from ABIL Global Immigration Update

The salary thresholds for permits for highly skilled migrants (knowledge migrants) and EU Blue Card holders as of January 1, 2013, have been published. Foreigners aged 30 or over must earn a gross annual salary of € 52,010 to be eligible for a residence permit to work as a highly skilled migrant. For foreigners under the age of 30, the highly skilled migrant salary threshold is € 38,141. For graduates in the Netherlands, the threshold is € 27.336.

The salary threshold to acquire the EU Blue Card residence permit is € 60,952.

from ABIL Global Immigration Update

On December 10, 2012, Italy's Ministry of Interior provided clarifications on Blue Card eligibility requirements.

In addition to the apostilled and translated educational degree (at least a three-year degree course), the authorities now also require the individual's professional position to be validated by the Italian Ministry of Education. This new requirement has been enforced by the Immigration Authorities according to the Ministry's official notification number 7591 of December 7, 2012.

To obtain the Ministry’s validation, the following documents are required:

• Original Diploma, translated into Italian language and legalized with the apostille/consular stamp;
• Certified copies of university transcripts, translated into Italian and legalized with the apostille/consular stamp;
• Declaration of Value issued by the relevant Italian consulate. The Declaration of Value is an official document that provides a short description of a certain academic or professional qualification, awarded to a specific person by an institution belonging to an educational system other than the Italian one.

from ABIL Global Immigration Update

The major change in 2012 was the implementation of the European Union (EU) Blue Card Directive, effective September 10, 2012.

The Blue Card is atypical for Belgium, as it is both a work permit (issued by the regions) and residence permit (issued by the federal authorities). This is reflected in the processing of a Blue Card application:

• An employer who wishes to employ a highly qualified non-EU/European Economic Area foreign employee can apply for temporary work authorization with the regional authorities.
• The second step is that the foreign employee applies for a Blue Card, which is a residence permit, with the federal authorities.
• As a Blue Card holder, the foreign employee may work in Belgium without a work permit. He or she can invoke a work permit exemption.

The following conditions must be met:

• The employer and the foreign employee must have entered into an employment contract of indefinite duration or a fixed-term employment contract of a duration of at least one year.
• The foreign employee must be entitled to an annual gross salary of at least €49,995 (amount for 2013).
• The employee must have a degree from a higher education institution, awarded for an education program with a duration of at least three years.

The legal texts implementing the Blue Card are inconsistent on some points: it is not yet entirely clear how administrative authorities will interpret the rules governing the Blue Card. It is clear, however, that the Blue Card will exist alongside, without replacing, the already existing "fast-track" work permit for highly skilled personnel. Belgium does not apply numerical limits.

A potential future change relates to the transfer of the legislative power regarding work permits from the federal level to the regions. At present, the regions (Brussels, Flanders, and Wallonia) process work permits on the basis of federal legislation. The coalition agreement of the federal government mentions the transfer of legislative authority regarding economic migration to the regions. Negotiations are rumored to be starting shortly, which could lead to different rules for Brussels, Flanders, and Wallonia.

from ABIL Immigration Insider

The Blue Card Directive has been fully implemented in Italy under Decree n. 108 of 2012, which entered into force on August 8, 2012.

The EU Blue Card is a new scheme that facilitates the immigration process for highly skilled non-EU foreign workers seeking employment in the EU. With the Blue Card, individuals who meet the requirements can apply for a work permit outside of the Italian quota system, and they do not have to spend a minimum amount of time working for a foreign affiliate of the Italian company before they can apply.

According to the new decree, it is now possible to hire directly in Italy non-EU highly skilled workers without being subject to quota limitations, under certain conditions. Similar to the procedure to be followed for ICT work permits, the procedure under the new decree is:

1. The employer files a work permit application with the immigration office. The list of documents must be confirmed by each Immigration Office, but the law includes:

(i) a job offer for not less than one year with a salary of not less than €25,500 per year. The job offered to the worker must be for a highly skilled position;

(ii) a worker's diploma. The worker must have completed a post-secondary study program with a minimum duration of three years. The school must be a institution of higher education recognized by the state in which it is located. The course of study must be related to the type of work being performed;

(iii) documents proving that the worker has suitable accommodations in the country.

2. After the work permit is issued, the worker applies for a visa in his country of residence.

3. Upon entry into Italy, the employer and worker execute a contract of stay at the Immigration Office.

4. The worker files for a permit of stay at the post office and then completes the process at the police office.

Workers with a Blue Card issued by another EU country may be hired in Italy only after 18 months from the date of issuance of their card. The employer still must apply for a work permit, but the worker will not need to obtain a visa.

from ABIL Immigration Insider

The Bureau of Professional Immigration is instructing (via Circular of August 3, 2012) certain regional authorities to create a single desk (guichet unique) to follow the immigration process for new arriving foreign workers in the following categories:

• Intra-Company Transferees
• Skills and Talents
• European Union Blue Card

The Prefectures concerned are Haute-Garonne (31), Hauts-de-Seine (92), Isère (38), Nord (59), Paris (75), Puy-de-Dôme (63), Rhône (69), and Yvelines (78). The single desk will be created by the OFII (Office Français de l’Immigration et de l’Intégration) located in each of the Prefectures, with the objective of processing the applications faster. The government is aiming to process work permits for Intra-Company Transferees and EU Blue Card applicants within 4 to 6 weeks.

The efficiency of this government incentive is uncertain. The single-desk process is already in place in the Paris area for Intra-Company Transferees, where overall processing time has increased. This being said, the medical examination and delivery of the residency permit are occurring at the same appearance at the OFII. This is a definite improvement over the past.

from ABIL Global Immigration Update

Belgium is working on implementation of the European Union (EU) Blue Card directive; there is an increasing focus on compliance; and a potential future change relates to the transfer of legislative power regarding work permits from the federal level to the regions.

Work Permits; Implementation of the EU Blue Card Directive

The Belgian work permit system is a very business-friendly model in practice. The "regular" work permit, with a resident labor test, has become very rare in the corporate immigration context. "Fast-track" work permits, without a resident labor test, can be obtained quite fast, within two to three weeks after the date of filing of the application.

The economic recession has not led to drastic changes to the Belgian work permit system. However, one protective measure, regarding Bulgarian and Romanian nationals, should be mentioned:

• In principle, European Union (EU) nationals may work in Belgium without work permits, on the basis of the right of free movement of workers.
• For Bulgaria and Romania, which joined the EU on January 1, 2007, restrictions on this right of free movement of workers were maintained during an initial transition term until the end of 2008. That was prolonged for another three years, until December 31, 2011. The Belgian government has decided to continue the restrictions until December 31, 2013. As a rationale for this decision, the government explicitly referred to the expected economic recession in 2012/2013 as well as to similar decisions of neighboring countries to maintain the restrictions.

In other developments, the Belgian Parliament and the Minister of Employment are currently working on implementation of the EU Blue Card Directive.

The available texts indicate that the Blue Card will exist alongside the current fast-track work permit B for highly skilled employees. The salary threshold for a Blue Card in 2012 will probably be €49,995, which is higher than the current threshold for a highly skilled work permit B (€37,721 for 2012).

The Belgian authorities will probably choose not to take professional experience into account to prove "higher professional qualifications," but a higher education will be required, on condition that the studies needed to acquire it lasted at least three years. Belgium will probably not apply numerical limits.

Focus on Compliance

New Code on Labour and Social Security Criminal Law. A new Code on Labour and Social Security Criminal Law took effect on July 1, 2011. It mainly codifies existing compliance rules with regard to labor and social security law-related issues, including employment of foreigners, but also creates new compliance rules.

Unauthorized/illegal employment of a foreigner who is not entitled to live in Belgium more than three months is among the infringements that are considered very serious ("type 4" infringements).

The potential penalties for such infringement include a jail term of six months to three years and/or a criminal fine between €3,600 and €36,000 per employee, with a maximum of €3,600,000 (€36,000 x 100). Furthermore, the employer may be prohibited from operating the business for a limited time, between one month and three years. The court may also order closure of the company for the same duration.

The same two accompanying penalties (prohibition from operating the business and closure of the company for a limited time, between one month and three years) may be imposed upon "HR advisors," largely defined as professionals providing advice or help to one or more employers or employees with regard to the carrying out of obligations as sanctioned by the Code, either for their own account or within an entity. According to some comments to the Code, HR consultants and payroll personnel are included in this category, but probably not lawyers or notary publics (although they may risk being an accomplice to an infringement). The courts can only impose these two accompanying penalties if they are deemed necessary to stop an infringement or to avoid repeat offending, provided that they are in proportion with overall socio-economic interests.

If the Public Prosecutor determines that this infringement does not justify criminal prosecution, an administrative fine may be imposed, ranging between €1,800 and €18,000 per employee, with a maximum of €1,800,000 (€18,000 x 100).

The Belgian authorities are working on implementation of the EU Illegals Employment Directive. A first proposal of an Act has been prepared but the text is not yet publicly available. The new Act may include the following:

• The basic principle is that employers cannot employ a person who is not an EU citizen, who does not enjoy the right of free movement, and who is present on the Belgian territory, without that person meeting the requirements for stay or residence in Belgium. The employer must check the residence documents of the potential employee before employment. Furthermore, the employer must keep a copy of these documents available for inspection and notify the competent authorities of the start of the employment.
• The new Act provides effective, proportionate, and dissuasive sanctions against employers who employ unauthorized third-country nationals in Belgium. These include general financial and criminal sanctions. The employer may also be liable to pay any outstanding remuneration to the employee. Finally, the employer may be required to pay taxes and social security contributions to Belgium.
• If the infringing employer is a direct subcontractor, the contractor will also be severally liable, unless the subcontractor states in writing that it does not employ unauthorized employees. If the infringing employer is an indirect subcontractor, the contractor can only be severally liable after notification by the social inspection services and only up to the salary as of the date of such notification.
• Employees may exercise their rights before the court, as may representative organizations for employers or employees and the Centre for Equal Opportunities and Opposition to Racism (an independent government agency that fights discrimination and racism and that assists victims).

Draft Act on increased coordination of inspection of illegal employment and fraud. On June 22, 2012, the Belgian federal government agreed to a draft Act that approves a cooperation agreement between the inspection departments on federal (Belgium) and regional (Brussels, Flanders, and Wallonia) levels. According to a press release on June 23, 2012, the aim is to enhance the cooperation between the inspection departments at the different levels "primarily in order to inspect the employment of foreign employees."

Potential Change: Transfer of Legislative Power From Federal to Regional Level

A potential future change relates to the transfer of legislative power regarding work permits from the federal level to the regions. At present the regions (Brussels, Flanders, and Wallonia) process work permits on the basis of federal legislation. The coalition agreement of the federal government and the general policy statement of the federal Minister of Employment both mention the transfer of legislative authority regarding economic migration to the regions.

No specific steps have been taken yet to initiate this process. It is not yet clear whether, when, and to what extent the transfer of legislative power will be implemented. This could lead to different rules for Brussels, Flanders, and Wallonia.

from ABIL Global Immigration Update

The Italian government approved on June 7, 2012, a decree to implement the Blue Card Directive. The Directive will enter into force as soon as it is published in the Official Gazette. The new decree is intended to facilitate the entry of highly skilled workers holding a Blue Card issued by another EU country and will regulate the issuance of Blue Cards for workers already living in Italy.

from ABIL Global Immigration Update

The salary threshold to be eligible for the EU Blue Card in 2012 is EUR 60,000 (gross) per year (including 8% holiday allowance). This is the same salary threshold as in 2011.

from ABIL Global Immigration Update

France has created a new immigration category by implementing the European Union (EU) Blue Card directive to attract skilled workers from third countries and facilitate the mobility and permanent residence of such workers within the EU.

Law no. 2011-672 of June 16, 2011, and decree no. 2011-1049 of September 6, 2011, provide the legal framework for the transposition of the EU Blue Card directive into French law. The qualifying criteria are in accordance with the criteria stated in the EU directive:

1. an employment contract with a duration of one year or more;
2. a minimum annual salary threshold of 1.5 times the average salary of reference, which is determined by the Minister of Interior on an annual basis. According to the current reference salary (€ 34,296), this annual salary threshold is € 51,444; and
3. A three-year higher education diploma or equivalent knowledge through five years of experience.

A qualifying third-country national will be issued a joint residence and work permit for the length of employment, with maximum validity of three years. This permit is renewable. An accompanying spouse will be issued a Private and Family Life category work permit, which may be renewed annually for as long as the main applicant has a valid Blue Card permit.

The Blue Card may 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 labor market testing. Its beneficiary and his or her spouse would qualify for the EU long-term resident permit after five years of residence under the Blue Card in the EU, of which only the last two years must be in France.

French authorities have up to 90 days to adjudicate the Blue Card application and up to six months to adjudicate the accompanying spouse's residence permit.

The advantages of the Blue Card over other categories are:

• Intra-company prior employment is not required.
• Mobility within the EU is facilitated.
• Acquisition of long-term resident status is facilitated.
• The qualifying criteria are very precise (leaving less room for the discretion of the government).

The Blue Card is very good news, especially for skilled third-country nationals who are unable to qualify under other categories.