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3 December 2012Immigration Review – Asia Pacific


With you TodayFragomen GlobalMark BuchananPartnerDID : (65) 6854 5174mbuchanan@fragomen.comMagdalene TennantPartnerDID : (852) 2151 2189mtennant@fragomen.com© 2012 Fragomen, Del Rey, Bernsen & Loewy, LLP1


Agenda• Business Immigration in the APAC Region:General Trends and Compliance Challenges• Country Overviews- Highlights of Immigration Process (per country)- Trends and Challenges (per country)- Common Challenges (per country)- Short-term Assignment Options (per country)• Q&A© 2012 Fragomen, Del Rey, Bernsen & Loewy, LLP2


Business Immigration in APAC: General Trends• Slowdown in global economy led many countries totighten their immigration systems by:- Introducing new restrictions, or- Strictly enforcing existing rules• New incentives to attract highly skilled expatriateswhile protecting domestic workforce and economy• Traditional (long term) expatriate assignmentscontinue but short term assignments / project workare on the rise• In certain countries, immigration and tax enforcementare becoming increasingly related© 2012 Fragomen, Del Rey, Bernsen & Loewy, LLP3


Business Immigration in APAC: ComplianceChallenges• Business Trip vs. Work Authorization• Immigration practices can rapidly change- In a climate of increased enforcement, responsiveness to changeis even more important• Bureaucratic issues- Process inefficiencies- Unclear regulations / lack of transparency- Uneven implementation- Corruption (for certain countries)• Nationalities who face restrictions© 2012 Fragomen, Del Rey, Bernsen & Loewy, LLP4


Country Overviews• China• Hong Kong• Singapore© 2012 Fragomen, Del Rey, Bernsen & Loewy, LLP5


China


ChinaEmployment• If the foreign national will receive remuneration from, enter intoan employment contract with, or conduct activities on behalf of aChina entity, a work permit and residence permit is required• Work “Z” Visa, Work Permit and Residence Permit- In general, a single entry “Z” Visa is required for foreign nationals toenter China for employment• Limited exceptions apply for senior executives who may beallowed to convert their tourist “L” or business “F” Visas toResidence Permits• Work Permit must be obtained to start work• “Z” Visa is converted to Residence Permit once in China• Requirements vary depending upon host entity, location and jobtitle• Work Permit Validity: 1 year, renewable annually for the durationof the assignment© 2012 Fragomen, Del Rey, Bernsen & Loewy, LLP7


ChinaCurrent Trends and Challenges•Many multinational corporations have increased their operationsoutside of China's more developed areas, which in many instancescomplicates the work authorization process for their employees asChina's immigration regulations can vary across each jurisdictionand immigration practices in remote locations can be inconsistent•Immigration and tax requirements for foreign employees in Chinaare becoming increasingly related•Improved electronic immigration record keeping by Public SecurityBureaus across China is resulting in a more sophisticated level ofimmigration enforcement8


ChinaCurrent Trends and Challenges•New immigration law was passed in July 2012 and willbe implemented from 1 July 2013- Increased penalties• Monetary penalties for employers will increase sharply (from up toRMB 50,000 currently to up to RMB 100,000 in the new law)• Monetary penalties for employees will increase from currentmaximum of RMB 1,000 to maximum of RMB 20,000 in the new law• Employers may also be required to forfeit monetary gain resultingfrom unlawful employment• Employees working illegally may also be detained for up to 15 days- More responsibility for compliance on employers• Employers must report suspected non-compliance to local police• Employers found to have falsified supporting information ordocuments (including company invitation letters) will face penaltiesfrom RMB 10,000 to RMB 50,0009


ChinaCurrent Trends and Challenges•New immigration law (cont’d)- Foreign nationals will be required to register their lodgingswithin 24 hours nationwide (from 24 to 72 hours currently,depending on location)- Consolidated entry and exit procedures for Chinese and foreignnationals• Fingerprinting and other biometric data capture at immigrationcheckpoints (details to be released closer to July 2013)• Arrival checkpoint officers and Public Security Bureau can questionor detain individuals on suspicion of breach• Enhanced information sharing between Public Security Bureau,Chinese diplomatic posts and other relevant government agencies10


ChinaCurrent Trends and Challenges•New immigration law (cont’d)- New visa category for highly talented foreign nationals• Details on eligibility and implementation to follow- Implementation details for new permanent residence program tofollow11


ChinaCommon Challenges & Short Term Assignment Options• Frequently short term assignees are assigned to workin remote areas in China where there is no availablesponsoring entity.• There are no specific rules / exemptions for thoseentering on short term assignments for the installationor maintenance of equipment. If the assignmentduration is 90 days or less, they can enter with abusiness “F” visa (but they need to obtain theappropriate work authorization if the assignment is formore than 90 days accumulatively in a calendar year).12


Hong Kong


General Employment Policy (“GEP”)• Open to persons possessing special skills, knowledge or experienceof value to and not readily available in the HKSAR• Assessment Criteria for Employment as Professionals: Normal immigration requirements met Academic qualification and relevant working experiences Skills, knowledge & experience needed for the job Remuneration package comparable to local market Employment vacancy exists that cannot be filled within the domestic labor market• GEP is not applicable to nationals of Afghanistan, Cambodia, Cuba,Laos, Korea (Democratic People's Republic of), Nepal and Vietnam.© 2011 Fragomen, Del Rey, Bernsen & Loewy, LLP14


Hong KongEmployment visa application process- Application is submitted to the Hong Kong Immigration Department(HKID)- Application processing times are 4 to 6 weeks, but can be significantlylonger if additional documentation is requested by HKID- Once the Approval Notice is granted, a computerized visa label isissued and to be affixed in the Employee’s passport for entry to HongKong- If Employee has been granted permission to remain in Hong Kong formore than 180 days, the Employee must personally appear andregister at the Registration of Persons Office at the HKID for a HongKong identity card within 30 days of arrival in Hong Kong© 2012 Fragomen, Del Rey, Bernsen & Loewy, LLP15


Hong KongEmployment visa for Overseas Chinese nationals underGEP• Overseas PRC nationals who have obtained overseas permanent residency; or• Meet the “one-year” rule requirement:An overseas PRC national who is holding valid overseas residency (i.e. employmentvisa/dependent visa/student visa) and has resided continuously overseas (excluding HongKong, the PRC and Macau) for a period of at least one year immediately preceding theapplication. The overseas residency status must remain valid during the entire visaprocessing period as well as after visa validation.• Additional supporting documents: Evidence of the applicant’s valid overseas residency status Completion of Movement Records Form (applicable if the applicant does not haveoverseas permanent residency). The applicant should include ALL travel records for the12-month period immediately preceding the employment visa application Copy of the applicant’s PRC passport (ALL pages) Undertaking letter from the applicant confirming that the applicant will enter Hong Kongdirectly from overseas (excluding Hong Kong and Macau) for visa validation• The applicant should be overseas at the time of lodgment of the application and shouldvalidate the visa by entering Hong Kong from overseas© 2012 Fragomen, Del Rey, Bernsen & Loewy, LLP16


Admission Scheme for Mainland Talents andProfessionals (“ASMTP”)For Mainland Chinese residents who are not graduates of a local Hong Konguniversity but possess special skills, knowledge or experience of value to,and not readily available in, Hong Kong•Assessment Criteria for ASMTP – same as GEP•Basic Documentation requirement - same as GEP•Additional documents for Chinese residents of Mainland: Copies of Mainland identity card and Mainland household registration certificate (e.g.Hukou Book) Consent Letter from the present working unit or the relevant Mainland authority torelease applicant to work in the HKSAR•Visa application processing time and procedure at HKID - same as GEP•The successful applicant must apply for an Exit-Entry Permit for Travelling to and fromHong Kong and Macao (“EEP”) and a relevant exit endorsement from the Public SecurityBureau office in China where his/her household registration is kept. Processing time inChina is 1 to 2 weeks.•The employee must use the EEP as a travel document for travelling to and from HongKong and China instead of the PRC passport.© 2011 Fragomen, Del Rey, Bernsen & Loewy, LLP17


Hong KongCurrent Trends and Challenges• Although immigration requirements remain unchanged, there is arecent tightening in HKID’s internal guidelines when assessingEmployment Visa applications and this trend seems to be on therise- Most noticeable for applicants from Mainland China under the Admission Scheme forMainland Talents and Professionals (ASMTP), as well as other nationalities applyingunder GEP who will take up technical positions or those without an academic degree- HKID is concerned as to whether local recruitment has been conducted for thepositions offered to Mainlanders or foreigners and the justification for theiremployment (either as direct hire or intracompany transfer)- HKID is also concerned that companies may be seeking to circumvent Hong Kong’sstandard for compensation and benefits© 2012 Fragomen, Del Rey, Bernsen & Loewy, LLP18


Hong KongCommon Challenges•Companies often have to send individuals to clients’ sites in Hong Kong onvery short notice. The current processing time at the HKID is at least 4 to 6weeks after submission provided that all documents are in order at the timeof submission. Therefore it is important that these applications are begunas soon as possible.•Often short term assignees to Hong Kong only possess technical or tradequalifications, as such, the HKID is now referring their applications to theLabour Department and various trade organizations in Hong Kong for theiradvice as to whether the positions can be filled by local residents. Forreferred applications, the processing time could take another 6 weeks ormore to be finalized.•For Chinese nationals from the Mainland, there is a noticeable tighteningof HKID’s internal processing guidelines irrespective of the individuals’educational qualifications and relevant work experience.© 2011 Fragomen, Del Rey, Bernsen & Loewy, LLP19


Singapore


SingaporeEmployment• Employment Passes (Professionals)- Employment Pass (P1, P2 and Q). Applicant will be eligible fora company sponsored Employment Pass, if he or she holdsacceptable degrees, professional qualifications and specialistskills and earns more than S$3,000 per month in fixed salary.- Online applications can be processed in around 1 week.- “S” pass may be applied for borderline applicants, if fixedmonthly salary is at least S$2,000 (subject to quota andlevy).© 2012 Fragomen, Del Rey, Bernsen & Loewy, LLP21


SingaporeEmployment (cont’d)Work Permit Exempt Activities• The below-listed activities are considered work, but anexemption can be obtained by filing the prescribed e-Notificationafter entering Singapore (the process can be completed onlinewithin minutes):1.Delivery of training in a classroom setting;2.Organizing, conducting, or presenting at a conference orseminar; and3.Providing expertise in commissioning, auditing, repairing, ormaintaining of plants, equipment, processes or machinery.© 2012 Fragomen, Del Rey, Bernsen & Loewy, LLP22


SingaporeCurrent Trends and Challenges•Mechanisms to cool foreign worker demand (lowerwork pass tiers are especially impacted)- Reduction in maximum number of foreign workers (S and WorkPermit) that companies can sponsor- Tougher salary and education standards for P2 and Q tiers- Tighter criteria for training attachments- Removal of job seeker entry category• Increasingly difficult to obtain permanent residence- Success rate has sharply declined since PR approval peak in2008; renewals also affected- The Financial Investor Scheme, a Permanent Resident pathwayfor wealthy individuals, was discontinued last April23


SingaporeCurrent Trends and Challenges• New limits to bringing in family members (from 1 September 2012)- P1, P2, Q and S Pass holders need to earn at least S$4,000 to sponsorthe stay of their spouses and children in Singapore- P1 Pass holders will no longer be able to sponsor their parents-in-law- P2 Pass holders will no longer be able to sponsor their parents orparents-in-law© 2012 Fragomen, Del Rey, Bernsen & Loewy, LLP24


SingaporeCurrent Trends and Challenges• Changes to the Employment of Foreign Manpower Act (EFMA)(w.e.f. 9 th November 2012):- Reforms to enforcement action against errant employers, errant foreignworkers and syndicates, including:• An administrative penalty regime to complement criminal prosecution• New presumption clauses and expanded investigatory powers to facilitateenforcement against increasingly complex syndicate operations• New stand-alone provisions for EFMA contraventions, increased / adjustedpenalties to ensure they are commensurate with potential profits (see nextslide for highlights)© 2012 Fragomen, Del Rey, Bernsen & Loewy, LLP25


SingaporeCurrent Trends and ChallengesEFMA ContraventionSyndicates that set up shell businesses and partialshamsthat illegally import and supply foreign workersSubmitting forged educational certificatesCollection of monies from foreign workers asconsideration for employment (kickbacks)Illegal recovery of employment costs (such as levy orsecurity bond payments) from foreign workersUsing “phantom workers” to inflate foreign workerquotaFailure to submit request for re-assessment of workpass eligibility before reducing salary of work passholdersProposed Penalty• Maximum S$6,000 fine• Imprisonment from 6 months to 2 years• Hiring of more than 5 foreign workers will also bepunished with caning• Maximum S$20,000 fine• Maximum 2 years’ imprisonment• Culpable employers or agents could be taken to task forabetment• Maximum S$30,000 fine• Maximum 2 years’ imprisonment• Maximum S$20,000 administrative financial penalty• Maximum S$20,000 administrative financial penalty• Maximum S$10,000 administrative financial penalty© 2012 Fragomen, Del Rey, Bernsen & Loewy, LLP26


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