Tuesday, July 12, 2016: 8:30 p.m. EDT/5:30 p.m. CDT Wednesday, July 13, 2016… · March 2016, compared to December 2015. (1.9% ) • Redundancies declined in the first quarter of

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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

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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

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tio

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&A

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Thank you for attending!

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Worldwide ERC® for more information on

these topics. 703.842.3400

©2016 Worldwide ERC®