Summary: Professional migration policy has taken a new course with the inter-ministerial circular published 31 May 2011. As a result Prefectures must examine work permit applications for non- European foreigners with greater scrutiny. In the same perspective, the list of jobs for which workers are in shortage, has been halved. Three months onward, we can confirm the new direction of the professional migration policy, put into practice, has lead to an increase of the number of refusals of work permits and changes of status.

I.  A balanced and selective professional migration
Confronted to multiple economical challenges, especially a high unemployment rate, an increase of the number of working people and a great influx of immigrants, the new course taken by the French migration policy aims to implement a balanced and selective professional migration. For this purpose work permit and change of status applications will be processed with more scrutiny (as per the interministerial circular published 31 May 31 2011) and the list of jobs for which workers are in shortage, has been halved (as per the inter-ministerial decree signed 11 August 2011).

Greater scrutiny of work permit applications (the circular published 31 May 2011)
As well as reasserting the elements established by the article R.5221-20 of the French Labour Code (including labour market testing), to be taken into account in order to examine a work permit application, the inter-ministerial circular urges the Prefects to apply these elements very strictly (kindly review our Client alert: Stricter application and scrutiny sent 17 June 2011). The inter-ministerial circular also clarifies the fact that this reinforced control does not apply to temporary workers, seasonal workers, employees on assignment nor high qualified workers.

The list of jobs for which workers are in shortage reduced by half
An inter-ministerial decree signed 11 August 2011 has reduced to half the list of jobs in certain  fields where employers encounter difficulties in recruiting workers. The list contains from now on only 14 jobs as opposed to 30 previously. Foreign workers can fill these jobs without being submitted to a labour market test in the framework of their work permit application. The reduced list is unique and applies throughout the French territory unlike the previous regional lists which allowed local specificities to be taken into account. This list will be revised 1st August 2013 at the latest.

We must bear in mind that bilateral agreements regarding the control of migration flows have been signed by France and other countries (Brazil, Burkina Faso, Cameroun, Cape Verde, Gabon, Mauritius, Benin, Congo, Senegal and Tunisia). These agreements allow nationals to obtain work permits under conditions negotiated country by country.

II.  The implementation carried out by Préfectures

In order to grant or refuse work permits, the Prefect takes into consideration all the elements mentioned by the article R.5221-20 of the French Labour Code (including labour market testing). In practical terms, the territorial units of the French Labour Office (DIRECCTE) will essentially apply strict labour market tests, except when expressly these do not legally apply (intercompany transfers, high qualified workers, executives, young professionals, holders of the skills and talents card), as well as all the other elements of criteria.

Prior and effective research on the labour market
An employer who wishes to hire a foreign worker must first of all carry out an effective research on the regional and professional labour market in order to prove it could not have hired a worker already on the job market. In practical terms the Préfectures seem to require a two month job advertisement through the Employment Pole (Pôle emploi) or a two to three month advertisement when it is through other organisations.

Estimation of the needs of working force
In practical terms, administration refers to the statistics published by the Pôle Emploi in the “Need of workforce” enquiry (Besoin de Main d’oeuvre, BMO).

The evaluation of the job advertisement and the estimation of the needs of working force carried  out by the Labour Office (DIRECCTE) are mainly based on the data provided by the Pôle Emploi. Therefore it is wiser to advertise the job offer with the Pôle Emploi and to check the needs of working force for the job beforehand according to Pôle Emploi’s statistics.

Thorough scrutiny of the change of status applications
This thorough examination of change of status applications mainly concerns the change of status applications made by foreign students.

Only foreign students having obtained a temporary residence permit (autorisation provisoire de séjour, APS) will be spared the labour market test. Four months at the latest, before their current residence permit expires, students following a five year degree course leading to a Master II degree can apply for a temporary residence permit. In practice, the labour market test will not apply under the followingcircumstances:

• Temporary residence permit application made 4 months before the expiry of the current residence permit;
• Validation of the Master II degree;
• A work contract with a salary equivalent to at least one and a half times the minimum legal wage (SMIC);
• Job description in accordance with the course the student followed;
• Job offer as a first professional experience in the perspective of return to the home country.
  

Reinforced control in the framework of “employee” residence permits renewals
It is reminded by the circular published 31 May 2011 that the initial working conditions and salary must at least be maintained when the “employee” work permit renewal application is made. The circular also reminds us that students having obtained an “employee” residence permit after having been granted a temporary residence permit (APS) can claim to fill a new job at the end of their first professional experience, but in this case the examination of their new work permit application will be based on all the elements listed by the article R.5221-20 of the French Labour Code (including labour market testing).

A change of employer application, a renewal of a fixed term contract or the transition to a permanent contract will also be examined in the light of the article R.5221-20 of the French Labour Code.

As a conclusion, the increase of refusals of work permits and changes of status should convey the professional migration control policy, as the labour market tests are applicable and the results are unfavourable to workers already present in the job.

from ABIL Global Immigration Update

(1) UK Immigration: Open and Ready for Business?

A Statement of Changes in Immigration Rules, detailing changes that came into force on April 6, 2011, was laid before Parliament on March 16, 2011. Among other immigration categories, the statement announced changes to the Tier 1 category of the Points-Based System as expected, and in particular to the Tier 1 (Investor) and Tier 1 (Entrepreneur) categories, but with more changes than anticipated. A definite Tier 1 (Exceptional Talent) category was established and so the Tier 1 category seems to have been redesigned in accordance with recommendations published by the Migration Advisory Committee (MAC) in their report of November 2010: the Tier 1 (Investor) and (Entrepreneur) categories were changed with the aim of attracting direct foreign investment as well as creating jobs, and the Tier 1 (Exceptional Talent) category seeks to attract the brightest and the best, a recurring theme throughout Parliament's amendments.

On March 22, 2011, changes to the Tier 4 category of the Points-Based System were announced by Home Secretary Theresa May. The Tier 4 category, which deals with non-European Economic Area student migrants, will be redesigned by April 2012 with the stated goal of serving the brightest and the best students. The Home Secretary has also promised a new entrepreneur route aimed at students that would allow those with business ideas and a potential to create wealth an opportunity to remain in the UK after graduation.

These changes seem to be consistent with the Coalition Government's objective of supporting a private-sector-led economic recovery while reducing net migration from hundreds of thousands to tens of thousands. However, while they do send the message that the UK is open and ready for business, Britain must be careful not to favor only those willing to invest large sums in the country or those who are ready to develop businesses, and should provide ways for those who will contribute to UK economic recovery in other ways to enter the country also.

Tier 1 (Investor)

Beginning April 6, 2011, migrants who apply under the Tier 1 (Investor) category of the Points-Based System enjoy increased flexibility in their status and require less time to be able to settle in the UK. Initial leave is granted for three years and four months. After investing £5 million in the UK, an investor may settle in the country after three years, and after an investment of £10 million, after two years, both significantly shorter periods of time than the current minimum of five years required for settlement. In addition, investors are permitted to be absent from the UK for up to 180 days in any 12 months without jeopardizing their right to settle, which is double the current limit of 90 days.

Tier 1 (Entrepreneur)

Tier 1 (Entrepreneur) migrants are also granted an initial leave of three years and four months, with a potential extension of two years and settlement after five years. Entrepreneurs are now able to accelerate settlement after three years in the UK, however, if they generate a turnover of £5 million or create ten jobs in a three-year period. As with investors, entrepreneurs are permitted absences from the UK for up to 180 days in any 12-month period. Most important, while the standard investment threshold will remain at £200,000, businesses that the UK Border Agency considers as "high-potential businesses" may enter the country with £50,000, as long as the sum is provided by registered venture capitalists regulated by the Financial Services Authority, registered UK entrepreneurial seed funding competitions, UK Government Departments, or a combination of the three. Entrepreneurs may enter the UK with business partners if they have access to joint funds.

Prospective Entrepreneurs

Prospective entrepreneurs may enter the UK with a new type of visitor visa designed especially for those looking to set up businesses in the UK. Unlike those who enter the country with a business visitor visa, prospective entrepreneur visa holders are permitted to apply for a Tier 1 (Entrepreneur) entry clearance or visa while they are in the UK.

Tier 1 (Exceptional Talent)

As of August 9, 2011, the UK Border Agency (UKBA) started accepting applications for the new Tier 1 (Exceptional Talent) Category. Tier 1 (Exceptional Talent) is for those foreign nationals who are "internationally recognized as world leaders or potential world-leading talents in the fields of science and the arts." During the first year of this category, there is a limit of 1,000 grants of entry clearance (700 in science and 300 in the arts), and the limits will be reviewed by April 2012. These foreign nationals will not require employer sponsorship but will need a Unique Reference Number (URN) from the UK Border Agency and a nomination from a Designated Competent Body (DCB) before applying for the entry clearance visa at the UK consular post in their country of residence. The Designated Competent Bodies and their allocations are:

1. The Royal Society: 300 nominations;
2. The Arts Council England: 300 nominations;
3. The Royal Academy of Engineering: 200 nominations; and
4. The British Academy: 200 nominations

There will be a cap on the number of visas available in the Tier 1 (Exceptional Talent) category, with the UK Border Agency allotting a total of 1,000 spots between August 9, 2011, and April 5, 2012. The first 500 are available for use between August 9 and November 30, 2011, and the second 500 between December 1, 2011 and April 5, 2012. The UK government will reassess the need for additional visas in March 2012.

Tier 1 (Exceptional Talent) visa holders will initially be permitted to stay in the UK for up to three years and four months. They will be able apply for an extension, allowing them to stay for two additional years. If these individuals complete five years of residence in the UK under this status, they will qualify for Indefinite Leave to Remain (permanent residence).

Tier 4

Changes to the Tier 4 category, designed for student migrants, will be implemented starting April 2012. The category will be changed to cater to and "protect" only the best and brightest students, in the words of the Home Secretary. In her statement on March 22, 2011, Theresa May expressed her goal of making the student category a route through which migrants would come to the UK "for a limited period," "to study, not work," and to "make a positive contribution" to the UK.

To realize this goal, more responsibilities will be placed on both academic institutions and students. Beginning in April 2012, institutions must be classified as "Highly Trusted" sponsors and be accredited by statutory education inspection bodies by the end of 2012 before they can sponsor students. Students will lose their right to work unless they are at universities and publicly funded further education colleges and will no longer be able to bring dependents unless they are postgraduate students at universities or government-sponsored students (currently all students on longer courses are permitted to bring dependents). The overall time that a migrant can spend in the UK on a student visa will also be reduced for some. While the limit will remain at three years for lower-level courses, it will be reduced to five years at higher levels (at present, a limit for study at or above degree level does not exist). Students will also have to demonstrate a proficiency in English at a higher level: at the B2 (upper intermediate) level instead of at the B1 (lower intermediate) level.

See below for more details on changes to Tier 4.

The Tier 1 (Post-Study Work) category, which will close in April 2012, allows students to seek employment in the UK for two years after the end of their courses. Students may find alternative routes to stay in the UK after graduation if they receive an offer of employment (and apply under the Tier 2 category) or if they qualify as "innovative student entrepreneurs"; the Home Secretary has expressed plans to create a new entrepreneur route for students with business ideas and plans to create wealth in the UK.

Conclusion

Through changes in the Tier 1 (Investor) and (Entrepreneur) and Tier 4 categories as well as plans to establish Tier 1 (Exceptional Talent), a prospective entrepreneur visitor visa, and a new entrepreneur route for students, the UK seems to be sending quite an eager message that the country is open and ready for business, at least to those who qualify under the changed Immigration Rules. However, if Britain is to live up to the Coalition Government's aim of a private sector-led economic recovery while also reducing net migration, it must be cautious that the Immigration Rules do not merely favor those with large sums to invest, those who have been internationally recognized for their endeavours, or even those who show promise to do so. It must be especially cautious not to penalize legitimate migrants who wish to enter the UK to contribute to the country for the reason that they are unable to demonstrate significant wealth or the clear potential to create wealth at the time of their application, such as recent graduates. Universities and employers have already noted that many talented students choose to study and work in the UK following their studies rather than in the U.S., Australia, or Canada because of the country's unique immigration system. Britain must not be blinded by the simple goal of reducing net migration, but should consider who will truly and most significantly make a contribution to UK economic recovery, and provide ways for them to enter the country.

(2) UK Government Struggles to Reduce Net Migration

Following the United Kingdom's changes to the Immigration Rules implemented on April 6, 2011, including the execution of an annual cap of 20,700 migrants to work in skilled professions under Tier 2 (General) of the Points-Based System, the coalition government continues to identify further restrictions to achieve its stated aim of reducing annual net migration to below 100,000 by 2015.

Changes to Tier 4 of the Points-Based System

A major public consultation on the reform of Tier 4 of the Points-Based System took place from December 7, 2010, to January 31, 2011. Initial changes to the Immigration Rules were subsequently implemented on April 21, 2011, including the introduction of an interim limit on sponsors who did not meet new accreditation criteria and changes to the English language requirement so that those coming to the United Kingdom (UK) to study at the degree level must demonstrate their ability to speak English at an upper intermediate level. Further amendments set forth before Parliament by Immigration Minister Damien Green in a written ministerial statement on June 13, 2011, took effect on July 4, 2011. These revisions include:

• restricting work entitlements to those studying at higher educational institutions and publicly funded further education colleges only;
• restricting the sponsorship of dependents to those studying at post-graduate levels at a higher educational institution and on a course lasting for 12 months or longer and government-sponsored students on courses lasting six months or longer;
• requiring institutions to vouch that a student's new course represents genuine academic progression;
• ensuring that maintenance funds are genuinely available to applicants by introducing a declaration on visa application forms;
• committing to publish a list of financial institutions that are considered not to have verified financial statements to a satisfactory standard in the majority of a sample of cases;
• introducing a streamlined application process for those considered to be "low risk" nationals (including Australian and U.S. nationals) applying to attend a course at a highly trusted sponsor. Applicants under this route will be required to submit fewer evidentiary documents;
• extending the list of courses for which students must receive Academic Technology Approval Scheme (ATAS) clearance;
• restricting the ability to offer accounting courses accredited by the Association of Chartered Certified Accountants (ACCA) to those sponsors accorded platinum or gold status; and
• clarifying the position of overseas universities with campuses in the UK.

Although a number of these changes appear to have been implemented to restrict abuse of the student migration system, it is equally apparent that changes to working entitlements and the sponsorship of migrants' dependents in particular are provisions primarily motivated by the coalition government's commitment to the reduction of net migration. Indeed, the UK Border Agency has stated that it is expected that these new policies are likely to lead to a net reduction of around 230,000 student migrants over the full term of the current government, a figure inconsistent with the commitment of an annual reduction of 70,000 to 80,000 student migrants given by Home Secretary Theresa May on March 22, 2011.

The forthcoming changes have led to comments from the higher education sector that the coalition government is jeopardizing an industry worth £40 billion annually to the UK economy. Additionally, an official UK Border Agency published impact statement indicates that reforms will cost more than £3.2 billion over the next four years in economic output and a further £330 million in lost tuition and immigration application fees. Jonathan Portes of the National Institute of Economic and Social Research has expressed concern that the impact statement shows that "changes to student visa rules will reduce growth and exports." It certainly appears that the amendments due to be implemented to the student migration system are inconsistent with the coalition government's priority of economic recovery, as well as with the stated aim of continuing to attract "the brightest and the best" migrants to the UK.

Consultation on Employment-Related Settlement

A 12-week public consultation on reforms to the routes to indefinite leave to remain in the UK -- commonly referred to as settlement -- available to employment-based migrants began on June 9, 2011. The consultation will address Tiers 1, 2, and 5 of the Points-Based System and Overseas Domestic Workers. Damien Green has asserted that the consultation is focused on breaking the link between temporary and permanent migration and expressed the concern that "settlement has almost become automatic for those who choose to stay." The consultation document outlines a number of proposals for consideration:

• Defining Tier 2 as "temporary" to end any assumption that settlement will be available for migrants who enter the UK under this category;
• Considering whether certain categories of Tier 2 migrants of particular economic or social value to the UK should retain an automatic route to settlement;
• Creating a new category that would allow the most exceptional Tier 2 migrants to apply for settlement after three years. Other Tier 2 migrants would be allowed to stay in the UK for a maximum period of five years, after which they and their dependents would be expected to leave;
• Introducing a new English language requirement for adult dependents of Tier 2 migrants applying to switch into a settlement route;
• Considering restricting the maximum period of leave in Tier 5 (Temporary Workers) to 12 months, as well as removing their ability to sponsor dependents and raising the minimum skill level in the government-authorized exchange scheme to graduate level; and
• Abolishing the route for overseas domestic workers or considering restricting leave to a six-month period as a visitor or 12 months where accompanying a Tier 1 or Tier 2 migrant, as well as ceasing to grant settlement to domestic workers in diplomatic households.

It is apparent that these proposals have the potential to restrict significantly the routes to settlement for those who have entered the UK under employment-based routes, although further details on the implementation of such proposals will not be available until the conclusion of the consultation on September 9, 2011, and parliamentary approval of the subsequent statement of changes to the Immigration Rules.

There continues to be disquiet in the business community that the coalition government's economic policies restrict business growth because of the lack of flexibility in recruitment that they have caused, a perspective previously corroborated by Business Secretary Vince Cable. Although the proposals outlined in the consultation document would be unlikely to be of relevance to businesses seeking to employ overseas migrants on a short-term basis, they would certainly be of concern to organizations with long-term business strategy and recruitment considerations. It is arguable that multinational organizations may be discouraged from establishing and continuing overseas businesses in the UK as a result of the restrictions that these proposals would impose.

Conclusion

It is apparent that the coalition government continues to implement robust changes to UK immigration law to achieve its commitment to reducing net migration to the tens of thousands by the next general election. However, the success of these policies to date may be questioned. The Office for National Statistics figures published on May 26, 2011, state that net migration to the UK has increased by almost 100,000 to 243,000 in the past 12 months. This is partially due to a reduction in levels of emigration. While these figures indicate that attaining an annual net migration to the UK of fewer than 100,000 is unlikely to be an attainable target within the stated timeframe, it additionally indicates that increasingly forceful immigration policies are likely to be implemented if the government is to continue to pursue its stated aim.

from ABIL Global Immigration Update

The Australian Government has announced plans to introduce Accredited Sponsor (AS) status, beginning on November 1, 2011, to facilitate the priority processing of company nominations and temporary entry subclass 457 visas for sponsored employees. AS status can be applied for either with a new sponsorship application or by variation of an existing sponsorship.  

The new accreditation process recognizes that many Australian businesses have a long history of good dealings with immigration authorities, including lodging a high volume of good quality, decision-ready applications and an excellent record of compliance with relevant laws.

Once accredited, the sponsorship agreement will last for 6 years; this compares with the current 3 years for standard sponsors. The same form will be used as for an application to become a standard sponsor. If the criteria for AS status are not met, the application for standard sponsorship will proceed and be assessed in the usual way.

To qualify for AS status, sponsors must demonstrate several additional characteristics above the standard sponsorship requirements at the time of application. The sponsor must:

• be a government agency, a publicly listed company, or a private company, with a minimum of A$4 million turnover per year for the last 3 years
• have been an active 457 visa sponsor for the past 3 years (with a break of no more than 6 months, not due to any sanction)
• have no adverse information known about them based on monitoring by Australian immigration and workplace authorities, including formal warnings and sanctions
• have had at least 30 subclass 457 visa holders granted in the previous 12 months
• have lodged a high level of decision-ready applications over the previous 2 years
• have a non-approval rate of less than 3% for the previous 3 years
• have Australian workers comprising at least 75 percent of their workforce in Australia and a commitment to maintain this level
• have a Collective Agreement or Enterprise Agreement that covers all 457 visa holders earning less than A$180,000 per annum.

If a sponsor fails to maintain these characteristics, AS status can be revoked, resulting in loss of access to priority processing arrangements. 

Australian ABIL member Katie Malyon has indicated that the last of these requirements for AS status means that few sponsors apart from State/Territory governments will be able to access the scheme.

For more information, click here.

from ABIL Global Immigration Update

The fees the Immigration and Naturalisation Service (IND) charges for applications that enable foreign nationals to work or study in the Netherlands, or to form or reunite a family, were raised on July 1, 2011.

The IND fee for an entry clearance visa (MVV) for the purpose of family reunification was raised enormously, from EUR 830 to EUR 1250. Also, a residence permit for this purpose without a MVV was raised to EUR 1250.

The IND application fee for an entry clearance visa (MVV) and residence permit for labor migrants were also substantially raised. The fees for the MVV and residence permit were EUR 433 and EUR 188, respectively. Now the fees are EUR 600 for the MVV and EUR 300 for the residence permit.

Also, the IND fee for a knowledge migrant residence permit application without an entry clearance visa was raised from EUR 331 to EUR 750.

The fee increase does not apply to Turkish nationals and their family members who can derive rights from the EC-Turkey Association Agreement, or to European Union/European Economic Area citizens.

from ABIL Global Immigration Update

For non-European Union nationals who want to come to Italy to learn a trade, the government has announced 5,000 work visas for those who want to participate in a training course. The course must be previously accredited, for a maximum of 2 years, with the applicant receiving a certificate at the completion of the course. An additional 5,000 visas are available for internships that must be approved by the Region where the internship will take place. In either case, the applicant must file an application at the Italian Consulate abroad with the necessary documentation as stated above.

Upon entry into Italy with the visa, a permit of stay for studies will be issued. Upon completion of the training/internship, it may be possible to convert the study permit into a full-time subordinate work permit of stay, if the applicant finds a sponsor and a conversion is available at that time.

Also, 1,300 work visas left over from last year have been re-issued and are available. These are to be used to convert a currently valid permit of stay into one for subordinate work: 597 to convert a permit of stay for study or internship; 571 to convert a permit of stay for seasonal work; 99 to convert a long-term permit of stay from another European Union (EU) country; and 5 to convert a long-term permit of stay from another EU country into self-employment.

Preference will be given to those with a seasonal work permit ready to expire. The Ministry of Labor noted that some workers already present in Italy could find themselves at risk regarding both their immigration status and ability to work.

from ABIL Global Immigration Update

Under the Indian Bureau of Immigration’s general policy, all foreign nationals who arrive on a visa valid for more than 180 days and who expect to remain in India for more than 180 consecutive days during a single visit or stay must register at the designated registration office in the place of residence. 

Until recently, employment visa holders intending to remain in India for more than 180 consecutive days were required to register (unless otherwise indicated on their visa endorsement). However, now all foreign nationals with employment or visas that are valid for more than 180 days must register with the Foreigner Regional Registration Office (FRRO) within 14 days of arrival in India.

Accompanying spouses and dependents who intend to reside in India also must register. Such individuals now must submit additional documents at the time of registration. For example, a spouse on a dependent visa must present the original civil marriage certificate authenticated with an apostille. In cases where a country does not issue apostilles, the certificate must be legalized by an appropriate Indian consular post. A dependent spouse also must provide a “no work” letter to the FRRO confirming that he or she will not engage in any productive work while residing in India. Currently, the FRROs are not asking for authenticated birth certificates for dependent children, but this could change with little or no advance notice. 

List of Mandatory Documents

The following documents are required at almost all the FRROs when registering on an employment visa:

1. Original valid passports and Indian employment visa;
2. Four passport-size photographs;
3. Three copies of the applicant's passport;
4. Copy of applicant's Indian visa;
5. A letter from the Indian employer, requesting registration;
6. A letter of undertaking signed by an Indian national working with the company in India assuming full responsibility for the applicant;
7. Proof of police verification; 
8. Proof of residence address;
9. Evidence of C-Form compliance if staying at a hotel;
10. Employment contract;
11. Proof of compliance with Indian income tax if the applicant has worked in India in the past; and
12. A copy of the applicant's earlier registration booklet if he or she has been registered in the past.

The following additional documents are required at some FRROs:

1. Details of the applicant's movable and immovable property;
2. A copy of the applicant's Permanent Account Number (PAN) card or proof of having applied for a PAN card;
3. Monthly salary certificate;
4. A certificate from the Indian company stating that no qualified Indians were available for the proffered job;
5. A copy of a major utility bill from the landlord of the leased premises where the applicant is residing (if applicable);
6. A copy of the Indian company registration certificate; and
7. Evidence of Tenant Information Form compliance.

The following documents are required at almost all the FRROs when registering on an entry (dependent) visa:

1. Original valid passport and Indian employment visa;
2. Four passport-size photographs;
3. Three copies of the applicant's passport;
4. Copy of applicant's Indian visa;
5. A letter from the principal applicant's Indian employer, requesting registration of the dependent;
6. A letter of undertaking signed by an Indian national working with the company in India assuming full responsibility for the applicant;
7. Proof of police verification; 
8. Proof of residence address;
9. Copy of marriage certificate (needs an apostille for some FRROs); and
10. A copy of the applicant's earlier registration booklet if he or she has been registered in the past.

The following additional documents are required at some FRROs:

1. Details of the applicant's movable and immovable property;
2. A copy of a major utility bill from the landlord of the leased premises where the applicant is residing (if applicable);
3. Evidence of Tenant Information Form compliance.
4. Declaration from spouse that he or she will not undertake any business or work-related activities while in India.

Visa Extensions

Per recent changes, all employment visa applications must include the following additional documents:

Foreign nationals granted employment visas before October 2010, who earned an annual salary of less than US $25,000 (approximately INR 1,145,000) must ask their Indian host company for a salary attestation declaration from the appropriate Employee's Provident Fund Organization (EPFO) confirming that the employee will earn at least US $25,000 for the coming year.

The Indian host company must supply a confirmation letter that no qualified Indian national workers are readily available to assume the employment visa holder's current position as their specialized knowledge services continue to be required in India.

An employment visa holder must submit a photocopy of his or her PAN card or evidence of official registration for a PAN card, along with a duly signed and stamped income letter by the Indian host company confirming the itemized remuneration paid to the foreign national employee, including his or her annual base salary, allowances, and any bonuses to be paid for the coming year.

Spouses renewing their dependent visas must submit their authenticated marriage certificate. Those whose renewal applications are already filed with the FRRO should check whether their marriage certificate will be required. Those submitting their renewal applications but who do not possess their marriage certificate should submit a letter confirming that they will obtain appropriate certification as soon as possible.

Dependents also must submit a “no work” letter to the FRRO confirming that they will not engage in any productive work while resident in India.

Documentation Tip

All FRROs have not publicized or updated their websites to reflect these changes and seem to be asking for additional documents in an ad hoc fashion. It is best to be prepared with all the documents that may be needed, irrespective of the specific requirements of any FRRO, so that they are available if required at short notice.

by Karl Waheed, ABIL Lawyer
Karl Waheed Cabinet d'Avocats

Executive summary: France has created a new immigration category by  implementing the European Blue Card directive, in order to attract skilled workers from third countries and facilitate the mobility and permanent residence of such workers within the European Union.

The directive is in course of being implemented. The law n° 2011-672 of 16 June 2011 has set up the legal framework. The decree n°2011-1049 of 6 September 2011 provides the implementation regulations and we are waiting for the Minister of Interior to set the average salary reference amount needed to determine the minimum salary requirement, and issue the implementation circular to labour offices in charge of adjudicating the work permits. This may occur within the next two months.

The qualifying criteria are in accordance with the criteria stated in the EU directive:

1. Employment contract with a duration of one year or more.
2. 1.5 times the average salary of reference (to be determined by the Minister of Interior on an annual basis).
3. A 3 year higher education diploma or equivalent knowledge through 5 years of experience.

The qualifying third country national will be issued a joint residency and work permit for the length of employment, with maximum validity of 3 years. This permit is renewable. Accompanying spouse will be issued a Private and Family Life category work permit which authorizes work. This latter work permit will be renewed annually for as long as the main applicant has a valid Blue Card permit.

The Blue Card will also be issued to a third country national who already holds a Blue Card issued by another member state, and wants to accept employment in France after 18 months of residence under the initial Blue Card. The application is made within one month of arrival in France. The applicant need not present a long-stay French visa.

The Blue Card permit is issued without labour market testing.

The Blue Card holder and his/her spouse would qualify for the EU long term resident permit after 5 years of residence under the Blue Card in the EU of which only the last 2 years must be in France.

The French authorities have up to 90 days to adjudicate the Blue Card  application and up to 6 months to adjudicate the accompanying spouse residency permit.

What does the Blue Card change?

There were two immigration categories prior to the Blue Card which are meant to attract skilled workers:

(1) Skills and Talents work permit and (2) Intra-company Transfer work permit.

The Skills and Talents work permit is adjudicated on a case by case analysis of the merits of the application by the government. The selection criteria may vary in time and is determined by a commission. An employment contract is not a requisite.

The Intra-company Transfer permit is appropriate in the framework of a transfer of employee within the same corporate group. It does not apply to a new hire.

Just like the Blue Card permit, these two permits are valid for three years, and are renewable.

Both these categories will be maintained once the Blue Card is implemented. The advantages of the Blue Card are as follows:

• It does not require an intra-company prior employment.
• Renewal may be easier.
• Mobility within EU is facilitated.
• Acquisition of long term resident status is facilitated.
• The qualifying criteria are very precise (leaving less room for discretion of government).

The wage threshold under the Blue Card (1.5 times the average salary reference) is most likely to be higher than the threshold under the Intra-company Transfer (1.5 times the minimum statutory wage). However under both categories the wages must meet the peer salary threshold.

We expect the Blue Card to be very good news for skilled third country nationals who are unable to qualify under the existing categories.

from ABIL Immigration Insider

Since September 1, 2011, applicants for a German electronic residence permit (elektronischer Aufenthaltstitel or eTA) must attend an in-person meeting at the foreigner's office (together with any family members). Fingerprints and biometric photographs will be taken. The conventional residence permit (adhesive label), the residence card and permanent residence card, and the replacement ID in paper form are being replaced by the electronic residence permit, which will be granted in a credit card-style format.

The electronic residence permit is equipped with a contact-free chip inside the card on which biometric features (photograph and two fingerprints), ancillary conditions (special requirements), and personal data are saved. In addition, the chip is capable of being used as an electronic identity document and qualified electronic signature. The photograph is saved on the body of the card and on the chip. Two fingerprints will also be saved on the chip for all residents of non-member states age 6 and up. For that reason, it is necessary to appear in person for the application.

Only official entities (such as the police of aliens authorities) are authorized to access the photograph and fingerprints. Ancillary conditions are saved on the chip and on a unique supplementary sheet that comes with the electronic residence permit.

Authorized service providers such as banks and official authorities may offer electronic services in which the holder identifies himself or herself electronically using the electronic residence permit. This simplifies the process of such activities as logging into Internet portals, filling out forms, and verifying one's age on the Internet or at machines. Only providers who possess state authorization will receive access to the holder's data. In addition, the holder must confirm the transfer of his or her personal data with a six-digit PIN number. The service providers are not able to read the biometric features when using the online identification function.

The electronic residence permit can also save a certificate with a qualified electronic signature. This provides electronic residence permit holders with the option of signing legally effective digital documents if desired.

The permits are not produced by the foreigner's offices and must be picked up. However, there is no need for the applicant to appear in person and it is possible to grant a power of attorney to allow another person to pick up the permit.

Finally, any permit that was granted before September 1, 2011, will remain valid until no later than April 30, 2021.