[Baker & McKenzie]
Vol 30 Issue 4 December 2017
In This Issue
BRAZIL New Ruling Regulates Immigration Law 13.445 CHINA Long Term Work Permits Available Work Permit Requirements Clarified for Foreign Nationals Working with Foreign NGOs ITALY The Elective Residence Permit: An Opportunity to Stay in Italy SINGAPORE Employment Pass Application Now Requires Information on Employer's Hiring Practices Salary Requirement to Sponsor Dependents Increased for Work Pass Holders SGWorkPass Mobile Application and New Work Pass Card Introduced TAIWAN Legislature Announces the Act of Recruitment and Employment of Foreign Professionals to Attract Overseas Talent UKRAINE Year End Update: Developments of 2017 and Expected Changes to Come
More News and Events NEW RESOURCE ALERT! The Employer Report Subscribe to our new comprehensive blog, The Employer Report, which provides legal updates and practical insights about the latest labor and employment issues affecting US multinationals at both the domestic and global level. Featured insights cover a wide range of labor and employment topics, including wage and hour updates, new compliance obligations outside the US, trends concerning the gender pay gap, and more!
BRAZIL | New Ruling Regulates Immigration Law 13.445 A new immigration law (13.445) was published on May 24, 2017, and came into effect with the publishing of regulation (9.199) on November 21, 2017. The new legislation brings many changes, mainly regarding visa classifications. The new legislation regulates visitor visas and defines temporary work visas for those who travel to Brazil on long and short-term work assignments. Further, it introduces the possibility of applying for permanent residence. More definitions are expected shortly, as the immigration authorities work to edit and align the new procedures along with the website to file electronically. Until procedures are published, work visa protocols in Brazil are suspended.
Heloisa Avila | Sao Paulo +55 11 3048 6782 email@example.com
CHINA | Long Term Work Permits Available In June 2017, local labor authorities implemented a new streamlined and unified nationwide work permit assessment system. Under this new system, foreign nationals can obtain long-term work permits in China. Foreign nationals who meet the eligibility requirements for Type A work permits as High-Level Foreign Talents can obtain work permits for up to five years. In practice, however, local labor authorities maintain broad discretion in approving long-term work permits. In some jurisdictions like Beijing, foreign nationals classified as High-Level Foreign Talents (Type A) can apply for a five-year work permit as their first work permit application. However, in other jurisdictions like Shanghai, foreign nationals, regardless of category, are currently only permitted to apply for a one-year work permit as their first work permit application. For all applications, foreign nationals classified as Foreign Professional Talents (Type B) can obtain up to a three-year work permit in Beijing. The official maximum validity for Type B work permits remains one year in Shanghai. Key Takeaways Companies should continually check local policies regarding length of work permit validity when applying for a work permit, as local policies may change from time to time, and opportunities may arise to apply for longer work permits than in the past.
Vivien Yu | Hong Kong +852 2846 1722 firstname.lastname@example.org
CHINA | Work Permit Requirements Clarified for Foreign Nationals Working with Foreign NGOs On July 27, 2017, the State Administration of Foreign Experts Affairs and the Ministry of Public Security jointly issued a notice providing guidance on work permit applications for foreign nationals working for NGOs with or without a legal presence in China. Under the guidance, if a foreign NGO has a representative office in China, the chief representative of the representative office who fulfills the criteria for High-Level Foreign Talents, or who can provide recommendation letters from the administrative authorities, may be granted a five-year work permit. Local labor authorities may relax the typical qualification requirements for a work permit (e.g. age, bachelor's degree or above, two-years full-time experience, etc.) for chief representatives and ordinary representatives. A foreign NGO with no PRC legal presence should file a recordal with local authorities to perform temporary activities in the PRC and obtain work authorization for its foreign national employees if the foreign NGO does any of the following: (i) sends foreign nationals to conduct temporary activities; (ii) sends foreign nationals to conduct work activities for no more than 90 days (the short-term work permit may be applied for online); or (iii) seconds/assigns foreign nationals to conduct work activities for more than 90 days but less than one year (these foreign nationals will need to complete a formal work authorization process with the typical application documents required). Key Takeaways The July notice only provides high level guidelines, and at this stage, no separate detailed implementation rules exist for the work permit process as it relates to foreign NGOs operating in the PRC. Local labor officials have commented that the same work permit requirements apply to foreign nationals regardless of whether they are working for an NGO or another enterprise. However, local authorities in different jurisdictions can have vastly different interpretations on how to implement these requirements. Therefore, before sending a foreign national employee to the PRC, an NGO should first review the foreign national's eligibility to receive a PRC work permit in the locality where the employee will work.
Vivien Yu | Hong Kong +852 2846 1722 email@example.com
ITALY | The Elective Residence Permit: An Opportunity to Stay in Italy Among the number of Visa and Permits of Stay offered by Italian Immigration law which allow foreign nationals access into the "Boot" Country, the Elective Residence Permit of Stay presents a good option for individuals who have a significant amount of money and savings in their country of origin. Eligible foreign nationals include individuals who have selected Italy as their country of permanent residence, and who can support themselves autonomously without relying on an employment relationships in Italy. In order to apply for an Elective Residence Permit of Stay, the interested person shall have previously possessed:
A Permit of Stay for employment or self-employment, which can be converted after the expiration due to the termination of the work activity in Italy, provided the applicant owns any type of pension (e.g. retirement, invalidity, social), life annuities, or other incomes; or A Visa for Elective Residence, to be requested by the applicant in his or her country of origin. The release of the Visa is subject to evaluation by the Italian authorities on the basis of the documentation submitted with the application. This documentation must prove the existence of the housing and income requirements, as specified below.
The process of obtaining a Visa for Elective Residence and the following Elective Residence Permit of Stay is not particularly complex and consists of two main steps. In step one, an individual must submit a visa application to the Italian consulate office in his or her country or origin. In step two, the individual must file an application for the issuing of the Permit of Stay. This application must be submitted through the authorized post office and must be completed within eight days following arrival in Italy. If the application is success, the applicant must appear before the competent police station to submit mandatory documentation proving the fulfillment of medical-sanitary obligations and collect the Permit of Stay. A successful outcome of either the Visa or the Permit of Stay for Elective Residence application is subject to a careful submission of the documentation fully establishing:
Availability of housing to be elected as residence; and Capability to stay in Italy without relying on any employment relationship, which is established by the submission of detailed documents proving the existence of substantial and steady economic resources, that generate revenues at least equal to a minimum amount fixed by the Italian Government.
Moreover, the intention to choose Italy as the country of permanent residence could be investigated by the Italian consulate office and Police, hence why the applicant must be capable of demonstrating this intention. This demonstration, however, is not always as easy as the clearness of the procedure may suggest. For example, Italian authorities recently rejected the Visa application of a UAE businessman and citizen. The denial occurred because the businessman was not able to demonstrate his real intention to live and reside in Italy, since he was traveling all over the world all the time and only spending few days in a year in Italy. So, although applying for an Italian Permit of Stay for Elective Residence is straight forward, it requires the highest care when filling and submitting the documentation.
Sergio Antonelli | Milan Giulia Bifano | Rome +39 02 76231 329 +39 06 44063 211 firstname.lastname@example.org email@example.com
SINGAPORE | Employment Pass Application Now Requires Information on Employer's Hiring Practices The Ministry of Manpower has included additional questions in the Employment Pass online application form that require employers to disclose information about their hiring practices. The EP online application was updated with the new questions with respect to the employer’s efforts to hire Singaporeans or Singapore permanent residents for the intended job. These additional questions are set out here.
Key Takeaways This change was not announced officially by the MOM and came into effect immediately. Such unannounced changes by the MOM are more common, such as an EP holder requiring a Letter of Consent in order to be appointed as a director of another company and updating of passport details via Employment Pass Online portal. Employers need to understand that these unannounced changes are likely to be the new normal moving forward and accept that the procedural steps with respect to immigration issues are unlikely to stay static.
The change illustrates that the MOM is committed to ensuring that local candidates are considered fairly by employers during the recruitment process. This is also consistent with the recent integration of the Jobs Bank portal with MySkillsFuture, which allows job seekers to closely track if employers have reviewed and considered the job applications. Employers will now need to collate the new information relating to their hiring practices in the future.In practice, some employers may not have a policy of collecting such information regarding their hiring practices. Moving forward, employers are advised to document the records of the recruitment process so that these information can be provided easily, and applications can be submitted without delay.
Employers would need to continue to be aware of the various changes the MOM is introducing to ensure that the influx of foreign employees is managed properly.
Zhao Yang Ng | Singapore +65 6434 2701 firstname.lastname@example.org
SINGAPORE | Salary Requirement to Sponsor Dependents Increased for Work Pass Holders Effective January 1, 2018, Employment Pass or S Pass holders who wish to bring their spouses and children to Singapore on Dependents Passes or Long Term Visit Passes must command a monthly salary of at least S$6,000. Those who wish to bring their parents must commend S$12,000. The announcement of the change came on October 1, 2017, when the Ministry of Manpower announced on its website that the salary criteria for work pass holders to qualify for dependent privileges will be raised from S$5,000 to S$6,000 (for spouses and children) and S$10,000 to S$12,000 (for parents of main pass holders). The changes will only apply to new DP or LTVP applications made on or after January 1, 2018. New DP and LTVP applications submitted before January 1, 2018 will be assessed based on the existing criteria. Renewal of DPs and LTVPs approved or issued before January 1, 2018 will also be assessed based on the existing criteria as long as the main pass holder remains with the same employer.
The DP and/or LTVP privileges for EntrePass and Personalized Employment Pass holders are assessed based on separate sets of criteria and the revision to the DP and LTVP qualifying salary criteria will not affect the applications or renewals of these passes.
Key Takeaways The MOM reviews its guidelines periodically to ensure that work pass holders are able to support their dependents in Singapore. The is in line with the current trend in Singapore’s immigration policies, as the government continues to take tougher measures to ensure that only qualified foreigners whose presence in Singapore will be beneficial to the economy are granted authorization to work in Singapore.
Certain work pass holders may no longer be qualified to apply or renew the respective DPs or LTVPs for their families based on the new criteria. Hence we encourage employers to, as far as possible, apply or renew the EP and S Pass (and the respective DPs and/ or LTVPs) early to ensure that their employees’ families can continue to remain in Singapore in an authorized status despite the upcoming changes.
Zhao Yang Ng | Singapore +65 6434 2701 email@example.com
SINGAPORE | SGWorkPass Mobile Application and New Work Pass Card Introduced On September 5, 2017, the Ministry of Manpower announced a free mobile application called the SGWorkPass and also a new Work Pass card with a Quick Response code printed on it. The SGWorkPass application allows employers, work pass holders, authorized agents / service providers and any other stakeholders to verify if the current work pass issued by the MOM is valid.
The MOM will issue the New Pass card in three phases based on the types of passes and sectors which the work pass holders are working in:
Phase Types/Sectors Phase One From September 15, 2017 Work Permit (Marine Shipyard and Construction Sectors) Phase Two Janaury 2018 Work Permit (Other Sectors e.g. Manufacturing, Process and Services, excluding the Domestic Sector) Phase Three March 2018 Work Pass (Domestic sector), Employment Pass, S Pass, Related Dependent's Pass
Downloading the Application The SGWorkPass mobile application is currently available on the Apple App Store and the Google Play Store. Users of the application will be asked to perform a one-time registration using their mobile number after download. They will then be required to enter a one-time password into the application for verification and grant permission for the application to access the various facilities in their mobile devices (e.g. camera, phone, gallery and notifications). Using the Application Currently employers rely on the date of expiry printed on the card as proof of the work pass holder’s status before entering into a employment contract or allowing entry into their office premises. However the date of expiry printed on the existing work pass may not reflect the updated status of employment for the work pass holder due to various reasons such as early resignation or corporate restructuring. Scanning the QR code on the new work pass with the SGWorkPass mobile application provides employers with the latest pass status and employment information of the work pass holder. Accordingly, this is a more reliable and convenient way for employers to verify current status and other information such as the expiration date and occupation of the work pass holder. Even if no OTP registration was performed on the application, users can still select the “Use Card Serial Number” option to verify basic pass information such as pass expiry date and pass cancellation date. The card serial number is printed on the front of each respective pass. Renewal of Pass The MOM will discontinue printing variable information such as the date of issue and date of expiry on the New Pass card. However, employers are still required to renew the work (and its related) pass if they wish for the existing work pass holder to continued employment following the date of expiration. Based on the above phased implementation, existing pass holders will receive their new passes when they renew their respective passes. For new applications, the pass applicants will receive the physical new passes following the online issuance of the pass and completing the card registration with the MOM. Employers, work pass holders and/ or authorized agents / service providers will be notified of any updated process during the renewal and issuance of the passes online. More information will also be provided in the Notification Letter (e.g. the work / stay authorization letter prior to receiving the physical pass) at such time with respect to returning of the old passes to the MOM. Moving forward, pass holders issued the new pass cards can continue to use the same cards following the renewal and issuance of their passes online. This means they will not receive a new card each time they renew their passes, unless they are required to re-register their fingerprints or photo-images with the MOM. The latest pass information will be updated automatically to the SGWorkPass mobile application. Conclusion While the SGWorkPass mobile application can only be used in Singapore, the ease of accessing the application 24/7 will provide employers with a more convenient way to verify the latest pass status of the work and related pass holders and whether he or she can remain legally and/or in Singapore. We anticipate a slight change with respect to the pass issuance process following the introduction of issuing the New Pass. As always, we encourage employers to apply or renew the respective passes early to avoid any delay due to the upcoming changes to the application and renewal process.
Zhao Yang Ng | Singapore +65 6434 2701 firstname.lastname@example.org
TAIWAN | Salary Requirement to Sponsor Dependents Increased for Work Pass Holders In order to attract foreign professionals in select fields, the Legislature has passed the Act for Recruitment and Employment of Foreign Professionals to provide a package of benefits designed to increase the appeal and convenience for foreign nationals to work in Taiwan. The Act is expected to be implemented prior to the 2018 Chinese New Year. While the Act is limited in applicability to specific fields, the passage of this legislation marks the start of an exciting era for Taiwan as it begins to compete for foreign talent. Key Takeaways
The Act will apply to (i) foreign professionals, (ii) foreign special professionals, and (iii) foreign senior professionals, as defined under the Act, the Employment Services Act, and relevant laws and regulations.
Extended Employment Term and Employment Gold Card
For foreign special professionals, the Act extends the maximum employment period to five years. This five-year period is also applicable to dependents. Also available to foreign special professionals is an Employment Gold Card, which is a work permit, resident permit, resident visa, Alien Resident Certificate and re-entry permit all in one. This Employment Gold Card must be renewed every three years.
Employment Seeking Visa
Foreign professionals looking for jobs in Taiwan are eligible to apply for employment-seeking visas so they may engage in job seeking in-country. The visa is a multiple-entry visa so that they may engage in job seeking.
Minimum Stay for Permanent Residency.
Previously, a foreign national that resided in Taiwan for less than the 183-day minimum stay requirement would have his or her Alien Permanent Resident Certificate revoked. The Act substantially relaxes this requirement so that the government may revoke the APRC after the foreign national has been away for more than five years.
Easing of Provisions concerning stay or residence of parents, spouses and children.
The requirements for dependents of foreign professionals has been relaxed, so that dependents of any age must only continually and lawfully reside in Taiwan for a period of five years, and more than 183 days in each of those years. There is also no longer a requirement to produce proof of assets.
Tax, Insurance and Retirement Benefits.
Foreign Professionals who are employed and approved for APRC may now subscribe to the pension system under the Labor Pension Act. This is applicable to employees who have obtained employment prior to the enactment of the Act. These individuals will have six months to notify their employers if they want to continue to remain in the pension system under the Labor Standards Act. In addition, the requirement for a six-month minimum stay for dependents of foreign nationals to become eligible as beneficiaries under the National Health Insurance Act has been removed. The requirement for a six-month minimum stay for dependents of foreign nationals to become eligible as beneficiaries under the National Health Insurance Act has been removed. Foreign special professionals in Taiwan with an annual salary of over NTD three million may be eligible for a tax-benefit of that amount, provided they reside in Taiwan for more than 183 days in that year.
Frank Liu | Taipei Seraphim Ma | Taipei Irving Chien | Taipei +886 2 2715 7339 +886 2 2715 7252 +886 2 2715 7290 email@example.com firstname.lastname@example.org email@example.com
UKRAINE | Year End Update: Developments of 2017 and Expected Changes to Come The procedure for documentation of foreign employees in Ukraine has been significantly simplified in recent years due to several novelties and a reduction in the number of documents required for Ukrainian employers to obtain a work permit for a foreign employee. Key Developments of 2017 2017 was marked by several significant developments, perhaps the most important being that as of February 2017, foreign nationals can be employed by more than one Ukrainian legal entity and occupy more than one position in Ukrainian companies. In April 2017, new rules for issuing entrance visas came into effect. The new rules provide for a reduced period for issuing visas and a reduced visa fee, and amend the conditions for issuance of a visa. The consulate's new fee for a visa of any type is equal to USD 65. Previously, the fee depended on the number of permitted entries into Ukraine and could amount to USD 200. Also, a long-term (type-D) visa was issued only as a single 45-day visa that restricted foreign nationals in their movements, (e.g. foreign nationals were obligated soon after entrance into Ukraine to apply for a temporary residence permit). In addition, a foreign national could not leave Ukraine before renewing TRP. Now a long-term visa is issued as a 90-day multiple entry visa. Amendments to the procedure for issuing Work Permits On September 27, 2017, Law No. 2058-VIII "On Amendments to Certain Legislative Acts of Ukraine On Eliminating Barriers to Foreign Investments" dated May 23, 2017 came into effect. The law significantly simplifies the procedure for issuing Work Permits and provides for a number of other useful mechanisms. In November 2017, the Cabinet of Ministers of Ukraine approved the new forms for Work Permit applications. Under the changes introduced by the law to the procedure for issuing Work Permits, employers no longer have to file a medical certificate evidencing that a foreign national does not suffer from certain diseases, or submit a clean criminal record certificate as a part of a Work Permit application. However, employers are now required to file a draft employment agreement (contract) to be concluded with the foreign national. A Work Permit application is still decided within seven business days. After the decision to issue a Work Permit is obtained, an employer must pay a state fee for issue of the Work Permit. If the payment is not made in a timely manner, the decision to issue the Work Permit will be cancelled. Also, the employer must conclude the employment agreement with the foreign national within 90 days from the day the Work Permit is issued and submit a copy to the relevant employment center. The law also provides for a number of procedural issues and novelties, namely:
Secondary employment verse positions overlap: the Law provides for the option to obtain an additional Work Permit for a foreign national holding more than one office (secondary employment option), or whose job duties overlap onto several positions. Furthermore, a highly paid foreign professional (a foreign employee whose salary exceeds fifty times the minimum monthly salary established by law, currently UAH 160,000 or approximately USD 6,040 at the current exchange rate) under certain conditions, may hold more than one office without an additional Work Permit. Also, any foreign employee may carry out the job duties of a temporarily absent employee for up to 60 days per year without a separate Work Permit. Special categories of foreign employees were introduced for which an employer may obtain a Work Permit for up to three years. These special categories include highly paid foreign professionals, founders (as well as participants and/or beneficiaries) of a legal entity established in Ukraine, graduates of certain universities, foreign artists and IT professionals. A TRP (which is normally issued for one year only) can be obtained for these employees for the term of validity of their Work Permits (e.g., for up to three years). Minimum salary requirements to obtain a Work Permit - Employers must pay foreign employees a minimum salary (i) that is not less than five times the minimum monthly salary established by law (currently UAH 16,000 or approximately USD 604 at the current exchange rate) - for foreign employees of civic associations, charitable organizations and certain educational institutions or (ii) not less than 10 times the minimum monthly salary established by law (currently UAH 32,000 or approximately USD 1,208 at the current exchange rate) - for other categories of foreign employees, except for the special categories of foreign employees mentioned above. Work Permit Amendments Required: An employer is required to amend a Work Permit to reflect changes to the employer's name, the employee's name, the employee's position and/or transfer to another position and in the event the foreign employee obtains a new passport. Differentiated fee for obtaining a Work Permit from two to six times the subsistence level established for a working person as of January 1 of the calendar year in which the employer applies for the Work Permit. The fee for the Work Permit now depends on the term for which the Work Permit is obtained.
Investment-based Residence Permits The Law also provides for a new ground to obtain a TRP and increases the term of validity of a TRP. As of September 27, 2017, founders (as well as participants and/or beneficiaries) of a legal entity established in Ukraine may obtain a TRP for two years if they come into Ukraine to control the activities of that legal entity and directly (or through another legal entity) own a share of at least EUR 100,000 of the charter capital of such Ukrainian legal entity. Also, if a Work Permit for a foreign employee has been issued for two or three years, the TRP for that foreign employee will be issued for the same period of time. Expected Changes to Come In September 2017, a Decision of the National Security and Defense Council of Ukraine obligating the Cabinet of Ministers of Ukraine to amend the procedure for entry into and departure from Ukraine of foreign nationals and their registration of the place of residence came into effect. The Decision provides for the improvement of the residence registration procedure for foreign nationals who originate from "migration risk states" or who have entered Ukraine from the territory of such states. The Decision also updated the list of such states (in particular adding Russia), as well as create an action plan introducing the requirement for foreign nationals to electronically file a notification of intent to enter Ukraine and for a biometric passport for foreign nationals traveling to or out of Ukraine. Also, as of January 1, 2018, foreign nationals will be subject to biometrical verification and identification at the Ukrainian border. The Decision itself is mainly focused on regulating the entry procedure for Russian nationals entering Ukraine. The mass media articulated several contradictory positions of different governmental officials regarding the scope of the Decision. In general, such positions center around the view that only foreign nationals originating from "migration risk states" (or who have entered Ukraine from the territory of such states) will be obligated to electronically file a notification of intent to enter Ukraine and have a biometric passport to enter the country. However, from a strict legal standpoint, the Decision does not expressly mention that the above requirement will apply exclusively to certain foreign nationals. The Decision provides that this requirement will apply to "foreign nationals and stateless persons" and has no reference to "migration risk states." Currently, Ukrainian laws neither require a biometric passport to cross the Ukrainian border nor obligate a foreign national to file a prior notification of intent to enter Ukraine. If such measures are adopted, it will also affect foreign nationals from developed countries coming to Ukraine for employment purposes. In addition, in 2018, the immigration authorities are planning to start issuing residence permits in the form of a plastic card using the Unified State Demographic Register, which is an electronic system designed to store, protect, process, use and share both information about a person and information about identification documents that have been issued for the person. It is likely that other border control measures and other immigration formalities will remain unchanged in the coming year, except for biometrical verification and fingerprint identification that should be implemented as of January 1, 2018, with regard to all foreign nationals.
Mariana Marchuk | Kyiv Lina Nemchenko | Kyiv Anna Stepanowa | Kyiv +380 44 590 0101 +380 44 590 0101 +380 44 590 0101 mariana.marchuk @bakermckenzie.com lina.nemchenko @bakermckenzie.com anna.stepanowa @bakermckenzie.com
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