FREQUENTLY ASKED QUESTIONS ABOUT FRENCH IMMIGRATION AND VISA LAW

Transcription

1 FREQUENTLY ASKED QUESTIONS ABOUT FRENCH IMMIGRATION AND VISA LAW Haywood Martin Wise Avocat au Barreau des Hauts de Seine Attorney at Law (admitted in N.Y. and N.J.) HAYWOOD MARTIN WISE 32 rue des Bas Rogers Puteaux Tel: haywwise@wanadoo.fr In collaboration with Aaron N. Wise, Partner Gallet Dreyer & Berkey, LLP Attorneys at Law 845 Third Avenue, 8 TH Floor NY , USA Tel: Fax: anw@gdblaw.com Haywood Martin Wise, 2006 All Rights Reserved

2 FAQs 1. How many categories of French temporary work permits or temporary work visas for foreign nationals are available? France has recently opened its borders to foreign (non EU) workers via a number of recent reforms. A number of categories of work permit and temporary work visas exist, notably a new hire of a foreign person, the transfer of a foreign employee to France for a limited time to perform a specific function, and special provisions for high-level employees of international groups. A special provision is provided for foreigners sent to France to open a representative office of a foreign company. A foreign professional may also obtain a work visa as an independent (non-salaried) professional or officer of a French company. Specific categories are provided for scientists performing research work or performing a teaching position at a university level, artists/performers and musicians, film artists, living language teachers, secondary school teachers via exchange programs, university teachers and other teachers of higher learning, researchers, interpreter/guides, camp counselors, air pilots and crew, models, bull-fighters, student interns, professional interns, students requesting the right to work during period of study or during vacation periods, public service hospital workers, and private medical and pharmacy professionals. 2. What government ministries or agencies are involved in the temporary work permit process? The general, common law rule is that the application for employment of a foreign worker must be made by the French employer to the regional French Labor Authority (Direction Départementale du Travail et de la Formation Professionnelle or DDTEFP), and that a five-week job posting must be made with the regional Employment Office (Agence Nationale Pour l Emploi or ANPE). Thereafter the file is sent to the French Immigration Authority (Office des Migrations Internationales or OMI), and then finally to the foreign French Consulate. However, in certain visa categories, such as the transfer of a foreign employee on a short-term basis to France (détachement), no job posting is required. For high-level executives of international groups, a March 2004 provision has expedited these visas, making the OMI the only entity that need approve the request. Finally, for the regulated professions and the arts, there are profession-specific entities which must approve or at least give their opinion on the temporary work visa petition. 3. What are the most frequently used options for international intracompany and affiliate cross-border transfers of key personnel? Three options exist for international intracompany and affiliate cross-border transfers of key personnel: (1) the favored high level executive (cadre dirigeant) category, (2) temporary employee transfer (detachment) category, and (3) the common law regime new hire category. 2

3 The first category mentioned, the high level executive category, allows for considerable time savings but has stringent requirements regarding minimum salary, seniority with the group and existence of group relationship. The temporary employee transfer category may provide a short-term solution where the minimum pay or international group criteria are not satisfied for the high level executive category. Finally if employment in France shall be long-term, the new hire option is more time-consuming, but is a viable option. High level executives The French government, by a March 2004 law, has recently tried to attract foreign investment and ease in managing international groups by making only one authority, the French Immigration Office (OMI), the sole regulatory authority to review visa requests for high level executives (cadres dirigeants). The individual concerned must have been employed in another company of the group for at least one year to benefit from these provisions, and the group s parent company must satisfy certain conditions provided in the Circular. The executive concerned must have responsibilities of some importance, implying a great deal of independence. They are independent decision-makers, and they must receive substantial remuneration, greater than or equal to a gross amount of 5,000 euros per month. The executive may be accompanied by his/her spouse and children. Temporary employee transfers Temporary transfers of employees may be made from a foreign company to a French host company for nine month periods. In this case, no new employment relationship exists and the foreign employees in question remain subject to their original employment contract with the transferor company. For countries with whom a bilateral social security treaty exists, such as with the United States, the employee remains exclusively subject to U.S. social security. To qualify as a transferred employee (salarié détaché), the transferred employee must remain an employee of the foreign company for the entire term of the transfer. He/she remains subject to the authority of his/her foreign employer. To qualify, the employee s duties must generally be limited in nature to financial auditing, technical assistance or liaison with the foreign employer and the French entity. New hires If the person does not qualify for the high level executive category above, but nonetheless the mission in France is on a long-term basis, then the common law regime for a hiring of a foreign employee applies (five weeks job posting at the ANPE, review by the DDTEFP). 4. What temporary work permit and visa options are most frequently used for newly hired international workers? With exception to seasonal worker categories and other specific professions, a newly hired international worker that is to say, directly hired in France is required to follow 3

4 the common law rules under which the French employer sponsors the petition, a fiveweek job posting must be made at the ANPE, and the reasons for hiring the foreign worker must be explained in great detail in the petition to the regional DDTEFP. 5. What basic procedure is used to obtain a temporary work permit? Under the standard procedure, the French employer prepares the petition, often with the assistance of French counsel. The petition involves submission of the employee s (and accompanying family s) personal documents and diplomas, with sworn translation if not in French, with letters/certifications from the French employer explaining the need for the foreign worker, and information regarding the lodging of the employee and an undertaking to pay Immigration Office (OMI) dues. This file is presented to the DDTEFP. At the same time, a job posting is made at the regional French Unemployment Office (ANPE). A certification of job posting for five weeks is then submitted to the DDTEFP, who then rules on the application. If accompanying family is involved (spouse and children), a file is also sent to the regional welfare authority (DDASS). The DDTEFP thereafter sends the approved file to the OMI, who performs a cursory review and then forwards the file to the French Consulate abroad. The employee must appear personally at the foreign Consulate to process the entry visa. Immediately upon arrival in France the employee (and accompanying family) must submit to a medical examination, and will thereafter be issued a work permit (carte de séjour salariée). The French employer must thereafter register the employee with French social security (URSSAF). 6. What conditions or restrictions apply to workers on temporary work permits? The employee must not already be in France (although often in practice this is the case). Only exceptionally will a change of status (regularization) be granted. Workers on temporary work permits are limited to employment with the named employer of the work permit. Renewals should be done three months prior to expiration of the work permit. Foreign workers are subject to a mandatory medical examination upon arrival in France. 7. What conditions or restrictions apply to employers sponsoring temporary workers? The initiative of introduction of a foreign worker must come from the French employer, who must make the application to the DDTEFP (or OMI directly in the case of high-level group executives) and make the job posting at the ANPE for the requisite 5 week period (unless exemption is provided). The current legislation requires that the DDTEFP perform a rigorous and detailed analysis of the job offered, whose necessity can be established by job statistics, the given sector of work, as well as the nature of work, duties and qualifications of the foreign worker. The French company must perform all of the necessary formalities and pay the dues and contributions to the OMI. Dues and contributions to the OMI are based on a fixed tax of 360 Euros and an additional contribution based upon the employee s remuneration (690 Euros unless greater than 1,525 Euros gross/month, in which case the contribution is 1,375 Euros). 4

5 8. How long is a temporary work permit valid? The work authorization and visa are valid for nine months and may be continually renewed, depending upon the duration specified in the employment contract. Although the first renewal request is generally given limited review, the second renewal requires additional justification from the employer. 9. Is the temporary work permit procedure a separate process from the temporary work visa procedure? No. However, if the employee is hired by the French company as opposed to merely being transferred for a limited period by the foreign company, then the employee must be registered for social security and be included on the French company s personnel register. 10. How long does it typically take for a temporary work permit or a temporary work visa to be issued? Under the common law procedure which involves a five week job posting period, the process may take up to two months, since a number of authorities are involved (the DDTEFP, the OMI and the foreign Consulate). However for group executives, this may take less than two weeks. Transferring technical employees may be done in perhaps three weeks. 11. What is the degree of difficulty or typical probability of success of well-prepared applications for the temporary work permit and temporary work visa categories most frequently used by employers of foreign nationals? A well-prepared and documented file is very likely to succeed, particularly if the request is made by a U.S. company or concerns a U.S. employee with requisite diplomas. The French authority will perform a substantive review of the file. Furthermore, form is very important as well. A properly prepared file which can justify the reasons for hiring the foreign national is very likely to succeed. There is no quota system. 12. What are the leading methods successfully used to obtain the right of permanent residence for international workers? International workers may request a residency card (carte de resident) provided they satisfy the criteria for same. The residency card is both a visa and work authorization. It allows the holder to live and work in France without limitation, both as an employee or as an independent merchant or professional. The residency card is valid for 10 years and may be automatically renewed. The residency card is granted at the discretion of the French authorities to persons who can establish that they have maintained uninterrupted residence in France for at least five years, and who can demonstrate that they have sufficient resources, and can show their intent to establish him/herself in France (for example purchase of real property, business creation, etc.). 5

6 13. Is special consideration for visas or work permits given to persons of certain nationalities? European Union nationals and member citizens of the European Economic Area are employed and may establish themselves independently in France as of right, subject to certain administrative formalities. Bilateral agreements exist between France and a number of countries, such as the United States, which favor requests for work authorizations and rights to exercise professional activities. 14. What tax issues do foreign temporary workers or their employers need to be aware of? If the foreign temporary worker is a new hire in France by a French employer, then the worker would be subject to French social security and need to be recorded on the employee register. He would also be subject to French income tax. For transferred technical workers who remain on the payroll of the foreign transferee company, however, the employee would not be subject to French social security where a bilateral social security treaty exists between France and the country from which he/she is transferred, such as the U.S., where the U.S. Social Security Administration needs to provide form SE Indeed the Franco-U.S. Social Security Convention precludes liability for French social security coverage provided that the individual s employment relationship remains exclusively subject to U.S. law, and the transfer does not exceed five years. With regard to French income tax, the foreign worker would not be subject to French income tax if (1) he or she continues to be paid by the foreign employer only, and (2) for a given fiscal year, he or she did not live in France for a period greater than 183 days. In the event this 183-day period is surpassed, the employee would be deemed to have tax domicile in France and be subject to French income taxes. 15. What local employment law issues do temporary workers or their employers need to be aware of? Unless exempted (such as in the case of temporary technical employee transfers), the foreign employee must be affiliated to French social security (URSSAF) and the employers must pay URSSAF contributions. Furthermore, the common law rule is that any employment relationship performed in France shall be governed by French labor law. Therefore the French employer would be bound by mandatory French labor law provisions, such as those governing termination and severance indemnities. In certain circumstances, the employee can remain subject to the foreign employment contract and foreign law, and express waivers by the employee as drafted by counsel may be necessary to avoid the application of French labor law. 6

7 16. What other potential problems should foreign temporary workers or their employers be especially aware of? Foreign temporary workers will often have to do some local running around to the Préfecture, and the OMI, for a medical visit and visa processing upon arrival in France. Generally the lawyer is only involved in the petitioning process and follow-up, so the employer and employee must be sure that the employer arranges for the visits, in particular with the OMI, and that the employee does all that is necessary to complete the formalities in France. 17. Can immigration lawyers assist with the work permit process? Most definitely. It is rare for the French employer to have in-house expertise and experience in immigration/international mobility issues. The French immigration attorney can liaise with the foreign (U.S.) employer, the French employer and the foreign employee to obtain the necessary certifications, agreements and letters in support, and can often expedite the file with the French Consulate abroad and the DDTEFP via phone and correspondence. 18. Do multinational employers typically use immigration lawyers to assist with the work permit process? Yes. Immigration law is considered to be a legal specialization in France, and multinational employers located in France acknowledge that for both work permit applications and administrative appeals (should that be necessary), the French immigration lawyer is an important part of the work permit process. This is particularly true in France, where French authorities have a broad degree of discretion, and sound presentation, attention to form and detail, and argument are necessary to ensure success. 19. May members of a temporary worker's household be authorized to work? (e.g., spouse, children, parents, personal servants) The spouse and children may accompany the temporary worker during his/her stay in France, under a visitor s visa which does not give them the right to work. They may only work if they may independently claim a right to a work authorization. Parents of the temporary worker are not considered as accompanying family. Special legislation exists for personal servants, enabling them to obtain a work authorization. 20. How can family members of a citizen obtain the right to permanent residence? (e.g., a foreign-born spouse, parent, or child etc.) Spouses of French citizens have a right to permanent residence, provided the marriage was celebrated at least two years prior to the permanent residency request. Furthermore, children (less than 21 years of age) of a French parent also have a right to permanent residence. Also, the parent of a French citizen may request permanent residence, provided that the parent is a dependent of the French citizen. 7

8 21. Is it possible for foreign-born persons to acquire full citizenship? (If yes, what is the required procedure?) Yes. If the foreign-born person is the child of a French parent, citizenship may be obtained as of right. Foreign-born persons with a French spouse may claim French citizenship following two years of marriage. If the foreign-born spouse has not resided in France without interruption for at least one year during the marriage, then three years of marriage must be justified. Relevant documents establishing paternity and French citizenship of the parent are presented to the Consulate abroad, or to the Court of Small Claims (Tribunal d Instance) where the foreign-born person resides in France. Processing generally takes over one year. Furthermore, foreign-born persons may request to be naturalized if such persons have resided continuously in France for five years prior to filing of the request. French nationality in this case is given in the discretion of the French High Administrative Authority (Conseil d Etat) if the French speaking person can show that his acts in France have been meritorious and contributing to French prosperity. The above-mentioned fiveyear period may be reduced to two years if the foreign-born person successfully performed two years of higher education in France. This request is made at the Préfecture where the foreign-born person resides. A reply is given to the request within 18 months of the request (although in practice this may take longer). 22. What is the current law and policy regarding dual nationality? Dual nationality is not expressly provided for in French law, but is recognized. Thus a child born abroad in a country which applies the rights of nationality based on place of birth, where such child may also claim nationality through parentage, will have dual nationality. Dual nationality may also be obtained through naturalization, by marriage, by transfer of a territory or by independence of a State (such as Algeria in 1962). French law does not require that when a foreigner becomes French he renounce his original nationality, or that a French person renounce French nationality when he/she acquires foreign nationality. Nevertheless, the French government applies the Convention of May 6, 1963 which provides that former nationality is lost in respect of national laws of signatory states whose laws provide for loss of nationality, such as Germany. The effects of this Convention was substantially reduced by a 1993 amendment signed between France, Italy and the Netherlands, which provides that dual nationality shall be permitted under certain conditions. French-U.S. dual nationality is not subject to restriction. French nationality may be renounced by declaration made to the foreign Consulate. 8

9 23. What are the current requirements to qualify for asylum or refugee status? French law recognizes rights to asylum or political refugee status for a foreign-born person who is subject to persecution by a sovereign or non-sovereign authority. Asylum may be granted further to the rules of the Geneva Convention, where the petitioner can establish that he/she is persecuted in his/her country due to race, religion, nationality, belonging to a social group or due to his/her political opinions. Asylum may also be granted by reference to the 1946 French Constitution based upon persecution due to actions in favor of freedom. Refugee or asylum status is requested at the French Office for Protection of Refugees and Expatriates (OFPRA). After the OFPRA issues a certificate of deposit of the request, the petitioner must go to the Préfecture where he resides, which will issue a receipt of request for asylum, valid for three months. If the petitioner is admitted under asylum status and he/she has a long stay visa, the Préfecture will issue a receipt valid for a six month stay, which is renewable until the OFPRA issues its final decision. If OFPRA s reply is positive, the petitioner may claim a residency card. 24. Please provide public contact information for the principal government offices most frequently involved in processing visas and work permits. Regional Delegations of the Office des Migrations Internationales (OMI) having jurisdiction over Paris Paris Nord 55/55 rue Hoche Bagnolet Cedex Paris Sud 221, avenue Pierre Brosolette Montrouge Labor Office (Direction Départementale du travail, de l emploi et de la formation professionnelle) (DDTEFP) of Paris 127 blvd de la Villette Paris URSSAF du Bas-Rhin (social security authority having jurisdiction over affiliation of foreign employees) 9

10 16, rue Contades Schiltigheim Cedex French Refugee Office (Office Français de Protection des Réfugiés et Apatrides (OFPRA) 201, rue Carnot Fontenay-sous-Bois cedex Useful Web sites with public information about immigration and visa matters