ABIL Members Published Country-by-Country Comparison of Immigration Benefits for Same-Sex and Domestic Partners

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ABIL Members published an overview of immigration benefits for same-sex and/or domestic partners in various countries. This article provides an overview of immigration benefits available for same-sex spouses and/or domestic partners in fifteen countries. The article is limited to immigration-related issues and does not cover the situation of lesbian, gay, bisexual, or transgender individuals in each country more generally.

Belgium

Belgium legalized same-sex marriage in 2003. Belgium family reunification rules apply equally to all couples without regard to the gender of the two individuals.

Spouses of third-country business migrants in Belgium may accompany and live with their spouses, provided that both spouses are older than twenty-one years, or, if they were already married before the arrival of the business migrant, older than eighteen years. Unmarried partners of third-country business migrants with a “registered” partnership considered equivalent to a Belgian marriage will be treated the same (only “registered” partnerships performed in Denmark, Finland, Germany, Iceland, Norway, Sweden, and the United Kingdom qualify).

Belgium’s family reunification rules also provide for unmarried “non-registered” partners and common-law spouses, and apply without regard to the gender of the two individuals. Specifically, unmarried, “non-registered” partners and common-law spouses of third-country business migrants from outside the European Union/European Economic Area may accompany and live with their significant others in Belgium, provided that:

  • they are not involved in a marriage or partnership with any other person;
  • they sign a registered partnership together in Belgium;
  • they are able to demonstrate that they have a long-lasting and stable relationship with one another, established by furnishing evidence of prior legal cohabitation (at least one uninterrupted year, in Belgium or abroad); or the existence of either a bona fide relationship (the partners prove that they have known one another for at least two years, have had frequent contact (by phone, mail, or e-mail), have met at least three times over the last two years, and these meetings covered at least forty-five days in total), or that they have a common child; and
  • they are older than twenty-one years or, if they have already cohabited at least one year before the arrival of the business migrant in Belgium, older than eighteen years.

Brazil

On February 18, 2014, effective as of March 20, 2014, the National Council of Immigration published Normative Resolution No. 108, changing the rules for granting visas for dependents (the so-called “family reunion visa”), and cancelling NRs 36 and 77, which until now regulated the subject.

The main changes introduced were with respect to visas for common-law partners (irrespective of gender), which may now be applied for directly at the Brazilian consulate abroad or at the Federal Police in Brazil, without the need to go through the National Council of Immigration. This rule now applies to all types of family reunion visas and irrespective of whether they are on a temporary or permanent basis.

Another main change is that when there is no official document issued by the government/court attesting to the existence of the common-law partnership, this may now be proven through one of the following documents, rather than two as were required before: (i) evidence of dependence issued by a tax authority or by a department corresponding to the Brazilian Federal Revenue Service; (ii) a certificate of religious marriage; (iii) testamental provisions registered at a Brazilian Notary or at the competent foreign authority, proving the existence of the partnership; (iv) a life insurance policy or health plan, in which one of the parties appears as establisher of the insurance/plan and the other party as beneficiary; (v) a deed of purchase and sale of real estate, duly registered in the Property Registration Office, in which both parties appear as owners, or a rental agreement in which both parties appear as lessees; or (vi) a joint bank account.

Also, a foreign birth certificate of a common child of the partners is now accepted as proof of a common-law partnership. If there is a common Brazilian child, then the visa to be applied for is a permanent visa based on a Brazilian child rather than a visa based on the common-law partners. The acceptance of the health plan as proof of the common-law partnership is another change introduced by NR-108.

There is no citizenship requirement to get married in Brazil.

Canada

Immigration Benefits for Same-Sex Partners

Since the entry into force of Canada’s Immigration and Refugee Protection Act (IRPA) in 2002, replacing the Immigration Act, 1976, same-sex rights have become enshrined in Canadian immigration law.

Same-sex marriages are recognized for Canadian immigration purposes in any jurisdiction where they are currently legal. Canadian marriage laws have been gender-neutral since 2005. In addition, Canadian citizens and permanent residents may sponsor their spouses, common-law partners, and conjugal partners, as applicable, for the family-class permanent immigration category without regard to the gender of that spouse, common-law partner, or conjugal partner. Applicants in the economic-class immigration category can include their same-sex spouses or common-law partners as dependents in their applications regardless of gender. Also, spouses and common-law partners of a Canadian work permit or study permit holders may apply for an open work permit irrespective of whether they are in a same-sex or different-sex relationship, subject to certain conditions.

Immigration Benefits for Domestic Partners

In Canadian immigration law, domestic partners are known as “common-law partners.” A “common-law partner” is defined in subsection 1(1) of the Immigration and Refugee Protection Regulations as an individual cohabiting with a person in a conjugal relationship for at least one year. For Canadian immigration purposes, common-law relationships are considered to be marriage-like relationships characterized by mutual commitment, exclusivity, and interdependence.

Common-law relationships must be factually demonstrated to Citizenship and Immigration Canada (CIC) based on documents proving cohabitation for a continuous period of at least one year and documents proving interdependence, such as documentation regarding joint ownership of property, joint travel, or photographs of the couple. Conjugal partners are recognized as common-law partners in Canadian immigration law where, due to very exceptional circumstances such as persecution, they have been precluded from cohabiting together for a period of at least one year.

As with married spouses, common-law partners may sponsor their common-law partners and include their common-law partners as dependents on other permanent immigration applications. Similarly, common-law partners are eligible for open spousal work permits subject to certain conditions, provided that they submit sufficient evidence to substantiate their common-law relationship. Common-law partners enjoy equal rights as married spouses pursuant to Canadian immigration law but are subject to a higher evidentiary burden in terms of proving their relationship to CIC.

China

China does not recognize marriages, partnerships, or relationships between two individuals of the same sex for immigration purposes. There is currently no way around these restrictions.

France

General provisions relating to marriage from the law of May 17, 2013, conflict of laws, and consular marriage. France’s Civil Code now recognizes both same-sex and different-sex marriages. Article 202-1 of the Civil Code provides that the personal law of each spouse governs the conditions for marriage, but then Article 202-2 provides that two persons of the same sex can marry when the personal law or the law of the state of residence of one spouse permits. This arrangement allows avoidance of the application of the personal law of one spouse prohibiting marriage between persons of the same sex when the marriage took place in the territory of a state recognizing marriage between persons of the same sex.

The above implies, for the Constitutional Council, that two foreigners of the same sex can marry when one of them resides or is domiciled in France. However, this rule does not apply to nationals of countries with which France is bound by bilateral agreements (Poland, Algeria, Tunisia, Morocco, republics of the former Yugoslavia, Cambodia, and Laos), which provide that the law governing conditions for marriage is the personal law. The marriage, however, may take place in a non-prohibitive state having no bilateral agreement with the country of the spouses.

Foreign nationals frequently may find themselves in situations where their countries of origin do not recognize their marriages in France unless those countries have adopted legislation similar to the new French legislation.

A consular marriage between same-sex French nationals does not raise issues. However, a consular marriage between a French national and a foreign national may be more complex in consular posts in prohibiting countries (which are in the majority). In such case, the Civil Code provides that the marriage may take place in France.

The law of May 17, 2013, also provides that marriages between same-sex couples may be recognized retroactively if they were validly celebrated abroad at a time when French law forbade such marriages.

The impact on French immigration rights of foreign nationals moving to France. Marriage now carries the same effects, rights and obligations whether between persons of different sex or the same sex.

  • Derivative residency and work rights known as “accompanying family rights” are applicable to married foreign workers under Inter-Company Transfer, EU Blue Card, or Skills and Talents status, regardless of the gender identity of the spouses when the marriage is celebrated in France or recognized by France (marriage between two foreigners) on the basis of the new provisions of the Civil Code and Article L313-11-3 CESEDA.
  • The same sex marriage between foreign national and a French national will allow the issuance of a visa and residence permit to the foreign national as the spouse of French national, on the basis of the Civil Code and Article L313-11-4 CESEDA.
  • The marriage between of a third country foreign national in European Union with a European citizen is expected to allow the issuance of a residence permit as a European spouse under Articles L121-3 to L121 -5 CESEDA.

Recognition of marriage for same-sex couples could also give rise to new legal actions when a decision refusing stay maybe considered as disproportionate interference with rights to private and family life, under Article 8 of the European Convention on Human Rights.

Domestic partners however will not enjoy the same immigration rights as same-sex married couples. Even domestic partners who contract the French form of domestic partnership agreement (PACS) will not qualify for “accompanying family rights”.

Hong Kong S.A.R.

In a landmark decision on July 4, 2018, the Court of Final Appeal, Hong Kong’s highest court, ruled that the Hong Kong Immigration Department must issue a dependent visa to a same sex partner for immigration purposes. Accordingly, while the definition of a “marriage” as between a man and a woman under Hong Kong Law remains unchanged, the marriage status and a civil union partnership of same-sex couples entered into in a jurisdiction which recognizes such relationships are now recognized in Hong Kong for the purpose of applying for a dependent visa if the other partner holds permanent resident status or an employment visa.

The ruling was welcomed by a host of global financial institutions, law firms, executive search firms and other businesses as this ruling strengthens Hong Kong’s ability to attract global talent and its competitiveness as recruiting and relocating talent to Hong Kong had sometimes been hampered because of the immigration restrictions of same sex couples.

India

Indian law does not recognize same-sex marriages and considers gay sex a criminal offense. No provisions in Indian law provide for immigration benefits to same-sex spouses or partners. Section 377 of the Indian Penal Code (IPC), an archaic law, was introduced in 1861 during British rule in India. It criminalized “carnal intercourse against the order of nature with any man, woman or animal” with a maximum sentence of life imprisonment.

The struggle to strike down section 377 of the IPC as unconstitutional has been a long one, spearheaded by activists from non-governmental organizations (NGOs) fighting for the rights of the lesbian, gay, bisexual, and transgender (LGBT) community. On July 2, 2009, a historic judgment decriminalizing homosexuality was passed by the Delhi High Court in favor of Naz Foundation, an NGO working in the fields of HIV/AIDS intervention and prevention and for the rights of the LGBT community. An appeal was filed challenging this decision in the Supreme Court of India. On December 11, 2013, the Supreme Court reversed the decision of the Delhi High Court, thereby criminalizing homosexual intercourse between consenting adults. The Supreme Court shifted the onus onto Parliament to decide whether to repeal the provision, arguing that the courts could not make such decisions under the existing laws. The Supreme Court further observed that there was “no constitutional infirmity” in the section 377 law. This judgment has sparked widespread condemnation throughout India and internationally, and has been criticized as regressive.

However, there have been isolated incidents and trends worth reporting. In November 2013, a senior Indian Foreign Service officer was demoted from her post in the Ministry of External Affairs (MEA) passport and visa division for refusing a visa for the same-sex spouse of a U.S. diplomat. She refused the visa on the ground that same-sex marriages are not legal in India and the diplomat’s spouse could not therefore be granted a diplomatic visa and recognized as a “spouse” in India. A senior official in the MEA’s American division suggested that although there is no rule in India allowing visas for gay couples, the diplomat’s partner could be given a visa as a family member as it had been done in the past. On the other hand, in light of India’s opposition to the arrest of its Deputy Consul General in New York, one politician from the Bhartiya Janata Party has suggested that the same-sex spouses or partners of U.S. diplomats be prosecuted under section 377 as a retaliatory measure.

Until recently, Indian law did not recognize relationships between domestic, live-in (opposite-sex) partners. On June 17, 2013, the Madras High Court held that for a valid marriage, all customary rights need not be followed and subsequently solemnized. As long as the couple is not disqualified by law from marrying each other, and a third party’s rights are not affected, the couple can be declared to be spouses by the court. This declaration would be on the basis of whether they have had a sexual relationship. The court held that if a woman age 18 and above, and a man age 21 and above, have a sexual relationship, they will be treated as husband and wife, especially if the woman becomes pregnant. Even if the woman does not become pregnant, if there is “strong documentary evidence to show existence of such relationship,” they will still be termed “husband” and “wife.” However, this ruling only applies to the state of Tamil Nadu and cannot be enforced elsewhere in India.

In a recent judgment of November 26, 2013, the Supreme Court of India dealt with the issue of live-in relationships, but that was within the purview of the Domestic Violence Act 2005 (DV Act, 2005). The Supreme Court held that a “live-in relationship” would not amount to a “relationship in the nature of marriage” falling within the definition of “domestic relationship” under Section 2(f) of the DV Act, 2005 if the woman in such a relationship knew that her male partner was already married. All live-in relationships are not relationships in the nature of marriage, but they can still come within the ambit of the DV Act, 2005. The judgment was delivered by a Division Bench of Justices KS Radhakrishnan and Pinaki Chandra Ghose in an appeal filed by Indra Sarma (Appellant) against the decision of the Karnataka High Court. This ruling only applies to domestic partners of the opposite sex, not to same-sex partners, in view of the recent decision of the Supreme Court in the Suresh Kumar Koushal case.

As these issues are very recent and path-breaking in Indian law, there has been no recognition thus far of same-sex partnerships or domestic relationships with respect to Indian immigration. The Indian government filed a review petition in the Supreme Court on December 20, 2013, challenging the earlier judgment upholding section 377, stating, “Section 377 IPC, insofar as it criminalizes consensual sexual acts in private, falls [afoul] of the principles of equality and liberty enshrined in our Constitution.” Following the government’s review petition, Naz Foundation also filed a review petition in the Supreme Court challenging its decision. On January 28, 2014, however, the Supreme Court dismissed the petitions seeking review.

Italy

A same-sex spouse of a European Union (EU) national may apply for a five-year permit to stay in Italy, provided the marriage was entered into in a country where same-sex marriages are validly performed. Italian immigration offices are now increasingly approving these applications. Same-sex marriage is not legal in Italy.

Domestic partnerships are not recognized by Italian law and the immigration system does not provide any option for them.

Japan

Japan does not recognize marriages, partnerships, or relationships between two individuals of the same sex for immigration purposes. The same-sex spouse or partner can try to apply for a dependent visa and the case will be referred to the Ministry of Foreign Affairs in Japan, which can grant the visa, but the chances of a visa being approved on that basis are extremely low.

Mexico

On December 21, 2009, the legislative assembly in Mexico City, D.F., legalized same-sex marriage and accorded adoption rights to same-sex parents. It was the first city in Mexico and in Latin America to legalize same-sex marriages. These reforms in the capital’s civil law have spread to other entities in Mexico.

The Migration Act of November 2012 established regulations for domestic partners to obtain Mexican visas on the basis of their bonds with Mexicans or foreign residents in Mexico.

The requirements for domestic partner visas in Mexico are similar to those for different-sex married couples, but with more stringent requirements. While same-sex married couples are treated as domestic partners for Mexican immigration purposes, same-sex unmarried couples will only qualify if they have proof of their partnership in the country of origin.

Netherlands

In the Netherlands, there is no legal difference between a same-sex marriage and a different-sex marriage.

Unmarried partners, regardless of gender, fulfill the criteria for family reunification if they both prove, by official (and legalized) documents, that they are unmarried. In addition, they must prove that they have a long-lasting and stable relationship. This means that the relationship has to be comparable to a marriage. To prove the existence of such a relationship, the partners must complete and sign two forms, the so-called relationship statement and a questionnaire that asks questions like how they met, how long they have been in the relationship, and whether their family members have been informed about their relationship. The legislation does not define a minimum period of time the relationship must have existed.

For marriages and “registered” partnerships (similar to “registered” partnerships in Belgium, discussed above), the criteria for family reunification are very similar. Married couples or registered partners have to prove their marriage or registered partnership with official (and legalized) documents.

The minimum age to apply is twenty-one years, and the person who applies for reunification with his or her partner or spouse must earn at least the minimum wage.

Peru

Peru does not recognize marriages, partnerships, or relationships between two individuals of the same sex for immigration purposes. Only marriages according to Peruvian civil law and related regulations are recognized for purposes of obtaining resident visas through family-based proceedings.

Russia

Russia does not recognize marriages, partnerships, or relationships between two individuals of the same sex for immigration purposes.

South Africa

South African immigration law gives effect to the requirement of its Constitution that a person may not be discriminated against on the basis of his or her sexual orientation. That protection applies whether the person is a foreign national or a South African citizen.

The term “spouse,” for purposes of South African immigration law, describes a person who is in a spousal relationship, be he or she in a marriage, a civil union, or an informal life partnership. Legislation does require, however, that any previous marriage or civil union must have been lawfully terminated. The relationship must be monogamous.

The foreign spouse of a South African citizen is eligible to apply to the Department of Home Affairs for a temporary residence permit to accompany his or her South African spouse in South Africa. These “relative’s permits” are usually issued for about two years at a time. A relative’s permit may be extended (from within the country), upon application, so long as the relationship still exists. Once the spousal relationship is five years old, the foreign spouse may apply for permanent residence on the basis of the relationship.

If the foreign spouse has obtained an offer of employment, he or she may apply to have the permit amended to allow him or her to take up that employment.

When a foreign national is moving to South Africa for some lawful purpose, he or she may bring a spouse or partner regardless of that spouse or partner’s gender. The “accompanying spouse” must (principally) prove that the spousal relationship exists. Unfortunately, the “dispensation” allowing a foreign spouse to take up employment in South Africa applies only to the spouses of South African citizens.

United States

On June 26, 2013, the U.S. Supreme Court struck down Section 3 of the Defense of Marriage Act (DOMA). DOMA defined “marriage” for federal law purposes as between “one man and one woman” and “spouse” as either a husband or wife “of the opposite sex.” As a result of the Supreme Court’s decision, same-sex spouses of U.S. citizens and permanent residents are now treated the same as different-sex spouses at the federal level, and may apply for green cards based on their marriages. Absent fraud or a particular public policy consideration, and as long as the marriage was valid where and when performed, the marriage is valid for U.S. immigration purposes. Moreover, U.S. immigration officials have been directed to recognize a validly performed same-sex marriage regardless of any anti-marriage equality law or constitutional amendment in a couple’s state of residence (or intended residence) in the United States.

As of press time, same-sex marriages are legally performed in eighteen states and the District of Columbia. The states include California, Connecticut, Delaware, Hawaii, Illinois (starting June 2014), Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New Jersey, New Mexico, New York, Rhode Island, Utah (from December 20, 2013, to January 6, 2014, only) Vermont, and Washington.

Outside of the United States, same-sex marriages are validly performed in sixteen countries: the Netherlands, Belgium, Spain, Canada, South Africa, Norway, Sweden, Portugal, Iceland, Argentina, Denmark, Brazil, France, Uruguay, New Zealand, the United Kingdom (effective later this year in England, Wales, and Scotland only), and in Mexico City, D.F.

Overall, U.S. immigration authorities are treating all married couples equally in both the immigrant and nonimmigrant contexts, albeit not without a few growing pains along the way. For example, while U.S. Customs and Border Protection (CBP) honors visas issued by the U.S. Department of State (DOS) to same-sex spouses of principal nonimmigrant workers (e.g., an H-4 visa as the spouse of an H-1B nonimmigrant worker), CBP officers are refusing to issue derivate nonimmigrant status to Canadian citizens applying for admission to the United States (Canadians generally do not require visas) as the same-sex spouse of a principal nonimmigrant, and have confirmed that they will not do so without “additional guidance.”

Importantly, however, civil unions, domestic partnerships, and other forms of relationship recognition short of marriage are not accorded the same familial status as marriage under U.S. immigration law. DOS will issue a B-1/2 visa to a “cohabitating partner” of a principal nonimmigrant visa holder, but these will only allow the “cohabitating partner” to obtain a six- to twelve-month stay upon entry, whereas the principal nonimmigrant may be on temporary assignment to the United States for several years at a time.

Details with respect to immigrant and nonimmigrant visas are summarized below.

Immigrant visas:

Same-sex spouses are recognized for immigration purposes, provided the marriage was recognized by the state where it was performed. If the party resides in a state that does not recognize the marriage, but it was valid where performed, it will be recognized for immigration purposes. This is a dramatic turnaround from the position taken before June 2013 and results from administrative application of the Supreme Court’s decision in Windsor v. United States, 570 U.S. 12 (2013). Practitioners report that qualifying same-sex cases are being adjudicated for immigration benefits professionally.

Same-sex partners or those in a domestic relationship enjoy no immigrant visa benefits. However, they may be able to visit under a B-2 visa for an extended period. If one partner is a U.S. citizen or permanent resident, this would raise the issue of whether the non-U.S. partner is a bona fide nonimmigrant. This might be overcome where the U.S. partner can show that he or she is only in the U.S. temporarily or travels frequently.

Nonimmigrant visas:

Nonimmigrant options for partners who are not legally married:

Same-sex or different-sex partners who are not legally married, whether or not they are in a legally recognized domestic partnership, may qualify for a B-2 visitor’s visa to accompany a nonimmigrant partner, provided they can demonstrate the normally required intent not to immigrate or overstay in the United States. The primary purpose of coming to the United States must be to accompany the significant other who has already demonstrated nonimmigrant intent in obtaining his or her own visa, whether it be as a visitor, student, temporary worker, or other nonimmigrant classification. In making the assessment, U.S. immigration authorities will consider the current circumstances and prospects in the home country upon return, as well as the strength of his or her relationship with the “principal” alien and the principal’s own ties abroad.

The principal applicant may be exempt from having to document nonimmigrant intent under an H or L visa or from having to document a residence abroad under an A, E, G, I, O, or R visa classification. The accompanying B-2 visitor partner, however, must show nonimmigrant intent and a residence abroad, whether it is his or her own address or that of a relative or friend.

Nonimmigrant options for same-sex spouses:

Same-sex spouses or partners may enjoy the full benefits of a K-1 fiancé(e) visa or as a derivative of other visa classifications such as B-2 visitor or H-4 spouse of temporary worker. They face the issue of immigrant intent much the same as a domestic partner. As with immigrant marriages, the marriage must have been recognized in the jurisdiction where performed. Whether it is recognized in the jurisdiction where the party resides is not determinative.

United Kingdom

In the United Kingdom (UK), a law legalizing same-sex marriage in England, Wales, and Scotland was passed in 2013. Northern Ireland does not permit same-sex marriage. In 2004, same-sex civil partnerships were legalized in all of the UK with the passage of the Civil Partnership Act.

For the purposes of entering or remaining in the UK, unmarried and same-sex partners of persons present and settled in the UK who are subject to immigration control (i.e., nationals not from the European Economic Area or Switzerland) enjoy the same benefits as married heterosexual partners. Although the general requirements and process of applying are the same as with heterosexual partners, there are minor differences concerning the documentary evidence that must be produced to demonstrate the legitimacy of the relationship.

To qualify, applicants must:

  • be age 18 or older;
  • have lived together with their partner in a relationship akin to marriage for at least the previous two years;
  • meet or exceed level A1 of the common European Framework of Reference for English language or be exempt;
  • not be in any other marriage or partnership;
  • not be related by blood to the partner;
  • have sufficient accommodation and maintenance without recourse to public funds;
  • intend to live together permanently; and
  • not fail for refusal under the general grounds for refusal to the UK.

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TURKEY: Law on Foreigners and International Protection Takes Effect in One Year

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On April 11, 2013, the Law on Foreigners and International Protection (Law No. 6458) was published in the official gazette of Turkey and is set to go into effect in one year. This new law will make vast changes to residence permit eligibility and procedure, and create a new governmental office. Initial information has been released, but official interpretation and/or guidance may change before implementation.

Among the anticipated changes are application of the 90-out-of-180-day rule to be extended to business visitors. Also, sticker visas obtained at the border are anticipated to only be valid for 15 days. The rule to apply for a residence permit within 30 days of entry is anticipated to be extended to 90 days for some categories. The renewal of residence permits will be accepted for filing at a much earlier period of 60 days before expiration. Also, there is a provision to allow for the filing of residence permits at consular posts. Significantly, new categories of resident permit eligibilities will be created, including for those who will open a business or buy real estate in Turkey.

The law also creates new harsher procedures and penalties for deportation and a ban on re-entry of foreigners who are out of status or not abiding by the terms of their stay.

The law requires the creation of a new Immigration Administration General Directorate under the Ministry of Interior. The law includes new procedures for admitting and processing refugees, victims of human trafficking, and stateless people, among other issues.

TURKEY: New Residence Permit Law Will Overhaul Immigration in Turkey.

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On April 11, 2013, Law No. 6458, Law on Foreigners and International Protection, was published in the official gazette of Turkey and is set to go into effect in one year. This new law will make vast changes to residence permit eligibility and procedure, and will create a new governmental office.

The changes span a wide variety of issues, including the requirements for residing and working in Turkey, protection of victims of human trafficking, changes in business visitor rules, procedures and categories of residence status, grounds for deportation, and processing of refugees. Changes include the extension of the 90-out-of-180-day rule for tourists to business visitors. Also, sticker visas obtained at the border will only be valid for 15 days. The rule to apply for a residence permit within 30 days of entry will be extended to 90 days. The renewal of residence permits will be accepted for filing at a much earlier period of 60 days before expiration. Also, a new provision will allow the initial filing of residence permits at consular posts.

Significantly, new categories of resident permit eligibilities will be created, including for those who will open a business or buy real estate in Turkey. The law also requires the creation of a new Administration General Directorate of Migration under the Ministry of Interior, which is underway.

Residence Permits

Until April 11, 2014, residence permits are being handled by the local and regional Police Departments under the Interior Ministry. With the new law, this process will be moved to the new Directorate of Migration, as well as to consular posts for certain applications. The new Directorate will establish new offices under the governor’s and district governor’s offices around Turkey.

New categories of residence permits include short-term, long-term, family, student, humanitarian, and victims of human trafficking.

According to the new law, a foreigner must seek a residence permit in an appropriate category if he or she intends to remain in Turkey more than 90 days. This is an expansion of the previous 30-day rule. Short-Term Residence Permits will be valid up to one year. The new Long-Term Permit appears to have some similarities to a U.S. green card. This type of permit will require that the person has already resided legally and continuously in Turkey for at least eight years, shown that he or she has not required public assistance for the last three years, provided evidence of financial self-support (including health insurance), and not be a threat to public order or security.

Procedurally, the new law indicates that those applying for new residence permits must do so at a Turkish consular post in the applicant’s home country. For those who already have a current, valid residence permit, extensions must be filed with the new Directorate officials at the local governor’s office.

The new law stipulates that if a person is granted a work permit, he or she no longer must obtain a separate residence permit. This will be a relief to international assignees who have dealt with tremendous delays in residence permit issuance due to massive backlogs of applications at the local police departments in many municipal locations.

Deportation and Ban on Reentry

The law also creates new harsher procedures and penalties for deportation and a ban on the re-entry of foreigners who are out of status or not abiding by the terms of their stay. The ban may be up to five years in some circumstances such as overstaying, and up to 10 years if the person is deemed a “security threat.”

Protection of Refugees and Victims of Human Trafficking

The new law also better protects refugees and victims of human trafficking. It is a significant step for Turkey’s protection of human rights, particularly considering the refugee flow into Turkey from neighboring countries such as Syria, Iraq, and Iran. Under the new law, Turkey will not be able to return foreigners to countries where they will be subject to torture or inhumane treatment.

The new law indicates Turkey’s awareness of the need to overhaul its management of foreigners. As Turkey’s economy has grown, it is now a leading location in the region for expatriates of many international companies, as well as a prime location for new investment. As a result, the number of foreigners needing work permits has grown exponentially. Also, based on its location bordering several countries in turmoil, the processing of refugees has become a growing problem. Further detailed guidance is sorely needed well in advance of the April 11, 2014, implementation deadline.

CHINA: Continues to Tighten its Immigration Enforcement

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As we step further into 2013, China continues to reveal more measures addressing the illegal employment of foreign nationals. According to an interpretation of labor laws issued by the Supreme People’s Court of China, as of February 1, 2013, Chinese courts no longer recognize a “labor relationship” between an employer and a foreign national without a work permit. This is true even if the foreign national is under an employment contract.

A work permit is a legal work authorization document issued to a foreign national by his or her local labor bureau. The Supreme People’s Court’s reasoning is that a foreign national who does not have a valid work permit is not a “qualified laborer” and therefore cannot establish a “labor relationship” with an employer. For foreign nationals who are working in China without a proper work permit, this interpretation means that they can no longer seek protection from the courts regarding their “legal relationship,” which encompasses labor rights such as social insurance, health care, double pay for overtime, and compensation for work injuries under Chinese law. Such foreign nationals may, however, win a labor dispute over unpaid wages for services already rendered under a labor contract. Foreign experts who have obtained valid Foreign Expert Permits are not subject to this restriction.

In addition, the Beijing Labor Bureau recently implemented a new requirement on Alien Employment License applications. In general, an Employment License application is the first of a series of applications required to obtain work and residence authorization for foreign nationals who seek to work and live in China. Issuance of employment licenses and work permits is within the authority of local labor bureaus. Regulations and policies on work and residence authorization differ from locality to locality. Effective February 1, 2013, Beijing began to require that an employee of a Beijing sponsoring company who acts as the company representative must physically appear at the Beijing Labor Bureau to submit the Employment License application. Beijing companies can no longer send only a filing agent or a third party to the Bureau to submit this application. At the bureau, the company representative is required to present a valid government ID, a work ID (such as a business card, door card, or company badge), and a letter from the company addressed to the reviewing Labor Bureau officer confirming the company representative’s name, position, and ability to file the application on behalf of the company. The company representative may be asked to answer any questions the authorities may have regarding the foreign national’s recruitment, such as details about the nominated position or the prospective foreign employee’s relevant work experience. This new requirement is intended to prevent illegal applications and strengthen the administration of employment of foreign nationals in Beijing.

ABIL GLOBAL IMMIGRATION COMPLIANCE WEBINAR RECORDING AVAILABLE

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On June 1, ABIL presented a webinar on Global Immigration Compliance. In the current global business environment, the world is increasingly connected and companies are sending their employees across country boundaries more than ever. There are various issues to take into account when doing business overseas. Multiple countries have tightened their regulations for foreign employees and business travel, and it is crucial to be aware of any implications from the beginning.

This webinar helps to guide professionals involved in global mobility to be assure compliance when sending employees to another country. Some of the questions covered are:

  • What does an employer need to do in each country prior to hiring a worker – both domestic and foreign national?
  • What are the penalties if an employer does not comply, or hires an undocumented worker?
  • Are there any verification procedures or programs to provide incentives for compliance?
  • What are the penalties, if any, for non-compliance?

PRESENTERS: Robert Loughran, U.S. (moderator) – Jacqueline Bart, Canada – Bernard Caris, Belgium – Laura Devine, United Kingdom – Gunther Mävers, Germany

PURCHASE THE WEBINAR: You will receive a file with the PowerPoint presentation, relevant articles and resources as well as a recording of the webinar for $40 USD.

To purchase, click here.

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PERU: Amendments have been made recently to Peruvian immigration rules.

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Changes do not often occur in Peruvian immigration law, but there have been some recent modifications to certain aspects of immigration proceedings and requirements by the Peruvian Immigration Administrative Authority concerning visa processes for foreign nationals.

Legislative Decree  No. 1130 has created a new immigration Peruvian authority based on the former authority known as “DIGEMIN” and now called “MIGRACIONES.” This legislative decree took effect December 7, 2012. The new government office, the National Superintendence of Migration (MIGRACIONES), is a technical and specialized entity within the Ministry of the Interior of Peru that has its own administrative, economic, and functional autonomy.

In addition, on December 23, 2012, Supreme Decree No. 003-2012-IN was published, which included the Text of Administrative Procedures of the Ministry of the Interior (TUPA), comprising procedures and related administrative services. Among them are those pertinent to MIGRACIONES, which is now the lead agency in domestic immigration policy in Peru. Among its different powers, however, there still exists the recently issued DIGEMIN TUPA. MIGRACIONES has not yet issued its own TUPA.

In general, MIGRACIONES has become more demanding and rigorous. Previously, there were only the discretionary judgment and criteria of DIGEMIN in some aspects. Now the legal basis has been incorporated into the recent DIGEMIN TUPA regarding such aspects. DIGEMIN TUPA contains the administrative rules to apply to immigration law in Peru.

Now there are more requirements for work visas and appointed worker visas related to performing labor activities in Peru for those who are either working in the country employed by local companies registered on their payroll as “dependent workers,” or as foreigners who provide services in Peru to some local companies as “consultants or advisors” on a regular basis and who hold a migratory status and visa regulated by law, maintaining their capacity as workers for foreign companies because they are not included on the payroll of Peruvian companies.

The most significant changes include:

I.    Change of status (in-country processing) or obtaining of visa proceeding (with a consular step):

Resident – Worker (WRA)

  • A foreign citizen who requires this type of visa must sign the Initiation “F-0004” form, in the case of “Change of Status” procedure (in-country processing), since he or she is in the country.
  • At present, the F-0004 is obtained online either for in-country or obtaining of visa proceeding.
  • No more than 15 working days should elapse between the date of approval of the employment contract for foreign nationals and the start date of filing the case before MIGRACIONES.
  • Where the parties in an employment contract related to a foreign national have agreed to a probationary period, MIGRACIONES shall first grant a visa with temporary worker status only until the completion of this period. After that, the applicant applies for a “change of visa process” to get his or her WRA visa at MIGRACIONES.
  • The power of attorney letter granted by the foreign citizen must be addressed to the National Superintendence of Migration-MIGRACIONES, not to DIGEMIN.
  • A copy of the Registry of Taxpayers (RUC) of the local company employing the foreign national, which is obtained from SUNAT’s website using the key password “clave sol,” must be “Active” (Activo) and “Existing” (Habido), and the local company must have workers enrolled on its payroll.
  • A certified copy of the validity of the power of attorney (Vigencia de Poder) of the representative of the contracting employer updated and recently issued by the Registry Office must show explicitly that this is a representative of the employer who has signed the employment contract on behalf of the local company, and has the authorization to hire staff.
  • The foreign passport of the applicant must have a minimum validity of one year.

Appointed Worker (WD1)

  • A foreign citizen who requires this type of visa must sign the Initiation “F-0004” form in the case of a change of status (in-country process), because he or she is in the country.
  • At present, the F-0004 is obtained online either for in-country or obtaining of visa proceeding.
  • In addition to the requirements within the scope of the letter of appointment to be granted to the appointed worker by the foreign company that will provide services to the local company, a letter that is addressed to the receiving company must state that both wages, as per diem, or any payment to the appointed worker, shall be paid by the foreign company. The age of the individual must also be indicated in this letter.
  • A Certificate of Specialization in the work that the appointed worker will perform in the local company in Peru, should be issued by the foreign company or foreign study center, duly legalized by the Peruvian consulate abroad and endorsed by the Peruvian Ministry of Foreign relations or with an apostil abroad, as appropriate.
  • A copy of the Registry of Taxpayers (RUC) of the local company employing the foreign national, which is obtained from SUNAT’s website using the key password “clave sol,” must be “Active” (Activo) and “Existing” (Habido), and the local company must have workers enrolled on its payroll.
  • A certified copy of the validity of the power of attorney (Vigencia de Poder) of the representative of the local company receiving the services, who has signed the service agreement and the letter of the beneficiary company (local company), should be recently updated and issued by the corresponding Registry Office.
  • The applicant’s passport should be valid for at least six months.

The requirements above apply to both types of procedures, either “change of immigration status” or “obtainment of visa,” unless specific reference to only one of them is made.

Other requirements, depending on the type of procedure to be followed, remain mandatory.

In case of an extension or renewal of the permit for an appointed worker (WD1) beyond the additional 90 days initially granted, the INTERPOL International Exchange sheet should be attached to the file and submitted to MIGRACIONES for this purpose, provided that the extension or renewal requested is at least three months.

II.    Procedure for Extension of Residence Permit

Resident Worker

Three original recent payslips for the foreign worker must be presented to MIGRACIONES in addition to other documentation, demonstrating continued employment during the last year of stay in the country.

III.    Procedure of Extension of Authorization of Permanency:

Temporary Worker/Appointed Worker

The INTERPOL International Exchange Sheet should be presented if the requested extension is at least three months.

This must be presented to MIGRACIONES in addition to other required documents in the case of extension beyond the additional 90 days initially granting authorization to work for a local company under a dependent labor relationship as a subordinated worker (temporary worker), or as a consultant or advisor (appointed worker).

In addition, three original recent payslips of the foreign worker for a temporary worker visas must be filed.

 

Requirements in immigration proceedings for change of status and obtaining visa for immigrants, investors, among others, have also been amended.

INDIA: Revised Tourist Visa Guidelines

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The Ministry of Home Affairs recently revised the guidelines on tourist visas in a notification dated November 23, 2012, and published on December 4, 2012. The Indian government has lifted the two-month gap between two consecutive visits to India by foreign nationals. However, nationals of Afghanistan, China, Iran, Pakistan, Iraq, Sudan, Bangladesh, foreigners of Pakistani and Bangladeshi origin, and “stateless persons” are exempted from this new rule and the two-month gap rule will continue to apply to them.

The above exempted nationals will still need to apply for a re-entry visa if they wish to visit India within two months from the prior visa. This permit is granted only if the need is urgent, and not for business activities or employment or for pursuing studies/research. “Urgent” within the tourist visa category could mean something like coming back to look after a sick relative. It should be a compelling and emergent reason that requires the tourist to come back to India within two months. It will only be granted to one who has already received a tourist visa, has traveled to India, and now wishes to enter India again within two months as a tourist.

If the visa holder is traveling to neighboring countries of India for tourism on the same itinerary, no permit is needed as long as the trip follows the itinerary exactly. The visa holder must carry a copy of the itinerary to show the Immigration Officer.

The tourist visa restriction was introduced in November 2009 in the aftermath of the Mumbai terror attacks when it was found that Pakistani American David Headley had breached security norms to visit India several times over a period of three to four years. A fall in tourist inflow led the government to rethink its decision and issue the new notification in December 2012.

In the order announcing this change, the Ministry of Home Affairs stated, “the provision relating to the two-month gap between two visits of a foreign national to India on a tourist visa has been reviewed by the government. It has now been decided…to lift the restriction of two-month gap on re-entry of foreign nationals coming to India.”

ANNOUNCEMENT

BELGIUM: Salary Threshold for Fast-Track Highly Skilled Work Permits

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The highly skilled work permit is only available to employees whose annual gross salary exceeds a threshold.  This threshold has been noted in article 67 of the Belgian Employment Contracts Act.  Due to a major reform of this Act, article 67 has been abolished.  In practice, the authorities will for now (and probably for the rest of the year) continue to apply the 2014 threshold amount of €39,422.

MEXICO: Changes in Mexican Immigration Law

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Sixteen months after passage of the new Mexican Immigration Law, regulations were published in the Official Bulletin in Mexico on September 28, 2012. Implementation is expected soon. The new law involves significant changes to the current immigration regime.

Main Points of the New Immigration Law

– Provides three main groups of conditions of stay — Visitor, Temporary Resident, and Permanent Resident — which will replace more than 30 migratory status and characteristics included in the General Population Law. The new groups will focus on the status of nonimmigrant, immigrant, and permanent resident.

– Immigrants will be granted access to education and health services regardless of their immigration status.

– Immigration officials will include the Ministry of the Interior, the National Immigration Institute, the Ministry of Foreign Affairs, and the National System for Integral Family Development.

– Auxiliary authorities on immigration affairs will include the Attorney General’s Office, the Ministry of Health, and the Ministry of Tourism.

– The judges or officials of the Civil Registry must not deny to immigrants, regardless of their immigration status, the authorization of acts of civil status or the issuance of certificates related to birth, recognition of children, marriage, divorce, and death.

– Foreigners must personally submit a visa application to the appropriate offices.

– A visa application can be made through the National Immigration Institute’s offices when the application stems from the right of preservation of the family unit, a job offer, or humanitarian reasons. In these cases, the National Immigration Institute and Mexico’s consular offices abroad can authorize the visa. The consular office may ask the Institute to review its approval if it considers that the applicant may not meet the requirements of this law, regulations, and other applicable legal provisions. The Institute ultimately can resolve the case without liability to the consular office.

– Conditions of stay as a visitor, temporary resident, and permanent resident include:

  • Visitor without permission to engage in lucrative activities. Authorizes a foreigner to travel or stay in national territory for 180 consecutive days, without obtaining permission to perform activities subject to remuneration in Mexico.
  • Visitor with permission to engage in lucrative activities. Authorizes a foreigner who has a job offer with an invitation by any authority or academic, artistic, sporting, or cultural institution that provides remuneration in the country, and a foreigner who comes to Mexico to engage in a remunerated activity for a seasonal period under an interagency agreement signed with a foreign entities, to stay in national territory for a continuous period up to 180 days.
  • Regional visitor. Authorizes a foreign national or resident of a neighboring country to enter border areas with the right to enter and leave Mexico as many times as he or she wishes as long as the visit does not exceed three days, and without permission to receive remuneration in the country.
  • Visitor border worker. Authorizes a foreigner national of a country with which the United Mexican States share territorial boundaries to stay up to one year in such a state as determined by the Ministry. The visitor border worker may engage in activities within Mexico related to the job offer and may enter and leave Mexico as many times as he or she wishes.
  • Visitor for humanitarian reasons. Foreign nationals in any of the following circumstances may receive authorization if he or she:
  • a) is the victim or witness of a crime committed on national territory;
  • b) is an unaccompanied immigrant child or adolescent under Article 74 of the law;
  • c) has made a request for asylum, refugee status, or complementary protection of the Mexican State until his or her migratory status is resolved; or
  • d) needs to enter Mexico for humanitarian or public interest reasons, in which case he or she will receive permission to work in exchange for payment.
  • Visitor for adoption purposes. Authorizes a foreign national linked to a process of adoption in the United Mexican States to stay in the country until a court decision is dictated. If it is a positive order, the foreigner may stay in Mexico to register the new birth act of the adopted child or adolescent in the civil registry and to remain until the passport is issued, as well as to follow procedures to guarantee the departure of the child or adolescent from the country.
  • Temporary resident. Authorizes a foreign national to remain in Mexico for no longer than four years with the possibility of obtaining a lucrative work permit in the country, subject to a job offer, with the right to enter and leave the country as many times as he or she desires and also the right to preserve the family unit.
  • Temporary resident student. Authorizes a foreign national to remain in Mexico for the duration of courses, studies, research, or training projects that will take place in educational institutions belonging to the national educational system; to obtain the corresponding certificate, record, certificate, diploma, or degree; with the right to enter and leave the country as often as desired; and with permission to engage in lucrative activities in the case of persons engaged in college-level, graduate, and research work.
  • Permanent resident. Authorizes a foreign national to remain in Mexico indefinitely, with permission to work. Permanent residents are entitled to the preservation of the family unit, so they can enter with, or subsequently request the entry of, spouses, parents, brothers and sisters, and partners.

– Visitors, except those who entered for humanitarian reasons or have links with Mexicans or foreigners with regular residence in Mexico, cannot change their condition of stay and must leave the country once they conclude their authorized term.

– Mexicans have the right to the preservation of the family unit, so they may enter with, or eventually request the entry of, foreign spouses, parents, brothers and sisters, and partners.

– The Ministry may establish a point system for foreigners to acquire permanent residence without complying with the four-year residence requirement through general administrative rules to be published in the Official Journal of the Federation.

– With the exception of those applying for asylum or the recognition of refugee status determinations or stateless persons, foreigners must process their resident credentials within 30 calendar days after entering the national territory.

– Foreign nationals, regardless of their condition of stay and without permission from the Institute, may acquire personally or by proxy fixed or variable assets and may make bank deposits. They also may acquire urban real estate and real rights over property, with the restrictions set out in Article 27 of the Constitution and other applicable provisions.

– No foreign national may hold two conditions of stay simultaneously.

– The Foreigners National Registry houses information on all foreigners who acquire temporary resident or permanent resident status.

– Foreigners must inform the National Immigration Institute of any change in marital status, nationality, address, or workplace within 90 days after such change occurs.

– Foreigners must accredit their regular immigration status in the country in legal acts which require the intervention of public notaries, those who substitute them or their equivalents, with regard to real estate issues.

– The Institute may conduct verification visits to confirm the accuracy of data provided in immigration procedures.

– The immigration authority must issue a resolution on immigration procedures within 20 working days from the date the applicant meets all formal requirements provided by the law, regulations, and other applicable administrative provisions. If a decision is not made within 20 days, it will be deemed negative.

– Visa applications filed at consular offices must be resolved within 10 working days.

– If the applicant does not meet the requirements, the immigration authorities will indicate them in accordance with the Federal Administrative Procedure Law and will provide a period of 10 working days after being notified to address any missing requirements.

– Foreigners may apply for regularization of their immigration status in cases established by law.

– The Institute has 30 calendar days to decide an application for regularization of immigration status.

AUSTRALIA: Further Changes to Permanent Entry Employer-Nominated Program

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The Australian government has announced a raft of changes to visa programs effective July 1, 2012. Changes to the employer nominated permanent residence visa program were outlined in the last ABIL Global Immigration Update. Changes to the General Skilled Independent visas and Business Skills visas are outlined below.

SkillSelect

As of July 1, 2012, the introduction of SkillSelect represents a significant change in how Australia manages its skilled migration program. According to the Department of Immigration and Citizenship (DIAC), the new model will allow Australia to “select the best and brightest skilled migrants from a pool of prospective migrants registered on the system.”

SkillSelect will enable skilled workers and business people to submit an Expression of Interest (EOI) to migrate to Australia by recording their details in an online database. An EOI will serve as a quasi-resume for intending applicants with the information accessible by Australian employers as well as state and territory governments, which may then nominate the individual for employment or for a skilled visa. The Australian government may also invite the person to lodge (file) a Skilled Independent visa application.

The objective of the new program is to ensure that Australia’s skilled migration program is based on the country’s economic needs. Through SkillSelect, the Australian government will be able to manage who is able to apply for skilled migration, when they can apply, and in what numbers. This is expected to streamline the program and lead to more efficient processing of applications.

It is also designed to help address regional skill shortages by allowing intending migrants to indicate in their EOI that they are willing to live and work in certain regions of Australia.

Expression of Interest

An EOI includes basic personal information, details of the person’s nominated occupation and relevant work experience, educational qualifications, level of English language ability, and the outcome of a skills assessment (by a gazetted assessing authority) in the person’s nominated occupation. For business skills visa applicants, an EOI requires details of the person’s business and/or investment experience.

An EOI will remain in DIAC’s database for two years. During that period, it will be accessible by employers looking to fill vacancies, state and territory governments looking to attract skills, and Australian businesses.

Changes to Business Skills Visas

DIAC has also announced changes to Business Skills visas, replacing the former program with a new “Business Innovation and Investment” scheme. The new visa structure is designed to attract significant migrant investment, entrepreneurial talent, and demonstrated innovative business history and skills to the Australian market.

As part of these changes, beginning on July 1, 2012, the current 13 Business Skills visa subclasses are consolidated into the following three:

  • Business Talent (permanent) subclass 132
  • Business Innovation and Investment (provisional) subclass 188
  • Business Innovation and Investment (permanent) subclass 888

The reforms include the following key changes:

  • introducing an innovation points test for provisional visa applicants
  • integrating the new Business Innovation and Investment visas with the skilled migrant selection model, SkillSelect (discussed above)
  • facilitating entry of entrepreneurs that have sourced at least A$1milllion in venture capital funding in Australia from a member of the Australian Venture Capital Association Limited
  • increasing asset thresholds to better align with the Australian business community

The suite of business visa reforms are intended to better align Australia’s immigration policy with countries such as the United Kingdom, Canada, Singapore, and New Zealand.