by Maria Celebi, ABIL Lawyer
Bener Law Office

The Turkish Work Permit Directorate has again recently made several changes to the work permit regulations and procedure.The first set of changes occurred on April 28th, mostly concerning integration into the regulations of the online work permit application system implemented last August. The second set of changes, publically disclosed on April 25th 2011, deals with the 5:1 ratio requirement of Turkish national to foreign employee per work permit.

First set of Regulatory Changes- in addition to updating the regulations to reflect application online filing rules, there are the below additional  amendments:

Maintenance of status during adjudication of a work permit Renewal: A foreigner may now work up to 45 days in the workplace in the same position following the expiration of the work permit, provided that a renewal application is filed timely. The renewal filing with the Labor Ministry will be communicated to the Interior Ministry online. [note: this will be of great assistance to renewals of group B nationals]

New Special Consideration to Work Permit Applications to Certain Spouses of Turkish Nationals: If the foreigner has been married to a Turkish Citizen for at least 3 years, the following will not be taken into consideration in adjudication; (i) employee’s proposed position, (ii) employee’s education, (iii) 5:1 ratio, paid-in capital and other work permit adjudication criteria.

Official Opinion from Unemployment Agency: The Ministry can now ask for feedback from the Turkish Employment Organization (İSKUR). This feedback may be used to determine whether a similarly-qualified Turkish national can be found for the work permit position within 4 weeks.

Updated Deadline for notification of Change of Workplace: The Labor Ministry must be notified within 15 days of a change in employee or employer’s workplace. Note this deadline does not apply to all types of work permits.

Filing deadline: The 6 day deadline to submit the application package to the Ministry following filing the online application is clarified to be 6 business days.

Change in Procedure to Applications filed by Spouses of Foreign Diplomats or International Institutions: Work permit applications of the spouse and children of an foreign diplomat working in a Consulate/embassy in Turkey or in an official capacity with an international institution or their Turkish representatives, can now be filed directly to the Labor Ministry (previously through the Foreign Ministry) and the Ministry will request feedback of the Foreign Ministry.

Second set of Changes- With regard to the Foreigners to local employee 5:1 ratio, the changes clarified situations in which the application will not be subject to the ratio:

If there is evidence the position that is the subject of the work permit application requires advance technology or that a Turkish national specialist couldn’t be found, both the 5:1 employee ratio and capital requirement shall not be not applied.

For companies which satisfy the Foreign Direct Investment requirements* (see below), the 5:1 ratio will be applied by taking into consideration every employee of all the Company’s Turkey workplaces. [Note that this would appear inconsistent with the Directorate’s previous position to count all workplaces regardless of the status of the company. As Bener advised previously, this position was subject to change.] If the foreign employee is a “key personnel” under this law, the Directorate may not count him/her in the 5:1 ratio.

When the foreigner will work on a product and service procurement for public institutions or by public tender, OR when the application is subject to a bilateral or multilateral agreement to which Turkey is a party, BOTH the 5:1 ratio and capital requirement shall not apply.

Also note that for work permits in the entertainment and tourism industry:

Petitioning firms in entertainment and “tourism-animation” industry, should have at least 10 Turkish national employees to be authorized for one foreign national employee work permit, and also five more Turkish national employees for every additional foreign employee for the jobs involving specialization and ingenuity.

*Foreign Direct Investment Law requirements for companies: the company or a branch must show that either:

a) The last annual turnover amounts to at least 67,02 million Turkish Lira, under the condition that the total capital share of the foreign shareholders amounts to at least 894,068 million Turkish Lira, OR

b) The last annual exports amount to at least 1 million US Dollars, under the condition that the total capital share of the foreign shareholders amounts to at least 894,068 million Turkish Lira, OR

c) At least 250 personnel are employed with the company or branch within the last year, of which all are registered with the Social Securities Institution, under the condition that the total capital share of the foreign shareholders amounts to at least 894,068 million Turkish Lira, OR

d)  Will make an investment, the minimum fixed investment amount foreseen shall be at least 22.4 million Turkish Lira, OR

e) The principal company features any direct foreign investment in at least one more country apart from the country where its head offices are situated.

by Marco Mazzeschi, ABIL Lawyer
Mazzeschi Srl

With the increasing problem of illegal immigrants landing on the Italian island of Lampedusa, Prime Minister Berlusconi took advantage of a law regarding the issuance of emergency temporary permits of stay. Pursuant to the law, permits of stay can be issued in cases of war, humanitarian reasons, natural disasters and other notable events for those coming from non-European Union countries. For North African nationals that have arrived in Italy between January 1 and April 5, permits of stay will be issued that have a duration of 6 months. Excluded from receiving the permits are those who entered before 2011, are considered dangerous or with criminal records, or were previously expelled from Italy.The permits must be requested by April 15th at the Questura (main police station) and grants the holder the possibility to also travel throughout the Schengen area. Some countries like France and Germany as well as the EU commission have raised concerns about the validity of these permits in the Schengen area.

from ABIL Immigration Insider

Less migration: The UK government proposes various measures to reduce immigration and save public funds.

On February 16, 2011, the UK Border Agency (UKBA) released a Statement of Intent (SOI) detailing proposals to change the eligibility criteria for the Points-Based System (PBS) Tier 2 migrants and the operation of permanent limits on certain Tier 2 applications. The UKBA also proposed changing the criteria for indefinite leave to remain (ILR) for Tiers 1 and 2 and work permit holders were made. These changes will take effect on April 6, 2011, including the final closure of the Tier 1 (General) category. Increases in application fees have also been proposed due to the need to cut public spending.

The Coalition Government’s overarching aim for UK immigration is to reduce net migration by "selecting the best and brightest." To help achieve this, UKBA proposes to raise the qualifying thresholds for the Tier 2 category and cap the number of Tier 2 (General) migrants to an annual limit. Moreover, restrictions will extend to the requirements for settlement in the UK to implement the government's "less automatic settlement" agenda.

UKBA is expected to publish the new Rules and formal guidance shortly.

Proposals for Tier 1 (Highly Skilled)

The final closure of Tier 1 (General) on April 6, 2011, will deal a huge blow to both employers and individuals. After the dubious operational assessment of the category in October 2010, which purported to find that 29% of Tier 1 migrants were in unskilled jobs (the report was based on solely Tier 1 dependents who had been in the UK for six months), UKBA believed it had justification to delete the entire highly skilled migrant category. At least there will be transitional provisions in place for those who will be submitting eleventh-hour Tier 1 (General) applications by post, so that their applications will be assessed in accordance with the Rules in place on the date of application (the date the application is posted).

Under the transitional arrangements, migrants who are not already in Tier 1 (General) or its predecessor category under the highly skilled migrant program will not be permitted to switch into this category beginning on April 6, 2011. The Tier 1 (General) route will remain open to allow those with existing leave to enter or remain under Tier 1 (General) or its predecessor to extend their leave. However, the points threshold for extensions will be raised to 100 points for those who required 100 points when first granted leave.

It is feared by immigration practitioners that the Tier 1 (post study work) category may survive the changes only to be phased out after the new rules are implemented. Generous transitional provisions are anticipated, if this were to be the case.

On a positive note, there are proposals for those recognized as possessing "exceptional talent" from different sectors to be certified as "exceptionally talented." It will be decided that a migrant meets the "exceptionally talented" criteria by entities who have been delegated the power to certify migrants. The UKBA has yet to set definitive criteria on what will amount to "exceptional talent." Unsurprisingly, a Nobel prize winner will be viewed as such. The proposals need to be built upon and it is still unclear how the capped allocation of 1,000 migrants for each sector will be managed, let alone how UKBA will deal with an undoubted oversubscription to the category.

Proposals for reform of the Tier 1 Entrepreneur and Investor categories have not yet been published but future (skilled) changes are expected to be nominal.

Proposals for Tier 2

As the main category for sponsored skilled workers, Tier 2 requires a Certificate of Sponsorship (COS) from the migrant's licensed sponsor. These will be divided into "Restricted" and "Unrestricted" COS.

Starting April 6, the Restricted COS will be capped at an annual limit of 20,700 - 4,200 of which will be available for the first month and 1,500 available thereafter. It is proposed that if a monthly limit is undersubscribed, the balance will be added to the allocation for the following month. If the monthly limit is oversubscribed, applications will be prioritized based on a new points table. Much like the old work permit scheme, which ironically the PBS was supposed to displace, sponsors will need to apply to the monthly panel for a Restricted COS each time they wish to sponsor a migrant under Tier 2 (General).

This points system will prioritize occupations on the new shortage occupation list followed by occupations at the Ph.D. level and then occupations meeting the resident labour market test (RLMT). Points will also be awarded for salaries ranging from £20,000-£20,999 with further points for salaries of £100,000 to £149,000. Persons in occupations with salaries of less than £20,000 will be unable to meet the minimum points required.

Unrestricted COS are only available for the Tier 2 categories unaffected by the limit. These fortunate few include intracompany transfers, Tier 2 migrants extending with their original employer or switching to a new employer, migrants switching into Tier 2 (General) from a permitted category, applications under transitional arrangements for existing Tier 2 and work permit holders, positions with a salary over £150,000, and Tier 2 sports people or ministers of religion.

Sponsors will be given an initial annual allocation of Unrestricted COS based on UKBA’s consideration of their allocation requests. These surprisingly generous provisions should enable sponsors to continue employing migrants who are extending their leave with their original employer; switching into Tier 2 (General); or are intracompany transfer migrants, without the need for a salary assessment (as there is for Restricted COS). The consequence will no doubt be a rush of annual allocation requests from sponsors who had been stripped of COS under the previous interim limits. Immigration practitioners are concerned that UKBA may not have provided for this or at least included any mechanism to prioritize urgent requests.

As the new graduate occupation and shortage occupation lists are compiled, some occupations are expected to be dropped from the "skilled" threshold. Positions previously on the shortage occupation list may be removed if they do not meet the new graduate-level criteria. Nevertheless, provided the minimum salary levels are defined clearly and the lists compiled in accordance with Migration Advisory Committee (MAC) recommendations, some positions may be elevated to the new skilled level by virtue of the migrants' previous experience being equivalent to graduate-level. This will apply to all migrants across the board for both Restricted and Unrestricted COS.

Another change proposed for the Tier 2 category is the increased English-language requirement to intermediate English at level B1 on the Common European Framework of Reference for languages. Furthermore, Tier 2 entry clearance applicants will no longer be able to claim points for qualifications.

Settlement

Migrants submitting applications for ILR in the UK on or after April 6, 2011, will be affected by the changes to settlement requirements to be introduced on April 6, 2011. The changes will introduce a new income requirement for Tier 1 (General), Tier 2 (General) and work permit holders applying for settlement; will amend the Knowledge of Language and Life in the UK requirement for Tier 1 (General), Tier 2 (General) and work permit holders; and will clarify the criminality test applied to all applicants for settlement. UKBA's proposals to tighten settlement requirements bear, on closer inspection, a likeness to the outgoing government's ideas (published in the "Path to Citizenship" green paper on February 20, 2008) for selecting migrants with "the right values and commitments" who could integrate well into British society. There is one key difference however, as there appears to be no inclination to mimic the "earned citizenship" proposal.

Unfortunately, as changes are proposed for the Tier 1 and Tier 2 categories, UKBA has failed to align its proposals with settlement rules and nationality law. For instance, the lure of "accelerated settlement" for Tier 1 (Entrepreneur) and Tier 1 (Investor) migrants who invest more money into the UK does not factor in the requirement of continuous residence in the UK under the settlement rules, which most entrepreneurs and investors will not be able to meet. UKBA has remained silent on this matter, but it is evident that primary legislation may need to be amended accordingly.

Conclusion

UKBA’s aim to create a "flexible system designed to meet business needs" as well as to reduce net economic migration may seem almost impracticable but may be indeed achieved in part. Though it is a difficult balancing act, it cannot be denied that many potential applicants will now fall short of the higher thresholds, resulting in a net reduction in migration. It remains to be seen whether the new rules will constrict businesses from employing as many non-EEA migrants as required or whether businesses will remain unscathed.

from ABIL Global Immigration Update

As noted in the February issue of ABIL's Global Immigration Update, on April 1, 2011, the Canadian government introduced into law a number of important legislative amendments on employer immigration compliance concerning foreign worker work permits and Labour Market Opinions from Service Canada. In summary, the immigration law changes, which took effect April 1, 2011, are as follows:

A.  The government has introduced a new test to evaluate the genuineness of an offer of employment to a foreign worker, based on:

• Whether the offer is made by an employer that is actively engaged in the business in respect to which the offer is made;
• Whether the offer is consistent with the 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.

B.  The regulations limit to four the number of years in which certain foreign workers can remain in Canada on work permit status. Once they have completed the four-year work permit period, they are not authorized to work in Canada for another four years.

Fortunately for employers, some foreign workers are exempt from this four-year work permit limitation. Exemptions to the four-year limitation include foreign workers who have been on the following types of work permits or are in the circumstances listed below:

Temporary foreign workers in certain managerial or professional occupations.

Temporary foreign workers who have applied for permanent residence and received:

• A Certificat de sélection du Québec (CSQ) if applying as a Quebec Skilled Worker;
• A Provincial Nominee Program (PNP) certificate if applying as a provincial nominee;
• An approval in principle letter if applying under the Live-in Caregiver Class;
• A positive selection decision if applying under the Federal Skilled Worker Class; or
• A positive selection decision if applying under the Canadian Experience Class.

Temporary foreign workers who are employed in Canada under an international agreement, such as the North American Free Trade Agreement (NAFTA), the Seasonal Agricultural Worker Program, or another agreement.

Temporary foreign workers who are exempt from the Labour Market Opinion (LMO) process, including:

• Spouses and common-law partners of international graduates participating in the Post-Graduation Work Permit Program and highly skilled temporary foreign workers;
• Charitable or religious workers;
• Entrepreneurs, intracompany transferees, researchers, and academics; and
• Others for purposes of self-support (refugee claimants) or for humanitarian reasons (destitute students, holders of temporary resident permits valid for at least six months).

C.  The government has imposed sanctions on employers who do not comply with the new regulations by providing non-genuine job offers in the previous two-year period. The regulations require Citizenship and Immigration Canada (CIC) to post the name of the non-compliant employer on the CIC website.

D.  Recent announcements by Human Resources and Skills Development Canada (HRSDC) and CIC:

Effective April 1, 2011, the government has created a new Application for a Labour Market Opinion for high-skilled occupations. On the new application form, employers will be required to attest to the following, if appropriate (please consult your Alliance of Business Immigration Lawyers (ABIL) Global attorney before attesting to a matter that may not be correct, and please review carefully for accuracy before attesting):

"I will provide any temporary foreign worker employed by me with wages, working conditions and employment in an occupation that are the same as those described in the Labour Market Opinion confirmation letter and annex."

"I will immediately inform Service Canada/Temporary Foreign Worker Program officers of any subsequent changes related to the temporary foreign workers' terms and conditions of employment, as described in the Labour Market Opinion confirmation letter and annex."

"I am compliant with, and agree to continue to abide by the relevant federal/provincial/territorial laws that regulate employment in the occupation specified and, if applicable, the terms and conditions of any collective agreement in place. I recognize that any terms and conditions of the attached offer of employment are considered null and void if they are less favourable to the temporary foreign worker than the standards stipulated in the relevant Labour Standards Act."

"I am compliant with, and agree to continue to abide by federal/provincial/territorial legislation related to the temporary foreign worker's recruitment applicable in the jurisdiction where the job is located. I declare that all recruitment done or that will be done on my behalf by a third party, was or will be done in compliance with federal/provincial/territorial laws governing recruitment. I am aware that I will be held responsible for the actions of any person recruiting temporary foreign workers on my behalf."

In addition, when renewing a foreign worker application, employers must demonstrate that they have been in compliance with previous LMO applications. To demonstrate compliance, employers may be asked to provide any or all of the following:

• Payroll records (to demonstrate the appropriate prevailing wage and overtime paid, source deductions, and explanations of any non-standard deductions);
• Time sheets (to demonstrate that the workers are working the number of hours set out in the LMO confirmation);
• Job description (to demonstrate that the job description accurately reflects the information contained in the initial application and LMO);
• Work permit (to demonstrate that CIC has issued a work permit in compliance with the LMO confirmation information); and
• Various other documents depending on the circumstances, such as registration with provincial and territorial workplace safety, transportation costs, accommodation information and private health insurance, if applicable.

Service Canada and CIC have become much more enforcement-oriented concerning employer immigration compliance under the foreign worker programs.