September 2020
Well, we got no choice
All the girls and boys
Makin’ all that noise
’Cause they found new toys
Well, we can’t salute ya
Can’t find a flag
If that don’t suit ya, that’s a drag
School’s out for summer
School’s out forever
School’s been blown to pieces
No more pencils no more books
No more teacher’s dirty looks yeah
Well we got no class
And we got no principals
And we got no innocence
We can’t even think of a word that rhymes
School’s out for summer
School’s out forever
My school’s been blown to pieces
No more pencils no more books
No more teacher’s dirty looks
Out for summer
Out till fall
We might not come back at all
School’s out forever
School’s out for summer
School’s out with fever
School’s out completely
School’s Out was the fifth studio album by American rock band Alice Cooper, released in 1972. I bought the LP when I was still in middle school. Its cover opened like an old wooden school desk, the type where students used ink from a small bottle on the right side of the desk. The top could be opened, and students would keep their things there, unlocked. I used such a desk in elementary school.
The issue of whether to reopen schools was covered by the media every day in July. In the USA, it has since been replaced by stories about the US Postal Service and absentee ballots, and I am sure there will have been other news by the time I send out this issue.
As is common these days, school reopening has become a binary issue: one side says it is completely safe and children do not get sick; the other side sees schools becoming centers of infection, propagating the virus throughout the community. Children, whether they become sick with COVID-19 or not, can pass it on to teachers and parents, and thus to the community at large. Students of all ages do indeed congregate, and classrooms make it difficult for them to stay away from each other.
I can see a striking difference in the way France and the USA measure the fight against the pandemic. France talks all the time about the transmission ratio and the ratio of infected people in the community. The transmission ratio must stay below one to indicate a decrease of the pandemic. This can only be achieved by tracing how many people each infected individual has contaminated. The infection ratio needs to be below 50 per 100,000 inhabitants to be considered safe. To measure this requires testing on a large scale. The earlier an infected person is tested, the fewer people are contaminated. That is how it is possible to have a ratio lower than one, and it is how the pandemic can and should be decreased in the population. In July and especially August, as many expected, both ratios worsened. Regional authorities have taken drastic measures to try to turn the situation around. Such measures are evidence of the failure of government policy. Wearing a mask is now required in the centers of many cities and in all workplaces, as these are the No. 1 place where infection spreads. Sadly, dealing with the pandemic ends up being a matter of trial and error, which is not really what is expected of the government.
So, “School’s Out” or “Back to School”? The decision should be based on the ratios mentioned above, as well as other indicators of whether the authorities have sufficient control over the spread of the disease to take the risk and see what happens. One thing is for sure, Alice Cooper should not be the authority on whether children go back to school. Obviously, in 1972 he was into provocation and extravagance – and still is. His solo album Welcome to My Nightmare was released in March 1975. I am afraid many feel the USA as a country has accepted this frightening invitation.
“LOVE IS NOT TOURISM” CAMPAIGN: REUNITING UNMARRIED COUPLES
Thousands of unmarried couples separated by the pandemic have found themselves unable to reunite, and also unable to ask for an immigration visa as the consulates first were closed and then did not accept the visa requests these people could submit. They should have asked for the visiteur visa but it was not considered essential travel. A campaign called “Love is not tourism” was launched on social networks to call on governments around the world to allow couples to get back together.
The French government is filling this legal vacuum by providing a procedure allowing a derogation from the pandemic travel rules. “The spouses must come to the consulate with documents attesting to joint activities, their identity documents, proof of residence in France for the French spouse, and a return ticket.” In short, the file must look pretty much like the one submitted by a PACSed couple at the prefecture. Cohabitation is often the hardest thing to prove, since most couples will not put the name of both partners on all the utilities and open a joint bank account, especially if one partner has no immigration rights in France. I will be keeping my readers informed about this as much as I can.
www.lemonde.fr/societe/article/2020/08/10/la-france-va-mettre-en-place-une-derogation-pour-permettre-les-retrouvailles-de-couples-binationaux-non-maries_6048574_3224.html
IS FRANCE EXPERIENCING A SECOND WAVE OF COVID-19?
On August 15th, which normally is the height of French summer vacation when nobody works, many cities enforced mandatory mask-wearing in city centers or at least on particular streets, as was the case in Paris. American media covered these decisions as meaning Paris was in the “red zone” and France was being hit hard by a second wave.
This reflects a complete misunderstanding of French government policy. From the beginning of the gradual loosening of lockdown, the government stated that it would carry out its policy incrementally, in small steps, with the understanding that there might be some setbacks that would require stricter rules nationally or locally. The clear implication was that there would be an increase in infection. The challenge was to limit the number of people admitted first to emergency rooms and then to ICUs. At the time I wrote this in mid-August, hospitalizations were continuing to decline overall. As I said above, it is a matter of trial and error. With 2,669 new cases in 24 hours as of Thursday, August 13th, the progression of the coronavirus in France was at its highest since the end of lockdown, according to figures from the national public health agency, Santé Publique France. The number later reached more than 6,000 per day. On Saturday, August 29th, there were 5,453 new cases, and 6 deaths in France.
“50% of infection clusters are in companies, medical or non-medical. Hospitals are responsible for about 10% of clusters, medico-social establishments and nursing homes 20%, and private companies 20%.” This data came while France was still deep in summer vacation. Therefore many officials called for making masks compulsory in all enclosed places, including private companies.
Several union officials were in favor of implementing this policy, but employers’ representatives opposed making it a general rule, claiming that would be “excessive”. France is not immune to the debate over employee protection vs the cost and the complications such policies impose on employers.
Ultimately, the policy went into effect and masks became compulsory in all outside spaces in Paris, as well as all workplaces in France. This evolution can be interpreted differently depending on what you are looking for. What I see, which reassures me, is that the French people need to be reminded of the COVID-19 guidelines in stronger terms than what I had hoped for. On the other hand, the government seems to be in control and swiftly implementing policies to address the changes in the management of the pandemic.
I plan on enforcing this policy in my office as much as possible with my clients.
www.lemonde.fr/planete/article/2020/08/13/pic-de-contaminations-journalieres-en-france-le-port-du-masque-au-travail-en-question_6048904_3244.html
CREATIVE WAYS PREFECTURES HANDLE PROCEDURES
COVID-19 has shattered the old way of doing a lot of things in our daily life. Wearing masks more and more often is just the most visible part of a more profoundly radical change. It is especially visible in Paris, where cafés, bars and restaurants have taken over parking spaces with tables so they can accommodate clients outside. A cynic might say having to choose between exhaust fumes from cars driving a few inches away or the risk of COVID-19 inside does not sound like a healthy choice!
More seriously, here are some of the changes I have recently experienced.
Entering the Paris prefecture
The website clearly states that it is impossible to enter the building without an appointment. During most of the morning, there are three checkpoints with police checking appointment notifications (convocations) and sending you to the next one, until you reach the security checkpoint. There are three lanes in front of the main door; which one police chooses, depends on when their meetings are and which offices they are going to. There are barriers to keep people in line.
The convocation states in bold that the applicant must come alone. However, professionals known by the security personnel have no difficulty entering with clients, although family members who are there to help must stay outside.
The convocation specifies that you should not come more than 15 minutes early, but my experience now is that you can arrive up to 30 minutes ahead of the appointment and be allowed to stay in the line.
As is often the case in France, the rule is not as strict as proclaimed. When the need is real, people without an appointment go in a different line, and eventually, after a long wait, can get some help.
Sending missing documents by email
It has long been possible, when a couple of documents were missing, to send them by email during the meeting at the Paris prefecture. A few months before the pandemic began, my clients could send one or two documents after the meeting was over. I saw many coming in at 8:30AM to bring missing documents, but the prefecture got stricter and stricter about only doing this early in the day so that it did not disrupt the normal schedule too much.
Since the prefecture has reopened, sending missing documents by email has become systematic, and can involve several important documents, whereas before, the prefecture would have required new appointments in such cases. That illustrates how much more relaxed the process has become. Nevertheless, files will go nowhere until the right documents are received. If it takes too long for the prefecture to get them, I am sure new appointments will be required, which will be unpleasant at best.
Sending complete files by post
About ten years ago, it was quite common for the Paris prefecture to accept files sent by snail mail, and a few rural prefectures continued to allow this for first requests as well as renewals. Now it appears it is becoming even more common.
The most recent case I saw involved the sous-prefecture in Saint-Germain-en-Laye, which upon receiving the file sent a récépissé by regular mail. This was quite a novelty; I had never seen it done before.
I plan to continue describing such innovations as I encounter them, since it seems the prefectures are trying hard to keep the public from having to appear in person.
MY MINOR FEES INCREASED ON SEPTEMBER 1st, 2020
Handling mail in my office: 40 euros per month
Handling mail received at my home: 50 euros per month
Surcharge for out-of-the-office meetings: 60 euros which corresponds to less than 30 minutes’ transportation
Surcharge for meetings and phone calls at the client’s request after 7PM weekdays, all weekend and during national French holidays and vacations: 30%.
Best regards,
ANSWER
I fully understand your situation. The border control on the French side used to be quite lax for American citizens when it came to length of stay, and it was possible to travel in and out without much risk of being fined for overextending one’s stay in France.
I assume the pandemic has affected immigration regulations all over the world. The French consulates have yet to fully resume issuing visas. Only urgent and important requests are being reviewed, making it impossible for some Americans to obtain a visiteur long-stay visa or the non-renewable six-month to one-year visa that does not entail a right to extend the stay in France.
Your situation illustrates the complications created by the pandemic. Which visa and which titre de séjour, issued by the prefecture, can you get? What is best for you two? Intuitively, you think that being married to a French citizen should be a definite advantage for this purpose. But right now the visa you can fairly easily obtain is the one you do not want, and the one you want is not available! In other words, you either get all the rights to immigrate to France as the spouse of a French citizen, which you do not want, or you get nothing because the consulate has yet to issue non-essential visas, include short-stay ones.
Furthermore, the Schengen regulation that applies to American citizens, limiting stays to three months within a given six-month period, is likely to be strictly enforced when the European Travel Information and Authorization System (ETIAS), described on the Schengen website as “a completely electronic system that allows and keeps track of visitors from countries who do not need a visa to enter the Schengen Zone. In a way, it resembles the U.S Electronic System for Travel Authorization (ESTA), which serves a similar purpose. The legal procedures to pass the ETIAS have started in 2016, and the system is expected to be in place by 2022.”
I believe that, between ETIAS and stricter control at the French borders, the legendary leniency that Americans benefitted from is gone.
Therefore, this is the choice you are faced with:
1. The spouse of a French citizen can secure their right to be an immigrant in France without problem. The couple declares to VFS and the French consulate that they wish to live in France. This visa is usually issued quickly and easily. But it is not what you want.
2. You have to wait until the French consulate restarts its processing of short-term visas, which should be at about the same time American citizens are once again able to enter France without a visa.
The latter scenario could get more complicated, however, because of the often narrow-minded way visa applications are reviewed. When you ask for a visa you must state your marital status and thus identify yourself as the spouse of a French citizen. I am not sure you would get the visa you ask for. You might instead receive a long-stay visa, valid for one year, which makes possible the right to obtain a private and family life residence permit.
You ask about applying for a visa once you are in France. It would be easy for you to apply for a residence permit at the prefecture after six months in France as the spouse of a French citizen. But this is not your plan.
Any request for an extension of the three-month stay is ordinarily refused. The basis for such a request must be a compelling reason not to leave France, which can be medical or legal (e.g. the destination country having closed its borders).
I truly wish I could give you the right solution but the pandemic is here to stay for months and maybe years. You need to be tuned in to the French consulate communications to be able to submit a request for the visa you want.
ANSWER
I would like to address the issues you have raised by starting with some definitions, since I believe you are not clear about certain things.
1. profession libérale
- Profession libérale, which is defined as offering services, expertise, advice and the like, rather than selling goods. The income tax is called BNC(bénéfices non commerciaux) (MICRO for auto-entrepreneur and the other entry-level status, the classic status).
- Artisan, which means a craftsperson doing manual work in which you have expertise that shows in what you sell. The income tax is called BIC(bénéfices non commerciaux) (MICRO for auto-entrepreneur and the other entry-level status, the classic status).
- Commerçant, or merchant, which mostly entails buy goods to sell at a higher price.
A freelancer, as the term is commonly understood, always hasprofession libérale status.
2. carte de séjour for profession libérale
The law defining the requirements for issuing this carte de séjour specifies that the foreigner’s business must make a profit of at least the French minimum wage (SMIC, just shy of 15,000 euros) every year. Therefore the first condition, whether for a visa or a carte de séjour, is always the foreigner’s ability to earn that much. For a MICRO BNC business the annual sales must be at least 23,000 euros to reach the SMIC. (The ratio defined in the law is 100 euros in sales equals 65 euros in profit.).
Here is how the prefecture will look at your request. The initial file you submit, asking for a change of status, must convince the prefecture that you will make at least the French minimum wage in profit. In general, the prefecture is already skeptical when you show the documents proving that what you say is true. Therefore it is even more skeptical when it comes to projections. The reality is that the prefecture is giving you the benefit of the doubt if it approves your request for the change. That is critical to understand, since, although it rarely happens, the prefecture can call you in if it thinks your business is not performing as it should be. You should not be too worried about this if you have a bad month, but bear in mind that the prefecture has access, if it wants, to the URSSAF database, where you declare your sales quarterly.
Renewal of the immigration status will occur a year later. At this point the prefecture evaluates what you did the previous year. In Paris, it will ask for your last twelve monthly French bank statements and all invoices and receipts you have issued. It will review the bank statements to see how many invoices have been paid and whether it can identify the payments related to the receipts. Reviewed this way, that provides solid proof that the prefecture can trust. It is easy to add up the credit side of the statements and see if you comply with the minimum wage requirement. Many people compile a spreadsheet with all the necessary information to help the prefecture review the file. If you meet all the requirements (including being up to date paying your taxes and social charges and staying within the limits of your business description) you get a four-yearcarte de séjour. It is restricted to your business and does not allow you to work as an employee.
3. French labor law gives employees strong protection
There is an underlying assumption that an independent could in reality be an employee whose employer has forced them to take self-employed status. The definition of a French employee is to be subordinate; in French we speak of “la recherche du lien de subordination.” Several types of inspectors in France can rule that an independent has so little freedom in the way they organize their work that they are really employees obeying an employer, rather than an independent running a business and therefore prioritizing their own tasks and clients. We all know how demanding clients can be, though, so in real life the way French law makes this distinction is becoming harder and harder to pin down. Working remotely as an employee is now quite widely accepted. And for an independent, spending time in a client’s office or workshop can be completely justified. Therefore, the old guidelines are becoming less and less pertinent. A recent ruling by France’s highest court against Uber is interesting in this regard, as it analyzes in great detail how little freedom Uber drivers and delivery personnel have.
It is common knowledge that inspectors go after small independents, especially those who have chosenauto-entrepreneur status, to audit them so as to get access to their basic accounts and work schedule to see if there is a violation of the law governing who is an employee. Thus self-employed people in France need eventually to have a diverse clientele, not just a few clients. Having an open-ended contract with a client can easily look like a labor contract. If the consultant is paid the same amount every month, the initial assumption is that this is an employee relationship. The very nature of the work must be unequivocally self-employment; writing “freelancing” is not enough. It is imperative for you to be able to describe your tasks and performance in such a way that they can never be interpreted as you being an employee, legally speaking.
By the way, even though the prefecture does not have such inspectors, on occasion it will interpret contracts this way and hence refuse to grant self-employed immigration status.
4. APS card
Its new name is RECE, for (carte de séjour autorisant à) Rechercher un Emploi ou Créer une Entreprise, i.e. job seeking or business creation. This immigration status clearly allows one either to find an employer or to start a business, and thus there is no need to choose which is being pursued when asking for the carte de séjour.
With your current immigration status, you have a right to register your business. Given what I described above about the prefecture’s expectations, obviously the older your business is, the more convincing your file will be. You can show how your business is doing and, ideally, growing.
To describe the situation in more detail:
You could have around six months of operating your business when you show up at the prefecture. In that case, the file will be complex, as you need to do two things at once:
a) present your project with a vision and a description of your business as you see it, going into great detail about your expected billing and expenses over the next three years.
b) prove that your business registration is up to date and you have gathered all documents the prefecture requires, including the statements that you are in good standing with URSSAF and therefore paid up.
I would like to remind you that you are asking for a carte de séjour, not a visa, which is obtained at the consulate and allows people to enter France with the appropriate immigration status.
I advise everybody to take the following steps so as to be certain to have addressed all aspects of the file:
1. working on the project and documenting it
2. making sure you meet all fiscal and legal obligations
3. putting the file together.
The file should be structured into the following three sections and sub-sections:
1. État civil, i.e., proving who you are the French way
- Passport
- Titre de séjour (immigration documents)
- Birth certificate
- Several proofs of address
- Landlord authorization or other proof that you have the right to run your business in your home
2. Introducing your business
- Letter requesting the related carte de séjour
- Business plan projection over three years, detailing billing and expenses
- Résumé in French
- Diplomas related to the business created, translated into French
- Proof of experience in the field or fields concerned
- Letters and contracts with your existing and future clients
3. The French registration of your business:
URSSAF
- All quarterly declarations with related payment of social charges
- Statements that you are paid up and in good standing (attestation de compte à jour, attestation de vigilance)
INSEE
• Original statement of registration and an update not more than three-month
CPAM
• Proof of health coverage not more than three months old (the carte vitale is not admissible)
Tax office
• Welcome letter and income tax statements, if pertinent
French banking
• Ideally, statements from the past 12 months, or whenever the account was opened if less than a year; this concerns the professional account, the professional payments highlighted
Billing
• All invoices and receipts issued during the period concerned
Finally, you make an appointment at the prefecture. Each prefecture has a different method, and before COVID-19 it was not easy, but once one knew the way it was secured. Now everything is done either through a webpage or by sending an email to a specific office of the prefecture. Therefore it has become more complicated to find the right way to ask for the appointment. Also, the prefectures have become stricter about requiring the file to conform to the type of appointment made.
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.