Global Immigration Compliance Navigating the Global Immigration Landscape May 7, 2015

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With You Today

TEODORA D. PURCELL Attorney

Fragomen Del Rey Bernsen & Loewy, LLP 11238 El Camino Real, Suite 100

San Diego, CA 92130 (858) 793 1600

tpurcell@fragomen.com

NICOLE M. RICHARD Attorney

Fragomen Del Rey Bernsen & Loewy, LLP 11238 El Camino Real, Suite 100

San Diego, CA 92130 (858) 793 1600

nrichard@fragomen.com

What is Global Business Immigration? • Cross-border movement of persons for purposes of business or employment

in foreign countries

• Increases / decreases based on political and economic conditions in sending (home) and destination (host) countries

• Facilitated by bilateral / regional treaties and agreements (APEC, EU, GCC, MERCOSUR, NAFTA, Schengen)

• A catalyst and effect of Globalization

• On-going global economic challenges continue to impact immigration policy

• The common driver across the globe is compliance, particularly for work authorizations and business travelers

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Global Business Immigration General Trends

• Decrease in long-term, high-cost traditional expatriate assignments and increase in

short-term cross-border travel and assignments

• Outsourcing to emerging countries • Increased movement of employees from mature markets (e.g. Western Europe,

Japan, US, Canada) to emerging markets (e.g. Panama, Mozambique)

• Increase in countries enacting laws that restrict access to labor markets by foreign workers (e.g. Singapore, Canada)

• Stricter interpretation of existing legislation (e.g. China)

• Increased security and enforcement measures, especially in Western Europe

• New willingness to turn away applicants at border crossing

• Focus on compliance • Increased penalties for non–compliance and increased enforcement

(e.g. UK, Germany - audits and worksite visits/inspections)

• Focus is on the employer’s responsibility not just the employee

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Recent Major Legislative Changes

• Continued impact of the global economic downturn, coupled with endemic unemployment, has led to a continuation of government protectionism and stronger enforcement measures

• Canada • Increased border enforcement - increased border security for travellers from the US into

Canada • New labor market protections - introduction of mandatory wage floor • New legislation focuses on ensuring Canadian workers are given preference when hiring

• Singapore

• First time introduction of new labor market testing requirements • Advertising requirement in Government Job Bank • Increased compliance measures

• South Africa

• In-country change of immigration category from visitor status prohibited • Bridging provision abolished where other change of status application submitted in-country • New Skills Category • Fine replaced by declaration that foreign national is an “undesirable person” with temporary

ban on returning to South Africa • Poor implementation of new legislation has led to unclear results

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• Greater scope of Government scrutiny and increased penalties for non

compliance means less flexibility for companies and higher stakes for non- compliance

• United Kingdom • Publication of names and fines for non-compliant sponsors on government websites

• Israel • Increase worksite inspections, border checks and filing fees to protect domestic labor

market

• Sub-Saharan Africa • Increase in arrests for non-compliance and surprise inspections

• Ukraine • Ukrainian authorities have been aggressively conducting worksite inspections to

ensure compliance with labor and immigration laws

• Brazil • Enforcement has gradually increased, and any foreign nationals caught working under

an inappropriate visa category will be subject to fines and deportation.

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Compliance – Examples of Non Compliance

Business vs. Work Authorization Visa

• Major global economic trend • the number of short-term assignments and business trips continues to accelerate

• A “business visit” is defined as a short-term trip taken to conduct activities for which work authorization is not required in the destination country

• A “business visa” authorizes the foreign national to enter the destination country as a “business visitor”

• In general, business visas are subject to simpler application procedures and fewer advance eligibility requirements than work permits

• If a foreign national does not qualify for a business visa, then work authorization is required

• As a general rule, the work authorization process involves multiple steps through the immigration, labor, and/or foreign affairs authorities in the destination country

• Typically, work authorization requires the issuance of a work permit and entry visa in advance of travel. Upon entry, additional local registrations and/or residence permits may be required.

• Immigration systems and procedures vary significantly by jurisdiction and frequently change

• Government processing times vary widely, ranging from less than one day to six months or more

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Emerging Markets

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• Emerging markets continue to be a main focus for business expansion, but unstable political environments and inconsistent adjudication remains challenging for businesses

• Process not always consistent and transparent • Legislation changes regularly and unofficial requirements may occur unannounced • Process itself not transparent (e.g. Chad)

• Inefficient processes • Strict laws around quotas and ratios of local employees vs. expatriates in order to

enforce the hiring of local staff (e.g. Saudi Arabia, Turkey, Angola) • Change in personnel affect immigration regulations and predictability of

adjudication (Morocco, Philippines) • Poor implementation of new immigration regulations (South Africa, Indonesia) • When entering emerging markets, know your partners • Stricter interpretation of permissible business activities with Governments

cracking down on perception of corruption in emerging markets

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Foreign Corrupt Practices Act (FCPA)

• The FCPA was designed to deter improper inducements to foreign officials to influence business transactions abroad

• The statute consists of two principal parts • the anti-bribery provisions • the accounting and record-keeping provisions

• The Act prohibits giving a foreign official anything of value, including commonplace business expenses as travel, entertainment, souvenirs, gifts, jobs for relatives, and donations to charities, as well as outright cash

• Penalties including criminal, civil and possible suspension from Federal Contracts

• In Africa and Central Asia, the FCPA and the UK Anti Bribery Act are very important considerations. Immigration is NOT exempt from the FCPA

• www.fcpamap.com

Creating a Successful Global Immigration Program

• Challenge of balancing the business need for certainty/transparency with a compliant immigration/global mobility program

• Many different systems of law, policy and practice

• Dynamic/ volatile area of law, sometimes unannounced, sometimes with an inadequate implementation plan (e.g. recent changes in South Africa)

• Some systems are based on discretionary decision making

• Prevalence of corrupt practices in some countries

• Publically available information (e.g. government websites may be incomplete)

• Non compliance can lead to penalties or adversely affect business reputation

• Even if not formally penalized, a reputation for poor immigration practices can result in adverse publicity and have a direct impact on processing of future applications

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Creating a Successful Global Immigration Program

• A comprehensive global immigration program allows for easier compliance

with local immigration laws and provides opportunities for business growth

• Common Types of Immigration Programs

1) Centralized – all immigration oversight is managed internally, provides for better reporting, FCPA compliance, tracking

2) Relocation – Managed Program – companies outsource immigration through relocation and mobility providers – still allows for centralization but by a third party who can manage with tax and relocation

3) De-Centralized – immigration is handled at the local level – potentially, no oversight of compliance, understanding of use of quotas, and FCPA management.

• Find the right partners

• Be sensitive to cultural and economic impact

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Europe

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• Norway • The minimum salary threshold for Work Permit applicants with bachelor’s and/or Masters

degrees has been raised considerably

• Hungary • All non-EU nationals seeking to work in Hungary for up to 90 days require both a work

permit and a type D visa. Even individuals who would typically be visa exempt for short-term visits based on their nationality are subject to the type D visa requirement

• UK • Residential landlords in the UK will soon be required to check prospective tenants’

documents to ensure they are legally present in the country, according to a provision of the new Immigration Act 2014. Conducting such checks is a defense to a violation of the law

• This new provision is designed to make it more difficult for immigration offenders to stay in the UK, and it is hoped it will also prevent the rental of overcrowded accommodations

Europe

• France • Foreign national scientists who are terminated by their employer can now

maintain their temporary residence permit, the Ministry of the Interior has decreed. If the scientist is terminated, he or she will have one year to look for a new job. This is the current scheme for other foreign workers.

• Previously, foreign nationals with scientist visa status were required to depart France or change their status if their employment was terminated

• Russia • Russian citizens who fail to notify the Government within 60 days of obtaining a

residence permit or citizenship in another country will be subject to criminal fines between RUB 200,000 ($5,000) and one-year’s salary or up to 400 hours of compulsory labor

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Africa

• South Africa • South Africa’s Department of Home Affairs (DHA) will create a special taskforce

to review the implementation of the May 2014 Immigration that have caused significant delays and processing difficulties for employers.

• The new regulations included the following changes: • New labor market testing requirements and new restrictions for General Work Permits • Corporate permits and permits for accompanying unmarried partners • Extensions of the validity of intracompany transfer work visas to four years • New restrictions on in-country changes of status • The elimination of two work permit categories • The introduction of new forms and new penalties for non-compliance

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Africa

• Ghana

• Oil and gas sector employers sponsoring foreign nationals for work permits are now subject to further heightened recruitment requirements, as the government seeks to increase compliance and increase local worker participation in the industry

• Employers must now advertise open positions in The Daily Graphic and Ghanaian Times

• Oil and gas sector companies will also be required to provide the name and resume of a Ghanaian replacement and a succession plan in the event the foreign worker’s employment is terminated. For work permit renewals, the company must provide an updated succession plan and a training program to detail the duties to be transferred to a local resident in case of the foreign national’s employment termination. Lastly, oil and gas sector companies must notify the Petroleum Commission regarding any recruitment activities.

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Africa

• Mozambique • Opportunity Meeting Compliance Challenges

• Opportunity • Significant oil and gas projects are in the early stages of consideration • Workforce for one LNG project predicted to be in excess of 8,500

• Challenge • Immigration rules revolve around quotas or ratios of local workers • 1 - 10 = 1 Foreign National • 10 – 100 = 8% Foreign National • Over 100 = 5% Foreign National

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Asia Pac and Middle East

• Australia • Government continues to water down the previous Government’s tightening of

immigration laws.

• Foreign nationals engaging in offshore resource activities are no longer required to hold a visa granting employment authorization, unless engaging in activities involving an Australian resources installation that is fixed to the Australian seabed, such as a traditional oil rig.

• Thailand • Foreign Nationals Must Sign Acknowledgment of Visa Overstay Penalties. Those

who overstay for less than 90 days incur financial penalties of THB 500 ($15) for each day of overstay up to 41 days. Overstays of 42 days or longer can result in the maximum fine of THB 20,000 ($620) or a term of imprisonment or both, followed by deportation with a possible reentry bar.

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Asia Pac and Middle East

• Singapore • As of August 1st the Ministry of Manpower (MOM) no longer allows companies to

transfer an existing employment pass holder to a subsidiary in Singapore as part of a secondment or due to career progression. Instead, the subsidiary is required to apply for a new employment pass for the affected employee. The employer is not required to cancel the existing employment pass before submitting the new application.

• China • Emigration - losing its millions of millionaires • Buying your way into another country (or out of China)

• USA - $1 million + create 10 jobs • UK - $1.65 million + wait 5 years • Spain - $657,000 - buying into property • Australia - $4.65 million + wait 4 years • Canada – NO MORE

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Americas

• Canada • The introduction of the Labor Market Impact Assessment (LMIA) as the

screening mechanism requiring that employers provide information on the number of Canadians who applied for the position to be filled by the foreign worker, the number of Canadians interviewed, and an explanation as to why each was not hired. The LMIA fee is C$1,000, a considerable increase from the old fee of C$275.

• New requirement for transition plans to demonstrate how employers will increase efforts to hire Canadians, for example, through higher wages, investments in training, and more active recruitment from within Canada.

• One out of four businesses will be inspected each year for compliance. The Government will have expanded authority to blacklist employers who have been suspended and are under investigation. Monetary fines will be increased to up to C$100,000 or five years’ imprisonment.

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Americas

• Mexico

• Significant changes to the Energy sector

• For the first time in seventy-six years, private companies will be able to participate in oil and gas exploration and production. The legislative infrastructure of the reforms is robust and should make Mexico a competitive destination for upstream investment.

• The proposed local content requirement has been set at 35%. While the national goal is to have 35% local content for both exploration and production by 2025.The law makers have provided additional flexibility so that each individual contract does not have to meet the 35% target.

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Questions?