Discover key changes to immigration regulations in China, India, Italy, and Lithuania.
ITALY | Posted Worker Definition Often Unclear… Ministry of Labour Issues Helpful Guidance
Under the European Union’s 1996 Posted Worker Directive (96/71/EC) and 2014 Posted Worker Enforcement Directive (2014/67/EU) (collectively the Directives), EU member states are to have adopted into their national laws various provisions designed to protect foreign workers posted for work assignments by their foreign employers at locations in their country. To date, EU member nations remain at differing states of implementation of the Directives, with some members having adopted both Directives and some having adopting only the 1996 Directive.
While the Directives specify the minimum provisions to be implemented, members are free to implement provisions more protective than those called-for in the Directives, and the uniqueness of each members’ national laws and institutions make for significant local variations in the resulting requirements. For companies with multiple locations within the EU, this often results in confusion for HR managers as to how to comply with the various regulations in each country, particularly when notifying the appropriate government authority of the posting.
Much of the confusion arises from the definition of a posted worker itself. The EU Directives define a posted worker as “a worker who, for a limited period, carries out his work in the territory of a Member State other than the State in which he normally works” – implying that posted worker provisions apply only to foreign workers employed by companies located in other EU nations. However, some local statutes define posted worker more broadly to include workers employed by companies located outside the EU as well as within, and include local workers posted from their country to another EU nation. This more expansive definition covers most assignments that are traditionally referred to as Intra-Company Transfer (ICT) assignments.
Italy’s Legislative Decree No. 136/2016, implementing the EU Posted Worker Directives, came into full force on December 26, 2016. For more details, see our Immigration Dispatches of November 21 and September 26 of last year. Since December 26, companies posting foreign workers to Italy have been required to submit an electronic notice of the posting on the website of the Italian Ministry of Labour and Social Policies (MOL). Early guidance from the MOL already anticipated and clarified much of the confusion regarding the definition of a posted worker in Italy, and the instances when a company must submit notice of the posting. MOL instructions make it clear that the notice requirement of Italy’s posted worker rules is limited to instances where the foreign worker is posted by a company in another EU member nation.
In an additional clarification, the MOL has now clarified that Italy’s posted worker requirements do not apply to the following:
- Intra-Company Transfer (ICT) assignments of managers, specialists, and trainees under Legislative Decree No. 253/2016 (Italy’s adoption of the EU Intra-Company Transfer Directive, 2014/66/EU);
- Researchers; and
- Self-Employed Workers.
With this guidance, the MOL has effectively removed many assignments from the requirements of Italy’s posted worker rules. However, all other foreign workers posted from companies located in other EU nations for temporary assignments in Italy are still included in the definition, and thus subject to the regulations’ notice, document retention, and employment conditions requirements.
Bear in mind that these clarifications by the MOL apply only to assignments in Italy and have no bearing on the assignments of posted workers in other EU countries. As discussed above, slight variations in definitions and requirements exist between the EU members having adopted the Posted Worker Directives. If companies are in doubt as to whether a particular assignment falls within the posted worker requirements of either the sending or hosting company’s nation, please reach out to your Pro-Link GLOBAL Immigration Specialist well ahead of the assignment start date. Pro-Link GLOBAL can offer country-specific guidance and assist with the filing of the posted worker notice where required.
Immigration Changes from Around the World
CHINA | New Work Permit System Debuted Nationwide April 1
Upon publication of this writing, the April 1 target for full implementation of China’s new nation-wide electronic work permits system will have passed. While the new system has been in use through a pilot program in seven provinces since November 2016, all provinces should now be using the new system for processing the new single Chinese State Administration of Foreign Expert Affairs (SAFEA) work authorization – the Foreigner’s Work Permit. This permit is designed to replace the former SAFEA Foreign Expert Permit and the Ministry of Human Resources’ Foreign Work Permits and Employment Licenses. Under the new system, authority for processing applications and issuing foreign work authorizations in China will lie with the provincial SAFEA Foreign Experts Bureaus (FEBs). For a comprehensive guide to the new Chinese work permits system, including the new points-based criteria, download our free e-book here.
Invitation Letters No Longer Required – Converting over to the new system, all Chinese overseas consular posts are reportedly now accepting the new Notification Letter of a Foreigner’s Work Permit issued by the FEB in support of applications for entry Z visas. While many overseas posts had already converted to the new document requirements, many consulates were still requiring an additional invitation letter as required by the old process. Going forward, all Chinese embassies and consulates should accept the new notification letter without the need for an additional invitation letter. To this point, implementation of the new system has not resulted in the hoped-for reduction of overall processing times, but rather a slightly longer process with the addition of some new document authentication requirements. However, the elimination of the invitation letter requirement should trim overall processing times by around five business days.
Changes Specific to Shanghai – As is often the case, Shanghai has been “ahead of the curve” in the implementation of the new nation-wide work permits systems. For more details, See our recent Global Brief of March 16 and Immigration Dispatch of March 29 for more details on the recent changes specific to Shanghai. Reportedly, the Shanghai FEB fully employed the new system five days early and was processing all applications using the electronic system on March 27. In related news, the Shanghai Labor Bureau also announced that old form Employment Licenses already issued under the old system can be converted to the new form Foreigner’s Work Permit through the FEB after the foreign national arrives in Shanghai.
As there have been numerous significant corporate immigration process changes over the past months – with likely more to come – both in Shanghai and other provinces, we invite all companies and their foreign employees operating in China to reach out to your Pro-Link GLOBAL Chinese Immigration Specialists with any questions.
INDIA | New Biometrics Requirement at FRROs
India continues to improve and systematize its immigration system as the country moves to embrace the globalizing world of trade and commerce. While immigration remains primarily under the governance of territorial and local authorities in India’s mostly decentralized form of federal government, more processes are becoming standardized throughout the country. Pro-Link GLOBAL has reported recently on numerous refinements designed to modernize India’s corporate immigration processes, including expanded business and intern visas (See our Immigration Dispatches of December 12 and March 29, 2016) and more standardized residence registration and reporting requirements (See our Immigration Dispatches of March 20 and March 21 and April 8, 2016).
This week, we report on an ongoing nation-wide movement to standardize residence registration requirements at the local Foreigner’s Regional Registration Offices (FRROs). All FRROs will soon be requiring all foreign nationals submitting first-time residence registrations and applications for visa extensions to complete biometric information collection appointments, including capture of photographs, fingerprints, and eye scans. This new requirement is part of the Ministry of Home Affair’s efforts to better record and track foreign nationals and improve security within the country.
The new biometrics requirements are reported already in effect in the FRROs in Mumbai, Pune, and Bangalore. Implementation is coming soon to the other FRROs across India, but no beginning dates have been announced for those. As the implementation is ongoing, note that requirements may differ among the FRROs, with some offices initially taking only photographs and fingerprints until eye scan equipment is installed, and some foreign nationals may be exempt where biometric information was already collected during the initial visa application process. Pro-Link GLOBAL will continue to monitor the ongoing roll-out of this new requirement from our India offices and report on updates to the policy as available. In the meantime, we recommend that our clients reach out to your Pro-Link GLOBAL Immigration Specialist prior to traveling to your local FRRO for registrations or extension application submissions, so that you may be prepared for any new requirements.
LITHUANIA | New Immigration Law Brings Numerous Positive Changes
Effective January 1, a new Act of Parliament dated September 14, 2016 is now fully implemented in Lithuania, making significant changes to the Law on the Legal Status of Foreigners. The amendments present several positive improvements for companies and foreign nationals operating in this Baltic republic.
EU Blue Cards – With the recent amendments, many foreign nationals who previously did not qualify for the European Union (EU) Blue Card will now be eligible under revised criteria. In addition to those applicants with formal higher education degrees, applicants without degrees but with at least five years of relevant work experience will now be eligible. The amendments also reduce the minimum annual salary level from twice the average local salary to 1.5 times the local average. Both changes bring the Lithuanian rules more in line with the general EU-wide standards for Blue Cards. In the case of certain foreign nationals with occupations in high demand, the labor market test through the Labour Exchange will be waived. This exemption is expected to speed processing times by at least two months.
Company Directors and Shareholders – Previously, in order to sponsor a temporary residence permit for a foreign company director or shareholder, sponsoring companies had to demonstrate employment of at least three full-time local employees. That requirement has now been changed to two local employees earning salaries twice the average local wage. In addition, directors and shareholders whose companies meet certain minimum requirements regarding foreign investment and local employees will also now be eligible for a longer residence permit validity. The new amendments also eliminate the current requirement for the director’s company to have been in operation for at least six months before applying for a residence permit where the director holds more than one-third of the ownership and meets a minimum equity value.
Dependent Family Members – In a major improvement for foreign national families, the families of Blue Card holders, start-up founders, posted executives and professionals, and shareholders and directors are now eligible for dependent residence permits. Previously, rules prevented most families from accompanying the working foreign national to Lithuania, requiring large investments in the employing company or other strict requirements to sponsor family members.
Start-up Founders – Not to be outdone by neighboring Estonia, who introduced a new start-up visa this year, the amendments also call for a new “start-up founder” visa. This new one-year visa (eligible for an additional one-year extension) waives the standard capitalization and local employee requirements where the applicant’s business activities are related to the development of new technologies or other innovations important to Lithuania, or where the applicant shows qualifications, financing, and a business plan sufficient for the successful start-up of a new business. For more details on Estonia’s similar start-up visa, see our Immigration Dispatch of March 29.
Reminders: Recent and Upcoming Immigration Implementations
The following are reminders of recent or upcoming implementation dates that you should know:
- April 6, United Kingdom: The new Immigration Skills Charge and other significant changes to the Tier 2 Visa stream are slated to take effect. For more details, see our Immigration Dispatch of March 13, and watch the recording of recent our in-depth webinar here.
Caveat Lector | Warning to Reader
This is provided as informational only and does not substitute for actual legal advice based on the specific circumstances of a matter. Readers are reminded that Immigration laws are fluid and can change at a moment's notice without any warning. Please reach out to your local Pro-Link GLOBAL specialist should you require any additional clarification. This alert was prepared by Pro-Link GLOBAL's Counsel and Knowledge Management teams. We worked with our PLG | KGNM India Offices “Lexagent Services Pvt. Ltd.” and “Formula Corporate Solutions India Pvt Ltd” and our PLG | KGNM Lithuania Office “Partners in Relocation BV” to provide you this update.
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