Seyfarth Global Immigration Update: January 2020

Seyfarth maintains 11 offices across the United States, as well as international offices in London, Shanghai, Melbourne, Sydney, and Hong Kong. Our Global Mobility Team is staffed with a group of professionals that includes licensed lawyers in Canada, Germany, the United Kingdom and Ireland, paralegals, and a Senior Global Mobility Specialist who coordinates all aspects of our practice for our clients.

For countries where we do not have a physical presence, we have established business partnerships with premier providers of global immigration services, currently covering more than 70 foreign jurisdictions. Our Senior Global Mobility Specialist works closely with our business partners to ensure quality, monitor case progress, and communicate with our clients (rather than “hand them off”).

Argentina - Police Clearance Certificates Required for Certain Visa Holders

Effective immediately, holders of Technical visas valid for 30 days who apply to renew the visa for a sixth time (i.e., beyond a period of six months’ continuous stay in Argentina) must submit police clearance certificates (PCCs) from their country of origin and/or all countries where they have lived during the previous three years. The police clearance(s) must be apostilled or legalized for use in Argentina and translated into Spanish prior to submission. The visa categories affected by this requirement are Technical or Professional Visas (24H), also known as the Special Transitory Visas, which are typically used for providing short-term work services to a company in Argentina.

Additionally, the immigration authorities have announced that visa-waiver nationals and Chinese nationals holding a valid U.S. B-2 or a Schengen visa may now apply for a post-arrival 90-day Temporary Work Authorization (TWA), although an applicant may only apply for a maximum of two 90-day TWAs in a one-year period. This process will not require police clearances.

Australia - Traffic Light Bulletin – Proposed Skilled Migration List Changes

The Australian Department of Employment, Skills, Small and Family Business has released their Traffic Light Bulletin, which outlines proposed changes to the skilled occupation lists. At this stage, these are only proposed changes which, if implemented, would be finalized near March 2020 according to current estimates.

Under this proposal, certain occupation categories have been flagged to move between the three occupation lists: Short-Term Skilled Occupation List (STSOL), Medium and Long-term Strategic Skills List (MLTSSL), and Regional Occupation List (ROL). This would allow paths to permanent residency for some and provide opportunities for employers in non-regional Australia to act as skilled visa sponsors for some occupations.

Occupations that could move from the STSOL to the MLTSSL – giving pathways for permanent residency under employer-sponsored and skilled independent pathways – are: ICT Project Manager, Information and Organisation Professionals (which includes Data Scientist), and Sales and Marketing Manager. There are recommendations for a salary caveat for each occupation, indicating significantly skilled applicants are required.

Certain occupations not affected by the list changes have been flagged for a minimum salary requirement, and new occupation categories (or mergers between existing categories) have been identified by the Department. The proposal is open for comment until February 12, 2020.

Austria - New Minimum Salary Requirements for Red-White-Red Cards

The monthly minimum salary for the Red-White-Red Card will increase starting January 1, 2020 as follows:

Key employee applicants over age 30: EUR 3,222 gross per month
Key employee applicants under age 30: EUR 2,685 gross per month
Graduates from an Austrian university: EUR 2,416.50 gross per month

Belgium - Increased Minimum Salary Requirements for 2020

Starting January 1, 2020, the minimum annual salary requirements for foreign employees will increase based on the region. The increases are outlined as follows:

Brussels and Wallonia:

Highly-skilled workers: EUR 42,869 (up from EUR 41,739)
Management staff:   EUR 71,521 (up from EUR 69,637)
EU Blue Card applicants: EUR 55,431 (up from EUR 53,971)

Flanders:

Highly-skilled workers: EUR 42,696 (up from EUR 41,739)
Aged up to 30 years/Nurses: EUR 34,156.80 (up from EUR 33,494.40)
Management staff:   EUR 68,314 (up from EUR 66,989)
EU Blue Card applicants: EUR 51,235 (up from EUR 50,242)

Any applications for new work authorization or renewals/extensions filed on or after January 1, 2020 must meet these salary requirements. Any applications that are still pending as of January 1, 2020 must also increase the applicant’s salary to comply with this new requirement. Employers should notify regional authorities of increases to salaries on pending applications. Employers must also ensure that the salaries of existing employees already working in Belgium comply with the new requirements by January 1, 2020.   The salary must be either subject to tax if paid in the home country, or social security if paid in Belgium, and the amount must be fixed prior to the start of the employment in Belgium. Discretionary bonuses and Cost of Living Allowances (CoLA), as well as most other allowances (e.g., travel, board, lodging), cannot be taken into account for salary requirement compliance.

France - Decree to Extend Rights of Posted Workers from July 2020

Ministerial Order 2019-116 will become effective July 30, 2020, and will transpose into French law the European Directive 2018/957 from June 2018, extending the employment rights of posted (seconded) workers. The new rules dictate that every worker seconded to France must receive “equal pay for equal work” rather than just the minimum wage (this principle already applies to workers hired locally in France). Additionally, employers will be required to reimburse any expenses incurred by the posted worker during the course of an assignment. These posted worker rules will apply for the first 12 months of the assignment (extendable by another six months in certain circumstances) after which almost all the workers’ rights obligations for companies established in France will apply. Further, if the posted worker is replaced by another in the same position, the 12 months will be calculated cumulatively. The calculation of the 12-month secondment period will also take into account any ongoing postings starting before July 30, 2020. Employers who fail to comply with these regulations will be subject to a fine of EUR 4,000 per breach (EUR 8,000 in case of repeated breaches recorded within a period of two years).

Netherlands - Changes to IN Amsterdam Service Fees and New Minimum Salary Requirements for 2020

Starting on January 1, 2020, the IN Amsterdam immigration office, IN Amsterdam, will increase all its rates by 20%, and from 2021 onward the fees will be annually indexed. Further, new businesses are no longer excluded from paying service fees during their first year in the Amsterdam Area, or for their first 10 employee applications (whichever occurred first) based on a change that took effect in July 2019. The new fees will also apply for all children, rather than only the first two children as previously required.

Additionally, the Dutch immigration authorities (IND) have posted new minimum salary levels for knowledge migrant workers (also known as Highly Skilled Migrants), graduates, and Blue Card applicants. These new requirements are applicable for new applications for local hires, assignees (when outside the scope of the EU ICT Directive 2014/66/EU), and extension applications received by the IND on or after January 1, 2020.

The new minimum gross monthly salary levels are as follows:

Knowledge Migrants aged 30 and above: EUR 4,612 (up from EUR 4,500);
Knowledge Migrants aged under 30: EUR 3,381 (up from EUR 3,299);
Persons who have graduated from a higher Dutch educational institution, or from an international educational institution listed in the top 200 of one of the ranking lists, taking up employment within three years after graduation: EUR 2,423 (up from EUR 2,364);
Blue Card Holders: EUR 5,403 (up from EUR 5,272).

Salaries must also meet market salary rates for the position. These salary amounts do not include the mandatory holiday allowance, and payments must be made monthly, directly into the bank account of the foreign national. Benefits and allowances may only be included in the amount if they are specified in the employment contract, fixed/guaranteed, and paid monthly in money (not in kind). The employer is obligated to prove that such payments have been made and meet monthly requirements, and failure to comply with these requirements may result in fines.

South Korea- Work Experience Requirement Lessened for E7 Visa Applications

Effective immediately, applicants for the E7 visa category (for employees hired locally with a contract and payroll based in South Korea) whose university diplomas are not related to the job position at the Korean company only need to demonstrate three years of related work experience rather than the five years previously required. If the applicant’s diploma is related to the position, he or she is still required to demonstrate one year of related experience. The job description must match one of 83 categories of occupation classified by the immigration department in South Korea, and the position must require highly specialized technical skills.

The Korean government currently reviews implementation of tougher penalties for the employers of illegal residents. For those voluntarily reporting illegal residence by February 28, 2020, penalties will be reduced or exempted.
Illegal residents are currently subject to fines ranging from KRW 1,000,000 for illegal stays of less than one month to KRW 20,000,000 for illegal stays of three years or more.

The current maximum penalty for employers of illegal residents is KRW 20,000,000 or three years of imprisonment. The proposed amendment currently under discussion would increase this to KRW 50,000,000 and five years of imprisonment.

Spain - New Requirements for Assignment Letter for Intracompany Transfer Permit Applications

Effective immediately, the immigration authorities have established new requirements for assignment letters in support of all intracompany transfer permit applications, both those under EU Directive 2014/66 and those under the Spanish Entrepreneur’s Law. The assignment letter must now be signed both by the applicant, and signed and stamped by the sending entity (the employer). The contents of the letter must now also include the following details:

The salary in local currency and euros;
Evidence of the Spanish host company's financial solvency (i.e., corporate tax and VAT payments from the last three years, social security registration of employees, etc.); and,
A collective agreement, which applies in the Spanish host company.

As previously, the letter must still include details of the host and home company, the place and address of work, the length of the assignment, the applicant's job title and functions, and a statement of compliance with Law 45/99 on working conditions.

Switzerland - Job Advertisement Threshold to Change from January 2020

Starting January 1, 2020, employers who wish to hire foreign nationals for occupations with an unemployment rate of 5% or higher must complete labor market testing by advertising. This is a change to the previous requirement for labor market testing for occupations with unemployment rates of 8% or higher that was introduced in 2018.

Labor market testing requirements may be waived in the following cases:

The application reflects a change in position within the same employer (if the employee has been employed for 6 months);
The applicant is a trainee who has finished apprenticeship with the same company;
Employment is for a maximum period of 14 days, or;
Employment is of relative if they are to succeed an authorized company signatory.

Failure to comply with labor market testing requirements will lead to the denial of applications and possible sanctions on the employing company in accordance with the Art. 117a of Foreign Nationals Act.

United Kingdom - Brexit Election Confirms UK Plan to Exit EU by January 31, 2020

A general election took place in the UK on December 12, 2019. The Conservative party won by a majority of 80. The Prime Minister, Boris Johnson, confirmed the Government’s intention for the UK to end its membership of the European Union by January 31, 2020.

On December 20th, the UK Parliament voted in favor of the Withdrawal Agreement Bill, which is now passing through the final stages for approval. If, as expected, the Withdrawal Agreement passes in its current form and the EU Parliament also gives approval, then Brexit will take place on January 31, 2020. The UK will then enter a transition period until December 31, 2020.

During the transition period, the immigration rights of EU nationals and their family members will remain unchanged. EU citizens and family members who enter the UK by the end of the transition period must submit an application under the EU Settlement Scheme. The deadline for doing so will be June 30, 2021.

The Government will introduce a new immigration system on January 1, 2021. EU nationals who enter the UK from that date must meet the requirements of the new system. The Government has stated that it will be a single immigration system for all nationalities, focused on talent and skills, modelled on the Australian points-based system.