Boards granting key employees

The Work Permit Board and the Business Staffing Plan Board have granted more than half of the key employee applications they have processed since the beginning of the year.

A combined 116 key employee applications were received by the two boards between 1 January and late March, of which 60 were approved, 50 refused and six deferred.

Work Permit Board Chairman David Ritch said most employers are being reasonable in making key employee applications.

‘We are, however, seeing frivolous applications where clearly the employer is simply trying to buy extra time for the employee in the jurisdiction,’ he said. ‘Employers are aware that once they file the application before the term limit expires the employee can continue working until we deal with the application and this has lead to applications being submitted at the last minute in the expectation that it will take us months to deal with it.’

Mr. Ritch said the strategy is not working.

‘Given that the board is essentially current in dealing with key employee applications, this attempt to abuse the system is being kept in check.’

Business Staffing Board Chairwoman Sophia Harris also said that although most applications appear genuine, not all of them are valid.

‘There are still some applications that are being made not because the employee is really a key employee under the provisions of the law, within the spirit of the law, but because of poor planning,’ she said. ‘Eventually though we will see less and less of that sort of application as employers start to focus on the provisions of the law and look to some form of succession planning.’

Mr. Ritch said the vast majority of key employee applications he sees address the right points as required by the Immigration Law.

Although most employers try to fit an employee into more than one of the requirements, Mr. Ritch said his board does also see many applications where only a single ground is relied upon, such as the hardship that would be experienced by the employer unless the employee is designated as key.

However, not all of the applications are presented well.

‘We have seen applications where the case for designation as key could have been better set out,’ Mr. Ritch said.

In cases where an employer is in doubt about what is required in the key employee application, the Work Permit Board recommends the employers seek assistance from someone qualified to advise them on the process.

‘This is particularly important where the employee has less than three months to go before their term limit expires because in that particular case the employer will have only one opportunity to apply.’

The Immigration Law provides no right of appeal of a decision on a key employee application. However, employers can submit fresh applications with respect to a particular employee three months after a refusal, but only before the time of the expiry of their final work permit.

The Business Staffing Plan Board has deferred some of the key employee applications because of lack of information.

Mrs. Harris said it has taken some education to get to the point where most employers are now providing sufficient information on key employee application.

‘In the past… we would receive on a consistent basis applications that merely indicated that the employee fell under one or more or all of the categories listed under Section 47 (3) [of the Immigration Law] but without any explanation as to why or how they so qualified,’ she said. ‘The board established guidelines on the Immigration website to assist the public in understanding the sort of information that the board finds useful in making a decision.

‘For instance if the employee is involved in the training of Caymanians it is useful to know who those Caymanians are; this has helped us in determining whether the application is a genuine one.’

Mrs. Harris also said that if, after consulting the published guidelines, an employer has any doubt concerning the completeness of the application that professional or consultancy advice could be beneficial.

Late in December 2006, the Legislation Assembly passed amendments to the Immigration Law that changed some of the provisions concerning key employees, which up until that point were called exempted employees.

One of the most important changes allows employers to apply for a key employee at any time before the expiry of an employee’s final work permit. Prior to the amendments, employers could only apply for an exempted employee at the time of the application for a grant or renewal of a work permit.

Instead of having to leave after seven years, those who are granted key employee status are allowed to remain in the Cayman Islands for nine years, long enough to apply for permanent residence after eight years here.

Mr. Ritch said the Work Permit Board does not concern itself with whether an employee might qualify for permanent residence when considering a key employee application.

‘An employee may well be key to an employer but whether he or she is likely to obtain permanent residence will depend on many factors that are not relevant to the key employee application,’ he said.

Mrs. Harris said the Business Staffing Board took the same view.

‘As a board we do not address the issue of Permanent Residency as that is the realm of another board,’ she said, referring to the Caymanian Status and Permanent Residency Board.

‘The applications that we have to deal with are purely employer driven and based on the business of that employer and not on whether or not that employee may or may not obtain Permanent Residency.’

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