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