clients at every level of the court system, all the way up to the Supreme Court. Polona speaks English and German, and understands Croatian and Spanish. Martin studied law at the University of Ljubljana, where he graduated cum laude. He is fluent in English, Croatian and Serbian. He also understands and speaks German and French.

Law firm Šafar & Partners, Ltd is a Slovenian boutique law firm providing all types of legal services while specialising in labour and employment law. It was funded by Vesna Šafar, who has over 40 years of experience in labour and employment law both as a judge and as a lawyer. The highly dedicated team, managed by Martin Šafar, is widely recognised for its work among Slovenian and foreign clients, as well as its peers. Law firm Šafar & Partners, Ltd counsels not only the biggest and most important companies in Slovenia regarding every possible employment law issue, including mergers and acquisitions, but also takes on difficult cases from private clients who need the best representation possible. Members of the firm, which together with Vesna Šafar are also recognised in the legal guideChambers & Partners, are highly active as legal authors and lecturers at many conferences.

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Switzerland Rayan Houdrouge

Lenz & Staehelin Dr. Matthias Oertle

The competent federal authority is the State Secretariat for 1 Introduction Migration.

1.1 What are the main sources of immigration law in your 1.3 Is your jurisdiction part of a multilateral agreement jurisdiction? between countries (EU/NAFTA/MERCOSUR) which facilitates the movement of people between countries The main sources governing immigration law in Switzerland are: for employment purposes? the Federal Act on Foreign Nationals of December 16, 2005 as amended (“FAFN”); the Ordinance on Admission, Residence and Switzerland is part of the AFMP with the EU. The AFMP gives Gainful Employment of October 24, 2007 as amended (“OARG”); nationals of Member States the rights to circulate freely, to work and the Agreement on Free Movement of Persons (“AFMP”) between to establish themselves within the other Member States’ territories. the European Union (“EU”) and Switzerland of June 1, 2002 as Please note, however, that Croatian nationals, despite being part of amended; the Ordinance on the Agreement on Free Movement of the EU, are subject to specific restrictions. In particular, the domestic Persons of May 22, 2002 as amended; the European Free Trade workforce can be given precedence over Croatian nationals (see Association (“EFTA”) Convention of January 4, 1960 as amended; question 9.2). the Schengen Agreement of December 12, 2008 as amended; and the General Agreement on Trade in Services, as amended (“GATS”). Moreover, the Directives of the State Secretariat for Migration 2 Business Visitors (“SEM”) are an important source when interpreting Swiss immigration law, even if they are not legally binding. 2.1 Can business visitors enter your jurisdiction under a relevant visa waiver programme? 1.2 What authorities administer the corporate immigration system in your jurisdiction? Switzerland does not have a visa waiver programme per se. However, and according to the Schengen Agreement, Member In a Federal State such as Switzerland, immigration authorities exist States’ nationals may freely circulate within the Schengen area on two levels: the cantonal level; and the federal level. without a visa. Each canton determines autonomously its organisation and the Non-Schengen nationals may obtain Schengen visas in order to visit administration of its immigration authorities, which thus vary from Switzerland for business purposes. That being said, the conditions to one canton to another. grant such Schengen visas depend on the nationality of the applicant. For example, in the canton of Geneva, the main competent authorities for immigration are the “Office Cantonal de la Population et des 2.2 What is the maximum period for which business Migrations” (“OCPM”) and the “Office Cantonal de l’Inspection et visitors can enter your jurisdiction? des Relations de Travail” (“OCIRT”). The OCPM is the deciding authority for all permit applications not subject to local market A business visitor’s stay in the Schengen area (including Switzerland) testing (see question 9.2), as well as the permits without gainful may not exceed 90 days in any 180-day period. activity. The OCPM is mainly in charge of filing all the applications, especially those regarding work permits. The OCIRT is competent 2.3 What activities are business visitors able to for employment-related aspects of immigration, such as verifying undertake? that local market testing is respected (see question 9.2).

Regarding the canton of Zurich, the “Migrationsamt des Kantons According to the SEM, business visitors are permitted to participate in: Zürich” is the competent authority regarding the immigration ■ business meetings; aspects strictly related to immigration, such as a foreign national’s personal compliance with Swiss immigration law. The “Amt für ■ scientific, economic, cultural, religious or sporting events; Wirtschaft und Arbeit” is the competent authority to verify the ■ professional conferences, seminars or meetings, including employment-related aspects of immigration, such as local market invitations of international organisations, NGOs or testing (see question 9.2). associations; and/or

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■ educational or professional meetings without internship such Employers are especially responsible for declaring their employees as instruction courses, e.g. technical courses which a Swiss for the purposes of social security and unemployment insurance. company organises for its own personnel or for its foreign Employers must also comply with certain aspects of Swiss law such customers in connection with the purchase or supply of as the minimum wage, holidays, a certain amount of working hours, technical installations. security, hygiene and health standards and providing a lodging for posted workers (Articles 2 to 4 FAPW). 2.4 Are there any special visitor categories which will enable business visitors to undertake work or provide 3.3 What are the penalties for organisations found to be services for a temporary period? employing foreign nationals without permission to work? Yes, business visitors are authorised to undertake work or provide Switzerland services for a temporary period (see questions 2.2 and 2.3). Employers can incur criminal penalties usually ranging from fines According to the AFMP, the categories hereunder do not need work to one-year jail sentences. In more serious cases, jail sentences can permits, but can instead benefit from an online registration procedure reach three years. If jail sentences are ordered, they are combined where companies need only inform the immigration authorities of with a fine (Article 117 FAFN). the employment or secondment by completing an online form (“90- day online authorisation”) for: ■ EU/EFTA nationals (“EU nationals”) taking up employment, 4 Corporate Immigration – General providing services or being seconded to Switzerland for a maximum period of 90 days per civil year; and 4.1 Is there a system for registration of employers who ■ non-EU nationals seconded to Switzerland for a maximum wish to hire foreign nationals? period of 90 days per civil year by EU companies, and for which said non-EU nationals have worked for at least one No, there is no system that registers employers looking to hire year before coming to Switzerland. foreign nationals in Switzerland.

2.5 Can business visitors receive short-term training? 4.2 Do employers who hire foreign nationals have ongoing duties to ensure immigration compliance? As set out in question 2.3, business visitors can receive short-term business training. The employer’s main obligation is to ensure that the minimum wages According to Article 14 OARG, foreign nationals can stay in and working hours set by the collective labour agreements, Swiss Switzerland for a maximum of eight days per calendar year when law and the local customs are complied with (Article 1 FAPW). working for a foreign employer, even though non-EU nationals still require a visa to enter Switzerland. Therefore, short-term training is possible, depending on whether the aforementioned training period 4.3 Do the immigration authorities undertake routine inspections of employers who sponsor foreign is longer than eight days. If so, foreign nationals usually need a nationals, to verify immigration compliance? work permit to stay in Switzerland. No, there are no routine inspections of employers in Switzerland. 3 Immigration Compliance and Illegal Indeed, Switzerland operates through random inspections and the Working reporting of potentially illegal situations. The cantonal immigration authorities are tasked with verifying the employers’ and the employees’ compliance with Swiss law. 3.1 Do the national authorities in your jurisdiction operate a system of compliance inspections of employers who regularly employ foreign nationals? 4.4 Do the immigration authorities maintain a list of skilled occupations which may be filled by foreign nationals? No, the Swiss national authorities do not operate a system of No, the Swiss immigration authorities do not maintain a list of compliance inspections. However, the cantonal immigration skilled occupations which may be filled by foreign nationals. authorities have inspectors who ensure that foreign nationals working in their canton have the proper immigration status and documents. 4.5 Is there a recognition that some occupations may be in short supply and do special exemptions apply to certain sectors and occupations? 3.2 What are the rules on the prevention of illegal working? No, there is no recognition that some occupations may be in short supply, nor are there exemptions related to sectors or occupations The main sources governing illegal working in Switzerland are: the that might have a supply shortage. That being said, in certain FAFN; the Federal Act on Illegal Work of June 17, 2005 as amended sectors, such as IT, authorities may be more flexible when deciding (“FAIW”); the OARG; the Federal Act on Employment Services of on the issuance of a work permit. October 6, 1989 as amended (“FAES”); the Federal Act on Posted Workers of October 8, 1999 as amended (“FAPW”); and the Federal Labour Act of March 13, 1964 as amended. 4.6 Are there annual quotas for different types of employment-related work permits or visas? The cantons are responsible for ensuring that the illegal work rules are complied with (Article 4 FAIW). The Swiss Federal Council sets yearly quotas for the different kinds

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of work permits to be issued in favour of non-EU nationals (except for the L-permits for four consecutive months and for the 120-day 5 Highly Skilled Visas work permits which are in principle not subject to quotas). For the year 2017, these quotas amount to 4,500 for short-duration permits 5.1 Is there an immigration category which covers highly (i.e. L-permits, see question 7.1) and 3,000 for long-term work skilled individuals? permits (i.e. B-permits, see question 9.1) (Article 19 OARG). As a general rule, no yearly quotas apply for the different kinds All non-EU nationals must be highly skilled to obtain work permits of work permits to be issued in favour of EU nationals. However, in Switzerland. Consequently, there is no specific immigration specific quotas are applicable to seconded workers and Croatian category for highly skilled non-EU nationals (Article 23 FAFN). nationals. In 2017, with respect to seconded workers, quotas There is also no such category for EU nationals as they are entitled to amount to 2,000 for short-term work permits (i.e. L-permits, see

work in Switzerland based on the AFMP, except for seconded workers. Switzerland question 7.1) and 250 for long-term work permits (i.e. B-permits, see question 9.1); with respect to Croatian nationals, quotas amount to 543 for short-term work permits (i.e. L-permits, see question 7.1) 6 Investment or Establishment Work and 54 for long-term work permits (i.e. B-permits, see question 9.1). Permits

4.7 Are there restrictions on the number of foreign 6.1 Is there an immigration category which permits workers an employer may sponsor, in relation to employees to be authorised to work based on a maximum percentage of foreign workers in the investment into your jurisdiction? employer’s workforce? As a general rule, there are no specific work permits based on No; as a general rule, there are no restrictions on the number of investment in a particular sector in Switzerland. foreign workers an employer may sponsor. However, according to the AFMP, non-EU nationals may apply for self-employed work permits, which are granted if the Swiss 4.8 Are employees who are sponsored to work in your authorities can determine that, among other things, the self- jurisdiction required to demonstrate language employed activity may lead to “substantial investments” in favour proficiency? of the Swiss economy and that the applicant possesses sufficient financial means to conduct business. Switzerland’s national languages are German, French, Italian and Romansh. Employees are not required to show a national language proficiency. 7 Temporary Work Permits However, proficiency in a national language can sometimes help to demonstrate that there is no good candidate on the local market (see 7.1 Is there an immigration category permitting the question 9.2). hiring of temporary workers for exchanges, career development, internships or other non-economic purposes? 4.9 Are employees who are sponsored to work in your jurisdiction required to undergo medical examinations before being admitted? There is no category regarding such non-economic purposes. Regarding short work permits, Switzerland delivers the following No; medical examinations are not required before one’s admission kinds of permits in order to allow the likes of temporary workers to into Switzerland. be employed for a short time in Switzerland: ■ L-permit: this is a short-duration permit, the purpose of which is to allow a foreigner to perform a short assignment 4.10 Are employees who are sponsored to work in your in Switzerland. The validity of the L-permit is limited to a jurisdiction required to have medical insurance or are period of one year but it may be extended for another period they entitled to any free public medical services? of one year. Depending upon the duration of the stay in Switzerland, different sorts of L-permits may be applied for: As a general rule, people who reside in Switzerland have to take (a) L-permit for 12 consecutive months; (b) L-permit for out a Swiss health insurance policy. Regarding foreign employees, four consecutive months; and (c) L-permit for 120 days per they are in principle required to have Swiss health insurance if they 12-month period (“120-day work permit”). benefit from a work permit allowing them to work for more than ■ 90-day online authorisation: see question 2.4. three months in Switzerland. Foreign employees who are allowed to Regarding young professionals (trainees), Switzerland has work for three months or less in Switzerland are usually not required concluded bilateral agreements with various countries, including to have Swiss health insurance, provided they have a foreign health Canada and the USA, in order to enable trainees to extend their skills insurance policy which would cover health costs in Switzerland. through internships in Switzerland. Based on those agreements, work permits can be granted for a maximum of 18 months. 4.11 Does the work permit system allow employees who hold work permits to be seconded to a client site? 7.2 Are there sector-specific temporary work permit categories which enable foreign workers to perform Yes, once employees benefit from work permits, they may be temporary work? allowed to be seconded to a client site within or outside Switzerland. Yes, according to Article 19 OARG, sector-specific work permits enabling non-EU nationals to perform temporary work can be

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granted, provided that Swiss employers wish to carry out tasks ■ the employer has filed a request (Article 18 FAFN); requiring specific know-how. Categories of specific know-how ■ quotas must be respected (see question 4.6) (Article 20 include art, hotels or construction. Such workers are not subject to FAFN); the quotas of Article 19 OARG (see question 4.6) and are subject to ■ the applicable minimum wages set by collective labour specific rules which may vary depending on the categories. agreements, Swiss law or local customs have to be complied with (Article 22 FAFN); and 8 Group or Intra-Company Transfer Work ■ employees must have adequate housing (Article 24 FAFN). Permits The main advantage of intra-company transfers is that employers are not subject to the local market test condition (see question 9.2). Regarding EU nationals, the rules set above only apply if they are

Switzerland 8.1 Does a specific immigration category exist for inter- seconded for more than 90 days to Switzerland. company transfers within international groups of companies? In the eventuality of a transfer or secondment lasting for fewer than 90 days, EU nationals only need 90-day online authorisations rather than work permits (see question 2.4). According to the GATS, intra-company transfers of non-EU nationals are possible for executives and senior managers, as well as highly qualified specialists. According to the SEM, the executive 8.4 What is the process for obtaining a work permit for an and senior managers are the people whose essential task is to manage intra-company group employee? the company or one of its departments. They only answer to the company’s board members or shareholders. In addition, highly- Once the conditions set out in question 8.3 are fulfilled, employers qualified specialists are those who, by their specific knowledge and must file a work permit application with the competent cantonal experience regarding services, research equipment, technical skills authority. The application process usually requires that the approval or firm management, are indispensable when providing a particular of the cantonal and, for non-EU nationals, the federal authorities be service. obtained. In addition and according to Article 46 OARG, intra-company transfers of non-EU nationals are possible for executives and senior 8.5 What is the process for the employee to obtain a visa managers, as well as indispensable specialists. According to the under the intra-company group transfer category? SEM, these executives and senior managers are people with a right to make decisions within the company. In addition, indispensable Non-EU nationals must fill in the federal application form for a specialists are highly qualified people in economy or research visa and file it with the Swiss authorities’ representation of their working for international companies or research institutes. residence abroad (e.g. embassy or consulate). In principle, there are no such categories for EU nationals as they Based on the Schengen Agreement, EU nationals do not need visas are entitled to work in Switzerland based on the AFMP, except for to enter Switzerland. seconded workers.

8.6 How long does the process of obtaining the work 8.2 What conditions must an employing company or permit and initial visa take? organisation fulfil in order to qualify as part of a group of companies? The process firstly depends on whether or not the applicant is an EU national. Secondly, the length of the process also depends on the According to the SEM, a legal entity abroad must have a legal entity canton from which the work permit emanates. or a branch in Switzerland in order to qualify as part of a group of companies. For EU nationals, the issuance of a work permit usually takes about eight weeks after the work permit application is filed. In addition, EU nationals who are not seconded are in principle able to start 8.3 What conditions must the employer fulfil in order working from the moment they have filed their complete work to obtain a work permit for an intra-company group permit application. employee? The issuance of work permits for non-EU nationals usually takes about 10 to 12 weeks after filing. Moreover, non-EU nationals are According to the GATS, international groups of companies can not allowed to work until they have received their work permit. transfer non-EU nationals to Switzerland for up to four years under the following conditions: ■ the employee must be an executive, a senior manager or a 8.7 How long are visas under the “initial” category valid highly qualified specialist (see question 8.1); for, and can they be extended? ■ the employee must have worked for the group of companies, outside of Switzerland, during at least the whole year Under Swiss immigration law, visas usually only constitute travel preceding the filing of the Swiss work permit application; and documents which allow foreign nationals to cross borders and ■ the general conditions of the FAFN must also be met, in enter Switzerland. On the other hand, work permits are issued particular the respecting of quotas and minimum wages. in Switzerland by the Swiss authorities and constitute documents Alternatively, L and B-permits can be granted to executives or senior which allow foreign nationals to reside and work in Switzerland. managers and indispensable specialists (see question 8.1) under the L-permits are granted for a maximum of one year. Usually, this following conditions (Article 46 OARG): permit may be renewed only once for a maximum of one year. ■ the transfer must serve the economic interests of Switzerland Furthermore, in case of secondment exceeding two years, the (Article 18 FAFN); L-permit may be extended each year for a one-year period until the end of the mission.

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B-permits are usually granted for an initial period of one year but can be renewed multiple times. 9.4 What is the process for obtaining a work permit for a new hire?

8.8 Can employees coming under the intra-company The process for non-EU nationals is more complex and usually takes transfer route apply for permanent residence? longer than for EU nationals. More importantly, non-EU nationals are not entitled to receive a Swiss work permit. Employers willing No, they are subject to the conditions outlined in question 12.1. to hire non-EU nationals must in principle conduct a local market test, then file a work permit application. 8.9 What are the main government fees associated with Work permits for non-EU nationals are in principle subject to this type of visa? quotas. The application process requires obtaining approval from cantonal and federal authorities. Upon approval, an entry visa may Switzerland The employer will have to pay a fee of around CHF 800 in order be issued by the Swiss authorities’ representation of the foreign to obtain a long duration work permit (i.e. B-permit) and a fee of nationals’ place of residence abroad. around CHF 550 in order to obtain a short duration work permit Usually, EU nationals are entitled to work in Switzerland based on (i.e. L-permit). the AFMP, except for seconded workers. As a consequence, EU nationals are usually allowed to start working in Switzerland as 9 New Hire Work Permits soon as all requested documents have been filed with the cantonal immigration authorities.

9.1 What is the main immigration category used for 9.5 What is the process for the employee to obtain a visa employers who wish to obtain work permits for new as a new hire? hires?

Fundamentally, there are three main types of work permit under See question 8.5. Swiss law: ■ L-permit: this is a short duration work permit, the purpose of 9.6 How long does the process of obtaining the work which is to allow a foreigner to perform a short assignment in permit and initial visa for a new hire take? Switzerland (see question 7.1). ■ B-permit: this is a long duration work permit (for a year or See question 8.6. more). Unless it is subject to specific conditions, the renewal of the B-permit is usually a formality. 9.7 How long are initial visas for new hires granted for ■ G-permit: this is the work permit delivered to foreign and can they be extended? nationals working in Switzerland and residing abroad (non- EU nationals have to reside near the Swiss border in a foreign country). See question 8.7.

9.2 Is there a requirement for labour market testing, 9.8 Is labour market testing required when the employee to demonstrate that there are no suitable resident extends their residence? workers, before a work permit can be issued to new hires? No; once the work permit has been granted, employers do not need to prove their inability to find a suitable local candidate in order to As a general rule, when employers wish to hire non-EU nationals, be able to renew non-EU nationals’ work permits. they must demonstrate beforehand that there were no suitable candidates on the local market to fill the position. 9.9 Can employees coming as new hires apply for Employers can prove adequate testing has been conducted by permanent residence? publishing job announcements on specialised websites and by sending the job description to the local authorities which advertise No; new hires are subject to the conditions described in question for candidates. Once the local market test has been made, and if 12.1. no suitable candidate has been found, employers may file a work permit application (Article 21 FAFN). 9.10 What are the main government fees associated with EU nationals are not subject to local market testing as they are this type of visa? entitled to work in Switzerland based on the AFMP, except for seconded workers (Article 21 FAFN). The employer will have to pay a fee of around CHF 800 in order to obtain a long duration work permit (i.e. B-permit) and a fee of 9.3 Are there any exemptions to carrying out a resident around CHF 550 in order to obtain a short duration work permit labour market test? (i.e. L-permit).

Yes, intra-company transfers allow employers to skip the local market test when applying for work permits for non-EU nationals (see question 8.3).

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10 Conditions of Stay for Work Permit 11.3 Do spouses and partners have access to the labour Holders market when they are admitted as dependants?

According to Articles 26 and 27 OARG, spouses and partners of 10.1 What are the conditions of stay of those who obtain foreign nationals, whose L-permit is valid for one year or who work permits and are resident on this basis? have a B-permit, have access to the Swiss labour market, under the following conditions: As a matter of principle, L- and B-permits entitle their holders to ■ the work permit request comes from an employer; freely reside and work in Switzerland for a specific period of time. ■ the working and salary conditions of the employment respect However, work permits granted to non-EU nationals may be subject the standards set by Swiss law; and

Switzerland to conditions; they may in particular be restricted to a specific ■ the spouse’s/partner’s personal abilities are taken into employer or the achievement of certain targets. account. Another example is the case of workers hired under the condition of Please further note that the validity period of a spouse’s or a partner’s having to achieve certain objectives or results set at the beginning of work permit is limited to that of the main holder. their employment contract. In this context, non-EU nationals must meet the conditions linked to the granting of their work permits in order for the immigration authorities to renew them. 11.4 Do children have access to the labour market?

According to Articles 46 FAFN, 26 and 27 OARG, foreign children 10.2 Are work permit holders required to register with municipal authorities or the police after their arrival? are allowed to work under the same conditions as the work permit holder’s spouse or partner (see question 11.3). All work permit holders must announce their arrival to the competent authorities of their place of residence in Switzerland. 12 Permanent Residence These authorities vary in each canton. Moreover, within three months of their arrival in the country, work permit holders must provide the competent cantonal authorities with 12.1 What are the conditions for obtaining permanent a criminal history record from their country of origin. residence?

In order to obtain a permanent residence permit (“C-permit”) in 11 Dependants Switzerland, the applicant must comply with the rules set by Article 34 FAFN: ■ the applicant must have lived in Switzerland for a minimum 11.1 Who qualifies as a dependant of a person coming to of 10 years, including the last five years, without interruption, work on a sponsored basis? with a valid B-permit; unless ■ the applicant is a national from certain countries (such as According to Article 45 FAFN, the spouse as well as minor children Canada, Great Britain, USA, etc.). In this case, the applicant (i.e. under the age of 18) are considered to be dependants of a work will only be required to have lived in Switzerland for a permit applicant under the following conditions: minimum of five years without interruption with a valid ■ the spouse and the work permit holder live under the same B-permit; and roof; ■ there is no cause for any kind of revocation according to ■ the lodging is deemed appropriate; and Article 62 FAFN (see questions 13.1 and 13.2). ■ they do not financially depend on social assistance. That being said, and according to Article 34 FAFN, non-EU According to the AFMP, ascendants of an EU national, i.e. parents nationals can obtain an anticipated C-permit, provided that: or grandparents, can also be considered as dependants if they have ■ the applicant has lived for five years uninterrupted with a been financially supported by their descendant coming to work in valid B-permit in Switzerland; Switzerland. Ascendants must also be in a position where they ■ the applicant has adapted him/herself to the Swiss way of life cannot assume the cost of their treatment without impairing the (e.g. by taking part in local events, buying property, sending minimal financial amount they need to survive. his/her children to local schools, etc.); ■ the applicant has mastered the place of residence’s national language to a certain level; and 11.2 Do civil/unmarried or same-sex partners qualify as family members? ■ there is no cause for any kind of revocation according to Article 62 FAFN (see questions 13.1 and 13.2). According to the Swiss Civil Code, civil/unmarried partners are not considered as family members. Therefore, they cannot in principle 12.2 Is it possible to switch from a temporary work visa to be admitted in Switzerland as part of the family reunification. a work visa which leads to permanent residence? In Switzerland, same-sex partnerships are recognised by the law as long as the partnership is valid in the country of celebration. In order to be able to switch from an L- to a B-permit, the employer and the work permit holder must (i) apply for a B-permit, and, thus, Same-sex partners are deemed to have equal rights to those of (ii) prove that between the moment the applicant came to Switzerland married persons. As a consequence, same-sex partners have a right and the expiration of the L-permit, the business requirements have to come to Switzerland if their partner was admitted to Switzerland changed to the point where the employer now strongly needs the (Article 52 FAFN). applicant to stay in Switzerland for an indefinite period of time.

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■ if a foreign national does not comply with the conditions set 13 Bars to Admission by a decision to grant a work permit; or ■ if a foreign national or one of his/her dependants (see question 13.1 What are the main bars to admission for work? 11.1) is relying on social assistance support.

The local market test can be considered as a bar to admission for 13.2 Are criminal convictions a bar to obtaining work work (see question 9.2). permission or a visa? Moreover, according to Article 62 FAFN, there are some situations where both EU and non-EU nationals can be barred from being Depending on the gravity and the type of the offence, criminal admitted to Switzerland or can have their work permit revoked: convictions can be a bar to obtaining a work permit or a visa.

■ if a foreign national or his/her legal representative have given Foreign nationals who have been condemned to a prison sentence Switzerland false information or hidden important facts during the work of one year or more can have their work permit revoked (Article permit issuance procedure; 62 FAFN). ■ if a foreign national threatens or endangers the internal or external security of Switzerland or the public order, from inside or outside Switzerland;

Rayan Houdrouge Dr. Matthias Oertle Lenz & Staehelin Lenz & Staehelin Route de Chêne 30 Brandschenkestrasse 24 1211 Geneva 6 8027 Zurich Switzerland Switzerland

Tel: +41 58 450 70 00 Tel: +41 58 450 80 00 Fax: +41 58 450 70 01 Fax: +41 58 450 80 01 Email: [email protected] Email: [email protected] URL: www.lenzstaehelin.com URL: www.lenzstaehelin.com

Rayan Houdrouge is a partner in the Geneva office and heads its Dr. Matthias Oertle is a partner in the Zurich office and heads its Employment and Pensions practice, which includes employment- Employment and Pensions practice, which includes employment- related immigration law. related immigration law.

With over 200 lawyers and offices located in Zurich, Geneva and Lausanne, Lenz & Staehelin is the largest law firm in Switzerland. It has a long- standing international practice and is ranked amongst the leading firms in all areas of business law. Its clients include national and foreign individuals and corporations, based in Switzerland and abroad. The Employment and Pensions practice group draws on Lenz & Staehelin’s long experience in all areas of private employment and public labour law, including litigation and arbitration. Our main activities cover the drafting of company rules and regulations, the legal aspects of executive compensation, and the complex issue of cross-border employee transfers to Switzerland. The Employment and Pensions practice group advises both employers and senior employees. The Employment and Pensions practice also advises clients on obtaining Swiss work permits for foreign nationals, a service underpinned by our firm’s tradition of maintaining good contacts with the national and cantonal immigration authorities.

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Turkey Başar Kural

Günbay Attorney Partnership Ahu Pamukkale Günbay

Liechtenstein, Luxembourg, Malta, Turkish Republic of Northern 1 Introduction Cyprus, Portugal and Greece, no visa is required and citizens of those countries can enter Turkey for business purposes with their 1.1 What are the main sources of immigration law in your national IDs only in accordance with the “European Agreement on jurisdiction? Regulations governing the Movement of Persons between Member States of the Council of Europe”. The International Labour Law No. 6735 (“Law No. 6735”) and Law on Foreigners and International Protection No. 6458 (“Law 2.2 What is the maximum period for which business No. 6458”) are the regulatory sources of immigration law in Turkey. visitors can enter your jurisdiction?

1.2 What authorities administer the corporate immigration The maximum duration of stay for business visitors is 90 days system in your jurisdiction? within a 180-day period.

The Directorate General of International Labour and Directorate 2.3 What activities are business visitors able to General of Immigration Management are the governmental bodies undertake? which administer the corporate immigration scheme in Turkey. Business visitors with a valid visa can have business meetings, 1.3 Is your jurisdiction part of a multilateral agreement sign commercial contracts, perform client development activities, between countries (EU/NAFTA/MERCOSUR) which attend seminars and conferences or have a job interviews in facilitates the movement of people between countries Turkey. However, any kind of employment-related activities that for employment purposes? require visitors to work or provide service either dependently or independently in Turkey will be subject to work permit legislation. No, Turkey is not a part of such agreement. Therefore, it is noteworthy that there is just a thin line between business activities and work-related activities from the Turkish jurisdiction’s perspective although the business visa regime is 2 Business Visitors flexible.

2.1 Can business visitors enter your jurisdiction under a 2.4 Are there any special visitor categories which will relevant visa waiver programme? enable business visitors to undertake work or provide services for a temporary period? There is no visa waiver programme in Turkey for business visitors; however, the visa regime for business purposes is flexible and As noted under question 2.3, a regular business visa does not allow simple. Business visitors can enter Turkey with a valid visa granted visitors to work or provide services in Turkey but only to visit for touristic/business purposes. This visa can be obtained through Turkey in order to form some commercial connections or have the Electronic Visa (e-Visa) Application System which was launched business meetings in general terms. on 17 April 2013 by the Ministry of Foreign Affairs of the Republic However, if the provisions stipulated by special laws are met, of Turkey. This system allows visitors travelling to Turkey to easily certain foreigners will not be required to obtain a work permit obtain their e-Visas online (www.evisa.gov.tr), in approximately within the scope of a special visa category, namely “montage visa”. three minutes. Please note that e-visa is only valid when the purpose The montage visa is granted to the visitors coming to Turkey for of travel is tourism or commerce. For other purposes, such as work assembling, maintaining, repairing or training purposes and provides and study, visas are given by Turkish Embassies or Consulates. certain benefits for these foreigners. A valid montage visa holder Moreover, visitors arriving to Turkey without visas may obtain their can perform the abovementioned activities up to 90 days without e-Visas via interactive kiosks placed in Turkish airports. any need to obtain a work permit but visitors can benefit from this Exceptionally, for citizens of 14 countries namely Germany, exemption only once a a year and for not more than three months. Belgium, France, Georgia, the Netherlands, Spain, Switzerland, Italy, Further, this visa allows visitors to enter multiple times to Turkey.

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Accordingly, employers who wish to hire foreign nationals must file 2.5 Can business visitors receive short-term training? an online application through the e-state system (www.turkiye.gov.tr).

Business visitors can receive short-term training in Turkey. 4.2 Do employers who hire foreign nationals have However, if the training will be provided prior to commencement of ongoing duties to ensure immigration compliance? work in Turkey, in other words, if it may be deemed an orientation training, this can be perceived as a part of employment by the labour inspectors and this may cause certain legal sanctions. Employers who employ foreign employees with a valid work permit must inform the SSI and register foreign employees with the social security scheme within 10 days. Further to that, similar to

3 Immigration Compliance and Illegal the termination of a foreigner’s employment contract, employers Turkey Working must notify the SSI within 10 days and the Directorate General of International Labour to cancel the work permit of foreign nationals within 15 days. 3.1 Do the national authorities in your jurisdiction operate a system of compliance inspections of employers who regularly employ foreign nationals? 4.3 Do the immigration authorities undertake routine inspections of employers who sponsor foreign nationals, to verify immigration compliance? The national authorities in Turkey have very strict implementation of compliance inspections. The ministry inspectors, inspectors of Social Security Institution (“SSI”) and social security auditors Please see the answer to question 3.1 above. accompanied by law-enforcement officers can conduct on-site inspections regularly or upon a complaint. 4.4 Do the immigration authorities maintain a list of skilled occupations which may be filled by foreign nationals? 3.2 What are the rules on the prevention of illegal working? The Directorate General of International Labour maintains a list of skilled occupations and examines carefully whether the The Law No. 6735 governs the rules on the prevention of illegal position in question can be filled by a Turkish national, in line working and unlawful employment of foreigners. The Law No. 6735 with the government’s policy to combat unemployment. The legal stipulates the administrative fines to be applied to both employers requirements for work permit applications and evaluation criteria that employ foreigners illegally and foreigners who are working may change depending on the foreigner’s occupation and the sector illegally and the deportation of relevant foreigners accordingly. and the policies of the Directorate General of International Labour, which changes from time to time. 3.3 What are the penalties for organisations found to be employing foreign nationals without permission to work? 4.5 Is there a recognition that some occupations may be in short supply and do special exemptions apply to certain sectors and occupations? As per the Law No. 6735, the administrative fines are as follows: ■ Employers who employ foreigners illegally will be subject to There is no recognition for some occupations in short supply since an administrative fine of TRY 6,229. the government’s policy is to combat unemployment. However, ■ Foreigners who are working dependently without a valid there are special laws that regulate foreign direct investments to work permit will be subject to an administrative fine of TRY Turkey and provides exemptions to foreign key personnel of the 2,491. companies that are considered as foreign direct investments as per ■ Foreigners who are working independently without a valid the criteria determined under these laws. work permit will be subject to an administrative fine of TRY 4,983. ■ Employers and foreign employees who work independently 4.6 Are there annual quotas for different types of have to notify the SSI following the issuance and cancellation employment-related work permits or visas? of a work permit and also notify the Directorate General of International Labour for the cancellation of a work permit There are no annual quotas for work permits. However, as explained only. Failing this will lead to an administrative fine for both under question 2.4, a montage visa which allows foreigner to employers and foreign employees of TRY 415. perform limited activities in Turkey can be obtained once in a year The above fines shall duplicate in the case of repetition or for three months only. Apart from a montage visa or a regular work incompliance with the law. Moreover, employers are obliged to pay permit, there is no other exceptional visa or permit provided to the expenses for accommodation, transportation and deportation of foreign employees. foreigner and his/her family members.

4.7 Are there restrictions on the number of foreign 4 Corporate Immigration – General workers an employer may sponsor, in relation to a maximum percentage of foreign workers in the employer’s workforce? 4.1 Is there a system for registration of employers who wish to hire foreign nationals? As per the evaluation criteria determined by the Ministry of Labour and Social Security, an employer that requests a work permit to Work permit applications must be submitted online and realised by employ a foreigner must employ at least five Turkish nationals. If a written request to the Directorate General of International Labour. work permit applications are submitted for more than one foreigner

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at the same employer, the requirement to employ five Turkish Committee, exclusively to highly qualified, resourceful foreigners nationals will apply for each foreigner to be employed. However, whose level of education, professional experience, contribution there are certain exceptions to the restriction on the number of to science and technology, and to foreign investors, whose foreign employees to be employed by foreign direct investments. investments in Turkey would create employment and contribute to the development of the Turkish economy. Turquoise Card holders will be able to work permanently in Turkey and their dependants 4.8 Are employees who are sponsored to work in your jurisdiction required to demonstrate language will be able to reside permanently in Turkey. proficiency? Apart from the Turquoise Card, there is only one immigration category that covers all occupations, but employers are required to pay higher

Turkey The Directorate General of International Labour does not request a salaries for highly skilled occupations. For instance, monthly wages language proficiency for foreign employees. Further to that, if the of high level executives cannot be determined less than six-and-a- foreign employee will be employed to speak a foreign language for half times the minimum wage. Likewise, monthly wages of branch a specific type of work, this will be considered as a valid reason managers, engineers and architectures cannot be less than four times to employ a foreign national. For instance, if a Russian company the minimum wage and for other occupations, the monthly wage of a in Turkey requires a Russian-speaking manager to facilitate the foreigner cannot be less than three times the minimum wage. communication with the HQ easily, it is easier for employer to obtain the work permit for such employee. 6 Investment or Establishment Work Permits 4.9 Are employees who are sponsored to work in your jurisdiction required to undergo medical examinations before being admitted? 6.1 Is there an immigration category which permits employees to be authorised to work based on No, foreign employees are not required to undergo a medical investment into your jurisdiction? examination before being admitted. As per the evaluation criteria determined by the Ministry of Labour and Social Security, if the company’s foreign shareholders shares 4.10 Are employees who are sponsored to work in your jurisdiction required to have medical insurance or are are more than TRY 40,000 and the share percentage is higher than they entitled to any free public medical services? 20%, they are granted a work permit.

Employers who sponsor foreign employees must register these 7 Temporary Work Permits employees with the social security scheme once the work permit application is approved by the Directorate General of International Labour. Accordingly, the foreign employees will be covered by 7.1 Is there an immigration category permitting the social security insurance, hence, these employees will be benefitting hiring of temporary workers for exchanges, career from the same free public medical services as Turkish employees. development, internships or other non-economic Therefore, private medical insurance is not a statutory requirement purposes? for work permit applications but employers may provide private medical insurance to their employees as an additional benefit. As per the Law No. 6735, the foreigner who is present in Turkey temporarily and for rendering any service and paid by a source within or outside Turkey can apply for a temporary work permit 4.11 Does the work permit system allow employees who provided that activities carried out in Turkey does not exceed 90 hold work permits to be seconded to a client site? days within 180 days. Moreover, architects and engineers who graduated from Turkish universities or whose diploma is recognised The work permit system in Turkey does not allow employees by Turkish authorities can apply for temporary work permits. who hold work permits to be seconded to a client site. From a legal perspective, there is no piece of legislation that prohibits secondment of foreign employees; however, in practice, if a foreign 7.2 Are there sector-specific temporary work permit employee who was sponsored by a company is determined in a categories which enable foreign workers to perform temporary work? different company by the inspectors during an on-site inspection, the inspectors are likely to impose the administrative fines explained under question 3.3. Therefore, to be on the safe side, it is definitely There is only a montage visa which enables foreign employees to much more advisable for the client company to apply for the transfer perform temporary work. Please see the answer to question 2.4 of such foreign employee to their payrolls and issuance of the work above for details. permit on the client company’s name. 8 Group or Intra-Company Transfer 5 Highly Skilled Visas Work Permits

5.1 Is there an immigration category which covers highly 8.1 Does a specific immigration category exist for inter- skilled individuals? company transfers within international groups of companies? In addition to the foregoing permits, the concept of the “Turquoise Card” has been introduced which shall be issued, subject to the The work permit applications are filed by employers in Turkey on prior approval of the Ministry and the Labour Force Consultancy the behalf of the foreigner and the work permits are issued in the

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companies’ names that sponsor the foreign employee. Therefore, if a permit of such foreigner should be replaced by a new application to company wishes to transfer an employee within international groups be filed by the new group company. In such case, the work permit of companies, such company must make an online application to will not cease and the foreigner can legally stay in Turkey during the the Directorate General of International Labour in order to amend application process. Therefore, the foreign does not have to obtain the work permit granted to the relevant foreign employee in his/her a visa. previous employer’s name.

8.6 How long does the process of obtaining the work 8.2 What conditions must an employing company or permit and initial visa take? organisation fulfil in order to qualify as part of a group of companies? The process of obtaining a work permit to transfer the employee Turkey within group companies will take approximately 30 days. The Please see the answer to question 8.1 above. initial visa is not required for this process.

8.3 What conditions must the employer fulfil in order 8.7 How long are visas under the “initial” category valid to obtain a work permit for an intra-company group for, and can they be extended? employee? As noted under question 8.5, the initial visa is not required for the Please see the answer to question 8.1 above. transfer of an employee within group companies, however, if a foreigner is applying from abroad, a work visa will be issued for 8.4 What is the process for obtaining a work permit for an the foreigner abroad and it will be valid for 90 days. In this 90-day intra-company group employee? period, the foreigner must enter Turkey and commence working for the employer in Turkey. All employers, including group companies who wish to obtain a work permit for foreign employees, must follow the same 8.8 Can employees coming under the intra-company application process. Applications for work permits can be made transfer route apply for permanent residence? either abroad or in Turkey. Application to be filed domestically No, a work permit of a foreign employee is considered as a residence Foreigners with a residence permit valid for a minimum of six permit for the duration of such work permit. Therefore, foreigners months and whose term has not terminated (except for residence with a valid work permit cannot apply for a permanent residence permits for educational purposes) or their employers, can apply permit since their residence permits are strictly attached to the work directly to the Directorate General of International Labour for permits. obtaining a work permit. Work permit applications shall be made online and realised by a 8.9 What are the main government fees associated with written request to the Directorate General of International Labour this type of visa? together with the forms and documents requested during the online application within six working days as of the online application. The visa fees vary between 30 USD and 70 USD depending on the The application process to be filed domestically will take 30–45 nationality of the foreigner. The fees for work permits are TRY days provided that all documents are complete. 537.50. Application to be filed from abroad Foreigners shall apply abroad for their work permit at the 9 New Hire Work Permits representations of the Republic of Turkey in the country of their nationality or their permanent residence. The representations shall send these applications directly to the Directorate General of 9.1 What is the main immigration category used for International Labour along with their probable assessments related employers who wish to obtain work permits for new hires? to the request for a work permit. The representations of the Republic of Turkey, as well as the Directorate General of International Labour, conduct the transactions related to the work permit applications to The main work permit category to obtain a work permit for new be filed from abroad by means of electronic mail. Passport, foreign hires is the work permit for definite period. The definite period personnel application form and a photograph of the employee are work permit is granted for one year for the first time and if the work required for the application to the representations. Other documents permit is to be extended, the extended work permit will be granted should be submitted to the Directorate General of International for two years. In the following extension application, the work Labour by the employer via an online system and sent by post within permit will be granted for three more years. 10 working days as of the application to the representations of the Republic of Turkey. The application process to be filed from abroad 9.2 Is there a requirement for labour market testing, will take 45 days provided that all documents are complete. to demonstrate that there are no suitable resident workers, before a work permit can be issued to new hires? 8.5 What is the process for the employee to obtain a visa under the intra-company group transfer category? The Directorate General of International Labour examine carefully whether the position in question can be filled by a Turkish national, As explained in the answer to question 8.1, there is no exceptional in line with the government’s policy to combat unemployment. The process for intra-company group transfer categories. Therefore, if legal requirements for work permit applications and evaluation a foreigner is currently working under a group company, the work

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criteria may change depending on the foreigner’s occupation and the sector, policies of Directorate General of International Labour 10 Conditions of Stay for Work which changes from time to time. Permit Holders

9.3 Are there any exemptions to carrying out a resident 10.1 What are the conditions of stay of those who obtain labour market test? work permits and are resident on this basis?

There is no exemption to carrying out a resident labour market test, A foreigner who obtains a work permit can stay legally in Turkey however, the Directorate General of International Labour issues the during the validity of the work permit and cannot apply for a

Turkey work permits for foreign high level executives easily compared to residence permit. applications for junior level positions. 10.2 Are work permit holders required to register with 9.4 What is the process for obtaining a work permit for a municipal authorities or the police after their arrival? new hire? Work permit holders must register with the Civil Registry within Please see the answer to question 8.4 above. 30 days following the issuance of a work permit by the Directorate General of International Labour and arrival in Turkey.

9.5 What is the process for the employee to obtain a visa as a new hire? 11 Dependants

As explained in the answer to question 8.4, the employee can apply for a work permit domestically or from abroad. For applications 11.1 Who qualifies as a dependant of a person coming to from Turkey, the employee has to have a residence permit valid for a work on a sponsored basis? minimum of six months, thus, the employee will not be able to obtain a visa again. However, in the case of a work permit application from The spouse and dependent children of a foreigner coming to work abroad, the employee will be granted a work visa valid for 90 days in Turkey on a sponsored basis shall qualify as dependants of the once his/her work permit is approved by the Directorate General of foreign employee. International Labour. 11.2 Do civil/unmarried or same-sex partners qualify as 9.6 How long does the process of obtaining the work family members? permit and initial visa for a new hire take? No, they do not qualify as family members. Please see the answer to question 8.4 above. 11.3 Do spouses and partners have access to the labour 9.7 How long are initial visas for new hires granted for market when they are admitted as dependants? and can they be extended? Spouses of work permit holders have access to the labour market The initial visas for new hires will be valid for 90 days and they as dependants but the evaluation criteria shall also apply to those cannot be extended. In case the visa expires, a new work permit dependants as well. Therefore, it does not provide an exemption to application must be filed. those dependants.

9.8 Is labour market testing required when the employee 11.4 Do children have access to the labour market? extends their residence? No, children can only be considered as dependants and legally stay The employee cannot apply for a separate residence permit since the during the validity of their residence permit. work permit covers the residence permit of foreigner. 12 Permanent Residence 9.9 Can employees coming as new hires apply for permanent residence? 12.1 What are the conditions for obtaining permanent No, employees cannot apply for permanent residence. residence?

A long-term residence permit shall be issued by the governorates, 9.10 What are the main government fees associated with upon approval of the Ministry of Interior, that have continuously this type of visa? resided in Turkey for at least eight years on a permit or, foreigners that meet the conditions set out by the Migration Policies Board. Please see the answer to question 8.9 above. With regard to the issuing of long-term residence permits, the following conditions shall apply: a) having continuous residence in

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Turkey for at least eight years; b) not having received social assistance a) do not comply with international labour policy; in the past three years; c) having sufficient and stable income to b) are submitted with fake or misleading information and maintain themselves or, if any, support their family; d) to be covered documents; with a valid medical insurance; and e) not to be posing a public order c) do not have sufficient reason for employing foreigners; or public security threat. Subject to subparagraph (e), the conditions d) are submitted for jobs and occupations which are limited to stipulated in the first paragraph shall not apply to foreigners who the Turkish citizens in other laws; are considered appropriate for a long-term residence permit due to e) are related to the foreigners who do not have necessary meeting the conditions determined by the Migration Policies Board. qualifications or specialities; f) do not meet the evaluation criteria determined by the

12.2 Is it possible to switch from a temporary work visa to Ministry; Turkey a work visa which leads to permanent residence? g) are related to the foreigners who are unfavourable to be employed in Turkey for public order, public safety or public A work permit for an indefinite period may be granted to foreigners health concerns; who have resided in Turkey legally and uninterruptedly for at least h) are submitted for citizens of the countries that the Republic of eight years, or have completed a total working period of six years in Turkey does not recognise or have diplomatic relations with, Turkey. In case the foreigner meets the above criteria, a temporary except for the approval of the Ministry of Foreign Affairs; work permit will become an indefinite period work permit which and leads to a permanent residence too. i) fail to be submitted or fail to correct any deficiencies within a legal time period. 13 Bars to Admission 13.2 Are criminal convictions a bar to obtaining work permission or a visa? 13.1 What are the main bars to admission for work? Criminal convictions are a bar to obtaining a work permit in There are certain occupations which cannot be filled by foreign Turkey. The Ministry of Interior requests a criminal record from the employees. For example, foreigners cannot work as a lawyer, residence permit applicants and foreign employers who will apply dentist, veterinary, pharmacist, notary, etc. Apart from that, there a work permit domestically and must submit this record to obtain a are evaluation criteria which shall apply to all applicants and such residence permit, which is statutory requirement to be able to file a criteria may change depending on the foreigner’s occupation and the work permit application domestically. As for the applications from sector, and the policies of the Directorate General of International abroad, the Directorate General of International Labour does not Labour, which changes from time to time. In general, as a result of request a criminal record or raise questions regarding the criminal evaluation, applications shall be rejected if they: records of foreigners but will research the criminal records of work permit applicants automatically.

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Başar Kural Ahu Pamukkale Günbay Günbay Attorney Partnership Günbay Attorney Partnership Maliye Cad. Abbasoğlu İş Hanı Maliye Cad. Abbasoğlu İş Hanı No:11/1 Karaköy Beyoğlu No:11/1 Karaköy Beyoğlu Istanbul Istanbul Turkey Turkey

Tel: +90 532 596 70 69 Tel: +90 212 249 46 10 Email: [email protected] Email: [email protected] URL: www.gunbaylaw.com URL: www.gunbaylaw.com Turkey Başar Kural is one of the co-founding partners of Günbay Attorney Ahu Pamukkale Günbay is the managing and founding partner of Partnership. Başar has extensive experience on all aspects of Günbay Attorney Partnership. Ahu has extensive experience on all immigration law, dispute resolution, tax law and contract law on both aspects of individual and collective labour law, social security law, contentious and non-contentious matters. corporate law, work health and safety law and compliance and ethics law on both contentious and non-contentious matters. Ahu is an Başar provides legal advice to domestic and international companies authorised mediator registered with the Department of Mediation of from a variety of sectors for all their needs. The sectors include the Ministry of Justice. luxury fashion, construction, media, energy, pharmaceutical, medical devices, technology, aviation and recruitment offices. Ahu provides legal advice to domestic and international companies from a variety of sectors for all their needs. The sectors include Başar has worked in reputable and top-tier law firms in Istanbul before pharmaceutical, medical devices, technology, cosmetics, heavy establishing Günbay Attorney Partnership. industries, recruitment offices, hospitality, banking and finance and Başar is one of the few immigration law specialists in Turkey. He is retail. a contributor to the publications of Global Legal Insights and gave Ahu has gave a speech about “The Liabilities of Attorneys During a lecture to senior students of Kadir Has University, Faculty of Law Mediation Process” at Mediation Seminar dated May 30, 2017 on “Foreigners and International Protection Law and Law on Work organised by Kadir Has University. Ahu also gives lectures to senior Permits of Foreigners”. students on Foreigners and International Protection Law and Law on Work Permits of Foreigners since 2016. Furthermore, she was a panellist for Turkish Labour Law in International Law Firm Eversheds’ Comparative International Employment Law Seminars on “Managing Complex, Recurring Issues in the Workplace,” in 2016 in Washington DC, Seattle, San Francisco, USA.

Günbay Attorney Partnership was founded in August 2016 by very well-known lawyers who are experts in their fields. The proactive and ambitious team aims to provide the highest quality, constant, tailor-made and practical legal solutions for both its local and foreign clients in all sizes and various sectors. The firm was established by three founding partners and currently there are nine lawyers in total within the firm. The team has extensive knowledge and expertise in advising its clients specifically in complex legal issues including but not limited to employment, corporate, litigation and tax matters. The team is a trustworthy solution partner of its clients in consultancy and litigation matters and gives its advices and services based on analysing the legal issues through sector-specific perspective and know-how. The team informs its clients about the legislative developments on a timely basis. The firm has alliances with Turkish law firms in Ankara and Izmir.

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United Arab Emirates

PricewaterhouseCoopers Middle East LLP Anirban Chatterji

citizens of the following eligible countries: Andorra; Australia; 1 Introduction Austria; Belgium; Brunei; Bulgaria; Canada; the People’s Republic of China; Croatia; Cyprus; the Czech Republic; Denmark; Estonia; 1.1 What are the main sources of immigration law in your Finland; France; Germany; Greece; Hong Kong; Hungary; Iceland; jurisdiction? India (provided they have a valid US visa/green card for a duration of six months or longer); Ireland; Italy; Japan; Latvia; Liechtenstein; In the United Arab Emirates (UAE), immigration law relating to foreign Lithuania; Luxembourg; Malta; Malaysia; Monaco; New Zealand; nationals is governed by the Ministry of Interior. Since the UAE is a the Netherlands; Norway; Poland; Portugal; Romania; Russian federation of seven Emirates, each Emirate has its own immigration Federation; San Marino; Singapore; Slovakia; Slovenia; South department known as the General Directorate of Residency and Korea; Spain; Sweden; Switzerland; the United Kingdom; the Foreigners Affairs (GDRFA) which is responsible for the processing United States; and the Vatican. and administering of immigration regulations for foreign nationals residing and working in each Emirate. The labour law is loosely based 2.2 What is the maximum period for which business on the International Labour Organisation’s model. visitors can enter your jurisdiction?

1.2 What authorities administer the corporate immigration Under the EU-UAE Short Stay Visa Waiver Agreement, EU citizens system in your jurisdiction? and passport holders of the following countries: Austria; Belgium; Bulgaria; Croatia; Cyprus; the Czech Republic; Denmark; Estonia; The corporate immigration system in the UAE is predominantly Finland; France; Germany; Greece; Hungary; Iceland; Italy; Latvia; administered by two government authorities. Employment and Liechtenstein; Lithuania; Luxembourg; Malta; the Netherlands; labour law is administered by the Ministry of Human Resources Norway; Poland; Portugal; Romania; Slovakia; Slovenia; South and Emiratisation (MOHRE) formerly known as the Ministry of Korea; Spain; Sweden; and Switzerland can enter the UAE for up Labour and Social Affairs and immigration law is administered by to a period of 90 days in any 180-day period. It may be possible, the GDRFA through the Ministry of Interior. in some instances, to obtain a sponsored visit visa if the foreign national exhausts his/her 90-day visa upon arrival privileges. Citizens and passport holders of the following countries: Andorra; 1.3 Is your jurisdiction part of a multilateral agreement between countries (EU/NAFTA/MERCOSUR) which Australia; Brunei; Canada; the People’s Republic of China; Hong facilitates the movement of people between countries Kong; Ireland; Japan; Malaysia; Monaco; New Zealand; San for employment purposes? Marino; Singapore; the United Kingdom; the United States; and the Vatican are eligible for a multiple entry 30- or 40-day visa, The UAE is a part of the Gulf Cooperation Council (GCC) which depending on the nationality, (extendable up to 60 days in-country) comprises the Gulf states, namely: Bahrain; Kuwait; Oman; Saudi upon arrival into the UAE. Arabia; and Qatar. Nationals of the Gulf states enjoy free movement Indian passport holders who have a valid US green-card (or visa) are between each member country. Nationals of these countries are eligible for a 14-day visa on arrival extendable once, in the country, free to live and work in any of the GCC Member States without for an additional 14 days. the need to obtain a valid residence permit, although formal work authorisation (including an employment contract with a local entity) 2.3 What activities are business visitors able to is still necessary in most cases. undertake?

2 Business Visitors Business visitors are not permitted to ‘engage’ in work, there is no express definition in UAE law describing the specific activities that would constitute ‘engaging in work’. The main permissible 2.1 Can business visitors enter your jurisdiction under a activities that can be undertaken by a business visitor on arrival and relevant visa waiver programme? that are not considered as ‘engaging in work’ are as follows: ■ attending exhibitions or conferences; Yes, business visitors can enter the UAE with a visa upon arrival ■ attending business meetings/seminars; based on the visa waiver programme for passport holders and

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■ conducting or attending training; and their work permits cancelled. Further, the individual can become ■ giving a presentation. subjected to a lifetime ban from entering the UAE.

2.4 Are there any special visitor categories which will 4 Corporate Immigration – General enable business visitors to undertake work or provide services for a temporary period? 4.1 Is there a system for registration of employers who No, business visitors are not allowed to undertake work or provide wish to hire foreign nationals? services while on a business visitor visa. Should the individual wish to work or provide services in the UAE, they will have to apply for Yes, this is determined by the jurisdiction the employer operates the appropriate work authorisation. within. Foreign nationals have to be registered with the relevant authorities during the course of their employment. Foreign nationals employed by an onshore entity must be registered with the

United Arab Emirates 2.5 Can business visitors receive short-term training? MOHRE and foreign nationals employed by an offshore entity must be registered with the relevant free-zone authority. Yes, this would depend on the nature of the training (i.e. paid or unpaid), whether it is on the job training, and the duration. Ordinarily, a business visitor is allowed to receive short-term 4.2 Do employers who hire foreign nationals have training; however, the conservative approach would be for such ongoing duties to ensure immigration compliance? training to be conducted in an appropriate designated venue such as an allocated office meeting room or designated hotel conference Yes, it is the responsibility of the employer to ensure the immigration room. status of foreign national remains valid during the course of their employment. In addition to this, the employer has to ensure that their immigration establishment card, trade licence, and other 3 Immigration Compliance and Illegal company corporate documents are valid and active to process the Working renewal of their employees’ residence permits and labour card. It is also the responsibility of the employer to make any necessary amendments to the residence permit and labour contract if any such 3.1 Do the national authorities in your jurisdiction operate changes occur during the course of an individual’s employment. a system of compliance inspections of employers who regularly employ foreign nationals? Furthermore, if an individual’s employment with the company is terminated, the employer needs to complete the necessary departure Yes, the MOHRE, GDRFA, and the relevant free zone Government formalities such as cancellation of the employee’s residence permit Services Office (GSO) hold the right to conduct inspections at the and labour card. If the employee is required to repatriate, the site of employment, e.g. office premises. This inspection can be employer will need to bear the expense of repatriation. conducted with or without providing prior notice to the employer. The purpose of the inspection is to ensure that all the relevant rules 4.3 Do the immigration authorities undertake routine and regulations set out by the authorities are being adhered to. inspections of employers who sponsor foreign nationals, to verify immigration compliance?

3.2 What are the rules on the prevention of illegal Yes, as per question 3.1 above, the immigration authorities have a working? right to inspect the site of employment, e.g. office premises. This inspection can be conducted with or without providing prior notice The government authorities and law enforcement department carry to the employer. The purpose of the inspection is to ensure that out steps to counter illegal working in the UAE. Measures like all the relevant rules and regulations set out by the authorities are random or covert inspections on individuals and employers for work adhered to. The inspection will include ensuring employees hold permit authorisations are the main prevention method conducted. valid employment residence permits to legally live and work in the In addition, the immigration authorities use the latest technology UAE. such as retina scanning and biometric registration for all individuals entering the UAE. This process of screening allows the authorities to identify individuals entering the UAE who have a previous record 4.4 Do the immigration authorities maintain a list of of illegal working. The UAE government occasionally announces skilled occupations which may be filled by foreign an amnesty period that allows illegal workers residing in the UAE to nationals? leave the country voluntarily without any penalties. Yes, the immigration authorities maintain a list of occupations for skilled and non-skilled employment. The list is used to match the job 3.3 What are the penalties for organisations found to be title of an individual with the employment contract of the company employing foreign nationals without permission to when applying for their employment visa. It also provides further work? information as to whether a university qualification is required or not. Non-compliance with immigration law and labour law can result in organisations being fined and their immigration and labour files 4.5 Is there a recognition that some occupations may be being blocked or forcibly closed down. The action taken will depend in short supply and do special exemptions apply to on the level of the breach in question. In addition, the managers and certain sectors and occupations? directors of the organisation can also be held accountable in certain cases. Individuals can also be fined, imprisoned, deported or have Yes, the government considers that some occupations are in shortage and would consider a request from an employer to issue an

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appropriate residence permit on an expedited basis. Certain other privileges may also be given to companies that fulfil roles that are 4.10 Are employees who are sponsored to work in your in shortage. jurisdiction required to have medical insurance or are they entitled to any free public medical services?

4.6 Are there annual quotas for different types of There is no free public health or medical services for foreign employment-related work permits or visas? nationals in the UAE. It is mandatory for all employers to provide private health insurance for their employees. Private health Yes, there are quota systems in place for hiring foreign nationals insurance is a mandatory pre-requisite in order to obtain a residence seeking sponsorship to enter the UAE for employment purposes. permit in the UAE. Although dependants looking to obtain legal For entities based in the UAE (onshore), the sponsoring business/ residency are not, as of now, required to present proof of valid employer must first request permission to employ the individual health insurance, the authorities are looking to enforce this very from the MOHRE. The MOHRE will consider the tenancy contract soon and have currently given sponsors a grace period to ensure registered under the business’ trade licence, the nature of the that their dependants are covered by an accredited health insurance United Arab Emirates business and the proposed role of the prospective employee before programme. granting approval. The MOHRE may also “test” the market to see if the position can be fulfilled by a UAE national resource. 4.11 Does the work permit system allow employees who If the entity is based in a free-zone, the free-zone authority will hold work permits to be seconded to a client site? regulate any employment affairs and will approve any quotas, usually depending on the size of the office (i.e. the bigger the space, For a secondment under six months, a temporary work permit can be the higher the quota). issued by the MOHRE for an employee of one onshore company to work for another onshore company. The temporary work permit has 4.7 Are there restrictions on the number of foreign a maximum validity of 180 days (renewable once for an additional workers an employer may sponsor, in relation to 180 days) and is subject to approval of the MOHRE based on a maximum percentage of foreign workers in the the nature of the business between the two engaging entities. employer’s workforce? Secondments to free-zone companies may be possible through the procurement of a Temporary Access Card (TAC) or Temporary ID No; however, once an onshore entity reaches a head count of 100 Card (TID) provided there is a properly executed business contract employees, it is mandatory to have an Emirati or a GCC national in place; however, this may vary slightly from one free-zone to as their Public Relation Officer. The MOHRE will not approve an another. application unless this criterion is met. For secondments over 12 months, the client may need to be sponsor Although the labour law does specify certain “Emiratisation” the individual’s employment residence permit. (localisation) policies that select companies (depending on their head-count or industry) would need to adhere to, the implementation of these policies is not strictly enforced at the moment. More 5 Highly Skilled Visas recently, the MOHRE have introduced Emiratisation policy updates that mandate companies with 1,000 or more employees to have at least two UAE nationals that manage their online labour and 5.1 Is there an immigration category which covers highly skilled individuals? immigration portals. Companies operating in the construction or industrial sectors are also required to employ a UAE national that No, there is no separate immigration category for highly skilled oversees occupational health and safety matters. individuals.

4.8 Are employees who are sponsored to work in your jurisdiction required to demonstrate language 6 Investment or Establishment Work proficiency? Permits

The official language of the UAE is Arabic; however, business transactions are generally conducted in either English or Arabic. 6.1 Is there an immigration category which permits Employers may stipulate certain language requirements as part employees to be authorised to work based on investment into your jurisdiction? of their hiring criteria; however, there is no such mandatory requirement stipulated by the immigration authorities. High-net-worth individuals, also called ‘investors’, who have set up a business entity in the UAE can obtain a residence permit if they 4.9 Are employees who are sponsored to work in your appoint themselves as a general manager or employee of the said jurisdiction required to undergo medical examinations entity. Being a Shareholder of a company does not in itself enable before being admitted? an individual to obtain a residence permit and the individual must undertake actual employment with the entity. In practice, many Foreign nationals are required to undergo a medical examination investors will appoint themselves as Heads of their established as part of the visa application process. Medical screenings are also entities. It is worth mentioning that the free-zone as a licensor required for those applying for a temporary work permit, e.g. a will be the ultimate sponsor of employees working in any entity Mission Work Permit. The requirements to be met vary depending registered in that specific free-zone. The employers will be referred on the country the foreign national is applying from and as these to as licensees. This relationship is regulated by way of an employee requirements vary from time to time, it is recommended that all sponsorship agreement signed between the licensor and licensee. visitors check the requirements to be met prior to their departure.

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7 Temporary Work Permits 8.5 What is the process for the employee to obtain a visa under the intra-company group transfer category?

7.1 Is there an immigration category permitting the hiring of temporary workers for exchanges, career Please refer to question 9.4 below. development, internships or other non-economic purposes? 8.6 How long does the process of obtaining the work permit and initial visa take? Yes, a Mission Work Permit is a temporary work permit issued to foreign nationals. This work permit is a non-extendable single- Please refer to question 9.6 below. entry permit valid for a period of 90 days. The permit allows the individual to undertake work. Such visas are granted and issued subject to approval from the MOHRE. 8.7 How long are visas under the “initial” category valid for, and can they be extended? United Arab Emirates Certain free-zones (including, most recently, the Dubai Creative Clusters Authority) do have short-term work permits specifically Please refer to question 9.7 below. designed to facilitate internships and part-time engagements; however, these may only be available to individuals already residing in the country. 8.8 Can employees coming under the intra-company transfer route apply for permanent residence?

7.2 Are there sector-specific temporary work permit Please refer to question 9.9 below. categories which enable foreign workers to perform temporary work? 8.9 What are the main government fees associated with No, there are no sector-specific temporary work permit categories this type of visa? in the UAE. Temporary work permits (for general purposes i.e. not sector- Please refer to question 9.10 below. specific) such as Mission Work Permits are granted and issued by the MOHRE for onshore-based entities only. They are issued for a 9 New Hire Work Permits validity of 90 days and are single entry permits.

9.1 What is the main immigration category used for 8 Group or Intra-Company Transfer Work employers who wish to obtain work permits for new Permits hires?

The main immigration category used by the employer to hire foreign 8.1 Does a specific immigration category exist for inter- company transfers within international groups of nationals is an employment residence permit. companies? 9.2 Is there a requirement for labour market testing, No, there is no intra-company transfer work permit in the UAE. to demonstrate that there are no suitable resident workers, before a work permit can be issued to new hires? 8.2 What conditions must an employing company or organisation fulfil in order to qualify as part of a group of companies? The MOHRE has recently launched a labour market testing initiative referred to locally as ‘Tawteen Gate’. The new portal aims to make these roles more accessible to Emirati nationals by requiring certain There are no relevant conditions as there is no intra-company companies to formally post openings prior to hiring any foreign national transfer work permit in the UAE. employees. Unemployed UAE nationals can register on the platform and benefit from accessing the priority job listings. The roles need to 8.3 What conditions must the employer fulfil in order be posted for at least five days after which the authorities informs the to obtain a work permit for an intra-company group company about any potential candidates through an automated system. employee? Currently, the company is not required to interview each applicant, however, if they ‘accept’ an applicant, they are required to interview There are no relevant conditions the employer has to fulfil to obtain them. The applicant and the company have an option to reject the a work permit for an intra-company group employee, as the intra- opportunity, however, the company must record the reason for the company transfer work-permit is not an option applicable in the rejection from a set drop-down menu on the portal. Companies learn UAE. The employer has to proceed with the normal employment whether they are subject to the mandatory job posting requirement residence permit process to obtain a work permit for an intra- once they initiate a work authorisation application and prepare a job company group employee. offer application on the MOHRE’s database.

8.4 What is the process for obtaining a work permit for an 9.3 Are there any exemptions to carrying out a resident intra-company group employee? labour market test?

Please refer to question 9.4 below. Since the initiative is relatively recent, implementation has been

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varied and, currently, companies are “selected” at random to test the market for at least five days and search for qualified UAE national 9.5 What is the process for the employee to obtain a visa resources that could fulfil the vacant position. Currently, Tawteen as a new hire? Gate only applies to onshore companies. Please refer to question 9.4 above.

9.4 What is the process for obtaining a work permit for a new hire? 9.6 How long does the process of obtaining the work permit and initial visa for a new hire take? Each work and residence permit application filed at the MOHRE and the GDRFA will be assessed based on criteria such as the business The process of obtaining a work permit and initial visa takes activities of the employer, quota availability and security screening. approximately one to three weeks depending on the jurisdiction Each permit or visa has its own requirements and procedures. where the entity is established. If the application is subject to However, there are general conditions that all applicants must security screening, the standard processing times will not apply. satisfy in order to obtain a visa or permit as listed below: United Arab Emirates ■ the applicant must hold a passport that is valid for a minimum 9.7 How long are initial visas for new hires granted for of six months or a document allowing him or her to enter the and can they be extended? country and return to his or her country of residence or the country where the passport was issued; The initial visa known as the employment entry permit is valid for ■ the official authorities have approved his or her entry for the 60 days from the date of issue. The foreign national has 60 days to purpose sought; enter the UAE or where they are already in the UAE on a different ■ the applicant is not banned from entering the UAE and does visa, must change their status within 60 days. Upon entry to the not belong to any of the nationalities or categories disallowed UAE or once the individual’s status has changed, they have a further by the UAE immigration authorities on the grounds of 60 days to complete the remaining formalities of the employment national security or policy, or both; and residence permit application. The employment residence permit is ■ the applicant has not previously been deported from the issued for two years for an onshore entity and three years for an UAE, unless special permission has been obtained for their offshore entity, respectively. The validity can be extended for the re-entry. same duration upon expiry. In addition, a legalised university certificate for use in the UAE is to be submitted if the employee is to have a managerial, professional 9.8 Is labour market testing required when the employee or executive job title. extends their residence? The process is then determined based on whether the company is based onshore or offshore. As mentioned in question 9.3 above, the UAE authorities have Onshore companies introduced a labour market testing initiative. Since the process is in The employer must: its infancy, it remains to be seen whether the test would need to be 1. Submit and obtain approval of a quota of employment with completed as part of the renewal process – preliminary indications the MOHRE (this step will not apply if a quota has already point to the test not being a requirement to renew work and residence been granted previously. If previously granted, the process permits. will start from step 2 below). 2. Prepare an offer letter from the MOHRE which needs to duly 9.9 Can employees coming as new hires apply for signed by the employee and the employer. permanent residence? 3. Obtain approval of the employment from the MOHRE, pay the visa application fees, and deposit a bank guarantee amount. There is no concept of permanent residence in the UAE. In addition, 4. Submit the employment entry permit application along with a foreign national must continue to be employed in the UAE in order the supporting documents to the immigration authorities in to maintain residency status. the UAE. 5. When the application is approved and an employment entry permit is granted, the employee can then enter the UAE, 9.10 What are the main government fees associated with undergo a medical examination and submit their biometric this type of visa? information so that an Emirates ID card can be issued. 6. Acquire a government-approved healthcare insurance plan Government fees vary from jurisdiction to jurisdiction and service for the employee. type to service type; AED 5,000 to AED 7,000 is a broad average of 7. Once the medical results are received, prepare, sign, government fees. and submit the local labour contract to MOHRE for approval. 8. Once MOHRE approve the contract, submit the employment 10 Conditions of Stay for Work Permit residence permit stamping application to the immigration Holders authorities for approval with the required supporting documents. Offshore companies 10.1 What are the conditions of stay of those who obtain work permits and are resident on this basis? The free-zone company will be required to undertake steps 1 to 6 listed above with the exception of step 2 which does not need to be A foreign national needs to hold a work permit (if being sponsored completed. The applications are made to the GSO of the relevant by an onshore company) before being able to obtain a residence free-zone rather than MOHRE. permit. The applicant must either be employed by an onshore

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company or hold a free-zone employment contract if employed by an offshore company. To keep the employment residence permit 11.3 Do spouses and partners have access to the labour active, the employee must not spend more than six consecutive market when they are admitted as dependants? months outside of the UAE. Female dependants are permitted to engage in full time or part Moreover, if the employee wishes to work for a different employer, time employment; however, they will be required to request work the employment residence permit will need to be cancelled and authorisation in the form of a relative work permit and labour card reissued under the new sponsor. If both the existing and prospective from the immigration authorities. As part of this process, the main employers are situated in a free-zone, a quicker (and less document applicant will be required to provide a no-objection letter outlining intensive) “sponsorship transfer” process may be possible. that they do not object to their dependant undertaking work. The alternative would be for the dependant to transfer onto the 10.2 Are work permit holders required to register with sponsorship of his/her new employer. municipal authorities or the police after their arrival?

United Arab Emirates 11.4 Do children have access to the labour market? Any foreign nationals arriving in the UAE for employment must register with the Emirates ID Authority. This is a mandatory requirement that must be completed in order to obtain a residence Dependant minors are permitted to work in the UAE provided they permit. are aged between 15 to 18 years old.

11 Dependants 12 Permanent Residence

11.1 Who qualifies as a dependant of a person coming to 12.1 What are the conditions for obtaining permanent work on a sponsored basis? residence?

The following are considered as dependants: No, there is no possibility of permanent residence for foreign nationals living in the UAE. ■ spouse; ■ siblings; ■ children (male or female minors, unmarried female adults 12.2 Is it possible to switch from a temporary work visa to a work visa which leads to permanent residence? and males up to 18 years of age); and ■ parents and in-laws. No, although it is possible to switch from a temporary work permit Sponsoring a dependant will involve submitting an application to an employment visa, there is no option of obtaining permanent and a refundable deposit with the immigration authorities (which residence in the UAE. All resident visas are issued for a set period is refundable only upon an application to cancel the visa). The and must be renewed before the period has expired. Renewal is decision is made on a case-by-case basis. The visa regulations subject to the conditions of the visa being met. are strict in terms of salary, accommodation, bank statements, etc. There is a minimum monthly salary requirement for sponsoring for a male main applicant bringing over his spouse and/or children 13 Bars to Admission currently set at AED 4,000; however, in practice the individual would generally need to earn more than this amount in order to secure his dependants’ residence permits. Although the authorities 13.1 What are the main bars to admission for work? do not specify a minimum salary requirement for a female main applicant to bring over her spouse and/or children, in practice a A foreign national who has a criminal conviction or who has been monthly salary in excess of AED 12,000 – AED 15,000 may be deported from the UAE will very likely be subject to a permanent necessary. The authorities may also ask for proof of accommodation ban from entering the UAE. In addition, foreign nationals who do with at least one bedroom if the applicant is looking to sponsor his/ not pass the mandatory medical examination that must be completed her spouse and children. as part of the residence permit process may be barred from working or living in the UAE. Foreign nationals identified as having any The minimum salary requirement to sponsor parents and in-laws is of the contagious diseases set out by the immigration authorities currently set at AED 20,000 per month (and accommodation with at will be immediately detained and deported from the UAE and will least two bedrooms). It is mandatory to provide attested originals receive a permanent ban from entering the UAE. of the marriage certificate and birth certificates of children while submitting the application at the immigration office. 13.2 Are criminal convictions a bar to obtaining work permission or a visa? 11.2 Do civil/unmarried or same-sex partners qualify as family members? Approval in such cases will be on a highly discretionary basis. Such cases, depending on the nature of the offence, may trigger an The UAE does not recognise the following as dependants: additional security hit. Criminal convictions generally will lead to ■ civil partners; a permanent ban and the employee will be blacklisted from entering ■ unmarried partners; the UAE on any visa or permit. ■ same gender partners; ■ co-habitees; and ■ children from unmarried parents.

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Anirban Chatterji PricewaterhouseCoopers Middle East LLP Emaar Square, Building 4, Level 8 PO Box 11987, Dubai United Arab Emirates

Tel: +971 55 876 1249 Email: [email protected] URL: www.pwc.com

Anir specialises in global immigration law and policy. Anir is a dual- qualified lawyer (Solicitor of England and Wales and U.S. Attorney- at-Law, New York) with broad experience in immigration risk and compliance. Anir has substantial experience in the finance sector United Arab Emirates having managed immigration onsite for a multinational bank and having delivered corporate immigration services for top-ranked immigration practices. Anir is currently focusing on aligning government policy with corporate business strategy for leading global companies in the MENA region. Anir is also dedicated to delivering technological solutions for the management of risk and compliance associated with mobility and HR practices. Anir is a member of the American Immigration Lawyers Association and Immigration Law Practitioners’ Association. He holds a degree in Law and Politics and is UK OISC registered.

PwC is the only professional service firm in the region that can offer genuinely integrated legal services as part of its wider offerings. PwC Legal is the network legal firm of PwC and is now firmly established in the Middle East region. PwC operates in 221 countries worldwide and the immigration network operates in 161 countries with over 1000 dedicated specialist immigration staff. Our lawyers work in an integrated way with other PwC professionals. Essentially, that means our clients are delivered higher quality, integrated and holistic legal advice alongside our other professional services. Unlike external lawyers, our legal professionals are able to see the “whole picture” and, accordingly, better meet our clients requirements. The resultant synergies also translate into significant time and costs savings over buying-in legal services from a third party.

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United Kingdom Nicolas Rollason

Kingsley Napley LLP Kim Vowden

There will be significant impact on corporate immigration, not least 1 Introduction as it is likely that the current free movement rules (see below) will be replaced or restricted after the UK leaves the EU. 1.1 What are the main sources of immigration law in your In the meantime, the UK currently gives effect to the rights of EU jurisdiction? citizens from the 28 EU Member States and their family members to move freely, contained in the Treaty on the Functioning of The main sources of UK immigration law are: primary legislation the European Union (“TFEU”) and in Directive 2004/38 (the (including the Immigration Act 1971 and subsequent Acts of Citizens Directive), and the decisions of the European Court of Parliament); delegated legalisation (known as Statutory Instruments Justice (“CJEU”). Under the EEA agreement and a set of bilateral or Regulations) which implements primary legalisation; and the agreements with Switzerland, these rights are also extended to UK Immigration Rules which set out in detail the ways in which citizens of Norway, Iceland, Liechtenstein and Switzerland. The individuals can qualify to obtain entry clearance (a visa), leave Treaty and relevant delegated legislation provide for the right to remain (residence) and indefinite leave to remain (permanent of entry and residence for EU nationals coming as work-seekers, residence) in the UK. The Home Office, which administers the workers, self-employed persons, service providers, self-sufficient immigration system for UK visas and immigration, also publishes students or self-sufficient persons. EU nationals do not require extensive policy guidance on how the rules should be interpreted permission to work or reside in the UK. They can enter the UK and and implemented by Home Office caseworkers. start work without any specific authorisation. Restrictions currently exist on citizens from Croatia who require work authorisation. Non- EU family members of EU citizens, including spouses, civil partners, 1.2 What authorities administer the corporate immigration system in your jurisdiction? durable partners and children up to the age of 21 can accompany the EU citizen, reside and have a right to work as long as the main EU national qualifies for a right of residence as a worker, self-employed The corporate immigration system is administered by the Home or self-sufficient. Children over the age of 21 and parents can also Office. This is divided into three operational entities: UK Visas & benefit from the right to reside and work where they are dependent Immigration (“UKVI”), which decides on applications for leave to on the EU citizen. Directive 2004/38 also provides for the right enter, leave to remain, indefinite leave to remain and citizenship; of permanent residence for EU citizens and their family members Immigration Enforcement, which is concerned with enforcement; who have resided in another EU Member State for a continuous and Border Force, which carries out immigration and customs period of five years. Non-EU family members wishing to move to controls on people and goods entering the UK. the UK with their spouses can obtain multiple entry visas (known as EEA family permits) which are free of charge and are valid for 1.3 Is your jurisdiction part of a multilateral agreement six months. They can then apply for five-year Residence Cards in between countries (EU/NAFTA/MERCOSUR) which the UK which are granted on proof that the EU citizen is exercising facilitates the movement of people between countries their free movement rights through employment, self-employment for employment purposes? or self-sufficiency. Like all EU Member States, the UK is required to implement the decisions of the CJEU which clarify the TFEU The United Kingdom is a currently a member of the European or specific EU Directives or Regulations. In the field of corporate Union, having joined in 1973. immigration, and in particular the right to provide services within On 23 June 2016, a referendum on the UK’s continued EU the EU, the UK implements the decision of the CJEU in Vander membership was held in which 52% of voters elected to leave the Elst (and subsequent CJEU case law), which clarified that the rights EU. of EU companies to send non-EU national employees to provide On 29 March 2017, the UK gave formal notice of its intention to services within the EU could not be made subject to a prior work withdraw from the EU in accordance with Article 50 of the Treaty on permit requirement, or indeed a certain prior period of employment, European Union. This triggered a two-year period for negotiations before the employee can be sent as a service provider. The UK will about the terms on which the UK will leave the EU. Unless all EU issue visas for those non-EU nationals who are lawfully resident Member States decide to extend this period, the UK will leave on and employed by EU companies in the EU, and who are coming to 29 March 2019. the UK for a temporary period to provide services. It is important to note that the UK is not part of the Schengen area and that visas

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obtained for the UK are not valid for entry into the Schengen area – a visa-free area with no internal border controls made up of 22 EU 2.4 Are there any special visitor categories which will Member States and four additional European countries. In addition, enable business visitors to undertake work or provide services for a temporary period? the UK does not participate in many of the EU-wide legislative programmes in the field of immigration, including the Blue Card regime and the Long-term Residents’ Directive. There are a number of specific categories which allow individuals to provide temporary services, including: ■ Those working as drivers or tour group couriers on 2 Business Visitors international routes delivering goods or passengers from abroad. ■ An employee of a foreign manufacturer or supplier coming 2.1 Can business visitors enter your jurisdiction under a to install, dismantle, repair, service or advise on equipment, relevant visa waiver programme?

computer software or hardware where it has a contract of United Kingdom purchase, supply or lease with a UK company or organisation. The UK operates a visa waiver system through a designated list ■ Translators and/or interpreters supporting visiting business of nationals who require a visa. The current list of nationals who people, provided they will attend the same event(s) as the require a visa to the United Kingdom is set out in Appendix V, business person and are employed by that business person Appendix 2 of the Immigration Rules. In 2014, the UK introduced outside of the UK. a new Electronic Visa Waiver (“EVW”) which exempts citizens of ■ Personal assistants and bodyguards supporting an overseas Oman, Qatar and the United Arab Emirates from requiring a visa business person in carrying out permitted activities, provided where they have obtained an EVW. The EVW scheme was extended they will attend the same event(s) as the business person and to citizens of Kuwait in February 2016. are employed by them outside the UK. They must not be providing personal care or domestic work for the business person. 2.2 What is the maximum period for which business ■ Film crew (actors, producers, directors or technicians) visitors can enter your jurisdiction? employed by an overseas company may visit the UK to take part in a location shoot for a film or programme that is Business visitors can be admitted for up to six months. If a business produced and financed overseas. visitor arrives at a UK airport and seeks entry to undertake business ■ An artist, entertainer, or musician giving performances as an visitor activities, they will be granted six months’ entry (known as individual or as part of a group, taking part in competitions “leave to enter”) with a prohibition on employment, even where they or auditions, making personal appearances and taking part in are only requesting entry for two weeks. Visit visas for visa nationals promotional activities, or taking part in one or more listed are also granted for six months and are usually multiple-entry. In cultural events or festivals. Personal or technical staff of the practice, immigration officers will only normally admit visitors production team of artists, etc. who are employed overseas seeking to come for short periods consistent with their ongoing can support the activities of artists, etc. if attending the same employment abroad. Requests to stay in the UK as a business visitor event(s). for several months will attract greater scrutiny both at the visa and ■ Journalists, correspondents, producers or cameramen gathering entry stage. As business visitors are not permitted to base themselves information for an overseas publication, programme or film. in the UK, immigration officers will scrutinise visa and entry requests ■ Professors from overseas academic institutions accompanying for frequent visitors more carefully and ask additional questions at students to the UK as part of a study abroad programme – the border. If a person is likely to exceed six months out of the last they may provide a small amount of teaching to the students 12 months in the UK as a visitor, this may lead to refusal of entry. at the host organisation. However, this must not amount to filling a permanent teaching role for that institution. ■ Archaeologists taking part in a one-off archaeological 2.3 What activities are business visitors able to excavation. undertake? ■ Scientists and researchers gathering information for specific projects related to their overseas employment or sharing There is a wide range of activities which business visitors can knowledge/advising on a UK-led international project (but undertake in the UK, subject to the caveat that a business visitor not carrying out research). must not take employment, produce goods or provide services ■ Academics taking part in formal exchange arrangements, within the UK or intend to live in the UK for extended periods of carrying out their own research while on sabbatical from frequent or successive visits. The Immigration Rules set out the their home institution, or eminent doctors or scientists taking “permitted activities” which business visitors can undertake, which part in research, teaching or clinical practice which does not include the following general business activities: amount to filling a full-time post. ■ attending meetings, conferences, seminars and interviews; ■ Sportspersons: ■ giving a one-off or short series of talks and speeches provided ■ taking part in a sports tournament or sports event as an these are not organised as commercial events and will not individual or part of a team; make a profit for the organiser; ■ making personal appearances and taking part in ■ negotiating and signing deals and contracts; promotional activities; ■ attending trade fairs, for promotional work only, provided the ■ taking part in trials, provided they are not in front of a visitor is not directly selling; paying audience; ■ carrying out site visits and inspections; ■ taking part in short periods of training, provided they are ■ gathering information for their employment overseas; and not being paid by a UK sporting body; or ■ being briefed on the requirements of a UK-based customer, ■ joining an amateur team or club to gain experience in a provided any work for the customer is done outside of the particular sport. UK.

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■ Employees of clients of a UK export company who are training from a UK-based company or organisation in work practices seconded to the UK company in order to oversee the and techniques which are required for the visitor’s employment requirements for goods and services that are being provided overseas and not available in their home country. under contract by the UK company or its subsidiary company, provided the two companies are not part of the same group. These employees may exceptionally make multiple visits to 3 Immigration Compliance and Illegal cover the duration of the contract. Working ■ Expert witnesses visiting the UK to give evidence in a UK court and other witnesses summoned in person by a UK court to attend a court hearing in the UK. 3.1 Do the national authorities in your jurisdiction operate ■ Overseas lawyers coming to the UK to advise a UK- a system of compliance inspections of employers based client on specific international litigation and/or an who regularly employ foreign nationals? international transaction. United Kingdom ■ Those coming to undertake preaching or pastoral work as All UK employers, including those that are registered as Tier 2 religious workers. licensed sponsors of non-EU national migrant workers, are required ■ Those coming as advisors, consultants, trainers or to comply with UK laws on the prevention of illegal working. UK troubleshooters or to share skills and knowledge on a specific employers that are registered as Tier 2 sponsors have additional internal project with UK employees of the same corporate compliance duties as sponsors and are subject to periodic visits group, provided no work is carried out directly with clients. from the Home Office, both announced and unannounced, to ensure ■ Internal auditors carrying out regulatory or financial audits at that they are complying with their sponsor duties and with current a UK branch of the same group of companies as the visitor’s legislation on the prevention of illegal working. The Home Office employer overseas. also undertakes significant enforcement operations in industries ■ An employee of an overseas-based training company may which are perceived to be high-risk, where illegal migrants may deliver a short series of training events to employees of a be more likely to be employed. The inspections are undertaken by UK-based company, where the trainer is employed by an enforcement teams often acting on intelligence. overseas business contracted to deliver global training to the international corporate group to which the UK-based company belongs. 3.2 What are the rules on the prevention of illegal working? In addition to the above categories, there is a Permitted Paid Engagements (“PPE”) category which allows individuals to come Employers are required to ensure that, before the start of any for up to one month and be paid for their work in the UK. The PPE employment, they check that an individual is entitled to work in route includes the following provisions: the UK. An employer must check specified documents such as ■ An employee of an overseas-based training company may passports or other combinations of documents and retain copies deliver a short series of training events to employees of a of these. If these documents are checked, copied and retained in UK-based company, where the trainer is employed by an the correct way, the employer will have a statutory excuse against overseas business contracted to deliver global training to the international corporate group to which the UK-based liability for a civil penalty for illegal working, as long as they did company belongs. not have reasonable cause to believe that an employee is disqualified from employment due to their immigration status. Companies and ■ An academic who is highly qualified within his/her field of expertise may examine students and/or participate in or individuals who employ a person who is not permitted to work may chair selection panels, if he/she has been invited by a UK face criminal liability if they have reasonable cause to believe the Higher Education Institution or a UK-based research or person had no entitlement to work. Comprehensive guidance is arts organisation as part of that institution or organisation’s issued to assist employers to comply with their duties and to ensure quality assurance processes. that they do not discriminate in the checking process. In certain ■ An expert may give lectures in his/her subject area, if he/she limited circumstances, employers are required to obtain a Positive has been invited by a UK Higher Education Institution, or a Verification Notice from the Home Office Employer Checking UK-based research or arts organisation provided this does not Service before the employee can start work. Employers are also amount to filling a teaching position for the host organisation. required to carry out follow-up checks for employees with limited ■ An overseas-designated pilot examiner may assess UK-based permission to stay in the UK. These are conducted upon the expiry pilots to ensure they meet the national aviation regulatory of their current visa or leave to remain. requirements of other countries, if they have been invited by an approved training organisation based in the UK that is regulated by the UK Civil Aviation Authority for that purpose. 3.3 What are the penalties for organisations found to be employing foreign nationals without permission to ■ A qualified lawyer may provide advocacy for a court work? or tribunal hearing, arbitration or other form of dispute resolution for legal proceedings within the UK, if they have been invited by a client. There are two types of penalties for illegal working. The first is a civil penalty of a maximum of £20,000 payable for each employee A professional artist, entertainer, musician or sportsperson may carry found to be working without permission in the United Kingdom. out an activity directly relating to their profession, if they have been The level of the penalty is determined according to the circumstance invited by a creative (arts or entertainment) or sports organisation, of the case, and a statutory code of practice sets out guidelines to agent or broadcaster based in the UK. decide how much the penalty will be. Employers may object to any civil penalty issued and appeal to a court against the penalty 2.5 Can business visitors receive short-term training? on the grounds that they are not the employer, that they have a statutory excuse (through undertaking the required document Employees of an overseas company or organisation may receive checks), or that the level of the penalty is too high (for example,

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where the employer has assisted with identifying an instance of the application is approved, the sponsor licence will be granted for illegal working and assisted the Home Office with their enquiries). an initial period of four years. Sponsors are awarded an A-rating The Home Office publishes regional lists of employers who have unless the Home Office has identified an issue which needs to be received civil penalties. In addition to the civil penalty regime, there resolved through an action plan, in which case they will be B-rated. is a separate criminal offence of having reasonable cause to believe All A-rated sponsors can apply to register for “Premium Customer that a person has no right to work. Liability extends not only to the Service” or “SME+” for an additional annual fee. The employer employer but also to individuals within the employer’s organisation, will be given access to the online Sponsor Management System including managers and those responsible for the recruitment of (“SMS”). Access to the SMS can be given to the employer’s employees. An employer found guilty of this offence may be liable representatives. The employer and their representatives then to imprisonment for up to five years and an unlimited fine, or both. have the ability to access the system and assign a Certificate of There are criminal sanctions under the Immigration Act 2016 against Sponsorship, in compliance with the current Home Office guidance employers who “wilfully fail” to carry out checks or “deliberately eligibility criteria, to an individual whom they wish to sponsor in turn a blind eye” to signs of illegal working. Employers that are one of the relevant categories. The Certificate of Sponsorship is an United Kingdom registered as sponsors under Tier 2 of the Points Based System may electronic document which is assigned to an individual to undertake also have the sponsor licence revoked or downgraded. Revocation a specific role in the UK sponsor organisation. “Unrestricted” will mean that the employer is unable to continue sponsoring Certificates of Sponsorship are allocated when the licence is first existing sponsored employees. Downgrading will also make the obtained, and at the start of each subsequent year. They will be process of further sponsorship of non-EU employees much more available for sponsoring employees under the Intra-company complex. Transfer route, for those prospective employees who are in the UK and who can switch into Tier 2 (General) as new hires, and for high- earners who will be earning more than £159,600 per year. These can 4 Corporate Immigration – General be assigned without the need to obtain separate work authorisation from the Home Office. It is part of the employer’s role as a sponsor to ensure that each certificate is issued in accordance with the 4.1 Is there a system for registration of employers who wish to hire foreign nationals? guidelines. “Restricted” Certificates of Sponsorship are allocated under the Tier 2 (General) category to new hires through a monthly Since November 2008 with the introduction of the Points Based allocation process, operated by the Home Office, which is subject to System, all UK employers wishing to sponsor non-EU employees an annual limit currently set at 20,700. must first register under the main Tier 2 sponsor category. Organisations wishing to register as licensed sponsors must 4.2 Do employers who hire foreign nationals have apply to the Home Office by submitting an online application, ongoing duties to ensure immigration compliance? paying the relevant fee (depending on the size of the organisation) and submitting the relevant corporate documents to show that UK employers registered as licensed sponsors must ensure that they the business is active and trading in the United Kingdom and, comply with their duties as sponsors, including the following: where relevant, holds the appropriate regulatory authorisations ■ Record-keeping – ensuring that they keep records of or accreditations. The UK employer must appoint a UK-based documents confirming the employee’s right to work, the Authorising Officer who will act as the person responsible employee’s contact details, and specified documents relating for compliance with the sponsor duties. When applying, the to the employee’s employment in the UK. organisation will request the number of “unrestricted” Certificates ■ Reporting duties – employers are required to report of Sponsorship which it requires in the coming year (April to April) certain information to the Home Office using the Sponsor to sponsor non-EU nationals. Employers can apply to register as Management System within specified time limits. This sponsors under the Tier 2 (General) category, which covers new includes reporting sponsored employees’ non-attendance, hires, and the Tier 2 (Intra-company Transfer) category, which early termination of employment, change of visa status, covers employees being transferred to the United Kingdom within changes to the employment such as changes in job titles/ duties, and corporate changes such as the location of the a group of international companies or organisations. Employers UK office or ownership of the business through a merger or operating in the creative, sporting or religious sectors may also acquisition. register under the Tier 5 category. The supporting documents ■ Complying with the law – this includes assigning Certificates submitted with the application will include such documents as the of Sponsorship for genuinely vacant roles which meet the organisation’s last filed financial statements, evidence of appropriate minimum skills and income thresholds, ensuring that the employer’s liability insurance, evidence of registration with the UK employee is legally entitled to do the job and has the correct tax authorities, bank statements, rental agreements or tenancies in registration and professional accreditations, and complying relation to business premises and any other specified documents with UK employment law or other regulations. that relate to the specific industry that the organisation operates in. ■ Co-operation – this includes allowing the Home Office to There are different documentary requirements for different types visit the employer’s premises for the purpose of a compliance of businesses. For businesses which have been trading for less check and following any action plan for improvement set by than 18 months, the application to become a sponsor will usually the Home Office following any compliance visit. involve an initial Home Office visit to check the organisation’s ability to comply with its sponsor duties. Applications are assessed 4.3 Do the immigration authorities undertake routine on eligibility criteria which aim to verify that the entity applying is inspections of employers who sponsor foreign genuine and has an operating or trading presence in the UK, and on nationals, to verify immigration compliance? suitability criteria, which assess whether the employer has HR and recruitment systems which will enable them to meet their sponsor Compliance visits are undertaken by the Home Office for businesses duties, that there are no previous immigration-related criminal applying to register as licensed sponsors where those businesses convictions, and that there is no previous non-compliance. Once have been trading for less than 18 months. In addition, a compliance

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visit can be undertaken at any time while the UK employer holds a Mobility Scheme) visas for nationals of Australia, Canada, New sponsor licence. These visits can be undertaken by arrangement Zealand, Hong Kong, the Republic of Korea, Taiwan, Japan, and with the employer or can be carried out on an unannounced basis. Monaco. Finally, Tier 1 (Exceptional Talent) visas for those who Where an employer is extending their sponsor licence after four are internationally recognised leaders or emerging leaders in science, years, this will often trigger a visit from the Home Office. The humanities, engineering, medicine, digital technology and the arts are compliance visit will normally involve an immigration official limited to 1,000 per year, divided between the respective categories. meeting the Authorising Officer responsible for overseeing immigration compliance within the UK employer, and checking 4.7 Are there restrictions on the number of foreign a number of HR files for sponsored employees to ensure that pre- workers an employer may sponsor, in relation to employment documents checks have been undertaken, the correct a maximum percentage of foreign workers in the documents are kept on the HR file, and that any changes in relation employer’s workforce? to sponsored employees have been reported. The visiting officers United Kingdom will also normally ask to interview at least one member of staff who The UK does not operate such a system. is sponsored to ensure that they are complying with the terms of their Certificate of Sponsorship. Where serious issues of non-compliance are identified, the Home Office may revoke or suspend the licence 4.8 Are employees who are sponsored to work in your jurisdiction required to demonstrate language or downgrade the sponsor’s rating and put an Action Plan in place to proficiency? remedy any non-compliance within a specified time frame. Employees who are sponsored to work for UK employers as new 4.4 Do the immigration authorities maintain a list of hires are required to demonstrate that they are proficient in the skilled occupations which may be filled by foreign English language to Level B1 (intermediate) on the Common nationals? European Framework of Reference for Languages (“CEFR”). Employees being transferred to the UK under the Tier 2 (Intra- The Home Office maintains a list of Standard Occupational company Transfer) route do not need to meet this requirement either Classification (“SOC”) codes for skilled workers. These codes for the initial application or for the extension application. Any are regularly updated. The codes set out the relevant occupations employee who is eligible to apply for indefinite leave to remain which are skilled to Regulated Qualifications Framework (“RQF”) (permanent residence) at the end of a period of five years’ sponsored Level 6, which is the minimum skill level under which individuals employment in the UK will be required to demonstrate proficiency can be sponsored in the UK. Each occupation has a specific code at B1 CEFR level. with a description of the typical activities and duties related to the occupation, together with possible job titles. Each occupation 4.9 Are employees who are sponsored to work in your specifies the minimum salary which must be paid to the individual jurisdiction required to undergo medical examinations undertaking the role. The salary rates are normally divided between before being admitted? “new entrant” salary rates, applicable to those who have graduated from a UK university and who are switching into the Tier 2 The UK does not require general medical examinations from all (General) category, and experienced worker rates. The SOC codes applicants coming to take up sponsored employment in the UK. include over 80 occupation codes at the RQF Level 6 skills level. In However, where the individual is applying for their entry clearance addition, certain lower-skilled jobs at RQF Level 4 in the creative (a visa) in a specified country, they will be required to undertake a sector can also be sponsored. tuberculosis test at a designated clinic.

4.5 Is there a recognition that some occupations may be 4.10 Are employees who are sponsored to work in your in short supply and do special exemptions apply to jurisdiction required to have medical insurance or are certain sectors and occupations? they entitled to any free public medical services?

The Home Office maintains a list of shortage occupations which There is no requirement for those who are sponsored to work to is updated regularly through consultation with the Migration hold medical insurance. They are generally eligible to use the UK’s Advisory Committee, which advises the government and considers National Health Service. Since April 2015, all non-EEA nationals submissions from employers, organisations, industry bodies obtaining work visas to come to the UK for more than six months and government departments on the availability of skills in the or who are extending their leave to remain in the UK are required to UK workforce. Where an occupation is included in the shortage pay an Immigration Health Surcharge of £200 for each year of their occupation list, the employer will not need to undertake advertising visa. Those sponsored under the Tier 2 (Intra-company Transfer) or a Resident Labour Market Test (see section 9 below) in relation visa category were initially exempt but have been required to pay to that role. The Home Office also maintains a list of Ph.D. since April 2017. occupations for which there are reduced requirements to undertake resident labour market testing through advertising. 4.11 Does the work permit system allow employees who hold work permits to be seconded to a client site? 4.6 Are there annual quotas for different types of employment-related work permits or visas? Sponsored employees may be seconded to a client site where the UK employer has a contract to provide a time-bound service or project There is currently an annual limit of 20,700 Certificates of where a specific service is being provided to the end user client. The Sponsorship under the Tier 2 (General) “restricted” category which UK employer must retain responsibility for managing the employee covers new hires being hired from outside the United Kingdom including the employee’s duties, functions and outcomes/outputs. who are paid less than £159,600. In addition, there are limits The current rules do not allow the provision of staff only to other for some other categories, including the two-year Tier 5 (Youth organisations.

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5 Highly Skilled Visas 7 Temporary Work Permits

5.1 Is there an immigration category which covers highly 7.1 Is there an immigration category permitting the skilled individuals? hiring of temporary workers for exchanges, career development, internships or other non-economic The UK’s Tier 1 (General) visa category, which awarded points to purposes? potential migrants based on academic qualifications and previous earnings, was closed in December 2010. The only category which The Tier 5 (Temporary Worker – Government Authorised Exchange) now exists is the Tier 1 (Exceptional Talent) visa for those who have visa provides a route for work experience, training, research or been officially endorsed as an internationally recognised leader or fellowships. Under this category, there are four types of schemes emerging leader in their field in science, humanities, engineering, which are approved under the GAE sub-category, which include: medicine, digital technology or the arts. Applications for ■ Work experience programmes such as internships, approved United Kingdom endorsements are first considered by relevant endorsing bodies such work experience programmes, volunteering and job as the Arts Council, the Royal Academy, Tech City and the Royal shadowing. Society. There are specific “eligibility in assessment” criteria for ■ Research programmes. endorsement, depending on each endorsing body. Endorsement in ■ Overseas government language programmes funded the arts and sciences can be given to those who have demonstrated by overseas governments or government-sponsored promise in their chosen field. The criteria for endorsement in the organisations. Exceptional Talent route are extremely high. There is a quota of ■ Training programmes − for those receiving formal practical 1,000 Tier 1 (Exceptional Talent) visas issued per year, divided training in the field of science and/or medicine, the UK armed between each of the endorsing groups. forces or the UK emergency services, or those who graduated in the UK and are undertaking post-graduate professional training or work experience to obtain a related professional 6 Investment or Establishment Work qualification or registration. Permits A number of organisations have been approved as overarching sponsors which include regulatory bodies, private companies, governmental organisations and UK universities. They will act as 6.1 Is there an immigration category which permits the sponsor and will assign a Certificate of Sponsorship to enable employees to be authorised to work based on the individual to undertake their training, research or exchange at an investment into your jurisdiction? organisation in the UK. The scheme allows for work experience and training programmes up to a maximum of 12 months, and research There is no specific employer-based visa category which permits an and training programmes up to a maximum of 24 months. These individual to be authorised to work in the UK based on investment. schemes are widely used by businesses to bring in short-term interns However, there are a number of categories which enable companies undertaking paid work experience in the UK. Those coming under to establish subsidiaries in the UK and individuals to come for the these schemes must be coming for primarily non-economic reasons purposes of establishing or investing in a UK business or coming in and should be taking supernumerary positions and not filling full- as investors. These include: time vacancies in the UK. ■ Sole representatives of overseas businesses − senior employees of overseas businesses that wish to establish a branch or subsidiary in the UK can be sent to the UK 7.2 Are there sector-specific temporary work permit under this category. They must have full authority to take categories which enable foreign workers to perform operational decisions on behalf of the parent company temporary work? overseas, must remain employed by the parent company or branch/subsidiary, and may not work for any other business The UK has a number of specific categories, contained in Tier 5 of in the UK. the Points Based System, which enable individuals to come to the ■ Tier 1 (Entrepreneur) − for individuals with £200,000 in UK to work in certain sectors. The Tier 5 categories which currently disposable capital of their own or from a third party wishing exist under the Temporary Worker category are as follows: to establish a new business in the UK or invest in an existing ■ Creative and sporting – this covers those who are UK business which must generate at least two jobs for British, internationally established at the highest level in their sport EU or permanent UK residents. Successful applicants are as players or coaches and who are making a significant limited to working for their own businesses and do not have contribution to the development or operation of that access to the labour market. sport in the UK, who have been endorsed by the relevant ■ Tier 1 (Investor) − for those with £2m in disposable capital governing body for that sport, or for creative workers and who wish to invest in UK government bonds, and share or their entourage operating in dance, theatre or film and loan capital in UK trading companies. These investors have television. This category is often used for internationally strict requirements on the permissible investments under recognised performers coming for a series of performances this category and all requirements for those investments are or engagements in the UK for up to 12 months. to be valued by a regulated financial institution in the UK. ■ Charity workers – this category covers those wanting to They have no restrictions on employment in the UK, other undertake unpaid temporary voluntary work in the UK. than working as professional sportspersons, or as doctors or dentists in training. ■ Religious workers – this category covers those coming to undertake temporary preaching, pastoral work and non- pastoral work.

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■ Graduate trainee – this category is for employees who are 8 Group or Intra-Company Transfer Work recent graduates, have worked for the overseas group company Permits for at least three months abroad, and are being transferred as part of a structured graduate training programme which will lead towards accelerated promotion to a managerial or 8.1 Does a specific immigration category exist for inter- specialist role in the organisation. Visas are granted for a company transfers within international groups of maximum of 12 months and there is a limit of five Graduate companies? Trainee visas per year per employer. They must be paid at least £23,000 or the minimum salary as per the appropriate The Tier 2 (Intra-company Transfer) category of the Points Based SOC code, whichever is higher. System allows international groups of companies to transfer staff Until recently, there were four ICT subcategories. The Skills into the UK. Transfer subcategory was closed in November 2016. The Short- term Staff subcategory was closed in April 2017. United Kingdom 8.2 What conditions must an employing company or organisation fulfil in order to qualify as part of a group 8.4 What is the process for obtaining a work permit for an of companies? intra-company group employee?

To sponsor employees under the Intra-company Transfer (“ICT”) Employers who have been registered as Tier 2 sponsors are given sub-categories, the UK employing company or organisation must be access to the online Sponsor Management System (“SMS”) which able to show a direct link by common ownership or control with the they can use to assign a Certificate of Sponsorship (“CoS”) to the overseas entities from which employees will be transferred to the relevant employee. Each sponsoring employer can request an UK. “Common ownership” or “control” has a broad definition and allocation of Tier 2 (Intra-company Transfer) visas for each year the current guidance specifies a number of situations in which this which runs from April to April, and can use these Certificates of may be established. Examples include situations where: one entity Sponsorship for transfers within international groups of companies holds more than half the issued share capital of the other entity; both or organisations. The employer will complete all of the relevant entities have a common parent; one entity controls the composition details in relation to the individual’s employment, start date and of the other entity’s board; or one individual has a majority the length of employment, salary and allowances, job title and job shareholding in each of the entities. In addition, common ownership description required by the online SMS system. The employer or control can be established where both entities are party to a joint is also given the opportunity to certify that they will cover the venture agreement, or where entities are either accountancy or law financial “maintenance” requirements for the individual employee. firms which use the same firm name in the UK and the country in Certification of maintenance by the sponsoring employer confirms which the other entity is operating. that an employer will maintain and accommodate the employee up to the end of their first month of employment in the UK if required. If 8.3 What conditions must the employer fulfil in order the employer does not certify maintenance, the employee will need to obtain a work permit for an intra-company group to meet the requirement by providing certain financial information employee? (see below). The employer can then assign the Certificate of Sponsorship, which generates a unique reference number. A fee The Tier 2 (Intra-company Transfer) category of the Points Based is payable through the online system for each Certificate. The System exists for multinational businesses to transfer skilled employer will then notify the employee of the unique reference employees to a UK branch or to a UK group company or linked number so that the employee can use this in support of their Tier 2 company. Sponsors applying for their sponsor licence are required (Intra Company Transfer) entry clearance (visa) application outside to register under Tier 2 (ICT) and to provide proof of the corporate the United Kingdom. link between the UK sponsoring entity and the overseas group company or organisation. This will typically be the head office’s 8.5 What is the process for the employee to obtain a visa financial statements or annual report showing the linked entities, or under the intra-company group transfer category? an affidavit from a senior UK employee confirming the link. This is submitted with the initial sponsor licence application. If the UK The usual process for obtaining a visa under the Intra-company sponsor did not apply under the ICT category when first applying for Transfer category is as follows: a sponsor licence, they can apply to “expand” the licence to include the ICT category. ■ The employee submits an online visa application form, providing full personal details and confirmation of the The qualifying criteria and the period for which the employee can Certificate of Sponsorship number. be transferred under the ICT route will depend on which of the two ■ The employee pays an online visa fee and makes an sub-categories the employee qualifies under. All employees must be appointment to attend a biometric appointment at a designated filling skilled roles at RQF Level 6 (or Level 4 for certain creative Visa Application Centre (“VAC”). The employee attends roles). The current sub-categories are: their appointment at the VAC and provides their biometrics ■ Long-term staff – this category enables employees of multi- (fingerprints and photographs). national companies to come to the UK for up to five years. ■ The employee submits their supporting documents including The employee must have been employed for a minimum of the online visa forms, passport, passport photographs and 12 months by a group company. If the salary is £79,600 supporting documentation. This is usually done at the VAC per year or more, there is no minimum period for which the when providing biometrics. individual must have been employed by a group company. ■ The VAC will forward the application package to the The employee must be paid at least £41,500 per year or the relevant Embassy, Consulate or High Commission dealing minimum salary as per the appropriate SOC code, whichever with applications from the country in which the application is higher. is made. In an increasing number of cases, a copy of the application pack is sent to UKVI in the UK for a decision.

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■ The British consular post (or UKVI in the UK) will decide the ■ was only in the UK as a Tier 2 migrant during the last 12 application and forward the decision to the VAC. The VAC months for a short period(s) with a certificate of sponsorship will contact the individual to confirm that the application has which was assigned for three months or less. been approved. ■ The employee is issued with a 30-day travel visa during 8.8 Can employees coming under the intra-company which they must travel to the UK. transfer route apply for permanent residence? ■ On arrival, they must visit a designated Post Office to collect their Biometric Residence Permit with 10 working days of Intra-company transferees do not qualify for indefinite leave to arrival. Visa processing differs from country to country. The remain (permanent residence) after five years in the UK unless their UK authorities have outsourced parts of the visa application process to commercial partners who manage the visa initial Tier 2 (ICT) visa was granted before 6 April 2010. application centres and tracking of applications. The VAC may be in a different country to that in which the application

8.9 What are the main government fees associated with United Kingdom is processed and decided (under the UK’s “Hub and Spoke” this type of visa? visa processing model). The following supporting documents are required: The 2017–2018 fees associated with a Tier 2 (ICT) visa application 1. Visa application form. submitted outside the UK are as follows: 2. Biometric appointment confirmation. ■ Certificate of sponsorship (paid by sponsor): £199. 3. Current passport. ■ Immigration Skills Charge (paid by sponsor when the 4. Two passport photographs of the applicant (not required at all certificate of sponsorship is assigned): £1,000 per year of VACs). intended work duration (medium or large sponsor) or £364 per year (small or charitable sponsor). 5. Tuberculosis test certificate (if the employee is applying in a country in which tuberculosis testing is required). ■ Visa application fee: £587 (visa valid for up to three years) or £1174 (up to five years). ■ Immigration Health Surcharge: £200 per year. 8.6 How long does the process of obtaining the work permit and initial visa take? The fees are increased in April each year.

Visa processing takes between one to four weeks to be completed 9 New Hire Work Permits depending on where the applicant is applying. Priority visa processing is available at a number of application centres. 9.1 What is the main immigration category used for employers who wish to obtain work permits for new 8.7 How long are visas under the “initial” category valid hires? for, and can they be extended? The main immigration category used for employers who wish to Initial visas can be valid for up to five years in the Tier 2 (ICT) sponsor new hires is Tier 2 (General). The key features of the Tier Long-term Staff subcategory. The visa cannot be extended beyond 2 (General) category are that: five years unless the individual is a high earner (paid at least ■ The individual must be coming to do a skilled role at RQF £120,000 per year) in which case the visa can be extended for up to Level 6 (or RQF Level 4 in designated creative roles). nine years in total. ■ The individual must usually be paid at least £30,000 per year Tier 2 (ICT) Graduate Trainee visas are valid for up to 12 months or the appropriate rate specified for the relevant SOC code. and cannot be extended. ■ The employer must undertake a Resident Labour Market Test When the visa expires, the employee must leave the United unless an exemption applies. Kingdom and is subject to a “cooling off” period, which means ■ The individual must speak English to B1 level on the CEFR that they cannot return to the UK on another Tier 2 visa for the (intermediate). next 12 months. It is therefore important that employees who are The Tier 2 (Minister of Religion) category covers those who have sponsored under the ICT category extend their visa in the UK (up been offered employment as pastors, missionaries or members of to the maximum allowed) and do not allow it to expire while they religious orders within the United Kingdom. are outside the UK. The Tier 2 (Sportsperson) category is available for elite sportspersons There are certain circumstances in which the cooling off period does or coaches where their employment will make a significant not apply to employees applying outside the UK for a new Tier 2 contribution to the development of the sport in the United Kingdom (ICT) visa. This will be where the employee: at the highest level. The individual must first obtain an endorsement ■ is applying as a high earner – someone whose gross salary from the relevant governing body for the sport. The endorsement package is £120,000 or more. confirms that the individual is internationally established atthe ■ is applying under the Tier 2 (ICT) Long-term Staff sub highest level and will contribute significantly to the relevant sport in category and their last grant of Tier 2 leave was as an intra- the United Kingdom. company transfer migrant under the rules in place before 6 April 2011, or in one of the following intra-company transfer categories: 9.2 Is there a requirement for labour market testing, to demonstrate that there are no suitable resident ■ Skills Transfer; workers, before a work permit can be issued to new ■ Graduate Trainee; hires? ■ Short-term Staff; or Labour market testing is generally required, through following the Resident Labour Market Test (“RLMT”) process, before a

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prospective employee may be offered sponsorship under Tier 2 Sponsorship request by the fifth day of each month. The Home (General). Employers registered as Tier 2 sponsors may only recruit Office allocation panel will decide the application by the 11th day a non-EU national where they have carried out the RLMT and can of the month and, if satisfied that the Resident Labour Market Test show that no suitable “settled” worker is available to fill the job, has been undertaken correctly, will grant a restricted Certificate of unless the job is exempt from the RLMT. Sponsorship. The employer can then assign the restricted Certificate of Sponsorship to the relevant employee for them to apply for The RLMT must be conducted in the following way: their visa or for leave to remain. Where the number of requests ■ The position must be advertised in the Jobcentre Plus for the Certificate of Sponsorship exceeds the number of available Universal Jobmatch service, or Jobcentre Online for jobs in Certificates in the monthly limit, applications are ranked according Northern Ireland, plus one other medium. The other medium to a points scoring system, with shortage occupations and Ph.D. can be a print or online newspaper, journal or publication or internet jobsite. Certain occupations or roles are exempt positions scoring the highest points and additional points allocated from the requirement to advertise in Jobcentre Plus Universal on the basis of the proposed salary for the role. In June 2015, for

United Kingdom Jobmatch. the first time since the limit was introduced in 2011, a number of requests were refused. ■ The advert must comply with the strict requirements of the Tier 2 (General) guidance in terms of its content including If the individual is already working in the UK on a Tier 2 (General) job title, location, salary on offer, main criteria for the role visa for another employer or if the individual holds a visa under and a closing date. An advert that does not comply with these a different category which permits them to switch into the Tier 2 requirements cannot be relied on to satisfy the RLMT. (General) category, the employer can assign an “unrestricted” ■ The advert must appear for 28 calendar days. Certificate of Sponsorship to that individual after completing ■ The employer must consider all candidates and provide the RLMT. Once the Certificate of Sponsorship is assigned, the reasons for not shortlisting settled workers (generally British employee can apply for further leave to remain in the UK. or EU citizens, or UK permanent residents). Settled workers may only be rejected on the grounds that they are 9.5 What is the process for the employee to obtain a visa not suitable according to the criteria set out in the advertisement. as a new hire? The job cannot be offered to a non-EU national who requires sponsorship if there are suitable candidates from the resident labour The process for obtaining a Tier 2 (General) visa is the same as market, even if the non-EU national is more skilled or experienced. the process described in question 8.5 for obtaining a Tier 2 (Intra- The only exception to this rule is for jobs falling within the Ph.D. company Transfer) visa, except that there is an additional English occupational codes, which generally cover scientists, research and language requirement. development managers in the scientific field, and higher education The individual must show that they meet the English language teaching professionals. In these cases, the job can be given to the requirement by enclosing the following document(s) with their visa most suitable candidate. application: ■ a passport showing that the individual is a national of a 9.3 Are there any exemptions to carrying out a resident majority English-speaking country; or labour market test? ■ a certificate showing that they have passed an approved English language test with at least CEFR level B1 in reading, There are exemptions to the Resident Labour Market Test. These writing, speaking and listening; or include: ■ a degree certificate and an official statement from UK NARIC ■ jobs which are on the shortage occupational list; confirming that that the degree that was taught in English and ■ if the individual is transitioning from the Tier 4 (Student) is equivalent to a UK Bachelor’s degree, Master’s degree or category and has passed a B.A. or M.A. degree, a post- Ph.D. graduate certificate in education, a professional graduate diploma of education or has completed 12 months’ study 9.6 How long does the process of obtaining the work towards a Ph.D.; permit and initial visa for a new hire take? ■ jobs with a guaranteed salary of £159,600 or more; ■ certain supernumerary research positions where the employee The Certificate of Sponsorship, once obtained, can be assigned has been issued with a scientific research award or fellowship; immediately through the SMS and will then be available to be and used by the prospective employee for a visa application. The visa ■ certain post-graduate doctors and dentists in “speciality” application process takes between one and four weeks depending on training sponsored by overseas governments under an where the application is made. agreement with the UK.

9.7 How long are initial visas for new hires granted for 9.4 What is the process for obtaining a work permit for a and can they be extended? new hire? Initial visas can be granted for up to five years. If they are granted Where the Resident Labour Market Test is required and the for less than five years, they can be extended up to a maximum of six employee is outside the UK, the sponsoring employer must apply years without the need for any further Resident Labour Market Test. for a “restricted” Certificate of Sponsorship under Tier 2 (General). It is important that individuals are able to qualify for indefinite leave Restricted certificates are subject to an annual limit of 20,700, which to remain (permanent residence) within those six years, as they will are made available on a monthly basis through an allocation panel not be able to extend beyond this if they have entered the UK in this administered by the Home Office. Once the Resident Labour Market category on or after 6 April 2011. In particular, those on this route Test is completed, employers can apply via the SMS for a restricted must ensure that they do not disqualify themselves from applying Certificate of Sponsorship. To be considered in each of the monthly for indefinite leave to remain by having excessive absences outside panels, the employer must submit their restricted Certificates of the UK in the five-year qualifying period (see question 9.9 below).

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9.8 Is labour market testing required when the employee 10.2 Are work permit holders required to register with extends their residence? municipal authorities or the police after their arrival?

No further labour market testing is required where the employer Certain nationals are required to register with the police within extends the Tier 2 (General) sponsorship and the employee applies seven days after the date of their arrival. A list of nationalities is set for an extension of their permission to stay. However, if the Tier out in Appendix 2 of the UK Immigration Rules, and those who are 2 (General) employee is changing sponsoring employer in the required to register within seven days will have an endorsement on UK, a Resident Labour Market Test will be required subject to the their entry clearance visa confirming this. Registration takes place exemptions set above. at the Overseas Visitors’ Registration Office in London or at a local police station if the person is resident outside Greater London.

9.9 Can employees coming as new hires apply for United Kingdom permanent residence? 11 Dependants

Those who are admitted under the Tier 2 (General) route will be eligible to apply for indefinite leave to remain (permanent residence) 11.1 Who qualifies as a dependant of a person coming to once they have completed five years’ continuous residence and work on a sponsored basis? employment under the Tier 2 (General) category. In order to qualify, they will need to meet the following conditions: Employees coming to work in the UK are entitled to bring their ■ They have been continuously employed throughout the five spouses, partners and children under 18 with them. There is no years with breaks between employment of no more than 60 provision for any other family members or children over 18 to days at any time. accompany the employee, and any applications will normally be ■ They have not been absent from the United Kingdom for refused unless there are exceptional compassionate reasons. more than 180 days in any of the 12-month periods making up the total five years. 11.2 Do civil/unmarried or same-sex partners qualify as ■ They have passed a Life in the UK test – this is an integration family members? type test which is undertaken online and tests applicants on their knowledge of UK history, politics, society and living in For civil partners with overseas civil partnerships, the civil the UK. partnership will need to be recognised as equivalent to a UK civil ■ They speak English to Level B1 on the CEFR. partnership or marriage in order to qualify. For unmarried partners ■ They do not have any criminal convictions which would or for those whose overseas civil partnerships are not recognised prevent them from applying. as equivalent to UK marriage or civil partnership, the partner will They provide confirmation from their current employers that they need to demonstrate that they have cohabited in a relationship akin are still required for their role for the foreseeable future and that they to marriage or a civil partnership for at least two years. Significant continue to receive the appropriate rate of pay for that role. documentary evidence of cohabitation such as bank statements, utility bills and other official evidence addressed to the partner and/ or the employee at the same address must be provided. 9.10 What are the main government fees associated with this type of visa? 11.3 Do spouses and partners have access to the labour The fees are the same as for a Tier 2 (ICT) visa as set out in question market when they are admitted as dependants? 8.9. Spouses and partners who are admitted to the UK as dependants have full access to the labour market and are not required to obtain 10 Conditions of Stay for Work Permit further permission or authorisation to work in the UK. Holders

11.4 Do children have access to the labour market? 10.1 What are the conditions of stay of those who obtain work permits and are resident on this basis? Children who are admitted as dependants have access to the labour market and can work in the UK in accordance with UK employment Those coming under the Tier 2 categories are permitted to work for law. the employing sponsor in the role described in their Certificate of Sponsorship. They are able to undertake “secondary” employment in the same sector and at the same level as their main job for up to 20 12 Permanent Residence hours per week. They are also entitled to study as long as this does not interfere with the job that they are sponsored to undertake in the 12.1 What are the conditions for obtaining permanent UK. Those sponsored under the Tier 2 rules cannot have any access residence? to “public funds”, which are the main welfare benefits available in the UK. In addition, those who are under Tier 2 (General) visas Those who are admitted under the Tier 2 (General) route will be cannot own more than 10% of the shares in their sponsoring eligible to apply for indefinite leave to remain (permanent residence) company, unless they earn more than £159,600 per year. once they have completed five years’ continuous residence and employment under the Tier 2 (General) category. In order to qualify, they will need to meet the following conditions:

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■ They have been continuously employed throughout the five ■ The person has made false representations, submitted false years with breaks between employment of no more than 60 documents or failed to disclose material facts in relation to days at any time. the current application. ■ They have not been absent from the United Kingdom for There are also a number of mandatory visa “bans” which exclude a more than 180 days in any of the 12-month periods making person from returning to the UK for certain periods. These are where: up the total five years. ■ The person has overstayed their previous visa for more than ■ They have passed a Life in the UK test – this is an integration 30 days (or 90 days if the overstaying began before 6 April type test which is undertaken online and tests applicants on 2017). their knowledge of UK history, politics, society and living in ■ The person used deception in an application. the UK. ■ The person breached a condition of their previous stay or ■ They speak English to Level B1 on the CEFR. entered illegally. ■ They do not have any criminal convictions which would Where the above situations occur, the period of the visa ban will United Kingdom prevent them from applying. depend on when and how they left the UK. The bans will apply for: ■ They provide confirmation from their employer that they are still required for their role for the foreseeable future and that ■ One year if they left the UK voluntarily (not at public they will continue to receive the appropriate rate of pay for expense). that role. ■ Two years if they left the UK voluntarily, at public expense, The rules for obtaining indefinite leave to remain in other no more than six months after the date on which they were given notice of their removal decision, or no more than six immigration categories vary but all generally require the applicant months after the date on which they exhausted their appeal to meet the residence, Life in the UK and language requirements in rights against that decision, whichever is the later. addition to continuing to meet the relevant category-specific criteria. ■ Five years if they left the UK voluntarily, at public expense, more than six months after their removal decision or more 12.2 Is it possible to switch from a temporary work visa to than six months after they exhausted their appeal rights a work visa which leads to permanent residence? against that decision. ■ 10 years if they were removed from the UK at public expense. The circumstances in which employees can switch from a temporary ■ 10 years if they used deception (which includes using false to a permanent visa are very limited. Switching from Tier 2 (Intra- documentation) in support of a previous application for company Transfer) to the Tier 2 (General) route within the UK is entry clearance. In addition to the above bars, it should be only generally possible if the person came to the UK under the remembered that an employee who has previously been Immigration Rules in place before 6 April 2011 and they are changing sponsored in the UK under the Tier 2 route may be subject their employing sponsor in the UK. In addition, they cannot leave to a “cooling off” period which may prevent them from returning to the UK under Tier 2. the UK and seek fresh admission under the Tier 2 (General) route as they will be caught out by the “cooling off” provisions which require them to be outside the UK for 12 months before being able 13.2 Are criminal convictions a bar to obtaining work to re-enter under that route. The only exception to this is where permission or a visa? they are sponsored as high earners paid at least £159,600 per year. It is therefore extremely important to ensure that whenever there is Criminal convictions may be a bar to obtaining a visa to work in the a possibility that an employee will be transferred for an extended UK. In particular, it is important to note that there are discretionary period, careful consideration is given to the most appropriate and mandatory grounds for refusal. The mandatory grounds, under category of entry under Tier 2. There are special situations where which an immigration application must be refused where they have those admitted as temporary workers may switch − this includes received a custodial sentence, are that the person: footballers admitted under the Tier 5 (Creative and Sporting) route ■ has been convicted of an offence for which they have been (usually because they may not meet the Tier 2 (General) language sentenced to a period of imprisonment of at least four years − requirements) who can then switch to the long-term category once visas or entry will normally always be denied; they can speak English to the appropriate level. ■ has been convicted of an offence for which they have been sentenced to a period of imprisonment of at least 12 months but less than four years − visa or entry will be denied for 10 13 Bars to Admission years from the end of the sentence; or ■ has been convicted of an offence for which they have been sentenced to a period of imprisonment of less than 12 months 13.1 What are the main bars to admission for work? − visa or entry will be denied for five years from the end of the sentence. The main bars to admission to the UK (other than criminal It is important to note that although application must be refused, convictions which are set out below) are contained in the General there is scope for making representations in defined circumstances; Grounds for Refusal in the UK Immigration Rules, which contains for example, where the offence happened a significant time ago and the provisions on mandatory refusals (visa bans) and discretionary there have been significant changes, or where a person is making a refusals. The main grounds are: significant investment into the UK. ■ The person is subject to a UK deportation order. The discretionary grounds for refusing entry based on a criminal ■ The person’s exclusion is, or has been, personally directed by convictions are where the person: the UK Secretary of State as being “conducive to the public good”. ■ has received a non-custodial sentence − they may be refused entry or a visa if the person was convicted within the last 12 ■ Medical grounds − where the person’s medical condition is a months; or significant risk to public health.

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■ where a person’s offending has caused serious harm or where out-of-court disposal that is recorded on their criminal record the person is a persistent offender who has shown particular − they will be prevented from applying unless 24 months have disregard for the law. Criminal convictions will also affect a elapsed between the conviction and the date their application person’s ability to obtain extensions of leave to remain and is decided. indefinite leave to remain (permanent residence) in the UK. For the first three points above, these will rarely come into play as Those applying for indefinite leave will be prevented from applying the individual would normally be refused entry to the UK in any if: event or, if convicted in the UK, with a custodial sentence of 12 ■ they have been convicted of an offence for which they have months or more, would be subject to the UK’s automatic deportation been sentenced to imprisonment for at least four years − they provisions. However, the issue of non-out-of-court disposals is an will not be able to apply; issue, as this can include a range of “sentences” which are included ■ they have been convicted of an offence for which they have in a person’s criminal record, including cautions − these are often been sentenced to imprisonment for between 12 months but issued by the police in the street in place of a formal charge and

less than four years − they will be prevented from applying conviction by a court. It is important that any criminal offence, United Kingdom for 15 years from the end of the sentence; including drink driving and traffic offences and cautions, are ■ they have been convicted of an offence for which they have disclosed in visa applications and applications for leave to remain been sentenced to imprisonment for less than 12 months − and indefinite leave, as failure to mention them may result in refusal they will not be able to apply for seven years from the end of of the application, a significant visa ban on the grounds of deception the sentence; or or failure to disclose material factors where applying for a visa, and ■ they have been convicted of, or admitted, an offence for possible criminal prosecution for providing false information in an which they have received a non-custodial sentence or other immigration application.

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Nicolas Rollason Kim Vowden Kingsley Napley LLP Kingsley Napley LLP Knights Quarter Knights Quarter 14 St John’s Lane 14 St John’s Lane London EC1M 4AJ London EC1M 4AJ United Kingdom United Kingdom

Tel: +44 20 7814 1200 Tel: +44 20 7566 5279 Email: [email protected] Email: [email protected] URL: www.kingsleynapley.co.uk URL: www.kingsleynapley.co.uk

Nicolas Rollason is a partner and head of Kingsley Napley’s Kim Vowden is an associate in Kingsley Napley’s immigration team. immigration practice. He advises on all areas of UK immigration and He previously completed a Ph.D. in sociology and worked as a social

United Kingdom nationality law, and has particular expertise in providing strategic policy researcher at the Policy Studies Institute and the National advice to businesses on their global immigration needs. Centre for Social Research. He focuses on Points Based System applications and sponsor licence issues for companies in the financial, Nicolas has extensive expertise across all immigration routes, with a media and technology sectors. He also advises individuals on visa widely-recognised breadth of knowledge enabling him and his team to refusals, British nationality and European law applications. offer clear solutions to complex immigration problems. He is a well- known expert in EU immigration law and has litigated key test cases before the European Court of Justice. He is regularly consulted by the UK immigration authorities on proposed changes to UK immigration rules and policy. He is a regular conference speaker and has written chapters on immigration in numerous publications. He is a long- standing member of the Immigration Law Practitioners Association, the American Immigration Lawyers Association and the Alliance of Business Immigration Lawyers, and a founding member of the European Immigration Lawyers Network. Nicolas is listed as a leading figure in theWho’s Who of Corporate Immigration Law, Chambers UK and The Legal 500 UK.

Kingsley Napley’s immigration team is recognised as one of the best in the UK, with over 15 years in the top tier of Chambers UK and The Legal 500. We have an established reputation for providing clear strategic immigration advice, tailored to each situation and client. Our dedicated business immigration team supports our global clients in all their immigration needs, ranging from companies setting up in the UK to assisting multinationals with transferring high volumes of staff into the UK and across the world. Our high levels of client care, together with our excellent relationships with the UK immigration authorities and our high-level policy work, enable us to deliver a service underpinned by our key values – excellence, integrity, quality and added value.

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USA Paul W. Virtue

Mayer Brown, LLP Elizabeth Espín Stern

Based on an agreement between the United States and Australia, 1 Introduction Australian citizens may enter the United States with E-3 status to perform highly skilled professional services for US employers. 1.1 What are the main sources of immigration law in your jurisdiction? 2 Business Visitors

The main source of immigration law in the United States is the Immigration and Nationality Act of 1952, as amended. Federal 2.1 Can business visitors enter your jurisdiction under a agency regulations are found in titles 8, 20 and 22 of the Code of relevant visa waiver programme? Federal Regulations (CFR). Citizens of visa waiver programme (VWP) countries (https:// esta.cbp.dhs.gov/esta/) may enter the United States for business 1.2 What authorities administer the corporate immigration or pleasure for 90 days or less without the need to present a visa. system in your jurisdiction? Visa waiver travellers are required to register with US Customs and Border Protection (CBP) under the Electronic System for The federal agencies responsible for administering US immigration Travel Authorization (ESTA). VWP travellers waive their right law include the Departments of Homeland Security, State, Labor to a removal hearing before an immigration judge and may be and Justice. summarily removed if they remain in the United States beyond their authorised period of stay. VWP visitors may not change to another 1.3 Is your jurisdiction part of a multilateral agreement immigration status while in the United States. between countries (EU/NAFTA/MERCOSUR) which facilitates the movement of people between countries for employment purposes? 2.2 What is the maximum period for which business visitors can enter your jurisdiction?

The United States is party to several multilateral and bilateral VWP travellers may enter the United States for up to 90 days. agreements that include provisions for facilitating the movement Business visitors with B-1 visas are initially admitted for up to a of people between countries for employment purposes. The North six-month period, which may be extended. American Free Trade Agreement (NAFTA), an agreement among the United States, Canada and Mexico, provides a schedule of professional occupations that may be filled by Canadian and 2.3 What activities are business visitors able to Mexican citizens seeking to enter the United States with TN (Treaty undertake? NAFTA) status for employment with a US employer. The United States has also entered into bilateral trade agreements Business visitors to the United States may attend meetings, meet with Chile and Singapore that allow for the admission of highly with colleagues or customers, attend conferences, negotiate skilled professionals to be employed by US companies in H-1B1 contracts, engage in litigation, receive short-term training, take status without regard to the annual cap on such professionals under orders for goods to be manufactured outside the United States and the normal H-1B visa category described below. explore investment opportunities. US law provides for admission to the United States of investors, managers, executives and essential-skilled employees in E-1 (treaty 2.4 Are there any special visitor categories which will trader) and E-2 (treaty investor) visa categories based on bilateral enable business visitors to undertake work or provide treaties of navigation between the United States and some 83 services for a temporary period? countries. A list of those treaty countries can be found at https:// travel.state.gov/content/visas/en/fees/treaty.html. To be eligible US State Department guidelines allow for the issuance of “B-1 in for E-1 or E-2 status, the US employer must be majority-owned lieu of H-1B” to allow for individuals who are employed outside the by nationals of the treaty country and the prospective employees/ United States to enter the United States for brief periods to engage investors must share that nationality. in professional activities that would normally require an H-1B visa. Such activities are intended to be brief in nature and no longer than six months.

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2.5 Can business visitors receive short-term training? 4.3 Do the immigration authorities undertake routine inspections of employers who sponsor foreign Business visitors to the United States may receive short-term nationals, to verify immigration compliance? training pursuant to a structured training programme that does not involve productive work other than that incidental to the purpose of The Departments of Homeland Security and Labor actively conduct the training. routine inspections of employers to ensure compliance with any wage and working condition obligations, as well as to confirm the accuracy of information submitted to the US government when

USA 3 Immigration Compliance and Illegal sponsoring such individuals. Working 4.4 Do the immigration authorities maintain a list of skilled occupations which may be filled by foreign 3.1 Do the national authorities in your jurisdiction operate nationals? a system of compliance inspections of employers who regularly employ foreign nationals? US immigration authorities do not maintain a list of skilled The departments of Homeland Security and Labor routinely conduct occupations which may be filled by foreign nationals, with the inspections of employers to ensure compliance with the employer exception of the schedule of professional occupations provided obligations related to wages and working conditions as well as under NAFTA. verification of identity and employment authorisation. 4.5 Is there a recognition that some occupations may be in short supply and do special exemptions apply to 3.2 What are the rules on the prevention of illegal certain sectors and occupations? working?

In general, no. However, the rules for sponsorship of employees US law imposes civil and criminal penalties for employers who for US permanent residence do provide exemption from the knowingly hire or continue to employ unauthorised workers. In required labour market test for certain occupations that are in short addition, US employers must verify the identity and employment supply. Currently, that list includes nurses, physical therapists and authorisation of any employee hired after November 29, 1986. This occupational therapists. verification is made on Form I-9. Failure to complete an I-9 for a new hire also carries civil money penalties. 4.6 Are there annual quotas for different types of employment-related work permits or visas? 3.3 What are the penalties for organisations found to be employing foreign nationals without permission to work? Yes, the H-2B category (seasonal skilled and unskilled workers) is limited to 66,000 annually. The H-1B category (specialty US law provides for both civil and criminal penalties for employers occupation) is limited to 65,000 annually with an additional who knowingly hire or continue to employ unauthorised workers or 20,000 available for holders of US Master’s degrees. E-3 visas for fail to complete Form I-9. Australian nationals are limited to 10,500 annually.

4.7 Are there restrictions on the number of foreign 4 Corporate Immigration – General workers an employer may sponsor, in relation to a maximum percentage of foreign workers in the employer’s workforce? 4.1 Is there a system for registration of employers who wish to hire foreign nationals? Generally, there are no restrictions on the number of foreign workers an employer may sponsor in relation to the percentage of US workers There is no system for registration of employers who wish to hire in the employer’s workforce. H-1B dependent employers (i.e., foreign nationals in the United States. However, a petitioning those with 15% or more of their US workforce in H-1B status) must employer must demonstrate that it is doing business in the United either maintain documentation demonstrating that the H-1B workers States and has the ability to meet any wage and working conditions will not displace US workers and that the employer has recruited for required under US law. and hired any equally qualified US worker or sponsor only holders of a Master’s degree or equivalent level of qualification, and/or at a 4.2 Do employers who hire foreign nationals have salary of $60,000 or more. Moreover, for employers with at least 50 ongoing duties to ensure immigration compliance? US employees, more than 50% of whom hold H-1B, L-1A or L-1B status, the initial petition to grant status to any new H-1B or L-1 Employers who hire foreign nationals in the United States in certain non-immigrant is subject to an additional filing fee of $4,000 (for visa categories must meet obligations related to wages and working H-1B) or $4,500 (for L category) per employee. conditions as well as verification of employment authorisation and identity and maintenance of an employer/employee relationship. 4.8 Are employees who are sponsored to work in your In addition, an employer must ensure the timely extension of non- jurisdiction required to demonstrate language immigrant visa status for employees working temporarily in the proficiency? United States. No, employees who are sponsored to work in the United States are not required to demonstrate English-language proficiency.

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4.9 Are employees who are sponsored to work in your 7 Temporary Work Permits jurisdiction required to undergo medical examinations before being admitted? 7.1 Is there an immigration category permitting the hiring of temporary workers for exchanges, career Only those individuals seeking to immigrate to the United States development, internships or other non-economic are required to undergo a medical examination. This does not apply purposes? to temporary workers; however, an individual convicted of driving while intoxicated (DWI) or driving under the influence (DUI) must Yes. The J-1 (exchange visitor) visa category provides for trainees undergo a medical assessment even for a temporary visa. or interns to participate in formal training programmes in the USA United States as part of a cultural exchange administered by the 4.10 Are employees who are sponsored to work in your US Department of State. Such training programmes are typically jurisdiction required to have medical insurance or are limited to an 18-month period, following which the J-1 visa holder they entitled to any free public medical services? is expected to return to his or her home country. If the programme is sponsored by the US government or the visa holder’s government US immigration law does not impose an insurance requirement as a or the subject of the training is listed on a skills shortage list, US condition of sponsorship. In the H-1B category, however, a sponsoring law imposes a two-year home residency requirement before the J-1 employer must provide benefits to visa holders comparable to those visa holder is permitted to reenter the United States in certain visa provided to its US employees. Such benefits may include health categories or for permanent residence. insurance. Free public medical services are often restricted to US The H-3 visa allows foreign nationals to come to the US for up to citizens and permanent residents, depending on jurisdiction. two years as trainees to receive training that is not available in their home country. 4.11 Does the work permit system allow employees who hold work permits to be seconded to a client site? 7.2 Are there sector-specific temporary work permit categories which enable foreign workers to perform US law permits the secondment of temporary employees to client temporary work? sites; however, in the case of H-1B and L-1 workers, the employer must maintain direct supervision over the day-to-day activities of Yes. The United States has sector-specific temporary work permits the seconded employee. for crewmen (C), seasonal agricultural workers (H-2A), journalists (I), athletes/performing artists (P), religious workers (R), and 5 Highly Skilled Visas cultural exchange participants (Q).

5.1 Is there an immigration category which covers highly 8 Group or Intra-Company Transfer Work skilled individuals? Permits

The H-1B visa category is reserved for individuals performing 8.1 Does a specific immigration category exist for inter- in specialty occupations, i.e., those that would typically require a company transfers within international groups of bachelor’s degree or higher in a particular specialty area to perform companies? the work. In addition, the O-1 visa category is reserved for foreign nationals of extraordinary ability in their field. Yes. The L-1 visa category provides for the temporary transfer of intracompany transferees to serve as managers/executives (L-1A) or 6 Investment or Establishment Work specialised knowledge professionals (L-1B) to fill a position with a Permits related company in the United States.

8.2 What conditions must an employing company or 6.1 Is there an immigration category which permits organisation fulfil in order to qualify as part of a group employees to be authorised to work based on of companies? investment into your jurisdiction?

The US company must be related to the foreign company as a Yes, the E-2 visa category (see the response to question 1.3 above) subsidiary, parent, branch or affiliate. is available for nationals of treaty countries making a significant investment in a business in the United States. Though State Department guidance does not specify a particular investment threshold, the 8.3 What conditions must the employer fulfil in order investment may not be marginal, i.e., not calculated merely to generate to obtain a work permit for an intra-company group enough income to support the investor and the investor’s family. employee? The EB-5 immigrant category requires an investment of $1,000,000 (or $500,000 in targeted employment areas) in a new commercial The employee must have worked for the sending company for at enterprise that will create at least 10 permanent, full-time positions least one year prior to the transfer. The company must demonstrate for US workers. If the investment is approved by USCIS, the that it has been doing business in the United States and at least one investor is granted conditional permanent residency. After two foreign jurisdiction for one year or more. There is an exception for years, the investor must demonstrate that the investment was made new businesses. and the 10 jobs were created in order to have the conditions removed and receive full permanent resident status.

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used for employers who wish to obtain work permits for new hires. 8.4 What is the process for obtaining a work permit for an This category is limited to 65,000 visas on an annual basis, plus an intra-company group employee? additional 20,000 holders of US Master’s degrees.

The US Company must file a petition with US Citizenship and Immigration Services (USCIS) requesting approval of the transfer 9.2 Is there a requirement for labour market testing, of an executive/manager or specialised knowledge professional. to demonstrate that there are no suitable resident workers, before a work permit can be issued to new Following approval of the petition, the individual may apply for an hires? L-1 visa at a US consulate or embassy abroad. Larger companies

USA and those that transfer a number of employees on an annual basis A labour market test is not required for the H-1B visa category. may file and receive approval of a blanket L-1 visa petition, which allows the employee to apply directly for a visa at the consulate without the need for an individual petition to be filed with USCIS. 9.3 Are there any exemptions to carrying out a resident labour market test?

8.5 What is the process for the employee to obtain a visa under the intra-company group transfer category? Please see the response to question 9.2 above.

Following the approval by USCIS of an individual petition or in the 9.4 What is the process for obtaining a work permit for a case of a blanket, the visa applicant makes an online application with new hire? the US Consulate or Embassy abroad and schedules an appointment for a visa interview. The visa interview is mandatory and may not The employer must submit a labour condition application (LCA) be waived. to the US Department of Labor and have it certified. In the LCA, the employer attests to its agreement to comply with certain 8.6 How long does the process of obtaining the work requirements relating to wages and working conditions. The LCA permit and initial visa take? must be posted in the worksite for at least 10 business days. The LCA must then be submitted along with a petition to USCIS for its Under a premium processing programme for which USCIS charges review and approval, followed by visa stamping at a US consulate or a fee, the agency guarantees a turnaround within 15 days. Typical Embassy abroad. USCIS regulations allow for change of employer waiting time for a visa interview is seven to 10 days followed by a petitions to be filed for individuals working in H-1B status in the processing time of three to five days. United States.

8.7 How long are visas under the “initial” category valid 9.5 What is the process for the employee to obtain a visa for, and can they be extended? as a new hire?

The initial L-1 visa is issued for a period of up to three years which Please see the responses to questions 8.4 through 8.6 above. may be extended up to a maximum stay of seven years for managers/ executives and five years for specialised knowledge individuals. 9.6 How long does the process of obtaining the work permit and initial visa for a new hire take? 8.8 Can employees coming under the intra-company transfer route apply for permanent residence? The processing of an H-1B petition can take several months as premium processing is not currently available for H-1B petitions. Yes. Employers of managers/executives may seek their admission for permanent residence without the need for conducting a labour 9.7 How long are initial visas for new hires granted for market test to identify qualified and available US employees to fill and can they be extended? the position. Employers of specialised knowledge individuals must conduct such a labour market test and request certification from the The initial period of stay authorised for an H-1B visa holder is US Department of Labor before proceeding with sponsorship for three years, which can be extended for an additional three years. permanent residence. Further extensions of stay are available for H-1B visa holders being sponsored for permanent residence. 8.9 What are the main government fees associated with this type of visa? 9.8 Is labour market testing required when the employee extends their residence? The fee for the L-1 visa petition is $460, plus a fraud prevention and detection fee of $500. A labour market test is not required for the employee to extend status. 9 New Hire Work Permits

9.9 Can employees coming as new hires apply for 9.1 What is the main immigration category used for permanent residence? employers who wish to obtain work permits for new hires? Yes. H-1B employees may be sponsored for permanent residence.

The H-1B (specialty occupation) is the main immigration category

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9.10 What are the main government fees associated with 11.4 Do children have access to the labour market? this type of visa? Children of visa holders do not have access to the labour market The fee for the H-1B visa petition is $460, plus a training fee of unless they are applying for permanent residence. $750–$1,500 depending on the size of the business and a fraud prevention and detection fee of $500. 12 Permanent Residence

10 Conditions of Stay for Work Permit USA Holders 12.1 What are the conditions for obtaining permanent residence?

10.1 What are the conditions of stay of those who obtain In most cases, sponsorship for permanent residence by an employer work permits and are resident on this basis? requires the employer to test the US labour market for qualified and available US workers to fill the position and a certification by the The employee must remain employed by the sponsoring company in Labor Department that no such US workers were identified. In the the location and under the conditions specified in the visa petition. case of an intracompany transfer of a manager or executive, the labour market test and labour certification are waived. This is also true of an applicant for permanent residence who can demonstrate 10.2 Are work permit holders required to register with municipal authorities or the police after their arrival? extraordinary ability in their field. Persons of extraordinary ability in their field, outstanding researchers and individuals whose immigration would serve the national interest are also exempt from Work permit holders are not required to register with municipal the labour market test. authorities or the police after their arrival in the United States.

12.2 Is it possible to switch from a temporary work visa to 11 Dependants a work visa which leads to permanent residence?

Yes, in most cases a sponsored employee may switch from temporary 11.1 Who qualifies as a dependant of a person coming to work on a sponsored basis? work visa, e.g., H, L, O or P, to permanent residence.

Dependent family members include the spouse of the sponsored 13 Bars to Admission visa holder as well as children under the age of 21 years.

13.1 What are the main bars to admission for work? 11.2 Do civil/unmarried or same-sex partners qualify as family members? Applicants for admission to the United States may be deemed Cohabitating partners are not considered dependents for purposes inadmissible for communicable diseases, criminal records, security of obtaining an independent visa; however, partners may obtain concerns, and previous violations of immigration status, among business visitor visas to accompany the sponsored employee to the other grounds. Waivers of such grounds of inadmissibility may be United States. available for non-immigrants and immigrants.

11.3 Do spouses and partners have access to the labour 13.2 Are criminal convictions a bar to obtaining work market when they are admitted as dependants? permission or a visa?

Spouses with L-2 and E-2 dependent status may apply for Criminal related grounds of inadmissibility include convictions employment authorisation upon their arrival in the United States. for crimes involving moral turpitude (e.g., theft, fraud, crimes This benefit does not apply to unmarried partners. of violence) multiple criminal convictions, controlled substance violations, and prostitution. DUI is not a criminal ground of inadmissibility, but will normally require a medical assessment before a visa may be issued.

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Paul W. Virtue Elizabeth Espín Stern Mayer Brown, LLP Mayer Brown, LLP 1999 K. Street, N.W. 1999 K. Street, N.W. Washington, D.C. 20006 Washington, D.C. 20006 USA USA

Tel: +1 202 263 3875 Tel: +1 202 263 3825 Email: [email protected] Email: [email protected] URL: www.mayerbrown.com URL: www.mayerbrown.com USA

Paul Virtue is a partner in the Employment & Benefits group focusing Elizabeth Espín Stern, a partner in Mayer Brown’s Washington, D.C. on global immigration and mobility issues. He is based in Mayer office, leads the firm’s Global Mobility & Migration practice, which Brown’s Washington, D.C. office where he represents clients ona forms part of the Employment & Benefits group. She is a seasoned broad range of employment-related immigration and compliance veteran, advising on US and global immigration, HR and mobility issues. He has more than 30 years of experience in immigration services. She is consistently ranked as a leading business immigration law and related policy, regulatory, and legislative areas. He advises lawyer by Chambers Global, Chambers USA, Who’s Who Legal, The clients on a full range of employment-related immigration, worksite International Who’s Who of Business Lawyers, and national and local compliance and policy issues. publications. In addition, she has been named in Best Lawyers in America, Super Lawyers and “Women in Law Awards 2014” by Lawyer Prior to entering private practice, Paul served as general counsel Monthly and named one of National Law Journal’s “Outstanding of the US Immigration and Naturalization Service (INS). As general Women Lawyers 2015”. She spearheads Mayer Brown’s new global counsel, Paul was the agency’s chief legal officer supervising a worksite management initiative. This “Global People Solution” offers nationwide litigation staff of more than 600 lawyers and providing legal multinational clients, in a variety of sectors including financial services, and policy advice to the INS Commissioner and senior officials, the IT, defence, telecommunications and multimedia, a comprehensive Attorney General, the White House, and other federal agencies on compliance and risk management programme in connection with their issues under INS jurisdiction. mobile workforce. Liz regularly speaks and writes about immigration policies and contributes to major news agencies and publications, including Law 360, Quartz.com, Global Business News and a host of global HR publications.

Mayer Brown’s Global Mobility & Migration team manages not just visa and work permit authorisations, but the full gamut of global mobility issues that our clients face on a daily basis. We provide our clients with the oversight they require to run an efficient business and the confidence that comes of knowing that their compliance needs are covered. To thrive in today’s economy, the most enterprising and successful businesses depend on a global – and increasingly mobile – workforce. In a given year, a company may transfer dozens or even hundreds of personnel to new work venues, both domestic and international. To coordinate such moves, companies must contend with a web of local, national or international regulatory requirements, visa and work permit bureaucracies, complex tax regimes, and a host of other legal and compliance challenges. Our clients include small and mid-size companies or start-ups that are dipping their toe into international waters for the first time, as well asFortune 500 companies with upwards of 10,000 employees who regularly travel and work internationally. For large organisations, overseas assignments can require hiring or relocating employees to and from a dozen or more countries. In addition to serving businesses of all sizes, we have substantial experience advising celebrities and high-net-worth individuals on their immigration needs, including individuals contending with complex relocation challenges, such as potential exclusion from a destination country. Clients of all types turn to our Global Mobility & Migration team because of our long list of achievements in this area and because of our reputation for world-class counsel on legal and regulatory matters that are of paramount importance to their success.

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