the relocation expert guide

October 2015

Relocation 2015

EXPERT GUIDE

2 3OctOber 2015 OctOber 2015

expert guide: relOcatiOn 2015

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Europe

Immigration routes for work-related relocation to the UK

Hiring & Firing Employees in Germany – Caution Imperative

Migrating to Australia? Australian Visas Explained with Free Thorough Visa Evaluation

Being a Trusted Traveller Has Its Benefits Entering the US

Migration Skill Assessment – The Gateway to being considered for a Skilled Visa

The Do’s and Don’ts of Moving to Norway to Work

Only an all-round support will ensure the sustained success of international assignments and expatriates’ happiness

Tenant Relocations in Europe – Key Issues in Germany and England & Wales

Contents

Your Relocation Service for Lugano and Ticino

A Case study for the Netherlands

Rising to the New Challenges of Relocating to Spain

Snapshot: Relocation Statistics

The Americas

USCIS now requires amended H-1B petitions to be filed when moving H-1B workers to new work locations requiring a new Labor Condition Application

Africa

Facilitating immigration in Africa and the Middle East

Expert Directory

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Fenice Media Ltd | 101 The Big Peg | 120 Vyse Street | Birmingham | West Midlands | B18 6NF | United Kingdom | Tel: +44 (0) 121 270 9468 | Fax: +44 (0) 121 345 0834 | www.corporatelivewire.com

Contributing OrganisationsGherson, Getme2oz.com,

Immigration2oz, US Visa Solutions - Law Office of Janice A. Flynn, CPM

People, Brækhus Dege Advokatfirma DA, compass international gmbh,

Hogan Lovells International LLP, Lugano Relocation Service, Global Relocation Services, brs Relocation

Services, Fakhoury Law Group, Executive Relocation Middle-East - Africa

Chief Executive OfficerOsmaan Mahmood

Managing DirectorAndrew Walsh

Editor-in-ChiefJames Drakeford

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Directors Sameena YatesSiobhan Hanley

Awards DirectorsLeah Jones, Elizabeth Moore,Chris Barry,Rupert Hemingway

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ContributorsLiam Harris, Shari Walton

Research MangerDavid Bateson

Marketing Development ManagerDilan Parbat

Project ManagersIbrahim Zulfqar, Rocky Singh, Zoe Cannon

Account ManagersNorman Lee, Thomas Patrick, Kerry Payne, Sophie Smith, Ben McPhillips

Production Manager Sunil Kumar

Competitions ManagerArun Salik

Administration ManagerNafisa Safdar,

Data AdministratorDan Kells

Head of FinanceJoseph Richmond

Senior Credit ControllerJorawar Johl

Accounts Assistant Jenny Hunter, Michael Atkinson

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expert guide: relOcatiOn 2015

Introduction

In recent years a globalised economy has led to a globalised workforce. Gone are the days where an employ-ee will be situated in one city or one office for the entirety of his or her ca-reer. Employees may be born in one country, live in another and spend a significant portion of their working lives travelling from one continent to another, either as an expatriate on assignment or else simply as an ex-ecutive constantly on the move. In the modern era we are witnessing a rise in a nomadic workforce.

The ease in which we can now ac-quire affordable long distance flights and access job information via the in-ternet makes an international work-force an increasingly idealistic pros-pect, whilst utilising international candidates allows companies to fill vacancies where there is a skills gap in their own domestic workforce. This type of arrangement is often mutually beneficial with the employ-ee receiving financially lucrative op-portunities.

The biggest challenges facing both employers and employees is the lev-el of paperwork and different regu-latory formalities involved, ranging from minimum wage and income tax to the hiring and firing proce-dures. The Corporate LiveWire Re-location Expert Guide ensures this task is simplified through the inclu-sion of industry experts from across a wide range of key jurisdictions. In this guide you will find articles detail-ing the complexities of acquiring the correct visas – both for permanent residence and for overseas business excursions. The guide also outlines the key components to regulation, including a pertinent case study with a Canadian employer entering the German labour market.

Editor In Chief

James Drakeford

IntroduCtIon

europe


expert guide: relOcatiOn 2015unIted KIngdom

Lee [email protected]

Immigration routes for work-related relocation to the UK By Lee Jackson

Tier 1 (Investor) MigrantsThis route is for high net worth indi-viduals making a substantial finan-cial investment to the UK. In broad terms, investors need to show that they have a minimum of £2,000,000 of their own funds available to in-vest in the UK. Once a visa has been granted, the investment must be made within 90 days of entry to the UK. Investors can bring their spouse or partner and children under 18 with them. There is no English language requirement for investors until they apply for indefinite leave to remain – all other PBS applicants must satisfy an English language requirement.

Tier 1 (Entrepreneur) MigrantsThis route is for migrants who wish to establish, join or take over one or more businesses in the UK. Appli-cants must normally show that they have £200,000 in funds available to invest in the business, although it is possible to share that amount be-tween two people as an entrepreneur team. In addition to the business investment requirements, entrepre-neurs must also show that they can maintain themselves and any depen-dants they bring with them. In order

to obtain an extension of their visa after 3 years, entrepreneurs must show that they have created at least 2 jobs for settled UK residents.

The Government considers the En-trepreneur route to be subject to abuse. In 2013, it introduced a genu-ine entrepreneur test, which allows immigration officers to refuse appli-cations if they are not satisfied of the applicant’s intentions even when all other criteria have been met. This has led to refusal rates increasing from about a third to a half of all ap-plications.

Tier 2 (General) MigrantsThis route is for skilled workers. In order to obtain a Tier 2 visa, the mi-grant must first obtain sponsorship from an employer who is a licensed sponsor. The rules are extremely technical. Different criteria apply de-pending upon whether the migrant’s occupation is one where there is a shortage of workers in the UK.

In April 2011, the Government intro-duced an annual cap of 20,700 Tier 2 visas, which is divided into month-ly limits. In recent months, the cap

There are a number of immigration routes available by which foreign na-tionals can relocate to the UK. The following article summarises the main work-related routes available.

EEA migrants

It is far easier for nationals of the Eu-ropean Economic Area (EEA – i.e., the EU plus Iceland, Liechtenstein and Norway) and Switzerland to migrate to the UK than it is for non-EEA na-tionals, although it should be noted that Croatia only acceded to the EU on 1 July 2013 and is subject to tran-sitional restrictions on its nationals wishing to access the UK labour mar-ket until 2018. Freedom of move-ment of workers is one of the fun-damental principles of the European Union. Due to the primacy of EU law over domestic law, EEA nationals cur-rently hold a privileged position over non-EEA nationals in terms of immi-gration to the UK. They do not need a visa. They are free to come to the UK to look for work. They are able to reside in the UK whether they are employed or self-employed. They can also reside here as a self-suffi-cient person or as a student provided

they have comprehensive sickness insurance cover. After five years’ continuous residence in the UK, EEA nationals acquire the right to reside in the UK permanently. EEA nation-als can also bring their non-EEA fam-ily members to reside with them in the UK.

The Government is currently seek-ing to renegotiate the terms of the UK’s EU membership. The renegotia-tion seeks to limit some of these free movement rights. A referendum on continued EU membership will then take place before the end of 2017. These developments may have a sig-nificant impact upon the ability of EEA nationals to relocate to the UK in the medium-term future.

Non-EU migrants

In contrast to EU migrants, the UK is free to make its own rules in respect of immigration by non-EU migrants. The vast majority of migrant appli-cations are made under the Points Based System (PBS). The most signif-icant work categories under the PBS are investors, entrepreneurs, and work permit holders.

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that a refusal of entry clearance en-gages human rights.

Instead, the vast majority of adverse decisions are only challengeable by way of Administrative Review. This is an internal review by another mem-ber of staff – usually someone who works in the same office as the per-son who made the original decision. It is only possible to succeed if the original decision-maker made a case working error. In practice, this is a difficult threshold to cross, especially in cases where there is a dispute of fact.

Given the limited opportunities to get things right, and the potentially devastating consequences of getting things wrong, it cannot be stressed enough how important it is that the initial application is prepared as pro-fessionally and thoroughly as pos-sible.

Forthcoming Changes

Over the last decade or so, UK gov-ernment policy has become pro-gressively more restrictive towards immigration. Current annual net migration to the UK is 330,000, an all-time high. However, the govern-ment’s stated aim is to reduce an-nual net migration to the tens of thousands. Scarcely a week passes without a new tightening up of the Immigration Rules being announced. A major new Immigration Bill is due to be published which will attempt to place further obstacles in the way of migrants. The Migration Adviso-ry Committee is currently reviewing both the Tier 1 (Entrepreneur) and Tier 2 routes. It is inevitable that it will become ever harder to satisfy the requirements of the Rules and persons considering relocating to the UK should, where possible, avoid any unnecessary delay that might make it harder for them to achieve their objective.

has been reached more and more frequently, and preference has been given to applications from those earning higher salaries.

Tier 2 (Intra Company Transfer) Mi-grantsThis route enables multinational em-ployers to transfer their existing em-ployees from outside the EEA to their UK branch for training purposes or to fill a specific vacancy that cannot be filled by a British or EEA worker.

One significant benefit of using this route is that the Tier 2 cap does not apply to Tier 2 intra company trans-fers. However, this route does not lead to qualification for indefinite leave.

General grounds of refusal

In addition to the specific criteria for each Tier, applicants must also not fall foul of the General Grounds of Refusal. These are designed to ex-

clude people whose presence is un-desirable in the UK. Factors such as an individual’s criminal record or ad-verse immigration history, including deception used in previous applica-tions, can lead to refusal of entry or a lengthy ban from the UK.

Indefinite Leave

Investors, Entrepreneurs and Tier 2 (General) Migrants can apply for in-definite leave to remain in the UK af-ter five years’ continuous residence. There are accelerated routes for in-vestors who invest larger sums and entrepreneurs who create excep-tionally successful businesses.

Challenging Decisions

PBS refusals do not attract a right of appeal to an independent judge, un-less the decision engages the appli-cant’s human rights. In most cases where an application is made from abroad, it will be difficult to show



Fred [email protected]+44 (0) 870 991 9000

Hiring & Firing Employees in Germany – Caution ImperativeBy Fred Isherwood

redundant but nonetheless he was offered reasonably generous settle-ment terms and given a written ter-mination agreement which paid him three months’ salary whilst on gar-den leave, which he took, and he re-tained his company car. True to character he refused to sign the termination agreement but he did take the garden leave, and the salary, and the car. He never, even at the end of his notice period, returned the car although eventually he did al-low it to be collected from him long after his three months’ notice period had expired.

After his three months’ notice had expired; his last payment was re-ceived and the car had at last been relinquished, he declared for the first time by his first firm of lawyers that his employment had not actually been terminated, because he had not, as German law requires, had his notice in writing on paper and posted to him, rather than (as it was) sent to him electronically; nor in the alter-native was his paper notice actually handed to him.

After his first firm of lawyers were made aware of all of the facts, and thus were made aware of a counter technicality, they disappeared, but some months later other lawyers issued court proceedings for him, claiming that his employment had not been terminated, it had just been suspended. They claim continuing salary for him for every month since last he was paid, loss of commission, which he has not earned, (but he might have done if he was not on his garden leave) and continuing loss of use of his company car. Their only reason for his claim is that he did not receive his notice personally or by post and on paper. There is no sug-gestion that what was offered, and he took, was not in correct form. They simply say that he should now have more, for no other reason than that his notice was not received by him in the way that the law requires.

Every time his employers told Ger-man lawyers the story thus far, they listened no further without saying that the employers were in the wrong. They said that his notice written on paper must be posted now, and that the former employee should be paid

So often, and to the detriment of us all in business life, and particularly in employment law, form triumphs over substance. Form, as embod-ied in employment law, is so often abused. It is frequently not used as a shield to protect vulnerable employ-ees, with which no one should dis-agree, but as a sword by disgruntled employees to extract far more from their former employers than the law ever intended.

The following situation, which is yet to be decid-ed by the Courts in Ger-many, highlights the obvious advice that you must always have a working knowledge of the employment law of the country where a prospective em-ployee is to be employed, or at least have ready access to an in country professional that does.

A Canadian Company wished to trade in Germany, and so they employed a German who was well established in the work that they do and who they thought would sell their services and generally raise awareness of their presence.

The employment was not a happy fit for either party from the outset. The employee complained about ev-erything that he was required to do, and the way in which he was to do it, although as the Company’s sole German employee he was given freedom to get on with his work to his own timetable. He had a salary

with benefits, and a free-dom about the way he worked which was simi-lar to that of a senior di-rector. Nothing was ever good enough for him, he found fault with every-thing, he refused to sign

his employment contract for reasons which made no sense to anyone, per-haps not even him, he did his work badly, with reluctance and without enthusiasm but with constant com-plaint, until after some months, with reluctance on their part, his employ-ers realised that quite simply he was not performing as they expected, and therefore their expected results were not realised, and so they de-clared him to be redundant.

He had not been with them for very many months when he was made




will all know the outcome, when the case is heard in court next year, if common sense does not break out before then.

The employer’s German lawyer told them that they were not the first, and would not, he expected, be the last non German employers to be caught by the German rule about posting a paper notice to the employee.

Even if the employers are success-ful in defending the claim, it will be no more than counter technicality trumping technicality; it does noth-ing to address the time, cost and angst which will have been expend-ed, because it suggests the dismissed employee might get something for nothing by applying the letter rather than the spirit of a law intended to protect his rights, rather than a ver-dict based on an artificiality.

Ultimately, the only practical advice that can be given is this: if you as an employer are considering hiring em-ployees in Germany, then as a buyer, beware!

Fred Isherwood, our compliance manager is a lawyer with more than 40 years’ experience specialising in employment law. He practised as a solicitor in private practice for many years. He now strives to ensure that we maintain and remain compliant for Employment Law and Human Re-sources in every country where we have employees or self-employed contractors working for our clients. He says that it is a constantly stimu-lating challenge because the require-ments for every country, client, and contractor are ever changing.

whatever was claimed, subject to working out the correct figures for potential loss of commission, until the notice that should have been and must now be sent by post expires; and that he should immediately be paid from when he was last paid, un-til the end of the following months’ notice, which can only take effect from the end of a month to antici-pate and require salary for all of the following calendar month.

The German lawyers who were even-tually retained for the employer ad-vised regarding tactics, which were to post to the employee one copy of the notice, and send another copy by professional courier, instructing them that the letter should be post-ed through his letter box rather than attempting to actually hand it to him, because if it was delivered at the end of a month he might hide and not

actually accept it, so that another month would start and he would therefore be entitled to claim for that further moth. In addition a copy had to be handed to his lawyer personal-ly. The lawyer’s advice stopped just short of saying that if not handed to them, his lawyers would deny having received it, but that was the loud im-plication.

The counter technicality, equally sil-ly, when considering what it is said should have been done, but was not, and therefore yet again an example of form triumphing over substance, is that the regulations should only apply if there were more than 10 employees, which there were not. Therefore the technicality about the way in which the notice was given should not be relevant. It is a fact about which his lawyers are deafen-ingly silent at the moment, but we



[email protected]+44 (0) 148 355 0914

manent resident or a New Zealand citizen, you may be eligible for a visa because of this relationship.

Similarly, if you have any children who are Australian citizens/perma-nent residents you may also be eligi-ble, providing you meet the balance of family test.

If you have any other family living in Australia this will not usually qualify you for a visa, however they could possibly provide nomination for a skilled visa if your occupation is eli-gible under skilled migration

Student Visas

This visa is open to all ages and ap-plicants who want to study at school, college or higher education (includ-ing post-graduate studies). This visa

can also be used as a stepping stone for other visa applications.

Business / Retirement VisasIf you run a business with a signifi-cant turnover (A$500,000 or more) and you are under 55 years of age you may be eligible for a business visa. This is a particularly complex visa that our Registered Migration Agent John Adams is a specialist in.

If you are 55 or older with no depen-dents and have significant wealth (A$1 million or more) you may be eli-gible for an investor retirement visa. You will be able to work part-time in Australia on this visa, which is renew-able every four years. You can con-ceivably spend the rest of your live in Australia. For more information please do not hesitate to contact us for more detail.

Skilled Visas

Skilled visas is the migration route that the vast majority of people use to obtain Australian permanent resi-dency. To qualify for a skilled visa your occupation must be on Austra-lia’s national Skilled Occupation List or one of the State Migration Plans released by Australia’s 8 States/Ter-ritories annually. If you have an oc-cupation on either of these then your spouse, children and any other dependents can migrate with you.

To be eligible for a skilled visa you must be under 50 (although no points are awarded past 45 year of age), have a competent level of Eng-lish, possess the appropriate quali-fications and skills for your occupa-tion, and you will also require rele-vant work experience. A visa points test will also need to be passed, with points awarded for a number of dif-ferent characteristics you possess. You will also be required to pass medical and police checks.In many cases, a nomination is re-quired from either, an eligible rela-tive living permanently in a designat-ed area of Australia, or an Australian

State or Territory government in a re-gional area. If you require nomina-tion from a State/Territory, or a fam-ily member, then in return for this nomination you are required to live in the relevant State for at least your first two years in Australia, thereaf-ter you can live anywhere.

Employer Sponsored Visas

For those who do not meet the re-quirements of a skilled visa (e.g.: your occupation is not eligible), in most cases the visa option available to you is employer sponsorship. This requires finding an employer in Aus-tralia who is willing to offer you a job AND go through the visa bureaucracy involved with employer sponsorship. The job offer will need to be related to an occupation listed on either the SOL or CSOL occupations lists. To ap-ply for a permanent employer spon-sored visa you must be under 50. However, the temporary (457) visa has no age limit.

Family Visas

If you have a spouse or de-facto part-ner who is an Australian citizen/per-

Migrating to Australia? Australian Visas Explained with Free Thorough Visa EvaluationBy Immigration2oz

Immigration2oz




Immigration2oz.com are experts in all Australian visa classes as we deal exclusively with Australian immigra-tion. As Registered Migration Agents we are licensed by the Australian Government to provide advice and assist you through the visa process. We invite you to speak with us today for a FREE visa eligibility assessment and discussion of your migration op-tions.

About Immigration2oz

Immigration2oz is a family business based in Guildford, Surrey. They are Registered Migration Agents that specialise in multiple visa subclasses & provide a professional Australian visa consultancy.

Director John Adams established immigration2oz.com in 2003, after managing a law practice in Austra-lia previously. Since then he, and his dedicated team, have helped thou-sands of people successfully migrate to Australia.

The team, comprised of senior law-yers, several Registered Migration Agents, former Department of Im-migration officials & case managers, provide a highly professional visa service that guides you through the entire migration process.

Immigration2oz prides itself on its in-dividual & tailored approach, where their clients are not files but person-alities. This results in a service level that really does lead the market.

As migrants themselves the directors of Immigration2oz understand the complexities involved in moving your life to the other side of the world, and they look to assist as much as possible by removing the stress and difficulty involved in the visa process.

Once you have decided that Austra-lia is for you, the team at Immigra-tion2oz stand ready to assist you through the visa process.

“At Immigration2oz we are on your team from start to finish, whatever it takes!”

Immigration2oz.com

http://immigration2oz.com



Janice [email protected]+44 (0) 20 7092 6830

Being a Trusted Traveller Has Its Benefits Entering the USBy Janice Flynn

membership in the NEXUS program which is discussed below. The ben-efits of the program are reduced processing times and paperwork at US ports of entry and provide access to expedited entry benefits in other countries.

Instead of queuing in passport con-trol at a port of entry, Global Entry Program members may proceed di-rectly to Global Entry kiosks located at major US airports and some pre-clearance locations outside the US. The program member must present their machine-readable passport or US permanent resident card, place their fingerprints on the scanner for verification and complete a customs declaration. The kiosk issues the traveller a transaction receipt and di-rects the traveller to baggage claim and the exit.

All Global Entry program applicants undergo a rigorous background check and in-person interview be-fore enrolment into the program. While Global Entry’s goal is to speed travellers through the US entry pro-cess, members may still be selected for further examination when en-

tering the United States if security concerns arise after entry into the program. The Global Entry appli-cant must create an account on the Global Online Entry System (GOES), submit an online application, pay a fee and once it is reviewed, the ap-plicant must schedule interview at a Global Enrolment Center located in the US or outside the US in Canada, Qatar and Germany. Those who are inadmissible to the US, such as those with prior arrests or criminal convic-tions, are ineligible for the Global En-try Program.

NEXUS and SENTRI

The NEXUS program facilitates speedy travel between the US and Canada at air, Canadian land borders and marine reporting locations. The process to apply for membership in this program is very similar to that of the Global Entry program.

The Secure Electronic Network Trav-ellers Rapid Inspection or “SENTRI” program was initially implemented in November 1995 to expedite entry over the US and Mexican land bor-der. Applicants to the program must

Getting a US visa can be an uphill battle to obtain and even then entry into the United States is not neces-sarily smooth sailing. Issuance of the visa only allows a person to arrive at a port of entry to ask for entrance to the US, it does not guarantee entry to the US. There have been many restrictions on entering the US since 9/11 but over the years, the US has realised that there is a tension be-tween being restrictive for security purposes and expediting entry for those who are low risk to the US and have the most to contribute to the US economy.

The US Customs and Border Protec-tion (CBP) is the agency under the US Department of Homeland Security responsible for guarding US borders and it implements the procedures and protocols for everyone who is al-lowed entry to the US. Visitors, work visa holders, returning US citizens and permanent residents can expe-rience considerable delays whilst queuing at the land border or airport passport control which can have a knock on effect for the US economy. For example, if a company executive is delayed trying to enter the US to

attend business meetings, it could deflect business that could have been completed in the US. In order to alleviate delays at the border, CBP has developed various Trusted Trav-eller Programs. In addition, the US Department of Homeland Security recently announced its intent to ex-pand its preclearance ports of entry to 10 new airports located outside the US to perform US customs and passport control activities outside the US prior to travellers boarding flights to the US.

CBP introduced four Trusted Travel-ler Programs for non-US citizen trav-ellers to expedite entry to the US for pre-approved, low risk travellers through dedicated lanes and kiosks. As the US government is often wont to do, each of the programs has its own snappy name or acronym:

Global Entry

US citizens, US Lawful Permanent Residents and citizens of Germany, the Netherlands, Panama, South Ko-rea and Mexican nationals are eligi-ble for Global Entry. Canadians are eligible for the program through




customs, and agriculture inspections of international air passengers per-formed on arrival in the United States can be completed before departure at foreign airports instead. All travel-lers may enter the US at the foreign US Pre-Clearance location not just those in Trusted Traveller Programs.

In May 2015, the Secretary of Home-land Security Jeh Johnson announced that the US intends to enter into ne-gotiations to expand air preclearance operations to ten new foreign air-ports, located in nine separate coun-tries: Belgium, the Dominican Re-public, Japan, the Netherlands, Nor-way, Spain, Sweden, Turkey and the United Kingdom at London Heath-row and Manchester Airport. For the CBP, expanding the preclearance program is both a security impera-tive, enabling CBP to stop potential threats before they arrive on US soil, and a strong economic opportunity to speed those who wish to do busi-ness or tourists smoothing their en-try in to the US.

According to the CBP, US entry wait times are down by 13% since the ex-

pansion of the Trusted Traveller Pro-grams. In the last 10 years the US government has experienced many challenges when it comes to the ad-mission of travellers to the US in light of security threats. As can be seen with the creation of the Trusted Trav-eller Programs, it is clear the US it trying to smooth the way for those who it wants in the US for the better-ment of its economy.

In 2012 Janice Flynn established a boutique US visa and nationality law practice in central London providing experienced and bespoke advice to a broad range of clients. Her exper-tise ranges from US employment visa options for small to multi-national companies, US entry issues includ-ing advice for those with prior issues such as criminal convictions, options for individual investors and for those with US family members as well as the acquisition and loss of US citizen-ship. Her practice is lawyer-led and maintains the highest standards in provision of advice. Ms. Flynn, origi-nally from Chicago, relocated to Lon-don 10 years ago.

undergo background checks to en-sure they are a low risk traveller. Ap-proved travellers under the SENTRI program can use dedicated special lanes when driving over US borders and are issued a Radio Frequency Identification Card that will identify their entry record and status in the CBP database upon arrival at the US port of entry.

FAST

The Free and Secure Trade program, or FAST, is a commercial clearance program for known low-risk ship-ments entering the US from Canada and Mexico. This innovative trusted traveller and trusted shipper pro-gram allows expedited processing for commercial carriers and truck drivers from the US, Canada, and Mexico.

FAST vehicle lanes process cargo at land border ports of entry that serve commercial cargo: 17 ports on the northern US border and 17 on the southern US border. The majority of dedicated FAST lanes are located in northern border ports in Michigan, New York and Washington state and

at southern border ports from Cali-fornia to Texas. Participation in FAST requires that every link in the supply chain, from manufacturer to carrier to driver to importer, is certified un-der the Customs-Trade Partnership Against Terrorism program, or C-TPAT.

Expansion of Pre-Clearance Loca-tions

If a traveller to the US is unsure whether they are going to be allowed entry to the US, travelling to the US via a Pre-Clearance location located in an airport outside the US allows a traveller to be admitted to the US prior to boarding a flight to the US. The CBP Officers operate at these lo-cations which are currently located Canada, Caribbean, Dublin, Ireland and the United Arab Emirates. The CBP Officers make admission deci-sions at these locations and there-fore, once a traveller boards a flight in a foreign country, they are admit-ted to the US and therefore do not have to go through passport control when they land in the US. Through preclearance, the same immigration,



Katherine van [email protected]+44 (0) 1227 732 434

Migration Skill Assessment – The Gateway to being considered for a Skilled VisaBy Katherine van Greuning

get hung up on the title, it is the ac-tual work tasks you do on a regular basis that are important to the out-come and these need to be a good match to the Australian equivalent , along with relevant qualifications and experience. There may be in-stances, where you have many years’ experience, but do not have official qualifications and in this case, you may have the option to obtain the Australian Qualification Framework 3 (AQF3) certificate by RPL recogni-tion of prior learning. All assessment authorities publish their processing times and it is worth adding in extra time to allow for delays outside your control, waiting for references etc. Fees vary so check with your relevant assessing body first, fees are payable by credit or debit card.

What do i need to include? Check and double check the relevant as-sessing body requirements but in brief, most will require:

ID Documents: The majority of as-sessing bodies request a minimum of, a certified copy of your passport or full birth certificate and a recent certified passport photo. Some may

also request evidence of you having lived at your home address by utility bill etc. Evidence of name change, marriage/ divorce certificate or deed poll etc., will be required.

Qualification Certificates: Ensure any copies of your trade certificates / degrees/ diplomas etc., have official supporting course transcripts provid-ed by the course provider and that these are certified copies.

Language Results: Some assessing bodies will require evidence of this regardless of your country of origin and may request results are sent di-rectly to the assessing body, check with your assessing body require-ments first.

Documents not in English: If you have studied overseas or some of your documents are not in English you will need to have them officially translated by an approved translator who stamps and signs the translation document with their contact details, then you will need to send this origi-nal (or certified copy) of the trans-lation with the original (or certified copy) of the original foreign language

Gaining a positive skills assessment is essential to progressing with your skilled visa application. Therefore it is vitally important to get this stage of the process right.

There are numerous skills assess-ment authorities approved by the (DIBP) Australian Department of Im-migration and Border protection for-merly (DIAC) Depart-ment of Immigration and Citizenship, to assess your qualifica-tions and experience and either approve or disprove that your qualifications and ex-perience are comparable to the Aus-tralian standard. The skill assessing body relevant to you will depend on your occupation as identified by the Australian & New Zealand Stan-dard Classification of Occupations Code (ANZSCO) code relevant to your nominated occupation. A posi-tive skills assessment outcome let-ter will enable you to claim points under the general skilled migration (GSM) pathway, points test. Each as-sessing body has its own specific re-quirements regarding the type of ev-

idence they require. They all provide document checklists to help guide you. Read their requirements care-fully, especially relating to the certi-fication of documents, this can be a costly and timely error if you get it wrong, with further requests from the assessing body to meet their ac-cepted standards. If you are coming up to a birthday you may lose points,

if you do not submit the next stage of the visa process (EOI) ex-pression of interest, in time for a signifi-cant birthday dead-line and this could make the difference

between being eligible to be consid-ered to apply for a visa or not.

To find your nominated occupation and overview of the relevant job de-scription go to www.immi.gov.au/employers/anzsco/anzsco-code.htm and www.abs.gov.au. Some occu-pations are referred to by different names too, for example a UK carpet fitter in Australia is called a floor fin-isher and a plasterer /dry wall liner in the UK maybe known as a fibrous plasterer in Australia, however don’t


http://www.immi.gov.au/employers/anzsco/anzsco-code.htm

http://www.immi.gov.au/employers/anzsco/anzsco-code.htm

http://www.abs.gov.au



• If you are self employed an original signed letter from your ac-countant confirming your self-em-ployed status in addition to P60’S, Tax returns, pay slips, offer letters, contracts, Also supplier and/ or cli-ent invoices with bank statements highlighting the relevant payments , Evidence of advertising with flyers or website details for your business are very useful • Original documents will not be returned to you, so keep copies for your own records

What if i don’t want to ask my cur-rent employer for a reference? In most cases a statutory declaration will be accepted in place of the ref-erence WITH other supporting evi-dence as detailed earlier, again, check with your assessing body or Austra-lian Registered Migration Agent first.

Talking to a registered migration agent can be very helpful as they are often in regular contact with the skill assessment authorities and keep up to date with changes in require-ments etc. See feedback below from client Mark Hughes Electrician who

recently attended a pre-assessment practical workshop day, arranged by his migration agent, held in London designed to help familiarise yourself with requirements of the actual skills assessment.

It was refreshing to see all my paper-work was in order and I was quite a bit ahead in the process compared to others. There was a girl there who paid £750 to get her paperwork signed!! Also those without an agent seemed to have been having a night-mare with the application process.

As you can see I refer to double checking many times, in this article, the reason being it is very easy to rush to get this stage done only to find requirements are not met to the exact standard and three months can easily becomes six or nine months, putting your plans of a dream life in Australia a little further away. If you meet the criteria to be considered for a skilled migration visa, with a lot of careful planning and forethought, it is possible to get it right first time and make your dream a reality.

document.

What is a certified copy? A certified copy is when you take the original document to an authorised person with a photo copy of the original document and the authorised per-son then usually stamps and signs his/ her name to say for example i certify this is a true copy of the origi-nal document, make sure they will sign, date and PRINT their name and give contact details. If the details are not legible they will be rejected and you will have to repeat the process. Check the assessing body actual wording requirements first.

Who can certify my documents? An Australian Registered Migra-tion Agent can certify documents for some of the skill assessment au-thorities, you will need to check the relevant assessing authority require-ments for your occupation.

How do i provide Work Evidence?

It is vital to support your claims of work experience with evidence of full time or part time equivalent paid

employment. Voluntary work will not be counted.

Evidence may include, but is not lim-ited to;• A relevant detailed and current CV• Photos of you undertaking the work especially relevant to trades-persons • Full time paid employment evidence, for example, P60’S, Tax returns, pay slips, offer letters, con-tracts of employment, pension de-tails.• References from current and previous employers usually covering 3-5 years of work experience, but do check, it will depend on the assessing body requirements. Ensure they are written by your manager or supervi-sory person a reference written by a colleague at the same level as your-self will not be accepted. They MUST be written on official letterhead (no emails) signed and dated (you’d be surprised how many referees forget this important part!) Ensure the con-tact details are present with phone number- address- email contact- and website.



Born in the UK, Katherine van Greun-ing spent eight years living and work-ing in Melbourne Australia, before returning home in May 2008. Hav-ing experienced the migration pro-cess herself from temporary spon-sored visa to permanent residency & citizenship, Katherine can share true empathy with any concerns clients may have. Katherine’s career has included many years spent as a Registered Nurse in the UK and Jeddah, Saudi Arabia fol-lowed by a career path in health care recruitment, based in London and Melbourne Australia. Having suc-cessfully recruited many registered nurses to live and work throughout

Australia (who are now living their dream!) from as far afield as UK, Ire-land, Europe, Japan, Taiwan, & Hong Kong inspired Katherine to pursue a career in the migration industry. She completed her Graduate Certifi-cate in Australian Immigration Law and Practice at Victoria University Melbourne, prior to returning to the UK in May 2008 to establish get-me2oz.com. Katherine is a member of the (MA) Migration Alliance & the (MIA) Mi-gration Institute of Australia, the peak professional body for Austra-lian Registered Migration Agents.

getme2oz.com

getme2oz.com


expert guide: relOcatiOn 2015norway

The Do’s and Don’ts of Moving to Norway to WorkBy Øystein A. Sverre

Registration The tax authorities have been and still are the primary driving force in getting foreign workers registered in Norway. An important tool in this endeavor has been to have everyone coming to Norway to work registered with the census office, which is part of the tax authorities. All foreigners coming to Norway to work for a pe-riod of time (not immigrants pertain-ing to stay forever) need a temporary registration number, called a D-num-ber. In order to get a D-number, the worker or usually his/her employer must register him/her with the cen-sus office, usually the Central Office, Foreign Tax Affairs (COFTA) on the form RF-1199.

The tax authorities, in addition to the RF-1199 form, as of 2014 have intro-duced an identity control, where ev-eryone coming to Norway to work must show up at a tax office with identification papers (passport or national ID card approved as a travel document in the Schengen Area) and a special form (RF-1209) completed. Once their identity has been estab-lished at the ID-control, a D-number will be issued.

If the individual is going to work in the construction business, the em-ployer must apply for an ID- card (in Norwegian “byggekort”) in addition to the D-number. This card is nec-essary to gain access to the building site and must be shown if the Labor Directorate does an inspection of the building or construction site. Person-nel without an ID card risk that they are denied access to the site.

Employer/company registration of branch in NorwayEmployers that do not have an ad-ministration or establishment of any kind in Norway, but who still send employees to Norway to work, must register in Norway in the national register of entities. This registration is a simple procedure. The purpose is to receive an organisation number, which is a requirement for all entities that do business or have employees in Norway. Without the organisation number, the business cannot be reg-istered in the employer/employee register, in the VAT register or any other public register. In addition, the employees cannot be registered with a D-number, as they would need to be registered with their employer,

Work/residence permitTo relocate from one country to an-other can be demanding and involve a lot of “red tape”. The EU and EEA (EEA = EU plus Norway, Iceland and Liechtenstein) treaties have done a lot to alleviate the procedures in-volved in moving from one EEA coun-try to another. Thus, an EEA citizen moving to Norway does not require a work permit. The police/immi-gration authorities are no longer in-volved in the procedure.

After the EU expand-ed eastwards in 2004, many eastern Euro-peans arrived in Nor-way to work, and, be-cause of the recently relaxed immigration legislation for these personnel they came on a “cowboy basis”, without being registered, neither in the employer/employee register nor the tax/VAT register or census office. Quite a large “black” or unregulated labour market devel-oped.

Therefore, Stortinget (Norw. Par-liament), the government, the tax/

census authority as well as the la-bour authorities together with the labour unions have introduced rules and regulations regarding workers coming to Norway to work. So, even though they do not need a work- or residence permit, there is still a lot of rules and regulations that EEA na-tionals need to adhere to if they want to work in Norway.

If the worker comes from a coun-try outside of the EEA, there is nor-

mally a requirement for a work/residence permit. The applica-tion process can be quite complicated, time consuming and tedious, but is neces-sary. All application forms and descrip-

tions of procedures can be found on the internet. The application must be submitted through Norway’s rep-resentation (Embassy/consulate) in the home country of the applicant. The move to work in Norway must not take place before the applicant has received the work/residence permit.

Øystein a. [email protected] +47 23 23 90 35



expert guide: relOcatiOn 2015norway

more, the EEA has centrally resolved the question of to which country the social security premiums shall be paid in cases of cross border employ-ment. Under the right circumstances it is possible to be exempt from pay-ing social security premiums in Nor-way, while working here.

Øystein A. Sverre has 30 years of ex-perience as advisor to, and litigator for, foreign companies and individu-als engaged in the Norwegian Oil and Gas industry, the building and construction industry plus banking. In addition to the Scandinavian lan-guages and English, Øystein speaks and writes German. Since 1978, the main interest and work has been as advisor and lawyer for companies within the oil and gas industry, within International and National Tax law, Corporate Law, Mergers and Aquisi-tions, Corporate immigration, con-struction contracts and litigation re construction contracts.

Brækhus Dege Advokatfirma DA (BD)BD is a comprehensive law firm con-sisting of some 60 lawyers, offering all kinds of advice and assistance expected from a law firm, includ-ing litigation and all aspects of busi-ness law. BD Tax and VAT Services AS (BDTV) is a subsidiary of the BD law firm. BDTV is a complete service provider for non-Norwegian compa-nies performing work in Norway or export to Norway, without having an administration here. Our services in-clude all the registrations described above. Furthermore BD advice on various aspects of tax liability, social security, company registrations, plus BDTV offer payroll services. BDTV is VAT- representative for a large num-ber of foreign entities doing various kinds of business in Norway.

using the employer’s organisation number.

Minimum WageIn the building industry, as well as in the onshore oil and gas process industry and in the shipbuilding in-dustry, the Norwegian national tariff agreements between the workers’ unions and the Employers’ unions apply universally and, in addition to their normal scope also apply to for-eign workers working temporarily within these industries.

The purpose of this legislation is two-fold:

1. The official purpose, to avoid em-ployers and hirers of labor practicing social dumping, i.e. taking advan-tage of labourer’s low wages in their home country, by paying much lower wages than the going wage in Nor-way. 2. The other purpose, which is unof-ficial, is protectionism. Making the tariff agreements universal within an

industry takes away the competitive advantage the foreign employers would otherwise have, in the form of cheap labour. The Norwegian client/customer is jointly and severally liable for the minimum wage, both to control that its contractors are paying at least minimum wage, and to pay the differ-ence if the contactor does not. This has led to some quite embarrassing conflicts where the contractor has not abided to the minimum wage re-gime and the customer has received the bill for the underpayment.

Tax and social securityAll work and all activity with an eco-nomic purpose performed on Nor-wegian territory (plus the continen-tal shelf) is taxable in Norway. In addition, all salaries paid for work performed in Norway generate the liability to pay social security premi-ums to Norway. An extensive net-work of tax treaties rules where the actual tax must be paid, the worker’s home country or Norway. Further-


expert guide: relOcatiOn 2015germany

elke [email protected]+49 0711 28 47 09 22

Only an all-round support will ensure the sustained success of international assignments and expatriates’ happiness By Elke Mueller

Within the setting of a “Look and see tour” lasting not less than 2-3 days, these questions may be settled with a competent relocation services pro-vider who is well established in the family’s new location. School-age children should be included in the programme.

An intercultural training should not be viewed as “nice to have” but form an integral part of any posting. The training is not primarily about rais-ing awareness as regards “Do’s and Don’ts” but about strategies and business objectives designed to fulfil the requirements of the job at hand. Talking about social matters and pointing out new choices of action to privately try out and experience are just as important. Children from the age of six should take part in an intercultural training or in a train-ing tailor-made for children. Ideally, parents and children attend their own separate seminars and compare notes afterwards.

It is crucial, however, that preparato-ry intercultural training be continued in the host country. More than two thirds of posted staff would welcome

ongoing intercultural support, even though this is an absolute exception with most companies.

Critical for a happy family: their new home abroad

No family should be left to its own devices when looking for a flat, a suit-able school or child care even when moving to a neighbouring country within Europe. A locally established service provider knows the regional housing market, schools and kinder-gartens, and has a network of excel-lent contacts at his disposal. Con-sequently, flat hunting turns into a manageable process, negotiations with the landlord receive the support they need and the local relocation agent takes care of any intercultural obstacles that may occur. Necessary formalities are seen to in a timely manner and, if possible, based on a full power of attorney.

An international move means an enormous stress, especially for fami-lies: Firstly, there is the new profes-sional challenge that leaves little time for family, particularly during the first months, a new school, ac-

For an ever increasing number of em-ployees it has become the norm to spend several years abroad, whether for the purpose of integrating a new company after its purchase, for a transfer of know-how or as part of individ-ual career planning within the company. Every foreign assign-ment is a challenge, especially when the employee’s entire family moves abroad with him.

As far as the member of staff being sent abroad is concerned, the con-tentment of their family travelling with them is the most vital factor for a successful secondment. Accord-ing to the 2014 Cartus Mobility Re-port, 61% of postings as a family are still terminated prematurely in spite of support in the shape of language training, intercultural seminars and relocation services. At the same time, fluctuation among returning skilled workers and managerial staff is also considerable, causing compa-nies to lose millions in costs.

What can companies do? An interna-tional assignment supposes a good deal more than a move. After all, the family is giving up its usual so-cial environment and extended fam-

ily, children are fac-ing not only a change of school but also a change of language, and accompanying partners or spouses frequently leave their own jobs behind.

Sound preparation and support as a basis for a successful assignment abroad

In light of the above, clarifying the expectations of the accompanying family ahead of time is indispensa-ble: how much time will we be able to share as a family? As a partner or spouse, can I pick up a job in the new location? Can I use the time for some solid training or education? What opportunities are available for chil-dren to swiftly integrate, other than attending an international school? Is it possible to continue practicing a cherished hobby?

compass-international.de



to use that period to their maximum personal advantage. A targeted coaching during the first year of the assignment may thus contribute sub-stantially to a happy stay in the host country.

Considering typical measures of sup-port, however, this type of back-ing remains an exception as most companies tend to rather randomly combine different individual services from an even more diverse variety of providers.

Every foreign stint comes to an end – reintegration starts on the first day of the assignment

Unfortunately, only few global play-ers view reintegration management as an integral part of their personnel policy, and as a responsibility to be equally shared between the employ-ee and his company. Ensuring regu-lar exchanges during the entire stay abroad, keeping international staff abreast of any changes taking place at their original location, pointing out career opportunities to them, pay-ing attention to their career requests coupled with ongoing personnel de-velopment will make for employees who not only look forward to their return but are also staying with the company afterwards.

companying spouses or partners looking for something meaningful to do together with coping with a new language and living in a differ-ent culture. It is the responsibility of a good relocation company to act as a competent and flexible contact when questions about everyday life arise, thus supporting integration as best as possible and attending to the needs of expats during their first months abroad.

Stress can be significantly reduced, for instance, by quickly finding a new apartment for the family to en-able them to create a new home for themselves and settle in. Once the

family is comfortably settled at their new address, a coaching or mentor-ing programme that also includes teens from age 13 or 14 will have a positive impact on their successful integration.

For accompanying partners or spous-es who have given up employment in their home country it is useful to obtain professional advice on oppor-tunities available to them in terms of jobs, further education or voluntary work. As picking up a job may not al-ways be an option, depending on the host country, it is all the more impor-tant that accompanying partners or spouses are well informed as to how



of expat families will not only ensure a worthwhile stay but also turn the assignment into a success for the company, the employee and his fam-ily.

Prematurely terminated postings or resignations handed in shortly after the expat’s return cost companies several times over the amount they would pay for continuous supervi-sion.

Elke Mueller studied Economy with the major field Human Resource Management. She is the Managing Director of compass international gmbh, a consulting company which works as a Relocation Service Provid-

er and focuses on International Per-sonnel Development. As a Reloca-tion Service Provider compass inter-national gmbh supports companies in setting up smooth and sustainable relocation processes.

Elke Mueller has a qualification in Relational Organizational and Team Development, her main focus as a trainer are international team devel-opment processes and on coaching families in the process of expatria-tion. In 2014 she was awarded by the Federal Ministry of Economics in Berlin as a model businesswoman.

A fact all too frequently underrated or totally ignored by all parties in-volved i.e. the company, the expat, the family, is that all of them are un-dergoing change during the foreign assignment period. If, for exam-ple, supportive coaching in the host country is included the employee’s return may be optimally prepared. Issues similar to those prior to the relocation must then be addressed: how are we as a family going to deal with the move back home? What has been an enriching experience for us? What are we going to miss? How may we adequately say goodbye to our host country, and how can we en-sure a smooth return home? Again, as with the family’s relocation to the

host country, it may be useful to pro-vide them with assistance in finding a new home.

Conclusion

While international mobility may have become normal, it does not sufficiently take the genuine needs of the employees involved, let alone those of their accompanying families into consideration. A posting abroad is not simply a move to another lo-cation but a process that stretches across the entire assignment peri-od and should, therefore, be under sustained supervision. Support pro-vided by relocation agents flexible enough to pay attention to the needs



sabine reimann dion [email protected]+49 211 13 68 512

[email protected]+44 20 7296 2316

Tenant Relocations in Europe – Key Issues in Germany and England & WalesBy Sabine Reimann & Dion Panambalana

Typically, commercial tenants pay a fixed rent for the used space and an advance payment for further ser-vices like operating, refurbishment, maintenance and repair of common areas and any technical facilities, ad-ministration, tax, insurance, energy, general management etc. These ancillary costs can be considerable and will usually rise during the lease period or CPI. Furthermore, main-tenance and repairs required with-in the leased property are likewise long-term cost drivers and often (like in the UK) are completely the ten-ant’s responsibility. Rent increases by reference to an index, typically the consumer price index. UK style market rent reviews are rare.

Another important component of the lease agreement is the building specification. It states what condi-tion the premises must be in when the landlord hands it over. If there are any doubts, the tenant must pay for anything it wants but which is not included in the building specification.

In Germany, sustainability is as, if not more, important to tenants than it is in the UK. So whether a build-

ing achieves a particular standard of DGNB, LEED or BREEAM certification may be a key part of the deal.

Last but not least – before a new lease agreement is concluded, it is important to ensure that your old lease is terminated correctly. Not all agreements simply expire. In many cases a notice of termination must be given. Here attention should be paid to notice periods and powers of representation. When moving out of the old premises it is also important to ensure that any lease obligations e.g. restoring the property to its orig-inal condition and refurbishment, are properly carried out in order to avoid being subsequently confronted with a damages claim. Much of this is just the same as in the UK.

UK

Certainty on rent and rent at review – and what you will pay by way of service charge – have always been top of a tenant’s shortlist of issues that need to be addressed. Unless you are a major occupier taking a lot of space for a long time, market rent reviews are becoming rarer as

Corporate relocations are a major upheaval. They involve the time, resource and opportunity cost for key personnel involved in the move as well as general commercial con-cerns about how long and on what terms they should lease a building for. That is on top of having to leave what might have been their major headquarters most lucrative retail outlet or perfectly located logistics hub after many years of business continuity. This arti-cle explores some of the key issues on tak-ing significant space in England and Wales (UK for short) and Germany.

GERMANy

You cannot take a lease without a termination right for more than 30 years in Germany. Lease agreements are normally designed to end after five or 10 years and the tenant must choose between moving or exercis-ing a contractual renewal option if the lease contains one. So your first consideration must be whether you own or lease the building.

Typically, you will instruct a real es-tate agent to find the right property. That agent may also give you consul-tancy advice amongst other things on space efficiency, (open plan, cellular, etc.) and building design. In Germa-ny additional consulting services are usually an add-on to the brokerage fee.

Trade tax is a major point. Which municipal authority you are in de-

cides the trade tax multiplier. In Co-logne it is 475%. In the city of Monheim – which is in the im-mediate vicinity – it is (only) 285%. The range is even greater when you consider

Munich’s multiplier is 490% whereas it is 240% for Gruenwald.

Moving to new premises does offer you the chance to negotiate better terms than you might currently have. Typically, new space will come with a tenant’s incentive package which ei-ther you or your broker can optimise for you.





ability and be as clear as they can on dilapidations and reinstatement.The relationship between landlord and tenant, which has been chang-ing in the UK to a customer-based relationship for many landlords over the last 15 years, has finally started to change in the legal market. Ten-ants can ask for something that they genuinely need for their business and which the landlord can reasonably accommodate at no extra cost, but maybe with minor inconvenience. If you can fully and fairly explain your position and you are prepared to concede something else in return, consider asking for it. A receptive landlord might be able to grant it.

Sabine Reimann joined the firm’s Real Estate Department in 2000 and has been a partner since 2008. She is specialised in real property and commercial leases and advises clients with respect to real estate transactions, structuring and nego-tiating of lease agreements, facility management agreements and real

estate development. Furthermore, she has wide experience in the han-dling of arguable legal relationships in the range of realty, judicial and ex-tra judicial.

Sabine is ranked as a “Leading In-dividual” in Chambers 2014. She is a member of Women in Real Estate and the Legal Committee DGNB.

Dion joined the firm’s real estate department as a partner in August 1999. He has experience of all as-pects of real estate work but with particular emphasis on mixed use development, development fund-ing and regeneration, property joint ventures, corporate occupiers and structured sale and leasebacks. Dion is a member of and represents the British Property Federation on vari-ous landlord and tenant policy issues including, in particular, the Model Commercial Lease. Dion is named as a “Leading Individual” in Chambers 2015 and The Legal 500 2014 and is listed as an expert in Who’s Who Real Estate 2014.

lease lengths shorten and landlords accommodate (and sometimes wel-come) some sort of “fix” in years five to 10. “German style” indexed rent reviews are not uncommon. Similar-ly with service charge, although that tends to be over a shorter period.

If tenants are taking space that has been constructed to shell and core, they might ask the landlord if the tenant can include the tenants fit out contractors on the landlords insur-ance policy so that if they cause dam-age to the building, the landlord’s in-surance policy covers it. Otherwise their contractors will need to take out their own insurance and add that to the cost of the fit out. There is a genuine debate to be had between landlord and tenant on cost as typi-cally the landlord might have built to a Cat A standard of finish anyway. Either way it is probably cheaper to ask the landlord to insure this than for the tenant’s contractors to have to bear it.

The Model Commercial Lease suite

of documents (“MCL”) has been in the market from summer 2014 and represents a fair starting point for landlords on all classes of institution-al property. Many tenants can use the drafting in it to reflect their final negotiating position. A position that has gained a lot of traction in the last year or so is the good neighbour ar-rangements. This means that when a landlord is spending a tenant’s mon-ey, or making decisions that affect the tenant’s business at the prem-ises, it must behave reasonably and not overspend, or unreasonably reg-ulate. The MCL reflects current prac-tice in this regard as these clauses tend to be accepted by landlords, if they have not already included them in their lease, without murmur.

On many lettings, some sort of sched-ule to reflect reinstatement, rent re-view (if there is one) and dilapida-tions liability tends to be the norm. If tenants are taking new space this will be covered. But it is also impor-tant for older space, where tenants might want to limit their repairing li-


expert guide: relOcatiOn 2015swItzerLand

Lugano relocation [email protected]+41 79 420 7743

Your Relocation Service for Lugano and TicinoBy Lugano Relocation Service

With all the contacts and knowledge to ensure you get the very best from the region, Lugano Relocation Service should be the first port of call for companies and entrepreneurs looking to establish themselves in Lugano or Ticino.

Lugano Relocation Service has been providing relocation services to national and international clients since 2008. Its comprehensive service for companies, individuals and families who wanting to relocate to Lugano or Ticino is further enhanced by its knowledge of the region and the range of contacts available.

The company can manage a whole range of affairs, from House-Hunting and Arrival Service to Immigration Formalities and Company Registration. For English speakers, an excellent network is available to ensure a smooth transition.

Taking care of the hard work

Finding the right home in Ticino is very important. Lugano Relocation Service’s house hunting service ranges from furnished apartments and houses for rent or sale. The house hunting service is available in Lugano as well as across the whole canton of Ticino.

After establishing the clients needs, Lugano Relocation Service start searching for suitable property to generate a list which adheres to the necessary requirements. The company then arrange appointments to visit the property and can also help guide you through contracts and procedures, right up to the hand-over of keys.



expert guide: relOcatiOn 2015netherLands

wilma van der Veer sanne van ruitenbeek Lyke [email protected]+31 20 658 6330

[email protected]+31 20 470 93 64

A Case study for the NetherlandsBy Wilma van der Veer, Sanne van Ruitenbeek & Lyke Apontoweil

ple, the employer has its location in the Netherlands.

Expat exception

There is an exception, though, to the two starting points set out above. If it is in fact apparent ‘from the circum-stances taken as a whole’ that the employment contract evidently has a closer connection with a country other than the one which, according to the starting points above, would be the designated country, the law of that other country would then ap-ply. This is also known as the ‘expat clause’.

An example of this could be an em-ployee of Indian nationality who is sent by his Indian employer to work in the Netherlands for a relatively short period of time, such as two years, but who retains close links with India. For example, he remains employed by the Indian employer, keeps his house and family in India, continues to pay for Indian (social) insurances and the employment con-tract contains expatriate provisions (e.g. removal allowances, reimburse-ment of housing costs, repatriation

provisions etc.). In this situation, it can be argued that the employment contract continues to be more close-ly connected to India, so that – ac-cording to the EU regulation – Indian employment law is or remains appli-cable.

Priority rules for international em-ployees

Elaborating on the above case, it is important to be aware that, on the grounds of European law again, ‘priority rules’ exist within each EU member state that always apply, irre-spective of the employment law that applies to the employment contract. The idea behind this is that foreign workers who are working temporar-ily in, let’s say, the Netherlands and where the employment contract is governed by foreign law, will be en-titled to certain minimum employ-ment conditions under Dutch law, in so far as these concern aspects such as:• Equal treatment;• Working conditions;• Working hours;• Minimum wage and minimum holiday allowance;

When a Dutch IT company is ready to hire a great candidate from India as their IT manager there are several aspects that need to be considered before making that decision. These aspects are: the employment law situation, the tax consequences, and the permit situation and last but not least the relocation itself.

Aspects of employ-ment law when hir-ing internationals

In our practice we often get ques-tions from companies that want to hire someone from abroad to work in the Netherlands. The first ques-tion that needs to be answered is: what employment law is applicable to the employment contract? Is it Dutch employment law or the law of another country? A European reg-ulation provides an answer to this question. The following two rules are the starting points:1.The employment contract is gov-erned by the law of the country in which, or from which, the employee normally carries out his work, even when he has been sent to work tem-

porarily in another country;2.If an employee does not normally carry out his work in just one coun-try, the law of the country will apply where the employer is located.

Example for rule 1

An employee of In-dian nationality is employed by a Dutch employer and carries out his work mainly in the Netherlands. However, occasional-

ly he makes a business trip to the In-dia to attend meetings. In that case, this employee normally works in the Netherlands and Dutch employment law is applicable to the employment contract, despite the fact that he oc-casionally works in India.

Example for rule 2

However, if the same employee works half of the time in the Neth-erlands and the other half in India, so that it cannot be determined in which country he ‘normally’ works, Dutch employment law is applicable in view of the fact that, in this exam-

grs-relocation.com




obliged to register at the Town Hall of the city where they will be liv-ing. After the registration has been completed the Town Hall will provide them with their BSN. Depending on the Town Hall this could be done im-mediately or within 1-2 weeks after the registration has been completed.

The 30% ruling

Since the Indian employee in our ex-ample is hired from abroad, he might qualify for aspecial tax ruling in the Netherlands, the so-called ‘30% ruling’. In order for him to qualify for the 30% ruling, the following requirements must be met:

1. He must be recruited from abroad or assigned to the Nether-lands;2. He must have resided in an area more than 150 kilometers outside the Dutch border, in more than 16 of the 24 months prior to his Dutch em-ployment;3. He must have specific expert knowledge (in practice a minimum salary threshold).

In our example the first two require-ments are met (i.e. hired by a Dutch employer while living in India). Since our Indian IT specialist is older than 30, he will meet the third require-ment if his annual taxable salary is more than €36,705 (excluding the 30% allowance). Please note that for employees younger than 30 hold-ing a master’s degree, a lower salary level of €27,901 applies. Since the agreed upon annual salary of the In-dian employee amounts to €60,000, all requirements are met. In that case, as a result of the 30% ruling, the employee is entitled to the fol-lowing benefits.

Tax free allowance up to 30%

The most obvious benefit of the 30% ruling is that the Dutch employer may pay the Indian employee a tax free allowance of up to 30% of his original agreed upon gross salary. In practice, his annual taxable salary will be reduced to €42,000 (70%) and a tax free allowance of €18,000 (30%). Since the 30% allowance is deemed to cover all extraterritorial costs re-lated to the Dutch employment (e.g. double housing, home leave, etc.),

• Minimum number of vacation days.

Choice of law when employing in-ternational employees

Apart from European law as de-scribed above, the employer and em-ployee may include a ‘choice of law’ in the employment contract by in-cluding a statement such as ‘this em-ployment contract will be governed by Dutch law’. However, if the choice of law is not in line with the law of the country designated under the European regulation, this can lead to a situation where the law of two dif-ferent countries will govern the em-ployment contract (namely the law decided on in the choice of law and the law designated by the European regulation). The law of the country designated by the European regu-lation cannot in fact be ‘contracted out’ by the choice of law.

If two legal systems are applicable, it is the employee who usually benefits from this. It is therefore important to check carefully which employ-ment law is applicable under Euro-pean law, before making a choice of

law in the employment contract. In case of doubt, always seek advice in good time.

Tax aspects

The next thing to consider and being aware of is the tax situation:

The taxation of foreign nationals working in the Netherlands strongly depends on their residency status. Residents are taxed on their world-wide income. Non-residents are only taxed on income from specific Dutch sources. A person will become a tax resident of the Netherlands if a permanent bond of personal nature with the Netherlands is established. This is determined based on factors such as physical presence, family residence, location of a permanent home and registration. In our ex-ample the whole family permanently moves to the Netherlands, so it is clear they will all become Dutch tax residents as of the immigration date.

Dutch tax and social security num-ber (so-called “BSN”)

As Dutch residents, they are first



Income Tax rate Soc. Sec. rate Combined rateUp to €19,822 8,35% 28,15% 36,50%€19,823 - €33,589 13,85% 28,15% 42,00%€33,590 - €57,585 42,00% - 42,00%€57,586 and more 52,00% - 52,00%

Based on his original gross annual salary of €60,000, without the 30% ruling the net annual salary of the Indian employee would be €35,650 (i.e. €60,000 minus 24,350). As a result of the 30% ruling, his net annual salary will increase to €43,351 (i.e. €42,000 minus €15,549 plus the 30% allowance of €18,000). The Dutch tax year runs from 1 January through 31 December. For his first year in the Netherlands, the Indian employee has to file his tax return before 1 July 2016 (M-Form). In the following years he has to file his income tax re-turn before 1 April. The tax assessment is usually issued within six to eight months.

Please note that the Dutch employer will withhold wage tax on the employ-ment income of the Indian employee on a monthly basis in the Dutch payroll administration. The wage tax that has been withheld serves as an advance payment and will be set-off against the final income tax payable.

Dutch social security

The Indian employee (and his family) will also be covered by Dutch social security. Dutch social security can be split in two different categories. The first category provides benefits to all Dutch residents (e.g. state pension). The Indian employee has to pay the national insurance contributions, which amount to 28.15% of his taxable income (capped at €33,589). The second category provides special social security benefits to employees (e.g. unem-ployment, disability). The employee insurance contributions are fully paid by the employer.

these costs cannot be reimbursed tax free in addition to the 30% allow-ance. If the total amount of the ex-traterritorial costs for the Indian em-ployee would exceed the fixed 30% tax free allowance, it is possible for the Dutch employer to reimburse the actual extraterritorial costs to the In-dian employee free of tax.

Partial non-resident taxpayer status

The Indian employee in principle qualifies as a Dutch resident taxpay-er. However, under the 30% ruling he can opt to be treated as a partial non-resident taxpayer. Dutch income tax is levied on three categories of in-come. Box 1 taxes (self) employment income and income from a primary residence. Box 2 taxes profits from a substantial shareholding (at least 5% the shares of a company) and Box 3 taxes the income from savings and in-vestments. As a partial non-resident taxpayer, the Indian employee will in principle be exempt from taxation on income in Box 2 and Box 3. There-fore, the Indian employee would only have to pay taxes in the Netherlands

on his employment income (i.e. Box 1). He also remains entitled to the regular personal tax deductions and personal tax credits.

Fees for international schools and changing driving license

There are two other aspects of the 30% ruling that might benefit our Indian employee. First of all, if his children attend a qualifying interna-tional school, his employer can reim-burse the international school fees as a tax-free allowance on top of the 30% allowance. In addition, if the Indian employee has a valid Indian driving license, he can directly apply for a Dutch driving license without taking a driving test.

Dutch income tax

Based on the 30% ruling, the Indian employee only has to pay taxes in the Netherlands on his employment income (Box 1). In Box 1 the follow-ing progressive tax rates apply (for 2015):



the employee. There are three groups: 30+ years of age, under 30, and the search year group. The example we provide below is valid now until the gov-ernment change this.

The minimum Gross salary requirement per month including 13th month and excluding holiday money is:

HSM 30+ HSM 30- HSM after search year

€4.189 €3.071 €2.201

The minimum Gross salary requirement per a year including 13th month and excluding holiday money is:€50.268 €36.852 €26.412

Once the visa is approved and the documents obtained from the Dutch em-bassy the family can travel to the Netherlands.

Local changes ahead:It is wise to prepare the family for the cultural shock, living circumstances, work ethics, housing situation, schools, food, transportation etc. We do not have the space to explain all of it here but here are the most important ones.

Schools:Schools are very important for families going on assignments. In the Nether-lands you will find a great variety of schools which include private, public and international schools. It is wise to make inquiries at the school of your choice ahead of time to find out about possible wait list. Not all schools have wait list but some do for certain ages. Your consultant will also know.

The Indian employee is also entitled to the Dutch child allowance. For children aged between 12 and 17 the allowance is €273.78 per quarter / per child.

Finally, it is mandatory for the Indian employee (and his wife) to conclude a Dutch health care insurance. The insurance needs to be concluded within four months after their arrival.

Immigration With regards to the immigration pro-cedure there a view options: Blue card, highly skilled migrant, the regu-lar work ad residence permit (TEV). For our case we are going to look at the highly skilled migrant procedure (HSM). For the Netherlands this pro-cedure is much faster than the Blue card 2-3 weeks versus 2-3 months for applications.

One of the advantages of the HSM procedure versus regular work and residence permit (TEV) for the com-pany is that they do not need to advertise the position in the Neth-

erlands or Europe. The advantage for the spouse is that they can work without having to obtain a work per-mit themselves.

The spouse can apply for a job and when the spouse is hired they can start to work at once. This is indi-cated is also indicated on the back of their residence card. The thing to remember is that the permit for the spouse is depending on the permit of the employee. If for one reason or another the contract is terminat-ed this means that the permits for the spouse and children comes to an end.

The basis of the HSM is knowledge and income. The government has made a number of changes the last few years and continues to adjust the minimum requirement for the income on a regular basis. This year changes include: monthly income versus year income; the minimum income can no longer include 8% holiday pay but it can include a 13th month. The full salary has to be paid into a personal bank account from



Housing:The availability is there if you have a proper budget. Please keep in mind that what you see on the internet is not always available once you check things often are different. Check with a professional they know what is available and what is good and not. In the Amsterdam area you can find good places from €1,750, and up when you check outside the city the budget can be less. It is wise to take a specialist with you when negotia-tions for the rental contract have to be done as well as for the check-in. A good check-in report can prevent a lot of trouble in obtaining the de-posit back. The key things to check in the contract are the diplomatic clause, are there clauses about man-datory cleaning, (how often by pro-fessionals) what are the specific re-quirement on the deposit etc. Leeg-stand, and renewal clauses are also very important. However that would be a whole other article.

Wilma van der Veer, President of Global Relocation Services BV, has been involved in the household goods and relocation industry for over 26 years. In her current position

Sanne van Ruitenbeek is attorney-at-law and joint owner of Pallas At-torneys-at-Law in Amsterdam. Pal-las Attorneys-at-Law specialises in employment law and employee par-ticipation law.

Sanne represents companies and private individuals in matters relat-ing to collective and individual re-dundancies/dismissals, employee participation, employment contracts and mergers and acquisitions. Sanne has a special focus on international employment law and cross border employments. She started her career in 2006 at a large international law firm.

Sanne regularly gives lectures and has published widely in the field of employment law. Sanne is a mem-ber of the Netherlands Bar Associa-tion and the Netherlands Association of Employment Lawyers. Besides her work for Pallas, Sanne is supervisor of the Amsterdam Legal Aid Founda-tion.

Lyke Apontoweil is a Tax Lawyer and Partner of Hillbrook and has over 17 years’ experience in the field of expa-

she runs the company she has found-ed. Prior to this she was the VP for KHZ international movers and prior to that she was a bank manager for over 10 years.

Wilma is an active member of the ERC where she received the GMS-T status in 2005-2016. She is also the chair-person of the ARPN (Association Re-location Professionals Netherlands) the branch organisation of reloca-tion professionals in the Netherlands the ARPN represent the industry to-wards government and immigration authorities amongst others.

Due to her work and the network GRS has around the world Wilma trav-elled to over 42 countries and lived abroad herself as well. Wilma has presented on a number of HR confer-ences and SRRC meetings and is at-tached to the Expatise academy in the Netherlands as a teacher for the Mobility lessons that HR staff mem-bers receive during the HR training. She recently completed herself the prestigious HR course for Global Mo-bility Officer and has received the certification valid until June 2016.

triate tax, international mobility and assignment management. Before joining Hillbrook in December 2013, Lyke worked for almost two years with Boxx, an expatriate consultan-cy firm in Belgium. Prior to that, she worked for more than 13 years in the International Assignments group of PricewaterhouseCoopers, managing several large client engagements and providing technical advice and guid-ance to HR, Tax and Finance profes-sionals on all aspects of assignments including compensation, tax and HR issues. She was also responsible for the Sales & Business Development of the International Assignments group. Since 2012 Lyke has been a teacher at the Expatise Academy, teaching the subject ‘Understanding the sys-tem of international taxation and the avoidance of double taxation’. Lyke’s area of expertise is in interna-tional tax and social security plan-ning for expatriate individuals, but also has a broad knowledge of im-migration/visa and experience with outsourcing projects. Lyke has a de-gree in both Civil Law and Tax Law.


expert guide: relOcatiOn 2015sPaIn

Beatriz Carro de [email protected]+34 93 203 4935

Rising to the New Challenges of Relocating to SpainBy Beatriz Carro de Prada

manufacturing and exports have risen, direct foreign investment has surged and Spain is receiving record numbers of tourists. The Organisa-tion for Economic Cooperation and Development (OECD) is forecasting 3.1% GDP growth for this year, one of the highest among OECD coun-tries. In tandem with the general economic improvement goes job creation and the OECD expects Spain to create 2.9% more jobs this year, the second highest rate in the world.

As a result, Spain is once again an at-tractive relocation destination. The two largest Spanish cities, Madrid and Barcelona, regularly rank among the best for relocation. The PWC Cit-ies of Opportunity rankings for 2014 rated Madrid as the sixth best place in the world. In a survey carried out this year, JobCoconut tipped Barce-lona as the third best European city to work in.

Spain offers myriad advantages for both companies and relocating em-ployees. Along with new opportuni-ties in employment, the job market is more flexible and labour costs are low compared to Northern Europe.

Add to this, the year-round pleas-ant climate and easy-going lifestyle and it’s easy to see why relocating to Spain is seeing a surge in popularity.

The Changing Face of Relocation

The change in Spain’s economic for-tunes has been mirrored in the re-location market where some signifi-cant changes have taken place. At BRS Relocation Services, we have no-ticed several important new trends:

Rise in local hire – whereas multina-tional companies previously offered employees relocation packages that matched salaries in the employees’ home countries and provided gen-erous allowances for housing and education, the emphasis is now on local hire. Relocating professionals now receive a Spanish contract with conditions broadly similar to Span-ish nationals. This change in circum-stances presents a challenge to many transferees.

Increase in mobility – more trans-ferees are now globally focused and used to moving from country to country for professional purposes.

Like many of the world’s leading economies, Spain has experienced a rollercoaster of economic events. From driving GDP growth in the EU to over six years of economic cri-sis and dramatic financial austerity, Spain is now firmly back on the path of economic expansion and slowly but surely reducing its high unem-ployment.

These ups and downs have natural-ly been reflected in the relocation sector where several new trends have emerged. Hand in hand with the changes come new challenges fac-ing the entrepreneur or employee relocat-ing to Spain. Rising above these ob-stacles in the relocator’s path is not easy, but with the assistance of ex-perienced and on-the-ground relo-cation specialists the new challenges can be met face-on and successfully overcome.

The Changing Face of Spain

Between 1997 and 2007, Spain be-

came the economic driver of Europe. GDP growth averaged 3.5% annually (compared to 2.4% in the Eurozone) and the country reached full employ-ment. Drawn to the opportunities in Spain, millions of foreigners relocat-ed here and the foreign population grew from just 637,000 in 1998 to 5.3 million in 2012.

The change in world finances pre-cipitated by the Lehman Brothers

bankruptcy in 2008 together with a mas-sive property market crash forced Spain into recession for just over two years. Dra-matic austerity mea-sures and cut-backs

in investment in turn led to widespread unemployment (up to 26% of active population in 2013). As a result, thousands of for-eigners (as well as young profession-al Spaniards) left Spain in search of opportunities elsewhere.

By 2013, the Spanish economic cli-mate began to improve with GDP growth posting positive figures. This tendency has continued to date –

brs-relocation.com


expert guide: relOcatiOn 2015sPaIn

ee to find suitable housing without calling on the services provided by a specialist company.

Education – the rise in foreigners re-locating to Spain and the high resi-dent foreign population has put ex-ceptional pressure on international schools where places have become scarce over the last nine months. In 2014 in Barcelona, international schools were experiencing a student turnover of between 9 and 10%. This year, the figure has dropped to 4%. To ensure places at schools for relocating children, planning as far ahead as possible has become vital together with assistance from relo-cation experts with local knowledge.

The Future

The recent turbulence in the world economy has led to some profound changes in societies worldwide and Spain is no exception. Unemploy-ment is forecast to remain high for at least the next five years yet Spain’s

lifestyle and climate will continue to attract more and more foreign professionals. As a result, the chal-lenges faced by relocators to Spain are unlikely to disappear or lessen. We firmly believe that they are much easier and quicker to surmount by using the services of a reliable and well-established relocation compa-ny.

Beatriz Carro de Prada is founding partner and Managing Director of BRS Relocation Services, a reloca-tion services company established in Barcelona in 2001. With a global background, Beatriz was born in the city of Barcelona, is multi-lingual and has lived and worked in seven coun-tries. Her professional qualifications include Global Mobility Specialist (GMS™) and European Relocation Qualification (ERQ). In 2012, she won the Relocate Award for Rising Star in Relocation. In the same year, BRS Relocation took the top award for Best Destination Service Provider in Europe

Relocation abroad is no longer the exception, but rather an accepted reality, particularly among younger employees.

Younger profile – we’ve seen a marked changed in the expatriate profile. Prior to 2010, we were pre-dominantly assisting managers over 45 relocating with their families. Nowadays, we are providing services to much younger professionals, aged between 25 and 35, and generally single.

New Challenges

The recent shifts in the Spanish econ-omy and employment market have inevitably led to changes, some of which have direct effects on expats:

Immigration process – the dramatic rise in unemployment has led the Spanish authorities to restrict im-migration and tighten up the visa and permit processes. In the case of EU nationals, proof of income or

employment in Spain has become a requirement in order to obtain the tax identification number (NIE) and have access to the Social Security system. Companies looking to relo-cate non-EU nationals to Spain must prove that the post cannot be filled by a Spaniard. Assistance with the paperwork required for immigration has become essential rather than optional and process time is much longer.

Housing – the property market in the largest cities in Spain, particular-ly Madrid and Barcelona has come full circle and there’s currently a shortage of quality accommodation, both for resale and rental purposes. This scarcity is particularly apparent in the rental markets in Madrid and Barcelona where stock is limited and vacant properties are occupied in record time. In addition, landlords have tightened their requirements and now demand references and guarantees. We believe that it has never been so difficult for a transfer-

SNAPSHOT: RELOCATION STATISTICS

there are over 231 million people in the world that could be considered migrants (2013).

2.34 million immigrants for eu countries are currently living in

the uK (2014).

total number of immigrates living in the u.s. (2013): 41.3 million

5.5 million Britons are currently living outside of the uK (2014) .

64% of businesses reported an increase of international

workers in 2011.

40% of those asked in the global relocation trends survey felt that

experience on an international level boosted the chances of career progression (2012).

23% of companies are planning to relocate more employees in

the future (2013).

11.6% of the uK’s workforce is foreign born, ranking it ninth in whole of europe.

Luxemburg comes top of this table, whilst romania sits at the bottom (2013).

Five most popular sectors for international professionals to

work in the UK (2012):

Top five places to emigrate for business purposes (2013):

Breakdown of age-group of professional

sent out on international assignments (2012):

Most popular countries of origin for migrants coming to

Australia in 2013(2013):

Top five emerging destinations for business

migration (2012):

231MILLION PEOPLE

2.34MILLION

IMMIGRANTS

41.3MILLION

5.5MILLION

64% 40%

23% 11.6%

FINANCE: 21.4%HEALTH: 14.3%

RETAIL: 13.3%MANUFACTURING: 10%

HOTELS & RESTAURANTS: 9.9%(OTHER: 31.1%)

USAUK

AUSTRALIASINGAPORE

CANADA

CHINABRAzIL

AUSTRALIAINDIA

RUSSIA

INdIA: 15% (37,719)CHINA: 11% (28,892)

NEw zEALANd: 11% (27,038)UNITEd KINGdOM: 9% (22,316)

PHILIPPINES: 4% (11,454)

20-29: 13% 30-39: 31%40-49: 34%50-59: 19%

60+: 3%

the americas


expert guide: relOcatiOn 2015usa

rami [email protected] +1 248 643 4900

By Matthew Morse & Michelle Burns

not previously listed. The employer argued that it obtained a new certi-fied LCA from the U.S. Department of Labor (DOL) prior to the H-1B worker beginning employment at the new work location, and based on a 2003 opinion letter issued by Efren Her-nandez III, Director, Business Trade Branch, USCIS, an amended H-1B petition was not required. However, USCIS revoked the H-1B petition. Of particular interest, is footnote 7 of the AAO decision, which indicated the 2003 opinion letter issued by Efren Hernandez III, Director, Busi-ness and Trade Branch, USCIS, which many employers have relied upon in the past to avoid filing H-1B amended petitions when moving a worker to a new work location, has now been superseded by this new precedent AAO decision.

Indicators of USCIS leaning toward a policy shift prior to Matter of Simeio Solutions, LLC

In some ways, the decision issued by the AAO in Matter of Simeio So-lutions, LLC is not terribly surprising. There has been a trend by the USCIS to compel employers to amend their

H-1B petitions when moving H-1B beneficiaries to new work locations. For example, Donald Neufeld, Asso-ciate Director, Service Center Opera-tions of the USCIS, issued a Memo-randum entitled, “Determining Em-ployer-Employee Relationships for Adjudication of H-1B Petitions, In-cluding Third-Party Site Placements” (2010 Neufeld Memo). The Neufeld Memo instructed USCIS adjudicators to examine closely the employer-employee relationship between the H-1B employer and the beneficiary, particularly, when the worker is be-ing placed at a third party site. The memorandum further instructed USCIS adjudicators to focus on the H-1B employer’s right to control the work that is being performed by the H-1B worker. Establishing a valid employer-employee relationship is a required element in order to meet the definition of the term “United States employer” under USCIS’ reg-ulations. As a result, it would stand to reason that if an H-1B employer is moving the H-1B worker to a new third party’s work location, the issue of whether a valid employer-employ-ee relationship continues to exist be-tween the H-1B employer and H-1B

On 9 April 2015, the U.S. Citizenship and Immigration Services (USCIS) Administrative Appeals Office (AAO) issued a precedent decision that ad-dressed whether a change in work location is a material change requir-ing the employer to file an amended H-1B petition. In Matter of Simeio Solutions, LLC, the AAO held that a change in a work location to a new geographical area requiring a new Labor Condition Application (LCA) is a material change in the terms and conditions of employment requiring the employer to file an amended pe-tition. This writing will examine the decision, its impact on U.S. employ-ers, and some limited exceptions to the rule embodied in this de-cision that may exist for some U.S. em-ployers.

Matter of Simeio So-lutions, LLC – a USCIS policy shift

In this case, an Information Technol-ogy (IT) company which employs ap-proximately 40 workers in the U.S. filed an H-1B petition for a foreign national, which was approved by the

USCIS. The initial work location was the employer’s headquarters. The foreign national worked at this work location for a two month period prior to leaving the U.S. and applying for the H-1B visa at the U.S. Embassy in New Delhi, India. When the foreign national applied for an H-1B visa at a U.S. consulate abroad, the consulate requested additional documentation of the foreign national’s assignment in the U.S. When this information was not provided, the U.S. Consulate refused to issue the visa and sent the H-1B petition back to the USCIS for re-vocation, on the basis that the terms and conditions of the original em-

ployment no longer exist. Subsequently, the USCIS conducted a site visit to the peti-tioner’s headquarters and when it could not locate the petitioner it issued a Notice of

Intent to Revoke the H-1B petition. As part of its response to the Notice of Intent to Revoke that was issued by the USCIS, the employer provided a copy of a new LCA that it had ob-tained to place the foreign national at two new work locations that were

USCIS now requires amended H-1B petitions to be filed when moving H-1B workers to new work locations requiring a new Labor Condition Application




not file an amended H-1B petition when an H-1B worker is moved to a new work location that requires a new LCA to be filed, the USCIS is un-able to fulfil its duty under the law.

While this is the rationale provided in the decision, there are other fac-tors the USCIS may have considered. For instance, the USCIS may have considered the negative impact that failing to file amended H-1B peti-tions has on its Administrative Site Visit and Verification Program. If an H-1B employer only amends the LCA, the USCIS is not placed on notice as to the new work location where the H-1B worker is working. As a result, investigators conducting H-1B work site visits would have shown up at the work location listed on the H-1B petition, and not the new work lo-cation listed on the new LCA. USCIS may have considered the amount of time and money lost by sending in-vestigators to conduct site visits at locations where H-1B workers are no longer working.

Another factor the USCIS may have considered was a need to make sure the employer-employee relationship

between the H-1B employer and the H-1B worker continues to exist, each time an H-1B employer is placing the H-1B worker at a new work location. IT companies are some of the larg-est filers of H-1B petitions, and many IT companies place H-1B workers at third party locations in order to work on the computer systems of their customers. Analysing the employer-employee relationship, and whether the H-1B employer has the right to control the work being performed by the H-1B worker placed at that third party location would confirm the definition of the term “United States employer” has been met under the regulations, ensuring the integrity of the H-1B program.

Another factor motivating the policy shift may be revenue. The USCIS re-lies on filing fees collected to fund its operations. Requiring U.S. employ-ers to amend their H-1B petitions each time an H-1B worker is moved to a new work location, requiring a new LCA to be filed, generates more review for the USCIS.

Some possible exceptions to Matter of Simeio Solutions, LLC

worker needs to be re-examined, and an amended H-1B petition should be filed with the USCIS.

In April 2011, the USCIS provided ad-ditional guidance during a meeting with the American Immigration Law-yers Association (AILA). In this meet-ing, representatives from the USCIS’ California Service Center (CSC) indi-cated that when there was a mate-rial change in the employment of an H-1B worker an amended petition was required. The representatives, however, did not provide an opinion as to whether a geographic move was a material change warranting an amended petition. The California Service Center representatives end-ed the discussion by advising prac-titioners to “err on the side of cau-tion [and] file an amended petition in all cases where there is doubt as to whether an amended petition is required.”

In August 2011, the USCIS’ CSC pro-vided further information on this issue during another meeting with AILA. During this meeting, stake-holders noted that USCIS was issu-ing notices intending to revoke ap-

proved H-1B petitions for workers who moved from the location of em-ployment reflected in the H-1B peti-tion to a new location, even though a new, valid LCA was obtained from the DOL, prior to the H-1B worker beginning work at that new location. The USCIS CSC responded by indicat-ing USCIS was conducting a policy re-view of all H-1B guidance, including material change issues, and will issue new guidance. The USCIS CSC rep-resentative went further and stated, “Generally, it is the position of CSC Counsel that an amended H-1B peti-tion should be filed if an LCA is filed after approval of an H-1B petition.”

Factors leading to the USCIS’ policy shift

In Matter of Simeio Solutions, LLC, the AAO noted that in order for the USCIS to adequately fulfill its duty to protect U.S. workers and ensure the proper wage is being paid, pursuant to Section 212(n)(1)(A)(i) of the Im-migration and Nationality Act (INA), the USCIS needs accurate informa-tion as to where the H-1B worker is employed, and the duties to be per-formed. If an H-1B employer does



ary through 31 December), does not exceed 30 days. (Note: “Workday” is defined as any day that an H-1B work-er performs any work at any worksite within the area of short-term place-ment, whether the H-1B employer owns or controls the worksites, or not.) If the H-1B employer elects to assign the H-1B worker to a worksite not listed on the LCA for a period not to exceed 30 days, the H-1B employ-er must do the following:

1) Continue to pay the H-1B worker the wage rate listed on the LCA;2) Pay the worker the cost of lodging for both workdays and non-workdays;3) Pay the worker the actual cost of travel, meals, and inciden-tal expenses for both workdays and non-workdays;4) Make sure there is no strike, lockout, labour dispute, etc. in the same occupation as the H-1B work-er’s occupation at the worksite the worker will be placed;5) Comply with all LCA require-ments (i.e., Notice posting require-ment, confirmed no strike or lockout at location listed on LCA, Confirmed

employment of H-1B worker will not adversely affect working conditions of others at work location on LCA, etc.) to date.

However, there is an exception to this rule. Under this exception, the H-1B worker may be placed at a worksite, or a combination of worksites, in a one year period, for up to 60 days, if the following additional require-ments are met:

1) The H-1B worker maintains an office, or work station, and main-tains a dedicated telephone line(s) at the permanent work location listed on the LCA;2) The H-1B worker spends a substantial amount of time at the permanent worksite in a one-year period; and 3) The H-1B worker’s resi-dence is located near the permanent worksite listed on the LCA, and not in the area of the short-term worksite (Note: Evidence that would estab-lish a residence near the permanent worksite would be lease agreement, bank account statement, driver’s li-cense, etc.)

Based on the decision in Matter of Simeio Solutions, LLC, an H-1B em-ployer is required to file an amended H-1B petition when the work location changes to a new geographic area, which requires a new LCA to be certi-fied by the DOL. However, there may be several exceptions to this rule.

First, the AAO’s decision in Matter of Simeio Solutions, LLC is silent as to whether a change of work location within the same “area of intended employment” as the work location listed on the original LCA requires an amended H-1B petition to be filed. The AAO noted that a change in work location within the same Metropolitan Statistical Area (MSA) is not considered to be a material change. Chapter 20, Section 655.715 of the Code of Federal Regulations (CFR) defines the “area of intended employment” as an area within a Metropolitan Statistical Area (MSA). However, this regulation also defines the “area of intended employment” as “the area within normal commut-ing distance of the place (address) of employment where the H-1B nonim-migrant is or will be employed.” The definition further notes that there is

no “rigid measure of distance which constitutes a normal commuting dis-tance or normal commuting area, because there may be widely vary-ing factual circumstances among dif-ferent areas (e.g., normal commut-ing distances might be 20, 30, or 50 miles).” As a result, there may be lo-cations that are outside of the MSA, but that might fall within the “area of intended employment,” based on the particular facts or circumstanc-es. Therefore, an argument may be made that, in those cases in which the new work location is within the “normal commuting distance” of the work location listed on the initial LCA, an amended H-1B petition is not re-quired.

Second, Chapter 20, Section 655.735 of the Code of Federal Regulations (CFR) states H-1B workers may be placed at worksites not listed on an LCA on a short-term basis, if certain conditions are met. Under this regu-lation, an H-1B employer may assign an H-1B worker at any worksite not listed on the LCA, as long as the to-tal number of workdays at the other worksite, or a combination of work-sites, in a one year period (i.e., 1 Janu-



lutions, LLC is clear – an amended H-1B petition is required to be filed with the USCIS when an H-1B work-er changes work locations, requiring a new certified LCA from the DOL. While there may be some exceptions to this rule, these limited exceptions may not likely apply in many cases. In addition, without additional guid-ance from USCIS, it is not completely clear whether some of the excep-tions outlined above would apply under certain facts or circumstances. H-1B employers would be advised to err on the side of caution and file amended H-1B petitions in order to avoid creating a maintenance of sta-tus problem for their H-1B workers. In addition, H-1B employers will need to budget for the additional filing fee of $325.00 to file an amended H-1B petition, as well as budget for any at-torney’s fee to process the amended H-1B petition.

Mr. Rami Fakhoury is passionate about immigration law. He is the founder and Managing Attorney of Fakhoury Law Group, PC (FLG), a Martindale Hubbell AV-rated busi-

ness immigration firm. Mr. Fak-houry was a pioneer in establishing an office in Mumbai to better ser-vice FLG’s Indian IT and Engineering clients. His knowledge of immigra-tion and foresight into immigration trends and policy have earned him widespread recognition. He is cur-rently helping the State of Michigan develop immigration-friendly reform policies to attract business and pro-fessionals to Michigan. In 2009, Mr. Fakhoury became an Equity Partner of the Alliance of Business Immigra-tion Lawyers (ABIL), the largest and most prestigious global immigration consortium.

Mr. Fakhoury was selected as Immi-gration Attorney of the Year (2011) by Detroit Lawyer Monthly, and is designated Top Lawyer in DBusi-ness and Hour magazines. He has also been listed in the International Who’s Who of Corporate Immigra-tion Lawyers for two consecutive years.

Please note that 20 CFR 655.735 pro-hibits the short-term placement of an H-1B worker, if any of the follow-ing conditions exist:

1) The H-1B employer has a certified LCA for the occupation at that work location.2) The H-1B worker has just en-tered the United States to begin his or her H-1B employment. (Note: The regulation indicates the initial assign-ment given to the H-1B worker who has just entered the United States, must be the work location specified on the LCA.)3) H-1B employer must not continuously rotate H-1B nonimmi-grants on short-term assignments in a manner that would defeat the short term placement option, which is to provide the H-1B employer with some flexibility to afford enough time to obtain a new LCA for the worksite the H-1B worker will be employed.

Once the 30 or 60 workday limit has been reached, the H-1B employer is required to file an LCA for that work location. If an H-1B worker exceeds

the workday limit within the one-year period, then the H-1B employer has violated the LCA, and may not place H-1B workers in that occupation on a short-term basis at that work loca-tion in the future.

Third, the AAO’s decision in Matter of Simeio Solutions, LLC appears to indicate that if the original LCA con-tinues to remain valid, but the H-1B employer needs to file a new LCA to add an additional work location for the H-1B worker, an amended H-1B petition may not be required. How-ever, it is not completely clear from the AAO’s decision as to whether this would not be a material change in all cases. It would depend on the facts and circumstances of the case. In these situations, H-1B employers may wish to follow the April 2011 guidance provided by USCIS at its meeting with AILA, described above, and err on the side of caution, and file an amended H-1B petition.

Conclusion

The decision in Matter of Simeio So-

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Claire [email protected]+27 21 818 3200

Facilitating immigration in Africa and the Middle EastBy Claire Weber

and globalisation is palpable and the increased mobility of people has be-come an important part of globali-sation and international trade. Eco-nomic globalisation has developed an important interconnection be-tween immigration and internation-al trade, and governments and cor-porations have had to adjust to this new reality.

On the global level, international mi-gration comprises both binding inter-national law as well as non-binding international norms, principles and methods of best practice.

On the local level, however, interna-tional migration is regulated by nation states who possess broad authority to regulate the movement of people. In so doing, nation states adopt local law, regulations and norms to govern migration.

While norms and international frameworks regarding immigration are widely accepted throughout Afri-ca and the Middle East, certain prob-lems regarding the implementation thereof continue on the local level.

ER-MEA identifies methods of best practice and solutions to these prob-lems, while at the same time ensur-ing compliance with international as well as local norms and laws.

Africa and the Middle-East

Africa and the Middle East are rich in resources with emerging markets that have been dominating global growth in the last few years. These regions have also topped global growth projections for the next few years.

It is estimated that Africa has the fast-est-growing middle class in the world and that Africa’s consumer spending will rise from US$860 billion in 2008 to US$1.4 trillion by 2020.

In 2014, Africa accounted for nine of the 15 fastest-growing economies in the world, while the Middle East boasts two countries (Qatar and the United Arab Emirates) on the top-five list of the most promising emerging markets in the world. The Middle East’s Saudi Arabia also heads the list of the most promising frontier mar-kets in the world.

Although the idea that globalisation has created a ‘global trading village’ in which no national borders exist is attractive, it’s largely misguided. The truth is that nation states have over-all control of manifestations of glo-balisation, and Africa and the Middle East experience specific challenges relating to the implementation and enactment of immigration. Fortu-nately, help is at hand!

It is well known that the influx of migrants to many countries around the globe has impor-tant developmental implications, which are critical to estab-lishing international economic and legal frameworks in which all can prosper.

Although migration can have both positive and negative effects on eco-nomic development, its overall con-tribution to the human capital of a receiving country is positive.

This provides a boost to the transfer of skills and technological, social and economic development of the re-

ceiving countries, as well as facilitat-ing the progress of these countries in terms of international law and benchmarking.

As a single-source, global mobility service provider, Executive Reloca-tions in the Middle East and Africa (“ER-MEA”) recognises the value of and need for relocation and labour migration. To ensure that international trade successfully operates, ER-MEA has intensified its focus on immigration

compliance as immi-gration becomes an increasingly complex field: lying between local and global le-gal frameworks and norms.

We are able to tran-scend the barriers created by immi-gration, and, in so doing, bring about a new era in immigration compliance and service.

Immigration Law within the Local and Global Context

The connection between migration


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and responsibilities of the migrant concerned, and the co-operation of the individual and nation state with international rights and obligations.

In order to ensure a smooth and compliant immigration process, it is a necessity to have representation in the receiving country of the immi-grant. ER-MEA is in the fortunate po-sition of having representation in 47 African countries and seven Middle Eastern countries, and expects to ob-tain total coverage of the regions by 2016.

ER-MEA has the resources and struc-tures to provide immigration services that are efficient and reliable, by in-corporating the policy requirements of the corporate client, the specific needs of the individual affected and the over-arching local, national, re-gional and international legal frame-works. Due to a concentrated pres-ence in these regions, ER-MEA has generated a deep and professional knowledge of immigration law with-in local and global contexts.

We are able to successfully navigate

and interpret the diasporas of immi-gration law, ensuring that the most up-to-date, relevant and sustainable immigration compliance solutions are provided to our clients.

Claire Weber is an immigration in-house attorney at Executive Reloca-tions in the Middle East and Africa. She is interested in the complexities facing migrants, and seeks to help people navigate through what can of-ten be described as a technical, arbi-trary and discretional process. Claire lives in Cape Town, South Africa – a country which currently faces many challenges in addressing mixed flows of migration. She commenced her le-gal career in Cape Town in commer-cial law and litigation, after obtain-ing her LLB and a Master’s Degree in the Sociology of Law. Claire moved on to pursue a career in immigration law as a field which better serves her interests.

For more information or to request ER-MEA’s assistance with immigra-tion, please visit www.executivere-locationsafrica.com or www.execu-tiverelocations-me.com.

It is not surprising therefore that Africa and the Middle East have be-come highly attractive regions for international investors and, due to the growth and development experi-enced in these regions, the demand for corporate immigration to Africa and the Middle East has dramatically increased.

Overall, although the continent is bristling with growth and potential, it is threatened by a complex combi-nation of legal, economic and politi-cal risks.

Specifically, when it comes to immi-gration, African and Middle Eastern immigration procedures and require-ments are largely undocumented, difficult to interpret and difficult to access.

Immigration is a daunting task for those unfamiliar with the procedures and requirements involved, which frequently require concentrated re-sources, time and finances.

Immigration compliance aspects – such as the specific company under-

takings for a work permit application, the recognition of same-sex partner-ships and corporate documentation requirements – can also be difficult to ascertain.

In practice, it is highly frustrating for all involved in an immigration pro-cess should an immigration applica-tion be rejected due to a minor tech-nical compliance issue, such as the size of a photograph or the incorrect address of a letter. These technicali-ties, although seemingly insignificant to the purposes of migration, are all too common in the MEA region.

Complicating matters further, the lo-cal laws and practices regarding such aspects are often conflicting or am-biguous. These are also prone to change, and keeping abreast of de-velopments is demanding.

The crucial role of ER-MEA

ER-MEA understands the importance of managing immigration on and be-tween all levels of immigration com-pliance: from the rights and respon-sibilities of nation states, to the rights

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Lee [email protected]

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Fred [email protected] +44 (0) 870 991 9000

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US Visa Solutions - Law Office of Janice A. Flynn

Janice [email protected]+44 (0) 20 7092 6830

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elke [email protected]+49 0711 28 47 09 22

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Hogan Lovells International LLP

sabine [email protected]+49 211 13 68 512

dion [email protected]+44 20 7296 2316

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Lugano Relocation Service

[email protected]+41 79 420 7743

www.luganorelocationservice.ch

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Fakhoury Law Group

rami [email protected] +1 248 643 4900

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Executive Relocation Middle-East - Africa

Claire [email protected]+27 21 818 3200 www.executiverelocationsafrica.com

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