BAL Corporate Immigration - Berry Appleman & Leiden LLP

This newsletter is a compilation of Client Alerts sent between December 15, 2009 and January 15, 2010 as well as additional articles posted during this period on the Berry Appleman & Leiden LLP website.

USCIS Issues Guidance That Imposes New Evidentiary Requirements on H-1B Employers

January 14, 2010

Introduction
U.S. Citizenship and Immigration Services (USCIS) issued guidance on January 8th clarifying the requirements to establish an employer-employee relationship in the H-1B context. An employer who seeks to sponsor a temporary worker in an H-1B specialty occupation will be required to establish, through documentary evidence, a valid employer-employee relationship throughout the petition validity period. The sweeping and controversial new guidance will change the way employers prepare, and USCIS adjudicates, most H-1B petitions.

Employer-Employee Relationship
H-1B regulations currently require that a United States employer establish that it has an employer-employee relationship with the beneficiary of the petition. The memorandum states that the lack of guidance on this issue has made it difficult for USCIS adjudicators to determine whether such a relationship exists, especially when petitions involve independent contractors, self-employed beneficiaries, and beneficiaries placed at third-party worksites.

When determining whether an employer-employee relationship exists, USCIS will evaluate whether the petitioner has the "right to control" the beneficiary's employment, such as when, where and how the beneficiary performs the job. USCIS will consider the following, with no one factor being decisive:

Does the petitioner supervise and is such supervision off-site or on-site?
If the supervision is off-site, how does the petitioner maintain such supervision?
Does the petitioner have the right to control the work of the beneficiary on a day-to-day basis if such control is required?
Does the petitioner provide the tools or instrumentalities needed for the beneficiary to perform the duties of employment?
Does the petitioner hire, pay, and have the ability to fire the beneficiary?
Does the petitioner evaluate the work-product of the beneficiary?
Does the petitioner claim the beneficiary for tax purposes?
Does the petitioner provide the beneficiary any type of employee benefits?
Does the beneficiary use proprietary information of the petitioner in order to perform the duties of employment?
Does the beneficiary produce an end-product that is directly linked to the petitioner's line of business?
Does the petitioner have the ability to control the manner and means in which the work product of the beneficiary is accomplished?

According to the memorandum, the petitioner will have met the test if, in the totality of the circumstances, a petitioner is able to present evidence to establish its right to control the beneficiary's employment. The petitioner must also be able to establish that the right to control the beneficiary's work will continue to exist throughout the duration of the beneficiary's employment term with the petitioner.

Examples of Different Employment Relationships
The memorandum outlines several different employment relationships, some of which would satisfy the requirements of an employer-employee relationship and some of which would be prohibited under the new guidance.

Significantly, USCIS states that an H-1B beneficiary may be placed at third-party worksites (both for short-term and long-term assignments). However, the petitioner must establish that the petitioner will have the right to ultimate control of the beneficiary's work. In contrast, USCIS states that "job shops," where the beneficiary reports to a manager of the third-party company, the petitioner does not control how the beneficiary will perform the work assignments, and no proprietary information of the petitioner is used, are prohibited.

The memorandum also states that, for self-employed beneficiaries and independent contractors, the petitioner must establish that the petitioning entity (i.e., the corporation), and not the beneficiary, will control the work. This issue remains particularly unsettled, and we expect the memorandum will muddy the issue even further.

Documentation to Establish the Employer-Employee Relationship: Initial H-1B Petition
The petitioner must clearly show that an employer-employee relationship will exist throughout the duration of the requested H-1B validity period. The memorandum outlines examples of evidence that a petitioner may submit to establish an employer-employee relationship. USCIS was careful not to require any particular evidence, as only the evidentiary requirements set forth in the regulations may be required. An employer is therefore allowed to submit similar, probative evidence. Though USCIS was careful not to run afoul of the regulatory requirements, employers should expect additional scrutiny when relying on evidence that is not listed in the USCIS memorandum.

According to USCIS, a petitioner can establish the employment relationship and the right to control by providing a combination of the following or similar types of evidence:

A complete itinerary of services or engagements that specifies the dates of each service or engagement, the names and addresses of the actual employers, and the names and addresses of the establishments, venues, or locations where the services will be performed for the period of time requested;
Copy of the signed employment agreement between the petitioner and the beneficiary detailing the terms and conditions of employment;
Copy of an employment offer letter that clearly describes the nature of the employer-employee relationship and the services to be performed by the beneficiary;
Copy of relevant portions of contracts between the petitioner and a client that establishes that the petitioner will continue to have the right to control its employees;
Copies of signed contractual agreements, statements of work, work orders, service agreements, and letters between the petitioner and the authorized officials of the ultimate end-client companies where the work will actually be performed by the beneficiary;
A description of the performance review process; and/or
Copy of the petitioner's organizational chart, demonstrating the beneficiary's supervisory chain.

Documentation to Establish the Employer-Employee Relationship: Extension of H-1B Status (Same Employer)
When applying for an extension of H-1B status (involving the same petitioner, without a material change in the terms of employment), the petitioner must submit evidence to document that it maintained a valid employer-employee relationship throughout the initial H-1B status approval period. Such evidence might include:

Copies of the beneficiary's pay records for the period of the previously approved H-1B status;
Copies of the beneficiary's payroll summaries and/or W-2 Forms for the period of the previously-approved H-1B status;
Copy of Time Sheets for the period of the previously-approved H-1B status;
Copy of prior years' work schedules;
Documentary examples of work product created or produced by the beneficiary for the past H-1B validity period;
Copy of dated performance review(s); and/or
Copy of any employment history records.

Requests for Evidence
The memorandum seeks to address the problems relating to Requests for Evidence (RFEs) that many employers have experienced over the past few years. It is too early to know what effect, if any, the new guidance will have on that issue. The memorandum states that USCIS may issue a RFE when USCIS believes that the petitioner has failed to establish eligibility for the benefit sought. However, such RFEs must specifically state what is at issue and be tailored to request specific illustrative types of evidence from the petitioner that refer directly to what USCIS deems as deficient.

Itineraries
When an employer will provide service in more than one location, the petition must include an itinerary with the dates and locations of the services. That requirement has existed under current regulations, but employers should expect that adjudicators will strictly apply the requirement going forwards. See 8 C.F.R. § 214.2(h)(2)(i)(B).

Shorter Petition Validity Periods?
Employers should pay particular attention to the fact that the memorandum, in multiple places, states that the petitioner must establish the requisite employer-employee relationship throughout the requested validity period of the petition. In the past, USCIS routinely approved petitions for up to three-years, even if the employer did not provide underlying documentation to support the beneficiary's activities for all three years. Going forward, employers should expect that USCIS will only approve a petition for the period of time established by the underlying documents. Many businesses may not have contracts in place for employment that will occur a year or two down the road. Those businesses may be required to file multiple H-1B extensions.

BAL Comment: BAL, in coordination with the Global Personnel Alliance (GPA), has been actively engaged with USCIS leadership on the issues of H-1B evidentiary requirements. Those discussions will continue following issuance of the memorandum. Employers, however, must adapt and revise how they prepare and submit H-1B petitions. The memorandum is effective immediately, and employers that do not submit the requisite documentary evidence will receive RFEs.

- Berry Appleman & Leiden LLP

Travel Delays Expected as Homeland Security Outlines New Travel Security Recommendations

January 11, 2010 - In a January 7, 2010 press release, Department of Homeland Security (DHS) Secretary Janet Napolitano announced recommendations made to the White House on revisions and enhancements to existing travel security measures. This action is a direct result of the order issued by President Obama to review travel security procedures following the attempted terrorist attack on December 25, 2009. DHS now aims to strengthen travel security within the United States and abroad through enhanced law enforcement and technology efforts.

Secretary Napolitano's Recommendations

1. Modify the process used to create terrorist watch lists, including adjustments to the criteria and processes for the "No-Fly" and "Selectee" lists.

2. Work in partnership with the Department of Energy to develop new and more effective technologies that can deter and disrupt known threats and to anticipate and protect against new ways by which terrorists could seek to board an aircraft.

3. Accelerate deployment of advanced imaging technology to provide greater explosives detection capabilities.

4. Strengthen the presence and capacity of aviation law enforcement.

5. Work with international partners to strengthen international security measures and standards for aviation security.

Travel and Visa Implications

Beyond the above-listed DHS recommendations, additional enhancement activities have been put in place at domestic and international airports following the attempted December 25, 2009 attack. These travel security enhancements "mandate enhanced screening of every individual flying into the United States from or through nations that are State Sponsors of Terrorism or other countries of interest and the majority of all passengers traveling on U.S.-bound flights."[1] Those countries of specific interest include: Afghanistan, Algeria, Bahrain, Bangladesh, Cuba, Djibouti, Egypt, Eritrea, Indonesia, Iran, Iraq, Jordan, Kuwait, Lebanon, Libya, Malaysia, Morocco, Nigeria, Oman, Pakistan, Qatar, Saudi Arabia, Somalia, Sudan, Syria, Tunisia, U.A.E., and Yemen.

Travelers can expect to see significant increases in travel security measures, resulting in noticeable delays. Extensive background and security checks on visa applications will likely result in lengthier wait times for visa application approvals. While these security checks are being processed, the consulate will not provide applicants with any specific details on the processing of their cases. Therefore, visa applicants should be aware that, if they experience delays with the processing of their applications, security clearance checks may be underway.

Even if a foreign national's visa is approved or he or she already holds a valid visa, a foreign national can still expect enhanced pre-flight inspection procedures and secondary inspections at ports of entry. Although special attention will be shown to individuals traveling internationally from countries that are recognized by the United States government as state sponsors of terrorism or specific other countries of interest, it is expected that all international travelers will experience delays. Foreign nationals and their employers should plan accordingly and allow for significant delays in international travel schedules.

BAL Comment: BAL encourages employers and foreign nationals to plan for international travel delays and potentially lengthy visa application processing. BAL is prepared to assist employers and foreign nationals with visa application filings, and the firm continues to provide counsel to employers and foreign nationals on visa application processing, pre-flight inspection processes, and port-of-entry inspections.

- Berry Appleman & Leiden LLP

[1] DHS Press Release, Secretary Napolitano Outlines Five Recommendations To Enhance Aviation Security (Jan. 7, 2010).

USCIS Confirms H-1B Cap Has Been Reached for FY2010

December 22, 2009 - U.S. Citizenship and Immigration Services (USCIS) has confirmed that, as of December 21, 2009, a sufficient number of cap-subject petitions have been filed with USCIS to meet the FY2010 statutory limitation ("H-1B Cap"). Cap-subject H-1B petitions received on December 21, 2009 will be subjected to a computer-generated random selection process, and cap-subject petitions received after December 21, 2009 will be rejected.

BAL Comment: USCIS will begin accepting H-1B petitions for FY2011 on April 1, 2010. FY2011 H-1B petitions may have a start date of no earlier than October 1, 2010. BAL encourages employers not to delay in beginning the process for cap-subject FY2011 H-1B petitions.

- Berry Appleman & Leiden LLP

UNITED KINGDOM - Significant Delays in Extending Tier 2 Work Permit Status

January 11, 2010 - On January 6, 2010, the UK Border Agency (UKBA) implemented the requirement that all sponsored, skilled foreign workers (i.e., Tier 2 workers) and their accompanying family members must obtain Identity Cards for Foreign Workers (ICFNs). As a result, it may now take at least two to three months for Tier 2 workers and their families to renew their status (i.e., obtain Further Leave to Remain or FLR). Additionally, companies filing postal FLR applications on behalf of their sponsored workers and their dependent family members should advise all FLR applicants that they may be without their original passports, and therefore unable to leave the UK, for at least two months during the FLR process.

The UKBA is requiring ICFNs for all Tier 2 foreign nationals (except those from the European Economic Area and Switzerland) for both Intra-company Transfer (ICT) and General categories and for their accompanying dependents submitting applications from within the UK.

As of December 14, 2009, the minimum period for a licensed UK company sponsor to advertise externally for a vacant skilled-worker position was extended from two weeks to four weeks in connection with a Tier 2 General worker application. Therefore, UK companies intending to continue a Tier 2 General assignee’s work authorization (Certificate of Sponsorship or COS) must advertise most COS positions in the UK labor market for at least four weeks. This new advertising requirement adds significant time to the already lengthy FLR process. Also, there has been substantial reduction in the available number of fast-track or premium (i.e., 10-day) processing slots to expedite FLR applications.

Additional information on other types of categories requiring ICFNs and the general application protocols can be reviewed in our December 18, 2009 client alert: http://www.balglobal.com/resources_details.asp?newsid=1427&l1=News&l2=Global%20News&year=2009.

BAL Comment: Clients renewing their sponsored assignees’ status should not expect to receive FLR fast-track/premium processing slots until at least April 2010. In the interim, given the overseas travel restriction and lengthy FLR processing times of least two months, companies and assignees may find FLR applications in the UK to be prohibitive for assignee business travel. Therefore, once a new COS is issued in-country, it may be advantageous for the assignee and family members to return to their home country to obtain visas (i.e., entry clearances) from a British consular post. Depending on the consular post, two to four weeks may be needed for scheduling biometric (i.e., fingerprints and digital photograph) appointments and for processing most entry clearance applications.

This information has been provided by the BAL Global Practice group and our network provider located in the UK. For additional information, please contact GlobalVisaGroup@balglobal.com.

- Berry Appleman & Leiden LLP

UNITED KINGDOM - UK Border Agency Intends to Increase Qualifying Experience for Intra-Company Transfers; and Tier 2 Route to Settlement May be Closed

January 11, 2010 - On January 6, 2010, the British government responded to claims by the Association of Professional Staffing Companies that the Tier 2 Intra-Company Transfer (ICT) category of the Points-Based System (PBS) is providing a loophole for Indian information technology companies to bring foreign workers into the UK and that some UK companies are not paying foreign skilled workers the appropriate prevailing wages. [Please see BAL's November 30, 2009 client alert regarding the related proposal by the UK Border Agency's Migration Advisory Committee http://www.balglobal.com/resources_details.asp?newsid=1405&l1=News&l2=Global%20News&year=2009.]

The ICT category is for non-European Economic Area and non-Swiss national employees of multinational companies who are being transferred by overseas employers to skilled jobs in UK-based branches of the same organizations and who have worked for the organizations for at least six consecutive months outside the UK immediately prior to the application dates. It has been claimed that the ICT route has enabled employers within information technology and other sectors to fill positions by transferring workers to the UK who are being paid less than resident workers are paid. Also, at present, the Tier 2 ICT category is a path to settlement [i.e., permanent residence or Indefinite Leave to Remain (ILR)] once the foreign worker evidences that he or she has remained in work permit/ Tier 2 status in the UK for at least five consecutive years.

The UK Border Agency (UKBA) has advised that by spring 2010 (likely April or May) it will be amending the requirements for the Tier 2 ICT category so that workers will need 12 consecutive months of qualifying experience (instead of six months as currently required) immediately prior to their transfers to the UK. Additionally, the UKBA announced its plans to close the Tier 2 category as a route to ILR.

BAL Comment: Assignees who qualify to apply for ILR status may want to file their ILR applications before the law changes. Assignees who will start their UK positions this spring should have at least 12 consecutive months of qualifying experience immediately prior to their UK transfers.

This information has been provided by the BAL Global Practice group and our network provider located in the UK. For additional information, please contact GlobalVisaGroup@balglobal.com.

- Berry Appleman & Leiden LLP

SWEDEN - Closure of Consular Posts in Los Angeles and New York

January 11, 2010 - In a January 4, 2010 press release, the Swedish Embassy announced the closure of its consulate in New York and the opening there of an Honorary Consulate, which provides certain services to Swedish citizens and handles commercial, cultural and public affairs. The Embassy closed its consulate in Los Angeles in November 2009.

The Swedish Ministry of Foreign Affairs has advised that, due to national budget constraints, the Ministry plans to close more consular posts by the end of 2010 as part of a broader cost-savings effort to reduce the Ministry’s overseas real estate obligations and to streamline staffing.

BAL Comment: U.S. citizens and foreign national applicants having qualified legal status in the United States, Puerto Rico and the U.S. Virgin Islands should forward all visa applications to the Embassy of Sweden in Washington, D.C.

For further information, please see http://www.swedenabroad.com/News____7067.aspx?slaveid=100918.

This information has been provided by the BAL Global Practice group. For additional information, please contact GlobalVisaGroup@balglobal.com.

- Berry Appleman & Leiden LLP

NIGERIA - Update on Issuance of E-Passports

January 7, 2010 - Starting in March 2009, the Nigerian government introduced e-passports, which are secure passports containing a microchip with the biometric data of the passport holder. These e-passports were introduced as a measure to curb the illegal use and fraudulent creation of passports.

E-passports were previously only available at Nigeria’s consulates in London, New York, Johannesburg, New Delhi and Madrid. However, the Nigeria Immigration Service recently announced that e-passports are now available at its consulates in Poland, Greece, Ukraine, Austria, Malawi, Botswana, Ethiopia, Cameroon, Togo, Namibia and Zambia. Additionally, plans are in place to make these passports available at its consulates in Australia and Ireland in the very near future (exact date yet to be determined).

BAL Comment: The Nigeria Immigration Service has further stated that eventually it plans to phase out all prior passport versions, but BAL notes that a date has not yet been set by when this will occur. BAL will continue to post updates to the issuance of Nigeria e-passports, including the formal announcement by the government of when this document will be made available at additional consular posts worldwide.

This information has been provided by the BAL Global Practice group and our network provider located in the Nigeria. For additional information, please contact GlobalVisaGroup@balglobal.com.

- Berry Appleman & Leiden LLP

PHILIPPINES - Payment of "Annual Report" Fee Required Prior to March 1, 2010

January 6, 2010 - The Philippines Bureau of Immigration (BI) issued a January 4 reminder that all registered foreign nationals (i.e., permanent and temporary residents in the Philippines) must report, in person, to the BI's Aliens Registration Division office, or to the local BI sub-office nearest their places of residence, to submit payment of Annual Report (AR) fees no later than March 1, 2010. Failure to pay the fee could result in an administrative fine and/or, while unlikely, possible imprisonment. Certain special regulations and exemptions regarding payment of this fee may apply for foreign national children under age 14.

Payment of fees must be made in person or by a legal representative/liaison officer recognized by the BI. Applicants must present the following:

Original Alien Certificate of Registration (ACR) paper permit or original ACR I-Card;
Certificate of Residence (CR);
If applicable, an Official Receipt evidencing payment of previous AR fees;
An individual notarized Special Power of Attorney (SPA) executed by each holder of an ACR or ACR I-Card, if fees are submitted by a legal representative or liaison officer;
Cash payment of the AR fee of Php300.00 (approximately US$6.50) and a nominal Legal Research fee of Php10.00 (approximately US$.10); and
Additional cash payment of Express Lane fee of Php500.00 (approximately US$11.00) if documents are submitted by a legal representative or liaison officer.

BAL Comment: Companies with assignees in the Philippines should notify each assignee of the March 1st deadline to pay the AR fee. As reported in BAL's December 30, 2009 client alert (http://www.balglobal.com/resources_details.asp?newsid=1432&l1=News&l2=Global%20News&year=2009), the BI has issued comprehensive changes to the laws affecting foreign nationals who require ACR I-Cards. Under the new ACR I-Card guidelines, both long-stay business visitors (i.e., those whose visits exceed 59 consecutive days in a single visit) and short-term assignees holding Special Work Permits (SWPs) are required to obtain ACR I-Cards. Given these new requirements, it is possible that the BI may waive payment of the AR fees for certain persons who hold ACR I-Cards. Therefore, ACR I-Card holders are encouraged to confirm with the main BI office in Manila, or with their local BI sub-offices, whether they in fact must pay the AR fees.

This information has been provided by the BAL Global Practice group and our network provider located in the Philippines. For additional information, please contact GlobalVisaGroup@balglobal.com.

- Berry Appleman & Leiden LLP

ISRAEL - Ministry of Interior Conducting On-Site Worksite Inspections

January 4, 2010 - Beginning this week, inspectors with the Israeli Ministry of Interior (MOI) are expected to conduct both announced and surprise worksite inspections of local and multinational companies. An intense round of random, announced and surprise inspections is expected to occur during the first quarter of 2010. Yesterday, January 3, 2010, the MOI began notifying specific Israeli companies and their immigration advisors of pending on-site inspections of premises and of company immigration compliance files. Although there has been no official announcement by the MOI, it is likely that MOI inspectors are auditing Israeli companies primarily to ensure full compliance with Israeli prevailing wage laws for B-1 "Foreign Expert" workers, which is used by most multinational companies for seconding and transferring skilled or specialized-knowledge workers, intra-company managers and similarly situated foreign workers.

Inspectors will be auditing Israeli companies on maintenance of in-house files relating to the employment of Foreign Experts and will also be confirming that all Foreign Expert workers are paid at least the minimum monthly Israeli prevailing wage of 16,000 NIS (approximately US$4,220). Under MOI regulations, Israeli employers are required to maintain public access files containing the following information on behalf of each foreign worker:

a) Confirmation that the worker has suitable accommodation in Israel;

b) Proof that the worker is paid the mandated monthly prevailing wage;

c) Confirmation that the worker has adequate international medical insurance; and

d) A copy of either the worker's contract of employment or assignment letter (if the worker is a seconded or intra-company transferee), stating the salary, position title and nature of the assignment in Israel.

Although this inspection is to verify that Foreign Experts are being paid the minimum prevailing wage, inspectors may also request other documents, such as each foreign worker's medical insurance policy and proof of adequate housing (e.g., individual leases or proof of corporate housing). Failure to pass inspection may lead to civil and criminal actions against Israeli companies and individual host company managers, as well as to denial of future applications by non-compliant companies for work visas and renewals.

BAL Comment: Companies with assignees in Israel should immediately contact Israeli host company HR representatives to review the possibility of surprise inspections by the MOI. Israeli HR representatives should also ensure that the company's public access files have the above-required documentation for each foreign worker, particularly for those workers in the Foreign Expert category.

This information has been provided by the BAL Global Practice group and our network provider located in Israel. For additional information, please contact GlobalVisaGroup@balglobal.com.

- Berry Appleman & Leiden LLP

UNITED KINGDOM - New Immigration Guidance for Corporate Restructuring and Takeovers

January 4, 2010 - The UK Border Agency (UKBA) has published its December 15, 2009 guidance clarifying immigration requirements and protocols for British companies that sponsor foreign workers, in situations involving a corporate restructuring (e.g., a divestiture or merger) or an outright takeover that directly affects the sponsoring company’s UK operations.

Since November 27, 2008, British companies that employ foreign workers have been required to be registered with the UKBA as licensed sponsors prior to submitting Certificate of Sponsorship (COS) applications on the UKBA’s Sponsored Management System (SMS) on behalf of foreign workers. National or international changes in corporate ownership may impact sponsorship. Changes which may affect an organization’s sponsorship include the following:

the organization is taken over by another organization;
a different or new organization takes over part of an existing organization; or
part of an existing sponsor organization splits to form a new organization that does not yet have a sponsor license, with at least some foreign workers being transferred to the new organization.

The UKBA’s guidance explains a British sponsor’s duty to report a change of conditions with regard to existing COS workers and the tasks that a new sponsor must undertake to sponsor foreign workers.

BAL Comment: Companies that anticipate any type of restructuring or takeover that will affect their UK operations should, well in advance of such changes, review the coordination and timing of de-registration of current sponsor licenses with the UKBA, the ability for new organizations to qualify with the UKBA as new licensed sponsors (if required), and compliance with documenting changes of conditions for all affected COS workers.

This information has been provided by the BAL Global Practice group and our network provider located in the UK. For additional information, please contact GlobalVisaGroup@balglobal.com.

- Berry Appleman & Leiden LLP

COLOMBIA - New Resolutions Enacted

December 31, 2009 – Colombia introduced several new resolutions and decrees in December 2009, and summaries of each of these announcements are included below.

Circular Letter 172 - This resolution states that documents issued by Colombian consuls acting as notaries will be recognized as legal documents and do not need to be further authenticated or endorsed by the Ministry of Foreign Affairs.

Opinion 020,308 of 2009 – This opinion reconfirmed that new citizens may use their provisional receipts to perform certain administrative and commercial activities while they are awaiting their citizenship certificates from the National Registration office. To be considered an official provisional receipt, the document must contain a bar code, applicant details including date and place of birth, preparation number, the Municipal Registrar’s signature, and the right index fingerprint of the applicant.

Decree 4515 of November 2009 – This decree states that foreigners who purchase qualifying items in the border areas of the country may apply for VAT refunds. Such tax refund requests may be made within 30 days of the time of the purchase.

Resolution 4700 of 2009 – This resolution establishes the requirements for Colombian visa types included in a prior decree (Decree 4000 of 2004, subsequently amended by Decree 2622 of 2009, which was made effective on December 1, 2009). This is an update to BAL’s prior posting of August 25, 2009, the full text of which may be found here.

The following is a summary of these enacted changes:

A single visa form was adopted, regardless of application type;
The requirements for obtaining a business visa are no longer published, and eligibility to be admitted in this category will be determined by the officer at the port of entry;
A new student visa requirement was introduced for private schools devoted to non-formal education;
A new visa category was introduced that will permit a partner or owner of any commercial establishment/operation to obtain a Special Temporary Visa;
The qualifying amounts in order to obtain an investor visa were raised to $100,000 (for direct foreign investment) or $200,000 (for investments devoted to property acquisition);
The eligibility criteria for a qualified resident visa have expanded to allow the mother and father of any Colombian citizen to apply for the qualified resident visa; and
Amendments have been made to the application process for changing employer and occupation.

This information has been provided by the BAL Global Practice group and our network provider located in Colombia. For additional information, please contact GlobalVisaGroup@balglobal.com.

- Berry Appleman & Leiden LLP

ARGENTINA - New “Entry Request Fee” for Certain Foreign Nationals

December 30, 2009 - The Argentine Ministry of Interior has recently implemented a new Entry Request Fee for citizens of 22 countries that charge visa fees to Argentineans (e.g., Australia, Canada and the United States). This is a "reciprocal fee" equivalent to the fees currently charged to Argentineans when they request visitor visas at designated countries' consular posts in Argentina. Examples of the new fees are US$100 for Australians, US$70 for Canadians, and US$131 for U.S. citizens.

At this time, the only Argentine port of entry implementing fee payment is the Ezeiza International Airport in Buenos Aires (Aeropuerto Internacional de Ezeiza "Ministro Pistarini"). Implementation of fee collection at other Argentine ports of entry may also be announced later in 2010. According to current understanding, with the exception of U.S. citizens and Argentine dual nationals, fees must be paid upon each entry for each traveler, including accompanying minor children, entering for business or tourism. Under the new decree, a U.S. passport holder arriving in Argentina for business or tourism will pay a one-time reciprocity fee and will receive a 10-year entry stamp (not a visa endorsement), which will be affixed in his or her passport. Should a U.S. traveler's passport expire prior to the expiration of the 10-year stamp, it is expected that entry will be permitted by presenting both the old and new U.S. passports to immigration control.

Argentine immigration law may require certain nationals (e.g., Canadians) to obtain business visas prior to entering Argentina even though these same nationals may enter Argentina as visa-exempt tourists. The port-of-entry fee will be waived for any person entering Argentina with a visa endorsed by an Argentine consular post.

Due to international currency fluctuations, visa application fees charged to Argentine applicants by other countries' consular posts may suddenly change. Therefore, Argentine "Entry Request Fees" may also change with little to no advance public notice. Payment is accepted in cash (Argentine Pesos and U.S. dollars), credit cards or traveler's checks. For ease and security, travelers may prefer to pay entry fees with their credit cards. However, business travelers intending to pay in cash should carry additional cash to cover any unexpected increase in fee.

BAL Comment: Since this is a new implementation announced over the Christmas/New Year holiday period, not all Argentine ports of entry may be aware of this decree or be prepared to accept cash and credit cards at immigration control desks. For the next few months, Australian, Canadian, U.S. and all other affected foreign national employees traveling to Argentina may encounter some confusion or delays at the Argentine ports of entry until these new fee acceptance procedures are firmly in place.

This information has been provided by the BAL Global Practice group and our network provider located in Argentina. For additional information, please contact GlobalVisaGroup@balglobal.com.

- Berry Appleman & Leiden LLP

AUSTRALIA - Reminder: January 1, 2010 Market Rate Salary Requirements for All Subclass 457 Visa Holders

December 30, 2009 - As reported in BAL's October 8, 2009 client alert, individuals holding 457 Visas granted before September 14, 2009 must have market rate salaries in place by December 31, 2009. [For BAL's October 8, 2009 client alert, click here.] The previously mandated 38-hour work week (required for determining Australian minimum salary levels) is not applicable to the market rate salary mechanism. Individuals receiving salaries over A$180,000 are exempt from the new market rate requirement.

The Australian Department of Immigration and Citizenship (DIAC) also introduced the concept of Temporary Skilled Migration Income Threshold (TSMIT). TSMIT is effectively a "salary safety net" for temporary residents. DIAC has set the TSMIT at A$45,200 for all occupations eligible for the 457 program with the exception of IT occupations. IT occupations have a higher TSMIT of A$61,920 or $55,725 (regional Australia concession). If a market rate salary is below the TSMIT, a 457 Visa cannot be granted.

BAL Comment: BAL is available to assist employers with determining appropriate Australian market rate salary calculations, assembling the appropriate documents to evidence market rate salaries, and meeting TSMIT requirements.

This information has been provided by the BAL Global Practice group and our network provider located in Australia. For additional information, please contact GlobalVisaGroup@balglobal.com.

- Berry Appleman & Leiden LLP

PHILIPPINES - New Immigration Requirements Announced

December 30, 2009 - The Philippines Bureau of Immigration (BI) recently issued a Memorandum Order to add "non-restricted" (i.e., visa-exempt) foreign nationals and specific other foreign nationals to the list of persons required to register for Alien Certificate of Registration Identity Cards (ACR I-Cards). The BI has also made several other announcements that will affect assignees working in the Philippines, as discussed below.

Changes to ACR I-Card Requirements

The new ACR I-Card requirements are not expected to become effective until sometime in January 2010. The BI's purpose in implementing new ACR I-Card requirements is to improve the monitoring of temporary visitors in the Philippines, especially visitors intending to remain in the Philippines for extended periods (i.e., beyond 59 days). The ACR I-Card is intended to be a single card for identity verification of all foreigners and to facilitate extension of status. The validity of the ACR I-Card will typically be granted for the amount of stay endorsed on a foreigner's visa or for the period permitted under the regulations governing stay in the Philippines. If the card is issued in conjunction with extending a visitor status, the maximum validity of an ACR I-Card is 12 months.

Persons applying for new ACR I-Cards must appear in person at the local BI office to submit their biometrics (i.e., fingerprints and photograph). It is not yet known if renewing an ACR I-Card will also require the holder's personal appearance. The ACR I-Cards are not travel documents and will neither permit entry to the Philippines or act as "Re-Entry Permits" if the cards are issued in conjunction with long-term visas.

The categories of foreign nationals required to apply for ACR I-Cards are as follows:

"9(a)" visa status for "non-restricted" foreign nationals and visa nationals entering the Philippines under Temporary Visitors Visa (TVV) status - It is anticipated that by January 2010, the BI will require that all "9(a)" visa holders obtain biometric ACR I-Cards when applying to the nearest BI office to extend stays beyond 59 days. Compliance with this requirement is especially important for foreign nationals attempting to switch status to longer-term work authorization. Visitors applying for successive extensions of stay with the BI may also be required to renew their visitors' ACR I-Cards as part of each extension process.
Temporary visitors who are granted Special Work Permits (SWP) or Special Study Permits (SSP) - SWP holders who are foreign professional athletes or professional performing artists whose stays in the Philippines do not exceed 59 days are exempt from ACR I-Card registration. SSP and SWP holders who successfully switch to another immigration status may be required to apply for new ACR I-Cards denoting their new status.
Visa holders in the following categories: "9(d)" (treaty traders), "9(f)" (students), "9(g)" (pre-arranged employment) and all other visa categories currently requiring ACR I-Cards. Foreign workers exempt from this requirement include persons who are sponsored by companies registered with the Philippines Economic Zone Authority (PEZA) and who individually qualify for "47(a)(2)" visa (Special Non-Immigrant Visa).

BAL Comment: Since the application protocols and conditions of application are to be implemented in January 2010, the BI may announce further changes to ACR I-Card registration with little or no advance notice. Employers should review their current business visitor and assignee populations present in the Philippines to determine if visitors and work permit holders will require ACR I-Cards.

Regulations Concerning Re-Issuance of Special Work Permits (SWP)

SWPs are issued in conjunction with "9(a)" visitor visas to foreign nationals who are employed or engaged in short-term, seasonal or contractual employment in the Philippines. SWPs are very often used by IT companies, oil exploration companies and consulting firms to place specialized skill workers for short projects. SWPs are usually granted for an initial period of three months with a single, three-month extension available. Foreign nationals typically enter the Philippines under "9(a)" visitor status and file their SWP applications directly with the BI, which may take up to 3 weeks to process.

The BI rules regarding SWPs are that "the maximum validity of a special work permit is 6 months from date of issue. However, it is voided once the SWP holder/assignee leaves the Philippines within its validity period." The departure rule for SWP's can be problematic for assignees required to travel outside the Philippines during their assignments. If an assignee must depart the Philippines and return to continue his/her project, a new SWP application must be prepared in advance of the assignee's return; and an application for a new ACR I-Card may be required.

BAL Comment: It is advisable that assignees (especially "restricted nationals") on short-term assignments (i.e., six months or less) not be required to depart the Philippines for the duration of their assignments. If there is a reasonable chance an assignee will be required to travel overseas, the employer should review whether it would be appropriate to secure a "47(a)2" or a "9g" visa for short- term assignees.

New Department of Labor Protocols to Execute AEP Employment Contracts

The Philippines Secretary of Labor and Employment recently announced important clarifications regarding the execution of an assignee's employment contract in support of an Alien Employment Permit (AEP) application filed with the regional Department of Labor and Employment (DOLE) offices. The announcement clarifies when a labor contract is to be presented and how an assignee is to conduct all AEP application formalities. All foreign nationals on assignments exceeding six months must secure an AEP prior to commencing work.

The regional DOLEs have implemented several clarifications regarding submission of employment contracts with AEP applications (e.g., when AEP applications are to be filed with a regional DOLE office; whether an AEP application may be filed prior to the actual start date indicated in the assignment letter/employment contract; and whether assignees should execute their assignment letters/contracts prior to or after arrival in the Philippines.) To eliminate complexities with the immigration process, the DOLE and the BI strongly recommend that work visa applicants be physically present in the Philippines in valid visitor status (i.e., "9a" visa) when their applications are received by the DOLE and the BI.

New Exit Permit Requirement for "Non-Restricted" TVV Foreign Nationals

The BI's Memorandum Order also requires that all "non-restricted" TVV foreign nationals granted total stays of six months or more must request Emigration Clearance Certificates (an "ECC" or "exit permit") from the BI prior to departing the Philippines.

BAL Comment: Companies must carefully coordinate the filing of all Philippine work permit applications given the complex nature of timing visitor entries, the new ACR I-Card requirements, and the particular procedures for executing and filing Philippine work permit applications.

This information has been provided by the BAL Global Practice group and our network providers located in the Philippines. For additional information, please contact GlobalVisaGroup@balglobal.com.

- Berry Appleman & Leiden LLP

FRANCE - Increased Control by French Border Authorities

December 18, 2009 - Border officers at French ports of entry seem to be increasing their requests for arriving passengers to present appropriate and valid documentation confirming each passenger's immigration status in France. While there has not yet been a formal announcement regarding any changes to entry documentation requirements, the French border authorities have recently been requesting these documents from visitors and from work and residence permit holders entering France.

According to French immigration law, all citizens of non-European Economic Area (EEA) countries who are living in France and are traveling outside of France are required to present documents evidencing their valid status when re-entering the country. The customary immigration documents are as follows:

a valid residence permit ("carte de séjour" or "titre de séjour");
a valid visa;
a receipt of residence permit renewal application ("récépissé de demande de renouvellement de la carte de séjour") with an expired residence permit; or
a "circulation document" ("document de circulation pour étranger mineur" or a "DCEM") for minor children under age 18. [ The DCEM is a French travel document issued to children who have entered France and whose visas have expired. The DCEM confirms to French migration authorities that a child's parents are residents in France and the child is entitled to benefit from their residence status. This document is not issued to children until both parents have obtained their French residence permits.]

Assignees and their spouses who have applied for first-time French residence permits are issued receipts ("récépissé de première demande de titre de séjour") by the Préfecture until their residence permits are issued. Typically, French border agents have accepted a "récépissé" from individuals awaiting issuance of their residence permits, provided that their initial "Category D" visas are still valid. In the case of a minor child entering without a DCEM, border officers will usually allow the child to enter with an accompanying parent carrying a valid residence permit.

Since the "récépissé" is a national immigration document confirming that the foreign national is awaiting issuance of a French residence permit, a foreign national with a "récépissé" should remain in French territory until his or her residence permit is issued. Children without DCEMs are at risk of being unable to re-enter France since they would also be unable to prove their residence status. (Citizens of EEA countries and Switzerland are not affected by the "récépissé" requirements, as they are able to depart and re-enter France by presenting their national identity cards.)

BAL Comment: Given unofficial reports that French border agents may refuse entry (and possibly airlines with flights arriving in France may refuse boarding) to foreign nationals who are not EEA or Swiss nationals, and who do not possess the requisite immigration documents, BAL strongly advises assignees and their family members to ensure that they have appropriate documentation prior to traveling.

This information has been provided by the BAL Global Practice group and our network providers located in France. For additional information, please contact GlobalVisaGroup@balglobal.com.

- Berry Appleman & Leiden LLP

INDIA - Ministry of Home Affairs Considers New “P” Visa Category for 2010

December 18, 2009 - On December 7, The Times of India reported that the Indian Ministry of Home Affairs (MHA) is examining a proposal for a new “Project” (“P”) Visa category for foreign workers engaged in projects at the request of the Indian government. If cleared, the “P” Visa will be applicable only to government-sponsored infrastructure projects and projects considered to be of national strategic importance, such as work on military defense bases or building of national nuclear power facilities.

In response to the MHA’s recent national audit of foreign (largely Chinese) sub-skilled workers holding only business visitor (“B”) visas who had been performing paid project or contractual work in India, the MHA required many of these workers to depart and apply for employment (“E”) visas at Indian consular posts prior to continuing work on unfinished projects. However, numerous private Indian companies and government agencies have raised concerns that vital joint private-public infrastructure projects will not be completed or may incur substantial cost overruns for both Indian companies and the government.

The MHA does not presently envisage that the “P” category will be applicable for transferring traditional Information Technology (IT) professionals, consultants or intra-company assignees, since activities they perform are usually projects or long-term assignments which require “E” visas.

At this time, the MHA has not indicated to the Indian press when, or if, the “P” Visa category will become available. Also, policy covering details such as the validity of the visa, the application requirements, and foreign worker qualifications is likely to take at least several months to draft and be approved by the MHA and the Indian Government. BAL will continue to monitor any new developments with regard to the proposed “P” Visa category.

This information has been provided by the BAL Global Practice group and our network provider located in India. For additional information, please contact GlobalVisaGroup@balglobal.com.

- Berry Appleman & Leiden LLP

UNITED KINGDOM - Reminder: January 6, 2010 National Identity Card Requirement For Tier 2 In-Country Applicants

December 18, 2009 - This alert is a reminder that, effective January 6, 2010, the United Kingdom Border Agency (UKBA) will require national Identity Cards (ID Cards) for all foreign nationals, except those from the European Economic Area or Switzerland, under the Tier 2 Skilled Worker category (both Intra-company Transfer and General) and their accompanying dependents who are submitting applications from within the UK. This requirement is for Tier 2 Category workers and their dependents filing the following types of in-country applications:

Extension of status ("Leave to Remain");
Change of conditions of stay; or
Change of UK employers.

Persons filing in-country Tier 2 applications must again submit their biometric data to extend their "Leave to Remain" status in order to be issued with ID cards. Applicants will be able to submit their biometric data at designated Post Offices or at one of the UKBA Biometric Enrollment Centers.

UKBA Biometric Enrollment Centers (online appointments required): http://www.ukba.homeoffice.gov.uk/contact/contactspage/biometricenrolment/

Designated Post Offices (appointments not required): http://www.ind.homeoffice.gov.uk/contact/contactspage/post-office-biometric-enrolment/

ID Cards are not required for first-time Tier 2 applicants ("entry clearance" applicants). Also, existing Tier 2 work permit holders who are already in the UK and have "Leave to Remain" approval valid beyond January 6, 2010, will not be affected until such time as fresh applications must be made under Tier 2.

Further details regarding this requirement may be found in BAL's October 23, 2009 client alert: http://www.balglobal.com/resources_details.asp?newsid=1003&l1=News&l2=Global%20News&year=2009.

This information has been provided by the BAL Global Practice group and our network providers located in the United Kingdom. For additional information, please contact GlobalVisaGroup@balglobal.com.

- Berry Appleman & Leiden LLP

INDIA - India To Announce Tourist "Visa on Arrival" Scheme for Nationals of Five Countries

December 17, 2009 – India’s Ministry of Tourism issued the following statement today:

Ministry of Tourism had taken up the issue of introduction of Visa on Arrival (VOA) scheme for tourists coming from those countries which are potential source markets for India from where there are no security concerns. The Government has decided to introduce VOA scheme from five countries which are Singapore, Finland, New Zealand, Luxemburg and Japan on a pilot basis for a period of one year. The modalities of the implementation of the scheme are being worked out with all the stakeholders and will be notified very shortly.

- Berry Appleman & Leiden LLP

SWITZERLAND - Non-EU Work Permit Quota To Be Reduced by Half in 2010

December 16, 2009 - In response to a four-year high in unemployment figures, the Swiss government recently announced that the number of non-European Union (EU) work permits available in 2010 may be reduced to half the total number of work permits granted in 2009.

The government expects to grant a maximum of 2,000 residency permits and a maximum of 3,500 short-term residency permits next year. While it is possible that these numbers could be revised in June 2010, the measures are being implemented to protect the European workforce in Switzerland, which is suffering from unusually high unemployment levels. BAL will continue to monitor the situation and will advise if any further immigration restrictions are introduced as a result of the economic situation in Switzerland.

This information has been provided by the BAL Global Practice group and our network provider located in Switzerland. For additional information, please contact GlobalVisaGroup@balglobal.com.

- Berry Appleman & Leiden LLP

Disclaimer: This newsletter is intended as a report on legal developments. It is not intended as legal advice. Readers should not act upon the contained information without professional advice. No portion of this newsletter may be reproduced without express permission.