1.1 Extension of expired residency permits and new security features
• In continuity with the decision that the Italian Government has made since the beginning of the pandemic, a new decree recently enacted provided for an automatic extension for residency permits that expired on 30 April 2021. This extension, which is provided until 31 July 2021, does not exclude that an additional extension may be further implemented after that date.
• A new uniform format for national residency permits for non-EU nationals was introduced in January 2021. The new format is aimed at providing more secure documents that comply with the EU security standards by implementing new digital features, making them less prone to forgery. Among the most relevant updates, the expiry date will be now also be reported on the paper document.
In brief On 17 March 2021, the European Commission published a proposal to create a Digital Green Certificate (DGC) to facilitate free movement inside the EU during the COVID-19 pandemic. The DGC is meant to provide proof that a person has been vaccinated, received a negative test result or recovered from the virus. Member States remain responsible for determining which public health restrictions will be waived for foreign travelers (e.g., a waiver of quarantine requirements), but they will have to apply such waivers in the same way to travelers holding a DGC. EU authorities aim to have the DGC system operational by the end of June 2021. The proposed regulation should enter into force 21 June 2021, with a transition period of six weeks for the national implementation of the DGC by Member States. The Netherlands intends to implement the DGC in the CoronaCheck App. This means that citizens only have to use the CoronaCheck App to generate a test, recovery or vaccination certificate. Application The Dutch Minister of Public Health informed the House of Representatives that he foresees three application opportunities:
• for inbound travelers, to provide a waiver for the quarantine requirement and/or a waiver for the mandatory negative test for travelers from high risk areas;
• in country, as an alternative proof of a negative test result, required to participate in certain activities and access certain facilities.The Dutch government aims to implement the DGC as soon as possible, after the respective EU Regulation has entered into force. However, the Minister of Public Health does not want to lose any time considering that the summer holiday period will start shortly thereafter. He anticipates that the Dutch Cabinet will be able to present its intended decision for review to the House of Representative in early June. If you wish to receive more information or discuss how the above affects your organization, please feel free to contact us. . In brief The Department of Labor and Employment (DOLE) has issued Department Order No. 221, s. 2021 ("DO No. 221, s. 2021"), or the Revised Rules and Regulations for the Issuance of Employment Permits to Foreign Nationals (access here). Companies that will be applying for or renewing alien employment permits (AEP) for their foreign employees will have to comply with the new requirements under DO No. 221, s. 2021. Key Takeaways The salient points of DO No. 221, s. 2021 are as follows:
• AEP applications must be filed prior to the commencement of employment or within 10 working days from the date of the signing of employment contract.
• New requirements for an AEP application include: (i) a certified true copy (CTC) of the Philippine Economic Zone Authority (PEZA) certificate, if applicable; (ii) proof of the required job vacancy's publication; and (iii) an affidavit stating that no applications were received or no Filipino applicant was considered for the position.
• A police report is now required for the replacement of AEP cards due to loss.
• At least 15 calendar days prior to the application for AEP, the employer must publish the job vacancy being applied for by the foreign nationals in a newspaper of general circulation. The DOLE Regional Office (DOLE RO) must conduct a labor market test (LMT) within two working days from receipt of the AEP application.
• New AEP applications shall be processed within five working days after publication. Renewal AEP applications shall be processed and issued within five working days after submission of documentary requirements and payment of fines, if any.
• AEP cards must be claimed within 10 working days from notification, failure of which is a ground for revocation of the application.
• The AEP shall remain valid in case the foreign national is transferred or assigned to related companies in another region. However, the employer must publish the position, as described above, when filing for renewal. The employer must notify the DOLE RO within 10 working days from the date of transfer or reassignment.
• The employer must submit a quarterly report on foreign nationals employed. It must also notify the DOLE-RO of any changes in the employer's information, such as name, address and contact number.
• Foreign nationals working without valid (e.g., expired) AEPs and their employers shall be barred from filing AEP applications for five years. On the other hand, foreign nationals working with fraudulent AEPs and their employers shall be barred from filing AEP applications indefinitely.In more detail Filing of new and renewal AEP applications The process for filing new AEP applications is as follows:
1. Prior to the filing of the AEP application, the employer must secure all relevant permits and authorities, including: (i) a special temporary permit in case of practice of a regulated profession (e.g., accountancy, architecture or engineering); (ii) authority to employ alien issued by the Department of Justice (DOJ), or proof of application, in case the employer is covered by the Anti-Dummy Law (e.g., engaged in a nationalized industry); and (iii) authority to hire foreign national from the Department of Environment and Natural Resources (DENR), or proof of application, in case the employer is engaged in mining.
2. At least 15 calendar days prior to the filing of the AEP application, the employer must post a job vacancy for the position in a newspaper of general circulation.
3. New requirements for the AEP application include: (i) a CTC of the PEZA certificate, if applicable; (ii) proof of the aforementioned publication; and (iii) an affidavit stating that no applications were received or no Filipino applicant was considered for the position.
4. Within 10 days from the signing of the contract or prior to the commencement of employment, the employer must file the application for issuance or renewal of AEP, submitting all the documentary requirements, including the permits described above.
5. Within two days from the receipt of the AEP application, the DOLE will perform the LMT. For a period of 30 days, the DOLE-RO will post the new AEP application on their website and the Public Employment Service Office job boards.
7. The AEP must be claimed within 10 days from notice of issuance, except if the employer requests that the AEP be sent through courier service providers, failure of which is a ground for revocation.The process for filing renewal AEP applications is as follows:
1. Prior to the filing of the AEP application, the employer must secure all relevant permits and authorities, including: (i) a special temporary permit in case of practice of a regulated profession (e.g., accountancy, architecture or engineering); (ii) authority to employ alien issued by the DOJ, or proof of application, in case the employer is covered by the Anti-Dummy Law (e.g., engaged in a nationalized industry); and (iii) authority to hire foreign national from the DENR, or proof of application, in case the employer is engaged in mining.
2. If the foreign national was transferred or assigned to another region, within 15 calendar days from the filing of the AEP application, the employer must post a job vacancy for the position in a newspaper of general circulation.
3. As early as 60 days before the expiration of the AEP, the employer must file the application for issuance or renewal of AEP, submitting all the documentary requirements, including the permits described above.
5. The AEP must be claimed within 10 days from notice of issuance, except if the employer requests that the AEP be sent through courier service providers, failure of which is a ground for revocation.Additional position Section 5 of DO No. 221 provides that an LMT is required in cases where the foreign national is assigned an additional position during the effectivity of an AEP. They must file an AEP application with the DOLE-RO within 15 working days from the date of appointment. Transfer of employees Section 8 of DO No. 221 provides that the AEP shall remain valid until it expires, even if the company transfers to another location or the foreign national is transferred or subsequently assigned to related companies in another region. The employer must notify the DOLE-RO of any transfer or re-assignment within 10 days from effectivity. However, if a foreign national is transferred, when the AEP is renewed, the employer must comply with the required publication, as described above. Penalties for working without valid/with fraudulent AEP Section 10 of DO No. 221 provides that foreign nationals working without valid AEPs and their employers shall be barred from filing AEP applications for five years. On the other hand, foreign nationals working with fraudulent AEPs and their employers shall be barred from filing AEP applications indefinitely. In addition, a fine of PHP 10,000 for every year shall be imposed on both the foreign national and employers if a foreign national is hired without a valid, or with a fraudulent AEP. The same fine shall be imposed for filing late AEP application (e.g., beyond 10 days from the signing of the contract or after commencement of employment). Certificate of exemption Certificates of exemption are issued to foreign nationals who, while covered under Article 40 of the Labor Code, are exempted from securing AEP under relevant rules and regulations. The following foreign nationals may apply for certificates of exemption from securing AEP:
a. Dependent spouse of any member of the diplomatic corps, provided there is an existing reciprocity agreement and/or exchange of notes between the Philippine government and their respective countries of origin;
b. Accredited officials and personnel of international organizations of which the Philippine government has entered into an agreement with, and their dependent spouse desiring to work in the Philippines;
c. Foreign nationals who are officers, staff and employees working in the embassy by reason of extraterritoriality principle, which is one of the generally accepted principles in International Law;
d. Foreign nationals who are officers and staff of peacekeeping or international organizations, either deployed in the Philippines or invited by non-governmental organizations as accredited, endorsed or certified by the appropriate government agencies, provided they will not engage in any gainful employment in the Philippines;
e. Foreign nationals who come to the Philippines to teach, present, and/or conduct research studies in universities and colleges as visiting, exchange or adjunct professors under formal agreements between the universities or colleges in the Philippines and foreign universities or colleges; or between the Philippine government and foreign government, subject to the rules of reciprocity;Certificate of exclusion Certificates of exclusion are issued to foreign nationals who are providing/supplying services in the country, but whose employers are based abroad, as well as those without an employer-employee relationship with a Philippine entity. The following foreign nationals may apply for certificates of exclusion from securing AEP:
a. Members of the governing board with voting rights only and do not intervene in the management of the corporation or in the day-to-day operation of the enterprise;
c. Intra-corporate transferee employed by the foreign service supplier for at least one (1) year continuous employment prior to deployment to a branch, subsidiary, affiliate or representative office in the Philippines as a manager, an executive or a specialist in accordance with trade agreements.
d. Contractual service supplier who is a manager, an executive, or a specialist employed by a foreign service supplier which has no commercial presence in the Philippines, and:
i. enters the Philippines temporarily to supply a service pursuant to a contract between his/her employer and a service consumer in the Philippines;
iii. employed by the foreign service supplier for at least one (1) year prior to the supply of service in the Philippines.
e. Authorized representatives of accredited/registered foreign principal/ employers, who participate in all recruitment activities of its duly licensed recruitment/manning agency by the Philippine Overseas Employment Administration (POEA) within or outside of the latter’s registered address or acknowledged additional office in the Philippines.Reportorial requirements The employer must submit a quarterly report of foreign nationals employed. It must also notify the DOLE-RO of any changes in the employer's information, such as name, address and contact number. *Authored by Quisumbing Torres, a member firm of Baker&McKenzie International, a Swiss Verein. Please contact [email protected] for inquiries. In brief From 1 May 2021, Dependant's Pass (DP) holders who wish to work in Singapore will need to apply for a relevant work pass such as an Employment Pass, S Pass or Work Permit instead of a Letter of Consent (LOC). Existing DP holders with LOC will be allowed to continue working until the LOC expires. However, employers will have to apply for an applicable work pass for them if they wish to continue employing them after the existing LOC expires. In more detail Currently, dependants of Employment Pass, EntrePass or Personalised Employment Pass holders who hold a DP can apply for LOC to work in Singapore, and do not require a separate work pass. With this upcoming change that is effective from 1 May 2021, they will have to apply for a relevant work pass such as an Employment Pass, S Pass or Work Permit, instead of an LOC, unless they are business owners who meet specific criteria. Existing employees will be able to continue working until the expiry of their LOC. However, employers will need to apply for an applicable work pass for them to continue working after the expiry of their LOC. The MOM will facilitate the transition to a work pass. Prevailing qualifying salary, dependency ratio ceilings and levies for the respective work passes will apply. DP holders who are business owners will be eligible to continue running their businesses on an LOC, provided that their business creates local employment. They will need to meet the following criteria:
• The DP holder is a sole proprietor, partner or company director with at least 30% shareholding in the business.
• The business hires at least one Singaporean/Permanent Resident who earns at least the prevailing local qualifying salary (currently SGD 1,400) and has been receiving Central Provident Fund contributions for at least three months.In the event the businesses owned by the DP holders do not meet the criteria, they are only allowed to run their businesses until the end of the LOC validity. However, they may apply for a one-off extension of their LOC until 30 April 2022 during their next DP renewal. Thereafter, they will need to meet the prevailing criteria in order to renew their LOC or obtain an applicable work pass to continue working in Singapore. Further details will be released by the Ministry of Manpower (MOM) on 1 May 2021. Comments This change in aligning the requirements for DP holders who wish to work in Singapore with the requirements for all other foreigners working in Singapore further reinforces MOM's goal in the eventual building of a Singaporean core among employers..
In brief The Minister of Home Affairs in South Africa has extended the validity period of legally issued visas, which expired during the period of the national lockdown in South Africa. These visa holders are permitted to remain in South Africa, under the existing conditions of their visas, until the expiry date of their relevant extension. In more detail The Minister of Home Affairs in South Africa has issued amendments to the previous concession extending the validity period of legally issued visas, which expired during the period of the national lockdown. These amendments mean that legally issued visas, which expired during the period of the lockdown, are deemed to be valid until the end of June 2021 and July 2021 respectively. Key extension dates to note include: These visa holders are permitted to remain in South Africa, under the existing conditions of their visas, until the expiry date of their relevant extension. Those visa holders that would like to be repatriated to their country within this period, can depart South Africa without being declared undesirable persons. This extension does not apply to people who entered South Africa from 15 March 2021. People admitted into the country from 15 March 2021 must adhere to the normal validity period of their visas. The Minister is inviting those holders of longer-term temporary visas, which expired during the period of the national lockdown, to renew their visas before 31 July 2021. The Department of Home Affairs is still to communicate further details on how to renew asylum and refugee permits, while the Refugee Reception Centres remain closed. Further details regarding the amendments can be obtained by reaching out to your usual contact in the Johannesburg Employment & Compensation.
South Africa | How pandemic related immigration and border control measures have changed workforce mobility policiesIn brief Travel restrictions implemented due to the pandemic have changed the way the majority of employers plan their workforce mobility programs. This is especially the case if they are based in countries included on travel red lists due to current high infection rates or different virus variants. While some sectors require employees to be physically present, in many others, remote working has taken off and is expected to remain a permanent feature of the modern workforce, even once cross-border travel has recovered. COVID-19 affected almost all countries and workforces in every corner of the world. South Africa, and other countries with high infection rates or a different strain of the virus, have been placed on 'red' or 'high alert' lists for certain destinations, heightening the economic and social impact of the pandemic and creating challenges for both business and leisure travelers. The practical effect of such lists is that affected citizens cannot enter certain countries or must adhere to stricter entry requirements. In South Africa, airports are now open for both international and domestic travel, although entry into the country is subject to pandemic related regulations, such as providing a valid negative COVID-19 test within a certain time. However, South Africa citizens travelling to other countries are, or have been, subject to much stricter entry conditions for certain destinations, including the United States, the United Kingdom, Germany and France, where they face an outright ban on entry, or must comply with strict quarantine measures in order to enter. For those used to travelling for work reasons, such restrictions have resulted in substantial changes to how South African employers work with employees who are currently based in other countries and unable to enter the country. A recent survey by PWC pointed to an increased employer focus on workforce mobility policies. According to PWC, the impact of global travel restrictions has heightened the attention businesses are giving to their mobile workforce strategies, the safety and wellbeing of their employees and their remote working policies in general. PWC conducted a survey of 250 global business leaders and found that attitudes around workforce mobility are changing, with many more businesses enabling flexible working. The report noted that around half of the companies surveyed now allowed international employees who were unable to travel, to continue working in their home countries remotely. As much as a third of respondents said that they would focus on their workforce mobility programs going forward to allow international remote workers, who have been unable to move to other countries to take up offers of new employment, to begin or continue their employment where they are currently based. Workforce mobility programs are therefore evolving from mostly focusing on business travel arrangements to include extensive, up-to-date details on pandemic travel-related restrictions, in all jurisdictions where the business operates. The legal requirements of homeworking, including employment law and tax implications of working remotely for a foreign company, are also an essential part of these programs. Also important is a plan to engage employees working remotely in other jurisdictions. These programs look at ways to improve employee wellbeing and ensure that remote workers are regularly included as part of the team so that they don't become isolated due to their inability to be physically present. Employers should view their workforce mobility programs holistically, taking into consideration both their workforce and the work environment they wish to maintain or create. Nevertheless, restrictions on mobility and business activity within many countries have undoubtedly had a negative impact on the employment status and future employment possibilities for many people. With travel restrictions in place, some employees have not been able to physically return to work, and while many were able to work remotely, some had jobs that could not be performed outside of the business premises. The latest labor force survey data from ILO Monitor shows there is a contrast between job losses in sectors that were hard hit by the pandemic – such as tourism and hospitality, arts and culture, retail and construction – and growth in employment in the sectors that required highly skilled workers (and who usually can more easily work remotely) - such as technology, media and telecommunications and financial services. The report also said there was jurisdictional variation in the severity of jobs crisis - some countries were worse off than others in terms of job losses in the sectors that were most affected and that mostly required workers to be physically present. Workforce mobility clearly has both advantages and disadvantages for employers and employees. Businesses are adapting, however, and the move to a mobile workforce has opened up opportunities for employees in other countries with in-demand skills that can be delivered remotely, resulting in the growth of more globally diverse workforce. Further benefits to a mobile workforce have included cost savings in terms of lower overheads, reduction in IT infrastructure and reduced need for office space. While business and leisure travel are expected to return to normal levels and will likely grow in future post-pandemic years, the trend towards workforce mobility has now taken up permanent residency in the employment policies of most global businesses.
In brief The Transport Secretary on 7 May announced the first phase of the traffic light travel system. The system will include a full list of countries in red, amber and green categories and the rules to be adhered to before traveling and entering England. In depth The requirements to be followed before travel depend upon where you have been in the 10 days before you arrive in England. These rules must be followed even if you have been vaccinated. If there is a sudden change in conditions, a country or territory may be moved between lists without warning. Red list countries and territories You should not travel for leisure to red list countries or territories. If you have been in a country or territory on the Red list in the last 10 days, you will only be allowed to enter the UK if you are a British or Irish National, or have residence rights in the UK. Before you travel to England you must: Once you arrive in England you must quarantine in the hotel booked and take the 2 PCR COVID-19 tests as instructed. Amber list countries and territories You should not travel for leisure to amber list countries or territories. If you will be traveling within the UK, Ireland, the Channel Islands and the Isle of Man and you have not been outside the Common Travel Area in the previous 10 days, you will not need to take a COVID-19 test or quarantine on arrival in England. Before you travel to England you must: Once you arrive in England you must: If you pay for a private COVID-19 test through the Test to Release scheme, you may be able to end quarantine early. Green list countries and territories The countries on the Green list as of 17 May are: Australia, Brunei, Falkland Islands, Faroe Islands, Gibraltar, Iceland, Israel and Jerusalem, New Zealand, Portugal (including the Azores and Madeira), Singapore, South Georgia and South Sandwich Islands and St Helena, Ascension and Tristan da Cunha. Until 17 May all countries and territories outside of the Common Travel Area are either red list or amber list countries or territories. If you travel to England before 17 May you must follow the relevant red or amber list rules. Before you travel to England you must: Once you arrive in England you must: Transit stops in amber or red list countries If you have been in or passed through a country or territory on the red or amber list in the previous 10 days before you arrive in England, you will need to follow the relevant red or amber list rules. Traveling abroad from England Up until 17 May, you can only travel abroad from England if you have a legally permitted reason to do so. Before you travel, you must complete a declaration form for international travel. You will no longer be required to complete the declaration form for international travel from 17 May. Related links Red, amber and green countries and rules for entering England COVID-19 test Booking and staying in a quarantine hotel Passenger locator form Book and pay for day 2 and day 8 COVID-19 test Test to Release scheme Common Travel Area If you're told to self-isolate Declaration form for international travel Further details regarding these changes can be obtained by reaching out to your usual contact in our Global Immigration & Mobility team. In brief Following from our earlier bulletin at the end of April, the Home Office has amended the date the temporary adjustments introduced to the right to work check due to COVID-19 will end from 17 May 2021 to 20 June 2021. In depth Employers must, from 21 June, return to face to face and checking the prescribed documents that are set out in the "right to work checks: an employer's guide". The amended end date of the temporary adjustments introduced to the right to work check is associated with the easing of lockdown restrictions and social distancing measures as set out in the government's roadmap for England. As previously communicated by the Home Office, it is no longer necessary to carry out retrospective checks on those who had a COVID-19 adjusted right to work check between 30 March 2020 and 20 June 2021 (inclusive). Related links See link to earlier bulletin Right to work checks: an employer's guide Online right to work tool Further details regarding these changes can be obtained by reaching out to your usual contact in our Global Immigration & Mobility team.
In brief From 17 May 2021, the temporary adjustments introduced to the right to work check due to COVID-19 will be ending. When conducting the right to work check, employers must again check the prescribed documents that are set out in the right to work checks: an employer's guide. Employers can no longer accept scanned copies or photos of the original documents and must be in possession of the original documents when conducting the right to work check. Alternatively, as many offices are not fully back to work, where possible, employers can also use the online right to work tool. The online check provides real time information direct from the Home Office systems and does not require the employer to see or to check the individual's physical documents. Employers that use this service, will be able to carry out a check via video call. The individual must give the employer permission to view their details in the form of a share code. This service can be used by those with a current Biometric Residence Permit or Card, status under the EU Settlement Scheme, or the points-based immigration system. Employers must be mindful that they cannot insist individuals use this service or discriminate against those who choose to use their documents to prove their right to work instead. As previously communicated by the Home Office, it is no longer necessary to carry out retrospective checks on those who had a COVID-19 adjusted right to work check between 30 March 2020 and 16 May 2021 (inclusive). As an employer you will be safeguarded against any civil penalty provided the checks undertaken during this period was done in the prescribed standard manner or as set out in the COVID-19 adjusted checks guidance. Related links Right to work checks: an employer's guide Online right to work tool Further details regarding these changes can be obtained by reaching out to your usual contact in our Global Immigration & Mobility team.
In brief From 4 am on Friday 23 April, India will be added to the travel ban list as part of the government's strategy to help protect against and check the new types of COVID-19 coming into the country. British, Irish and third country nationals with residence rights (including long term UK visas holders) who have departed from or transited through India within the last ten days can still return to England, but are required to:
• book and purchase a quarantine package for a Government approved hotel quarantine facility at their own cost. The hotel must be booked and paid for in advance and declared on their passenger locatorform.
• complete a passenger locator form to confirm previous travel, proposed hotel and post-arrival testingarrangements.A failure to disclose a recent trip to India or any other country on the "red list" could result in a fine and/or a sentence of imprisonment up to ten years. Related links Booking and staying in a quarantine hotel when you arrive in England from a country on the banned list How to quarantine when you arrive in England Further details regarding these changes can be obtained by reaching out to your usual contact in our Global immigration & Mobility team.  It is important to note that differing rules may apply if you are travelling to Scotland, Wales or Northern Ireland.
In brief Despite having removed the advertising requirement from the rules when it revised Tier 2 General into the Skilled Worker category, in its revised Appendix D guidance (on keeping documents), UKVI has now included a requirement to keep records of recruitment. Key points to note: If you are sponsoring a worker on a route that does not require a formal Resident Market Test (RLMT) or the role was otherwise exempt from the test, you must still retain evidence of any recruitment activity you have undertaken. If the role was not advertised, you must be able to explain how you recruited the migrant worker. This information will help the Home Office establish that the role is a genuine vacancy. This requirement applies to all Worker (including Tier 2) and Temporary Worker (including Tier 5) routes where there is no formal RLMT requirement, or where the specific role is exempt from that requirement.
iii. website address or information about where the job was advertised and the duration the advertisement was open for
II. Keep a record of the total number of people who applied for the job, the number of people that were shortlisted or for other stages of the recruitment process.
III. Evidence or information which shows the process that was used to identify the most suitable candidate (you do not have to retain application forms, CVs, interview notes or any other personal data relating to unsuccessful candidates):
ii. a list of common interview questions used for all candidates as part of your selection process
b. If you did not advertise the role, you must be able to explain and provide evidence of how you identified that the worker was suitable. Examples include, but are not limited to, the following:
I. you identified the worker through a university milk round – you should retain evidence of the milk round
II. the worker was already legally working for you on another immigration route and you established they were suitable for the role through their previous performance
III. the worker applied to you outside of a formal advertising campaign (made a 'speculative' application) and you were satisfied (for example, by interviewing them and/or checking references or qualifications) they had the necessary skills and experience to do the jobIf you would like to discuss these changes please reach out to your usual contact in our Global Immigration & Mobility team.
In brief The Government has announced last week that a new Graduate route will open for applications on 1 July 2021, "…allowing the UK to retain the brightest and the best international students to continue to contribute to society and the economy post-study." This new opening is likely to benefit global employers as well as small start-up companies as those students qualifying for the visa will not require a sponsorship (i.e. Skilled Worker or Intra-company route), which means that the burden of additional immigration costs and visa processes can be avoided/delayed. Key points to note:
• The route will enable international students to remain in the UK to work, or look for work, for two years (three years for doctoral students) after they have completed their studies.
• All international students who have successfully completed a degree (or other permitted qualification) at undergraduate level or above at a Higher Education Provider with a track record of compliance, and who have valid Student (or Tier 4) permission at the time of application, will be able to apply.
• This is an unsponsored route, meaning applicants will not need a job offer in order to be eligible. There will be no minimum salary requirements or caps on numbers.
• Graduates on the route will be able to work flexibly, switch jobs and develop their career as required.
• Whilst this route will not lead to settlement, those on the route will be able to switch into another work-based immigration category, such as the Skilled Worker route (which does lead to settlement), once they meet the requirements.
• Due to COVID-19, there are also concessions that have been put into place for students unable to travel to the UK due to the pandemic. Applicants who began their studies in autumn 2020 now have until 21 June 2021 to enter the UK (updated from the previous date of 6 April 2021) in order to be eligible for the route. Students who began their studies in January or February 2021 will need to be in the UK by 27 September 2021.Further details regarding these changes can be obtained by reaching out to your usual contact in our Global Immigration & Mobility team.
In brief In his budget of 3 March 2021, the Chancellor announced the timetable for further anticipated visa reforms to help businesses recruit highly skilled individuals in academia, science, research and technology. In depth The government will:
• introduce, by March 2022, an elite points-based visa. Within this visa there will be a 'scaleup' stream, enabling those with a job offer from a recognised UK scale-up to qualify for a fast-track visa
• reform the Global Talent visa, including to allow holders of international prizes and winners of scholarships and programmes for early promise to automatically qualify
• review the Innovator visa to make it easier for those with the skills and experience to found an innovative business to obtain a visa
• provide practical support to small firms that are using the visa system for the first time
• modernise the immigration sponsorship system to make it easier to use. The government will publish a delivery roadmap in the summerThe main employment based immigration categories (Tier 2) were reformed in December 2020 and pending more detail on the above changes, a new graduate route is also to be introduced this summer which will allow UK graduates to stay in the UK to work for two years at the end of their studies, allowing employers a less expensive and less onerous way to recruit talent outside of the current sponsorship system for up to two years. Further details regarding these changes can be obtained by reaching out to your usual contact in our Global immigration & Mobility team.
Biden has appointed a number of civil rights advocates to lead the country's key enforcement agencies, and issued a plethora of executive orders and White House memoranda. Here is the question employers have: What does this look like in terms of DOJ enforcement of anti‑discrimination provisions in the workplace? While it remains to be seen exactly how the Biden administration DOJ will enforce anti-discrimination provisions in the workplace, two areas of enforcement activity employers should keep an eye on are (1) the DOJ's Immigrant and Employee Rights Section, or IER, enforcement of the antidiscrimination provisions of the Immigration and Nationality Act, or INA, and (2) the DOJ's employment litigation section's enforcement of provisions of Title VII of the Civil Rights Act. Click here to continue reading. This article was originally published in Law360. .
In brief Decree No. 152/2020/ND-CP on foreigners working in Vietnam ("Decree No. 152") took effect on 15 February 2021 and replaced former Decree No. 11/2016/ND-CP ("Decree No. 11") on the same subject. The Department of Labor, Invalids and Social Affairs (DOLISA) of Ho Chi Minh City recently issued Guidance No. 5756/SLDTBXH-VLATLD dated 26 February 2021 ("Guidance No. 5756") on the implementation of Decree No. 152. Guidance No. 5756 which, while repeating the procedural issues under Decree No. 152, also introduces some updates on the management of foreigners working in Vietnam under the authority of Ho Chi Minh City DOLISA. We have also observed that since the introduction of Decree No. 152, local DOLISAs have generally heightened their scrutiny over applications for work permits. For example, DOLISAs have insisted that foreigners must possess degrees that are directly relevant to or exactly match their positions as experts, and that the renewal of a work permit issued before the effective date of Decree No. 152 would not be allowed, even if such work permit was the first work permit being issued. Key takeaways Enterprises and organizations are recommended to take into account the new regulations, practices and difficulties in work permit applications. Careful preparation and planning are strongly advised. Risks facing foreigners working without work permits or during the period where work permits are being applied must also be carefully considered. If you have any queries and concerns, please do not hesitate to contact us. We will keep you updated should there be any developments in the future. In more detail
Over the past weeks, we have observed and received feedback from the business community on local DOLISAs' heightened scrutiny over work permit applications. The situation has generally caused difficulties for foreigners working in Vietnam who need to renew their current work permits or apply for new work permits, as well as those who plan to enter Vietnam to work. We list out below some of the notable points.
i. Renewal of work permits issued under former regulations would not be allowed
As a background, under Decree No. 11, multiple renewals of work permits were allowed without any cap. Now, according to Decree No. 152, a work permit can be renewed only once for a period of up to two years, meaning a work permit's total term (including its first issuance and subsequent renewal) can be a maximum of four years. Currently, local DOLISAs, including the DOLISA of Ho Chi Minh City, practically refuse to renew any work permit that was issued before the effective date of Decree No. 152, even if such work permit was the first work permit and has never been renewed. The DOLISAs instead require that the foreign employee and employer apply for a new work permit when the work permit expires. We believe this practice contradicts with the law, as there is no provision under Decree No. 152 providing that work permits issued under Decree No. 11 shall not be renewed.
ii. A foreigner's educational qualification must be directly relevant to or match the job position in Vietnam as an expert
Decree No. 152 provides that, as part of the legal requirements to apply for an "expert" work permit, a foreigner must have:
1. a bachelor's degree or equivalent and at least three years of experience in his/her field suitable for the job position in Vietnam; or
2. at least five years of experience and a practicing certificate suitable for the job position in Vietnam.
The requirement set out under item (1) above is not a new requirement and was stipulated under Decree No. 11. However, before Decree No. 152, local DOLISAs used to accept a bachelor's degree with any major, which did not have to match the foreigner's job position in Vietnam, as qualified evidence for work permit applications as "experts." Currently, however, some local DOLISAs, including the DOLISA of Ho Chi Minh City, have strictly requested the major stated in the bachelor's degree or equivalent to be directly relevant to or exactly match the foreigner's job position in Vietnam; otherwise, the expert work permit application will be rejected. For example, a foreigner holding a bachelor's degree in communication and media cannot apply for an expert work permit as a construction project supervisor.
iii. The authority may have an intention that a foreigner may only work in a position for a maximum of four years
As noted in section 1(i) above, Decree No. 152 provides that a work permit can be renewed only once for a period of up to two years, meaning a work permit's total term (including its first issuance and one subsequent renewal) can be a maximum of four years. According to some informal consultations with some local DOLISAs, including the DOLISA of Hanoi, the Ministry of Labor, Invalids and Social Affairs (MOLISA) may have an intention that, after the four-year maximum period, including a new work permit issuance and one renewal, foreign workers should have transferred their knowledge, experience and expertise to local labor and would need to apply for a new work permit under a new position if they want to continue working in Vietnam. This understanding, however, has not yet been confirmed or mentioned by the MOLISA.
In general, while Guidance No. 5756 does not introduce extensive changes or updates to what have been provided under Decree No. 152, it addresses in detail the procedural process and paperwork relating to, among others, the work permit application, re-application and renewal processes. Notably, Guidance No. 5756 adds two items to the list of information that must be included in the notification to Ho Chi Minh City DOLISA (as required under Decree No. 152) with respect to foreigners who are entitled to work permit exemption status without having to obtain a certificate on work permit exemption, e.g., foreign lawyers, individual investors, and foreigners getting married to Vietnamese citizens. Such information includes the job position and job title of the foreigner, which are not required in Decree No. 152. The foreigner and employer must send the notification to the Ho Chi Minh City DOLISA at least three days prior to the expected commencement date.