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.

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RELATED PRESS RELEASE

from ABIL Global Immigration Update

The French government has participated since the summer in a consultation process with immigration professionals on nationality law. A general circular, expected in the coming weeks, is expected to encourage prefectures to be more flexible in considering applications for naturalization. The government has already published a new circular in this regard and is implementing the charter of rights and duties of new French citizens.

Circular of October 16, 2012: Adhesion to the Charter of Rights and Duties of French Citizens (Law of June 16, 2011, Articles 21 and 24 of the Civil Code)

The law of June 16, 2011, on immigration, integration, and nationality requires that those seeking French nationality through naturalization or reinstatement sign the charter of rights and duties of the French citizen. Refusal to sign results in the dismissal of the application for naturalization for lack of assimilation into the French community. Written in part by the High Council for Integration, the charter sets forth the principles, values, and essential symbols of the French Republic. It is presented during the welcome ceremony to all new French citizens.

Relaxation of Criteria for French Nationality

In a second circular dated October 16, 2012, the Ministry of the Interior stated that some criteria for French nationality are flexible. Four main criteria are examined.

Assessment of Employability

Prefectures are invited to assess an applicant's employability throughout his or her career and not solely on employability at the time of the request. A temporary or short-term employment contract should not be a barrier if the applicant shows adequate resources. The circular, however, notes that frequent periods of inactivity and recurrent use of welfare schemes may lead to the conclusion that the applicant does not meet the conditions of assimilation into the French community.

Students

The government notes that the student residence permit category should not automatically lead to an unfavorable decision. An applicant who holds a student residence permit may be naturalized if he or she proves employability.

Young graduates with a job, even if they do not have several years of experience, may demonstrate the promising nature of their career. Similarly, the government notes that applications from students of Grandes Ecoles and those with a Ph.D. showing a high potential for contributions to France should receive a comprehensive review and not be rejected based only on the residence category or the type of employment contract.

For holders of a foreign medical degree, the requirement to obtain a license to practice medicine is abandoned.

Young persons under the age of 25 who have lived in France for at least 10 years and have attended school for at least five continuous years continue to be subject to a comprehensive review and must show a strong presumption of having assimilated into the French community.

Effect of Unauthorized Stay

Periods spent in France without authorization should not lead to a systematic rejection of a request for French nationality, the government states. Only lawful residence within five years (or two for certain categories of applicants) before the application is mandatory.

Evaluation of Knowledge of French History, Culture, and Society and Adherence to Core Principles and Values of the French Republic

The government will forward a new list of questions to the prefectures. An incorrect answer to one or more questions may not necessarily lead to rejection or postponement of the request for French nationality. The government's goal is to guide the prefectures to apply transparent and fair naturalization criteria as set by Articles 21 to 26 and following of the Civil Code, and to ensure that naturalization applicants demonstrate a strong commitment to be French.

from ABIL Global Immigration Update

There have been changes in professional immigration legislation in France:

List of understaffed occupations applicable to third-country nationals: a decision of Council of State returns the list to its January 2008 version:

With a decree of August 11, 2011, the government had halved the understaffed occupations where the labor market test does not apply to foreign nationals of third countries in the European Union. In a judgment of December 26, 2012, the Council of State annulled the decree based on the irregularity of the procedure of consultation with trade unions.

The cancellation of the August 11, 2011, decree implies that the list has been returned to its state as it existed under the decree of January 18, 2008, which contained 30 understaffed occupations designated by region. The government could revise this list of understaffed occupations, as it did recently for Romanian and Bulgarian nationals (Order of October 1, 2012). The latter order greatly expanded the list of occupations open to Bulgarian and Romanian nationals without labor market testing.

The new provisions concerning the accompanying families of foreign employees transferred to France:

The implementation of OFII (Office Français de l'Immigration et de l'Intégration) as the "single desk” OFII was an opportunity for the administration to clarify the "Accompanying Family" scheme. The "Accompanying Family" category is now available only for the following categories of work permits: "Inter-Company Transfer," "Skills and Talents," and "EU Blue Card."

The "Accompanying Family" category was initially created by administrative practice, which created exceptions to family reunification rules, allowing several categories of foreign assignees to enter France with their spouses and minor children. The scheme allowed an initial visa and a residence permit for the spouse of a foreign assignee. The benefit of the scheme subsequently become conditional upon meeting a compensation threshold of 1,300 times the minimum guaranty index, while providing access to the labor market for certain categories of foreigners, such as the wives of senior management.

The new scheme applicable following the establishment of the single-desk:

The circular of August 3, 2012, repealed the circulars of March 26, 2004; May 7, 2004; and March 15, 2006. The "Accompanying Family" category is now available only in the proceedings of "Inter-Company Transfer," "Skills and Talents," and "EU Blue Card" categories. "Accompanying Family" status is no longer available to the family members of foreign employees seconded outside the framework of these three proceedings.

In particular, foreign employees seconded on client sites to provide international services may no longer benefit from the "Accompanying Family" scheme. Their family members wishing to come to France must apply for a visitor visa at the French consulate having jurisdiction over their place of residence abroad or make an application under the cumbersome family reunification rules.

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 Immigration Insider

Increasing the minimum salary (SMIC) and the wage index (minimum garanti) on July 1, 2012, resulted in changes to the salary thresholds applicable to Intra-Company Transferees and other foreign workers seeking to be accompanied by family members. The SMIC has been raised to €1,425.27 per month for the work week of 35 hours. The minimum garanti is now €3.49.

Intra-Company Transferees must meet the salary threshold of 150 percent of SMIC, which will now amount to €2,137.90 per month. A foreign worker other than an Intra-Company Transferee may be accompanied by family members when he or she meets the salary threshold of 1300 times the minimum garanti, or €4,537 per month.

from ABIL Immigration Insider

The Circular of May 31, 2012, provides the most recent guidelines to be followed by officers processing changes of status sought by graduating foreign students who wish to work in France.

The period during which an employer must advertise to find a skilled worker in France has been reduced from 2 months to 3 weeks. Students graduating with a "Master 2" degree may apply for a provisional authorization to stay (APS) 4 months before their student status expires, to seek employment that would be their first professional experience in France. A student under an APS may start working as soon as the employment contract is signed, and may apply for a change of status within 15 days of signature.

Since publication of the Circular, the processing authorities have become less rigid than under the previous administration. The authorities continue to verify that the employment sought is appropriate for the degree and that the employer has a specific interest in hiring a foreign graduate.

from ABIL Immigration Insider

Since May 2012, the national Health Insurance Center requires that foreign vital records (such as birth and marriage certificates) bear the apostille or be authenticated to complete registration. In general, it is now necessary to check for each foreign national, according to the country that issued the record, if it should be authenticated or apostilled. Some countries are exempted from this requirement.

It should be noted that foreign consulates in France are not always entitled to proceed with the authentication or apostille of vital records issued by their country. In this case, the foreign national must apply to the Ministry of Foreign Affairs of the country that issued the record. A record of civil status, and the apostille stamp or authentication, must be translated by a sworn translator registered with the Courts of Appeal and Cassation in France.

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.

from ABIL Global Immigration Update

The electoral campaign started this year and immigration is a hot issue in France, as it is in most other European countries. With its new anti-business immigration stance, the current government is trying to recapture the voters it may have antagonized by its pro-business conduct in preceding years. Business should be back to normal by the middle of this year, after the presidential and parliamentary elections.

A government circular of May 31, 2011, instructed labor authorities to apply greater scrutiny in adjudicating work permits and to interpret the regulations restrictively, with the aim of reducing the number of foreign nationals being admitted to France for professional purposes. Among other things, labor authorities must evaluate if a foreign worker is under- or overqualified for the employment offered. If he or she is underqualified, the application must be denied. If overqualified, the advertisement must be modified and published again.

Authorities also must verify that: (1) the compensation meets appropriate thresholds as determined by collective bargaining agreements, the market, and minimum salary laws; (2) the candidate has an adequate knowledge of French; and (3) the candidate is provided adequate housing.

The restrictive measures, which have increased processing times for work permits generally, do not apply to work permit categories that receive preferential processing, such as intra-company transfers, secondments, and seasonal workers.

With respect to change-of-status applications, which mainly apply to foreign students, the government circular states that foreign students are to return to their home countries after the end of schooling. These instructions resulted in a massive protest by universities and students, and there were even protests from within the government. The government issued a new circular on January 13, 2012, providing guidelines to adjudicating officers. The goal is to avoid tarnishing the attractiveness of French schools for foreign students and undermining French business in need of foreign talent.

For more on the new restrictions, see the January 2012 issue of the ABIL Global Immigration Update.