CHANGES TO BERMUDA WORK PERMIT POLICIES EFFECTIVE DECEMBER 2014

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1 CHANGES TO BERMUDA WORK PERMIT POLICIES EFFECTIVE DECEMBER 2014 Bermuda s Ministry of Home Affairs issued for consultation in October 2014 proposed changes to the Work Permit Policy to be made effective 1 March The changes aim to simplify the process for employers and employees. Below are details of the legal and practical ramifications of the changes to policy and procedure. APPEALS Appeals must be made within seven working days of the date of the refusal letter and will now cost BMD$250. If the refusal is related to a work permit renewal, and is submitted on time, the employee may continue working while the appeal is being considered. If the appeal is submitted outside of the time frame then the employee must cease working. This is a departure from previous policy which forced all work permit holders to cease work once that permit had expired. PAYMENT OF GOVERNMENT TAXES AND EMPLOYEE BENEFITS Employers must now certify that they are not more than 90 days delinquent in payments of payroll tax, health insurance, social insurance and pension contributions for all of their employees. If an employer is more than 90 days delinquent, the employer must provide documentation that they have either made the required payments or have agreed upon a payment plan with the relevant Government department. Failure to comply with these requirements may lead to permit applications being denied. REQUIREMENT TO INFORM Employers are required to inform Bermudians, Spouses of Bermudians and Permanent Resident Certificate (PRC) holders the outcome of their employment applications before submitting work permit applications. No proof of this is required to be submitted with the application, however, employers may be asked to provide evidence of such notification to the Department of Immigration.

2 ADVERTISING New procedures require that in addition to traditional newspaper advertising, all jobs must be posted on the Bermuda Job Board for eight consecutive days. The time period in which a work permit application must be made after advertisement may now be extended from three months to six months upon payment of an Advertisement Extension Fee. Employers may not change their contact details listed in the advert within five days after the last advertisement; doing so will cause the advertisement to be considered invalid and require the employer to repost the ad. Apart from these few changes, the procedure for advertising positions prior to work permit application is unchanged. Newspaper ads for three days in an eight day period remain a requirement. REFUNDS The Department of Immigration will issue refunds for situations where Immigration grants a permit for a shorter term than the term applied for or where a permit application is refused. However, refunds will no longer be provided in situations where a work permit is granted but the employee does not in fact come to Bermuda or where a permit holder ceases employment for any reason before the expiry of the work permit. BUSINESS ACTIVITIES WHERE NO PERMISSION IS REQUIRED No Immigration approval is necessary for business visitors in possession of a return ticket (and Multi Re-entry Visa if necessary). Business visitors may now stay for up to 21 consecutive days and can apply for an additional 21 days. PERIODIC PERMITS Periodic permits can be granted for terms of one, two, three, four or five years to employ non-residents who will make multiple visits of 30 days or less each visit, not exceeding 180 days per calendar year. For example, persons who work for an overseas office of a Bermuda company, a service provider or travelling salesperson. Where the business visitor may not always be the same person, the employer may request that the Periodic Permit be issued in the name of the foreign company. However, only one representative may be landed per permit. PERIODIC PERMITS FOR TRAVELLING SALESPERSONS Periodic permits for travelling salespersons will be accepted from local businesses acting as agent or the Bermuda Chamber of Commerce (the Chamber) only. The Chamber will screen each application to determine if the product is already represented in Bermuda and whether the granting of a permit will threaten the Bermuda company s interests. If the product is not represented, the Chamber will assess which local businesses may have an interest in the product and set up appointments on behalf of the salesperson. Periodic permits for travelling salespersons will not be granted for terms greater than one year and may have such other restrictions as the Chamber may recommend to the Department of Immigration. SHORT TERM WORK PERMITS Short term work permits may be granted for terms of three, four, five or six months. At the expiry of the permit, the holder will be expected to leave Bermuda, as holders will not normally be granted permission to reside and/or seek employment. Positions must be advertised pursuant to Work Permit Policy Section 1.14, save for the circumstances listed below: applebyglobal.com 2

3 Extension, of up to six months of a short term work permit, of a person who is leaving Bermuda upon the expiry (the person need not leave the island on extension applications); An employee of a Bermuda company s overseas subsidiary, affiliate or parent company; A service provider or consultant in a specialised field; A specialised technician for the purpose of maintaining equipment under contract; providing repairs to pipe organs; installing an upgrade of business computer software; servicing inter-company communication networks; A service provider to a private function / convention / conference, including entertainers; Featured act entertainers for a public event performing for a single period of fourteen (14) days or less; Someone to work for and be compensated by a non-profit organisation or registered charity, as a sports coach, teacher of sport or recreation, clergy, speaker, trainer or musician; Sports professionals or a professional team who is participating in an event for a single period of fourteen (14) days or less; A locum tenens minister of religion or physician; and Provider of short-term in-house training offered by the Bermuda Employers Council, the Bermuda College, the Chamber or other recognised training body or institute. Where a standard permit application is intended to be submitted subsequent to the granting of a short term work permit, the application for the short term work permit must be made within 45 days of the short term work permit application. The Standard Work Permit application must include an explanation of how the Bermudian, Spouse of Bermudian or PRC holder applications, if any, were not qualified or suitable for the role, and why the standard permit application could not be submitted earlier. GLOBAL WORK PERMITS Global Work Permits are intended to allow persons who are employed by a global company in another jurisdiction to transfer to the Bermuda office without the need to advertise. A global company is any company in Bermuda that employs people in jurisdictions outside of Bermuda. Franchise businesses are not global employers for the purposes of this policy. The company must demonstrate that the applicant is not being transferred to fill a pre-existing position. The Global Work Permit is available for terms of one, two, three, four or five years. Applications will be automatically approved for individuals employed for over one year and who earn more than BMD$125,000 per year. Applicants not meeting these criteria will be considered on a case by case basis. Global Work Permits are not available to positions in a closed or restricted category. NEW BUSINESS WORK PERMITS A New Business Work Permit allows for exempted companies that are new to Bermuda to receive automatic approval of work permits applied for within the first six months of operation. This amendment removes the applebyglobal.com 3

4 previous limit of five permits. While there is now no pre-set maximum to the number of permits that can be granted, if a company anticipates needing more than ten permits, they are required to submit to the Minister a staffing plan that details projections for hiring Bermudians and engagements with local service providers. New Business Work Permits will be granted for terms of one, two, three, four or five years and may not be used for entry-level positions or jobs in a closed or restricted category. The decision of whether a company is a new business falls to the Minister. GLOBAL ENTREPRENEUR WORK PERMIT Global Entrepreneur Work Permits (GE Permits) are intended to assist persons planning to start a new exempted business in Bermuda. GE Permits will be issued for a period of up to one year and allow the holder to work and reside in Bermuda. Work activities permitted under the GE Permit include business planning, seeking appropriate Government or regulatory approval(s), meeting compliance or financial requirements and raising capital. STATUTORY BODIES FOR STANDARD WORK PERMIT APPLICATIONS The list of statutory bodies that the Minister shall consult with when dealing with an application in respect of that particular profession has been reduced. These bodies are: Allied Health Professions Council Bermuda Architects Registration Council Bermuda Bar Council Bermuda Clinical Social Work Council Bermuda Dental Board Bermuda Educators Council Bermuda Medical Council Bermuda Nursing Council Bermuda Pharmacy Council Bermuda Psychologists Registration Council Chartered Professional Accountants of Bermuda Optometrists and Opticians Council Professional Engineers Registration Council Professional Surveyors Registration Council applebyglobal.com 4

5 Veterinary Practitioners Council Some consultative bodies have been dropped (i.e. tattoos, chiropractors, interior designers). Employers are encouraged to send applications directly to the respective council concurrently with the submission of their application to the Department of Immigration. If the Minister has not received a response in writing from the relevant council within seven working days of receiving the application, he may not consider their submissions in coming to a decision. EMERGENCY WORK PERMIT Emergency Work Permit is a new name for the former Bona Fide Emergency temporary permit. In addition to the change of name, the official response time has been increased from 24 hours to 48 hours. Emergency Work Permits are Short Term Permits and can be issued for a period of three, four, five or six months. NOTICE OF TERMINATION The notice of termination replaces the letter of release. An employer must notify the Department of Immigration within seven days of receiving notice of termination from an employee, including the name of the employee, the date of termination, the date the employee will leave Bermuda and the reason for termination. The employer must also return the work permit (if it is still valid) or explain why original copies of the permit were not included. PERMISSION TO SEEK Employees on a valid work permit can seek another job without first obtaining permission, but only after at least two years of continuous employment with the initial employer. Exceptions to this policy include where the applicant has been made redundant or where the applicant has lodged a complaint against his employer with the Department of Workforce Development. In the case of a complaint, it must have been determined that the applicant has a bona fide grievance. In each of the exceptions above, the applicant must request in writing that the Minister waive the two year requirement. Residents without a current work permit (i.e. dependents of work permit holders) must apply for permission to seek employment. SPONSORED DEPENDENTS The remuneration thresholds for work permit holder dependents has been lowered as follows: Demographic Profile Household Remuneration Two person household BMD$60,000 per annum Three person household BMD$100,000 per annum Four or more person household BMD$125,000 per annum Evidence of meeting these thresholds include bank references and evidence of medical coverage, however, the Department of Immigration has the right to require further proof. Application may be made to waive the requirements and the holder must advise the Department of Immigration of any change in the sponsored dependents status. applebyglobal.com 5

6 SETTLING AFFAIRS Policy now allows up to 90 days to all persons required to leave Bermuda in order to close off personal residency arrangements. Formerly the holder would have had to have been resident in Bermuda for ten or more years in order to receive 90 days. Additional time may be granted upon written request and acceptable justification (e.g. dependents to complete the school year). FAMILY SUPPORT Work permit holders who employ household staff prior to moving to Bermuda will be automatically issued permits for their staff. Household staff is limited to nannies, in-house elderly and medical care personnel. GRADUATE TRAINEES Employers now required to confirm that a graduate trainee has valid medical insurance for Bermuda for the duration of their stay. CHEST X-RAYS AND MEDICAL CERTIFICATES Chest X-rays and medical certificates are no longer required unless the applicant has resided for three months or longer in a jurisdiction identified as high risk for tuberculosis (Afghanistan, Bangladesh, Brazil, China, DR Congo, Ethiopia, Indonesia, India, Kenya, Cambodia, Myanmar, Mozambique, Nigeria, Pakistan, Philippines, Russian Federation, Thailand, Tanzania, Uganda, Vietnam, South Africa and Zimbabwe). This list is based on the World Health Organisation s Yearly Report on TB and is subject to change. LANDING POLICIES Work permit holders who land without possession of an original or a copy of their work permit will no longer be charged a penalty. Those with copies or who have forgotten to carry the original or a copy thereof will be referred to the Immigration Referral Office to verify that a valid work permit exists. They will be reminded and encouraged to travel with their original work permit. Whilst a financial penalty is no longer a risk, it is still advisable to travel with the original work permit so as to save time, effort and risk of complication when reentering Bermuda. PROCEDURAL CHANGES Another major change in policy is the improvement that persons will now be allowed to enter Bermuda while a work permit application is in progress. However, they will be charged a penalty fee at the airport and may not engage in gainful occupation during this time, but can look for housing, schools, meet with team members, etc. Violating this provision may result in financial penalty and the refusal of the application and possible criminal prosecution. Ten year work permits are no longer available. Maximum terms are now five years for most types of permit. Employers are now no longer required to submit a police certificate, health certificate, letters of reference or chest x-rays. Instead the employer is now only required to submit a certification that to the best of their knowledge and belief that the applicant is of good character, possesses the qualifications purported in the application, is in good health and free of any communicable disease, and does not have a criminal record. Employers are advised to collect police certificates, character and professional reference letters and copies of qualifications to keep evidence of the screening practices as should it later be found that they knew or applebyglobal.com 6

7 should have known that an employee was in fact unfit to be granted permission to work in Bermuda they may be held liable and face civil penalties and/or criminal prosecution. There is no longer a requirement that a work permit holder who has left the island remain a non-resident for one year before being eligible for a new work permit. Employers are no longer required to provide a letter guaranteeing repatriation of employees and their dependants. This duty is now enshrined in the Bermuda Immigration and Protection Amendment (No. 2) Act. New application forms will be released for the Standard Work Permit, Short Term Work Permit, Periodic Work Permit, Global Work Permit and New Business Work Permit. The application forms include the required certifications regarding screening practices and payment of payroll tax, health insurance, social insurance and pension contributions. Should you have any questions or request for further information please contact: Bermuda Kiernan Bell Managing Partner Group Head, Bermuda Dispute Resolution [email protected] Michael Hanson Senior Associate, Employment and Immigration Dispute Resolution [email protected] Tiffany Tavares Paralegal/Human Resource Officer Dispute Resolution [email protected] This publication is for general guidance only and does not constitute definitive advice Appleby Global Group Services Limited 2015 applebyglobal.com 7