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The Corporate Immigration Review Law Business Research Fourth Edition Editor Chris Magrath
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Appendix 1
ABOUT THE AUTHORS
SAM M BAYATBayat Legal ServicesSam Bayat is a Quebec (Canada) licensed attorney with a background in international law and specialising in corporate immigration, with over 20 years of experience in business immigration consultancy. He was the former president and vice-president of International Section of the Canadian Bar, in Quebec. He has lectured in international law at the Concordia University in Montreal. He also offers advice to governments regarding their economic citizenship programmes. Mr Bayat migrated from Iran to Canada in 1974 and is the senior resident lawyer at the Bayat Legal Services (BLS) head office in Dubai, United Arab Emirates.
As the pace of immigration to Canada out of the Middle East increased, Sam Bayat set up a small law practice in Dubai in 1993. Today, BLS is an international law firm working with a network of law firms, legal professionals and trade consultants around the world. The group specialises in corporate, commercial, investment and banking, maritime, arbitration, and off-course immigration and second citizenship laws.
Mr Bayat is an accomplished author who has published several books, including the following: Canadian Immigration Law: All You Need To Know about Moving to Canada (2000); Canada after September 11: Immigration and Settlement (2003); and Canada’s Immigrants, Heroes And Countrymen (Volumes I and II).
BLS has offices in the UAE, Canada, Malaysia, Iran, Saint Kitts and Nevis, and Dominica. The UAE office was chosen as the group’s head office for its strategic location, serving centrally all Middle Eastern countries and the Indian subcontinent.
PHILIPPE FORTINUniversité du Québec à MontréalPhilippe Fortin is an attorney-at-law and a professor at the Université du Québec à Montréal (UQAM). He holds a PhD from the London School of Economics and
The Corporate Immigration
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Editor’s Preface ..................................................................................................viiChris Magrath and Ben Sheldrick
Chapter 1 ANTIGUA AND BARBUDA ....................................................1Clare K Roberts, Andrea Roberts Nicholas and Sam M Bayat
Chapter 2 AUSTRALIA ...............................................................................6Anne O’Donoghue and Esther En Jung Shin
Chapter 3 AUSTRIA .................................................................................24Sabine Straka, Merran Loewenthal and Silvia Siebenstich
Chapter 4 BELGIUM ................................................................................37Henry Hachez
Chapter 5 BULGARIA ..............................................................................51Lora Videva
Chapter 6 CANADA .................................................................................60Sam M Bayat, and Philippe Fortin
Chapter 7 CHILE ......................................................................................73Cristian Laborda
Chapter 8 CHINA .....................................................................................85Jiang Junlu and Jin Shan
CONTENTS
iv
Contents
Chapter 9 CYPRUS ...................................................................................99Maria Clappa and Despina Papaefstathiou
Chapter 10 DENMARK ............................................................................111Mette Klingsten, Thomas Christian Thune and Sandro Ratkovic
Chapter 11 DOMINICA ...........................................................................121Kondwani C Williams and Sam M Bayat
Chapter 12 FRANCE ................................................................................126Karl Waheed
Chapter 13 GERMANY ............................................................................139Gunther Mävers
Chapter 14 GHANA ..................................................................................155Paa Kwesi Hagan
Chapter 15 HONG KONG ......................................................................167Eugene Chow
Chapter 16 INDIA ....................................................................................180Ranjit Malhotra and Anil Malhotra
Chapter 17 ISRAEL ...................................................................................194Tsvi Kan-Tor, Amit Acco and Yoav Noy
Chapter 18 ITALY .....................................................................................203Benedetto Lonato and Alessia Ajelli
Chapter 19 JAPAN ....................................................................................215Masahito Nakai
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Contents
Chapter 20 LATVIA ..................................................................................226Gita Avotina
Chapter 21 LUXEMBOURG ....................................................................238Pierre Elvinger and Laura Favas
Chapter 22 MALTA ...................................................................................251Malcolm Mifsud and Joseph Mizzi
Chapter 23 MEXICO ................................................................................262Enrique Arellano Rincón
Chapter 24 NETHERLANDS ..................................................................274Sascha Kuit
Chapter 25 NIGERIA ................................................................................285Olivia Tagbajumi Oghoke Agbajoh
Chapter 26 PERU ......................................................................................295Iván Blume Moore
Chapter 27 SAINT KITTS AND NEVIS .................................................306Constance V Mitcham and Sam M Bayat
Chapter 28 SINGAPORE .........................................................................311Leon Kwong Wing and Elisa Soh Hui
Chapter 29 SWEDEN ...............................................................................324David Loveday
Chapter 30 UNITED ARAB EMIRATES .................................................347Sam M Bayat and Allison Obaro
Contents
Chapter 31 UNITED KINGDOM ...........................................................358Chris Magrath and Ben Sheldrick
Chapter 32 UNITED STATES .................................................................383Stephen J O Maltby and Ellen L Poreda
Chapter 33 URUGUAY .............................................................................399Federico Formento
Appendix 1 ABOUT THE AUTHORS .....................................................411
Appendix 2 CONTRIBUTING LAW FIRMS’ CONTACT DETAILS ...431
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EDITOR’S PREFACE
One of the benefits of being immigration practitioners is that our subject is never out of the news. Our discipline has been a hot political topic for over a decade and the current climate provides no exception. Across the globe political parties perceive the immigration debate as a mechanism with which to gain the attention of the voting public. In the UK, with an eye on the 2015 election, all of the political parties wish to stake their ground on immigration policy. The desire to provide a robust response to perceived public concern over migration flows, combined with a fear of the UK Independence Party (UKIP) vote, means that 2014–15 is unlikely to see any relaxation of immigration policy.
It appears that the only point on which all the major political parties agree is that unrestricted immigration is a bad thing. As the global economy showed little sign of growth in 2012–13, political leaders persuaded themselves that restricting the flow of overseas labour is, if nothing else, a means of deflecting from their own economic failures.
Our present leaders are focused on numbers and they hope to brandish a huge reduction in net migration to the electorate in two years’ time. Their ability to contain migrant flow is constrained by the provisions of international treaties (most importantly the Treaty of Rome) and the development of human rights laws with associated protections of the family unit. It has, therefore, been the working and business populations that have been most affected by the drive to bring down numbers. The UK points-based system is no longer the clear and transparent attributes assessment that was heralded in 2008: it is a criteria-based system with hundreds of pages of policy guidance. The mechanisms used by the government to quantify the headline figures remain nebulous, with issues such as freedom of entry at port for EU nationals and the lack of exit checks for all travellers being largely ignored. Net migration figures are in truth a ‘best guess’ exercise.
The relative easing in the economic crisis globally does not yet appear to have had a favourable impact on immigration policy. It will be some time before politicians are comfortable with a more flexible approach to international labour flows. Throughout the chapters of this book you will see a marked tendency towards increased regulation and constraint. President Obama in particular is unlikely to find the political capital needed
Editor’s Preface
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to deliver on immigration reform. The tone of debate in Australia has changed markedly since the election of Prime Minister Abbott last September.
We are again immensely grateful to our contributors from around the world for bringing their insights into the immigration schemes of their respective jurisdictions. We believe that you will find their contributions an invaluable guide to international immigration systems.
Chris Magrath and Ben SheldrickMagrath LLPLondonMay 2014
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Chapter 18
ITALY
Benedetto Lonato and Alessia Ajelli 1
I INTRODUCTION TO THE IMMIGRATION FRAMEWORK
Italy is one of the leading countries within the European Union (EU) and in the Mediterranean region in terms of number of immigrants, with very high levels of immigration historically, and which have been rapidly increasing.
Corporate immigration is becoming more and more important for Italy because of the evolution of the global economy and the country’s need to respond to international businesses increasingly choosing it as the location for their investments and commercial activities. Corporate immigration is also important because of the business opportunities generated by the country’s recent crisis.
In relation to this, on 23 December 2013 the ‘Destination Italy’ Law Decree2 was issued, introducing a number of new provisions aimed at increasing investment from abroad. Immigration law was also amended by this reform with the introduction of the new Start-Up Visa, which we believe may constitute an important simplification for non-EU citizens interested in developing any kind of internet or high-technology businesses in our country. Below you may find more details on this new opportunity.
i Legislation and policy
Law Decree No. 286/98, the Consolidated Law on Immigration, which regulates the granting of residence and work permits to non-EU foreigners; DPR No. 394/99, which is the regulation implementing the above-mentioned Law Decree No. 286/98 and which specifies in detail conditions and procedures for the granting of visas and residence permits; and Decree No. 850/2011 of the Ministry of Foreign Affairs, which defines visa
1 Benedetto Lonato and Alessia Ajelli are members of LCA Lega Colucci e Associati.2 Law Decree No. 145/2013 of 23 December 2013.
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categories and the requirements for their obtainment, represent the most important pieces of legislation on corporate immigration in Italy (together the Italian immigration law).
The above-mentioned laws contain provisions regarding (1) who is eligible to hold an Italian visa or residence or work permit, (2) which are the criteria for the issuance and renewal of such visas and permits, as well as (3) the rights and duties of foreigners staying and working in the Italian territory.
The Italian immigration law is supplemented by ministerial circulars and bulletins issued by the Ministry of Interior, which is the body in charge of immigration matters at national level. Circulars and bulletins do not have the same legal force as the above-mentioned laws but provide instructions and interpretative guidelines for the various offices and departments in relation to the implementation of the laws with particular reference to those procedural aspects not duly described or specified in the Italian immigration law.
The Italian immigration system makes a distinction between EU citizens and non-EU citizens, providing for the first category few procedures to be followed, in accordance with the principle of freedom of movement set forth by EU directives, and for the latter a series of requirements and controls that must be observed.
Furthermore, in relation to non-EU citizens, under Italian immigration law foreigners may apply for a visa and work or residence permit under two broad categories: quota and extra-quota authorisations to reside or work in Italy.
The quota mechanism is based on the issuance by the Italian government of an administrative provision called the ‘Decreto Flussi’, an annual decree fixing the number of residence and work permits that can be issued, based on the work category and the nationality of the worker. Individuals may apply for a permit under the quota mechanism to obtain a permit for subordinate work, for the option to convert a training permit into a subordinate work permit, or, in the case of employees working in the tourism and agricultural sectors, to obtain a seasonal work permit, depending on the content of the annual decree.
Often this mechanism does not represent a real option for the corporate immigration sector as outcomes and timing are highly uncertain because every year the number of applications is drastically higher than the numbers the provided quotas allow.
The other mechanism provided under Italian immigration law is that of extra-quota procedures, which allow non-EU citizens, in specific work categories, to enter and work in Italy if the requirements set forth by Article 27 of Law Decree No. 286/98 are met. These provisions are heavily used by multinational and foreign companies running businesses or business relationships in Italy.
As Italy is a Member State of the EU, EU directives, regulations and case law are applicable, and their provisions have been implemented in the Italian system mostly through the adoption of Italian legislative decrees. The following important EU legislation on immigration has been implemented in Italy:a Directive 2009/50/EC, implemented in Italy through Legislative Decree
No. 108/2012, which introduced the EU Blue Card and set the conditions of entry and stay in Italy for non-EU highly specialised workers who intend to be hired by an Italian employer;
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b Directive No. 2004/38/EC on the freedom of movement for EU citizens, implemented in Legislative Decree No. 30/2007, which regulates the entrance and stay in Italy of EU citizens and their family members;
c Council Regulation (EC) No. 539/2001, which lists the third countries whose nationals must be in possession of visas when crossing the external borders and those whose nationals are exempt from that requirement, and Council Regulation (EC ) No. 810/2009, establishing a European visa code; and
d Directive 2003/109/EC, implemented in Italy through Legislative Decree No. 3/2007, which has introduced the ‘Residence permit for EC long-term residents’; this work permit can be issued in favour of foreigners who have resided in Italy for at least five years, its duration is unlimited and it allows the holder to work and stay in any other EU Member State.
ii The immigration authorities
As indicated above, immigration matters in Italy are governed by the Ministry of Interior at national level, while immigration applications and permits are mainly processed and issued, with some exceptions, by a local administrative body – the Immigration Office – established in each province of Italy.
To obtain a residence and work permit, applicants, after having obtained authorisation from the competent Immigration Office, must file a foreign national’s visa application before the competent Italian Embassy or consulate abroad.
The Italian police are in charge of the submission of applicants’ biometric data and for the final issuance of the work or residence permit.
Other administrative authorities that may play a relevant role for immigrants, even if not directly, are (1) the Ministry of Labour and Social Policy, and the Labour Inspectorate, which are in charge of investigations into any aspects of labour relationships between Italian employers and employees; (2) the National Social Security Agency (INPS), which deals with social security matters; (3) the National Labour Insurance Agency (INAIL), which monitors health and safety issues in the workplace.
iii Exemptions and favoured industries
According to Council Regulation (EC) No. 539/2001, nationals of certain non-EU third countries (e.g., United States of America, Australia, Malaysia, Brazil, Canada and Mexico) may enter Italy under the visa waiver program. Such individuals are entitled to enter and stay in Italy for tourism or business reasons, but without authorisation to work, for a maximum of 90 days over a 180-day period, without previously having obtained a visa. Should the individual intend to stay for a longer period, he or she will have to apply for a specific residence or work permit.
Italian immigration law also facilitates certain types of work permit application, exempting them from the quota mechanism described above. Under Article 27 of Law Decree No. 286/98, persons who qualify for the following categories are exempted from the quota system:a intra-company transfers for temporary secondments;b secondments in the framework of international service agreements;c highly qualified workers required to carry out special activities;
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d maritime crew members;e highly specialised workers to be directly hired by an Italian employer, and who are
eligible for an EU Blue Card;f persons undertaking training and apprenticeships;g students; andh special categories such as artists, athletes, university lecturers, translators
and interpreters.
II INTERNATIONAL TREATY OBLIGATIONS
i European Union
Italy is a Member State of the EU and the European Economic Area (EEA); this membership grants immigration and employment benefits to EU citizens.
In compliance with EU legislation on freedom of movement, in particular Directive 2004/38/EC, which is applicable to all EU Member States, EU citizens do not need a permit or a visa for entering and working in Italy. Member States’ citizens are allowed to undertake employment within any other Member State and to move freely within the EU area, with the sole limitation of exclusion for reasons of public policy, public security or health.
The rights of free movement granted to EU citizens are also granted to EU nationals’ third-country family members – spouses and children under the age of 18 – who may follow their relatives to live and work in any Member State.
If the term of stay is shorter than three months, the EU citizen is entitled to enter and stay in Italy merely by showing a valid identity card or passport to the competent authorities upon request. Should the term of stay be longer than three months, the only formality that the EU citizen, and her or his family members, will have to undertake, from an immigration perspective, is registration, with the local town hall, where she or he elects to live in Italy.
In the past temporary restrictions on the right of freedom of movement in Italy were issued for those countries that joined the EU later on, such as Bulgaria and Romania, which became Member States in 2007 and were subject to transitional measures until 31 December 2013. These restrictions are currently in place for new member Croatia, which joined the EU in July 2013. Until the end of the transitional period, Croatian nationals will continue to be subject to work and residence permit procedures unless assigned to Italy in the framework of a service agreement or an intra-company secondment.
The same principles apply for citizens of the EEA and for Swiss nationals in accordance with the provisions of the bilateral agreement on the free movement of persons entered into by Switzerland and the EU.
Italy is also a party to the Schengen Agreement signed on 14 June 1985, which led to the creation of Europe’s borderless area and includes certain provisions for harmonisation of visa policies in the Schengen Area (all EU countries signed this agreement excluding the United Kingdom and the Republic of Ireland).
According to the Schengen Agreement, to enter one of the states belonging to the Schengen Area for short-term stays of up to 90 days in any 180-day period, nationals of
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third countries not included in the ‘white list’ provided under Council Regulation (EC) No. 539/2001 must obtain a specific uniform Schengen visa, depending on the type of activity to be carried out during the term of stay. The uniform Schengen visa allows foreigners to enter and remain in the Schengen Area (including Italy) for a short-term stay to visit relatives or friends, as a tourist, on business, to attend a conference or simply to transit the country, etc.
ii Social security bilateral agreements
Italy has entered into bilateral agreements with several countries and the EU to allow foreign employees who work or have been temporarily working in Italy to remain, partially or entirely, depending on the provisions of the bilateral agreement signed with each specific country, on their home country social security scheme; to avoid paying certain contributions in Italy and to accumulate pension rights in relation to the period spent working in the Italian territory.
Bilateral agreements concerning social security have been signed with the following countries: Argentina, Australia, Bosnia Herzegovina, Brazil, Canada and Quebec, the former Yugoslavia, Israel, Jersey, Isle of Man and Channel Islands, Macedonia, Mexico, Principality of Monaco, Republic of Cabo Verde, Republic of Korea, Republic of Croatia, Republic of San Marino, Tunisia, Turkey, the United States, Uruguay, Venezuela and the Holy See.
III THE YEAR IN REVIEW
i Start-up visa
Under Article 7 of Law Decree No. 145/2013, the Destination Italy decree, the Italian government requested that the Ministry of Interior, the Ministry of Foreign Affairs and the Ministry of Labour individuate new forms of facilitation for visa and work or resident permit applications in relation to high-tech and internet start-ups, investment developments, and research or high-level training programmes to be implemented with the cooperation of Italian universities, research centres or other public or private entities. This is only the first step of a process that may constitute a real opportunity for investors and entrepreneurs from all over the world, and the competent authorities are now studying the new simplified procedures to be implemented. More precise information on this is expected by April 2014.
ii New definition of ‘short stay’ for non-EU citizens
On the basis of the amendment of the Schengen Border Code by Regulation No. 610/2013, Italy implemented a new method for calculating the periods of stay applicable to short-stay visas. In compliance with the 90/180 day rule (90 days in any 180-day period) the period of evaluation is now the 180-day period finishing at the relevant date. Consequently, before admitting a non-EU citizen for a short-stay visit, border officials will review the exit and entry stamps for the previous 180 days. The total number of days spent in the Schengen area during the past 180 days may not exceed 90. Furthermore, the duration of stay granted to the non-EU citizen upon arrival will be determined by the remaining days available in respect of the 90-day limit.
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iii Conversion of study permit to a work permit
Law No. 99/2013, as interpreted by circular No. 7438 from the Ministry of Interior, provides that any non-EU student may use his or her Italian first-level master degree, his or her three- or three-plus-two year university degree to convert his or her study permit into a work permit without being subject to the quota mechanism. Previously this opportunity was restricted to PhD and second-level master degrees only.
iv Study permit period of validity
With Law Decree No. 104/13, subsequently converted into Law No. 128/13, the legislature approved an important amendment to study permit rules. Namely, the duration of the study permit shall now equal the length of the entire course attended by the student (including multiyear courses); this dispenses with any need to seek renewal during the course, as was the case before. Moreover the study permit may be renewed at its expiration for an additional 12 months. This amendment will enter into force in the following months, but only once the Italian immigration law has been amended accordingly by the competent authorities.
v Long-term residence permit for highly qualified workers holding an intra-company work permit
In judgment No. 4526/2013, the Council of State held that non-EU managers or highly qualified workers residing in Italy for five years with an intra-company work permit (Article 27(a), Law Decree No. 286/98) and who request to be hired locally by the Italian company at the end of their secondment, may convert their work permit directly into a long-term EC residence permit (see Directive 2003/109/EC).
IV EMPLOYER SPONSORSHIP
A foreigner who is not an EU, EEA or Swiss national, and who is required to enter Italy and work for a period longer than 90 days, must apply for a work permit.
As already explained, Italian immigration law distinguishes between two main categories of work permit: quota and extra-quota.
i Work permits falling under the quota mechanism
According to the quota mechanism, a foreigner who is hired by a company or an Italian employer operating in Italy must obtain a work permit for subordinate work. Upon issuance of the annual quota decree by the Italian government, the Italian company or employer must file an online application to the Ministry of Interior under the relevant quotas and, after clearance from the labour authorities and the police, obtain from the competent Immigration Office a work authorisation to employ the foreigner.
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ii Work permits outside the quota mechanism
From a corporate immigration perspective, Article 27 of Law Decree No. 286/98 provides for the most important extra-quota work permit categories; these are mostly used to transfer highly specialised workers from abroad and, following the introduction of the EU Blue Card, to hire them directly.
Intra-company work permitsThis kind of work permit, provided for by Article 27(a), Law Decree No. 286/98, is intended to enable multinational corporations or foreign companies to temporarily transfer non-EU highly qualified workers or managers to Italy to aid or initiate business operations.
In fact, the procedure can be followed when a non-EU worker must be temporarily assigned to work at an Italian entity but remain on the payroll of the foreign company. The Italian and the foreign entities must be part of the same group of companies and the worker must have been employed in the same business sector before being transferred to Italy.
The worker will continue to be paid by his or her foreign employer, the group company that has temporary transferred the worker to Italy, given that the employee is only seconded to the Italian branch office or subsidiary office.
Having obtained the intra-company work permit, the employee is free to work for the employer’s branch, subsidiary or parent company at its offices in Italy, like any Italian worker, full-time or part-time.
In any case the terms and conditions of the employment agreement must comply with the provisions of the applicable national employment agreement. Tax equalisation and social security compliance are also issues to be given due consideration and arranged in accordance with the provisions set forth in Italy’s relevant bilateral agreements.
The intra-company work permit can have an initial duration of up to two years and can be renewed for up to five years. After a maximum of five years, the intra-company work permit expires and the worker must leave the Italian territory.
It is possible, however, according to a specific provision of Italian immigration law, to convert the secondment into a local employment and consequently to convert the intra-company work permit into a normal subordinate work permit, without the five-year limit.
Therefore, in the event that the secondment agreement between the foreign company and the worker is terminated and the Italian branch, or subsidiary or parent company, enters into a new local employment agreement with the worker during the five-year period, a specific application can be filed with the competent Immigration Office to obtain a new work permit for subordinate work, renewable without time limits.
The conversion can take place only after a ‘reasonable’ period, during which the Italian branch, subsidiary or parent company has had the chance to evaluate the worker and consequently the opportunity to offer her or him a local employment agreement. In such a case, the foreign company would proceed with the termination of the secondment period and simultaneously the Italian branch would send the worker the new employment offer. At that point the aforementioned immigration application must be filed with the competent offices to obtain the new status.
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From a practical point of view, the application process for an intra-company work permit is structured in different stages: (1) online application at the Ministry of Interior for the release of the work authorisation; (2) submission of the required documentation to prove that the conditions set forth by law have been met; (3) application at the competent Italian consulate or embassy in the country of residence of the worker to obtain the Italian work visa; (4) execution of the contract of stay and of the integration agreement within eight days of the worker’s arrival in Italy; (5) filing at the post office of the application for the obtainment of the final work permit (i.e., the plastic card); (6) submission of biometric data at the competent police station (i.e., the fingerprinting); and (7) the release at the police station of the work permit plastic card. After that, in accordance with the provisions of the integration agreement, the worker shall participate in a course on Italian citizenship, language and culture organised by the competent Immigration Office, through which he or she will acquire an adequate knowledge of spoken Italian, the fundamental principles of the Constitution of the Republic and the organisation and functioning of public institutions, as well as the lifestyle of Italian citizens.
Service agreement work permitsWhen the foreign company and the Italian one are not part of the same group but have entered into an international service agreement, employees of the foreign company who are required to be temporarily transferred to Italy may obtain a service agreement work permit, provided for in Article 27(i) of Law Decree No. 286/98.
Application for this kind of work permit requires the existence of a service agreement, duly executed between the relevant companies, that outlines the specific activities and duties to be carried out by the foreign worker during the secondment period. The Italian company must also inform the local unions about the number of foreign workers assigned and the duration of their secondment in Italy.
The procedure to be followed for the obtainment of such a work permit is the same as that described for the intra-company work permit, with the sole exception of the documentation to be submitted to the competent Immigration Office, which may vary.
Service agreement work permits have a maximum duration of up to two years without any right of renewal.
Special activities work permitThis kind of work permit, provided for in Article 27(g) Law Decree No. 286/98, is intended for employees of foreign companies required to transfer to work in Italy for a limited period to carry out specific activities.
One of the requirements for the issuance of the special activities work permit is that the foreign company and the Italian company are part of the same group of companies.
The worker is obliged to leave the Italian territory on completion of the tasks and functions to be performed and, in any case, upon expiration of the work permit, which can have a maximum duration of two years, including renewals.
Other categories of extra-quota work permitsItalian immigration law, under Article 27 of Law Decree No. 286/98, provides for a number of additional categories of extra-quota work permits for non-EU nationals who intend to undertake temporary work in Italy.
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These categories include (1) university professors and researchers (2) translators and interpreters, (3) journalists, (4) domestic employees who have been hired abroad to work full-time, for at least one year, for an Italian citizen who has moved to Italy and intends to continue the employment relationship, (5) artists, (6) workers employed with circuses or shows, (7) maritime crew members and (8) trainees and apprentices.
There is also the option for non-EU students who are enrolled at an Italian university, and have completed a bachelor’s or master’s degree, to convert an existing study permit into a subordinate or autonomous work permit through a conversion procedure that is outside the quota mechanism.
European Blue CardIn August 2012 the Italian government approved the legislative decree implementing European Directive 2009/50/EC, making the EU Blue Card available to qualified foreign workers who are not EU, EEA or Swiss nationals.
Consequently Article 27-quater of Law Decree No. 286/98 now provides the option for highly qualified workers to enter into Italy, outside the annual quota mechanism, and be hired directly by an Italian company or employer.
The main requirements and conditions for obtaining a EU Blue Card can be outlined as follows.
The worker must be established on the local (i.e., Italian) payroll and execute an employment agreement or binding offer with an Italian company or employer. The employment agreement or offer must be for a minimum of 12 months and must specify the proposed work to be performed, which must be highly specialised and performed under the supervision or coordination of the Italian company or employer.
The the worker’s gross annual salary must be at least three times the minimum required for exemption from Italian social insurance (placing the minimum salary at approximately €30,000).
Applicants are considered as ‘highly qualified’ workers if they have at least a three-year university degree that certifies that they have acquired a specialised qualification recognised in Italy. Such a university degree must be validated by the Italian embassy in the country where it was issued following an assessment conducted by the Italian Ministry of Education.
From a practical point of view, the application process is similar to that described for the intra-company work permit.
The initial validity of the EU Blue Card is strictly linked to the duration of the employment agreement, ranging from one year and three months for shorter-term employment agreements up to two years for more binding, long-term employment agreements.
During the first two years with this status, there are some limitations on how EU Blue Card holders can work in Italy; they cannot perform work that is not deemed to be of the same highly specialised nature as their skills, and they may only change Italian company or employer if they apply for and receive prior authorisation from the competent office of the Ministry of Labour and Social Policy.
Other than the restrictions mentioned above, EU Blue Card holders are granted the same rights as Italian citizens. Regardless of the duration of the worker’s EU Blue Card, his or her family members have the right to obtain a residence permit for family
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reasons pursuant to the general conditions set forth by Italian immigration law (as described in the following paragraphs).
In addition to this, workers holding an EU Blue Card issued by a different EU Member State, and having resided with a qualified work authorisation for at least 18 months in said Member State, may enter Italy to perform highly skilled work without having to apply for a visa. In this case, it is the new Italian employer’s duty to apply for the corresponding work authorisation within one month of the EU Blue Card holder’s entry into Italy.
Finally, EU Blue Card holders are granted the option of applying for an Italian permanent residence permit at the end of five continuous years of residence in the EU provided that they have maintained valid residence in Italy in the two years immediately prior to the submission of the application for permanent residence.
iii Permit of stay for family members
Family members of EU workers and non-EU workers holding an Italian work permit have the right to stay in Italy with their relatives.
Italian immigration law defines as ‘family members’ the following categories of persons:a spouse not legally separated;b unmarried minor children under 18 years of age;c children over 18 years of age who are dependent and cannot support themselves
autonomously because of health reasons; andd parents who do not have any other child in their country of origin, or are over
65 years of age and have other children in their country of origin who cannot support them because of health reasons.
Italian immigration law provides different procedures for family members who want to obtain a permit to stay as dependants of a work permit holder. The most efficient of such procedures – in terms of costs and time – is the ‘family cohesion’ procedure.
According to this procedure, family members can enter Italy with only their passports, if they are nationals of a country that participates in the visa waiver programme, or under a tourist visa if they are nationals of a country that does not participate in the visa waiver program. They will be entitled to stay in Italy for up to 90 days, during which the application for a family cohesion permit of stay can be filed. To support the permit application, family members must typically file documentation proving their relationship: the marriage certificate for the spouse and birth certificates for the children, all duly legalised by the competent Italian embassy of the country where the documents were issued.
Permits of stay obtained for family reasons are of a duration equal to that of the work permits of the family members working in Italy, and they can be renewed as long as the corresponding work permits can also be renewed.
iv Labour market regulation
The quota system for the issuance of work permits is structured with the aim of issuing permits only when the Italian labour market shows the need to cover certain work
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positions. Work permits, therefore, can only be obtained subject to the Italian authorities’ condition that certain positions cannot be filled by Italian jobseekers, unless the foreign worker qualifies for one of the extra-quota work permits.
v Rights and duties of sponsored employees
Holders of work permits are allowed to carry out work activities in the Italian territory and study; if their conditions change (particularly salary, duties or workplace), they must inform the Immigration Office about such changes to update their work permit accordingly.
Holders of subordinate work permits obtained through the quota mechanism are entitled to change their employer or their job, but they are required to communicate such changes to the Immigration Office and undertake the necessary procedure to update their work permit.
Workers who have entered Italy under one of the extra-quota work permits described above (Article 27 Law Decree No. 286/98) cannot change employer or sponsor company. To do so, they would have to exit Italy, deregister their previous work permit and have the new employer or sponsor company apply for a new work authorisation.
V INVESTORS, SKILLED MIGRANTS AND ENTREPRENEURS
Non-EU citizens who want to invest in Italy currently have two fundamental options under Italian immigration law to obtain a work permit and permit of stay.
Under the quota mechanism foreigners who are autonomous workers and want to invest in Italy and set up a company – or even work independently as consultants or licensed professionals – must apply for a work permit for autonomous work.
Outside the quota mechanism, foreigners who want to invest in Italy and work as autonomous workers by setting up a company, or by working as professionals and consultants, can apply for a work permit for autonomous work under Article 27 Law Decree No. 286/98 and Article 40, Paragraph 22 of DPR No. 394/99. Such a procedure is unusual because it does not involve an Immigration Office in Italy; applicants must file their application directly with the competent Italian consulate or embassy in their country of residence. To support their application, applicants must file, among the supporting documents, a business plan that describes in detail the investment project (for foreigners who want to invest in Italy and establish a company) or a description of the applicant’s prospective project or work activities as an independent consultant.
The start-up work visa (see Section III.i. supra) represents another potential option for investors and entrepreneurs.
High-net-worth individuals are allowed to enter Italy without being subject to the quota mechanism. They are entitled to apply for a specific visa, the elective residence visa, which is intended to allow foreign nationals to establish residence in the Italian territory without carrying out any sort of work activity.
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Applications for this kind of visa must be filed directly with the competent Italian consulate or embassy in the applicant’s country of residence and applicants must be able to demonstrate that they are able to support themselves and live without working in Italy. It is therefore necessary for applicants to prove the existence of steady and regular financial resources, which can be generated by the possession of real estate, regular economic and commercial activities outside Italy, pensions or trusts, as well as any other resource that does not come from the performance of subordinate or autonomous work in Italy.
VI OUTLOOK AND CONCLUSIONS
Italian immigration law provides different options for non-EU citizens to stay and work in Italy.
As indicated above, Italian legislation provides several types of work permit – such as the intra-company work permit or the services agreement work permit – to match the needs of foreign or multinational companies with regard to their operations in Italy.
Moreover, thanks to the implementation of the EU Blue Card directive, it is now possible for Italian companies to hire, directly from abroad, non-EU highly qualified workers and in our experience, the timescale for this procedure in Italy is reasonable compared with other countries in Europe.
Finally, policies formulated from an immigration law perspective with the aim of attracting talent and capital from abroad seem likely to be implemented very soon. The start-up visa regulation may represent a significant option for an entire generation of internet and high-tech companies and entrepreneurs, by whom Italy is considered an important market.
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ABOUT THE AUTHORS
BENEDETTO LONATOLCA Lega Colucci e AssociatiBenedetto Lonato read law at the University of Genoa in 2005 and qualified as an Italian lawyer in 2009. Benedetto joined LCA Lega Colucci e Associati in 2007 and he specialises in company law, mergers and acquisitions and Italian immigration law. Prior to this, in 2006, he gained experience of immigration law with a law firm in San Diego specialised in global corporate immigration. Benedetto assists multinational corporations, academic and public institutions, and freelance professionals in obtaining all kinds of visa and work permit in Italy. Benedetto and the LCA immigration team assist clients in every aspect of Italian immigration and citizenship law, also within the context of M&A and commercial transactions. Benedetto is the local partner for several global immigration networks and he is the author of many articles and papers on Italian immigration and citizenship law.
ALESSIA AJELLILCA Lega Colucci e AssociatiAlessia Ajelli read law at the University of Milan in 2011. She joined LCA Lega Colucci e Associati in 2011 and she specialises in corporate law, mergers and acquisitions, digital and intellectual property law, immigration and citizenship law. Alessia is a member of the firm’s immigration team and her practice in this area focuses principally on corporate and business immigration issues, and in particular she assists multinational companies and groups, entrepreneurs, investors and international highly qualified managers who intend to transfer to Italy and Europe for work-related reasons, as well as individuals who want obtain or reacquire Italian citizenship.
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LCA LEGA COLUCCI E ASSOCIATIVia della Moscova 1820121 MilanItalyTel: +39 02 7788751Fax: +39 02 [email protected]@lcalex.itwww.lcalex.it
