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AUSTRALIA: The Australian government announced a sponsor accreditation scheme starting November 1.

May 22, 2011/in Australia, News /by ABIL

As part of “Subclass 457” visa reforms, the Australian government has announced a sponsor accreditation scheme, available beginning on November 1, 2011, for certain standard business sponsors.

The Australian Government has announced plans to introduce Accredited Sponsor (AS) status, beginning on November 1, 2011, to facilitate the priority processing of company nominations and temporary entry subclass 457 visas for sponsored employees. AS status can be applied for either with a new sponsorship application or by variation of an existing sponsorship.

The new accreditation process recognizes that many Australian businesses have a long history of good dealings with immigration authorities, including lodging a high volume of good quality, decision-ready applications and an excellent record of compliance with relevant laws.

Once accredited, the sponsorship agreement will last for 6 years; this compares with the current 3 years for standard sponsors. The same form will be used as for an application to become a standard sponsor. If the criteria for AS status are not met, the application for standard sponsorship will proceed and be assessed in the usual way.

To qualify for AS status, sponsors must demonstrate several additional characteristics above the standard sponsorship requirements at the time of application. The sponsor must:

  • be a government agency, a publicly listed company, or a private company, with a minimum of A$4 million turnover per year for the last 3 years
  • have been an active 457 visa sponsor for the past 3 years (with a break of no more than 6 months, not due to any sanction)
  • have no adverse information known about them based on monitoring by Australian immigration and workplace authorities, including formal warnings and sanctions
  • have had at least 30 subclass 457 visa holders granted in the previous 12 months
  • have lodged a high level of decision-ready applications over the previous 2 years
  • have a non-approval rate of less than 3% for the previous 3 years
  • have Australian workers comprising at least 75 percent of their workforce in Australia and a commitment to maintain this level
  • have a Collective Agreement or Enterprise Agreement that covers all 457 visa holders earning less than A$180,000 per annum.

If a sponsor fails to maintain these characteristics, AS status can be revoked, resulting in loss of access to priority processing arrangements.

Australian ABIL member Katie Malyon has indicated that the last of these requirements for AS status means that few sponsors apart from State/Territory governments will be able to access the scheme.
For more information, click here.

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USCIS announced relief for Japanese, Pacific nationals stranded in U.S. following quake, tsunami

March 22, 2011/in Japan, News /by ABIL

U.S. Citizenship and Immigration Services announced on March 11, 2011, the following relief for Japanese and other nationals from the Pacific stranded in the U.S. due to the earthquake and tsunami disasters in Japan:

This advisory is for Japanese and other foreign nationals from the Pacific stranded in the United States due to the earthquakes and tsunami devastation. If you have exceeded or are about to exceed your authorized stay in the U.S. you may be permitted up to an additional 30 days to depart.

Visitors traveling under the Visa Waiver Program (VWP):

  • If you are at an airport, contact the U.S. Customs and Border Protection office at the airport
  • All others, please visit the local U.S. Citizenship and Immigration Services office

Visitors traveling under a nonimmigrant visa:

  • Visit the local U.S. Citizenship and Immigration Services office
  • Bring your passport, evidence that you are stranded (such as an itinerary for the cancelled flight), and your I-94 departure record

The announcement is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=89a8ce68596ae210VgnVCM100000082ca60aRCRD&vgnextchannel=e7801c2c9be44210VgnVCM100000082ca60aRCRD.

Additional immigration relief options are available on the Special Situations Web page at http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=f34d3e4d77d73210VgnVCM100000082ca60aRCRD&vgnextchannel=f34d3e4d77d73210VgnVCM100000082ca60aRCRD.

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AUSTRALIA: Impending Changes to Living Away From Home Allowance Rules

March 22, 2011/in Australia, News /by ABIL

Currently, employees living away from home to perform their employment duties in Australia may be eligible for tax-free benefits for reasonable housing and food costs under the Living Away From Home Allowance (LAFHA) rules. Changes have been proposed to start on July 1, 2011, to address the perceived abuse of these LAFHA tax concessions.

As a result of the proposed changes, employers of foreign workers in Australia will need to consider their recruitment and retention strategies, current contracts of employment, and whether to facilitate transition of current sponsored temporary residence employees to permanent residence.

Essentially, employers have three key options to consider:

  1. increasing the foreign worker’s remuneration so that his or her take-home pay is not affected;
  2. continuing to pay the LAFHA, which means the foreign worker will pay tax under the income tax regime; or
  3. renegotiating contracts of employment so that the foreign worker is reimbursed for reasonable accommodation and food expenses. In this case, the employer incurs a fringe benefit tax liability.
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Ronald Klasko featured in the World Business Satelllite on the EB-5 Visa program

March 12, 2011/in Japan, News /by ABIL

On March 10, H. Ronald Klasko was interviewed by World Business Satellite on the EB-5 Visa program. The show aired nationwide in Japan on TV Tokyo and covered many aspects of how foreign capital is being used to fund U.S. real estate projects including the Jay Peak Ski Resort.

Chairman of the EB-5 Investor Committee of the American Immigration Lawyers Association (AILA), Ron explained that foreign investors can get a fast track green card to live in the US by investing in projects that create jobs. The program allows for a $500,000 investment by the foreign investor in projects designated as “regional centers”. Developers are actively trying to get such designations for their projects.”

H. Ronald Klaso’s Biography

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AUSTRALIA: Floods in Australia

February 01, 2011/in Australia, News /by ABIL

The Federal Government announced on January 27, 2011, that it will fast-track 457 visa processing for workers engaged on rebuilding work in the wake of the devastating Queensland floods.

457 visa holders and eligibility for Disaster Income Recovery Subsidy

Centrelink is an Australian Government statutory agency that delivers a range of Commonwealth services to the Australian community. Centrelink has confirmed that 457 visa holders and other temporary visa holders who can demonstrate a loss of income from the recent floods in Australia may be eligible for the Disaster Income Recovery Subsidy.

Eligibility for a second 417 Working Holiday visa (WHV) based on flood damage clean-up work

Immigration authorities have advised that WHV holders may qualify for a second WHV visa if they volunteer or undertake paid work assisting in the clean-up of recent flood damage in a designated regional area of Australia. This excludes metropolitan Brisbane.

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SOUTH AFRICA: Transferring Employees and Their Families to South Africa

January 22, 2011/in News, South Africa /by ABIL

A significant amendment to the law is expected in the next few months that will affect transferring employees and their families to South Africa.

Transferring Employees and Their Families to South Africa

Under current South African immigration law, a company can transfer or deploy one or more of its employees to a company that is “operating in South Africa.” This is on condition that the two companies are in a holding, subsidiary, or “affiliate relationship.”

There are three key conditions to qualify for such a permit. First, the person must be an existing employee who will return to his or her employment at the offshore company at the end of the term of the deployment. Second, the company in South Africa must in fact be operating. And third, there must be a qualifying relationship between the two companies. The term “affiliate relationship” is not defined and deliberately allows for considerable flexibility. These permits are usually issued for a two-year period and cannot be renewed or extended.

The permit requirements fall into two broad categories: those that are specific to the intra-company transfer work permit and those that are required for any permit that authorizes a period of residence in South Africa of more than three months. The key requirements specific to the intra-company transfer work permit include, among other things, a copy of the employee’s offshore contract and proof that he or she has the skill needed for the assignment in South Africa.

All family members (assuming they are not South African citizens or permanent residents) accompanying the foreign national to be transferred, no matter their ages, must apply for appropriate permits to reside in South Africa.

As may be suggested by the “transfer” permit’s name, South Africa’s permit system is activity-specific. So if the family includes dependents who will be studying at a tertiary institution or a school (but excluding a pre-school), they must obtain study permits before they can attend the institution. If the dependent is not attending school or is home-schooling, he or she needs a long term visitor permit to accompany the holder of the transfer permit.

For purposes of residence in South Africa, the Immigration Act recognizes non-formalized life partnerships and does not discriminate based on sexual orientation. Couples do not need to be married or in a civil union for purposes of obtaining a residence permit. But the couple will need to prove the fact of the spousal relationship. The term “spouse” refers to the partner, whether married or not. The relationship must be monogamous. The spouse also must obtain a long-term visitor permit to accompany the holder of the transfer permit.

There is no special dispensation for the spouse who wishes to study, be employed, or be self-employed, while in South Africa. They (and/or the place of learning or employer) must comply with all the relevant prescribed requirements of the appropriate temporary residence permit. This is the case even if the spouse wishes to work (or remain working) for an employer back home even where the company does not have a presence in South Africa. [There is a special dispensation for persons who are in a spousal relationship with a South African citizen or permanent resident. Please consult your Alliance of Business Immigration Lawyers attorney about this.]

Under current policy, the South African Department of Home Affairs prefers that people seeking to take up a post in South Africa (and their families), should apply for the appropriate permit at the nearest South African embassy or consulate and have obtained the permit(s) before they leave for South Africa. Application can be made for all the appropriate permits (for the transferee, the spouse, and the children) at the same time. The consequent permit, if approved, will be endorsed into the applicant’s passport.

The general rule is that foreign nationals must at all times have a permit in their passport that accurately describes the purpose and period for which they have been authorized to enter and remain in South Africa. If those circumstances change, the person must apply to the Department of Home Affairs for authorization to remain in the country under those changed circumstances.

A significant amendment to South African law is expected in the next few months. It is imperative that proper and comprehensive advice be sought from a skilled immigration attorney.

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INDIA: Tightening of In-Country Compliance and Registration Requirements

January 22, 2011/in India, News /by ABIL

Under the Indian Bureau of Immigration’s general policy, all foreign nationals who arrive on a visa valid for more than 180 days and who expect to remain in India for more than 180 consecutive days during a single visit or stay must register at the designated registration office in the place of residence.

Until recently, employment visa holders intending to remain in India for more than 180 consecutive days were required to register (unless otherwise indicated on their visa endorsement). However, now all foreign nationals with employment or visas that are valid for more than 180 days must register with the Foreigner Regional Registration Office (FRRO) within 14 days of arrival in India.

Accompanying spouses and dependents who intend to reside in India also must register. Such individuals now must submit additional documents at the time of registration. For example, a spouse on a dependent visa must present the original civil marriage certificate authenticated with an apostille. In cases where a country does not issue apostilles, the certificate must be legalized by an appropriate Indian consular post. A dependent spouse also must provide a “no work” letter to the FRRO confirming that he or she will not engage in any productive work while residing in India. Currently, the FRROs are not asking for authenticated birth certificates for dependent children, but this could change with little or no advance notice.

List of Mandatory Documents

The following documents are required at almost all the FRROs when registering on an employment visa:

  1. Original valid passports and Indian employment visa;
  2. Four passport-size photographs;
  3. Three copies of the applicant’s passport;
  4. Copy of applicant’s Indian visa;
  5. A letter from the Indian employer, requesting registration;
  6. A letter of undertaking signed by an Indian national working with the company in India assuming full responsibility for the applicant;
  7. Proof of police verification;
  8. Proof of residence address;
  9. Evidence of C-Form compliance if staying at a hotel;
  10. Employment contract;
  11. Proof of compliance with Indian income tax if the applicant has worked in India in the past; and
  12. A copy of the applicant’s earlier registration booklet if he or she has been registered in the past.

The following additional documents are required at some FRROs:

  1. Details of the applicant’s movable and immovable property;
  2. A copy of the applicant’s Permanent Account Number (PAN) card or proof of having applied for a PAN card;
  3. Monthly salary certificate;
  4. A certificate from the Indian company stating that no qualified Indians were available for the proffered job;
  5. A copy of a major utility bill from the landlord of the leased premises where the applicant is residing (if applicable);
  6. A copy of the Indian company registration certificate; and
  7. Evidence of Tenant Information Form compliance.

The following documents are required at almost all the FRROs when registering on an entry (dependent) visa:

  1. Original valid passport and Indian employment visa;
  2. Four passport-size photographs;
  3. Three copies of the applicant’s passport;
  4. Copy of applicant’s Indian visa;
  5. A letter from the principal applicant’s Indian employer, requesting registration of the dependent;
  6. A letter of undertaking signed by an Indian national working with the company in India assuming full responsibility for the applicant;
  7. Proof of police verification;
  8. Proof of residence address;
  9. Copy of marriage certificate (needs an apostille for some FRROs); and
  10. A copy of the applicant’s earlier registration booklet if he or she has been registered in the past.

The following additional documents are required at some FRROs:

  1. Details of the applicant’s movable and immovable property;
  2. A copy of a major utility bill from the landlord of the leased premises where the applicant is residing (if applicable);
  3. Evidence of Tenant Information Form compliance.
  4. Declaration from spouse that he or she will not undertake any business or work-related activities while in India.

Visa Extensions

Per recent changes, all employment visa applications must include the following additional documents:

Foreign nationals granted employment visas before October 2010, who earned an annual salary of less than US $25,000 (approximately INR 1,145,000) must ask their Indian host company for a salary attestation declaration from the appropriate Employee’s Provident Fund Organization (EPFO) confirming that the employee will earn at least US $25,000 for the coming year.

The Indian host company must supply a confirmation letter that no qualified Indian national workers are readily available to assume the employment visa holder’s current position as their specialized knowledge services continue to be required in India.

An employment visa holder must submit a photocopy of his or her PAN card or evidence of official registration for a PAN card, along with a duly signed and stamped income letter by the Indian host company confirming the itemized remuneration paid to the foreign national employee, including his or her annual base salary, allowances, and any bonuses to be paid for the coming year.

Spouses renewing their dependent visas must submit their authenticated marriage certificate. Those whose renewal applications are already filed with the FRRO should check whether their marriage certificate will be required. Those submitting their renewal applications but who do not possess their marriage certificate should submit a letter confirming that they will obtain appropriate certification as soon as possible.

Dependents also must submit a “no work” letter to the FRRO confirming that they will not engage in any productive work while resident in India.

Documentation Tip

All FRROs have not publicized or updated their websites to reflect these changes and seem to be asking for additional documents in an ad hoc fashion. It is best to be prepared with all the documents that may be needed, irrespective of the specific requirements of any FRRO, so that they are available if required at short notice.

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HONG KONG: Hong Kong made changes to Capital Investment Entrant Scheme (CIES)

January 22, 2011/in Hong Kong, News /by ABIL

The Hong Kong Capital Investment Entrant Scheme has been extremely popular. Successful applicants can benefit from one of the premier financial centers of the world with a robust economy and a low, simple and predictable tax regime. Initially launched by the Hong Kong Special Administrative Region (SAR) government in October 2003 to attract investments from qualifying individuals who wished to obtain Hong Kong residency through making a capital investment without the need to establish or join in a business in Hong Kong, as of the end of 2010, 16,600 applications had been received and 8,924 applicants had invested a total of $63.31 billion, representing an average of HKD $7.09 million per entrant.

On October 14, 2010, responding to Hong Kong’s Chief Executive Donald Tsang’s concerns about surging property prices n Hong Kong expressed in his annual policy address, the government temporarily removed real estate from the permissible investment asset classes under the CIES because 40% of the investments in the first half of 2010 had been in real estate.

More specifically, the amendments included the following changes:

i) The threshold of investment (and net assets/net equity requirement) for admission to Hong Kong under the CIES was raised from HK$6.5 million (USD $834,000) to HKD $10 million (USD $1.28M);

ii) Real estate was suspended temporarily as a class of Permissible Investment Assets (PIA) under the CIES; and

iii) An insurer authorized to carry on Class C business as specified in Part 2 of the First Schedule to the Hong Kong Insurance Companies Ordinance became eligible, in addition to banks, to act as a financial intermediary for the purpose of the CIES

The government believes that despite the amendments, the scheme remains competitive compared with the investment programs of other jurisdictions, and promised that the investment threshold (and net assets/net equity requirement) will be reviewed once every three years. With respect to the temporary suspension of real estate as a class of PIA, this decision will be assessed at the next regular review, or earlier as necessary.

In the short term, the beneficiary of these changes is the U.S. EB-5 program, which has become relatively “cheap” at USD $500,000, since Canada’s investment threshold is currently CDN $800,000, while effective January 1, 2011, the Singapore Monetary Authority’s Financial Investor Scheme (FIS) requires applicants to place S $10 million in assets for a continuous period of five years, up from a minimum of S $5 million previously, with a financial institution regulated by the Monetary Authority of Singapore, although a portion – up to $2 million – can be used to buy private residential properties.

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AUSTRALIA: Foreign Investment Review Board (FIRB) crackdowns on purchase of homes in Australia by certain temporary visa holders

January 22, 2011/in Australia, News /by ABIL

Increased FIRB screening and compliance measures, including a hotline and a pilot monitoring system, have been introduced to ensure that temporary visa holders comply with FIRB requirements. Statistics show 15 real estate transactions were prevented by FIRB and a further 73 proposed residential real estate purchases have been voluntarily withdrawn in the last 9 months.

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UNITED KINGDOM: Non-EU Family Members With Valid EU Residency Permission Need Not Apply for Additional Permission To Enter the UK

January 22, 2010/in News, United Kingdom /by ABIL

In December, the European Court of Justice (ECJ) handed down a significant judgment regarding the rights of non-EU family members of EU citizens to enter the UK.

In that case, a dual British and Irish citizen, his Colombian wife, who held a Spanish residence card, and their children had resided in Spain since 2010. The family also had a house in the UK to which they would travel often. However, UK law required that the wife obtain an EEA family permit before entering the UK, a process that required applying at the diplomatic mission in Madrid, a significant distance from their home in Marbella.

The court held that “a person who is a family member of a Union citizen and is in a situation such as that of Ms. McCarthy Rodriguez is not subject to the requirement to obtain a visa or an equivalent requirement in order to be able to enter the territory of that Union citizen’s Member State of origin.”

The UK government has expressed its concern and disappointment with the ruling, citing a lack of consistency among EU member states with regard to the issuance of residence cards.

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