Asia-Pacific Economic Cooperation - APEC

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Asia-Pacific Economic Cooperation
2001/SOM2/CTI/IEGBM/06
Informal Experts’ Group on Business Mobility
Agenda Item 9
Current Definitions and Existing Streamlined Arrangements
for the Temporary Entry of Specialists or Key Personnel
Informal Experts’ Group on Business Mobility
Senior Officials’ Meeting 2
Shenzhen, People’s Republic of China
26-27 May 2001
SPECIALISTS OR KEY PERSONNEL
DEFINITIONS AND EXISTING STREAMLINED ARRANGEMENTS FOR THE
TEMPORARY ENTRY OF WORKERS WHO ARE SPECIALISTS OR KEY
PERSONNEL.
Introduction:
At the first Business Mobility meeting of 2001 in February, members reviewed the
results of the survey on streamlined arrangements for specialists and non intracompany transferees. It was noted that a common definition of specialists was unlikely
given the evolving composition of this group as a result of expanding/globalizing
economies and the changing needs of the labour market. It was suggested that given
convergence on a definition was problematic, individual economies should adhere to
their own definitions but make them widely known through, for example, such vehicles
as the APEC Travel Handbook on the Internet.
As a result of the discussion, it was agreed that Canada would compile all the available
economy definitions of the specialist/non-inter company transferee category and
associated processing arrangements. Bracketed notes in bold typeface indicate that
more information is requested. It is proposed that the BMG review the compilation
below with the aim of deciding on its possible inclusion in some form in the APEC
Travel Handbook. In addition, economies who have yet to provide information on this
category of workers, are encouraged to do so.
Australia:
Definition:
Australia includes specialists along with managers and executives which are
occupations normally assessed as “key activity”. These occupations are essential to
the business operations of the employer and require specialist or professional skills, or
specialized knowledge of the business operations of the employer.
Arrangements:
Positions assessed as “key” do not require labour market testing and applicants may
apply for a 457 visa at an Australian mission or at an Immigration office in Australia
(when the applicant is in Australia). Streamlined processing for 457 visas includes
abridged health and character checks and the requirement that visa applications should
be decided within one month of being lodged. In addition, it is usually not necessary for
these visa applicants to be interviewed by the Australian mission.
1
Canada:
Definition:
Canada defines specialists as having special knowledge of a company's product or
service and its application in international markets or an advanced level of knowledge
or expertise in the organization's processes and procedures. In determining if
specialized knowledge exists, immigration officers are asked to consider if such
knowledge is available in Canada and if it is related to common practices or services. A
person who possesses the advanced level of knowledge or expertise required to qualify
in this category would usually be in a position critical to the well-being of the enterprise.
Arrangements:
Under the general temporary foreign worker provisions, specialists or individuals with
“specialist knowledge” must obtain a labour market validation and an employment
authorization. However, if it can be proven that the worker will provide significant
economic benefit, the labour market validation will be waived. Under GATS, NAFTA
and the Canada-Chile Free Trade Agreement (CCFTA), if a specialist is an intracompany transferee, a labour market validation is not required.
Chile:
Definition:
The “Temporary Entry of Business Persons” Chapter, included in the Free Trade
Agreements between Chile and Canada, Mexico and Central America, established four
categories of business persons. One of these categories is the intra-company transfer
of executives, managers and personnel with specialized knowledge. Although the trade
agreements did not establish a specific definition for specialists, Chile applies, for the
purposes of temporary entry, the following definition for specialized knowledge:
Specialized knowledge is a special knowledge of the product, services, research,
equipment, techniques, management or interests of the organization and their
application to international markets, or an advanced level of knowledge or expertise in
the processes and procedures of the organization.
Arrangements:
No streamlined arrangements specified.
-2-
Peoples’ Republic of China:
Definition:
While China has not stated a specific definition for specialists or key personnel, the
following people have facilitated entry and temporary residence:
·
·
·
·
·
foreign senior management personnel who come to China to carry out
agreements signed by China’s central or local government and foreign
governments on major scientific/technological, or key construction projects at the
state’s, provincial or ministry’s level according to Chinese standards;
foreign qualified scientists and technicians or high-level management personnel
taking posts in China;
foreign nationals coming to China to carry out inter-governmental free aid
agreements;
foreign investors, especially those investing in China’s western areas; and
foreign senior management personnel and qualified technicians in Chineseforeign cooperative enterprises, Chinese-foreign joint ventures or foreign-funded
enterprises.
Arrangements:
A multiple entry Visa F valid for 1 - 5 years for no more than 6 months upon each arrival
for those who need to make multiple temporary visits to China; an Alien Residence
Permit with validity of 1 - 5 years for those who need to reside in China; and a multiple
re-entry Visa Z of the same validity as the said permit for those who need to make
multiple entries. Five to 10 working days are normally required to process a Visa F or
Z.
Hong Kong, China:
Definition:
Hong Kong, China defines specialists as someone who possesses knowledge at an
advanced level of expertise which is relevant to the industry in which the organization
operates and which is not readily available in the economy.
Arrangements:
Specialists and key skilled personnel are admitted under the normal immigration policy
for employment. Under this policy, a person seeking to come to work in Hong Kong,
China must satisfy the economic benefit test and the labour market test before he/she
is allowed entry. Under the economic benefit test, entry is granted if it is assessed that
the person can make a substantial contribution to Hong Kong’s economy. Under the
labour market test, entry is allowed only if the person possesses a skill, knowledge or
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expertise that is not readily available locally. Subject to the labour market test and the
economic test, a visa application will normally be approved within six weeks if general
employment criteria are being met.
In dealing with employment applications from specialists and key skilled personnel, the
front line staff, apart from satisfying themselves the above tests, should examine :
·
·
the applicant – whether he has the relevant qualifications, skills and experience
for the job; and
the employing company – whether it is reputable or financially sound.
[is the SLS scheme applicable as well to specialists?]
Japan:
Definition:
Workers with special technology, skills or knowledge are allowed to enter and reside in
Japan. Workers other than intra-company transferees who wish to enter as a
“specialist” should be classified as “Engineer” or “Specialist in
Humanitarian/International Services”.
Arrangements:
Japan seeks to simplify and accelerate issuing visas by way of bilateral and unilateral
measures. [more information requested]
Malaysia:
Definition:
[Note: Malaysia returned the specialist survey but did not indicate how they
would define or classify people who have specialized knowledge or who are key
personnel. More information requested.]
Arrangements:
Applications for specialists or skilled workers can be made to the Employment pass
section, Immigration Head Quarters, Kuala Lumpur [more information requested]
-4-
New Zealand:
Definition:
Specialist categories in New Zealand for which there are streamlined procedures for
temporary entry include the following:
·
·
·
·
·
·
business persons on short-term secondments; includes both intra-company and
non-intra company (from substantial well-known firms) transferees;
long-term business visa or permit holders; refers to business people who wish to
establish a business in New Zealand without living permanently in New Zealand;
university lecturers;
research and post-doctoral fellows;
installers and servicers of machinery; technicians may be issued a work visa to
install or service specialist machinery or equipment supplied by a overseas
company; and
other specialist areas: medical and dental personnel for New Zealand hospitals,
medical and dental trainees, the Black Birch Astrometric Observatory, Operation
Deep Freeze, Japanese interpreters, Korean Nationals assisting deer velvet
procedures, ministers of religion, and show judges and sports referees.
Arrangements:
For the specialist categories above, a labour market test is not required.
Such applications where all information and documents are supplied can be finalized
within 30 days.
Philippines:
Definition:
In the Philippines, there are no specific definitions for foreign “specialists” or “key
personnel” per se, but rather an enterprise, or a zone registered enterprise, may employ
foreign nationals in supervisory, technical or advisory positions under certain conditions
and for specific periods of time. For instance, for an enterprise, the foreigners
employed in the supervisory, technical or advisory positions may not be in excess of
five percent of the total personnel in each category in the enterprise and employment
shall not exceed five years. For a zone registered enterprise, the employment period of
foreign nationals may be extended for limited periods beyond five years at the
discretion of the Authority.
In addition, the Subic Bay Metropolitan Authority (SBMA), may issue working visas
renewable every two years to foreign executives and other aliens possessing highly
technical skills which no Filipino within the Subic Bay Special Economic Zone
possesses as certified by the Department of Labor and Employment.
-5-
Arrangements:
Foreign workers are exempt from securing an Alien Employment Permit if their
employment in the Philippines has been determined by the Secretary of Labor and
Employment to be beneficial to the national interest. Applications are decided on a
case-by-case basis. There are also guidelines which exempt foreign workers from
having to train understudies, for example, workers whose employment is temporary for
the accomplishment of a specific task such as installing machinery and others whose
line of work is deemed not to require understudies as determined by the Secretary of
Labor and Employment on a case-by-case basis.
Singapore:
Definition:
Singapore does not differentiate between specialist workers and other key personnel
workers but rather has three types of work passes for foreigners:
·
·
·
“P” passes for those possessing professional qualifications and seeking to work
in administrative, professional or managerial positions. Entrepreneurs and
investors, as well as specialist talents such as artistes and musicians may also
be considered for P passes.
“Q” passes for skilled workers and technicians.
“R” passes are for unskilled and semi-skilled workers.
Arrangements:
Singapore applies the APEC definition of “executives” and “managers” to the P pass
category, which would also include specialists given that Singapore does not
differentiate between them. There are two types of P passes, P1 pass and P2 pass. To
obtain a P1 pass the applicant’s basic monthly income should be more than S$7,000.
For P2 passes, the basic monthly income is to be more than S$3,500 and up to
S$7,000. Singapore does not make any distinction between inter and intra-company
transfers of executives and senior managers. P and Q pass holders are allowed to
come into Singapore on social visit passes and apply for a pass after obtaining a job
there. Most applications are processed and the applicant notified of the outcome
within 14 working days.
-6-
The United States:
Definition:
For the purposes of the entry of key personnel who are not intra-company transfers, the
United States has a very broad definition of the term specialist. For the purpose of an
H1-B classification (workers coming temporarily to the United States to perform
services in specialty occupations), a “specialist” is required to have a bachelor’s degree
(or foreign equivalent) or the equivalent in training, education and work experience
(e.g., three years of specialized training and/or experience can substitute for a
bachelor’s degree). A specialist must be coming to the United States to fill a “speciality
occupation” that requires the theoretical and practical application of highly specialized
knowledge and attainment of at least a bachelor’s degree (or foreign equivalent) and
state licensure if required to practice. For an employer’s petition for a “specialist” to be
approved, the specialty worker’s credentials must match the needs of the position to be
filled within the specialty occupation. Under NAFTA only specific professions qualify for
TN entry. Most H-1Bs and TNs work in non-managerial capacities.
Arrangements:
The NAFTA TN visa is the U.S.’s most expedited processing system for specialty
workers. By comparison, the H-1B is relatively low.
[more information requested]
Vietnam:
Definition:
Vietnam does not have specific immigration procedures for foreigners who are
specialists or workers employed by Vietnamese businesses.
Arrangements:
Foreigners may be invited by an authorized Vietnamese agency to come to work with
his/her partners in Vietnam for a period of not more than 15 days to accelerate the
implementation of economic or investment, trade, technology transfer contracts. The
foreigners will be issued an entry visa within one to two working days from the date of
receiving the application and required supporting documents (i.e. letter or cable of
invitation from authorized Vietnamese agency). Any Vietnamese enterprise which
wishes to invite a foreigner to work in Vietnam for a period of more than 15 days shall
apply for approval of the immigration agency of the Ministry of Public Security. The
approval shall be issued within five days.
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