Please note: while we address some country-specific updates related to the COVID-19 outbreak, the below contains information regarding global restrictions and closures as they stand today. Given the constantly changing nature of this situation, we highly recommend reviewing any global mobility inquiries on a case-by-case basis, including any consulate-specific or immigration authority resources, in “real-time” before traveling internationally. Please reach out to our Global Mobility Team in advance of any international travel.
Australia - New Labor Market Testing Requirements Announced
The Australian government has announced new legislation impacting the Labor Market Testing (LMT) requirements for employer-sponsored visas. Employers seeking to nominate foreign national workers for TSS 482 or SESR 494 work visas are now required to show evidence of LMT with ad postings in at least three locations. The recruitment must include a job posting on the government's JobActive website. Requirements for LMT include an ad posting on a recruitment website with national reach in Australia (other than JobActive), print media with national reach in Australia, radio with national reach in Australia, and the employer's website (if an accredited sponsor).
Belgium - Brexit Procedures and Regulations for U.K. Nationals
U.K. citizens currently living in Belgium or planning to arrive before December 31, 2020:
U.K. citizens will need to obtain Belgian residence permits for EU nationals (E card or E + card) before December 31, 2020 in order to legally reside and work in Belgium. If they do not yet have one, it is crucial that all U.K. citizens who are residing in Belgium apply for a Belgian residence permit for EU citizens by December 31, 2020. The application is to be filed at the applicant's Belgian commune of residence. We highly recommend taking action as soon as possible.
The residence permit for EU nationals will give U.K. citizens the status of “beneficiary of the Withdrawal Agreement (WA)”. This status automatically gives the right to continue to reside in Belgium beyond December 31, 2020 (as for EU citizens), and gives them the right to continue to work in Belgium without additional work authorization. After a period of uninterrupted stay of 5 years in Belgium (prior to or after January 1, 2021; both periods are combined), the beneficiaries of the WA may be eligible to obtain permanent residency that is no longer linked to employment. This applies to employees working under a local employment contract as well as to seconded employees.
U.K. citizens arriving in Belgium after December 31, 2020:
Newly arriving U.K. citizens will be treated as third country nationals as of January 1, 2021 and as a result standard business immigration rules for third country nationals will apply.
While there are different regional schemes within Belgium all have a scheme for “highly skilled” employees that grant relatively easy access to non-EEA employees who have a Belgian or foreign employer. The main conditions to qualify under this scheme are:
- Hold at least a Bachelor's degree (or similar in some cases) and;
- Earn a gross annual salary of least 43,524 EUR (Flemish Region only – reduced to 34,819.20 EUR gross for employees younger than 30 years old with a Belgian legal entity as the employer) OR a gross annual salary of at least 43,395 EUR (Brussels-Capital Region and most likely also Walloon Region – no reduction for young employees). These amounts apply as of January 1, 2021, and are increased annually.
Business Travel for U.K. citizens after December 31, 2020:
We do not anticipate business travel rules for British citizens to differ compared to other non-EEA nationals (unless of course different agreements would be made between the EU and the U.K. on this point, in the framework of a deal).
It is important however to distinguish between the “work” aspect and the “stay” aspect of a business trip, meaning that the following two aspects always need to be reviewed:
- Work - U.K. citizen business travelers do not need a work permit or a Limosa declaration if the business trip to Belgium is limited to fewer than 20 consecutive calendar days per trip and fewer than 60 days per calendar year. Please note that the work permit exemption is limited to “business meetings in a closed circle.” This encompasses both meetings with clients and internal staff meetings, but actual productive work is not covered by the exception. If these limits are not respected, a work permit would need to be obtained by the employer (prior to the start of the business trip), and a Limosa declaration must be made (also prior to the start of the trip).
- Stay - the EU Commission announced that U.K. citizens should not be required to have a Schengen visa for short-term business trips of 90 days or fewer in a rolling 180 day period. This means that in any period of 180 days, a British citizen can travel to and be present in the Schengen area for up to 90 days in total on the basis of his/her valid passport. Do note that this 90-days threshold applies within the entire Schengen area. To avoid entry refusals and/or overstaying, the “credit” of days left for business travel without a visa should be closely monitored for frequent business travelers, e.g. by using the European Commission's Schengen stay calculator (see here).
Please feel free to reach out to our Global Mobility Team in case you require information about Brexit Procedures and Regulations for U.K. Nationals in other EU countries.
China - Temporary Suspension of Entry into China for Certain Nationalities and Nucleic Acid and IgM Anti-Body Tests
Due to the COVID-19 pandemic, Chinese Embassies in Bangladesh, Belgium, Ethiopia, France, India, Italy, Philippines, Russia, U.K.raine and the United Kingdom announced that China suspends entry to foreign travelers from these countries holding valid visas or residence permits. The Chinese Embassy and Consulates in these countries will no longer issue Certified Health Declaration Form for the above-mentioned travelers.
Entry by holders of diplomatic, service, courtesy or C visas will not be affected. Foreign nationals visiting China for emergency needs may apply for visas at Chinese Embassy or Consulates. Entry by non-Chinese nationals in these countries with visas issued after November 3,2020 will not be affected.
Several Chinese Embassies, including those in Germany and the United States, announced that as of December 1, 2020 all Chinese and foreign passengers who fly to China will be required to take nucleic acid and IgM anti-body tests and then apply at the Chinese Embassy or Consulates in Germany for a green QR-code with the “HS” mark (for Chinese passengers) or a green QR-code with the “HDC” mark (for non-Chinese passengers) before boarding the flight. The tests results can be uploaded here: https://hrhk.cs.mfa.gov.cn/H5/. For more details please see: Chinese Embassy Berlin ; Chinese Embassy Washington.
EU Council - Review of Travel Restrictions
The EU Council continues to review epidemiological conditions to revise the list of countries from which travel is currently restricted due to the COVID-19 pandemic. Recommendations are made based on COVID-19 case numbers, economic and social considerations, and reciprocity. For the most updated list of recommendations and travel information see here. Please note that each EU member state will implement the recommendations individually. Due to recent surges in COVID-19 case numbers, many EU countries have implemented new quarantine and testing requirements for entry both from internal EU countries and non-EU countries.
South Africa - Issuance of ICT Work Visas for Additional two Year Period
The Minister of the Department of Home Affairs (“DHA”) issued a directive providing for a temporary concession to allow issuance of new Intra-Company Transfer Work Visas (“ICT Work Visas”) for an additional 2-year period in country even though the maximum period of 4 years had already been reached; this applies to visas which expired during the State of Disaster which commenced on March 26, 2020, or which will expire up to and including June 31, 2021. As a result employees who can benefit of this concession are not required to return to their country of citizenship or residence but may instead file the application in-country.
Switzerland - Permit Quota Numbers for 2021
The Swiss Federal Council has recently announced the following permit quota numbers for 2021 based on permit type and applicant nationality.
- Work permit quotas for assignees from
- L permits: 3,000
- B permits: 500
- Work permit quotas for non-EU/EFTA
- L permits : 4,000
- B permits : 4,500
Due to the U.K.'s withdrawal from the European Union, the Agreement on the Free Movement of Persons between Switzerland and the U.K. will no longer apply as of January 1, 2021. In order to enable companies in Switzerland to recruit skilled workers from the U.K. after that date, the Swiss Federal Council announced additional separate quotas for employed U.K. nationals for 2021.
- Work permit quotas for U.K.
- L permits: 1,400
- B permits: 2,100
These maximum figures for the U.K. are valid for one year for the time being and are released to cantons on a quarterly basis. This measure takes into account the exceptional situation in relation to the U.K. and represents a one-year transitional solution without prejudice to future regulations. Should no agreement on a future migration regime be reached in the course of next year, the separate U.K. quotas for the year 2022 may be integrated into the third country quota.
U.K. - New Immigration System Update
The U.K. Government has announced wide sweeping changes to the U.K. immigration system, to coincide with the end of the Brexit transitional period on December 31, 2020. After that date this scheme will apply to any EU nationals who are not resident in the U.K. before the end of 2020, as well as citizens from the rest of the world.
When does the new immigration system come into operation?
Some elements of the new system have already been enacted. However, the main provisions relating to sponsored work visas took effect December 1, 2020. EU citizens will not be able to move to the U.K. on a visa before January 1, 2021; any EU citizen wishing to move before that date can still do so without a visa and make an application under the EU Settlement Scheme.
Skilled Worker and Intra Company Transfer
The Tier 2 visa category will be shut down. Tier 2 (General) will be replaced by the ‘Skilled Worker' route. Tier 2 (Intra-Company Transfer) will now be called the ‘Intra Company Transfer' visa.
The general principles of the two routes remain the same – visas should only be obtained for skilled workers where an employer cannot fill the role from the local workforce. However, there are a number of beneficial changes to the current rules. These include the following:
- The Resident Labour Market Test has been abolished – there is no longer a requirement to advertise any role.
- The 12 month cooling off period has also been abolished – this means that an individual can switch from a Tier 2 Intra-Company visa to a Skilled Worker visa – putting them on a path to permanent residency.
- The skill level has been reduced from RQF6 (Degree level) to RQF3 (A-level) – lower level roles can therefore be sponsored.
- Minimum salary levels will decrease.
What can I do to prepare for the new system?
If you are an employer and already hold a Tier 2 sponsor licence, there is no action that you will need to take. Effective December 1, 2020, the Tier 2 General/Intra Company licence will automatically converted to a Skilled Worker and/or Intra Company Transfer licence.
No action needs to be taken for current employees holding a Tier 2 visa – their visa will continue to remain valid. The employees will move on to the new system when they next need to renew their visa.
Employers should review upcoming recruitment plans, taking into consideration that EU citizens may also require a visa. If employers do not have a current allocation of Certificates of Sponsorship, they should make a request for additional Certificates via the Sponsor Management System (the current allocation year runs to 5 April 2021).
Employers may also want to review their current Tier 2 ICT population and consider moving them to the Skilled Worker visa, which will provide a route to permanent residency.
If employers do not already have a Tier 2 licence, they may wish to consider making an application for a Skilled Worker licence now, to enable them to sponsor employees in the future. Applications take 4-6 weeks to be processed, and once in place, are valid for 4 years.
Originally Published by Seyfarth Shaw, December 2020
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.