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Welcome to the Worldwide ERC® Mobility LawBlog, where Tax Counsel Pete Scott and Government Relations Adviser Tristan North share breaking tax and legal news, as well as compliance and risk management information of interest to global workforce mobility professionals concerned with U.S. domestic and worldwide assignments. Sign up to receive e-mail alerts so you don't miss an entry, or subscribe to the RSS feed for immediate delivery.

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AUSTRALIA – Immigration Overhaul Significantly Reduces Eligible Occupations and Will Eliminate 457 Visa; Replacement Routes Coming
By: The Knowledge Management team at Pro-Link GLOBAL
 
Update (20 April 2017): Since the writing of this Global Brief, the Australian authorities issued a series of statements seemingly repealing many of the immediate, April 19 changes to the eligible occupations lists. However, after significant confusion throughout the industry, the Department of Immigration and Border Protection (DIBP) confirmed that the new legislation changing the occupations lists is still in force and the originally announced changes will proceed as scheduled and as outlined below. Ed.
 

With the major announcement on April 18 that his government would eliminate Australia’s commonly-used but often controversial Temporary Work (Skilled) (Subclass 457) Visa stream, Australian Prime Minister Malcolm Turnbull shocked the global business, immigration, and mobility worlds. However, taking into consideration the current political terrain and public opinion trends in Australia, this announcement was not entirely surprising.
 
Major revision of the employment-based immigration system, including the 457 Visa, has been in the works for some time, and the current political climate in Australia almost ensured the reforms would be announced by year-end. That being said, the dramatic announcement that the 457 Visa program was being eliminated altogether gave certain politicians and labor unions pause to celebrate, while companies understandably had much cause for concern. As the smoke of Tuesday’s announcement clears and more official information has now been released, Pro-Link GLOBAL takes this opportunity to provide an objective review of the coming system that will replace the 457 Visa program, as well as the other changes to the employment-based immigration rules. While some significant changes start today – with additional changes continuing through March 2018 – reports of the “death” of employment-based immigration to Australia are certainly premature.
 
The 457 Visa Controversy
Setting aside the “blow-by-blow” of the recent years’ political wrangling over 457 Visa program, suffice it to say that Australia has had a love-hate relationship with its most popular employment-based immigration stream. On the one hand, the 457 Visa allowed companies operating in Australia to import the foreign talent needed to fuel what is currently the world’s second-longest sustained economic expansion of more than 25 years; however, it has also clearly been fraught with abuse on the part of some companies bringing in cheap foreign labor to the detriment of the employment and wages of local Australian workers.
 
While the controversy has led to refinements to the system in the past, the debate appeared to amplify beyond simple political posturing to impending action at the end of last year. Pro-Link GLOBAL identified this trend as one of our top nine global mobility changes to watch for in 2017, predicting significant 457 visa reform this year. See our “Kickstart 2017: 9 Global Mobility Changes You Need to Know Now” here. Still, the future elimination of the 457 Visa program in its entirely and the replacement of this program with another visa stream was surprising to many.
 
While there are significant changes from the current process being implemented, Pro-Link GLOBAL believes that many of these changes were rolled out to dissociate the current administration from the negative public perception that seemingly plagued the 457 program – and would have undoubtedly continued to plague any attempts at reform. The current and coming changes are significant, but far from the end of Australian employment-based immigration. Australia remains generally “open for business” for international companies with foreign employees, and the coming changes are navigable with the proper planning.
 
What Changed Today… and What’s Changing in the Future?
To begin, it is important to note that Temporary Work (Skilled) (Subclass 457) Visas will continue to be granted through March 2018, after which the 457 Visa stream will close and be replaced by a new Temporary Skill Shortage (TSS) Visa stream.
 
In addition, the Department of Immigration and Border Protection (DIBP) has been careful from the outset to make it clear that current 457 Visa holders will be unaffected by these changes during the period of their visa’s current validity. The rules and regulations for the interim 457 Visa and the upcoming Temporary Skill Shortage (TSS) visa will only be applied to visa applications and renewals filed after the relevant implementation dates outlined below. Current 457 Visa holders are urged to contact their Pro-Link GLOBAL Immigration Specialists well ahead of any upcoming visa renewals for specific guidance on how these changes will impact them.
 
Prime Minister Turnbull’s announcement outlined several phases of changes to the current 457 Visa rules, as well as regulations covering other employment-based visas. Changes are scheduled to take effect immediately and at pre-determined intervals throughout the upcoming calendar year.
 
Changing Today – April 19, 2017
Major Amendments Changes to Occupations Lists At the heart of the changes to Australia’s employment-based visa immigration system is the renaming and revision of the current Skilled Occupation List (SOL) and the Consolidated Sponsored Occupation List (CSOL). The primary motivation behind these changes is to narrow the number of occupations that are eligible for employment visas in Australia, thereby limiting visas to only the most skilled and in-demand occupations. To that end, the current SOL list has been replaced by the Medium and Long-Term Strategic Skills List (MLTSSL), and the current CSOL list has been replaced by the Short-Term Skilled Occupation List (STSOL). These new lists are effective as of April 19 and apply to all relevant visas – including the 457 Visa and the upcoming TSS Visa – going forward. It is anticipated that the DIBP will update these lists every six months, based on advice of the Department of Employment.
 
Medium and Long-Term Strategic Skills List (MLTSSL) – The MLTSSL list designates those occupations now eligible for the following visas:
  • Skilled Independent Visa (subclass 189);
  • Skilled Regional (Provisional) Visa (subclass 489);
  • Temporary Graduate Visa (subclass 485); and
  • The upcoming TSS Four-Year Visa – which will become available in March 2018.
Short-Term Skilled Occupation List (STSOL) – The STSOL list designates those occupations who are now eligible for the following visas:
  • Employer Nominated Scheme (subclass 186);
  • Skilled Nominated Visa (subclass 190);
  • Skilled Regional (Provisional) Visa (subclass 489) (if nominated by a State or Territory government);
  • Temporary Work (Skilled) Visa (subclass 457) – available until March 2018;
  • Training Visa (subclass 407); and
  • The upcoming TSS Two-Year Visa – which will become available in March 2018.
Effective today, 200 occupations have been removed entirely from the MLTSSL and STSOL lists. Eliminated occupations range across multiple industries and multiple organizational roles including service occupations, managers, professionals, engineers, and tradesmen. Another 16 occupations have been removed from 457 Visa eligibility but remain eligible for subclasses 189, 485, and 489. For a complete list of removed occupations, visit the DIBP website here. The occupations which remain eligible can be viewed on a combined MLTSSL/STSOL list here.
 
For 457 visa applications currently pending with the DIBP, visas will not be issued for removed occupations; for all other subclass visa applications currently in process, visas may be granted even if the occupation has been removed. As these changes to the eligible occupation lists are perhaps the most confusing aspect of the new rules, companies and employees with questions regarding pending visa applications are encouraged to reach out to their Pro-Link GLOBAL Immigration Specialist.
 
Visa Validity Periods – Additionally, as of this date, the previous practice of generally granting 457 Visas with a four-year validity will end; and these visas will be granted with either two-year or four-year validities based on the new MLTSSL and STSOL occupation lists.
 
Transitional Measures – As all 457 visas issued after today will be issued under the new rules, transitional measures have been put in place for currently-pending 457 visa applications. These measures allow applicants to withdraw their application, receive a refund of the government fees, and resubmit under the new rules if they chose. Companies and employees with pending applications should immediately reach out to your Pro-Link GLOBAL Immigration Specialist to determine whether withdrawing and resubmitting may be advantageous in any particular case.
 
Changing in the Future – Upcoming Minor Amendments
July 1, 2017 Changes
 
  • Police Clearances – Applicants for 457 Visas will no longer be exempt from the requirement to provide police criminal clearance certificates (PCCs). PCCs will be required for all 457 Visa applications as is required for all other visa categories;
  • Mandatory Skills Assessments Expanded – The mandatory skills assessments of some applicants will be expanded;
  • Sponsor Training Benchmarks – Minor changes will be made to the training benchmarks for 457 sponsors;
  • Online Processing Changes – The Department of Immigration and Border Protection (DIBP) will begin processing all 457 Visa applications through the newer eLodgment Plus online system, using new application forms and document requirements; and
  • Possible Additional Changes to Occupations Lists – The DIBP may make additional changes to the MLTSSL and STSOL lists.
 
December 31, 2017 Changes
  • Collection and Matching of Tax Data – The DIBP will begin collecting tax file numbers for all employment-based visa holders, including 457 visa holders, and will match that data against Australian Tax Office records to ensure that minimum salary requirements are being met; and
  • Publication of Sponsor Sanctions – The DIBP will publish announcements of sponsors who fail to meet their obligations under immigration regulations.
 
Changing in the Future – March 2018 Major Amendments
March 2018 will mark the official abolition of the Subclass 457 Visa program. Once this route is closed, applications for new 457 Visas will no longer be accepted. Rather, the 457 Visa program will be replaced by the new Temporary Skill Shortage (TSS) Visa.
 
Temporary Skill Shortage (TSS) Visa
The Temporary Skill Shortage (TSS) Visa – designed to replace the current 457 Visa – is slated to be introduced in March 2018. The new TSS Visa will be offered in two streams with a Short-Term (two-year) option and a Medium-Term (four-year) option, depending on the applicant’s occupation. The Short-Term stream will be open to the broadest number of occupations, with the Medium-Term stream being opened to a more-narrow range of higher-skilled occupations.
 
Both streams will have the following eligibility criteria:
  • Work Experience – Applicants must possess at least two-years’ relevant work experience;
  • Labour Market Test – Labour market testing will be required for all positions, unless an international agreement specifies otherwise;
  • Minimum Salary – Companies must pay the Australian market salary rate, at or above the Temporary Skilled Migration Income Threshold, currently set at AUD $53,900 since April 2016;
  • Police Clearance Certificate – Applicants must submit police criminal clearance certificates (PCCs);
  • Non-discriminatory Workforce Test – Companies will have to complete a “non-discriminatory workforce test” showing that they are not actively discriminating against Australian workers; and
  • Local Training Requirement – Companies will have an increased Australian worker training requirement.

Short-Term (Two-Year) Stream
In addition, the Short-Term TSS Visa – issued with an initial one-year validity with an in-country option for renewal for another year – will carry the following requirements:

  • Occupations – Applicants must engage in occupations found on the STSOL list; however, additional occupations may be made available to support regional employers;
  • English Language Proficiency – Applicants must score at least a 5 or the equivalent on the International English Language Testing System (IELTS), with a minimum of 4.5 in each test component.

The Short-Term option will not present a pathway to permanent residence.

Medium-Term (Four-Year) Stream
In addition, the Medium-Term TSS Visa – renewable up to a maximum of four years – will carry the following requirements:

  • Occupations – Applicants must engage in occupations found on the MLTSSL list (generally occupations requiring a higher level of skill, training, or education); however, additional occupations may be made available to support regional employers;
  • English Language proficiency – Applicants must score at least a 5 or the equivalent on each component of the IELTS.

Only under the Medium-Term option will a TSS Visa holder have a pathway to permanent residence, becoming eligible after three (3) years of residence in Australia.

Permanent Employer Sponsored Skilled Migration
In conjunction with the above changes to the temporary employment-based streams, the new rules also make related changes to Australia’s permanent employer sponsored skilled migration program – the Employer Nomination Scheme (ENS) (subclass 186) Visa and the Regional Sponsored Migration Scheme (RSMS) (subclass 187) Visa. Starting July 1, the English language proficiency requirement will be increased to a score of at least a 6 or the equivalent on each component of the IELTS, and a maximum age requirement of 45-years-old at the time of application will be imposed in the Direct Entry stream. Then, in March 2018, the DIBP will implement an array of changes: beginning to use the MLTSSL occupations list, applying the above minimum salary and company local training requirements, beginning to impose an additional three-year work experience requirement, and beginning to extend the 45-years-old cap to both ENS Visa and RSMS Visa applications. In March 2018, the eligibility period for ENS and RSMS visa holders will increase from the current two years to three years.

How These Changes Affect You

While the most obvious changes rolled-out this week – and the corresponding media coverage – have centered on the controversial 457 Visa stream, the changes adopted by the Australian DIBP represent a major overhaul of Australia’s entire employment-based immigration scheme. Of particular note are the immediate and significant narrowing of the lists of eligible occupations allowed under all employment visa subclasses and the immediate shortening of validity periods for, and the eventual replacement of, the 457 Visa itself.

It is important to keep in mind that current 457 Visa holders are not immediately affected; however, companies and foreign employees operating in Australia should take note of both the immediate and upcoming scheduled changes, as they will have extensive impact on visa renewals and new applications going forward.

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. We would like to remind you that Immigration laws are fluid and can change at a moment's notice without any warning.

EU: Will U.S. Citizens Soon Need Entry Visas to the EU?
By: The Knowledge Management team at Pro-Link GLOBAL
 
On March 3, the Parliament of the European Union passed a resolution urging the European Commission to revoke the visa-free privilege for U.S. citizens within two months unless the U.S. government agrees to grant visa-free travel to the citizens of EU member states Bulgaria, Croatia, Cyprus, Poland, and Romania. While the resolution is not legally binding on the EU Commission, the Parliament – anticipating push-back by the Commission – has already intimated it is headed to the courts if no Commission action is forthcoming. This sensitive U.S.-EU issue has been on our radar for some time, but this latest development has now ratcheted-up the potential for real action.
 
What's Really Going On?
Citizens of the United States are understandably troubled, reading in the media over the last several weeks that they may soon lose visa-free travel to Europe. Likewise, U.S. companies with business in Europe are now mentally tallying the increased business costs of obtaining visas for their U.S. employees visiting their European locations and customers, and companies in the huge European tourism sector can only guess at the potential loss of customer revenue. It is estimated that U.S. citizens traveling to Europe topped a record-high 13 million plus travelers in 2016.
 
The threat of the U.S. losing visa-free travel to Europe is not new. The U.S. has been under formal notice from the EU to revise its policy since 2014. Similar actions were also lodged against the nations of Australia, Canada, Brunei, and Japan – who likewise required visas for citizens of the same five EU countries at issue. The four nations have since capitulated by revising their immigration policies to grant visa-free entry to the five nations. The situation appears to now have taken on a more serious tenor, with the U.S. continuing as the only remaining hold-out. As recent as April of last year, the U.S. State Department continued to make public statements that it had no plans to admit nationals of Bulgaria, Croatia, Cyprus, Poland, and Romania into the Visa Waiver Program, stating that those nations “fundamentally, just haven’t met the requirements for the visa waiver program.”
 
Now with a new administration in the U.S. and with a somewhat less-than unified post-Brexit EU, it is unclear whether the situation will ultimately result in visa-free travel to the U.S. for the five nations, or instead result in the imposition of an EU visa requirement for U.S. citizens. President Trump’s public comments before inauguration were less than flattering of the European Union, but since taking office, his administration has not hinted at a clear U.S. response.
 
When it comes right down to it, the heart of the issue will be to what extent the apparent rising nationalism on both sides of the Atlantic will trump (no pun intended) the obvious economic harm a tit-for-tat reciprocal imposition of visa requirements would inflict on mutual business and tourism interests. The executives in the EU Commission clearly do not want to take such action, and it remains to be seen to what extent individual EU nations would even follow such a Commission directive if issued.
 
We view the best-case U.S. response to be to simply extend visa-free travel to the five nations, treating all EU member nations equally, as is now the prevailing international consensus. Short of that step, we hope that the U.S. will at least engage in constructive diplomatic dialogue on the issue to avoid or postpone any immediate negative EU action, giving the five nations time to meet the State Department’s requirements for the Visa Waiver Program. However, the current seemingly ad hoc approach to international relations of the current U.S. administration makes any prediction difficult.
 
Will All This Ultimately Affect You?
Hopefully, no. However, the current EU ultimatum for the U.S. to open its visa-free scheme to all EU nations or face imposition of a visa requirement on U.S. citizens traveling to the EU should be taken seriously. Unlike past similar actions, the present ultimatum has the potential for real consequences if the U.S. ignores it. Neither the EU nor the U.S. obviously wants a visa requirement imposed for U.S. citizens; it would be economically damaging to both sides. Unfortunately, however, the present debate will be resolved (or not resolved) in the realm of diplomatic gamesmanship, and it will depend on whether both sides can find a “face saving,” agreeable solution.
 
Whichever course the U.S. choses to take as a response now, we don’t see actual reciprocal action coming from the EU for at least four to six months. We are, however, taking the current situation seriously and will be monitoring developments for the potential impact on our industry.
 
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. We would like to remind you that Immigration laws are fluid and can change at a moment's notice without any warning.
UK: Prepare to Brexit – Prime Minister Readies Article 50
By: The Knowledge Management team at Pro-Link GLOBAL
 
Despite some eleventh hour parliamentary maneuvering by the House of Lords, Prime Minister Theresa May appears determined to pull the trigger on Article 50 of the Lisbon Treaty before the end of March and begin the formal process of the United Kingdom exiting the European Union. As Pro-Link GLOBAL has reported previously, the ramifications of the UK’s Brexit from the EU will be numerous and long-lasting.
 
However, perhaps the most dramatic and immediate impact will be felt by those 2.9 million nationals of EU countries currently living and working in the UK. While the Members of Parliament debate procedural issues, and Ministers plot negotiating strategy, EU nationals in the UK hold their collective breath and await the official announcement regarding their status after Article 50 is invoked. In an effort to assuage some anxiety, Pro-Link GLOBAL offers this brief update on the state of Brexit as of today and what EU nationals residing in Great Britain can do now to prepare for the uncertain road ahead.
 
Status of Brexit Today
As of today, the Brexit Bill to formally authorize Prime Minister May to invoke Article 50 of the EU Lisbon Treaty and start the two-year negotiation process for exiting the EU is currently being debated in Parliament. The bill is currently with the House of Lords, who have already dealt the May administration two significant setbacks by attaching two amendments: one guaranteeing the rights to EU nationals living in the UK, and another requiring Parliament’s approval of any final deal negotiated prior to formal exit. PM May has vowed to defeat both amendments when the bill returns to the House of Commons next week.
 
In statements as recent as March 2, the day after the Lords delivered the first setback, PM May was still insisting that Article 50 would be triggered on March 15. However, with the second Lord’s amendment this week, an end-of-March timetable appears more likely.
 
Once May triggers Article 50, the UK and the EU will then enter the long and complicated process of negotiating an exit agreement that will define their relationship once the UK leaves the EU, possibly as soon as the Spring of 2019. The issues on the table of this negotiation will cover the spectrum of international trade, border security, legal frameworks, regulatory schemes, agency roles, and cooperative ventures, but center stage in the negotiations will undoubtedly belong to the issue of immigration and the mobility of EU nationals into the UK and UK nationals into Europe.
 
“End of Free Movement”
Regardless of the precise date and the ultimate form of the Brexit Bill, PM May has indicated that simultaneous with the Article 50 announcement, she will announce the “end of free movement for EU migrants.” By this, she means that as of the date that Article 50 is triggered, EU nationals arriving in the country will not be automatically guaranteed the right to permanently stay in the UK. Those EU nationals arriving after that “cut-off” date would be subject to whatever residency rules are negotiated and ultimately implemented through the EU exit process. Presumably, for EU nationals already in the UK on that date, the current rights and procedures for obtaining permanent residence will still apply. However, until the Prime Minister makes the announcement electing Article 50, EU nationals are left with nagging uncertainty.
 
What Should EU Nationals in the UK be Doing Now?
Public statements made as recently as early February do, however, show a strong desire on the part of the May administration to ensure that EU nationals already living in the UK have the right to remain. In remarks at the start of the Brexit Bill debate in Parliament, the Prime Minister reiterated that she wants to guarantee the right of EU nationals to stay in the UK “as soon as possible.” Bearing in mind that the process with the EU going forward is a negotiation, and that there are 1.2 million UK nationals also living in the EU, both sides should be strongly motivated to maintain the status quo for their citizens already living abroad. So, while the status is less clear for EU nationals entering the UK after the Article 50 announcement, there is certain to be a mechanism put in place for EU nationals already in the UK to remain.
 
While we watch for the details of such a mechanism to take shape, there are some concrete steps EU nationals living in the UK can do now to place themselves in the best-possible position to face the uncertain road ahead. Pro-Link GLOBAL has been recommending to its EU national clients working in the UK, and their families, to do the following:
  • For EU nationals who have resided continually in the UK for more than five years - apply for Indefinite Leave to Remain, UK’s form of permanent residency. More information can be found on the Home Office website here.
  • For EU nationals who have resided in the UK for less than five years – apply for a Registration Certificate. While EU nationals are not required to register, a Registration Certificate provides documentary proof of the right to reside in the UK. More information can be found on the Home Office website 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. We would like to remind you that Immigration laws are fluid and can change at a moment's notice without any warning.
New York DFS Responds to Cybersecurity Rule Comments
The New York State Department of Financial Services (DFS) delayed by two months the implementation of its regulation (23 NYCRR 500) on cybersecurity requirements for financial services companies. The regulations now take effect on March 1 as opposed to January 1, 2017. Companies operating in New York State and subject to the regulations have 180 days or until September 1 to be in compliance with the regulations. Companies have until February 15, 2018 to submit a certificate of compliance to the Department of Financial Services.
 
Worldwide ERC® had submitted a comment letter on the proposed regulation noting our concern as to the broad definition of the types of companies that would be subject to the regulations. Our issue is the rule can be interpreted as covering relocation management companies and other Worldwide ERC® members which are not the focus of the regulations. In the letter, Worldwide ERC® requested an exemption from the regulation for employee benefit service providers. We also outlined several improvements that should be made to the regulation. For a copy of the letter, please click here.
 
The Department of Financial Services denied the request to provide exemptions to any organizations and believed the definition of affected entities was sufficiently clear. We therefore recommend that Worldwide ERC® members operating in New York State have their legal counsel review the regulation to determine if your company should adhere to the rule. For a copy of the regulation please click here http://www.dfs.ny.gov/legal/regulations/proposed/rp500t.pdf and for the DFS response to comments please click here (http://www.dfs.ny.gov/legal/regulations/proposed/rp500apc.pdf.
 
While the DFS denied an exemption for employee benefit service providers and other exemption requests, the Department did make small revisions to exempt covered entities. As to the response to comments made by Worldwide ERC® and others on improvements to the regulations, below is each comment with the corresponding response.
 
  1. Knowledge Qualification. Section 500.11 (b) (5) requires an absolute representation that the service/product is free of viruses, etc. that would impair the security of the Covered Entity’s Information Systems or Nonpublic Information. We request that this representation be qualified as being “to the best of the knowledge of the third party service provider, …”.

    The Department of Financial Services stated, “in response to comments seeking greater clarity in regard to the requirements of this section, the Department has added a defined term, “Third Party Service Provider(s).””
  2. Scope and Confidentiality of Audits. Section 500.11 (b) (6) requires that the Covered Entity “or its agents” may perform cybersecuritys audits of the third party service provider. Such audits could put data of other persons and entities at risk. We request that this section be clarified to specify what types of audits and information may be accessed, under what circumstances, and subject to what confidentiality obligations which will assure that both the process and the results of the audit will protect the confidentiality of the underlying information. Any Covered Entity or its agents should be required to agree to strict confidentiality requirements in performing these audits.

    The DFS responded that it had “amended this section so that its requirements are more explicitly based on the Covered Entity’s Risk Assessment. In addition, DFS has eliminated a provision in section 500.11(b) that may have unintentionally suggested that Covered Entities are required to audit the systems of all third party service providers.”
  3. No Access to Information by NY State Regulators. Any third party service provider which does business in the EU would be concerned with providing unfettered access to its information systems to any Covered Entity, especially if that information might then be made available to government regulators which have jurisdiction over Covered Entities. During the recent Privacy Shield negotiations between the EU and US, it was abundantly clear that the EU is very concerned over who in the US has access to data. We request that this provision should state that the NY state regulators would not have access to information of the third party service providers.

    The DFS acknowledged the need to be in line with other regulations and made revisions accordingly.
  4. Definition of Nonpublic Information. The definition of “Nonpublic Information” is overly broad. We believe that, when the overly broad definition of “Nonpublic Information” is considered together with the requirement (i) to encrypt such information in transit and at rest; (ii) for the Covered Entity to perform annual audits with respect to how such information is protected; and (iii) the lack of an exclusion for employee information, an unduly burdensome obligation is created for both the Covered Entities and their third party service providers which will increase costs and create operational impediments without achieving the stated purpose of the regulations of promoting the protection of customer information of the Covered Entities. We request that the definition of “Nonpublic Information” be narrowed to more clearly track other established definitions of personally identifiable information (“PII”), preferably either the US definition of PII or the EU definition of personal data.

    The DFS stated it did not revise the definition, as the Department “believes its scope is appropriate in the context of the revised proposed regulation.”
  5. Definition of Cybersecurity Event. The definition of “Cybersecurity Event” also is overly broad. This definition includes both successful and unsuccessful attempts to gain unauthorized access to systems or information. Then Section 500.11 (b) (3) requires the third party service provider to provide “prompt notice” to the Covered Entity in the “event of a Cybersecurity Event affecting the third party service provider”. Daily reconnaissance, probes, and attempts to exploit potential vulnerabilities are the norm for any company, including both Covered Entities and third party service providers. Section 500.11 (b) (3) would require third party service providers to provide, and would result in Covered Entities being inundated with, notices of attempted access to third party systems or information, the vast majority of which were stopped before access was gained or information was misused. We request that Section 500.11 (b) (3) be revised to require notice only in the event that customer information was accessed or reasonably believed to have been accessed.
    The DFS stated it did not revise the definition but did revise “several of the provisions of specific concern by requiring that certain provisions be based on the Risk Assessment and by including materiality qualifiers, such as in the Notices to Superintendent section.”

Please note all quoted references in this document where taken from the DFS Assessment of Public Comments for New Part 500 to 23 NYCRR.

Worldwide ERC®'s Tax Season Filing Tips for Transferees
As it does every year, Worldwide ERC® offers below a number of tax tips to assist transferees in the dreaded task of income tax filing for 2016.
 
We begin the 2016 tips with a few quotations about taxes illustrating why the average taxpayer-including transferees-typically approaches the tax filing season with fear and loathing.
 
“If the Lord had meant us to pay income taxes, He’d have made us smart enough to prepare the return.” Kirk Kirkpatrick
 
“You must pay taxes. But there’s no law that says you gotta leave a tip.” Morgan Stanley (Advertisement)
 
“Love will find you when you least expect it. Which makes it more like the IRS than we think.” Jeff MacNelly (“Shoe”)
 
“American tax laws are constantly changing as our elected representatives seek new ways to ensure that whatever tax advice we receive is incorrect.” Dave Barry
 
With fundamental tax reform likely during this year’s Congress, Mr. Barry may well be right as to next year’s tips. However, in the interest of assisting more transferees to prepare “smart” returns for 2016, and to avoid tipping the tax man or receiving an unexpected visit from him, Worldwide ERC® offers the following:
 
Here are several items deductible as moving expenses that are sometimes overlooked:
  • Tips to the moving van driver or helpers.
  • Mileage for driving second or third cars to the new location (in addition to the first car). The deduction for 2016 is 19 cents per mile. (The deduction will decrease to 17 cents per mile for 2017).
  • Lodging expenses in the departure location for one night after the household goods are packed, and one night in the new location on the day of arrival.
  • Moving household goods from a location other than your main home, up to what it would have cost to move them from the main home
  • Storage of household goods for up to 30 days, including the cost of moving the goods into and out of storage. Note that the costs for moving the goods into and out of storage remain deductible even if the goods are in storage more than 30 days.
  • Expenses not reimbursed by your employer, such as extra crating, shipment of unusual items, tips to van line staff, etc.

And remember: You don’t have to itemize to deduct moving expenses.

Other filing season tips:

  • If the seller of your new house agreed to pay part of your mortgage points instead of reducing the sales price, IRS says you can deduct those points, even though the seller paid them.
  • If you ever refinanced your mortgage, don’t forget to deduct the entire remaining balance of points paid on the refinancing in the year you sell your home.
  • If your new job is for a different employer, and you earned more than $118,500 in 2016, you may have had too much deducted as contributions to Social Security. You can take a credit for the excess over $7, 347 on line 71 of your Form 1040 tax return. However, you may still owe the additional 0.9% Medicare tax that went into effect in 2013 if combined wages from both employers exceeded $200,000, or if your wages combined with those of your spouse exceeded $250,000. In such a case, you will need to file Form 8959 to report the additional tax, which applies to amounts in excess of the thresholds above, and include it on line 62 of the Form 1040.
  • If you moved to one of the states with state and local sales taxes but no general income tax (Alaska, Florida, Nevada, New Hampshire, South Dakota, Tennessee, Texas, Washington, or Wyoming) you may benefit from an itemized deduction for state sales taxes. The deduction was reauthorized and made permanent by Congress in 2015.
  • If you paid a premium for mortgage insurance, you may be entitled to an itemized deduction as mortgage interest for the portion of the premium allocable to 2016. Congress reauthorized this provision effective through 2016 late in 2015. No deduction is available, however, if your adjusted gross income is more than $110,000.
  • If the sale of your former principal residence was a “short sale,” and you were relieved of some of the mortgage debt by your lender, you may receive a Form 1099-C reporting that debt relief to the IRS. However, a provision of the tax code excusing tax on such relief for acquisition mortgage debt up to $2 million was extended through 2016 in late 2015, and no tax should be due.
  • If you had at any time during 2016 a financial interest in or signature authority over a financial account in a foreign country, do not forget to disclose it by answering question 7a on the Form 1040, Schedule B. Disclosure is required even if you are not required to file a Treasury Form 114 Foreign Bank Account Report, or an IRS Form 8938 Statement of Specified Foreign Financial Assets.

The 2016 return will be due on Tuesday, April 18, 2017. The normal April 15 filing date falls on a Saturday, which ordinarily would move the filing deadline to Monday April 17. However, that day is Emancipation Day in the District of Columbia, a legal holiday. Therefore, the filing deadline moves to Tuesday, April 18.

Posted by Peter Scott

NETHERLANDS: New Intra-Company Transfer Permit Rules
By: The Knowledge Management team at Pro-Link GLOBAL
 
The Netherlands became the fifth European Union (EU) nation to implement the provisions of the EU Intra-Company Transfer (ICT) Directive. The new rules took effect November 29 and present long-range benefits for companies and employers. However, sponsoring companies should be aware of the short-term advantages and disadvantages over the current rules and processes. For temporary work assignments to the Netherlands under the applicable conditions, this new ICT Permit will be the single available immigration route from November 29 forward.
 
The European Union Intra-Company Transfer Directive
First adopted May 13, 2014, the European Union Intra-Company Transfer (ICT) Directive (2014/66/EU) endeavors to establish an EU-wide standardized scheme for multinational corporations to transfer and assign their non-EU national employees among their affiliated entities located throughout EU member states. To that end, the directive mandated that all EU countries had until November 29 of this year to develop legislation implementing the scheme into their national law. To date, the response by member nations has been less than overwhelming, with only five states – Spain, Romania, Hungary, France, and now the Netherlands – having done so.
 
The ultimate goal of the ICT Directive is increased intra-EU mobility for multinational corporations that will, in turn, benefit the European economy through the greater transfer of knowledge and expertise within companies and countries. The direct advantages of a standardized EU-wide system for ICTs are two-fold. First, standardizing the rules governing these types of highly-utilized assignments will both allow companies to manage their budgets and global mobility programs more easily, and provide foreign employees with a more flexible and streamlined immigration option throughout the EU. The second – and potentially greater benefit, once implemented throughout the EU – is that an ICT Permit issued in one state and recognized in all other member states will avoid duplicitous administrative cost and effort each time an employee moves from one corporate location to another. While we are just beginning to realize the first benefit in the initial five implementing states, the extent of the second benefit will not be fully realized until more EU members implement the Directive.
 
What's Changed?
Starting November 29, the Dutch Immigration and Naturalization Authority (IND) rules and procedures will include the provisions of the EU ICT Directive, which the Netherlands implemented into its law October 13 by Decree Nr. 408 of 2016. While Intra-Company Transfer assignees were already provided for in the current process under the highly-skilled “Knowledge Migrant” program, the new rules will harmonize the Dutch system with the EU Directive and the other nations implementing it. Thus, from November 29 forward, applicants who fall under these new ICT provisions will no longer be eligible for Knowledge Migrant permits but instead will apply for work and residence authorization in the form of the new “ICT Permit.”
 
The new Dutch ICT Permit will apply to applicants meeting the following conditions:
  • Non-EU/EEA/Swiss foreign nationals;
  • Employed as Managers, Specialists, or Trainees. Managers and Specialists must hold at least a University degree or five years of experience at their current level. Trainees must have a University degree. All applicants must have been employed by the sending company for at least three months;
  • Assigned to a Dutch company in the same corporate group as their employer. The employee remains employed by the foreign company and is not on a local employment contract; and
  • Sent on an assignment of more than 90 days, but either less than three years (for Managers and Specialists), or less than one year (for Trainees).
While there is no express minimum salary threshold, the employee’s salary must be “according to market conditions.” Authorities have indicated that the minimum threshold applicable to Knowledge Migrants is acceptable, which is currently EUR €4,240 per month for those over 30 years-of-age and EUR €3,108 for those under 30 years-of-age.
 
These new regulations will have a significant effect on the popular Knowledge Migrant program: applications meeting the conditions of the new ICT Permit, but that are filed under the Knowledge Migrant program will be denied and must be resubmitted under the proper immigration stream. It is important to note that the primary determining factor between these two immigration options will be whether the employee remains on a foreign employment contract and payroll (ICT Permit rules apply), or whether they will be placed on a local Dutch employment contract and payroll (Knowledge Migrant rules apply).
 
While there may be some opportunity for companies to select the desired permit for a particular assignment by restructuring the employment relationship, companies should consult their labor counsel and immigration advisors prior to any change in their current plans. Sponsoring companies will not have the option to merely choose whether to apply as an ICT or a Knowledge Migrant.
 
Application Process and Procedures Still to be Announced
The details of the application process are still being formulated, and we hope to receive further guidance from IND in the coming days before implementation. However, it is likely processes will generally mirror those under the Knowledge Migrant scheme. Processing times for ICT Permits are estimated to be 90 days for standard adjudication and two weeks through the expedited process for Authorized Sponsors.
 
During the transition to the new permit, applications filed before the November 29 implementation date will handled under whichever scheme (either the ICT Permit or Knowledge Migrant Permit) will produce the most favorable result for the company and employee applying. Where necessary, IND authorities have indicated that they will be reaching out to applicants regarding which permit is preferable in their case.
 
Employees Currently Holding Qualifying ICT Permits from Other EU Nations
Ultimately the greatest benefit to companies and employees of the ICT Permit will be the greater intra-EU mobility. However, this benefit is currently limited until more nations adopt the EU Directive. Under the rules, foreign nationals who meet the above profile of an ICT worker and who already hold a qualifying ICT Permit from one of the other issuing EU-member nations (currently Spain, Romania, Hungary, and France) can begin work immediately upon entering the Netherlands. The employee must merely register with the Dutch labor authority (UWV) once in-country.
 
Comparison to Knowledge Migrant Permit – Disadvantages and Advantages
As with all new immigration regulations, these changes will bring forth both positive and negative developments for sponsoring companies and foreign assignees alike.
 
Some disadvantages to the new rules do exist, including the reduction of the maximum duration of ICT assignments from five years to three years. Employees who previously qualified for Knowledge Migrant permits, which carried five-year maximum durations, but who will now be given ICT Permits, will be limited to a maximum assignment of three years. Once the foreign national has hit the three-year maximum stay, they must exit the Netherlands for a six-month “cooling-off” period before returning for an additional three years. As another draw-back, holders of ICT permits will not accumulate time towards residence rights in the Netherlands, unlike Knowledge Migrants.
 
On the other hand, additional advantages beyond the previously mentioned greater EU-mobility do exist. In order to sponsor employees for an ICT Permit, companies are not required to be “Authorized Sponsors,” though Authorized Sponsors will receive expedited processing and streamlined application requirements for ICT Permits. In addition, ICT Permit holders’ spouses and children under 18 years-of-age will be eligible for residence permits during the duration of the assignment which allow them to work in the Netherlands without additional work authorization, and all family members will be exempt from the civic integration exam.
 
How These Changes Affect You
In the long-term, the ICT permit will be a tremendous benefit for multinational companies and their non-EU national employees by providing standardized immigration processes throughout the EU and greater mobility using a single ICT Permit. The implementation by the Netherlands is a laudable step in the direction of that goal of greater intra-EU mobility. However, until the EU ICT Directive is implemented in more EU-member nations, sponsoring companies and assignees alike will see both advantages and disadvantages to the program, especially when compared to the current Knowledge Migrant scheme. Regardless, starting November 29, the only option available for employees assigned as Intra Company Transferees to the Netherlands will be the new ICT Permit.
 
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. We would like to remind you that Immigration laws are fluid and can change at a moment's notice without any warning.
Reduced Mileage Allowances for 2017 Released by IRS
On December 13, 2016, the IRS released its annual optional standard mileage rates that may be used in computing automobile deductions during 2017. See Notice 2016-79, and IR-2016-79. Due to the sustained lower prices of fuel, the new mileage rate for business use of a vehicle is 53.5 cents per mile, down from 54 cents per mile in 2016. The rate for use of a vehicle for medical or moving purposes is 17 cents per mile, down 2 cents from 19 cents per mile in 2016. The charitable rate of 14 cents per mile does not vary from year-to-year because it is fixed by statute. These new rates are effective for travel on or after January 1, 2016.
 
The rates are based on an annual study of fixed and variable costs of operating an automobile conducted for the IRS by an independent contractor. The rates for business and moving differ because the rate for business use includes fixed costs such as depreciation, which are not allowed as medical or moving deductions. Both rates include variable expenses such as fuel. Taxpayers are also allowed to deduct items such as parking and tolls in addition to the standard mileage rate.
 
Use of the standard deduction rates is optional; taxpayers are always free to determine their own actual costs of operating a vehicle. However, such costs must be substantiated through detailed records, while the use of the standard rates avoids any need to substantiate the underlying costs incurred, although taxpayers must still maintain records of the miles driven and the purpose of each trip.
 
Notice 2016-79 also provides amounts by which taxpayers using the standard business mileage rate must reduce the basis in their automobile for depreciation that is included in the standard mileage rate. Those amounts are 23 cents per mile for 2013, 22 cents per mile for 2014, 24 cents per mile for 2015 and 2016, and 25 cents per mile for 2017.
 
Some companies use mileage rates higher than the standard rates to reimburse business travelers or transferees. In such cases, the excess amounts are treated as taxable wages, and are subject to withholding and payroll taxes. Amounts up to the standard mileage rates are excluded from the income of the employee. An employee cannot deduct moving expenses using the business travel rate. See Adamson v. Commissioner, 32 T.C.M. 484 (1973).
 
Posted by Peter K. Scott
Solar Panels: It’s Not Easy Being Green...
By Bet Mansfield, Vice President, Legal Services, Altair Global
 
Relocation Renewable energy gains in popularity; managing homes with solar panels.
 
In an increasingly “green” world, renewable resources are an important aspect of sustainability. According to the U.S. Energy Information Administration, the most frequently used renewable resources are biomass, geothermal, solar, water and wind. Unlike fossil fuels, we can regenerate or replenish these resources. Although biomass in the form of wood once supplied 90 percent of U.S. energy needs, all renewable energy sources combined supplied only about 8 percent of energy resources in 2009. With the rising cost and decreasing availability of nonrenewable fossil fuels, renewable resources are receiving increasing attention. Indeed, the International Energy Outlook 2016 projects renewables as the fastest-growing energy source – increasing 2.5% annually through 2040. While Europe has been at the forefront of renewable energy development and utilization, the United States and other developed nations are closing the gap.
 
Solar is the most abundant energy on the planet. The sun has produced energy in the form of heat and light since the Earth formed. The use of Photovoltaic (”PV”) panels that harness solar energy greatly reduces the cost of electricity, improves the electrical supply in various locations globally, and helps to improve the environment by drastically cutting carbon emissions. PV devices, or solar cells, directly convert solar energy into electricity, do not produce emissions and are often not harmful to the environment. Individual solar cells grouped into panels range from small applications that charge calculator and watch batteries, to large systems that power residential dwellings. Installing solar panels enable the homeowner to produce energy for personal use with excess energy added to the local grid through the sale of Solar Renewable Energy Certificates (“SRECs”). The homeowner pays less for the energy he/she consumes but also reaps the benefit of selling the excess, thereby creating a win/win situation.
 
Solar panels are typically installed on the roof of a residence. Panels may be purchased (ranging from $10,000 to upwards of $50,000 although federal tax credits reduce the cost) or leased (typically, $50-75 monthly) with terms of approximately 20 years. Purchased systems, with a life expectancy of approximately 25 years, will typically pay for themselves through sales of SRECs within about 10 years, leaving up to 15 years of free energy. Leases, while simpler, don’t carry the same financial benefits although, for those supporting “green” initiatives, the intangible benefits may outweigh the negative. However, Nevada recently signaled its intent to phase out solar subsidies, a move that will be closely watched by other states.
 
If it comes to light (via the property condition disclosure, BMA or appraisals) that a home authorized for homesale benefits is fitted with solar panels, below are suggested steps a relocation management company can take to address the situation.
  • Direct Reimbursement: The preferred method of handling homes outfitted with solar panels is to have the employee go through the direct reimbursement or an Assigned Sale program (i.e., the employee sells the home to a buyer willing to accept and assume the terms of the lease or contract; relocation management companies (RMCs) can often assist with closing via a power of attorney however, the employee remains liable if the sale fails to close).
  • Panels Owned, Client Directs RMC to Acquire:
    • Confirm the panels are, in fact, owned via a “paid in full” receipt;
    • Obtain unequivocal written confirmation from the client to proceed notwithstanding the presence of solar panels may limit the property’s marketability;
    • Verify the panels are covered by the employee’s homeowner’s insurance;
    • Contact the Solar Panel Company (as early as possible in the process) to explain
      • The 2-step process (RMC will not formally assume the contract but will honor terms as to credits; buyer will be required to assume all the other terms of the contract);
      • Obtain copies of all relevant documents including the assumption and assignment, warranties and any other documentation, all of which will be provided to the broker to be executed by the buyer.
    • Ensure that the panels have been inspected for functionality (age, etc.); and,
    • Include in the purchase agreement that Buyer acknowledges he/she/they are purchasing the solar panels, in “as is” condition, and request a “Release and Waiver” to be signed as part of the contract and again at closing.
  • Panels Leased, Client Directs RMC to Acquire:
    • Obtain copies of all documentation listed above along with a copy of the lease.
    • Notify the client, obtain unequivocal written direction to proceed notwithstanding the presence of solar panels may limit the property’s marketability;
      • Determine whether the client wants the lease paid in full (from the employee’s equity) or RMC to take subject to the lease.
    • Contact the Solar Panel Company (as early as possible in the process) to explain
      • The 2-step process (RMC will not formally assume the contract but will honor terms as to credits; buyer will be required to assume);
      • Obtain copies of all relevant documents including the assumption and assignment, warranties and any other documentation, all of which will be provided to the broker to be executed by the buyer;
      • Obtain information on termination – under what circumstances may the lease be terminated, when, how much, etc.
    • Verify the panels are insured by the lessor and obtain copies of the current Certificate of Insurance;
    • Ensure that the panels have been inspected for functionality (age, etc.); and,
    • Include in the purchase agreement that Buyer acknowledges he/she/they are purchasing the solar panels, in “as is” condition, and request a “Release and Waiver” to be signed as part of the contract and again at closing.
  • Valuation: If the property is authorized for the appraised value/Guaranteed Purchase Option, instruct the appraisers and broker to give values both with and without the solar panels. If/when a Guaranteed Purchase Option offer is extended, ensure the proper value (with/without) is utilized based on client direction.
Each RMC may also need to modify its process for addressing solar panels to fit its respective homesale programs.
Social Security Administration and IRS Provide 2017 Inflation Changes
The Internal Revenue Service and the Social Security Administration have released adjustments to benefits, deductions, and other items due to inflation for 2017.
 
The Social Security Administration addressed 2017 inflation adjustments in an October 18 News Release, and a Fact Sheet on 2017 changes. Unlike last year, there will be a slight benefit increase for 2017, and a corresponding increase to the maximum amount subject to the Social Security tax (usually referred to as the wage base). Benefits will increase by 0.3%, and the wage base will increase from $118,500 to $127,200 (note, however, that there is no wage limit for the Medicare portion of the tax). The rise in the wage base appears very large, and SSA offered no explanation for the size of the increase other than that it is the result of calculations under the prescribed formula. The effect, however, will be to substantially increase Social Security taxes for many employees and their employers.
 
In IR-2016-139, and Rev. Proc. 2016-55, the Internal Revenue Service provided its annual changes to tax items subject to inflation adjustments. There are 55 such provisions.
 
Some items increased slightly, while others are unchanged. For example, the standard deduction amounts for singles and married couples increases from $12,600 to $12,700 (couples) and from $6,300 to $6,350 for singles, but the personal exemptions remain the same.
 
The foreign earned income exclusion rises from $101,300 to $102,100. And the Alternative Minimum tax exemption amount goes from $53,900 to $54,300 for singles, and from $83,800 to $84,500 for married couples filing jointly. For high-income taxpayers subject to the 39.6% rate, the income at which that rate kicks in goes up from $415,050 to $418,400 for singles, and from $466,950 to $470,700 for married couples.
 
The penalties for failing to file, or filing incorrect, information returns such as Forms W-2, which were indexed for inflation after 2015, go up to $260 per return, with a maximum penalty of $3,218,500.
 
Unfortunately, for the first time in several years the excise tax on arrow shafts has increased, from 49 cents to 50 cents per shaft.
 
Posted by Peter K. Scott
CHINA - Major Overhaul of Work Permit System Started November 1
By: The Knowledge Management team at Pro-Link GLOBAL
 
China announced implementation of a new single-permit work authorization system for foreign nationals starting November 1. The new integrated system is a major overhaul of the Chinese employment immigration scheme and includes new electronic application submission and processing. The system also combines the current two permit categories – the foreign work permit and the foreign expert certificate – into a single permit with three occupation groups evaluated on a points-based system. The goal is to increase the population of highly-skilled foreign talent working in China.
 
China’s Labor Market and Rising Immigration
Since 1978, China has been steadily transforming itself from a centrally-planned economy into a market-driven economy. The economic reforms of the past forty years have resulted in the fastest sustained expansion by any major economy in the modern world, with average annual GDP growth of over 10 percent. Currently the world’s second largest economy, China is expected to surpass the United States to claim the top spot by 2020. While still a developing nation in some respects, and with significant regional disparities in personal income and standard of living, the rapid economic growth has lifted more than 800 million Chinese out of poverty, according to World Bank statistics.
 
Although China has historically been a country of significant emigration to the western world, the country has experienced a 35-fold increase in inbound immigration during that period. A 2015 report of the Center for China and Globalization revealed that almost 850,000 foreign nationals were residing in China – with the top five countries of origin for expatriate employees being the Republic of Korea, the United States, Japan, Burma, and Vietnam. A similar study by the HSBC Group ranked China the third most attractive country for foreign nationals working abroad, and unofficial estimates suggest that their number in China is now rapidly approaching one million individuals.
 
As the Chinese market economy matured and growth slowed somewhat in the last several years, the slower growth in heavy industry and manufacturing brought a relatively new phenomenon to China – corporate “lay-offs” and a low but measurable unemployment rate. However, that unemployment is primarily confined to the lower-skilled labor pool. In contrast, the Chinese high technology industry continues to expand and companies in that industry continue to experience an acute shortage of highly-skilled labor. It is precisely this shortage and China’s desire to continue the rapid expansion of its high-tech sector which has driven recent immigration reforms. Recent years have seen a loosening of immigration laws and procedures in an attempt to attract the needed highly-skilled foreign talent and encourage the return of highly-skilled Chinese nationals from overseas.
 
The Current System – What’s Changing?
Because significant immigration into China has been a relatively recent trend, the roots of its current national immigration scheme go back only to its first federal immigration law in 1986 and later refinements in 2012. Much of the current law and practice remains largely local - governed by provincial, regional, and municipal agencies. Therefore, immigration processes in China also vary greatly by region. Because those procedures and requirements differ depending on the location of the foreign national’s work assignment, the appearance to many is that applications are considered almost on a case-by-case basis. This has resulted in a notoriously difficult application process for employees and very little predictability of result for employers. However, a new system to be administered by the State Administration of Foreign Experts Affairs (SAFEA) is attempting to streamline and standardize China’s immigration practice into a unified national system.
 
A new integrated system will formally replace the current system nationwide April 1, 2017, but it will be launched on a trial basis on November 1 of this year in Beijing, Hebei, Tianjin, Anhui, Shandong, Guangdong, Sichuan, and the Ningxia Hui Autonomous Region. Those eight regions are home to the large majority of the companies employing foreign nationals in China.
 
Under the new system, a single permit will replace the current two employment permits – the Ministry of Human Resources and Social Security’s (MHRSS’s) foreign work permit and SAFEA’s foreign expert permit. “The integration of the two different work permits is designed to remove impediments, such as inconsistent administration, policies and inefficient communication related to different and often complicated issues related to the jobs, identities and social status of foreigners,” according to the head of SAFEA. “It will help reduce repetitious checks and approvals, avoid administrative loopholes and improve efficiency by building a more active, open and efficient personnel introduction system...”
 
A new electronic application procedure will reportedly allow applicants to complete and submit applications for the new single permit online. A permanent national code number will then be assigned to the applicant to link the applicant’s personal information and application through the system. The expectation is that this will reduce document submission requirements and significantly decrease the time for approval. Once approved through the new process, SAFEA will issue a “work permit card” equipped with a contactless RFID chip to link the foreign national to their immigration record. The new single work permit will be categorized into three groups - group A for “high-end personnel,” group B for “professional personnel,” and group C for “temporary and seasonal personnel in service and non-technical sectors.” Applicants in each group will then be evaluated on a points-based system, with points awarded based on salary, education, length of service, working hours in China, Chinese language proficiency, region of their workplace, age, and work experience. In evaluating work experience, SAFEA will reportedly also positively consider such criteria as the influence and reputation of the company sponsoring the applicant.
 
The specifics of how points will be awarded in each category have yet to be announced. However, the stated purpose of this new three-category, points-based approach is to greatly reduce the number of permits for lower skilled workers and to significantly increase the number of high-end talent workers receiving permits. The hope of both Chinese employers and foreign nationals in the highly-skilled occupations is that the net result will be greater availability of work permits for highly-skilled employees and a more transparent and efficient process for application.
 
How These Changes Affect You
The changes to China’s employment immigration scheme represent a major overhaul of the work permits process. This is a fundamental shift away from the current regionalized system to a more national standardized system. The new system should make the process for bringing highly-skilled foreign labor to China more convenient and predictable for employers and allow for more strategic workforce planning. For highly-skilled foreign nationals, especially those in the high technology sector, it should present more opportunities for employment in China, and the new electronic applications process should ease and speed the issuance of new work permits. However, for foreign nationals in what are considered “lesser skilled” positions, the new points-based system may lead to reduced employment opportunities in China.
 
With the November 1 starting date in the initial eight provinces fast approaching, there is a concern that SAFEA has yet to issue specific guidelines and procedures for work permit applicants to follow. While this is not necessarily unusual in the governmental process in China, it does present obvious uncertainty for employers anticipating employee assignments in the coming months. We believe the changes as currently announced by SAFEA are a major positive step for immigration in China. That being said, employers and employees will need to be prepared for some “growing pains” as the new system is implemented.
 
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. We would like to remind you that Immigration laws are fluid and can change at a moment's notice without any warning.
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