New rules add to scrutiny of companies filing work-approval applications

IMPACT – MEDIUM

What is the change? Under recent changes, companies must prove they have a record that is clean of criminal penalties and certain labor sanctions before applying for work approvals.

What does the change mean? Companies are required to obtain a criminal record certificate from relevant government offices before filing work permit applications, and even minor sanctions may be grounds for denial of a work approval.

• Implementation timeframe: The law passed in December and cases are now being adjudicated under the new rules.
• Visas/permits affected: Work approvals.
• Who is affected: Employers sponsoring non-EU employees.
• Impact on processing times: Work approval processing times remain the same at 30 days with a possible 15-day extension if authorities request additional information.
• Business impact: The law requires more proof from companies and gives immigration authorities greater latitude in denying work approvals for labor sanctions and criminal penalties.
• Next steps: Employers should work with their BAL representative to plan for the new document-gathering rules and leave plenty of time to address any problems with their records.

Background: The law imposes a prerequisite on employers applying for work approvals to provide their criminal record and background checks for certain labor law violations in the prior three years.

The criminal record will indicate if an employer has been sanctioned or convicted for intentional criminal deeds against a person or for criminal deeds under the Labor Code, such as hiring more than five workers without an employment contract. Extended background checks with the labor authorities will also verify whether an employer has observed the obligation to register all employment contracts with the General Registry of Employees no later than one working day before an employee’s start date. While hiring fewer than six workers without an employment contract is considered a minor civil violation and may not appear on the criminal record certificate, labor authorities will communicate such an infraction to immigration officials upon analysis of the work-approval application.

As in the past, employers must also submit documentation that their fiscal records are in order, with no outstanding payments due for social benefits such as unemployment, social security and pensions.

BAL Analysis: Employers should be aware of the added documentation and scrutiny and make sure to timely register all labor contracts no later than one working day before the contract start date, as immigration authorities are now more likely to check with the Labor Inspectorate for any labor violations, even if they are minor offenses.

This alert has been provided by the BAL Global Practice group and our network provider located in Romania. For additional information, please contact your BAL attorney.

Copyright © 2016 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries please contact copyright@bal.com.