Monday, March 31, 2008

OVERSEAS WORKERS - SKILL SHORTAGES AND EMPLOYER OBLIGATIONS OF SPONSORSHIP

Michael Thornton
Thornton Immigration Lawyers
michaelt@thorntonimmigration.com.au

Skills shortages in the Australian workforce mean that many firms are looking to employ overseas workers. Employers choosing this option should first seek advice so that they are fully informed of their obligations. These include payment of minimum gazetted salaries, medical expenses and return travel costs for the worker and any family members in Australia.

In most situations these obligations are not excessively onerous but they need to be managed by the use of properly drafted employment contracts and private health insurance.

Employers also need to be aware that the Department of Immigration and Citizenship monitors the performance of employers who sponsor temporary overseas workers. This monitoring process involves the production of satisfactory proof that the employer is paying the agreed salary, superannuation and other benefits and that the worker is in fact working in the nominated occupation and not in some other role. In some situations, immigration officers will conduct unannounced visits to business premises and request production of the firm’s records, BAS statements and so on.

Firms should ensure that proper records are kept and that they are up to date. Failure to do this can be costly both for the firm and their sponsored workers. If a firm is found to be in breach of its undertakings it can have its approval as a sponsor cancelled or face other sanctions. The result of this may also be that the worker has to find an alternative employer at short notice or leave Australia. Workers who have planned to convert from temporary residence to permanent residence via employer sponsorship may also find this avenue closed if their employer is sanctioned for breaching undertakings.
Many thousands of Australian businesses are turning to sponsoring overseas workers using the 457 visa as a means of solving skills shortages. This is a valid strategy but care must be taken to manage the process and to fully meet sponsorship undertakings.

Monday, March 24, 2008

CANADA: NOVA SCOTIA IMMIGRATION PROGRAM FAILED APPLICANTS

Canadian HR Reporter

March 24, 2008

Immigrants don’t get much for $130,000

Nova Scotia scraps mentorship PNP and offers refunds

By Shannon Klie
An immigration program aimed at attracting business managers and entrepreneurs to Nova Scotia by promising them business mentorships was doomed from the start, according to an immigration lawyer.

Most immigrants want to settle in Alberta or British Columbia, because of the hot job market, or Ontario and Quebec, said Sergio Karas, a Toronto-based lawyer and chair of the Ontario Bar Association’s citizenship and immigration section.

“People in Nova Scotia and New Brunswick are making valiant efforts to reverse that trend but, let’s face it, the jobs are not there,” he said. “Immigrants are going to go wherever the jobs are and business immigrants are going to go wherever the money is.”

The Nova Scotia provincial nominee program’s (PNP’s) economic stream fast-tracked potential immigrants, who paid $130,000, to permanent resident status and promised them a minimum six-month mentorship with a local business, for which they would be paid a minimum of $20,000.

“It was designed to provide newcomers to the province with an opportunity to gain some exposure to the Canadian workplace,” said Mary Anna Jollymore, director of communications for the Nova Scotia office of immigration. The hope was they would then open their own business in the province, she added.

But with a softer economy, immigrants who came to Nova Scotia under the economic stream had a hard time finding mentorships with local businesses. Those who did find placements were often working well below their experience level.

“It wasn’t meeting the needs of many of the nominees who were coming through the program,” said Jollymore.

Of the $130,000 program fee, $100,000 went to the mentoring business and $30,000 went to administration fees, including a $20,000 immigration consultant fee.

PNPs in other provinces also have business or entrepreneurial streams, most of which require a minimum investment in a current or new business of up to $400,000 (usually with the requirement the immigrant own at least one-third of the company). Some provinces, such as Manitoba and Prince Edward Island, require the immigrant to make a good faith deposit with the provincial government, usually about $100,000, which the immigrant gets back when the business investment is made.

However, Nova Scotia’s economic stream differs because the immigrant doesn’t end up owning part of the company in which he has invested $100,000.

The economic stream program stopped accepting applicants on July 1, 2006. The unused mentorship fees are in a $75-million trust fund and last fall the government offered $100,000 refunds to participants who lived in Nova Scotia for 12 months but never found a mentorship. About 600 of the 800 participants qualified for the refund option.

However, about 75 immigrants who did find mentorships are petitioning the government for a refund of the difference between the $100,000 and what the mentorship paid. Some of these immigrants told the legislature’s public accounts committee last month they felt betrayed by the province because their experiences didn’t live up to the promise of the program.

A former department store manager from Tehran told the committee his boss at a fish company told him to stay home because there wasn’t any work for him. An Iranian psychiatrist spent his time at a construction company studying for Canadian medical tests.

Many immigrants who came to Canada under the program didn’t bother to stay in Nova Scotia and immigrants who found mentorships want the government to use the fees these immigrants forfeited for their refund.

There were, however, some success stories from the program. John Huang, a food exporter from China, had a year-long mentorship with the Atlantic Institute for Market Studies (AIMS) in Halifax, during which time he worked on research projects to improve trade between Atlantic Canada and Asia.

“As a think-tank, we exist to draw new and innovative thinking to public policy ideas. By going outside of the country, you get a guaranteed different perspective on things,” said Charles Cirtwill, the acting president of AIMS, who added that Huang brought a valuable perspective on immigration and trade policy.

While working at AIMS, Huang also set up his own China-Canada import-export business in Halifax, and he became a member of the city’s chamber of commerce.

Where the program fell short, in Cirtwill’s opinion, was in matching immigrants with businesses. Despite having paid a $30,000 administrative fee, it was Huang, not Cornwallis Financial, the organization that administered the program, who found AIMS and convinced the institute to take him on, said Cirtwill.

“It was that matching piece that they were never able to fulfil the promise of,” he said.

Nova Scotia is redesigning the economic stream into an entrepreneurial stream that will more closely resemble that of other provinces, said Jollymore.

“We’re still aiming to attract the same kind of individuals who have an interest in setting up their own business down the road or have skills that would meet the needs of the local labour market,” she said.

While the majority of immigrants to Canada aren’t choosing to settle in Nova Scotia, there has been an increase in the number of immigrants coming to the province since 2001, said Jollymore.

The province had 1,474 total landings in 2003 and that increased to 2,585 in 2006. The province wants to reach 3,600 annual landings by 2010 and increase its retention rate from 40 per cent in 2001 to 70 per cent by 2010, she said.

“While it’s all well and good to bring people into the province, at the end of the day you want them staying here,” she said. “The targets are ambitious, but we’re on track.”

Thursday, March 13, 2008

CANADA: IMMIGRATION QUOTAS COMING SOON?

It is rumoured that the Federal government will soon impose some sort of quota system to reduce the number of applications entering the system, which is caving under its own weight. The following story appeared this morning in the National Post newspaper. Stay tuned for further developments....

MIGRANT BACKLOG TARGETED
Tories set to accept fewer immigration applications

John Ivison, National Post
Published: Thursday, March 13, 2008


OTTAWA - The federal government is set to reduce the number of new immigration applications it accepts in a dramatic change of policy aimed at cutting the backlog of nearly 900,000 people who have already applied to enter Canada.

Sources say Immigration Minister Diane Finley will table an amendment to the Immigration and Refugee Protection Act as early as today. The new legislation will limit the number of new applications accepted and processed annually.

The act currently requires the government to process every application that enters the system -- a provision that has led to the huge backlog and a wait-time of around four years for an application to be processed.

"It isn't sustainable," said one source, who added that the overall number of immigrants admitted to Canada is more likely to increase than fall in the coming years, even if the number of new applications accepted drops dramatically.

It is believed the amendment will be included as part of the legislation to implement the federal budget, making it a confidence matter.

Maurizio Bevilacqua, the Liberal immigration critic, said the Conservatives don't understand the role immigration plays in Canada's history. "The Conservatives are shutting the door on immigration because they fail to understand its importance to our labour markets and our nation-building. The lack of resources devoted to this issue shows they are not serious about immigration," he said yesterday.

In this year's budget, the government allocated $22-million to modernizing the immigration system. "It is not fair for prospective immigrants to wait for years before being considered, and it is not desirable to wait that long for the immigrants the country needs," the budget said, adding that the proposed changes will "more effectively manage the future growth in the inventory, such as addressing the number of applications accepted and processed in a year." The changes are designed to establish a "just-in-time" immigration system, where the wait time is reduced to an average of a year.

Ms. Finley has emphasized that the government is seeking to bring the "best and the brightest" to Canada.

"Immigration will play an increasingly important role in our long-term growth and prosperity, and we will continue to look for innovative ways to bring in talent from around the world," Ms. Finley told an audience in Mumbai, India, last November.

But critics contend that the new policy will target "economic class" migrants coming to Canada for work, rather than "family class" immigrants being reunited with Canadian family members, or cases where immigrants are admitted on humanitarian and compassionate grounds.

"The Conservatives are attacking family reunification but it attracts many skilled workers to come here," Mr. Bevilacqua said.

The government has made no secret of the fact it sees itself in competition with countries such as Australia and the United Kingdom for the most qualified immigrants. This is likely to mean the vast majority of applications accepted in future are from the "economic class" of migrants that currently make up around 60% of newcomers.

Canada accepts about 250,000 immigrants a year, a figure that has increased since the Conservatives took office. The backlog of applications grew from 50,000 when the Liberal party took office in 1993 to around 500,000 in 2000. By the time the Conservatives came to power in early 2006, it was around 800,000 and in the past two years that number has grown to around 875,000.

Some estimates suggest that as many as one-quarter of current applications are more than six years old.

The Liberals made a number of attempts to eat into the backlog. For example, when Liberal MP Dennis Coderre was immigration minister in 2002, he raised the total number of points required for admission to 75 from 70 (points are allocated on the basis of language skills, education and job offers).

However, under pressure from the Liberals' ethnic voting base, the party backed down and reduced the number of points required to 67.

In 2005, with an election pending, then Liberal immigration minister Joe Volpe announced he would increase the number of immigrants by 100,000 a year -- a rise of 40% from existing levels at that time.

The Conservatives have long argued the Liberals allowed political, rather than economic, factors to dominate their immigration and refugee policy.

A report by the Fraser Institute in 2005 suggested that only 23% of immigrants are net fiscal contributors to Canada at a cost to the taxpayer every year of more than $18-billion (although 60% of immigrants are from the "economic class," fewer than half that number pass the points test -- the remainder are spouses and children).

The government says it has already taken a number of measures to make the system more flexible and efficient, including the establishment of Foreign Credentials Referral offices in China and India and moves to make it easier for foreign students and temporary workers to obtain visas.

Saturday, March 8, 2008

Van der Elst Visa

Third country nationals can come to Germany without having to apply for a residence title for the purpose of gainful employment first if certain conditions as provided in § 15 Employment Regulation (“Besch√§ftigungsverordnung”) are met. This is due to the so-called “Van der Elst - Visa” which is based on the case law of the European Court of Justice rendered with regard to Art. 49 EU Treaty.

Ҥ 15 Service delivery

For the grant of a residence title to persons who are orderly employed in the residence country of a company that is based in a member state of the European union or in a contracting state of the treaty on the European Economic Area and shall be relocated to the Federal Republic in order to perform services no approval is required.”

The regulation implements the case-law of the European Court of Justice which stipulates that a temporary relocation of employees who are third-country nationals for the purpose of cross-border services is generally protected by the freedom of services pursuant to Article 49 et. seq. EC Treaty (starting with the legal matter C-43, 93 – “Vander Elst” of the European Court of Justice). The amendment - which became effective on July 11, 2007 - was required in consequence of the judgement given by the European Court of Justice in the legal matter C-244/04. For a visa application the agencies abroad are checking whether the preconditions stipulated in the case-law guidelines of the European Court of Justice are fulfilled in the individual case. Different from the previous regulation there is no need to have had a previous employment for a certain time in the country where the employee has been employed before the assignment (such regulation being regarded as non-compliant with the EU laws and regulations by the European Court of Justice back in January 2006). However, the visa scheme is only applicable if there is an employment between the third country national and the service provider having its seat in another EU country and if the assignment is going to be for a certain period of time.

In case of any uncertainties whether or not this scheme does work it is recommended to involve the competent authorities upfront in order to get a clearance certificate whereas I would rather prefer to file the application by saying:

- firstly that the scheme applies and
- secondly, just in case it applies not, that the conditions for the “normal” work visa as laid down above are met.

With regard to proceedings cf. http://www.london.diplo.de/Vertretung/london/en/06/Visabestimmungen/Van__der__Elst__visa__seite.html for further information.

Please note that this should also apply to other member countries of the European Union; however this should be checked with the experts of the respective countries.

Wednesday, March 5, 2008

HR PROFESSIONALS FACE DIFFICULTIES IN HIRING

Immigration Policies Force U.S. and Canada Employers to Boost Recruiting Efforts

Survey of human resource professionals cites challenges and solutions

ALEXANDRIA, Va.--(BUSINESS WIRE)--Roughly two-thirds of human resource professionals in the U.S. (66 percent) and Canada (65 percent) say tougher national immigration policies have caused their companies to increase efforts to recruit and retain local talent.

A report released today by the Society for Human Resource Management (SHRM) and the Canadian Council of Human Resources Associations (CCHRA), “2008 Global Talent Sourcing in the U.S. and Canada,” also examines how and why foreign workers are recruited.

“Human resource professionals value the local labor pool but know that sometimes the most highly qualified talent is found in the foreign workforce,” said Susan Meisinger, president and chief executive officer of SHRM.

Of the HR professionals polled, 25 percent in the U.S. and 35 percent in Canada said the primary reason they recruit foreign nationals is an inability to successfully attract local workers with the necessary skills. That difficulty in hiring qualified local people is particularly acute in fields requiring highly scientific or technical skills, such as in health care.

Canadian firms (37 percent) are more likely than U.S. firms (17 percent) to hire foreign national workers to fill vacant positions during the next 12 months. When asked if their organizations “most likely will not hire” foreign workers within the next 12 months, U.S. HR professionals (47 percent) agreed nearly two to one over their counterparts in Canada (25 percent).

“A tightening labor market is forcing organizations to increasingly rely on immigration as a source for new talent. Governments and corporations alike must ready themselves to take on this challenge,” said Lynn Palmer, CCHRA CEO.

The HR professionals reported seven key actions taken by their companies as a result of tightened immigration policies:

Increased efforts to recruit and retain citizen and legal-resident workers: U.S. (66 percent), Canada (65 percent).
Recruited foreign students pursuing education in the employer country: U.S. (19 percent), Canada (24 percent).
Decided against outsourcing internationally: U.S. (18 percent), Canada (14 percent).
Hired foreign nationals under different types of visas due to unavailability of preferred visa types and/or delays in document processing: U.S. (16 percent), Canada (22 percent).
Decided to outsource internationally: U.S. (11 percent), Canada (16 percent).
Hired local national into foreign subsidiaries first then transferred when possible: U.S. (11 percent) and Canada (12 percent).
Set up international “virtual” teams: U.S. (6 percent), Canada (5 percent).
Other notable survey findings include:

Paperwork processing time was cited as the most frequently encountered challenge in recruiting foreign workers, according to HR professionals from both countries.
About one-half of HR professionals from the U.S. and Canada said the average verification and hiring process for foreign national workers is more time-consuming now than it was just two years ago.
HR professionals from the U.S. reported the greatest average degree of difficulty in hiring foreign national workers was from countries not included in NAFTA, consistent with recent visa supply shortages. HR professionals from Canada reported the greatest average degree of difficulty in recruiting citizen and landed immigrant status workers.