Canada
New Business Incubator Stream for Entrepreneurs
Citizenship and Immigration Canada (CIC) began accepting applications under Canada’s new Business Incubator Stream on October 26, 2013. The Business Incubator Stream aims to attract entrepreneurs to Canada and connect them with accredited “business incubators.” Introduced by Minister of Citizenship and Immigration Chris Alexander, the Business Incubator Stream forms part of the existing Start-Up Visa Program, which was launched on April 1, 2013, as a five-year pilot program with a maximum of 2,750 applications annually. The Start-Up Visa Program includes three streams: the Venture Capital Stream, the Angel Investor Stream, and now the Business Incubator Stream.
The new Business Incubator Stream, like the existing Venture Capital and Angel Investor Streams, features a major role for the private sector in the immigration process. To create the Business Incubator Stream, CIC partnered with the Canadian Association of Business Incubation, which designates business incubators. Interested entrepreneurs may apply directly to one of the designated business incubators, which include Communitech, GrowLab, Innovacorp, Innovate Calgary, and the Toronto Business Development Centre. Applicants may apply as single entrepreneurs or as teams of entrepreneurs with a maximum of five members. The designated business incubators provide business mentorship to selected start-ups, with the objective of permitting the start-ups to grow into sustainable businesses.
Under the Business Incubator Stream, the designated business incubators evaluate applicants’ business proposals for viability, assessing their business plans, financial documents, founder biographies, and other relevant information. When the designated business incubators accept a proposal, they forward a letter of support to CIC in favor of the applicant’s permanent residence application. Unlike the Venture Capital and Angel Investor Streams, the Business Incubator Stream does not require any financial investment by a third party. In addition to acceptance by a designated business incubator, applicants must meet certain program eligibility criteria, including the minimum requirements for language competency in English or French, minimum education requirements, and minimum settlement funds. Although the designated business incubators approve or refuse the business proposals, CIC makes the final decision on the permanent residence applications.
France
The procedure for trainees whose qualifying period is less than three months has been eased.
An internal and unpublished instruction sent to local labor authorities (DIRECCTE) facilitates the processing of short-term (less than three months) training, otherwise regulated by the circular NOR IMI0900079C.
To facilitate the authorization procedure for trainees whose training in France is for a period of less than three months and reduce the processing time, it is no longer necessary to seek the prior authorization of the local labor authorities (Direction Régionale des Entreprises, de la Concurrence, de la Consommation, du Travail et de l’Emploi de la Consommation, du Travail et de l’Emploi, or DIRECCTE).
The execution of a written training agreement remains necessary. However, verification of internship agreements will be made now as follows:
If the foreign national needs a visa to enter France, the consulate issuing the short-stay visa in the home country will verify the agreement and inform DIRECCTE.
If the foreign national does not need a visa, the employer should submit a copy of the agreement to DIRECCTE before the training starts.
The relevant authorities will then inform the labor inspectorate. An audit of the training will be conducted as part of an ordinary labor inspection of the company.
India
One chamber of the Indian Parliament has proposed amendments to “Overseas Citizen of India” status. If passed into law, among other things, “Overseas Citizen of India” status will be known as “Overseas Indian Cardholder” instead.
The proposed amendments are being made to the Citizenship Act, 1955 (Act), which provides for the acquisition and determination of Indian citizenship, the procedure for registration as an Overseas Citizen of India (OCI), and renunciation and termination of citizenship under certain circumstances. The Act has been amended occasionally relating to registration and renunciation of OCI status.
The Citizenship (Amendment) Bill 2013 (Bill) was passed by the Council of States of the Indian Parliament (the Rajya Sabha, or the Upper House) on August 13, 2013. It awaits approval of the House of the People of the Indian Parliament (Lok Sabha, or the Lower House) and presidential assent before it is enforced and the provisions are incorporated in the Act. The Bill has been introduced mainly to address shortfalls that were noticed during implementation of the Act and to review the provisions relating to OCIs.
The Bill proposes the following changes:
The Bill replaces the words “overseas citizen of India” with the words “overseas Indian cardholder” (OIC). An overseas Indian cardholder is defined as a person registered as an overseas Indian cardholder by the central government under section 7A.
The Bill enlarges the categories of persons eligible for OIC. It proposes to include (i) a great-grandchild of any person who was a citizen of India; (ii) a minor child of parents, both of whom are, or one of whom is, a citizen of India; and (iii) a spouse of an Indian citizen who has been married for at least two years before making the application for registration.
The Bill also sought an amendment to bring within the scope of citizenship a person “who is ordinarily a resident” instead of the person who has been residing in India for a specific period.
The registration of the spouse of an Indian citizen will be canceled if (i) the marriage has been dissolved by a competent court; or (ii) during the subsistence of such marriage, the spouse has married any other person.
If a person renounces his or her overseas Indian card, his or her spouse and minor child will also cease to be an OIC.
The central government may relax the requirement of being a resident in India for 12 months as one of the qualifications for a certificate of naturalization. This period cannot be extended beyond a period of 30 days.
There is no certainty regarding the time frame within which the Bill will be brought into force. Although the purpose of the amendment seems to be to correct the lacunae in the Act, it has, in a way, demoted the status of an OCI from being an overseas “citizen” to a mere cardholder. Although an OCI has never had full privileges of Indian citizenship, such as the right to vote, when the law was initially passed, OCI status was thought to be a first step toward dual citizenship. Further, by bringing the spouse and the minor child within the ambit of an OIC and by making registration for them compulsory, the whole purpose of easy and fast implementation of the OCI process is defeated.
Netherlands
New Residence Permit for High Net Worth Individuals
A new permit category was introduced on October 1, 2013. Foreign nationals investing funds above the threshold amount of EUR 1,250,000 into a company established in the Netherlands now may qualify for a residence permit. The Dutch Ministry of Economic Affairs will assess whether the company in which the amount is invested is of “added value to the Dutch economy.” The applicant must possess a declaration that the amount that is invested is “not of dishonest provenance.” The declaration must be issued by an internationally operating Dutch accounting firm. The residence permit will be issued for one year and can be renewed. Seen as a “pure” investor permit, the new measure’s effectiveness is expected to depend on the Ministry of Economic Affairs’ interpretation of “added value.”
New Work Permit Exemptions
The government is introducing additional work permit exemptions on January 1, 2014. Currently, foreign staff attending an in-house company training in the Netherlands are not exempted from the work permit requirement. This will change for multinational organizations transferring employees to their Dutch establishments for certain training purposes. The maximum period for this work permit exemption is 12 uninterrupted weeks in a period of 36 weeks.
The work permit exemption for the purpose of business meetings will also change. Business meetings under the current regulation are allowed for 4 weeks, interrupted or not, in a period of 13 weeks. This will change to 13 uninterrupted weeks in a period of 52 weeks. Due to the addition of “uninterrupted,” this change could work out in practice as an important limitation on the existing possibilities. The new rule allows business visitors only one business trip to the Netherlands per year, whereas under the old rule several trips were allowed. The government has not explained why the new rule was formulated in this way. The general view is that the addition of “uninterrupted” was a legislative fluke that should be corrected as soon as possible.
An exemption is also being introduced for accompanying staff of performing artists and sports professionals.
Highly Skilled Migrant Scheme
Additional conditions concerning salary payment will take effect January 1, 2014, for the highly skilled migrant residence permit. The main condition to meet the gross annual salary threshold is changed to a monthly salary threshold. The highly skilled migrant must receive the applicable amount (excluding 8% holiday pay, which can still be paid annually) monthly in his or her bank account. The change is expected to affect highly skilled migrants wanting to take unpaid sabbatical leave, and other types of unpaid leave such as parental leave.
Peru
On November 8, 2013, Law No. 30103 was published in the Official Gazette of Peru. The new law establishes a procedure to regularize the immigration status of foreign nationals who entered Peruvian territory before January 1, 2012. The law provides for either a temporary or a resident visa under determined immigration status if they have been in an irregular immigration status in Peru.
Deadline and Where To Apply for Immigration Regularization
The deadline to apply is 180 calendar days since the law has been in force. The application must be filed before the National Superintendence of Migration (MIGRACIONES), with the required documentation applicable to the foreign national.
Assumptions of Irregularity
It is considered “irregular migratory status” if a foreign national has entered Peru legally but has an expired stay authorization or expired resident permit.
Granting of the Resident Visa
MIGRACIONES will provide to an eligible foreign applicant a resident visa for a maximum period of two years the immigration status of worker (WRA), independent professional (IPA), or familiar resident, as applicable. The resident permit is renewable annually, subject to compliance with requirements under immigration law.
After approval of the resident visa, the foreign national will be registered at the Central Register of Foreigners and his or her foreign card will be issued, provided that the requirements under the TUPA (Unique Text of Administrative Proceedings) have been complied with and required fees have been paid.
Reserve Assumptions for Enforcement
Peru, through MIGRACIONES, reserves the right to reject an applicant for a resident visa if the agency determines that his or her presence is a detriment to Peru’s sovereign interests, or a national security or internal order risk, based on a background check and information provided by INTERPOL, the judiciary, or other entities, as appropriate.
MERCOSUR Citizens
Foreigners with irregular immigration status belonging to MERCOSUR countries may opt to apply the “Agreement on Residence for Nationals of State Parties of MERCOSUR, Bolivia and Chile,” signed on December 6, 2002.
Assumptions of Exception in the Scope of the Law
Not included in the scope of the new law are cases of foreign citizens who, having been ordered to leave, never left the country or have returned without authorization, and those who have an enforceable and final judgment of expulsion after serving a custodial sentence.
Regulations and Validity
The Peruvian government must issue regulations within 60 calendar days of enactment of the law, which took effect November 9, 2013.
Schengen Area
A new European regulation clarifies the calculation of the authorized length of short-term stays in the European Union (new “90-day rule”) and amends other rules.
European Union (EU) legislation defines a short-term stay as residence up to “three months during the six months following the date of first entry.” This wording has led to interpretation problems.
A recent European Regulation of June 26, 2013 (Regulation 610/2013) amended the Schengen Borders Code and the Schengen Agreement by replacing the reference to “three months during the six months following the date of first entry” with “90 days in any 180-day period.” The aim of the new wording is to install “clear, simple and harmonized rules” with regard to the “calculation of the authorized length of short-term stays in the [EU].”
One of the amended articles is article 5, para. 1, introductory part, of the Schengen Borders Code. In this same article a new para. 1a is inserted:
1. For intended stays on the territory of the Member States of a duration of no more than 90 days in any 180-day period, which entails considering the 180-day period preceding each day of stay, the entry conditions for third-country nationals shall be the following:
1a. For the purposes of implementing paragraph 1, the date of entry shall be considered as the first day of stay on the territory of the Member States and the date of exit shall be considered as the last day of stay on the territory of the Member States. Periods of stay authorized under a residence permit or a long-stay visa shall not be taken into account in the calculation of the duration of stay on the territory of the Member States.” (Emphasis added.)
All amended articles with regard to the new 90-day rule took effect on October 18, 2013.
Regulation 610/2013 has also amended other rules, already effective as of July 19, 2013. One of these rules is article 5, para. 1(a) of the Schengen Borders Code, pursuant to which the short-term stay entry conditions relating to a valid travel document have been modified. Under the new rules, the required valid travel document not only must entitle the holder to cross the border, but also must (i) be valid “at least three months after the intended date of departure from the territory of the Member States” and (ii) “have been issued within the previous 10 years.” The first of the two requirements may be waived in a “justified case of emergency.”
United Kingdom
Home Office Launches Consultation on Charging Fees
On November 12, 2013, the Home Office launched a three-week consultation to review proposed changes to the charging principles. As part of the consultation, the Home Office sought views on how it charges customers and the services it provides. The last consultation on charging was carried out in 2009. This was a good opportunity for stakeholders to have their voice heard.
One area where the Home Office is focusing its attention is the introduction of premium or business support services to improve the customer experience, both at the application stage and when passing through UK immigration control. Examples of appropriate services were requested together with the fee that should be levied. The extension of mobile services was given as an example; it is possible for UK-based applicants to pay £6,000 for a super premium service, where officers visit the applicant’s premises to enroll biometrics.
Other questions in the consultation included:
Should customers have an option to pay for individual premium services or should they have to sign up for the full premium end-to-end package? A premium customer service for sponsors under the Points Based System (PBS) was introduced in 2012. Under this scheme, businesses may sign up for a tailored service for Home Office assistance with the processing of their PBS applications for an annual fee of £25,000, or a more restricted service for smaller companies for £8,000.
Should some application types continue to attract lower-than-cost fees? For example, should the UK charge lower fees for visitor applications because the UK wishes to attract tourists and needs to consider what other countries are charging? Similarly, should some applications, such as those for settlement, attract higher-than-cost fees where the applicant will obtain a significant benefit?
Finally, the Home Office said it would like views on its proposal within the immigration bill to introduce a revised charging framework. At present, it is possible to increase or introduce new fees only once a year in April. However, if the Home Office introduces new schemes, like the Registered Travellers Scheme or the GREAT club scheme (more about this below), they will need flexibility to levy a fee for these services at the point of introduction.
Changes to Document Requirements
As of October 28, 2013, applicants applying by post for extensions of stay, settlement, or British citizenship in the UK by virtue of their marriage or relationship with a British person or a person present and settled in the UK, no longer must submit the original passport of the British national when applying by post, but may submit a copy.
Home Office Targets Business Travelers with New Premium Visa Services
On November 6, 2013, the British government announced the launch of the GREAT Club, an invitation-only service providing top business executives with bespoke support from UK Visas and Immigration (UKVI). The Club will begin a 12-month pilot program in 2014 that will target approximately 100 global business leaders who have established connections to the UK. Participants will be provided with an account manager to ensure that their visa and immigration service is “swift and smooth.” The account manager will also be able to arrange visas “tailored to each individual’s needs at no extra cost.” The British government announced that over the next 12 months, additional improvements will include:
Expanding the priority (three- to five-day) visa service from 67 countries to over 90 countries by spring 2014
Expanding the same-day visa service, currently available in India and soon to be available in China, to several further key locations by the end of 2014
Introducing a VIP mobile visa service to India and piloting Passport Pass-Back service in southern India with a view to expanding it countrywide if successful.
Changes to Guidance on Prevention of Illegal Work
The Home Office published an updated version of its guide for employers on preventing illegal work in the UK. This version, published in October 2013, replaces the previous one published in May 2012.
The main changes noted in the guide include:
Work restrictions imposed on Croatian nationals effective July 1, 2013; and
Information on the government’s Fast Payment Option for paying a civil penalty.
The guidance also contains details on an additional circumstance in which the sponsor license can be revoked when a civil penalty is received.
New “Streamlined” UK Visa Services Announced for China
The Home Office has announced the following enhanced and streamlined services for processing UK visa applications in China:
A 24-hour visa service is to be introduced for regular and business visitor applicants by the summer of 2014. The new super priority visa service will be in addition to the current priority (three- to five-day) service, allowing visas to be processed in 24 hours.
The VIP Mobile Visa Service is to be extended across China. The service was launched in April 2013, covering Beijing and Shanghai, and allows senior executives to arrange for their applications and biometric details to be taken by a Home Office team at their offices instead of attending a Visa Application Centre.
UK and Schengen visa application processes are to be further aligned. A pilot scheme was launched in November 2013 with selected travel agents for Approved Destination Status tour groups who are visiting both Schengen countries and the UK. These agents will able to make offline applications for tour groups, using Schengen visa application forms with a short addendum form. This is aimed at reducing duplication of the forms and supporting documents required for those traveling to the UK and within Europe.
This change will extend the elements of UK and Schengen processes, already aligned in China, including some application centers and the Passport Pass-Back service, which allow applications to be considered simultaneously.
New Immigration Bill
On October 10, 2013, the Home Office published a bill to continue its reforms to the immigration system. Subject to its parliamentary progress, the bill is expected to receive royal assent in spring 2014. The main provisions cover:
Private landlords— Landlords will be required to check the immigration status of their tenants, to prevent those with no right to live in the UK from accessing private rented accommodation. This will also apply to those who sublet or take in lodgers. The government will publish a draft code of practice for the operation of the civil penalty regime, which will include guidance for landlords and draft regulations setting out the status documents that landlords must check. Subject to parliamentary approval, the intention is that the scheme will be implemented beginning in October 2014. It will not apply to existing tenancies; landlords will only have to conduct checks on new tenants.
National Health Service charges— Fees are being introduced to ensure that non-European Economic Area nationals contribute toward the National Health Service care that will be available to them during their stay in the UK. This will be a health surcharge payable as a precondition of entry clearance or limited leave to remain for those migrants residing in the UK for more than six months. It will be payable at the same time as the fee for an entry clearance application or a fee for a leave to remain application. Exemptions will apply to those seeking asylum or humanitarian protection, among others (it is not yet known who will fall within the “among others” group). The government will produce secondary legislation to set out which groups will be required to pay the surcharge, to set the level of the surcharge, and to provide further information on how it will operate.
Driving licenses— New powers to check driving license applicants’ immigration status before issuing a license, and revoking licenses where immigrants are found to have overstayed in the UK.
Bank accounts— Banks and building societies will be required to check identifying data against a database of known immigration offenders before opening new client bank accounts.
Sham marriages— New provisions will clamp down on people who try to gain an immigration advantage by entering into a sham marriage or civil partnership.
Restrictions on appeal rights— The number of decisions that can be appealed will be cut from 17 to four, preserving appeals for those asserting fundamental rights.
Extending the non-suspensive appeals— Where there is no risk of serious irreversible harm, foreign criminals will be deported first and have their appeals heard later.
Article 8 provisions— New provisions will ensure that the courts consider Parliament’s view of what the public interest requires when considering Article 8 of the European Convention on Human Rights in immigration cases.