Saturday, August 30, 2008
Italy has implemented Directive 2004/38/EC of April 29, 2004, on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, by enacting Legislative Decree No. 30 of February 6, 2007 (hereinafter, the “Decree”).
The provisions of the Decree are important from an immigration law perspective for two reasons:
- firstly, because they apply to family members of a Union citizen (i.e. any person having the nationality of a Member State of the European Union), irrespective of the nationality of such family members: this means that non-Union citizens may enjoy a right of entry and a right of residence in Italy substantially different from, and much broader in scope than, the one ordinarily applicable to non-Union citizens;
- secondly, because the enactment of the Decree has represented the occasion to repeal certain provisions of Italian law concerning family members – not having Italian or Union citizenship - of an Italian citizen, wishing to join the Italian citizen in Italy: the Decree, in fact, applies also to the (foreign) family members of an Italian citizen, thus harmonising the provisions valid for all other Union citizens.
For purposes of this paper, in the following the notion of “family member/s” always assumes: (a) that the family member does not have Italian or any other Union Member States nationality; and (b) that the family member has a family tie to either a Union citizen or to an Italian citizen.
2. The status of family members
Pursuant to Article 2 of the Decree, family members are:
- the spouse;
- the direct descendants of the Italian or Union citizen who are under the age of 21, or are dependants on this latter;
- the direct descendants of the spouse who are under the age of 21, or are dependants on this latter;
- the dependent direct relatives in the ascending line of the Italian or Union citizen, and those of the spouse.
3. Right of entry
Family members are granted leave to enter the Italian territory provided they have a valid passport and, where required, a valid entry visa. In such latter respect it must be noted that the citizens of Andorra, Argentina, Australia, Brazil, Brunei, Canada, Chile, South Corea, Costa Rica, Croatia, El Salvador, Japan, Guatemala, Honduras, Hong Kong, Israel, Malaysia, Macau, Mexico, Monaco, Nicaragua, New Zealand, Panama, Paraguay, Syngapore, United States, Uruguay and Venezuela are exempted from an entry visa if the intended duration of their stay in Italy does not exceed 90 days (for purposes other than that of carrying out subordinated or self-employment work activities, whereas these latter cases always require an ad hoc visa).
Citizens of Switzerland, San Marino Republic and Vatican State are always exempted from any visas.
4. Right of residence for up to 3 months
Family members accompanying or joining a Union citizen or an Italian citizen have the right of residence in Italy for a period of up to three months, without any further formalities other than those required at the time of entry.
5. Right of residence for more than 3 months
Family members have the right of residence in Italy when they join an Italian citizen or when they accompany or join a Union citizen who:
- is an employee or self-employed person in Italy; or
- is enrolled at an accredited private or public establishment for the principal purpose of following a course of study or of vocational training; and
- has sufficient resources for himself and the family members not to become a burden on the social assistance system and has sickness insurance cover or other kind of coverage encompassing all risks in Italy.
In such case, family members shall register themselves with the General Registry Office (Ufficio dell’Anagrafe), by providing evidence of their status of family members.
6. Residence card of a family member of a Union citizen
Following 3 months as of the entry in the Italian territory, family members shall apply for the so-called “Residence card of a family member of a Union citizen” with the local Police Office (Questura), by exhibiting a valid passport, a valid entry visa – where required – evidence of the status of family member, evidence of the registration with the General Registry Office.
The residence card of a family member of a Union citizen has a validity of 5 years and exempts the holder to apply for any further visas in case of exit and re-entry to Italy.
Most important, the residence card entitles the holder to take up employment or self-employment in Italy (excluding only those activities that Italian law reserves to Italian nationals).
The validity of the residence card is not affected by temporary absences of the card holder not exceeding six months per year, or by absences of a longer duration for compulsory military service or by absences of a maximum of twelve consecutive months for important reasons such as pregnancy and childbirth, serious illness, study or vocational training, or a posting for work purposes in another State.
7. Permanent residence
Family members who have resided legally in Italy for a continuous period of five years (together with the Italian or Union citizen) accrue the right of permanent residence. Once acquired, the right of permanent residence is lost only through absence for a period exceeding two consecutive years.
Permanent residence is evidenced through a “Permanent residence card of a family member of a Union citizen”, which shall be applied for with the local Police Office (Questura) prior to the expiration of the Residence card of a family member of a Union citizen.
The permanent residence card, of course, entitles the card holder to take up employment or self-employment in Italy (excluding only those activities that Italian law reserves to Italian nationals).
Corrado is a lawyer with Studio Legale Associato Simonetti Persico Scivoletto - an Italian law firm with offices in Rome
Friday, August 29, 2008
“The scandal of secret swiss bank account” - so was the title of an article in the very honourable Time Magazine in March 1970. Since then the myth of the Swiss banking secrecy has never lost its attraction and topicality. After fighting
Around the Swiss banking secrecy entwine a lot of myths especially abroad but as well in
Banking secrecy refers in
But the last-mentioned case is seen by most of the other countries as performing only lip-service and as a thorn in their side. The crux of the matter is the principle of equivalence. That means that the duty to give evidence and information to foreign authorities must not go beyond the corresponding duty to the Swiss authorities. Since the domestic duty of evidence and information is highly constricted the principle of equivalence matters a lot. Art. 3 paragraph 3 IRSG (Swiss law with regard to the judicial assistance) regulates that no judicial assistance is to be given in case of an evasion of taxes. But the Swiss authorities have the right to obtain bank information in case of a tax fraud (tax evasion combined with falsification of documents). This relies on the fact that contrary to other laws (for example, German law) Swiss law does not prosecute a simple tax evasion. The taxpayer is given a leap of faith when they hand in tax documents. If tax evasion is revealed he just has to pay the taxes he “forgot” and will be fined.
This gives foreign taxpayer whose countries have a stricter law the opportunity to “park” amounts of money into trusts, offshore companies and bank accounts, protected by the bank secrecy. If this can be assessed as criminal support of tax evasion or even of tax fraud is judged controversial the last decades. New is the significance of the reproaches brought in action by the
For years, the US Senate has been conducting its own detailed inquiries into the issue of tax evasion. Senators have summoned key representatives of the industry, including tax advisors, accountants, lawyers and bankers, to the Capitol in
Political conflict is also on the horizon. An aggressive bill to combat tax evasion, the "Stop Tax Haven Abuse Act," was introduced in the US Congress last year. The legislation provides for tough measures against 34 tax havens, including
But: generally Swiss bank secrecy is an expression of an historically developed state system which treats the citizen as sovereign and provides a direct insight into the financial circumstances of the tax payers only by probable cause. The state's interests are preserved by a withholding tax which punishes tax evasion without revealing the names of those involved. But the advantages are badly communicated and it is for sure that abuse has to be prevented.
CH-8001 Zurich, Switzerland
Sunday, August 24, 2008
The European Commission has adopted its fourth report on visa waiver non-reciprocity with third countries. The European Commission has adopted its fourth report on certain third countries' maintenance of visa requirements in breach of the principle of reciprocity. The report shows that further progress towards full visa reciprocity has
Vice-President Jacques Barrot, Commissioner responsible for Justice, Freedom and Security underlined the usefulness of the reciprocity mechanism: "This Report clearlydemonstrates that the dialogue with third countries under the new visa-reciprocity mechanism has once again proven effective, resulting in visa free travel for all our citizens to another 3 countries. The Report however also proposes retaliatory measures where insufficient progress has been achieved. It is unacceptable that nationals from some third countries can benefit from visa free travel to the EU whilst some of our fellow EU citizens can't travel visa free to those countries. This is at the heart of our visa reciprocity mechanism and I am committed to ensuring that that principle is fully respected ".
The main conclusions of the report show that full visa reciprocity has now been accomplished with Israel, Malaysia and Paraguay. The Commission has achieved significant progress in the dialogue with Canada, which lifted the visa requirement for six Member States over the last ten months. In the dialogue with Australia the Commission has achieved access for nationals of all Member States to the "autogrant facility" and ensured equal treatment for the nationals of all Member States from October 2008 onwards once the Australian eVisitors system is in place. The implementation of the Australian eVisitors system will be carefully monitored. With regard to Brazil, negotiations for a short-stay visa waiver agreement between the European Community and Brazil have started.
No progress has been achieved with Japan, Panama, Singapore and the United States of America (USA). The Commission notes that Japan is currently examining an extension of the short-stay visa waiver to Romanian nationals but reiterates its request for full visa waiver reciprocity for the citizens of all EU Member States. The Commission will monitor Panama's intention to waive the visa requirement for citizens of Bulgaria and Romania.
With regard to Singapore, the Commission suggests that retaliatory measures should be considered if within a reasonable time full reciprocity is not achieved.
No tangible progress has been made regarding the USA despite all efforts of the Commission and individual Member States. Citizens of twelve EU Member States continue to require a visa when travelling to the USA. The USA committed at the June 2008 EU-USA Summit to include additional EU Member States into its Visa Waiver Program (VWP) this year. Therefore, the Commission will propose retaliatory measures –
e.g. temporary restoration of the visa requirement for USA nationals holding diplomatic and service/official passports – as from 1 January 2009 if no progress is achieved. The Commission will submit its next report before 30 June 2009.
Corporate and Immigration Lawyer.
1. Right to Freely Travel and Maintain the same rights within the European Union.
2. Right to Vote and be Eligible to Run for Office in the European Parliament.
3. Right to Vote and be Eligible to Run for Office in Municipal Elections.
4. Right to have an Efficient Governmental Services.
5. Right to Review Documents.
6. Access to European Ombudsman.
7. Right to Petition.
8. Right to Diplomatic and Consular Protection
Corporate and Immigration Lawyer.
If you are a Foreigner and seek to have Spain accept Tourist or Personal Relatives for residence in Spain, an Invitation Letter is necessary. Spain, a member of the European Union and signatory to the Schengen Agreement of June 1985, has an obligation to uphold the Schengen Border Code by controlling foreigners who wish to enter into other countries who are party to this Agreement.
Individually carried out, our Country in accord with the Schengen Agreement, implements the Rules Governing Invitations effecting both Spanish Nationals as well as legal foreign residents of Spain.
Who can submit a letter in favour of a foreigner/ traveller, assuming that there is an agreement to pay housing for the foreigner for the duration of the stay?
- A Citizen of a Country who is a member of the European Union or beneficiary of the
- A Spanish Legal Foreign resident
In the letter of invitation, the Sponsor must affirm their understanding of the information contained in Art. 318 of the Penal Code listing illegal trafficking of people as a crime punishable by prison for infractions in article 54.1 b), 55.2 c), and 57.1 of the LO 4/2000, there is a fine with a minimum of 6001 and maximum of 60,000 Euros or banishment from Spanish territory for a period of 3 to 10 years and finally all Personal Information such as Passport Number, Nationality and Residence will be flagged to alert both the Police and Civil Guard.
Corporate and Immigration Lawyer.
Saturday, August 23, 2008
ESTA Travel Authorization
Once ESTA becomes mandatory, visitors to the US who are entering visa-free under the VWP will be required to visit the ESTA website and complete an on-line application. Individuals entering the US with a visa will not be required to complete an ESTA application. DHS recommends that the on-line application be completed no later than 72 hours prior to travel. The application contains questions similar to the I-94W, such as name, date of birth, duration of trip and address in the US, and whether the applicant has been convicted of a crime. Once a traveler completes the application, they will usually receive a response within seconds. The response will be one of the following:
Authorization Approved – travel authorized
Travel Not Authorized – applicant must apply for a visa at an Embassy or Consulate prior to travel to the US
Authorization Pending – traveler will need to check the ESTA website within 72 hours to receive a final response
ESTA approvals will be valid multiple entries to the US for two years or until the applicant’s passport expires. The applicant should log on to the website to change destination addresses and itineraries for future trips.
Failure to complete ESTA and admission to the US
Once ESTA becomes mandatory, failure to complete the on-line application and obtain travel authorization may result in the traveler being denied boarding, experiencing significant delays on entry to the US or being refused admission at the port of entry. Similarly, travelers who complete an ESTA application and receive an Authorization Approved message are not guaranteed entry to the US – the approval only authorizes the traveler to board the aircraft.
VWP travelers may complete their ESTA application and find more information on ESTA at https://esta.cbp.dhs.gov/esta.
 Citizens or nationals of the following countries are currently eligible to travel to the United States under the VWP: Andorra, Austria, Australia, Belgium, Brunei, Denmark, Finland, France, Germany, Iceland, Ireland, Italy, Japan, Liechtenstein, Luxembourg, Monaco, The Netherlands, New Zealand, Norway, Portugal, San Marino, Singapore, Slovenia, Spain, Sweden, Switzerland, United Kingdom
Contributed by Christi Hufford, Siskind Susser PC.
Thursday, August 21, 2008
Despite the slowdown in the
The H-1B Crisis
The H-1B is the major visa temporary visa category available in the
Begin in the late 1990s, Congress temporarily raised the annual H-1B quota. Those temporary increases expired in 2003 and the annual cap returned to 65,000 from 190,000. Congress did establish several important exemption categories beginning in the late 1990s including employees of colleges and universities, certain physicians working in underserved areas and employees of non-profit research institutions.
For the last several years, Congress has provided for a bonus quota of 20,000 extra H-1Bs for graduates of US masters and higher degree programs.
For the past two years, demand for H-1Bs has been so strong that the entire annual allotment has been drawn immediately after the numbers became available. Visas can be claimed up to 180 days before the beginning of a the government fiscal year that annually starts on October 1st. That means applications must be filed on April 1st to have a reasonable chance of being selected. In 2007, US Citizenship and Immigration Services received more than twice as many applications on the first day available as slots available under the basic 65,000 cap. In 2008, a similar number of applications were received on the first day and the bonus pool of 20,000 visas for advanced degree professionals was used up within a week. In short, the H-1B process has become a lottery.
A temporary visa category available for short term and seasonal workers, the H-2B, has similar problems as the H-1B. The H-2B cap is set at 66,000 and can be used for any type of worker whether professional, skilled or unskilled. Up until September 30, 2007, returning seasonal workers were not counted against the annual 66,000 limit if they had previously been counted in the annual quota. Congress has not extended that provision which has led to the H-2B quota being used up rapidly. While demand is not quite as strong as in the H-1B category, the H-2B quota is now only available for brief periods of time during the fiscal year.
Green card backlogs
The situation for employment-based permanent residency visas (“green cards”) is no better. Waits in the popular EB-3 green card category for skilled and professional workers are now estimated at five to seven years. The wait in the EB-2 category for workers with masters degrees or higher is not backlogged for most workers. However, nationals of
Followers of US politics know that immigration has been a very heated issue for the past few years. Attempts to pass major immigration reform legislation have failed and members of Congress have been extremely reticent to push forward any immigration legislation, whether controversial or not. Furthermore, some members of Congress who are pro-immigration have made the strategic choice to block small, pro-immigration bills – such as bills lifting H-1B and green card caps or restoring the H-2B returning worker provision – in order to force reconsider of a massive comprehensive immigration reform package. So while there is general support in Congress for addressing the lack of non-immigrant and immigrant visas for needed workers, political considerations are getting in the way.
The odds are increasing that nothing will happen until after the election. Democrat Barack Obama and Republican John McCain are each considered to be pro-immigration and are likely to support measures to increase visa availability. The problem will likely be in Congress where a small minority can block legislation. Democrats are generally viewed as the more pro-immigration party and there is optimism that if they increase their numbers substantially (as is widely expected), this will bode well for addressing immigration in the next session of Congress.
In the mean time, there are alternative strategies that companies and workers can consider.
First, there are other visa categories that frequently are available, some of which have no numerical limits. The L-1 visa is available for employers that first employ key workers abroad with the company for a year prior to seeking entry. The J-1 visa for trainees and interns is available for up to 18 months for junior level workers seeking to gain experience in their fields. Foreign-owned corporations with qualifying commercial treaties with the
Second, President Bush recently stepped in as well to with a new rule that allows students in the
Finally, for advance degree workers who qualify in the EB-2 green card category and who are not from countries with per country limits (currently just
Ultimately, the US Congress will need to step in if the
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UK GOVERNMENT CONCERN OVER LOW RESPONSE RATE FROM COMPANIES WISHING TO REGISTER TO SPONSOR FOREIGN WORKERS
The British Government is getting increasingly concerned at the small number of
As of 1st August 2008, less than 350 companies had applied for Licences from throughout the
At the present rate of progress, it appears inconceivable that the UK Border Agency will be to meet its timetable if there are a flood of applications just prior to 1st October 2008, without compromising on its procedures.
Contributed by Graeme Kirk of Gross & Co London. Graeme is the senior partner and head of the immigration department of the firm. Contact him at firstname.lastname@example.org
In accordance with Mexican Law, foreigners may enter
1. Non-immigrant: A foreigner who enters the country with authorization from the Ministry of the Interior. The person has plans to live in
2. Immigrant: A foreigner who enters the country with authorization from the Ministry of the Interior. The person plans to live in
3. Long-term immigrant: A foreigner who enters the country as an immigrant and has acquired the rights to reside permanently in
The Brazilian economy is going through a period of intense prosperity.
Brazil's investment grading from BB+ to BBB-. This changes the perspective of the Brazilian economy from stable to positive. Also in May, the Fitch converted the country evaluation from BB+ to BBB-, following the trend of other agencies, aforementioned, and of the Japanese’s JCR and R&I. The country stepped into the group of nations considered to have a small possibility of insolvency and low risk for foreigner’s financial applications. A series of factors led these institutions to modify the country’s rate, among them, the stability of macro economical politics, well-conduced monetary and cambial politics, stronger public administration, availability of bank credit, improvement of the dimension and structure of public debt, increase of the market liquidity and recent discoveries of oil fields by Petrobrás.
As a consequence of the economical stability and in the days after the announcement of Standard and Poors assessment, the Ibovespa, main rate of the Brazilian stock market, surpassed the historical barrier of 70.000 points. Stocks of Brazilian companies, for example Petrobrás, had its papers validated which helped to push the rises of the stock exchange of
On the other hand, the dollar is losing ground around the world when compared to other currencies due to the cut of interest rate made by the Federal Reserve between September of the last year and April this year. The interest rate fell as part of the Fed’s action to stimulate the credit and to promote the American economy. Since the beginning of the government of Lula da Silva, the dollar lost 52% of its value against the Real. This year, it accumulated 5.12% of depreciation. In 2007, the fall in the value of the American currency was in 16.85%.
The consequence of this scenery is record investment and growth of the economy. The Brazilian PIB grew 5.8% in the first trimester of this year in comparison with the same period of last year. The expansion in twelve months is the greatest since 1996. Investment grew 15.2% from January to March, when compared to the same period of last year.
Contributed by Daniela Lima who Is a lawyer and partner of EMDOC MRS, a 20-year old firm, specializing in providing services in the immigration market, transferring employees to Brazil and from Brazil to other countries.
Wednesday, August 13, 2008
From Wednesday's Globe and Mail
August 12, 2008 at 9:54 PM EDT
OTTAWA — The Harper government is creating a new fast-track immigration route for skilled foreign workers and students who've already proved employable in Canada: an effort to prevent an erosion of talent as global competition heats up for higher-value labour.
Unlike existing programs, the Canadian Experience Class immigration stream will make work experience in this country a key criterion for vetting applicants. It will also allow temporary foreign workers and students living here to apply from within Canada rather than having to leave first.
It's expected to grant permanent resident status to 12,000 to 18,000 economic immigrants in the first year, a figure that's forecast to rise to 25,000 annually over time. But it's not expected to increase the number of economic immigrants, which last year totalled 50,000.
The goal is to improve the quality of immigrants and retain the most valuable workers and educated students: arrivals who've already proven they can integrate into society and meet labour market needs.
“If we're going to compete internationally for the best and for the brightest, we need to improve the way that we attract and retain those who want to work in their fields and contribute to Canadian society,” federal Immigration Minister Diane Finley explained at a Waterloo, Ont., news conference.
Immigrants granted permanent resident status can eventually apply for citizenship.
Canada is revamping its approach because rival destinations such as Australia and the United Kingdom already have similar programs, Citizenship and Immigration spokeswoman Danielle Norris said.
“We're stepping up to the plate,” she said. “We're becoming as competitive as other countries.”
Canada is suffering from a major immigration approval backlog and the new program is part of Ottawa's solution. The concern is that skilled foreign workers and highly educated students who've been trained and educated in Canada will leave permanently if more effort isn't made to keep them.
To be eligible, foreign workers must have two years of legal work experience in Canada. Foreign students must have completed a program of study lasting at least two years at a Canadian university or college and have one year of work experience.
NDP immigration critic Olivia Chow said the new program is elitist and unfair to unskilled or lower-skilled labourers who comprise the vast bulk of foreigners in Canada on temporary work permits.
“They're good enough to work here, but we don't want them to become Canadian citizens,” she said. “That's 90 per cent of the 165,000 temporary foreign workers who are working in Canada right now.”
A Citizenship and Immigration official said lower-skilled foreign labourers can apply for permanent resident status if the province they're working in recommends them under what's called the Provincial Nominee Program.
Ottawa believes the new program will increase Canada's economic competitiveness.
“With nearly full employment, an aging population and skill shortages, there is an immediate need to ensure Canadian employers can access the skills they need,” Ottawa said in a statement on the changes.
It predicts that selecting immigrants who've already got a proven track record here will yield workers with higher incomes later. Ottawa estimates that the average annual income of people selected under this new program will be $60,000 after 10 years, compared with $42,000 for someone who hadn't worked or studied in Canada first.
Saturday, August 9, 2008
On July 24, 2008 the responsible minsters of the EU member states have discussed the commission’s guideline proposal regarding immigration law which is dated October 23, 2007. Amongst other things the Commission has proposed to the Council to facilitate the immigration of highly-qualified staff from third countries by implementing a so called “Blue Card” in order to make Europe attractive for skilled employees, cf. http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2007:0638:FIN:EN:PDF. Throughout Europe standard requirements shall be implemented with view to the immigration of skilled employees. Besides a recognised diploma for the blue card it is also required to furnish proof of a minimum professional experience of three years and a one-year contract in the European Union with salary amounting to not less than triple the minimum salary. Then the applicant and his/her family are granted a residence permit of up to two years which can be extended. At the same time the regulations providing for facilitations of entry as currently applied in the member states shall be retained. With view to this fact the implementation of a blue card will in the first instance have no factual influence on the legal situation in Germany. In Germany numerous special rules have already been enacted with view to the entry of highly-qualified. The proposal shall even have been accepted by the member states French EU Council Presidency by the end of the year 2008. Therefore the unanimity of the European Council is required.