Immigration Alerts

Pro-Link GLOBAL Immigration Dispatch | May 8-15, 2017

May 15, 2017

Discover key changes to immigration regulations in Angola, Australia, Canada, India, Panama, and Slovakia.

Australia Skilling Australian Levy

Featured Update

AUSTRALIA | New “Skilling Australians” Foreign Worker Levy Coming in March 2018
As if all the recent immigration changes in Australia were not enough keep global mobility managers scratching their heads, the Turnbull administration handed down its national budget last Tuesday for fiscal year 2017-18 which includes another major complication for which sponsoring companies in Australia must prepare. Beginning in March 2018, companies employing foreign workers under the current Subclass 457 Visa Program – which, at the same point, will become the Temporary Skill Shortage (TSS) Visa program – will be required to pay a one-time payment of AUD $5,000 and an ongoing annual payment of $1,800 per worker into a Skilling Australians Fund. A discount will be afforded to small and medium-sized companies (those under $10 million annual gross revenue) to $3,000 for the one-off payment and $1,200 annually. The intent of this “Skilling Australians Fund Levy” is raise funds for a $1.5 billion program to train Australians in new job skills.

The theory behind the move is that companies that benefit from Australia’s immigration system by hiring foreign workers who hold skills the company is unable to find in the local Australian workforce should bear some of the cost of developing those skills locally rather than continually seeking talent outside the country. A similar Immigration Skills Levy was introduced this April in the United Kingdom based on the same logic. See our Global Brief of March 21 and Immigration Dispatch of March 13. However, in Australia, there is sometimes a misconception that companies do not currently contribute to the advancement of skills for local workers. Under the current 457 visa program, sponsoring companies are already required to meet “training benchmarks” by either paying into an industry training fund (to the tune of two percent of payroll), or spending at least one percent of their payroll on in-house training to benefit their local Australian employees.

Reportedly, the new Skilling Australians Fund Levy will replace those current training benchmarks. With this new levy, many companies are likely to scale-back or eliminate their internal training programs which previously satisfied their obligations under the training benchmark.

While Pro-Link GLOBAL always applauds efforts to increase the skills of local workers, and agrees that companies should contribute their fair share toward those efforts, we are concerned that these additional higher business costs may motivate both local and multinational companies to reexamine the costs associated with bringing the required foreign talent to Australia. Instead, these companies may consider outsourcing jobs and expanding or establishing operations in less expensive international locations. That being said, we caution companies that this new levy is still early in the planning process, and implementation is expected no earlier than March 2018. Any strategic business decisions based on its implementation are certainly premature; but rest assured Pro-Link GLOBAL will continue to monitor this issue and remain in close contact with immigration authorities as more details are announced.

For extensive coverage of the recent changes to Australia’s 457 Visa and other employment-based visa streams – including the significant elimination of many occupation categories, the coming of the new TSS Visa in March 2018, the changes to the residence and citizenship rules, and how best to respond and prepare your company – read our comprehensive Australia Global Brief of April 19 and Immigration Dispatch of April 24, and view the video of our recent webinar “Prepare Your Program: Australia’s 457 Changes Examinedhere.

Immigration Changes from Around the World

ANGOLA | Companies May Pay Foreign Employees in Foreign Currency and Offer Agreed Benefit Packages
In March, Pro-Link GLOBAL reported on Angolan Presidential Decree (No. 43/17) which required foreign workers in the country to be paid only in kwanzas (the local currency), capped benefit packages at 50 percent of base salary, and placed a maximum length on foreign employment contracts of 36 months. See our Immigration Dispatch of March 20 for more details. At that time, we believed the policy to be misguided and likely detrimental to business activity in Angola by making it more difficult to recruit the needed skilled foreign labor. Apparently, Angolan President Jose Eduardo dos Santos now agrees and, on April 24, the President signed a new decree (No. 78/17) repealing the earlier decree.

The net result of the two decrees is that we are now back to the prior rule that companies and their foreign employees are free to contract for whatever salary, in whatever currency, with whatever benefits package, for however long, they agree. While employment-based immigration in Angola will continue to be a somewhat challenging and opaque affair, this is at least a positive “about face” after previously heading in the wrong direction.

CANADA | “Dependent Child” Age Increased, Relief for Sponsored Spouses, Alberta Limits Occupations
Last week, immigration authorities announced several changes which impact foreign nationals working in Canada. The changes included a suspension of work permits for certain occupations in Alberta and positive improvements to rules for sponsoring adult children and spouses. Improvements to permanent residence rules are always of special interest to foreign nationals working in Canada. Current statistics indicate that one-in-five temporary work permit holders will eventually become Canadian permanent residents, a significant increase from less than one-in-ten just twenty years ago.

Dependent Child Age Increased to “Under 22” – Effective October 24, IRCC is returning to the “under 22” rule for all regulations impacting sponsorship of dependent adult children. This reverses the August 2014 decision of IRCC to limit the definition of “dependent child” to include adult children only up to age 19. The return to the “under 22” rule effectively changes all rules regarding sponsorship of children for dependent visas and permanent residency. After October 24, foreign nationals will once again be able to sponsor all children up until their 22th birthday.

Two-Year Cohabitation Rule for Sponsored Spouses Eliminated – In October 2012, IRCC introduced a rule to its permanent residence scheme requiring foreign spouses and their sponsoring Canadian citizen or permanent resident partners to reside together in Canada for at least two years to qualify for permanent residence. The intent of the rule was to deter “marriage fraud,” where individuals fabricate a relationship to qualify for permanent residence. While the rule in theory was well-intended, in practice, it sometimes had the effect of perpetuating domestic abuse where an injured spouse delayed leaving an abusing partner to avoid losing his or her Canadian residency. While an exception was made for injured spouses, many were unaware of it.

With immediate effect, the IRCC has acknowledged that the risk of harm of the rule outweighs any utility to the permanent residence process and has now repealed the rule. Thus, it is no longer a requirement that a sponsored spouse reside with their sponsoring partner for two years before qualifying for permanent residence. However, the IRCC was still quick to point out that the elimination of this requirement does not condone marriage fraud, and it will continue to thoroughly investigate cases where the qualifying relationship appears questionable on the facts. The full text of the IRCC announcement is available here.

Alberta Suspends Labor Market Impact Assessments (LMIAs) for 27 Occupations – The provincial government of Alberta and Employment and Social Development Canada (ESDC) have agreed to a 24-month suspension on the issuance of LMIA work permits for 27 occupations under the Temporary Foreign Worker Program (TFWP) in the province. The 27 occupations – primarily in the engineering, construction, and oil and gas categories – were deemed to be in sufficient supply in the local labor market and will not be eligible for LMIA work permits for the next two years. For a complete list of affected occupations, see the Immigration, Citizenship, and Refugees Canada (IRCC) website here.

Impacted companies are encouraged to reach out to the Alberta Employer Liaison Service here for assistance with filling open positions in these occupations. Note that this suspension has no impact on LMIA positions in the other provinces and likewise has no impact on LMIA-exempt work permit categories, which make up the majority of positions filled by foreign nationals in Canada.

INDIA | Government Reverses Stance – Foreign Nationals Do Not Need Aadhaar Cards
In a surprise move late last week, the Indian Ministry of Finance released Notification No. 37/2017 (dated 11 May 2017), reversing the impact of Section 139AA of the Finance Act of 2017 which purported to require all persons – including foreign nationals – to obtain the new Aadhaar Card in order to file Indian income tax returns. Effective July 1, the Notice now exempts all individuals who are “not a citizen of India” from the requirement. Foreign nationals may return to the previous practice of filing their necessary income tax returns using their current Permanent Account Number (PAN).

This is welcomed news for foreign nationals with upcoming tax return filings. The new national biometric Aadhaar Card has become controversial in India for various reasons, and many expats objected to being required to register and include their biometric and personal information in the program’s wide-reaching central database. For more details on the Aadhaar Card and the controversy surrounding it, see our Immigration Dispatch of April 24.

While foreign nationals residing in India long-term may still choose to obtain Aadhaar Cards for convenience of other purposes – such as identification, public transactions, accessing government services, and opening Indian bank accounts – the card is not mandatory for tax and immigration purposes. Pro-Link GLOBAL is aware that this has been an issue of concern for many of its clients and encourages them to reach out to their Immigration Specialists with any questions.

PANAMA | Stricter Scrutiny of Social Security Documents Submitted in Work and Residence Applications
One of the most important documents when applying for work and residence permits in Panama is the Aviso de Entrada, which is a certificate issued by the Panamanian Social Security Office confirming when the applicant foreign employee will be placed on the company’s payroll and enrolled in Panamanian Social Security. Recently Pro-Link GLOBAL has been seeing increased scrutiny of work and residence permit applications regarding this requirement. Therefore, companies are reminded to:

  • Include the Aviso de Entrada with the Certificado de Externo, the external audit certificate that specifies the number of local and foreign employees; and
  • Provide receipts showing payment of social security officially stamped and sealed by the authorities receiving the payment.

Not having these key documents in proper form before applying at the Ministry of Labor can cause significant delay, and HR managers are encouraged to contact their Pro-Link GLOBAL Immigration Specialist well ahead of any planned foreign employee assignments to ensure that the proper documents are in hand.

SLOVAKIA | EU Intra-Company Transfer Directive Adopted, Streamlined Processing for Key Sectors, Longer Stays for Seasonal Workers
Effective May 1, the National Council of the Slovak Republic enacted amendments to the Act on Residence of Foreigners (No. 404/2011) and the Act on Employment Services (No. 5/2004). The amendments bring the Republic into the growing list of European Union nations to have adopted the EU Intra-Company Transfer (ICT) Directive (2014/66/EU), as well as make significant improvements to the processing times for certain key business sectors and rules for work/residence permits for seasonal workers in Slovakia. The changes to the ICT rules and streamlined permit application processing will be of particular benefit to those multinational companies involved in the Republic’s large automobile, machinery, and electronics manufacturing sectors.  

Intra-Company Transfer (ICT) Permit Adopted – While Slovakian immigration procedure already allowed for work/residence permits for the purposes of intra-company transfers (ICTs), it now offers a specific ICT Permit, adopting the uniform EU-wide scheme. The new ICT Permit is available to non-EU/European Economic Area (EEA)/Swiss nationals employed as managers, specialists, or trainees in companies outside the EU who are transferred for more than 90 days to a related company in the Slovak Republic. The ICT Permit offers validity periods of three-years for managers and specialists and one-year for trainees. However, the most significant benefit of this new ICT Permit over the already-existing process is the intra-EU “labor mobility” aspect. Once issued, holders of this new ICT Permit are then authorized to work for periods of up to 90-days in other adopting EU nations without the need for additional work authorization. Likewise, holders of ICT Permits issued by other participating EU nations can now work in Slovakia for up to 90-days without additional work permits.

To date, fourteen EU member nations have either adopted the EU ICT Directive, or are currently in the process of doing so. To read about the specific nations who have adopted the Directive, visit the Immigration Alerts section of our website here or reach out to your Pro-Link GLOBAL Immigration Specialist to request country-specific information and guidance. For a good general summary of how the EU ICT Permit scheme works, download our white paper “EU ICT Permit: Potential Game Changer for EU Mobilityhere.

Faster Processing of Applications for Employees of Strategic Services Centres (SSC) – For non-EU/EEA/Swiss nationals working in one of Slovakia’s Strategic Services Centres (SSCs), a streamlined work/residence permit process will be introduced that significantly decreases the processing time from the typical 90-days to a guaranteed 30-days. This will be a benefit extended to companies on the list of SSCs maintained by the Slovakian Ministry of the Economy (MOE). SSCs are companies involved in key growth business activities which the MOE has made eligible for government support, including investment aid. Companies commonly deemed to be SSCs include those involved in computer and technology development, expert services, repair and maintenance of technology, customer support centers, and other international business services. Companies interested in learning more about the benefits and requirements of becoming an SSC are invited to contact the Slovakian MOE.

Seasonal Workers May Now Extend Stay for an Additional 90-Days – Non-EU/EEA/Swiss seasonal workers may now combine their traditional 90-day seasonal work/residence permit with an additional 90-day temporary residence permit issued in-country by the local labor office in the region where they are working to allow them to remain in Slovakia up to a total of 180 days.

457 visa changes

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 Canada Offices “Jones Immigration Law” and “Rekai LLP”, our PLG | KGNM Panama Office “Icaza Gonzalez Ruiz & Aleman”, and our PLG | KGNM Slovakia Offices “InterRelocation” and “Move One Inc.” to provide you this update.

Information contained in this Global Immigration Dispatch is prepared using information obtained from various media outlets, government publications and our KGNM immigration professionals. Written permission from the copyright owner and any other rights holders must be obtained for any reuse of any content posted or published by Pro-Link GLOBAL that extends beyond fair use or other statutory exemptions. Furthermore, responsibility for the determination of the copyright status and securing permission rests with those persons wishing to reuse the materials. Interested parties are welcome to contact the Knowledge Management Department ([email protected]) with any additional requests for information or to request reproduction of this material.