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- 2. 2 Premium sponsor Gold sponsor Exhibitors IMMIGRATION & COMPLIANCE UPDATES PROSPECTIVE ICT DIRECTIVE PRESENTATIO NAGENDA SCHENGEN VISA OVERVIEW
- 3. 3 Premium sponsor Gold sponsor Exhibitors The Schengen Area is comprised of 26 countries that have agreed to allow free movement of their citizens within this area as a single country. • Luxembourg • Malta • Netherlands • Norway • Poland • Portugal • Slovakia • Slovenia • Spain • Sweden • Switzerland • Liechtenstein • Lithuania • Austria • Belgium • Czech Republic • Denmark • Estonia • Finland • France • Germany • Greece • Hungary • Iceland • Italy • Latvia Although most of the Schengen countries are in the European Union, you should not confuse the Schengen area with the EU. 26 COUNTRIES
- 4. 4 Premium sponsor Gold sponsor Exhibitors A Schengen Visa permits the holder to stay within the Schengen countries for up to 90 days in any period of 180 days for tourist or business purposes. Once you get a Schengen Visa, you can enter one country and travel freely anywhere within the Schengen territory. As a result of the on-going migration crisis and the terrorist attacks which took place in Paris in 2015, some Schengen member states have temporarily reintroduced controls on some or all of their borders with other Schengen states For the latest information, it is advisable to research the up-to-the-minute rules regarding Temporary Reintroduction SCHENGEN VISA SCHENGEN TERRITORY TEMPORARY CONTROLS TEMPORARY REINTRODUCTION
- 5. 5 Premium sponsor Gold sponsor Exhibitors SCHENGEN VISAS: UNDERSTAND COUNTRY-SPECIFIC COMPLIANCE It is important to know and comply with the country-specific guidelines for the Schengen Visa. For example, in Germany, Schengen Visa activities are restricted to: Tourism CEO /CFO duties for German-based companies Intra-Company trainings (not at customer site!) Contract negotiations Supervision of contract deliveries (not the delivery in itself) Deconstruction of machinery bought from German vendor Construction of plants / machinery sold to German customer Establishment of a German subsidiary NOT ALLOWED on a Schengen Visa in Germany: Knowledge transfer, software service delivery
- 6. 6 Premium sponsor Gold sponsor Exhibitors UNITED KINGDOM: MAC ANNOUNCES REFORM In March 2016, MAC issued preliminary response to comprehensive review of Tier 2 (General) and Tier 2 (ICT). Implementation of changes will be rolled out in two phases (November 24, 2016 and April 2017) These reforms specifically aim to reduce economic migration from outside of Europe and to ensure that skilled work visas are limited to skills shortages and highly specialist experts. The primary impact is that of cost to employers.
- 7. 7 Premium sponsor Gold sponsor Exhibitors UNITED KINGDOM: IMPACY TO TIER 2: GENERAL CATEGORY Minimum salary threshold for experienced workers will be increased in two phases: • £25,000 on November 24, 2016 • £30,000 in April 2017 • Some health and education professionals (ie, nurses, paramedics) will be exempt from this increase until July 2019. The Tier 2 (General) annual limit of 20,700 for Restricted Certificates of Sponsorship will remain. An immigration skills charge will be introduced beginning in April 2017 and will require Tier 2 employers to pay a fee of £1,000 per Certificate of Sponsorship per year. The government will not be implementing changes recommended by the MAC for Tier 4 students switching to Tier 2, and employers will be able to recruit students without being subject to the annual cap on Tier 2 (General) and without a Resident Labor Market Test.
- 8. 8 Premium sponsor Gold sponsor Exhibitors UNITED KINGDOM: IMPACT TO TIER 2: ICT CATEGORY Tier 2 (ICT – Graduate Trainees) Minimum salary will be reduced from £24,000 to £23,000 and employers may sponsor up to 20 (previously was 5) Tier 2 (ICT – Short Term Staff) Will close to new applications in April 2017. The transitional period until April 2017 will allow employers to plan for these upcoming changes. Tier 2 (ICT – Skills Transfer) Will close to new applications in November 2016. Minimum salary threshold will be increased to £30,000. Provisions will be amended to provide a route for senior managers and specialists AMENDED PROVISIONS ICT SUB-CATEGORIES The current ICT sub-categories will be simplified by requiring all ICT migrants to qualify under a single visa category, with a minimum salary threshold of £41,500.
- 9. 9 Premium sponsor Gold sponsor Exhibitors UNITED KINGDOM: IMPACT TO TIER 2: ICT CATEGORY £155,300 April 2017, the minimum salary threshold for intra- company transferees working between five and nine years in the UK will be lowered from £120,000 to The one year experience requirement will be eliminated for applicants who are paid over £73,900 All intra-company transferees will be required to pay the Immigration Health Surcharge beginning in the fall of 2016. £1,000 (person/ year)
- 10. 10 Premium sponsor Gold sponsor Exhibitors UNITED KINGDOM: COMPLIANCE IMMIGRATION ACT 2016 MISUSE CONSTITUTES A CRIMINAL OFFENSE • People who work on a visitor’s visa; • People doing work that is not listed on their visa; • Leave to enter or remain in the United Kingdom has not been granted; and • Leave to enter or remain in the United Kingdom has terminated. UK PENALTIES • Six months imprisonment and/or • An unlimited fine in England PENALTIES IN SCOTLAND AND IRELAND • Imprisonment of six months and/or • A fine of the statutory maximum. • The employees’ wages can be seized as well, (considered to be proceeds of crime). Foreign National must have the right to work in the UK.
- 11. 11 Premium sponsor Gold sponsor Exhibitors UNITED KINGDOM: BREXIT Negotiations on the terms of the UK’s exit might take up to 2years Until any withdrawal agreement is implemented, the legal situation of EU nationals currently living and working in the UK, and UK nationals resident in other EU countries, will not have legally changed. Any decision to leave and subsequent negotiations are likely to fundamentally change the UK immigration landscape, since the EU principle of freedom of movement of people would no longer apply to the UK. WITHDRAWAL AGREEMENT CHANGE IN NEGOTIATIONS
- 12. 12 Premium sponsor Gold sponsor Exhibitors UNITED KINGDOM: BREXIT IMMIGRATION CONSIDERATION PR confirms that the foreign national has indefinite leave to remain in the UK It would be very difficult for the UK to go back on this status when the UK exits the EU Employees should consider applying for Permanent Residence, if they have lived and worked in the UK for 5years
- 13. 13 Premium sponsor Gold sponsor Exhibitors GERMANY: IMMIGRATION TRENDS Until any withdrawal agreement is implemented, the legal situation of EU nationals currently living and working in the UK, and UK nationals resident in other EU countries, will not have legally changed. years Due to a strong economy and its over-aging workforce demographic, Germany tries to attract qualified migration. Either academic degrees or vocational qualifications may migrate to Germany provided they have a job offer from a German-based employer. Dependents are allowed to work. The influx of refugees has created delays in processing times. Potential changes on business immigration law are on hold. (ie, ICT Directive) While Germany, in general, is still a very welcoming country for migrants, certain parts of the political landscape shift towards more restrictions and better controls. We expect a trend towards more checks / verifications of employment permits in the future. MIGRATION CRISIS INCREASED VERIFICATION QUALIFIED EMPLOYEES POTENTIAL CHANGES QUALIFIED MIGRATION
- 14. 14 Premium sponsor Gold sponsor Exhibitors GERMANY: IMPROVEMENTS FOR VISA APPLICATIONS Principal visa applicants, and their dependents, who were previously in Germany under long-term stays, can now enter Germany solely upon consular approval. If the German local authorities do not give a denial notification within ten days of the submission of the application, the consular post will assume the local authorities’ consent. Dependents who have submitted their visa applications along with the principal applicant, and who have not previously resided in Germany, should experience reduced processing times of two to three weeks. (Family reunification previously took months for processing) The changes have driven down processing times significantly and made the following improvements: To simplify visa applications, the Federal Government amended the visa application procedures for employment and family reunion entry visas.
- 15. 15 Premium sponsor Gold sponsor Exhibitors GERMANY: IMMIGRATION OPTIONS FOR IT SECTOR: EU BLUECARD May be obtained by Non-EU nationals who are offered local employment by a German company. University degree comparable to German standards Minimum annual salary of EUR 49,600 (2016) Local employment with an employer in Germany for min. 1 year Can work in Germany only with this VISA REQUIREMENTS For certain shortage occupations, of which some professionals within Information Technology qualify, the salary threshold is reduced to EUR 38,688(2016) This offers an incredible advantage for IT sector firms and their employees. The EU Blue Card is the only German immigration permit that allows a person to be leased out to a third party. • This is of special value to the IT industry that often provides services to their customers on a contractual basis. • In Germany, this may be regarded as labor lease, which is subject to strong government regulations however, with the EU Blue Card, this can be avoided • The EU Blue Card is portable after 2 years of Blue Card being issued.
- 16. 16 Premium sponsor Gold sponsor Exhibitors GERMANY: IMMIGRATION OPTIONS FOR IT SECTOR: SOFTWARE INSTALLATION VISA This option can be used when the project in Germany involves software and information technology. VISA QUALIFICATIONS The software must be individually programmed for the customer (not using modules or an off the shelf product); It cannot be an extension or upgrade to an existing system; and It must be for a stand-alone application. If criteria is met, assignee can travel to Germany without meeting traditional 1 year tenure requirements. This permit type is often misused and to avoid penalty, all the mentioned criteria must be met.
- 17. 17 Premium sponsor Gold sponsor Exhibitors GERMANY: COMPLIANCE REMINDERS Differentiate between business travel and employment / work. If in doubt, ask a lawyer. Do not trust oral communication from the authorities! Misuse of Schengen visa for work is a criminal offence. Also results in up to 5 year blacklisting. Information on salary that is provided to authorities must be correct. Inform authorities about changes.. Keep application documentation and visa / permits on file. Permits become invalid if employee spends > 180 days outside Germany.
- 18. 18 Premium sponsor Gold sponsor Exhibitors FRANCE: IMMIGRATION UPDATES October 28, 2016: A decree was issued enforcing that a short term (<3 months) work permit will no longer be required for the following categories: Employee on a Local Contract in France in: • Sports, cultural, artistic and scientific events • Professional conferences, seminars and workshops • Film, audio-visual, entertainment and Phonographic publishing production and distribution, if the employee is an artist or technical personnel that is directly part of the production or project • Modelling • Personal services and domestic workers during the assignment in France of their private employers • Education given occasionally by visiting professors Employee on Detachment: • Assignments for audits, and • Experts in IT, management, finance, insurance, architecture and engineering • There is no indication yet of what information will be required for nationals requiring a short term Schengen Visa
- 19. 19 Premium sponsor Gold sponsor Exhibitors FRANCE: IMMIGRATION UPDATES The new “Talent Passport” will impact highly skilled foreign nationals, entitling the holder to a new classification of residence permit valid for four (4) years. The following will fall under the Talent passport category: • Change of status for students holding a Master degree from France • European Blue card • ICT “salarié en mission” with a local employment contract in France • Scientists/Researchers • Applicants holding a Master degree who wish to open a business in France • Foreign nationals who present a project in innovation that has been recognized by an official administration • Foreign nationals who invest directly in France • Artists • Talent Passport permits will be processed at the French consulates. • All applications that have been filed prior to November 1st will be processed in the previous manner • Delays expected in adjudication until the visa services are operational and the new forms are introduced
- 20. 20 Premium sponsor Gold sponsor Exhibitors FRANCE: IMMIGRATION UPDATESThree separate permit categories will exist for ICT Employees on Detachment status: ICT Employee on Detachment – issued for an employee who is on an assignment in a senior management position or to provide expertise, to a company in France that is part of the same group as the home country employer. ICT Trainee – issued when there is an approved training agreement within the framework of an internship with an institution or company of the same group as the home country employer. Mobile ICT Employee on Detachment or Mobile ICT Trainee – issued if the foreign national already holds a residence permit issued by another EU country under the category ICT employee or ICT trainee.
- 21. 21 Premium sponsor Gold sponsor Exhibitors FRANCE: IMMIGRATION UPDATES (CONT.) ICT Employees on Detachment status updates: ICT Employees on Detachment permits will be processed at the French consulates. All applications that were filed prior to November 1, 2016 will be processed as it was in the past. Delays expected in adjudication until the visa services are operational and the new forms are introduced.
- 22. 22 Premium sponsor Gold sponsor Exhibitors FRANCE: COMPLIANCE Employers sending or hosting foreign workers in France are subject to increasing inspections by labor authorities. A new decree requires that sending companies appoint a legal representative in France to act as a liaison with the Labour Inspectorate. The legal representative must have access to documents pertaining to the applicant’s employment and the French assignment, and to send the host company in France certain documents prior to the start of the assignment. Failure to comply with the new requirements could result in fines for both the employer abroad and the host company in France.
- 23. 23 Premium sponsor Gold sponsor Exhibitors FRANCE: COMPLIANCE • The sending company must designate a legal representative in France who will be the liaison between the labour inspectorate and the employer abroad. The legal representative must have access to the following documents: • The employee’s French work permit, immigration medical certificate, payslips, proof of salary payment and timesheet; • Evidence of the employer’s business activity abroad and in France, and social security compliance; • The employment contract of the employee and, if applicable, the service agreement between the employer and the host company in France; and • A copy of the letter designating the legal representative. This affects employers transferring their employees to France in both the salarié en mission detaché (intra-company transfer with home payroll) and the salarié detaché hors mobilité intragroupe (service provider with home payroll) categories.
- 24. 24 Premium sponsor Gold sponsor Exhibitors FRANCE: COMPLIANCE The host company in France must now ensure that it has access to the following documents before the assignment starts: The prior detachment declaration filed with the labour inspectorate that has jurisdiction for the place of work A copy of the letter designating the legal representative A copy of the French work permit, which needs to be added to the personnel register.
- 25. 25 Premium sponsor Gold sponsor Exhibitors ICT DIRECTIVE FOR EUROPEAN COMPETITIVENESSThis directive is aimed at improving European access to needed global talent which will promote EU competitiveness and economic growth. . Meant to facilitate intra-EU mobility for ICTs, eliminating country-by-country applications and substituting instead common EU rules designed to save time and trouble for applicants. According to the Commission 15,000 to 20,000 intra-corporate transferees will be admitted annually in the framework of this directive. The recent tumultuous political environment throughout Europe, and the on-going refugee crisis, have resulted in heavy scrutiny and postponement of this. Not only will the EU gain "new skills and knowledge, innovation and enhanced economic opportunities for the host entities", but multinational companies within Europe should find great relief in the additional immigration flexibility brought forth by the directive. EUROPEAN ACCESS HEAVY SCRUTINYANNUAL ADMITTANCE INTRA-EU MOBILITY IMMIGRATION FLEXIBILITY
Editor's Notes
- 2016 brought about a significant amount of reform to immigration in the UK. The UK has a lot of foreign workers, many of whom are in the IT industry. The reforms are meant to slow down that influx of foreign workers and to promote jobs for UK nationals. The government’s overarching goal is to support growth and productivity in the national economy by: protecting job opportunities for UK residents; reducing UK businesses’ reliance on foreign workers; and preventing businesses from using foreign workers to lower wages. However, these reforms are also intended to constrain migration primarily by raising costs to employers and foreign workers. In light of the recently announced changes by the Home Office, employers will need to undertake a full review of their recruitment practices in order to determine whether employing a non-EEA national worker is cost beneficial. UK Immigration now has the highest visa fees in the World. The increase in cost, and inevitable decrease in the numbers of skilled migrants coming into the UK, is likely to affect the attractiveness of the UK as a place for inward investment.
- Reforms to Tier 2 skilled worker categories resulted from the recommendations of the Migration Advisory Committee (MAC). The salary threshold for new Tier 2 General hires will increase to £25,000 (this will not apply to any workers sponsored before 24 November 2016 who apply to extend their Tier 2 General visa)
- The short term visa category has been a preferred visa option for a number of employers and clients alike. This is because it enables employees to undertake training for a period of six months under the skills transfer visa. In addition to this, it enables employers to send employees to the UK for a short period before determining whether the employees’ services are required long term. We believe that most of the employers to be affected by the closure of this route are those in the information technology (IT) sector. This is because most employees are required to come to the UK to work on short projects which is in line with the contracts signed between the parties. Employers will therefore need to review their recruitment practices in readiness for these changes. One option may even require taking the work offshore which will have a negative impact on the UK economy as a whole.
- Fortunately, the changes announced by the Home Office are not all doom and gloom as there were a number of positive changes. The reduction of the ‘high earners’ salary threshold for the long-term staff sub-category of Tier 2 (ICT) from £155,300 to £120,000 from April 2017 will be a welcome development. This means that once an employee earns in excess of £120,000 they can remain in the UK for up to nine years. In addition to this, the removal of the requirement for those in the long-term staff sub-category to have 12 months’ employment with the overseas entity before they are eligible for sponsorship where their salary is over £73,900, is also a welcome development. £1,000 for a migrant each year is a significant amount which excludes other fees as discussed above. Once the fees are introduced the average fee for sponsoring an overseas worker will amount to £7,500 for a single applicant. In the event that an overseas worker has dependents this figure will be considerably higher. One of the most welcome developments was the government’s decision not to implement one of its initial proposals (which the MAC recommended was not taken up) not to allow dependants to work. To have brought this in would have placed the UK at a clear disadvantage against other countries.
- A new provision in the Immigration Act 2016 sets forth a penalty for workers and or employers that hire a foreign national illegally. The provision has taken effect July 12, and will not be employed retroactively. Employers should ensure that the foreign national employee has the right to work in the UK. Employers that know or should have known that their employee does not have the right to work in the UK will now be subject to an imprisonment of five years, rather than the previous two, and receive an unlimited fine (also known as a ‘civil penalty’) for each illegal worker. The fine can reach € 20,000 for each illegal worker. The Home Office released a report on how to accurately perform right to work checks for its employees. A migrant worker that has reason to believe his or her immigration status has changed, preventing them to work, but continues to do so, will have committed a criminal offense.
- The result of the referendum has had an immediate and significant impact in some areas, particularly in the stock market and foreign exchange. Commentators are predicting large scale restructuring in particular sectors and some organisations are already taking steps to relocate staff. Increased market volatility is likely to reduce the value of assets in pension schemes. However, when it comes to the law itself, the pace of change is likely to be much slower. Until the UK formally leaves the EU there is no immediate need (or ability) to make any changes. Restricting immigration was a fundamental driver of the Leave campaign. However, there will be no immediate impact of the vote as the free movement principle will continue to apply until the UK actually leaves the EU. Ultimately, transitional arrangements are likely to be introduced to protect people from the EU and Switzerland already living in the UK to assist them to acquire permanent residence.
- Restricting immigration was a fundamental driver of the Leave campaign. However, there will be no immediate impact of the vote as the free movement principle will continue to apply until the UK actually leaves the EU. Ultimately, transitional arrangements are likely to be introduced to protect people from the EU and Switzerland already living in the UK to assist them to acquire permanent residence.
- The government states that there is detailed monitoring on the type of accommodation and duration of stay to scrutinize violators. To simplify visa applications the Federal Government amended the visa application procedures for employment and family reunion entry visas. This will reduce the difference in processing times between the two visas. The amendments eliminated an approval step that proved to be time-consuming for local immigration authorities. As such, this amendment should significantly reduce processing times and allow for the following improvements: Principal visa applicants and their dependents who were previously in Germany under long-term stays can now enter Germany solely upon consular approval. If the local authorities do not give a denial notification within ten days of the submission of the application, the consular post will assume the local authorities’ consent. Visa applications for qualified dependents who have submitted their applications along with the principal applicant and who have not previously resided in Germany, should experience reduced processing times of two to three weeks. These amendments came into force on December 29, 2015 and should considerably reduce processing times for employment and family reunion entry visas.
- The end of 2016 will usher in changes to French work and residence permits for foreign nationals, dependents and some employers. Under this new law, certain passport holders and some short-term assignees will no longer require permits. The new law seeks to change the classification of several types of work and residence permits. The changes will seek to improve the French immigration system in terms of ease of use and strengthening the attractiveness of France to foreign talent. In addition, it will assist in bolstering regulations that combat illegal immigration.
- The end of 2016 will usher in changes to French work and residence permits for foreign nationals, dependents and some employers. Under this new law, certain passport holders and some short-term assignees will no longer require permits. The new law seeks to change the classification of several types of work and residence permits. The changes will seek to improve the French immigration system in terms of ease of use and strengthening the attractiveness of France to foreign talent. In addition, it will assist in bolstering regulations that combat illegal immigration.
- Employers sending or hosting foreign workers in France are subject to increasing inspections by labor authorities. In an effort to enforce a decree passed in March of 2015 which requires employers to save extensive documentation of posted workers, French labor inspectors are performing unexpected inspections of companies to ensure compliance of labor laws.
- Recent changes to French labour law for companies sending their employees to France on assignment, under detachment status (i.e. remaining on home payroll). These employers must appoint a legal representative in France who has access to documents pertaining to the applicant’s employment and the French assignment, and to send the host company in France certain documents prior to the start of the assignment. Failure to comply with the new requirements could result in fines for both the employer abroad and the host company in France. The decree requires that sending companies appoint a legal representative in France to act as a liaison with the Labour Inspectorate. The company or legal representative must retain extensive documentation pertaining to posted workers and make it accessible during inspections. Such documentation includes work permits, employment and pay records, timesheets, medical certificates, proof of payment of wages, proof of compliance with social insurance laws and business records among other documents. Furthermore, French host companies must retain copies of work permits for non-EU nationals, detachment declaration and a document designating a legal representative for the company in France.
- A proposed ICT directive is aimed at improving European access to needed global talent. Here are the basics: 1. Intra-Corporate Transferees are temporary; they are not immigrants Businesses with operations in and out of the European Union send highly skilled staff to the EU for specific, time-limited tasks no one else can accomplish. Often ICTs must visit more than one EU country to complete their temporary assignments. Once finished, they return home or move on to projects outside the EU. ICTs provide company, product, service and / or client specific skills that cannot be sourced locally in the EU. Examples include specialists who install technology, train customers, or help in their own companies; trainees sent temporarily to the EU to learn new skills that benefit their companies and home countries; and managers who open new units or teach other managers. The Problem: Today’s rules require ICTs to obtain separate permits for each EU country, frustrating free movement and increasing costs. Member States all have their own requirements for permits and supporting documents. That has fostered such delay, confusion, and uncertainty in obtaining ICT permits that 40 percent of companies surveyed by the OECD said their projects were affected1. Their customers – that is, EU companies -- were the losers. 1 Crucial need: The European Commission declared that ICTs are those “whom the EU economy crucially needs”2. That need is keenly felt by customer firms in the EU. ICTs allow companies to fill pressing skills gaps at short notice, without providing a route to permanent immigration. In fact, by contributing to the available skills pool in the Member States, ICTs encourage important investment flows into the EU, aid in the drive of innovation, and ultimately help create employment locally. 2. ICT Directive: Simplified rules, increased European efficiency Proposed Solution: The proposal is meant to facilitate intra-EU mobility for ICTs, eliminating laborious country-by-country applications and substituting instead common EU rules designed to save time and trouble for applicants. ICT permits would be issued faster and cost applicants less, increasing efficiencies and boosting the European economy. Helping EU companies: Global companies deploy specialists around the world to help customers. Customers in Europe may be denied access to such specialists unless there is a fair and simple process to obtain ICT permits. 3. ICT directive is different from the Blue Card directives Blue Card holders immigrate to gain permanent EU residence; ICTs do not immigrate but are posted temporarily to achieve pinpointed goals. Small numbers: The International Migration Outlook in 2008 reported ICTs from selected countries represented only four percent of temporary labour migrants.3 ICTs are employees whose sophisticated, specialist skills are in high demand to help customers around the world. If intra-corporate transfer permits are readily obtainable in the EU, customer companies here will benefit. Otherwise some of these skills will be lost to Europe, going instead to customers in other regions.
- In 2015, the Western Australian Government introduced a tuition fee for families on a 457 Visa (temporary skilled workers) whose children attend public schools in the Western Australian territory. In a similar step, beginning January 1, 2017, the South Australian Government plans to implement a tuition fee for families in Australia with a 457 Visa whose children attend public schools in in the South Australian territory. The tuition fee will extend to all subclass 457 Visa holders beginning January 1, 2018. Families with dependent school aged children attending a government school will soon be obligated to pay an annual contributions. The annual contributions, beginning in January 2017 are: Primary school – AUS$5,100 per student High school – AUS$6,100 per student A family that does not make a combined annual income of at least AUS$57,000 are exempt from paying the contribution fee. The full rate of the contribution fee goes into effect once a families combined annual income is equal or above to AUS$77,000. The combined annual income increases by AUS$10,000 for each additional child. A waiver of the tuition fee contributions is available to families that experience hardship. The waivers are granted in exceptional circumstances but can help families that cannot afford the tuition fees.