Immigration Global Newsletter: February 2015 FEATURE ARTICLES: EU BLUE CARDS: BELGIUM, FRANCE, ITALY –This article provides an overview of three countries’ policies on EU Blue Cards. VANDER ELST IMPLEMENTATION IN THE EUROPEAN UNION – This article provides an overview of Vander Elst implementation in several countries. COUNTRY UPDATES: 1. BRAZIL – The Mercosur Agreement on residence is implemented for Ecuadorians. Brazil also issued a new Service Order on time of service for a foreign company. 2. CANADA – Canada’s new “Express Entry” permanent residence immigration process is now open to applications. Also, a new immigrant investor venture capital pilot program is expected to be launched soon. 3. CHINA – The United States and China reach agreement to extend visas for short-term business travelers, tourists, students, and exchange visitors. Also included, Handling Procedures Related to Entry of Foreigners for Short-term Work Tasks 4. FRANCE – New work permit forms are effective January 1, 2015. 5. INDIA – India has issued a new electronic visa. 6. ITALY – The Italian government has released new quotas for apprenticeship and internship programs. Also, failure to report presence in Italy will now result in fines. The Italian government has also released new quotas for subordinate work and autonomous work. 7. MEXICO – The new “Temporary Migration Regularization Program” took effect January 13. 8. POLAND – Poland regards special economic zones as an important instrument to stimulate foreign investment in Poland. There are new investment opportunities in Polish real estate 12 years after Poland’s accession to the EU. 9. RUSSIA – Various developments have been announced. 10. UNITED KINGDOM – Several developments have been announced. ALSO IN THIS ISSUE: New Publication Member News FEATURE ARTICLES: EU BLUE CARDS: BELGIUM, FRANCE, ITALY The Blue Card is used throughout the European Union (EU) as a work permit for high-skilled, non-EU persons. The idea is to improve the EU’s ability to attract highly qualified workers from other countries. This article provides an overview of three countries’ policies on EU Blue Cards. Belgium In Belgium, the EU Blue Card threshold for the annual gross salary is set at €51,465 for 2015 (this amount is adjusted every year on the basis of a formula linked to an index reflecting the cost of living). The annual gross salary for the Brussels region is €51,466 for 2015. The employee must be the holder of a degree from a higher education institution, which is recognized as such in its country. The degree can be a degree, certificate, or other document confirming that a higher education program with a duration of at least three years has been successfully completed. Professional qualifications are not taken into account. The Blue Card has not yet become a success in Belgium. If both the conditions for obtaining temporary employment authorization in the framework of the Blue Card and the conditions for obtaining employment authorization for a highly skilled worker in the framework of the work permit B are fulfilled, the employer can choose which option to follow. One may be tempted to apply for a highly skilled work permit B because of the lower threshold and the faster processing time (two to three weeks). France France has created a new immigration category by implementing the EU Blue Card directive, to attract skilled workers from third countries and facilitate their mobility and permanent residence within the EU. Law no. 2011-672 of June 16, 2011, had set up the legal framework for creation of the EU Blue Card in French national legislation. Decree no. 2011-1049 of September 6, 2011, provided implementation regulations. The qualifying criteria are in accordance with the criteria stated in the EU directive: (1) An employment contract with a duration of one year or more. (2) 1.5 times the average salary of reference. Today this threshold salary amounts to €52,750,50. (3) A three-year higher education diploma or equivalent knowledge gained through five years of experience. A qualifying third country national is issued a joint residence and work permit for the length of employment, with a maximum validity of three years, renewable. An accompanying spouse is issued a Private and Family Life category work permit, renewable annually for as long as the main applicant has a valid Blue Card permit. - 2 - The Blue Card is also issued to a third country national who already holds a Blue Card issued by another member state and wants to accept employment in France after 18 months of residence under the initial Blue Card. The application is made within one month of arrival in France. The applicant need not present a long-stay French visa. The Blue Card permit is issued without labor market testing. A Blue Card holder and his or her spouse can qualify for the EU long-term resident permit after five years of residence under the Blue Card in the EU, of which only the last two years must be in France. French authorities have up to 90 days to adjudicate the Blue Card application and up to 6 months to adjudicate the accompanying spouse residence permit. What Has the Blue Card Changed? There were two immigration categories available before the Blue Card for skilled workers: (1) the Skills and Talents work permit and (2) the Intra-Company Transfer work permit. Both of these categories have been maintained along with the Blue Card. The Skills and Talents work permit is adjudicated on a case-by-case analysis of the merits of the application. The selection criteria may vary in time and are determined by a commission. An employment contract is not a requisite. The Intra-Company Transfer permit is appropriate in the framework of a transfer of an employee within the same corporate group. It does not apply to a new hire. As with the Blue Card permit, these two permits are valid for three years, renewable. The advantages of the Blue Card are: • It does not require an intra-company prior employment. • Renewal may be easier. • Mobility within EU is facilitated. • Acquisition of long-term resident status is facilitated. • The qualifying criteria are very precise (leaving less room for the discretion of the government). The Blue Card is very good news for skilled third-country nationals who are unable to qualify under the existing categories. Italy Blue Card Directive implementation in Italy has made it possible for Italian companies to hire non-EU nationals—provided that they are highly specialized—without being subject to the numerical restrictions set forth in immigration law for all other categories of workers. To apply for a Blue Card permit in Italy, the worker must be offered a minimum salary of €25,500 per year (gross). The worker’s diploma is not only legalized at the Italian consulate but also “validated” (i.e., the consulate must check university transcripts and in some cases also high school). This makes processing time longer than in other EU countries. - 3 - VANDER ELST IMPLEMENTATION IN THE EUROPEAN UNION This article provides an overview of Vander Elst implementation in several countries. The Vander Elst process derives from a 1994 ruling by the European Court of Justice regarding the right of a European Union (EU) company to provide services within the EU. It generally allows a non-European Economic Area (EEA) national who is legally employed by a company in an EU country to provide services on a temporary basis to a company in another EU country on behalf of his or her employer without the need to obtain a work permit. A further judgment was delivered in 2006 (Case C-244/04) regarding whether or not the non-EEA employee should have an employment history for a specific duration of time with his or her employer. The 12 months being imposed by some countries was considered disproportionate. However, as the court did not suggest what period of employment might be acceptable, a minimum period is not required before posting an employee to the State for the purpose of providing a service for a limited period. Belgium If certain conditions are met, no work permit is required for non-EEA employees employed by a company established in an EEA Member State that provides services in Belgium. Under Belgian law, the Vander Elst work permit exemption can be invoked for non-EEA employees who are entitled to reside in the EEA member state of their residence for more than three months. The employees must also be lawfully employed in the EEA member state of their residence. This implies that they have a work permit, valid for the duration of the work to be performed in Belgium, as well as a regular employment contract. The foreign employees must hold passports and residence permits, valid up to the duration of the work in Belgium, to guarantee their return to their countries of origin or residence. There is no seniority requirement for the employees with the sending companies. The sending EEA company (for audits) and/or the employee (for visa applications, or for registration for residence purposes) must be able to prove that the Vander Elst exemption applies. In practice, the interpretation of the words “provide services” can be an issue. Most authorities require that the work in Belgium be performed on the basis of a direct contract between the sending EEA company and the Belgian company. The employee may encounter difficulties when registering for long-term residence on the basis of the Vander Elst work permit exemption. It can be a challenge to convince municipal authorities that the exemption applies. France France recognizes the treaty rights on delivery of service from a business in a member state to a client located in France.