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Worldwide ERC® would like to
thank today’s sponsor:
© 2016 Worldwide ERC®
Tuesday, July 12, 2016: 8:30 p.m. EDT/5:30 p.m. CDT
Wednesday, July 13, 2016: 8:30 a.m. SGT/10:30 a.m. AEST
© 2016 Worldwide ERC®
2016 Update on APAC Immigration –
Corporate Compliance and
Emerging Developments Presented by Worldwide ERC® in alliance with Berry Appleman & Leiden
WORLDWIDE ERC® WEBINAR
DISCLAIMER
The views, opinions, and information expressed during this
webinar are those of the presenter and are not the views or
opinions of Worldwide ERC®. Worldwide ERC® makes no
representation or warranty with respect to the webinar or any
information or materials presented therein. Users of webinar
materials should not rely upon or construe the information or
resource materials contained in this webinar as legal or other
professional advice and should not act or fail to act based on the
information in these materials without seeking the services of a
competent legal or other professional.
©2016 Worldwide ERC®
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©2016 Worldwide ERC®
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©2016 Worldwide ERC®
Today’s Presenters
©2016 Worldwide ERC®
Martin Russell, Director Berry Appleman & Leiden, Australia
Susan Donaghy, Immigration Manager SingaporeBerry Appleman & Leiden, Singapore
Raj Mann, Immigration Manager AsiaBerry Appleman & Leiden, Singapore
Topics• Introduction to Berry Appleman & Leiden
• 2016 Update on APAC Immigration
– Australia
– Singapore
– Business Travel
– Comparison: Indonesia, India, Philippines, Vietnam
– Compliance
– Best Practices
• Q&A
©2016 Worldwide ERC®
BAL - Our Global Footprint
36+Years
Immigration Experience
105 Attorneys Solicitors
Immigration Managers
709Employees
AMERICAS EMEA ASIA PACIFIC
Opening 2016
AUSTRALIA
Audit Report: Managing
Compliance with Visa ConditionsThe objective of the Australian National Audit Office’s audit was to assess the
effectiveness of the Department of Immigration and Border Protection’s (DIBP)
management of compliance with visa conditions.
10 December 2015: the published report found “weaknesses in
almost all aspects” of the Department of Immigration and Border
Protection’s efforts to manage visa holders’ compliance with their
visa conditions.
The audit said the Government’s “weaknesses undermine the department’s capacity to effectively manage the risk of visa holders not complying with their visa conditions—from simple overstaying through illegal working to committing serious crimes.”
Further information: https://www.anao.gov.au/work/performance-audit/managing-compliance-visa-conditions
The published report found that the DIBP:
• Improve its data collection and analysis to better understand the extent to which visa holders are out of compliance with their visa conditions
• Increase the number of dob-in phone line tips that are answered and implement better systems for investigating complaints
• More strictly monitor documentation of visa compliance efforts, including documentation of compliance activities related to the most serious (Priority 1) cases and documentation of reasons for exercising powers
• Develop new goals and timelines and assign responsibility for achieving those goals to senior executive staff members.
In response to the audit, the DIBP said it agrees with the recommendations but has already been working on improving compliance with visa conditions.
Audit Report: Recommendations
The Fair Work Ombudsman
Their services include (amongst others):
• a single point of contact for reliable and timely information about Australia's
workplace relations system
• educating people working in Australia about fair work practices, rights and
obligations
• assessing complaints or suspected breaches of workplace laws, awards and
registered agreements.Further information: http://www.fairwork.gov.au/
The Fair Work Ombudsman is an independent
statutory office. Their jurisdiction is set out in the
Fair Work Act and their services are free to all
workers and employers in Australia.
The Fair Work Ombudsman’s main role is to:
• promote harmonious, productive and cooperative workplace relations• ensure compliance with Australian workplace laws• monitor certain 457 subclass visa arrangements
Verification of Work Rights and
Statutory Defences• Checking the DIBP’s Visa Entitlement Verification Online (VEVO) web-based
system prior to employment, to verify work permission for all foreign nationals
(if necessary check VEVO every three months):
http://www.border.gov.au/Busi/Visa
• Checking VEVO within a few days of visa cessation date to ensure
ongoing work permission every three months
• Establishing a contractual obligation with a third party to verify
work permission
• Viewing original visas evidencing work permission
• Viewing original documentation to confirm Australian citizenship
A person would need to take reasonable steps at reasonable times to verify that a worker has the required permission to work to avoid being liable to contravening the work-related offences and work-related provisions.
Standard Business Sponsorship
ObligationsApproved standard business sponsors (for subclass 457 visa holders) are required to
meet certain sponsorship obligations.
SOME OBLIGATIONS APPLY BEYOND THE TERM OF THE SPONSORSHIP APPROVAL.
A standard business sponsor must:
• cooperate with inspectors
• ensure equivalent terms and
conditions of employment
• keep records
• provide records and information
to the Minister
• tell DIBP when certain events occur
within 28 calendar days
Further information: http://www.border.gov.au/Trav/Visa-1/457-
• ensure the visa holder participates in the
nominated occupation, program or
activity
• not recover from, transfer or charge
certain costs to another person
• pay travel costs to enable sponsored
people to leave Australia
• pay costs to remove unlawful non-citizens
• provide training to Australians and
permanent residents
Sanctions for Non-Compliance
with Sponsorship Obligations
bar the sponsoring entity from sponsoring more people for a specified time
bar the sponsoring entity from applying for approval to be a sponsor, in relation to this visa or another one
all of the existing approvals as a sponsor could be cancelled
the sponsoring entity could be invited to enter into an Enforceable Undertaking; Enforceable Undertakings require you to promise, in writing, to undertake to complete certain actions to demonstrate that the failures have been rectified and won’t happen again.
issue an infringement notice of up to A$10,800 (60 penalty units) for a body corporate and A$2,160 (12 penalty units) for an individual for each failure.
apply to a court for a civil penalty order of up to A$54,000 (300 penalty units) for a corporation and A$10,800 (60 penalty units) for an individual for each failure.
If sponsorship obligations are not met, the DIBP could take one or more of the following actions:
Employer Sanctions Legislation
An ‘illegal worker’ is a non-citizen who either:
• does not hold a visa that is in effect (an unlawful non-citizen) or
• holds a visa that is in effect and is working in breach of their visa conditions
The purpose of the Employer Sanctions legislative provisions is to allow the Department of Immigration and Border Protection to address more effectively the problem of non-citizens working without the required permission (illegal work).
In August 2007, it became a criminal offence under the Migration
Act 1958 (the Act) to knowingly or recklessly allow an illegal
worker to work or refer an illegal worker for work. The Employer
Sanctions Reforms of 2013 supplemented these criminal offences
with additional sanctions (infringement notices and civil penalties)
for persons who allow illegal workers to work or refer illegal workers
for work.
Penalties under Employer
Sanctions LegislationWhere non-compliant behaviour is identified by the DIBP, administrative Illegal Worker
Warning Notices would usually be given in the first instance.
Where repeated non-compliance is identified, an infringement notice would be issued
or, in more substantial cases of non-compliance, a civil penalty order would be sought
from the courts.
Criminal prosecution remains available for the most serious cases or ongoing repeated non-compliance. Company officers may be liable under this legislation.
INFRINGEMENT NOTICE: a person or business may pay a penalty to the Commonwealth (when the Commonwealth agrees) as an alternative to civil proceedings, when the violation falls under the civil penalty provision.
Up to $3,240 for an individual, or up to $16,200 for a business.
CIVIL PENALTIES associated with knowingly or unknowingly employing a foreign national without the appropriate work permission.
Up to $16,200 (90 Penalty Units) for an individual or up to $81,000 (450 Penalty Units) for a business.
Common Work Conditions
Imposed on Australian Visas
Condition 8547: six-month work limitationSUBCLASS 417, 462
Condition 8539, 8549: holder must live, work and study only in a specified or designated areaSUBCLASS 489
Condition 8104, 8105: must not engage in work for more than 40 hrs/fortnightSTUDENT VISAS
Condition 8101: no workSUBCLASS 600, Tourist Stream
Condition 8115: business visitor activities onlySUBCLASS 600 Business Visitor Stream, ETA and eVisitor
Condition 8107: holder must only work in the nominated occupation/activitySUBCLASS 400, 401, 403, 420 and 457
Permissible Activities on
Business Visas - Australia
• identifying new business or employment opportunities
• purchasing goods from Australia
• establishing contacts in Australia for involvement in a prospective
employment or business
• attending business meetings including at an affiliated business in Australia
(providing the visa holder is not providing services to that business)
• fact finding
• visiting an Australian company that provides goods or services to their
visitor's business offshore to conduct quality assurance activities or ensure
that certain required standards are met
• attending a job interview
Making a general business or employment enquiry including:
Permissible Activities on
Business Visas - Australia
• investigating or negotiating business contracts or trade agreements
• signing contracts for sale of goods or services
• review a contractual arrangement
• providing legal advice on behalf of the overseas company involved in
business contract negotiations relating to the contract (not including to
the general public or a business based in Australia)
• buying real estate in Australia to add to a business investment portfolio
• a lawyer providing legal advice related to a contract to a person not
based in Australia
Investigating, negotiating, entering into, or reviewing a business contract including:
Participation in a conference, trade fair
or seminar in Australia on an unpaid basis.
Immigration Implications
Immigration risks with going ‘rogue’:
• Visa breaches
• Immigration penalties
• Civil and criminal penalties
• Industrial relations breaches
• Damage to business reputation
SINGAPORE
©2016 Worldwide ERC®
Strengthening Singapore’s
Core
Singapore Today
2015 figures
Singapore Today• Total employment grew by 13,000 in the first quarter of 2016. This was lower
than the seasonal high of 16,100 in the preceding quarter but higher than the
contraction in the first quarter of 2015 (-6,100).
• Quarter-on-quarter overall unemployment rate remained unchanged in March 2016, compared to December 2015. (1.9% )
• Redundancies declined in the first quarter of 2016 to 4,710, from 5,370 in the fourth quarter of 2015. However, it was still higher than the same period last
year (3,500) and the highest first quarter redundancies since 2009.
• 1st Quarter 2016 has seen the highest number of workers made redundant in a
first quarter since 2009. - 4,710 ( 3500) redundancies were island wide across
many sectors with the bulk ( 54%) services sector
• Slowing of foreign employment rates are expected to continue as levy increases for S-Passes and work permits scheduled for1st July take effect.
Why the Continued Tightening?
MOM’s Key Focus
To strengthen the global
competitiveness to the Singapore
workforce, comprising both local
and foreign manpower
To build a strong
Singaporean Core ( Skillsfuture &
Workforce Singapore)
To support industry transformation to
become more manpower lean
and more productive
The Refining of the EP
Process: three more factors to consider
Consequences to Being on
the ‘Triple Weak’ List
TAFEP has already served notice on about 100 companies who are deemed to be much weaker than the industry norm. All of them have majority EP share
of more than 50% and they display weak commitment to recruit and develop
local PMETs. For those “triple weak” companies with no progress made, at the recommendation of TAFEP:
Consequences to being on
the ‘Triple Weak’ list
MOM will continue to serve them as per current practice and the
Government advises that there is nothing to fear, as long as they continue to
treat local PMETs fairly.
As MOM takes firm action against the “triple weak” companies, they also are take proactive action to recognize and partner with those who are “triple strong” i.e. Strong in Singaporean Core, Strong commitment to nurture Singaporean core and Strong economic linkage or social impact, especially in sectors that are crucial to our future growth; such as, smart nation, advanced manufacturing, future services and more
WHAT DO YOU NEED
TO DO?
WHAT DO YOU NEED TO KNOW?
MOVING FORWARD
Know the Process – the
current factors
Know Your Options
Know Your Options
Assess
Challenges When Filing
Staying Compliant
Right to Work Checks:• It is your responsibility to check that everyone on your site has the proper
authorization to allow them to work (including Contractors and Business Travelers).
Ensure that employment contracts detail:• All salary components (understand which allowances are permitted as part
fixed monthly salary in an EP application). • Repatriation components.
Staying Compliant
Track Expiry and Assignment end dates:• MOM no longer send hardcopy reminder notices.• If assignment is ended Pass should be cancelled within 7 days.• When a Pass is cancelled, card should be returned to MOM within 7 days. • If assignment has ended and card has not been canceled – the salary as
declared in the original application needs to be paid for the validity of the pass. (Just in case keeping the EP.)
Notify MOM of all required updates:• Change of address.• Change of salary (downgrade particular).• Change of passport.• Change of work site location (if client driven a contract should be in place).• Change of role/position.
©2016 Worldwide ERC®
BUSINESS TRAVEL
Business Visitors
An employee who travels either frequently or occasionally outside
their home country to undertake business or short term
employment activities, typically repetitively, for periods of less than
90 days outside the scope of a formal assignment and without the
knowledge of the HR/Global Mobility department – under the radar!
Stealth Business Traveler
Challenges in Managing
Stealth Business Travelers
Consequences of
Non-Compliance
Global Immigration
ImplicationsGlobally, there are essentially two variants of business visitor visa
Non-Visa Waiver
nationals
1
Visa Waiver or electronic authorization
nationals
2
Global Immigration
Implications
Non-Visa Waiver
nationals
1
Global Immigration
Implications
Visa Waiver or electronic
authorization nationals
2
Permissible Activities on
Business Visas are Not
Consistent Globally
Allowed Activities on
Business Visa
Best Immigration Practices
Best Immigration Practices
Framework for Business
Travelers: are you ready?
Framework for Business
Travelers: are you ready?
Framework for Business
Travelers: are you ready?
Qu
es
tio
ns
&A
ns
we
rs
Thank you for attending!
Visit the Worldwide ERC® web site at
www.worldwideERC.org, or contact
Worldwide ERC® for more information on
these topics. 703.842.3400
©2016 Worldwide ERC®