Garfinkel Immigration Law Firm

Outbound Visa Solutions

Garfinkel Immigration Law Firm assists multinational companies with their immigration matters by coordinating outbound visas for employees.

For more resources and help determining the appropriate visa, visit www.outboundvisasolutions.com.

Contact:  Jennifer L. Cory at jennifer.cory@garfinkelimmigration.com with questions.

Our firm has over a decade of experience in obtaining visas for international transfers.  We understand when to contact local counsel and when to process the visa from within the U.S. We understand that each country has its own set of immigration requirements and that those requirements differ depending on the purpose of the stay, its anticipated duration and the employee’s nationality.  Our attorneys work frequently work closely with in-house counsel, relocation specialists, and human resources professionals to develop an outbound immigration that works well for the employer and their employees.

As with U.S. immigration law, a myriad of categories of temporary work permits or temporary work visas for foreign nationals are available and vary from country to country. Typically, two to three government ministries or agencies are involved in the temporary work permit process.  Favored treatment often exists for international intra-company and affiliate cross-border transfers of key personnel. Our firm can help determine what temporary work permit and visa options are most appropriate for newly hired international workers, the procedures used to obtain a temporary work permit and the conditions or restrictions that apply to the sponsoring employer and employee beneficiary.  For those workers seeking permanent residence abroad, we can help determine the best methods for a successful outcome understanding that countries may give special consideration for persons of certain nationalities.

Please contact our firm to further discuss proceeding with your outbound visa matter.

Belgian Corporate Immigration

Since September 2009 when the last update on Belgian corporate immigration was published in the ABIL Immigration Insider, Belgian regulations regarding corporate immigration have not been subject to many changes, and the global economic crisis has not led to a change in Belgian corporate immigration legislation.

The rules on the most common work permit, particularly the fast-track work permit B for non EEA highly skilled and executive-level personnel, are summarized below.

1. A fast-track work permit (meaning no resident labor is required) can still be obtained for, among others, highly skilled personnel and executive-level personnel earning a yearly gross salary exceeding a threshold, adapted on a yearly basis:

- To be considered highly skilled, a foreign employee must have received higher education resulting in a degree, and the yearly gross salary must exceed EUR 36,355 (amount for 2010)/EUR 36,604 (amount for 2011);

- Executive-level is legally defined as “the people in charge of the daily management of the company, who are authorised to represent and to bind the employer, as well as personnel, immediately under the authority of the people in charge of daily management, if they also carry out tasks of daily management.”   The yearly gross salary must exceed EUR 60,654 (amount for 2010)/EUR 61,071 (amount for 2011).

This fast-track work permit, valid for one year and renewable, is available for employees who meet the above conditions, regardless of whether they are seconded.

It is important to determine what is considered salary:

- Pursuant to Belgian labor law rules, all amounts (e.g., gross wages, commissions, bonuses, premium at the end of the year, single and double holiday pay) paid in consideration for the employee’s work are considered salary;

- Cost-of-living allowances (COLA) (allowances to compensate costs of life in Belgium and/or allowances that aim to reimburse exceptional disbursements, not foreseeable in the employment contract, such as moving costs or school costs) are not considered salary because they do not enrich the employee.

The processing time may vary depending on the place of employment in Belgium (Brussels, Flanders or Wallonia). However, the fast-track work permit can be processed within a short period. Unless the authorities decide they need additional information and/or documentation, the average processing time is two to three weeks. There are no filing fees.

2. Dependents can join a non-EEA work permit holder in Belgium. Spouses and children under 18 are entitled to residence in Belgium. Common-law partners of work permit holders also may be eligible to join their partner in Belgium:

- A “registered partnership, equivalent to marriage in Belgium” entitles a partner to residence in Belgium. The age threshold is 21 or, exceptionally, 18 years. At present, only registered partnerships from Denmark, Finland, Germany, Iceland, Norway, Sweden, and the United Kingdom qualify;

- Non-EEA common law partners may also cohabitate in Belgium provided (i) they enter into a registered partnership in Belgium, (ii) they have a “duly documented durable and stable relationship” for at least one year, (iii) they are both older than 21 (or 18) years, and (iv) they are both neither married nor involved in a durable relationship with another person.

The durability/stability of a relationship may be established as follows:

- The partners can prove they have been living together, prior to the application, for at least one year (i) uninterrupted, (ii) legally, and (iii) in Belgium or abroad; or

- The partners can prove they (i) have known one another for at least one year, (ii) have had frequent contact (by phone, mail, or e-mail), and (iii) have met at least three times before filing the application and that these meetings, all together, took at least 45 days;

or

- The partners have a child together.

Proof of sufficient housing in Belgium (registered lease contract or proof of ownership of the house) as well as comprehensive health insurance are required to be entitled to residence as a non-EEA common-law partner.

3. If a common-law partner is entitled to join his or her partner who holds a Belgian work permit, he or she is eligible for a fast-track work permit, as are spouses.

As a matter of fact, a spouse of a non-EEA national who holds a Belgian work permit is eligible for a fast-track work permit. Circular Letter of 17 December 2008 clarifies that the reference to “spouse” also includes “registered partners,” who are entitled to reside in Belgium.

India Changes Work-Related Visa Rules

In an effort to protect India’s lesser skilled workers and attract highly skilled foreign workers, the Indian Ministry of Home Affairs (MHA) has issued an order and released a new FAQ (frequently asked questions) document stating that employment visas are intended for foreigners desiring to come to India to work if the applicant is a highly skilled and/or qualified professional engaged or appointed by a company, organization, or industry undertaking in India on a contract or employment basis.

Employment visas will not be granted for positions for which qualified Indians are available, the FAQ states. Also, employment visas will not be granted for “routine, ordinary or secretarial/clerical jobs.” The foreign national must seek to visit India for employment in a company, firm, or organization registered in India or for employment in a foreign company, firm, or organization engaged in the “execution of some project in India.” Further, the FAQ states, the foreign national being sponsored for an employment visa in any sector should draw a salary above US $25,000 per year, with the exception of ethnic cooks, language teachers (other than English) and translators, and staff working for the “concerned Embassy/High Commission in India.”

The MHA also has announced the elimination of the prior maximum of 1% of the total workforce, or up to 20, for each Indian company that sponsors foreign workers.
The employment visa must be issued from the country of origin or country of domicile of the foreigner, provided the period of permanent residence of the applicant in that country is more than 2 years.

Documentation pertaining to the proposed employment, such as registration of the company under the Companies Act, proof of registration of the firm in the State Industries Department or the Export Promotion Council concerned, or any recognized promotional body in the field of industry and trade, will be reviewed to decide the category of visa that may be issued.

The name of the sponsoring employer or organization must be clearly stipulated in the visa sticker.

The following categories of foreign nationals are also eligible for employment visas provided they meet the basic conditions for an employment visa:

1. Foreign nationals coming to India as consultants on a contract for whom the Indian company pays a fixed remuneration (this may not be in the form of a monthly salary).
2. Foreign artists engaged to conduct regular performances for the duration of an employment contract given by hotels, clubs, or other organizations.
3. Foreign nationals coming to India to take up employment as coaches of national or state-level teams or reputed sports clubs.
4. Foreign sportsmen who are given contracts for a specified period by Indian clubs or organizations.
5. Self-employed foreign nationals coming to India for providing engineering, medical, accounting, legal or other such highly skilled services in their capacity as independent consultants, provided the provision of such services by foreign nationals is permitted under law.
6. Foreign language teachers and interpreters.
7. Foreign specialist chefs.
8. Foreign engineers or technicians coming to India to install and commission equipment, machines, or tools under the terms of a contract for the supply of such equipment, machines, or tools.
9. Foreign nationals deputed for providing technical support or services, or transfer of know-how or services, for which the Indian company pays fees or royalties to the foreign company.

Regarding the duration of the employment visa, the rules have different validity dates depending on the employment arrangement. These are summarized as follows:

1. A foreign technician/expert coming to India under a bilateral agreement between the Indian government and the foreign government, or pursuant to a collaboration agreement that has been approved by the Indian government, may be granted a multiple employment visa for the duration of the agreement, or for a period of five years, whichever is less.

1. Highly skilled foreign personnel being employed in the IT software and IT-enabled sectors may receive a multiple entry employment visa with a validity of up to three years or for the term of assignment, whichever is less.

Applicants who are not covered under any of these two arrangements may obtain a multiple entry employment visa for up to two years or the term of assignment, whichever is less.

Finally, the rules provide for extensions beyond the initial visa validity period, up to a total period of five years from the date of issue of the initial employment visa, on a year-to-year basis, subject to the individual’s good conduct, production of necessary documents in support of continued employment, filing of income tax returns and to there being no adverse security inputs relating to the foreign national. The period of extension shall not exceed five years from the date of issue of the initial employment visa.

Canadian Regulatory Changes Will Affect Canadian Employers, Temporary Foreign Workers

Various changes to Canada’s Immigration and Refugee Protection Regulations will take effect on April 1, 2011, affecting both Canadian employers and their temporary foreign workers.

These changes are intended to:

1. Reduce the opportunity for exploitation of temporary foreign workers by employers and third-party agents;
2. Ensure greater employer accountability mechanisms, including a denial of service provision, thereby encouraging greater adherence by employers to the terms and conditions of their job offers with respect to wages, working conditions and occupations; and
3. Clarify that employment facilitated through the Temporary Foreign Worker Program is meant to be temporary in nature.

The changes include:

Rigorous assessment of the genuineness of the employment offer.

The amendments establish specific factors to assess the genuineness of an employer’s offer of employment to a foreign worker both in Labour Market Opinion (LMO) cases and in LMO-exempt cases.

These factors include:

• Whether the offer is made by an employer that is actively engaged in the business with respect to which the offer is made;
• Whether the offer is consistent with reasonable employment needs of the employer;
• Whether the terms of the offer are terms that the employer is reasonably able to fulfill; and
• The past compliance of the employer, or any person who recruited the foreign national for the employer, with the federal or provincial laws that regulate employment, or the recruiting of employees, in the province in which it is intended that the foreign national work.
• Ban on employers for noncompliance with a previous LMO. The amendments will render an employer ineligible to seek a work permit on behalf of a foreign worker unless, during the period beginning two years before the initial request for an LMO is made to Service Canada or, in the case of an LMO-exempt work permit, beginning two years before the work permit application is received by Citizenship and Immigration Canada (CIC) or the Canada Border Services Agency (CBSA):
• The employer provided each of its foreign workers with wages, working conditions and employment consistent with the wages, working conditions and occupation set out in the employer’s offer of employment; or the failure to do so was justified.

Justifications include:

• A change in federal or provincial law;
• A change in the provisions of a collective agreement;
• The implementation of measures by the employer in response to a dramatic change in economic conditions that directly affected the employer, provided that the measures were not directed disproportionately at foreign nationals employed by the employer;
• An error in interpretation made in good faith by the employer with respect to its obligations to a foreign national, if the employer subsequently provided compensation or made sufficient attempts to do so to all foreign nationals who suffered a disadvantage as a result of the error;
• An unintentional accounting or administrative error made by the employer, if the employer subsequently provided compensation or made sufficient attempts to do so to all foreign nationals who suffered a disadvantage as a result of the error; or
• Circumstances similar to those set out above.
• The assessment is undertaken when a new LMO is requested or, in the case of an LMO-exempt work permit application, when the work permit application is received by CIC/CBSA. Employers must review all LMO applications to ensure compliance during the two-year period preceding April 2011. An internal immigration audit is recommended.
• List of banned employers posted on CIC Web site. The amendments authorize CIC to maintain a list of banned employers on its Web site, listing the names and addresses of each employer and the date that the determination was made. Service Canada will not issue an LMO and CIC/CBSA will not issue a work permit for any employer on the list.
• Four-year cap for most temporary foreign workers. The amendments provide for a cumulative four-year cap for most foreign workers. However, exemptions from the four-year cap exist in the following situations:
• The foreign worker intends to perform work that would create or maintain significant social, cultural or economic benefits or opportunities for Canadian citizens or permanent residents. Therefore, work permits based on LMO exemptions, such as significant benefit to Canada and intra-company transferees, along with other LMO exemptions, will be exempt from the four-year cap.
• The foreign worker intends to perform work pursuant to an international agreement between Canada and one or more countries. Work permits issued under international agreements such as the North American Free Trade Agreement, the General Agreement on Trade in Services, the Canada-Chile Free Trade Agreement, or the Peru Free Trade Agreement will be exempt from the four-year cap.
• A foreign worker who has reached the four-year cap is not necessarily required to leave Canada. However, the foreign worker would not be eligible for a work permit even under another category. He or she may be permitted to apply for status under a non-work category such as that of a visitor or student.

UK Limits Migrants

The United Kingdom (UK) announced on June 28, 2010, that it will introduce limits on the numbers of non-European Union (EU) migrants coming to the UK under both the highly skilled and the sponsored routes of the Points Based System (PBS). The new Coalition Government’s main immigration policy will mark the first-ever numerical limits on employment-related migration, which historically has been market-driven. The limits are a response to the levels of net migration to the UK, which have increased significantly since 2004 with the enlargement of the EU.

On July 19, 2010, the Government also introduced an interim limit, in effect until April 2011, aimed at reducing the number of certificates of sponsorship that each employer may assign to migrant workers under Tier 2 (General) and reducing the number of visas issued under the Tier 1 highly skilled category. Many employers, who had been allocated these certificates when they registered as licensed sponsors under the scheme, have had their allocation reduced significantly (in some cases to zero) and must now make requests for additional allocations of certificates, which the UK Border Agency states will be approved only “in exceptional circumstances.”

The interim cap is already the subject of a legal challenge. With those extending their status in the UK given priority within the limits, employers who have paid to be licensed sponsors and have taken on significant compliance duties are now left with uncertainty about whether they can sponsor new hires from outside the EU.

Permanent limits will be introduced in April 2011. The UK government is undertaking a consultation process on how the limits should be imposed and, in particular, whether this should be on a first-come, first-served basis and whether intracompany transferees and family members should be included in the overall limit. For the points-based highly skilled route, a system of pooling, under which the highest-scoring applicants are picked from the pool each month, is also being considered.
There are significant concerns among major UK business groups and companies that the limits will damage the UK’s reputation as a place to do business and its competitiveness in the global economy.

Temporary Business Visas in Peru

To visit Peru to carry out business activities, some aspects of the consular temporary business visa must be taken into account. The temporary business visa enables foreign citizens to perform activities typical of a businessperson in Peru.

The Peruvian “Aliens Law” defines “Business” migratory status as:

Business: Those who come to the country with no intention to reside and in order to perform business, legal or similar arrangements. They are permitted to sign contracts or settlements. They cannot perform remunerated or profit-making activities or earn any income from a Peruvian source, except for fees as directors of companies domiciled in Peru or fees as lecturers or international consultants by virtue of a service agreement. Such service agreement shall not exceed thirty (30) consecutive or accumulated calendar days, within a period of twelve (12) months.

The maximum period of authorized stay for a consular temporary business visa is 183 calendar days, non-extendable internally in Peru.

The consular temporary business visa must be obtained in a Peruvian consulate abroad, complying with the requirements established by the pertinent consulate; i.e., the consulate where the foreign citizen resides or, in absence of a consulate in the city of residence, one nearby.

This type of visa and migratory status allows a foreign citizen to carry out activities in Peru common to a businessperson, not a worker. A temporary business visa does not authorize rendering subordinate services as an employee (worker) of a local company or as an appointed worker of a company abroad.

Permitted activities with a business visa include:

• Performing business arrangements

• Performing legal or similar arrangements

• Attending business meetings or discussions with Peruvian affiliates or related companies

• Attending sales calls to potential Peruvian clients, provided the alien represents a commercial entity outside Peru

• Observing operations of a Peruvian affiliate or client

• Attending “fact-finding” meetings with a Peruvian affiliate or clients

• Attending seminars

• Signing documents, contracts, or settlements

• Acting as an international lecturer or consultant

• Acting as a director of a company domiciled in Peru

• Collecting data or information regarding investments and similar activities

• Supervising business or investments

A business visa does not allow the holder to perform labor activities in Peru or to earn income from a Peruvian source. Training or acting in an advisory capacity does not qualify as a business, legal, or similar arrangement.

In sum, if any foreign company is considering sending some of its employees to carry out business activities in Peru as businesspersons, they must enter Peru on a consular temporary business visa according to Peru’s Aliens Law.

Germany/Europe Immigration Update

German residence and work permit regulations are a genuinely complex matter. Therefore, regulations have to be carefully observed when conducting international transfers. Even if the German labor market is basically still affected by the so-called ban on recruitment (i.e., the categorical ban on the recruitment of foreign employees), in practice foreign workers can be employed under certain circumstances.

In particular, the employment of highly qualified staff is facilitated in numerous ways. Nevertheless, there is a considerable accumulated need against the background of intensified global competition for the most qualified labor. Therefore, for example, the earnings level for executives and the highly skilled, which has been 86.400 € per year (until December 31, 2008) and presently amounts to 66.000 € per year (as of January 1, 2010), should be reduced further to enable medium-sized companies to employ such labor to a larger extent. There is also hope because of the intended omission of the examination of the labor market for engineers from the new EU member states.

Because Germany had elections in September 2009 resulting in a new coalition government between the Christian Democrats (CDU) and the Free Democratic Party (FDP), further reforms or amendments of the existing laws on a larger scale are unlikely in the short- to midterm. Further developments remain to be seen.

In the meantime, the following excerpt from the coalition agreement may give a hint of the route the government is likely to take:

We want to increase the attractiveness of Germany for highly qualified staff and steer immigration to Germany. Administrative barriers must be reduced for qualified staff. Access for highly qualified foreigners and foreign experts must be adjusted to the requirements of the German labor market and structured according to coherent, clear, transparent, and weighted criteria based on need, qualification, and integration potential. In addition, we plan to review the regulations on self-employment, jobs for students with a German university degree, jobs for artists, athletes, and seasonal workers; and to strive for simplification. [Translated, edited.]

The same applies at the European Union (EU) level, where the EU “Blue Card,” which had been put up for discussion in 2007, was recently adopted in May 2009 (Council Directive 2009/50/EC on the conditions of entry and residence of third-country nationals for the purposes of highly qualified employment; May 25, 2009). The EU Commission, with particular emphasis on work and residence permits for highly qualified employees from third countries (non-EU), intends to increase the competitiveness of the European economy via the Blue Card. The Blue Card is expected to attract experts to Europe instead of the U.S., Australia, or Canada. According to an analysis by the EU, the latter have been the preferred work countries until now.

The EU Commission wants to introduce a simplified, accelerated, and EU-standard admission process for persons who have special professional qualifications, an employment contract with a company based in the EU, and earnings at least triple the national minimum wage. By means of the Blue Card, highly qualified staff will be granted a residence and work permit that includes special rights; e.g., if accompanied by family members. The directive is intended to encourage further mobility within the EU of highly qualified individuals.

It acknowledges labor shortages and so its provisions are intended to:

foster admission and mobility - for the purposes of highly qualified employment - of third-country nationals for stays of more than three months, in order to make the [EU] Community more attractive to such workers from around the world and sustain its competitiveness and economic growth.

To reach these goals, it is necessary to facilitate the admission of highly qualified workers and their families by establishing a fast-track admission procedure and by granting them equal social and economic rights as nationals of the host Member State in a number of areas. It is also necessary to take into account the priorities, labor market needs and reception capacities of the Member States.

Work Permits for Turkey

Turkey’s Ministry of Labor and Social Security released a communiqué on July 28, 2010, regarding criteria to be considered in adjudicating work permits.

The communiqué is pursuant to Article 13 of the Implementation Regulation on the Foreigner’s Work Permit Code (#4817). It is unprecedented for the Ministry to publicly announce concrete details of adjudication factors.

The Ministry indicates in the communiqué that in adjudicating work permits, the following criteria must be met:

1. New 5:1 Ratio: There must be at least five Turkish citizen employees per foreign national applicant, as evidenced on payroll records.

a. (Exception: Newly established legal entities can be founded by a foreign individual. If such an investor owns at least 20 percent (but amounting to no less than Turkish Lira/TRY 40,000 - the current exchange rate is 1.5 TRY to 1 USD) worth of shares of the entity and, within 6 months, the five-employee criterion can be met, a work permit may be approved for the foreign partner/investor.)

2. Capital requirements: The employer’s paid in capital must be at least TRY 100,000. In the alternative, the employer may show gross (assumedly annual) sales amounting to TRY 800,000, or exports with a gross annual value of US $250,000.

a. (Exception: In the case of a nonprofit or private employer, criterion #2 will not apply.)

3. Salary: The foreign employee’s salary must be commensurate with the position offered. More specifically, certain managers, pilots, and engineers/architects and teachers cannot be paid less than a specified amount times the minimum wage. (Gross minimum wage is TRY 760.50 for the period of July 1, 2010, through December 31, 2010.) All others must be paid at least 1.5 times the minimum wage.

The communiqué offers guidance on other professions and workplaces as well.

Additionally, issued in the Official Gazette on July 31, 2010, were changes to the “Application Regulation of Law No. 4817 Related to Work Permits for Foreigners.”

The two most significant amendments specify:

1. Online filing: Work Permit applications must be filed online. The signed application form and supporting documents must be sent to the Ministry within 6 business days from the online application date.

2. Employer’s finances: The Ministry now again requires the prior year’s profit-and-loss statement and balance sheet approved by the certified financial advisor or Tax Office. (This reverses a decision in February 2010 to no longer require them in most cases.)

2010 has seen an unprecedented level of change in Turkish immigration law, both in procedures and details of adjudication criteria. Late in the year, the implementation of the online filing system caused a tremendous increase in adjudication time and formal “requests for further documentation.” It is hoped that in 2011, many of the above changes will be integrated fully so that adjudication will return to a smoother process.

Click here to view the communiqué.