Australia
Effective November 23, 2014, the maximum period of stay for a Subclass 400 Temporary Work (Short Stay Activity) Visa has increased from three months to six months.
However, stays of over three months will only be granted in exceptional circumstances, backed by a strong business case and evidence that the activities will not adversely affect Australian workers.
The validity of the visa has also been extended, so that applications can be made up to six months before the intended date of travel.
Criteria for Granting an Extended Stay
Applicants for a Subclass 400 visa requesting a stay period of more than three months must demonstrate:
That employment conditions satisfy Australian workplace standards;
That the Subclass 457 visa route is not being circumvented.
The importance of the project to the local community;
The need for specialist advice or which not available in Australia;
The number of Australians to be employed on the project;
The time available to train an Australian to do the work in the long term;
Any contractual obligations relating to the installation or servicing of equipment;
Other Australia Immigration News
The Department of Immigration and Border Protection (DIBP, formerly DIAC) will no longer be assessing 457 visa applications where the standard business sponsorship (SBS) is about to expire (i.e. within 3 months). It is therefore more important than ever for employers to consider their future visa needs well in advance of any expiry date.
DIBP is increasingly asking questions of sponsors as to whether a position is ‘genuine’, especially where a proposed annual salary is around AUS$55,000 – $65,000. The ‘genuine’ criterion has been in the Migration Regulations for several years but was not previously actively enforced. The questions are aimed at satisfying the Department that employers have made efforts to source workers from the local labour market.
There are some delays in visa processing due to a new system of Collective Case Management, in which applications are managed at random DIBP offices rather than at the office closest to the sponsoring employer. This has been introduced due to a recent significant drop in Subclass 45 visa applications and a corresponding reduction in staff numbers in immigration offices.
China
A nationwide trial of a new short term work permit procedure in the People’s Republic of China will come into effect on January 1, 2015.
The procedures clarify which activities will require short-term work permits instead of business visas for employment of less than 90 days. Previously, as long as a foreign national remained on home payroll and contract, work in China for up to 90 days was generally permissible on business visitor status. The new procedure makes it clear that this is no longer possible where the foreign national will be visiting a business partner (i.e. client or supplier), although note that intra company short term assignments may still be conducted on business status.
Which Activities Will Require a Short-Term Work Permit for up to 90 Days?
Under the new procedures, foreign nationals who intend to participate in the following activities in China for up to 90 days are required to apply for a work permit:
Visiting a business partner in China to complete a technical or scientific project, or to provide management or guidance;
Physical training in a sports club (including trainers and athletes);
Shooting a film (including commercials and documentaries);
Participating in a fashion show (including runway or print models);
Participating in a commercial performance; and
Other activities may require short-term work authorisation, subject to the discretion of the immigration authority.
Which Activities Will Not Require a Short-Term Work Permit for up to 90 Days?
Foreign nationals entering to participate in the below listed activities for fewer than 90 days are not required to apply for a work permit, and can enter on an M visa (for the first three types of activities) or an F visa (for volunteers):
Providing maintenance, assemblies, testing, taking apart, guidance or training for equipment or machinery purchased;
Providing guidance, supervision or inspection of a project;
Short-term assignment to a subsidiary, branch office, or rep office;
Volunteers without pay or paid by overseas organisations.
Short Term Work Permit Application Procedure
The host entity needs to first apply for an employment licence and “Approval for Short-Term Employment for Foreigners Working in P.R. China” at the local labour bureau, and then apply for a Z visa invitation letter.
The foreign national must then apply for a Z visa to enter China. An applicant whose employment is for less than 30 days will receive a Z visa for 30 days with a note stating that they are allowed to work only within the period of time indicated in the approval.
An applicant whose employment is for more than 30 days will receive a Z visa with a note to apply for a 90-day work-type residence permit upon entry.
Timing is difficult to estimate as the procedures are new, but employers should allow at least four to six weeks’ lead time.
Extensions of Stay
The new short term work authorisations can be granted for up to 90 days.
Foreign nationals obtaining the new short-term work permit will not be able to remain in China beyond the approved period, and the approval cannot be renewed.
Background
The trial procedures implement the 90-day work permit rules from the recent Exit-Entry Administration Law and Regulations.
The procedures were announced on 6 November 2014 in Notice No.78, issued jointly by the Ministry of Human Resources and Social Security, the Ministry of Foreign Affairs, the Ministry of Public Security, and the Ministry of Culture.
India
The government of India has introduced an E-Visa (electronic visa) for 43 countries. The new online system will allow travelers to apply for a visa from home and receive it within 72 hours. A traveler must apply for this visa at least four days before entering India and will only be eligible for two of these visas within a calendar year.
The E-Visa will be valid for 30 days and the fee is $62. Those traveling for leisure, short duration medical treatment, a casual business visit, or to meet friends and relatives will be eligible to apply. The E-Visa will be made available at nine airports, including Delhi, Mumbai, Bengaluru, Chennai, Kochi, Goa, Hyderabad, Kolkata, and Thiruvanathapuram.
Countries included in the first phase are Australia, Brazil, Fiji, Finland, Germany, Israel, Japan, Jordan, Kenya, Mauritius, Mexico, Norway, Oman, the Philippines, Russia, Singapore, South Korea, Ukraine, the United Arab Emirates, and the United States, among others. The Indian government plans to offer the E-Visa to almost every country in the world over time.
Indonesia
Effective December 1st, the Manpower Office has introduced a new appointment system for the manual submission of applications for the RPTK (Expatriate Placement Plan), the TA-01 (individual foreign employee approval) and the IMTA (individual work permit).
Previously, paper applications could be submitted manually the day after completing the relevant online application. Under the new system, the appointment date may be set for more than three weeks after the online application, significantly delaying processing at all three stages.
There have also been changes to the documentary requirements for TA-01 applications and to the validity period of work permits in some cases.
How the Appointment System Works
When the online application is submitted, a receipt will be issued by the Manpower Department, containing a barcode and a date for an appointment to submit the paper documents.
A recent typical online application for TA-01, on December 14, 2014, resulted in the issuance of a receipt with an invitation to go to the Manpower department for the manual application on January 7, 2015 (nearly four weeks later).
After the appointment, an RPTK or IMTA application should take seven to ten days to process, while a TA-01 application should take three to five days.
Stricter Document Requirements in Support of TA-01 Applications
From November 2014, a copy of a university degree certificate, curriculum vitae or letter of reference from a previous employer (if applicable) in support of a TA-01 application must be submitted with the sponsoring company’s stamp and signed by the HR Director. The first two of those documents must also have a ‘’meterai’’ (a signed duty stamp obtainable from the post office).
Shorter Validity of Work Permits for Employers Holding Principal Permit
Foreign Investment Companies with only an initial Principal Permit, rather than a Permanent Licence (IUT) will henceforth only be able to obtain employment authorization for a foreign national employee for up to six months, except for Director positions.
Netherlands
The Dutch immigration authorities have announced the new minimum salary levels to take effect from 1 January 2015 for knowledge migrant workers (aka Highly Skilled Migrants) and Blue Card applicants coming to the Netherlands. Note that, since January 2014, salaries must meet minimum monthly pro-rata levels, must include 8% holiday allowance and must also be paid directly into the bank account of the foreign national.
Minimum Salary for 2015
The new minimum salary levels are as follows:
Knowledge Migrants aged over 30: €54,289.44EUR per annum (up from €52,462.08).
This must be paid in monthly instalments of at least €4524.12EUR/month (this amount includes 8% holiday pay).
Knowledge Migrants aged under 30: €39,800.16EUR per annum (up from €38,465.28)
This must be paid in monthly instalments of at least €3316.68EUR/month (this amount includes 8% holiday pay).
Persons who have graduated in the Netherlands within the last 12 months: €28,524.96EUR per annum (up from €27,565.92)
This must be paid in monthly instalments of at least €2377.08EUR/month (this amount includes 8% holiday pay).
Blue Card Holders: €63,607.68EUR per annum (up from €61,469.28EUR)
This must be paid in monthly instalments of at least €5300.64EUR/month (this amount includes 8% holiday pay).
Monthly Payments
Remember that payments must meet the minimum monthly amounts stated above, which include 8% holiday pay. Payments must also be made directly into the bank account of the foreign national, and the onus is on the employer to prove that such payments have been made and meet monthly requirements.
Failure to be compliant with this rule may result in fines of up to €12,000EUR per violation.
Affected Applications
The new salary criteria applies only where the application for the regular provisional residence permit (Machtiging Voorlopig Verblijf or MVV) has not been made prior to January 1, 2015. For applications made prior to this date, the 2014 salary criteria apply.
It is not necessary to adjust salaries of existing Knowledge Migrants in the Netherlands unless applying for a renewal of the residence permit. The new levels apply only where an application, either for a new residence permit or a renewal of an existing residence permit, is made.
Per Diems and Allowances
Per diems and allowances may only be included if they are guaranteed and stated in the employment contract.
Market Salary Rate
It should be noted that salaries must also meet the market salary rate for the specific position. If the Immigration and Naturalisation Service (the IND) consider the suggested salary to be less than sufficient, they can ask the UWV Werkbedrijf (the body that provides opinions on behalf of the Dutch Ministry of Social Affairs and Employment (SZW) for an opinion. Additional justification for the salary level would likely be requested from the prospective employer. Applications which do not meet market conditions as adjudicated by the UWV Werkbedrijf will be rejected.
Poland
Poland can be considered an alternative for corporate immigration as compared with other economies of East-Central Europe. Two factors provide the basis for the increased activity of foreign capital in Poland: the development of special economic zones and the lifting of limitations on purchasing real estate by foreigners in Poland.
As with other countries (e.g., China), Poland regards special economic zones as an important instrument for attracting foreign investors. Special economic zones are designated industrial areas prepared for investment for foreign entities. In return for allocating production and operation of the company in Poland, the investor receives a special, beneficial legal status with respect to tax obligations. The primary benefit of investing in the special economic zones is property tax exemption and, above all, income tax exemption, the scale of which depends on the volume of investment. Investments in the special economic zones in Poland require a permit issued in administrative proceedings. According to the latest data, there are more than 7 thousand hectares of land waiting in Poland for foreign capital in the special economic zones.
In the near future, new rules will come into force on state aid granted to entrepreneurs operating under permits to conduct business activity in the special economic zones. The rules will facilitate provisions regulating the proportion of public funds in the investments and the method of accounting for the investments.
The attractiveness of the local market for corporate immigration depends to a large extent on the legal status of the commercial real estate market. In this respect, the current status of the Polish real estate sector has been presented in the annual report of the Polish government devoted to the acquisition of real estate by foreigners (individuals and corporate entities). The report for 2014 highlights the activity of German, Dutch, and Ukrainian capital in Poland. The reports, prepared annually by the Minister of Internal Affairs and Administration, extensively and accurately presents international trading in Polish real estate.
According to the report, in 2013, foreigners were granted a total of 252 permits for the acquisition of land property with a total area of 697.15 hectares. The vast majority of applications had been approved. In Poland, the acquisition of real estate by foreigners requires, in principle, a permit from the Minister of Internal Affairs and Administration. The source of legal restrictions is the Act on the acquisition of real estate by foreigners as of March 24, 1920. The relevant permit is also necessary for the purchase or acquisition by foreigners of shares in companies that are owners or perpetual users of real estate. By May 1, 2016, the permit also will be required for the purchase of forest and agricultural real estate by EU/EEA entities. Such status follows from the transitional provisions of the Polish accession to the EU.
Russia
New Labor Regulations for Foreigners
As of December 12, 2014, all employers of foreign nationals must:
Sign unlimited term agreements with foreign employees, with a number of exceptions such as labor agreements with general directors or chief accountants and/or when the employer is a representative or branch office;
Include in the labor agreements with foreign nationals details confirming the right of a foreign national to perform work activities in Russia, including work permits, work patents, and temporary or permanent residence permits; and
Include in the labor agreements with foreign nationals details of the medical insurance offered, including either a medical insurance certificate or agreement between the employer and insurance company for provision of medical insurance. Medical insurance supplied by the employer must include the right to first aid and immediate medical care.
As of December 12, 2014, all employers of foreign nationals have the right to:
Transfer a foreign employee to another position within the company for a period limited to one month within a calendar year without first applying for a work permit amendment; and
Suspend a foreign employee from work activities for up to one month if the employee’s work permit expires. Previously employers were required to terminate labor agreements with this category of foreign employee.
Increase in State Duty Fees for 2015
An increase in state duties applies beginning in 2015:
State duty for issue or extension of a visa
Exit visa from Russia – 1,000 rubles
Multiple visa – 1,600 rubles
State duty for an invitation letter – 800 rubles
State duty for an employment permit issued to the employer – 10,000 rubles
State duty for an individual work permit – 3,500 rubles
New Fingerprinting Procedure
As of December 10, 2014, regardless of the visa type, length of stay, or number of requested entries, all Russian visa applicants must undergo fingerprinting at the Russian consular posts in the United Kingdom, Ireland, Denmark, Myanmar, Namibia, and upon arrival at Moscow’s Vnukovo Airport (VKO). On November 24, 2014, President Vladimir Putin signed an order introducing this requirement for Russian consular posts at those locations to gather fingerprints from all foreign nationals applying for visas to enter Russia.
The order is the first step in a government program announced by Evgeniy Ivanov, Director of the Consular Department, Ministry of Foreign Affairs, in February 2014. The aim of the program is to introduce fingerprinting at all Russian consular posts abroad as well as upon entry to Russia. According to Mr. Ivanov, the project should be construed as a sign of visa policy modernization rather than toughening.
The impact on immigration procedures is expected to be minimal, although the introduction of the fingerprinting procedure may affect consular processing times. Applicants scheduled to file for visas at these consular posts should allow sufficient time for the visa application process.
New Legislation on Employment of Highly Qualified Specialists
Beginning January 1, 2015, submission of the following notifications regarding the employment of Highly Qualified Specialist (HQS) work permit holders will not be required:
Notification to the Federal Migration Service office reporting unpaid leave granted to an HQS work permit holder and exceeding one calendar month during a 12-month period
Notification to the Tax Authority reporting hiring/dismissal of the employee
Beginning January 1, 2015, the following notifications are introduced:
Notification to the Federal Migration Service office reporting hiring or dismissal of the employee within 3 business days from the day of signing or termination of the labour agreement
Penalties for violation are up to 1,000,000 rubles.
Also beginning January 1, 2015:
Representative offices of foreign companies will be able to sponsor HQS work permits for their foreign employees
Commonwealth of Independent States (CIS) citizens will be able to enter Russia using their foreign passport only
On a separate note for IT companies, the Federal Migration Service started accepting HQS work permit applications stating a lowered salary level, introduced in the summer of 2014.
New Provisions on Employment of Standard Work Permit Holders
Standard work permits and visa processing are for foreign employees whose salary level is lower than 2,000,000 rubles gross per year. If an employee’s salary level reaches the 2,000,000-rubles-gross benchmark, the majority of such employers opt for the HQS work permit and visa scheme, discussed above. Below is a summary of new provisions on employment for standard work permit holders, effective January 1, 2015.
For Visa (Non-CIS) Nationals:
Submission of the following notifications regarding standard work permit holders’ employment will not be required:
Notification to the Tax Authority reporting hiring or dismissal of the employee
The following notifications are introduced:
Notification to the Federal Migration Service office reporting the hiring or dismissal of the employee within three business days from the day of signing or termination of the labor agreement
Penalties for violation are up to 1,000,000 rubles.
The Russian language, history, and basics of legal knowledge test applies to all categories of standard work permit applicants.
For CIS Nationals:
Work permits are replaced with work patents
Regional authorities have the right to “hire” third-party organizations to process work patent applications
Work patents are issued for a maximum term of 12 months
Work patent can be extended only one time
Work patents allow CIS nationals to work for private persons as well as companies
Income tax is paid by the work patent applicants themselves for the whole period of employment (maximum 12 months) before the work patents are issued to them
Work patents provide the right to work in a particular Russian region only
Work patents do not specify a position, which will allow for transfer without the need to amend the document
Application does not require an employer to apply for the initial 12-month work patent, but the employer must sponsor a subsequent extension
Work patent holder can work for any employer within the Russian region for which the patent was issued, except for some minor exceptions
Russian language, history, and basics of legal knowledge test applies to all categories of work patent applicants
Employers have the right to supply their employees only with medical insurance from companies registered in Russia and in some regions only from companies determined by the governor
Medical testing as well as fingerprinting also remain requirements
Most of the powers to issue work patents are being transferred to governors of Russian regions, who will have the right to:
Stop issuance of work patents any time, basing their decisions on Labor Authorities’ proposals
Determine whether job positions should be indicated on work patents
Ban issuance, if the governor determines that job positions should be indicated on work patents, of patents for certain job positions as well as issue orders to dismiss all the work patent holders employed in such positions who received the patents before the ban in question was introduced
Determine the medical centers that can assist work patent applicants with medical examinations
Determine the schools and universities that can test work patent applicants on Russian language, history, and legal basics knowledge
Determine the insurance companies that can issue medical insurance to work patent applicants
South Africa
Further to our alert on this subject in October, the South African Department of Home Affairs has now issued additional clarifications to the October Directive, which state that extensions can be submitted within South Africa, and also that new applications from the home country may be submitted for assignments lasting beyond four years.
Background
The amendments to the South African immigration legislation made in late May 2014 (see our alert here) made it possible for Intra Company Transfer (ICT) Work Visas to be issued for periods of up to four years. However, there was considerable uncertainty over whether extensions of ICT Work Permits with two year validity would be permitted or not.
In October 2014, the Department issued a Directive making it clear that holders of two year ICT Work Permits would be permitted to apply for new, four year ICT Work Visas, but only if they returned to their home country and applied at the South African diplomatic post there.
Extensions Within South Africa
The new clarifications state plainly that holders of ICT Work Visas issued prior to 26 May 2014 may apply for a new ICT work visa (with validity of up to four years) either at the South African diplomatic post in their original country of residence, or from within South Africa.
This is significant as previously, it was not possible to apply for the new ICT Work Visa from within South Africa.
Extensions Beyond Four Years
The new clarifications also state that where an assignee has completed four years of an international assignment and is needed for a further period, it is possible for them to apply for a new ICT Work Visa with validity of up to four years. However, such an application must be submitted at the South African diplomatic post in their original country of residence.
This is a very positive development as it now gives companies the possibility of having assignees in South Africa for up to eight years on an ICT Work Visa.
Turkey
Effective January 1, 2015, a foreign national will only be able to enter Turkey if their passport is valid for at least 60 days beyond the expiry of their visa, visa exemption or work/residence permit.
The rule will also apply to those foreign nationals already in Turkey who are planning to exit and re-enter the country.
It remains to be seen exactly how the immigration authorities will interpret the rule once it comes into force on January 1st.
Background
The new rule is being implemented as part of Turkey’s “Law on Foreigners and International Protection” (Law No.6458), which began to come into effect earlier this year. See our earlier alert here for more information on all the changes.
Vietnam
On November 5, 2014, The Ministry Of Industry and Trade issued Circular 41/2014/TT-BCT stipulating the requirements and procedures for work permit exempted intra-company foreign transferees.
The exemption applies to transferees who work in Vietnam for enterprises operating in the 11 service sectors specified in Vietnam’s World Trade Organisation (WTO) commitment. The circular is expected to come into force on December 22, 2014.
What are the main conditions for intra-company transferees to be exempted from obtaining a work permit?
The foreign transferee holds a managerial position, or is an expert / specialist or technician;
The foreign transferee should have been working for the foreign company for at least 12 months prior to being seconded to the Vietnam-based entity;
The Vietnam-based entity must operate in one of the 11 service sectors defined in the annexes to the circular.
Documents required for work permit exemption that are not in Vietnamese are exempt from consular legalization, but they must be translated into Vietnamese and authenticated in accordance with Vietnamese law.
What are the 11 service sectors which qualify for work permit exemption?
Business Services;
Communications services;
Construction and related engineering service;
Distribution services;
Educational Services;
Environmental services;
Financial services;
Health and Social related services;
Tourism and Travel related services;
Recreational, Cultural and Sporting services;
Transportation services.
However, not all subsectors listed in the WTO commitments on services are included in the list for exemption.
What is the procedure for obtaining the work permit exemption?
The Work Permit exemption application should be lodged at the provincial Department of Labor, Invalids, and Social Affairs (DeLISA), which assumes responsibility for defining the exemption.
In case of doubt, the Ministry of Industry and Trade (MOIT) will confirm whether or not the Vietnam-based entity’s operation is included in the 11 qualifying service sectors.
In case of rejection, an appeal for review from the Vietnam-based entity is possible and the Ministry of Industry and Trade will re-examine the case.
Delays Expected
It is likely that the implementation phase of these new regulations will take many months, during which time there will be considerable uncertainty about which jobs qualify, and delays in obtaining decisions from DeLISA and MOIT. Obtaining a full work permit may, in some cases, still prove to be the best option for some employers.