from ABIL Global Immigration Update

The Prime Minister of France issued a press release on November 27, 2012, on the opening of a National Commission on the fight against illegal work. The Prime Minister declared a new enforcement plan against such work. Before the Commission, the Prime Minister reiterated the need for joint action by the state and the labor unions to effectively fight against illegal work, which he said distorts competition between companies and causes harm to France through evasion of tax and social security payments. The plan is to address the most common forms of illegal work and is aimed more specifically toward preventing organized fraud, based on complex arrangements with multiple and international stakeholders.

Plan 2013-2015 has five main areas:

• The fight against the various forms of undeclared work;
• Enforcement against unpermitted secondments in the framework of international service delivery;
• The control of subcontracting;
• Sanctions against using false status; and
• Sanctions against the use of undocumented foreign workers and safeguarding their vested rights.

The plan, approved by all the trade unions and employers, increases controls. It will be implemented by inter-institutional and departmental anti-fraud committees (comités départementaux anti-fraude, or CODAF).The government is committed to a review of related actions each year.

MORE INFORMATION

RELATED PRESS RELEASE

from ABIL Global Immigration Update

On November 26, 2012, the UKBA announced that the Youth Mobility Scheme (YMS) for Japanese nationals would be open for applicants in January. Successful applicants will be able to live, work, and study in the UK for up to two years.

Only 1,000 places will be available for students from Japan in 2013.Other countries that recently joined the YMS are the Republic of Korea and Taiwan. Under the proposed Statement of Changes to the Immigration Rules announced on November 22, 2012, the annual allocations of places are being renewed for 2013. There is an increase in the allocations for Australia (from 32,500 to 35,000 places) and Canada (from 5,000 to 5,500 places), and the Republic of Korea will receive 1,000 places.

The countries and territories participating in the scheme, and the number of places or certificates of sponsorship allocated to them for 2013, are:

• Australia - 35,000 places 
• Canada - 5,500 places
• Japan - 1,000 places
• Monaco - 1,000 places
• New Zealand - 10,000 places
• Republic of Korea - 1,000 places (certificates of sponsorship)
• Taiwan - 1,000 places (certificates of sponsorship)

MORE INFORMATION ON THE YMS

from ABIL Global Immigration Update

New visas became available as of November 24, 2012.

The New Visa Subclasses:

Subclass 401 (Temporary Work (Long Stay Activity) Visa) has replaced the Exchange visa (Subclass 411), the Sport visa (Subclass 421), and the Religious Work visa (Subclass 428) with a single Long Stay Activity sponsorship. The previous subclasses became categories under the Long Stay Activity Visa for which an applicant can apply.

Subclass 402 (Training and Research Visa) has replaced the Visiting Academic visa (Subclass 419), the Occupational Trainee visa (Subclass 442), and the Professional Development visa (Subclass 470) with a single Training and Research sponsorship. The previous subclasses became categories under the Training and Research Visa for which an applicant can apply.

Subclass 403 (Temporary Work (International Relations) Visa) has replaced the Government Agreement visa (Subclass 406), the Foreign Government Agency visa (Subclass 415), the Domestic Worker – Diplomatic or Consular visa (Subclass 426), and the Privileges and Immunities provisions previously in the (Subclass 456 and 457) visas with a single subclass to cover applicants undertaking work related to Australia's international relations. The previous subclasses and provisions became categories under the International Relations Visa for which an applicant can apply. No sponsorship is required.

Significant Investor Visa

The Significant Investor Visa is part of the Australian government's business innovation and investment program and is designed to boost the local economy by increasing the collection of funds managed locally and promoting growth in areas such as finance and real estate from foreign investors. This visa initiative, listed under Subclasses 188 and 888, began on November 24, 2012.

To be eligible for this visa, an investor must submit an Expression of Interest in Skill Select, receive a nomination from a state government, and make investments, held either personally or with a partner, of at least $5,000,000 (AUD) in complying investments.

Complying investments include government bonds, Australian Securities and Investment Commission (ASIC)-regulated managed funds with a mandate for investing in Australia, or direct investments in private Australian companies.

from ABIL Global Immigration Update

On November 22, 2012, the United Kingdom Border Agency (UKBA) set forth new Immigration Rules before Parliament, the majority of which took effect on December 13, 2012. Some of the changes relax current rules, while others respond to abuse.

The changes cover applications under the points-based system in Tiers 1, 2, 4, and 5, as well as family and private life applications. The main changes to Tier 1 and 2 are summarized below:

Tier 1

• For Tier 1 (Entrepreneur) there will be a lowering of the English-language requirement from level C1 (advanced) to level B1 (intermediate), in line with other points-based system categories to avoid deterring potentially successful entrepreneurs.
• Students under Tier 4 will no longer be able to switch to the entrepreneur route unless they have funding of at least £50,000 from a specified source, such as registered venture capitalist firms, UK Government Departments, or listed seed funding competitions.
• A Tier 1 (Investor) migrant's visa will be canceled if the visa-holder does not maintain the required level of investment for the duration of his or her stay in this category.
• The rules will expressly state that loans cannot be secured on the investments relied on to obtain a Tier 1 (Investor) visa and the investments cannot be held in offshore custody.

Tier 2

• All Tier 2 intra-company transfer (ICT) migrants were subject to a maximum stay in the UK of five years if they entered the UK in this category after April 5, 2011. Under the rule changes, senior staff members earning at least £150,000 will be permitted to remain in the UK for up to nine years.
• Where a migrant leaves the UK on or before the expiration of his or her visa, a "cooling-off" period applies to prevent the migrant from returning to the UK in this category for 12 months (more about this below). Some flexibility is being introduced in how the cooling-off period is determined so that it can start on the first date the migrant can prove he or she has left the UK, should he or she wish to return to the UK in this category 12 months later. This way, the migrant does not have to wait until the date of expiration or curtailment of the visa by the UKBA.
• For all migrants in Tier 2 and other work routes who are eligible to apply to settle in the UK, permitted absences have increased to 180 days per year over the five years required to qualify.
• Migrants in Tiers 2 and 5 may undertake supplemental employment in a shortage occupation, even if this is a different occupation from the one in which they are being sponsored to work.

For family and private life applications, there will be a relaxation of the rules in relation to the evidence required to meet financial requirements. Specifically, the list of documents to evidence employment in the UK has been scaled back where appropriate and more copies of documents will be acceptable when originals are not available.

STATEMENT OF POLICY FOR CHANGES TO THE POINTS-BASED SYSTEM

from ABIL Global Immigration Update

Sponsors in the United Kingdom have been required to advertise their vacancies on Job Centre Plus before they can hire a foreign migrant to perform a non-shortage occupation role on a salary of less than £70,000. On November 19, 2012, the Department of Work and Pensions (DWP) launched a new online job posting and matching service, Universal Jobmatch. This replaces the current vacancy management service, Employer Direct and Employer Direct Online, for companies and the Job Centre Plus jobs and skills search facility for job-seekers.

Before placing an ad, an employer first must create an account online and obtain a Government Gateway account. Once the Government Gateway account is set up, the same ID and password is used to log in to Universal Jobmatch and place an advertisement.

The UKBA has confirmed that SOC codes are no longer required in the advertising posting. Also, the number of words has been expanded to enable employers to fully explain the role and skills required for a particular vacancy. This is then matched to resumes posted on the site.

UNIVERSAL JOBMATCH

from ABIL Global Immigration Update

On November 8, 2012, the Immigration (European Economic Area [EEA]) Regulations 2006 changed. The amended regulations provide for the rights of EEA nationals and their family members to enter and reside in the UK and also confirm the criteria for rights to permanent residence.

The key changes to the regulations include:

• Removal of the requirement in regulation 8(2(a) that an extended family member must have resided in a country in which the EEA national also resides;
• Amendments to confer rights of entry and residence on the primary caretaker of a British citizen. This is based on the European Court of Justice judgment in Ruiz Zambrano (this means that those who acquire this derivative right may not acquire permanent residence in the UK, or to sponsor family members in the UK once they have acquired a right to reside); 
• Amendments to regulation 26 so that a person claiming to be the durable partner of an EEA national may only appeal where he or she has provided sufficient evidence of the relationship with that EEA national;
• Amendments to enable the Secretary of State to accept alternative evidence of identification and nationality when a person is unable to provide a valid ID card or passport due to circumstances beyond his or her control.

from ABIL Global Immigration Update

Various new developments have been announced.

Accession of Croatia to the European Union The United Kingdom Border Agency (UKBA) has announced that Croatia is expected to join the European Union (EU) on July 1, 2013. UKBA has stated its commitment to applying transitional restrictions on labor market access to nationals of any future EU Member States as a matter of course, and therefore restrictions will be applied to nationals of Croatia. On October 18, 2012, UKBA published a Statement of Intent on the proposed transitional arrangements governing Croatian nationals' access to the UK labor market. In summary:

• Work sponsorship will be governed by the Points-Based System for those wishing to take on skilled occupations in the UK. This requirement will end after a period of 12 months of employment in the UK
• Family members will not be subject to the work authorization requirement
• The requirement to meet the skills test will be based on the Immigration Rules in place as of December 2011 and the skill level under Tier 2 therefore will be NQF 4+
• A Certificate of Sponsorship (CoS) will count against the annual Tier 2 General limit, but Croatians will be given priority over third-country nationals if the limit is oversubscribed.
• There will be no requirement to obtain entry clearance before arrival but an application for an Accession Worker registration certificate (AWRC) will be required (this can take up to 6 months to be issued based on prevailing service standards but this is currently being reviewed)
• The cooling-off period will not apply and therefore upon the expiration of the AWRC, if the Croatian national leaves the UK, there is no requirement to spend 12 months outside the UK
• No permission will be given to take up low-skilled work under the Seasonal Agricultural Workers Scheme or the Sectors-Based Scheme, but the UKBA has asked the Migration Advisory Committee (MAC) to undertake an impact assessment on the relevant sectors

Exceptions

The 12-month rule will apply so that work restrictions end after continuous employment of 12 months. Croatians who are legally working in the UK on the date of accession and have done so for a continuous period of at least 12 months will no longer be subject to work restrictions. The same will apply to those who work legally for an uninterrupted period of 12 months falling partly or wholly after the date of accession.

Furthermore, workers posted to the UK from a business established in another Member State will not be subject to restrictions, nor will those Croatians wishing to establish a business in the UK.

Finally, graduates will be able to obtain a registration certificate confirming unrestricted access to the labor market provided they meet the criteria for a grant of leave under the previous Tier 1 (Post-Study) category.

Migration Advisory Committee Publishes Recommendations on the Revised Tier 2 Codes of Practice

On October 17, 2012, the Migration Advisory Committee (MAC) published recommendations in relation to the revised Tier 2 Codes of Practice, appropriate salary levels, and advertising requirements.

To sponsor a migrant under Tier 2 of the Points-Based System, employers must map their migrant roles to job titles listed in the codes of practice. The current codes were updated in June of this year and a link to these can be found on the UK Border Agency website. (See http://www.ukba.homeoffice.gov.uk/business-sponsors/points/sponsoringmigrants/employingmigrants/codesofpractice/.) The relevant codes for Tier 2 are those that are classified as graduate-level roles (NQF 6+). The MAC has reviewed these codes, along with the commensurate salary levels and advertising requirements.

The MAC has produced a revised list of 97 occupations skilled to NQF 6+ and has published this new list in its latest report at Table 8.1 on pages 126-134. (See http://www.ukba.homeoffice.gov.uk/sitecontent/documents/aboutus/workingwithus/mac/Tier2-codesofpractise.pdf.) Some job titles have changed and some new occupations have been added. Furthermore, it has recommended a two-tier salary banding for each job code, either New Entrant or Experienced Worker. The MAC is proposing that the New Entrant salaries stipulated are appropriate for those migrants who left full-time education less than 3 years ago and for any migrant undertaking a graduate training program. If the government accepts this recommendation, this will significantly assist many employers who have thus far struggled to meet the high salary levels stipulated in the current codes for some of their graduate migrants and those undertaking training programs.

One potential issue is that when the time comes to extend the visa, employers may need to meet the experienced worker salary level, which could require a significant pay increase.

With regard to advertising, the MAC has made some pragmatic recommendations by stating that the advertising codes of practice should not be unduly prescriptive in terms of where the employer should advertise the role, and is recommending that employers be permitted to insert "competitive salary" in their advertisements where it is normal practice within a given sector. This would leave the decision on where to advertise to employers, subject to retaining the current stipulations, which include ensuring that the advertisement reaches a nationwide audience and is placed for 28 days. The MAC also recommends that the government review the current requirement for employers to advertise on Job Centre Plus, based on feedback received from employers that it is not much used for matching skilled workers with graduate vacancies.

A modernization of the codes of practice was long overdue. It is hoped that the government will follow these recommendations.

Tier 2 Priority Postal Processing Pilot

The UK Border Agency has launched the long-awaited priority postal processing pilot for Tier 2 extension applications where the applicant has previously been issued a Biometric Residence Permit or leave (permission) to remain in the UK.

The initial pilot will include a maximum of 30 applicants per day plus their dependents, on a first-come, first-served basis. It is hoped that this will alleviate the existing strain on fast-track appointment slots, provided migrants are able to remain in the UK for two to three weeks while their extension applications are processed via this new priority postal route.

The good news is that it is cheaper and potentially less time-consuming for the migrant than the fast-track route, where the migrant is required to appear at one of the UKBA's Public Enquiry Offices. With this new priority postal option, the migrant and any dependents will need to go to one of three designated post offices within London to submit biometric data and deliver the application package. The post offices are in Action, Blackfriars, and Broadway. Employers should ensure that their eligible migrants have all their documents ready in support of the application before the application is submitted online, as the time frame for each stage of the process is tight.

As soon as a new Certificate of Sponsorship for the extension has been assigned to the migrant, a request must be e-mailed to the UKBA between 8.30 a.m. and midnight for each qualifying migrant. A reply is received within 24 hours as to whether the request has been accepted, and from this point the stringent timetable must be adhered to as follows:

• Within 24 hours of receiving the go-ahead from the UKBA, a standard online extension application must be submitted and the standard postal fee paid online (currently £561 per applicant and £281 for each dependent);
• A Payment Notification Number (PNN) is generated, which should then be e-mailed to the UKBA so that they can link it to the applicant. A cover sheet is also generated that lists the documents to be submitted with the application; two copies of this should be printed;
• A Biometric Notification Letter is then mailed to the applicant or his or her attorney (if the attorney has submitted the online application). Some are urging the UKBA to agree to e-mail these letters to avoid delay at this stage; and
• Within 48 hours of receiving the letter from the UKBA, the applicant and any dependents must appear at one of the three designated post offices within London to submit biometric data and lodge (file) two copies of the cover sheet, along with the supporting documents, in a sealed envelope.

The UKBA says that the entire application process, from submission of the online form through a decision, should be completed with 10 working days, but to err on the side of caution, migrants should plan to remain in the UK for 15 working days. Migrants should be aware that they cannot travel once the process is underway, until they receive their new biometric residence permit.

Delays at Immigration Control When Travelling Without a Biometric Residence Card

Where migrants have recently obtained a visa or visa extension in the UK, the new visa will be endorsed on a Biometric Residence Card (BRP). This has been the case since BRPs were introduced in early 2010. It is not advisable for migrants to undertake travel following the visa approval until they have received their BRP, which usually follows within five days of confirmation of the visa approval. Unfortunately, systems used by immigration officials at the ports are not immediately synchronized with those in use by the BRP team. This has led to migrants being delayed at immigration control for up to two hours if they travel without the BRP, so that checks can be done.

Changes To Applications From Overstayers

The UK Border Agency (UKBA) issued a statement in early September to remind migrants that starting on October 1, they must submit extension applications within 28 days of the expiration date of their period of stay; otherwise the application will be refused.

In addition, for those applying to extend their student visa under Tier 4, the gap between the expiration of the period of stay and the start date of the next course of study must be no more than 28 days. Updated Tier 4 (Student) policy guidance will be issued to reflect this change.

Renewal of Sponsor Licence

Employers who obtained their Sponsor Licence in November 2008 can now submit their license renewal application via the Sponsor Management System. It is vital that the Sponsor summary details be fully updated, including any change to Sponsor address, Authorising Officer, Level 1 and 2 Users, before submitting. This will ensure that employers are fully complying with their sponsor obligations. The need to comply with Sponsor obligations has recently been highlighted in the news with the announcement of the withdrawal of the Sponsor Licence from the London Metropolitan University.

New Call for Evidence from the Migration Advisory Committee

The Migration Advisory Committee (MAC) has just issued a call for evidence on the Shortage Occupation List (SOL) in response to the following questions:

1. Are there any occupations skilled to NQF 6+ that should be added to the SOL, due to the scarcity of suitably skilled resident workers?

2. Should inclusion in the SOL be a temporary measure and if so, what would be an appropriate period? Should removal after a prescribed period of time be automatic or should there be exceptions? For those occupations that have been on the list for over two years, should there be transitional measures introduced to allow for removal if appropriate to do so?

3. Should occupations in the creative sector, including artists, authors, actors, dancers and designers, continue to be included in the Tier 2 graduate occupation list, even though they are not skilled to NQF 6+? If so, on what terms?

4. Should other occupations not skilled to NQF 6+ that currently appear on the SOL remain there and, if so, what is the justification for this?

It is strongly recommended that employers provide evidence relating to the SOL, particularly if the employer currently recruits migrants for positions on the shortage list. Evidence should be provided by November 30.

from ABIL Global Immigration Update

Developments include a new requirement for filing intra-company transferee applications; new instructions on regularization of employment status; and a permit of stay granted to a same-sex partner.

New Requirement for Filing Intra-Company Applications

Some Immigration Offices (including Milan and Rome) now require a foreign worker to have a minimum of six months' seniority with the sending company, even though the law only requires the worker to have six months of experience in the same field. The duration of seniority with the foreign employer must be certified in the support letters that are provided to the Immigration Office for the work permit's approval.

Regularization of Employment Status: New Instructions From the National Social Security Institute

With a circular letter (28/09/2012 n. 118), the National Social Security Institute (INPS) has radically changed the regularization procedure that must be followed by employers of foreign nationals who are working in Italy without authorization. Employers are now asked to prove compliance and to have paid the required social security contributions for the individuals for whom the regularization is requested. Originally, the employers were required to prove compliance with social security contributions for all other workers employed.

Permit of Stay Granted in Milan to an Italian's Same-Sex Partner

The Immigration Police in Milan have issued a permit of stay for a same-sex Serbian spouse of an Italian national. The couple married in Canada. This follows a decision of the Reggio Emilia Court, which allowed the issuance last February of the permit of stay to a same-sex partner who had previously married an Italian national in Spain. The court stated that the issuance of the permit was to be done in accordance with the European Union Charter of Fundamental Rights. This does not constitute a binding precedent for other offices but shows that in Italy there seems to be a more flexible approach to the recognition of some rights for same-sex couples.

from ABIL Global Immigration Update

Chinese consulates in the United States have been tightening their enforcement of visa requirements.

A recent announcement from the Chinese consulate in Hong Kong stated that as a policy matter, applicants who are not residents of Hong Kong should apply for a Chinese visa from their home countries. Foreign national applicants at the Hong Kong consulate must provide their Hong Kong permanent residence card or work permit. This policy change is in line with the Chinese government's ongoing effort to crack down on unlawful employment of foreign nationals in China. In particular, this new policy will make it more difficult for foreign nationals who work in mainland China on an F business visitor visa to travel to Hong Kong every few months to satisfy the length-of-stay requirement of their visas, or to renew their F visas and re-enter mainland China.

from ABIL Global Immigration Update

The following is a 10-point summary of recent Canadian immigration changes.

1. The Federal Entrepreneur Program is closed. Citizenship and Immigration Canada (CIC) is designing a new program with the goal of implementation by the end of 2012.

2. The Investor Program has been suspended and the current program has backlogs with wait times of up to nine years. CIC is considering pilot programs to complement the existing program.

3. Provincial Nominee Programs now require minimum language standards for immigrants.

4. The Parents and Grandparents Sponsorship category was suspended in November 2011 and there is no substantive news on whether the new redesign will be as facilitative as the previous program. Online consultations for Parents and Grandparents Sponsorship concluded on May 25, 2012, and policy options are being considered. Details will likely remain unknown until CIC pre-publishes the regulations in 2013. The redesign is to be implemented in November 2013.

5. The Temporary Foreign Worker (TFW) Program is under official review and CIC is working with Human Resources and Skills Development Canada to examine the feasibility of a low-skilled pathway to permanent residence.

6. The Federal Skilled Worker Program (FSW) has been suspended. CIC is redesigning the program for the third time in the same number of years and is pre-publishing new regulations within the next few months.

Changes will likely include:

• minimum language standards for all applicants;

• education credential assessments by third parties;
  
• changes to the points grid to emphasize language ability, employment in Canada, and age; and
• inclusion of skill trades.

7. The Canada Experience Class categories (Student and Worker) will also be amended and regulations will be pre-published within the next few months. The federal goal is to have the new design in place by the end of 2012.

8. The Canadian consulate in Buffalo, New York, is closed. Canadian consulates in the United States that issue visas to Canada include:
a) United States of America - East of the Mississippi
- New York
- for visitor visas only: Detroit and Seattle
- for Temporary Resident Permits (TRPs), Rehabilitation and Authority to Return to Canada (ARC) only: Washington, DC

b) United States of America - West of the Mississippi
- Los Angeles
- for visitor visas only: Detroit and Seattle

9. CIC has opened a new processing center for temporary residents currently in Canada with valid student or temporary foreign worker status. All such in-Canada students or workers must submit their application for a new temporary resident visa to the Case Processing Pilot Office in Ottawa, or at the visa office that serves their country of nationality.

10. The government intends to close the Arranged Employment Skilled Worker Category, which is conditional on obtaining an Arranged Employment Opinion from Service Canada. This anticipated change will prevent access to Canada by many potential immigrants.