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Immigration Issues in the Hospitality Industry: A Global Perspective
Thursday, October 23, 2014
J. Bruce Cross, Director, Cross, Gunter, Witherspoon and Galchus Little Rock, Arkansas, USA [email protected]
Moderator
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Misty W. Borkowski, Attorney Cross, Gunter, Witherspoon and Galchus Little Rock, Arkansas, USA [email protected] Richard Emmerson, Senior Advisor SSEK Legal Consultants Jakarta, Indonesia [email protected]
Speakers
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Sara Khoja, Partner Clyde & Co. Dubai, United Arab Emirates [email protected]
Sascha C. Kuit, Senior Associate Boekel de Nerée NV Amsterdam, Netherlands [email protected]
Speakers
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How Education, Job Title, and Experience Matter
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Limited options for entry-level workers • H-2B (non-agriculture) temporary worker: − Not enough U.S. workers who are able, willing,
qualified, and available to do the temporary work − Employer’s need is considered temporary if it is
a(n): o One-time occurrence o Seasonal need o Peak-load need o Intermittent need
U.S. Immigration – Entry-Level Employee
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More options are available • H-1B – Specialty Occupation
– Position requires 4-year college degree (or equivalent)
– April 1 filing deadline for October 1 start date – Period of time in status: o Visa is issue in 3-year increments o Can be extended for another 3-year period o Maximum of 6 years in U.S. on H-1 or L-1 status
– Amended petition required for change in position/ title/salary
U.S. Immigration – Mid-Level Employee
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More options are available • L-1B (Specialized Knowledge) of intra-company
transferee – FN worked at foreign entity for at least 1 year out
of last 3 years – Foreign and U.S. entity must be related (branch,
subsidiary, etc.) – 5 year maximum period o Visa can convert to L-1A
U.S. Immigration – Mid-Level Employee
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• L-1A (management, executive, supervisor) for intra-company transferee – FN worked at foreign entity for at least 1 year out
of last 3 years – Foreign and US entity must be related (branch,
subsidiary, etc.) – 6 year maximum period – Can lead to a fast track for Lawful Permanent
Residency status
U.S. Immigration – High-Level Employee
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• B1/B2 Business visitor – Visa, ESTA, VWP – Limited scope of what business person can do – Limited period of time allowed in U.S. is
determined by consular officer admitting (and the country of citizenship is a factor)
– Ability to change status to new visa category may be limited
– Dual intent not allowed
U.S. Immigration – High-Level Employee
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• E-1/E-2 Treaty Trader/Treaty Investor – 50% ownership required – Nationality from treaty country
U.S. Immigration – High-Level Employee
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Indonesia • Foreigners are eligible for work permits to perform certain
specified types of jobs • Other positions may require special “recommendation letter”
from Ministry of Tourism • The list of specified positions is now being updated • Time limits apply depending on the position • Actual work performed must be consistent with position
stated in work permit • Nationality is not relevant for citizens of countries with
diplomatic relations
Asia Immigration – General Information
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Australia / Hong Kong • Various visas available to establish or manage a new or
existing business • Work permits available for workers who have recognised
qualifications, and skills or experience, in particular occupations required by the country
• When employers cannot find an appropriately skilled local candidate
New Zealand • Similar to Australia but additional visa alternatives depending
on type of work, job title, length of assignment, and qualifications/work experience
Asia Immigration – General Information
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South Korea • Long term visas available for employees of branch offices
and subsidiaries if considered an “indispensable specialist” • Short term visas may be available for lower level employees
Thailand • Likelihood of visa/work permit approvals increase with level
of skill • Minimum salaries apply depending on citizenship of
applicant • Visa/work permit renewals are readily available
Asia Immigration – General Information
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Indonesia, Australia, Hong Kong, Thailand • Work permits are not ordinarily available for low-level
positions • General principle: foreign workers must have special skills
not available locally
New Zealand • Eligible for a 12-month open Working Holiday Visa to work
for any employer in any position
South Korea • C-4 visa (short-term work up to 90 days) or E-7 visa (special
occupations) may be available
Asia Immigration – Entry-Level Employee
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Indonesia • F&B Manager, Internal Affairs Manager, Rooms Division
Manager: two years • Sales Manager, Admin. Manager and Executive Assistant to
Manager: closed • Listed positions to be updated in an upcoming decree;
unlisted positions may require recommendation letter from Ministry of Tourism
New Zealand • “Essential Skills Work Visa” • Essential Skills in Demand List: updated regularly
Asia Immigration – Mid-Level Employee
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Australia, Hong Kong • Must have recognised qualifications, and skills or
experience, in particular occupations required by the country • When employers cannot find an appropriately skilled local
candidate
South Korea • D7 long-term visas available for “indispensable specialist”
for subsidiary • For branch office, must also have worked at least one year
for head office or affiliate
Asia Immigration – Mid-Level Employee
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Indonesia • Available for Director or General Manager: five years
Australia, Hong Kong, Thailand • Work permits available for business managers
New Zealand • Available - Note Essential Skills Demand List
South Korea • Available – note distinction between branch and subsidiary
Asia Immigration – High-Level Employee
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• Each European country has its own admission policies and practices
• Having an EU residence card, visa, or work permit may not allow third-country national to reside/work in another EU country
• EU/EEA and Swiss nationals do not need a visa/ residence or work permit to reside and work in another EU/EEA member state
Europe Immigration – General
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• EU Directives seek to harmonise local immigration regulations – EU Blue Card – Single permit directive – EU Intra Corporate Transfer Directive
Europe Immigration – General
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Limited options for entry-level employees • Many EU countries (e.g., France, Germany, the
Netherlands, Spain) apply a national labour market assessment: – A work permit will be issued in consideration of the
national labour market situation
– No work permit will be granted if the job can be fulfilled by employment seekers on the national labour market
– No work permit/visa will be issued based on the type of role (e.g., UK)
Europe Immigration – Entry-Level Employee
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• Some countries apply a more “open-market principle (e.g., Sweden) – A work permit will be issued provided that the
individual has a binding job offer of a local employment contract in line with applicable CLA or local practice and that the contractual salary is paid and enough to support him/herself
• A work permit exemption may apply for temporary work not exceeding 90 days (e.g., Bulgaria)
• A work permit exemption may apply for students/ exchange program visa holders
Europe Immigration – Entry-Level Employee
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More options are available • Role must meet prescribed skill level (e.g., UK, Germany) • If employee is be assigned with supervision and
coordination activities a work permit for six months can be issued (e.g., Bulgaria)
• There must be an entity of the company present and registered with the Immigration authorities (e.g., the Netherlands, Spain )
• The salary must be at a certain level (depending on age) to qualify (e.g., the Netherlands)
• The company must be of a certain size or have made investments in the host country (e.g., Spain)
Europe Immigration – Mid-Level Employee
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Same as for mid-level employees, plus: • A work permit exemption may apply for business
visits in most EU countries (often for a limited period of time, e. g., four weeks, 90 days), depending on role (representative of the company or key function) and/or activities performed
• EU Blue Card can be applied for in most EU countries – Salary criteria depending on host country – University education is required
Europe Immigration – High-Level Employee
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• Any employee must be sponsored for work and residency by a local entity
• Sponsorship is employer specific • Visa allocation and nationality • Employment for nationals • Type of visa
Middle East Immigration – Entry-Level Employee
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• Job title • Degree certificates • Earning requirements for sponsoring
dependents
Middle East Immigration – Mid-Level Employee
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• Job title • Degree certificates • GM role
Middle East Immigration – High-Level Employee
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Termination of Foreign Nationals
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• Employment at-will jurisdictions – No wrongful dismissal damages for termination
without cause / notice – Only basic employment standards benefits – Rules on illegal terminations (e.g., discrimination)
• Wrongful dismissal regimes – prior notice or pay in lieu of notice
• Indonesia - Labor Court approval unless settlement agreement – Full salary until final and binding judgment
Asia – Range of Termination Systems
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• Basic Severance Pay – Maximum = 9 months for 9+ years service OR double
• Service Pay – Maximum = 10 months for 24+ years
• Compensation – Health and housing allowance – Untaken Annual Leave – Relocation Expenses, if applicable – Additional benefits, if any, under contract
• Employer controls mandatory departure from Indonesia by Exit Permit application
Indonesia: Substantial Termination Benefits
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• Threshold assumption: “National System Employee” under Fair Work Act (as distinguished from State System Employees)
• Before termination, consider the employee’s contract, National Employment Standards, and any applicable industrial instrument
Australia: Termination of Foreign Nationals
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• Potential remedies for an employee – Unfair dismissal under the Fair Work Act – General protections under the Fair Work Act – Discrimination under state or federal equal opportunity laws – Breach of contract under common law
• Some employees are not eligible to sue for unfair dismissal – Employed less than six months (or one year if employer has
fewer than 15 employees) – Genuine redundancy and employer has complied with its
redeployment and consultation obligations – Employees not covered by an industrial instrument and paid
more than $133,000/year
Australia: Termination of Foreign Nationals
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New Zealand • Key distinction between “open” work permit and work
permit linked to a specific employer • Employer-specific work permit can be amended upon
application
Hong Kong • No distinction between terminating locals and expatriates • Comply with notice requirements under contract • Avoid prohibited grounds of discrimination
Asia – Termination of Foreign Nationals
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South Korea • If employment term exceeds two years, the employee must
be a regular, full-time employee • Full-time employees can only be terminated for “just cause”
under the Labor Standards Act (“LSA”) • Minimum 30 days’ prior written notice of termination to
employees, or pay in lieu • Statutory minimum separation pay applies to all
terminations, including “with cause;” certain exceptions apply
• Executives and senior managers are not considered “employees” under LSA
Asia – Termination of Foreign Nationals
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Thailand • Termination for “cause” is narrowly defined • Severance from one to nine months based on a tariff,
depending on period of service • Notice or pay in lieu of notice applies • Additional damage for wrongful dismissal may apply • Relocation allowance if applicable
Asia – Termination of Foreign Nationals
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Check: • Rights and obligations under the individual’s
employment contract and/or assignment letter • Local statutory employment rights • Rights deriving from applicable (general
binding) Collective Labour Agreement • Which law governs the employment contract
Europe – Termination of Foreign Nationals
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• In most jurisdictions no distinction between expats and local employees
• Contractual notice period applies – If none, then statutory default (UK) – If none, then statutory notice period applies (the
Netherlands)
• Process to follow • Grounds for termination (e.g., redundancy,
performance, misconduct)
Europe – Termination of Foreign Nationals
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• Statutory or contractual redundancy pay – To be accrued after period of time (UK) – Depends on age, length of service, salary
(Greece, the Netherlands)
• Prohibitions to give notice (e.g., during sickness or pregnancy?)
• Employee protection against unfair dismissal? (reason and process determine if employee is unfairly dismissed in UK)
Europe – Termination of Foreign Nationals
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• Obligation to inform immigration authorities/ employment board of termination (Greece, Bulgaria, the Netherlands)
• Entitlements for employee to remain and work in the country
Europe – Termination of Foreign Nationals
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• Sponsorship • Unfair dismissal • Repatriation
Middle East – Termination of Foreign Nationals
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• Termination of foreign nationals on visa: – Employer required to pay reasonable cost of
travel to home country
• U.S. laws govern wage and hour pay of ANY employee working within the U.S.
U.S. – Termination of Foreign Nationals
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• U.S. laws prohibit discrimination of employees based upon a “protected status” – National origin – Race – Religion – Gender – Age – Disability
U.S. – Termination of Foreign Nationals
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Is the Relocated Employee Subject to the Laws of the
Home Country, Host Country, or Both?
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• Choice of law in employment contract/ assignment letter
• The Rome I Regulation • European Directive on Secondments • Local (general binding) CLA • European tax and social security conventions • Directives bilateral tax and social security
treaties
Europe – Choice of Law or Venue
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• Rome I Regulation – Contract will be governed by the law that was
chosen – Regardless of contractual choice of law, employee
will not lose protection of the mandatory law that would apply if no choice was made; determined by: o Place where or from where employee habitually
carries out the work o Place where employee is located o Place with which the contract is closest connected
Europe – Choice of Law or Venue
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• Rome I Regulation (cont’d) – Overriding mandatory local provisions may apply
regardless the above applicable law (e.g., termination provisions in Greece, the Netherlands)
Europe – Choice of Law or Venue
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• European Directive on Secondments – Specific for seconded employees – Local mandatory rule regarding minimum
employment standards will apply, such as: o Minimum wage o Working hours and working conditions o Holidays o Non-discriminations o Provisions of general binding CLA
Europe – Choice of Law or Venue
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• Application of local law • Secondment and assignment
Middle East – Choice of Law or Venue
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• Types of employment disputes: – Breach of contract – Wrongful termination – Discriminatory hiring/promotion – ADA claim – Wage and hour violation
U.S. – Choice of Law or Venue
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• Employment contract: – With specific jurisdiction – With venue specified – Arbitration clause
• No employment contract will U.S. law govern – Nexus to jurisdiction/venue – Can claim be pursued outside of US.
U.S. – Choice of Law or Venue
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Indonesia • To obtain a work permit, all candidates must have
local employment • Local employment always governed by
Indonesian law • Secondment arrangements for expats
– Key objective: avoid Indonesian termination procedure and benefits
– “Home” employment, temporary secondment, return to home clause
Asia – Choice of Law or Venue
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Australia • Comprehensive employment laws cover minimum terms
and conditions, work health and safety, discrimination, etc. • Most employers regulated at the federal level under Fair
Work Act, and National Employment Standards imposes 10 minimum conditions that apply to all employees covered by the FW Act
• Foreign employee working in Australia may be considered a ‘national system employee’ covered by above legislation
• All levels of employees are protected by legislation; certain other types of awards may not apply to executives and senior managers
Asia – Choice of Law or Venue
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New Zealand • Employment laws will apply regardless of employee's
level, offence or employment agreement • Notably, the Employment Relations Act, Holidays Act,
Minimum Wages Act, Equal Pay Act and the Wages Protection Act
South Korea • If governing law silent, the laws of Korea will govern • If the parties otherwise validly select the laws of a
foreign jurisdiction, the Labor Standards Act still apply
Asia – Choice of Law or Venue
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Hong Kong • Parties have freedom to decide the governing law of
the employment contract (provided there is sufficient connection with the chosen law)
• Employee cannot be given lesser benefits than those prescribed under Hong Kong law
Thailand • Parties have the freedom to decide the governing law
of the employment contract (provided choice of law is not contrary to public policy)
• Cannot contract out of statutory employment rights
Asia – Choice of Law or Venue
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