The Postman Always Rings Twice

April  2018

The link between this title and the various topics addressed in this issue is probably not obvious for many. I consider both the 1946 and 1981 film versions of The Postman Always Rings Twice to be absolute masterpieces. It is rare that I am this enthusiastic about a remake. Each in its own way, these movies portray the bleakness of the Great Depression, and tell the bitter-sweet story of a Greek immigrant who marries a younger woman, and is murdered by her and her lover.

The book The Postman Always Rings Twice is a 1934 crime novel by James M. Cain. Fast-moving and only about 100 pages long, this novel mixes sexuality and violence. The action takes place in a desolate place in California.

The Postman Always Rings Twice is a 1946 movie directed by Tay Garnett, featuring Lana Turner, John Garfield, and Cecil Kellaway.

The 1981 remake is the fourth movie version. It stars Jessica Lang and Jack Nicholson, and was directed by Bob Rafelson.

The parallel between poor Americans of those days and today is obvious. An immigrant is featured, one who has successfully integrated into American society and who then is murdered. Repetition is an important device within the plot, as the first attempted murder fails and the wife and lover have to go though the steps twice before succeeding in killing the husband.

Maybe it is just because I am a fan of Lana Turner, Jessica Lang and Jack Nicholson. The truth is that I find life tainted with violence, with confrontation; this is true in France as well as in the USA and other western countries. In recent weeks, people have been shot in both countries, reactions to these shootings have been passionate, and there have been demonstrations with marchers taking over the streets.

Closer to the topics I chose this month, there is also the idea that first impressions can be misleading. I believe that there is always a need to look twice at situations and sometimes more. Foreigners are often faced with painful and incomprehensible situations. I also want to take a closer look at these foreigners, whether refugees or not, who are gathering and sleeping in the streets of most European cities.

Nothing big in life can be done without passion. Passion can also blind people to catastrophic consequences.

WHAT DO REFUGEES LOOK LIKE?
The immediate, common sense response should be “How can this be even a question?” It happens that several discussions I have had recently made me reflect on the refugee topic and wrestle with this question. Behind it are two very poignant questions to me: “Who is a refugee?” and “How does one define refugee status?” The UN has issued a definition, and its High Commissioner for Refugees handles people who seek refuge, and it is very good that their guidelines are there to help countries pass legislation that translates them into their own domestic laws.

The reality is that most countries make welcoming refugees more difficult as the number of refugees trying to get in increases. So, whether this is the right decision or not for the country, refugee procedures let in the least number of people when the need is the greatest. On TV news shows, we see images of “hordes” of people. Because the media shows these images that are scary and unsettling, people have a negative idea of who refugees are. The main difference between what is happening in the USA and in Europe is that refugees come to Europe by their own means, landing on our shores. Given the geography, refugees entering the USA from Africa or Asia have gone through a very strict screening process and therefore are handpicked, unlike refugees entering Europe. The boat ride to reach Greece or Italy is about the same distance as that between Cuba and Florida. Many Cubans fled their country that way.

When militants or professionals work with refugees, they meet people, just people. Should a militant accept the narrow definition? Should a solution be found now that refugees are here sleeping on our sidewalks? Clearly the system of welcoming refugees is not working – handling their claims, offering the bare necessities of life. I am describing issues raised in France about immigration, refugees and so on. A new law has been proposed and is expected to be passed shortly and implemented right away. That being said, from what we know about it, it decreases the chances that any given refugee will obtain the legal status sought.

As far as I am concerned, a refugee looks like anyone else, like other people I help as either a professional or a volunteer. All the success stories I know regarding refugees have the same element: the refugee is helped individually and is taken care of. It is a person-to-person relationship.

There is another aspect of how this situation is being viewed and accepted (or not) in France and in the USA. Since the Civil War, the USA has not had battlefields on its soil or vast numbers of people fleeing war zones.

For France, on the other hand, with its thousands of years of history, 80 years or so feels like yesterday. In May and June 1940, about two million French people fled their homes as German troops swept through northern France. They became refugees in their own country. Most grabbed a few of the essentials of life, pushing a stroller or pulling a wagon with their bare hands. The same thing happened in most of Europe as the German troops advanced. This came just after half a million Spanish refugees arrived in France in 1939.

So, what do refugees look like? They look like any of us. They were my grandparents during the war, and my dad, who was quickly sent to a boarding school in the south of France. Like them, the refugees now congregating in France and elsewhere in Europe had jobs and families, and had to leave everything, sometimes in a matter of an hour or less.

https://fr.wikipedia.org/wiki/Exode_de_1940_en_France

THE PUMA BILLING SYSTEM IS STILL INSANE BUT THINGS MAY BE IMPROVING
For about six weeks, from mid-December to late January, many of us were helping people who received a bill from URSSAF for the premium to be paid for 2016 health coverage. This is so wrong on so many levels, I cannot go through all of them. (Last month I detailed why it was wrong for many people.)

The situation is far from fixed but we are getting a glimpse of good news. About three months after the appeal was sent, people are getting URSSAF’s answer. The letter states that the person does not owe the money and the related account has being closed. It also mentions that they should contact their local CPAM if they wish to be covered by PUMA.

It is way too early to claim victory, as many appeals have not been answered yet. Still, the initial answers are reassuring.

NEW PROCEDURE TO REGISTER A PACS
I was so focused on the changes in immigration procedures brought about by the legislation implemented on November 1st 2017 that I overlooked another change. This one comes from the same law that gave notaires the power to grant a divorce to a couple in the case of an uncontested split (requête conjointe).

A civil union (pacte civil de solidarité, or PACS) is no longer registered in court (tribunal d’instance) but instead at the family office of the local mairie.

Both changes stem from the same motivation: relieving pressure on the courts, which are overcrowded by procedures that are contentious by nature. But the two procedures are totally different. The very existence of a divorce procedure implies disagreement, though a couple may come up with a sound deal on issues that needed a resolution in order for a divorce to happen.

The nature of a PACS registration, on the other hand, is to make a couple official, with the associated rights and obligations.

PACS has always been an oddity according to French legal logic, but a fantastic solution to fix what used to be a painful situation, as it made it possible for same-sex couples to have a legal existence and rights. Today, over 80% of PACSed couples are heterosexual.

Originally, to keep the PACS registration from looking like a wedding, the choice was made to have it resemble the formation of a corporation, with the contract registered by the parties in court. Corporations have their by-laws registered in a business court, and a similar procedure was the best way officials could imagine to prevent the appearance of a PACS being a marriage.

The PACS was created on November 15th 1999. Some 18 years later, with same sex marriage have become a fact of life, there is no need to keep this procedure in court. The fact that PACS registrations and weddings both occur at city hall no longer bothers many people, if any.

I have been very critical of the divorce procedure being removed from the court system. The reason is that the foreigner, then the less informed spouse, can be taken advantage of much more easily this way than when the judge rules. I believe that today marriage and PACS are so close in so many ways that it makes sense for them to be handled by the same office. But they should still involve different procedures, to show that there is a difference in the nature of the union.

A wedding is performed by an authority, and a similar authority accepts its dissolution. A PACS is the acknowledgement of the existence of a couple, and the same couple can inform the authorities of its dissolution.

La loi de modernisation de la justice du XXIe siècle, publiée au Journal officiel du 19 novembre 2016 (Art. 48):
http://www.legifrance.gouv.fr/eli/loi/2016/11/18/JUSX1515639L/jo

Best regards,

IS THE AUTO-ENTREPRENEUR STATUS COMPATIBLE WITH THE CARTE DE SEJOUR ETUDIANT

QUESTION

In your Q/A about student vs auto-entrepreneur I was surprised by your answer, because the two statuses are not mutually exclusive. You can be a student AND have the auto-entrepreneur status at the same time – all without changing your visa status (student or otherwise). I know people who have had the student visa and then have also signed up as an auto-entrepreneur. This has zero impact on the student visa. I was just at URSSAF last week when I asked about this specifically. I'm about to become a student again (on a visa vie privée) and I want to keep my auto-entrepreneur status. The URSSAF agent said I can have both statuses at the same time. I hope you can update your answer to include these details.

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ANSWER

There is a difference between what can be done and what is legal. Allow me a favorite analogy: when you’re speeding on a highway, it is always illegal, but most of the time there are no negative consequences because you don’t get caught. Yet it would be wrong to state that speeding is legal; sooner or later you are likely to be caught, and incur a ticket and other consequences.

In many ways, the situation you describe is quite similar. The longer it lasts, the more likely it is that the person will be caught, and the consequences are real and sometimes damaging.

To help you understand, let’s talk about the immigration status without mentioning the work:
1 – The student carte de séjour grants only the right to work as an employee and only 60% of full-time.
2 – The auto-entrepreneur fiscal and legal status grants, by definition, the status of a self-employed person.

Put like that, it should be very clear: a self-employed person is not an employee, and it is impossible to enforce a limit of 60% of full-time on a self-employed person. In other words, the right to work associated with the student carte de séjour is incompatible with the auto-entrepreneur status.

In terms of my analogy: like speeding, it is illegal.

Now, let’s look at what will happen so you can be informed when the time comes.

1 – As you said, registering through the website is possible as nothing blocks the registration. On the other hand, if you do it with a paper document and take it to URSSAF, it is totally impossible. The URSSAF employee will refuses to take the registration and will tell you it is illegal for a student carte de séjour holder to register for auto-entrepreneur status. The only reason it is possible on the website is because the software does not check this data.

2 – It is true that most of the time, when you renew a carte de séjour étudiant, the prefecture does not ask for a tax document (avis d'imposition) or bank statements. But if the prefecture knows you hold a part-time job, they can ask for the avis d'imposition on the revenue of the previous year. Once you show them this document, which will also show your self-employed income, you will be “busted.” The prefecture will ask for all documents proving your self-employed status. Once they have the proof, it is up to them whether to enforce the law to its full extent, by taking away the right to legally live in France, or doing something less radical.

Back to my analogy: this is where the radar catches you.

3 – Let's imagine that you are very lucky and these documents are never requested. Eventually, you either leave France without being caught or you change your immigration status. In the latter case, if the new status involves working, the prefecture MUST get the documents regarding last year's income. Then, once again, you will be caught– only it is worse, as you will be asking the prefecture for a sort of a favor: to obtain what they consider better immigration status.

The dilemma is simple. Either you are not making any money as a self-employed person and thus you do not need auto-entrepreneur status, or you do have a real business and the violation is real.

One last comment about your situation: you hold a different card, the carte de séjour vie privée familiale, which grants all possible rights to work in France, so being an auto-entrepreneur is totally compatible with your immigration status.

Many people lose their residency rights over this situation. Sooner or later the prefecture gets the tax form showing an independent business. On average, that takes about two years. People may think for a long time that the two types of status are compatible, but it’s a false impression.
Like speeding, it is illegal, but doesn't feel that way. In the end, though, most people get caught.

IS THE CARTE DE SEJOUR PASSEPORT TALENT THE BEST ONE FOR STARTING A BUSINESS IN FRANCE?
QUESTION

My wife and I are Americans, currently in Boston, but are interested in moving to France to start our own business. We’ve been looking into the visa options lately, and are a bit stuck trying to decipher the difference between “talent passport – new business" and “entrepreneur/profession libérale”. I’ve read many of the blog posts about the profession libérale visa, but would appreciate any clarification between the two, specifically:

1 – Does anyone feel like one of these visas is easier to get or better to have than the other? For the passeport talent you must “prove that you have a real and serious business creation project” as well as hold a master’s degree or have five years’ experience. To get the profession libérale visa you need to “demonstrate the economic viability of your project.” I’m having a hard time determining what meets the latter requirement. Does the idea need to be much more unique to qualify for this versus the talent passport?

2 – My wife and I are going to run our business together. With the talent passport, family members are issued a multi-year residence permit. How would this work with the profession libérale visa? Do we both have to apply for separate visas? can we apply jointly? can one of us apply and the other then get a spouse’s visa? or is there something else?

3 – Assuming we get approved for one of these visas, after we move to France and start creating and running our business, are there any differences or restrictions for talent passport holders versus entrepreneur/profession libérale visa holders?

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ANSWER

Your question is very pertinent and should be reviewed in light of the fact that the Passeport Talent immigration status is very recent: it was implemented on November 1st 2017, and it aggregated a lot of different types of status with little in common. Passeport Talent covers a very wide range of professional situations for foreigners with valuable skills, those in highly paid positions, and large investors.

The sub-categories do not translate well, so I would like to list a selected few and describe them in relation to creating a business in France:
jeunes diplômés qualifiés salariés ou salariés d’une jeune entreprise innovante, travailleurs hautement qualifiés (carte bleue européenne), salariés en mission, chercheurs, (1) - créateurs d’entreprise, (2) - porteurs d’un projet économique innovant, (3) - investisseurs économiques, (4) - mandataires sociaux, artistes interprètes, étrangers ayant une renommée nationale ou internationale (domaine scientifique, littéraire, artistique, intellectuel, éducatif ou sportif).

Let’s review the ones I have numbered and boldfaced:
(1) créateurs d’entreprise
You want to create a business. You invest 30,000 euros and you prove that your business plan allows you to earn at least minimum wage.

(2) porteurs d’un projet économique innovant
You need an endorsement from the French innovation authority to get this. You also need to prove that you have a viable business plan and will be able to earn minimum wage.

(3) investisseurs économiques
You pledge to invest 300,000 euros in a business in France and to hire a set number of employees or save a specified number of employee positions. You must prove that you own at last 30% of the shares of the French company, of which you are managing director.

(4) mandataires sociaux
You are the CEO or managing director of a French corporation, with some seniority.

So, as you rightly say, this new immigration status, passeport talent, has a sub-category called créateur d’entreprise that is very close to the traditional profession libérale. Let’s review the requirements:

“Diplôme au moins équivalent au grade de master, ou tout document justifiant d’une expérience professionnelle d’au moins cinq ans d’un niveau comparable.”

You either hold a master’s degree or prove that you have five years of experience in your profession.

Pièces justificative fixées par arrêté du 28 octobre 2016 du ministre chargé de l’immigration et du ministre chargé de l’économie permettant d’évaluer le caractère réel et sérieux de son projet économique.

You submit documents that prove that your business plan is pertinent, as well as financially and professionally sound.

Justification de moyens d’existence correspondant au salaire minimum de croissance correspondant à un temps plein.

You prove that you personally have means equal to minimum wage (14,000 euros net) to finance your life in France.

These requirements indicate that in order to get this status, both you and your plan must meet a high standard; indeed, the guidelines for the passeport talent include France getting a significant benefit from the project.

Now, the traditional status is less demanding. The file requesting it must prove that your professional plan is grounded and financially sound, and the file can use any means to do so.

The main differences are the amount of initial investment and a higher standard for the applicant; in short, it is a matter of the scale of the business being created in France.

There is a caveat, which pretty much disqualifies anyone with profession libérale status from obtaining the passeport talent. It concerns the (1) créateurs d’entreprise 30,000-euro investment. The problem is not so much the amount – which is not that significant in the context of the creation of a business – as it is a matter of procedure and structure.

Several of my clients have received profession libérale status as English teachers. Going by what is described above, they would be disqualified for passeport talent because:

1 – There is no corporation created and therefore no corporation bank account to receive the money.

2 – There is no need to make a 30,000-euro initial investment.

3 – If an escrow account is opened, how does one get access to this money?

4 – If you are thinking of opening a business account, it is not possible because there is no French business created yet.

On the other hand, it is quite possible for a merchant (commerçant) or craftsman (artisan) to build a business plan showing a comparably large investment with a good portion of the expenses already accounted for. Renting a commercial space, with the security deposit and the rent being paid quarterly, could make up a good portion of this investment.

Normally, the profession liberal does not need limited liability protection, but if you create a corporate entity in France, which would give you this protection, the 30,000 euros can be put in the bank account of the corporation.

The two spouses can work as a team running the business. In France it is possible for one spouse to register as working as an independent and also register the spouse as an active partner. This status is called conjoint collaborateur/trice if no money is exchanged or conjoint salarié if wages are paid from the business. So there is no need for the spouse to hold a carte de séjour that allows him or her to work with the first status if you choose this one. As for the other one, since it is an employee status, there is a need for a carte de séjour salarié, which should be easy to obtain if the finances are there to secure the salary for several months.

For all these reasons, I always have my clients ask for the status micro BNC profession libérale classique. It is solid and trusted, as it has been around for years.

To sum up this discussion, if you are incorporated in the USA, you can consider passeport talent. Otherwise I advise you to choose micro BNC profession libérale classique.

The real difference, in my view, is the spouse’s right to also work. This could be the true tie breaker.

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DOES A SIX MONTH VISA GRANT IMMIGRATION STATUS?
QUESTION

At the French consulate in Chicago, I got a six month visa instead of a twelve month one. Do I still need to present my forms to the OFII and have the medical exam/validate the visa long sejour? Or only if I am staying longer than six months? Everybody is telling that I cannot stay past six months. Did the French consulate screw me over?

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ANSWER

I am sorry to say that such a short-term visa does not allow you to stay legally in France past its expiration date. This demands an explanation.

I have witnessed the worsening of the quality of service given by French consulates just about everywhere in the world for a few years now. In recent months I have been asked to help a number of people in this exact same situation: they hold a visa that cannot be renewed.

Previously such situations never existed. The consulate asked if the request was for a permanent stay in France. There was no other choice since the duration of the stay was not mentioned on the visa request form.

Now there is a choice between three situations: three to six months, six months to a year, and more than a year.

There are several ways to interpret this section of the form.

Some read it as “How long will you stay in France after you arrive,” and they have already scheduled their first trip back to the USA, so they pick the first or second choice.

Some fear that if they answer “more than a year” the requirements will be more stringent, so they play it safe and ask for less.

Some think the duration of the visa only has to cover the time needed for the next step, which is the physical done by OFII, so they pick the first or second choice.

It used to be that the civil servants at the French consulate would double check this choice, making sure the applicant understood what it meant. When the error was obvious, it would be changed to more than a year and the applicant would get the visa, allowing him or her to get the OFII physical and the OFII stamp that certify the immigration status and allow it to be renewed yearly.

Clearly this is not done anymore, there is no review at the time the request is submitted, and errors – this one as well as others – are not caught. You get only what you asked for, rather than full immigration status.

Everyone learns by trial and error, but this error is expensive and extremely frustrating. Everybody should be on social media warning about this, so that as few applicants as possible are caught in such a situation.

My final advice: since this is all the time you have in France legally, make the most of it and research whether you would be better off asking for a more complete immigration visa, one that allows you to work and that gives more than one year in France. Put that time in France in good use.

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DISCLAIMER

Please forward this message to all those who would be interested in its contents. The information contained in this newsletter is intended only as general information. I strongly urge readers to seek professional guidance concerning the legal and tax matters mentioned. This newsletter is intended as a general guide and is not to be taken as professional advice.
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