Questions have arisen about several aspects of the provisions of the Immigration Law concerning key employees.
Currently known as exempted employees under the Immigration Law, the new law will change the term to key employees. These employees are given two more years of work permits past the standard seven-year term limit, enabling them to qualify to apply for permanent residency.
In submitting input to the Government on the proposed changes to Immigration Law, the Cayman Islands Society of Human Resource Professionals made several observations, including one about appealing decisions made on key employee applications.
‘Having no right of appeal to the Immigration Appeals Tribunal in respect of a decision by the Work Permit Board or Business Staffing Plan Board to refuse an application for a key employee seems inconsistent,’ the CISHRP said in its submission to Cabinet. ‘In most cases of refusals cited in the Law, a right of appeal is permitted.’
Work Permit Board Chairman David Ritch told attendees at the Council of Associations’ Immigration Forum recently that they should not be too concerned with the lack of a right to appeals a decision on an application for a key employee because the employer does have the right to reapply.
‘There is nothing to prevent an employer from reapplying as long as the person has time remaining on the islands,’ Mr. Ritch said at the time.
Speaking about the issue this week, Mr. Ritch said the right to reapply is not a specified provision of the current Immigration Law or of the proposed Amendment. However, he said that since there is no prohibition to reapplying for key employee status, a proper interpretation of the Law would allow for it.
The CISHRP also questioned whether the criteria required to be a key employee was too simple or generous, especially since employees only have to meet one of seven requirements specified in the proposed amendment to the Immigration Law.
Mr. Ritch agreed that the existing provisions of the Immigration Law are very wide with regard to who can qualify to become an exempt employee. He said the amended law tries to narrow that a bit by taking into consideration the concept that the expertise an skills offered by a key employee applicant are in short supply globally, rather than just locally.
‘With 24,000 work permit holders, there are shortages in virtually every category [of job],’ Mr. Ritch said, adding that almost anyone could make a case for key employee status if it were just a matter of a local shortage of particular skill.
There are, however, six other criteria an employee could meet to qualify for key employee status, some of which are more subjective in nature than others.
Mr. Ritch said his Board takes every application for what is now known as exempted employee very seriously.
‘We’re mindful that when we approve an application for an exempted employee, we set in train a course of events that may conclude with the person acquiring the right to become Caymanian,’ he said.
Mr. Ritch added, however, that his Board was not trying to do the job of the Permanent Residency and Caymanian Status Board.
‘But we can’t ignore what might happen if we approve the application for an exempted employee.’
The Work Permit Board takes as long as necessary to review an application for a key employee.
‘It certainly takes more time than a plain vanilla work permit application,’ he said. ‘We go through the [Immigration] file, and the history of the file, looking at a whole range of things.
‘We turn the application upside down and take a long hard look at it to make sure there is merit to it.’
Mr. Ritch noted that some people are still under the misconception that only the Business Staffing Planning Board deals with applications for exempted status, and as a result, his Board does not see as many of those applications.
‘For every one we see, the Business Staffing Plan Board probably sees 50 [exempted employee applications],’ he said.
Business Staffing Plan Board Chairwoman Sophia Harris acknowledged that her board has a heavy workload of exempted employee applications. She also thinks that it is inevitable for that workload to increase in the future as more and more companies required to submit business staffing plans rush to meet the 31 December 2006 deadline.
Mrs. Harris said her board also takes significant amount of time on each application for an exempted employee. Because her board also has to look at the organizational plan of the employer as well as at the exempt employee application, the process is even more complicated than with the Work Permit Board.
Mr. Ritch said the Work Permit Board is usually reviewing an exempt employ application in two to four weeks when it comes to application being submitted with renewal applications, and about two and a half months when they are submitted with an initial grant application.
Because the Business Staffing Plan does not have the same backlog that the Work Permit Board has when it comes to initial work permit grants, Mrs. Harris said her board is ‘pretty much dealing with them immediately’ right now.
Related Videos
