Morgan’s practice concentrates on U.S. visa and immigration issues related to the international transfer of executives primarily into the United States. She also works with Baker & McKenzie’s offices worldwide in transferring employees to non-U.S. locations. Here she shares some of the common issues she has encountered while working with attorneys in other jurisdictions to handle non-U.S. work authorization.
What type of visa is standard for expatriate assignments?
Most countries issue short-term work authorization that’s good for one to three years. Some are renewable.
Is a visitor’s visa an option?
A visitor’s visa allows the individual to visit customers, conduct meetings and consult with people. A visitor’s visa doesn’t authorize the individual to reside and perform duties like a local hire.
Imagine a U.S. company has an operation in the United Kingdom. If a U.K. employee goes on maternity leave for two months and an American worker goes to the United Kingdom to fill in, the American is performing a local service and standing in the shoes of a British worker. This is true even though the time period is short. Because the individual is acting on behalf of the British company, the American would need employment authorization in the United Kingdom. The bottom line is this: The activities, not the time period, determine whether employment authorization will be needed.
If an expatriate travels on a visitor’s visa there are some practical considerations beyond the legal restrictions. The expatriate would have to travel in and out of the country frequently to stay within the time limits of the visa. In some countries, children can’t go to school if the family’s living there on visitor status. Expatriates also may not be able to get their goods out of customs. It’s counterintuitive to allow someone to take their furniture into a country if they only have authorization to be there a month.
So do companies sometimes send expats abroad on visitor’s visas hoping the paperwork for the short-term visa will clear by the time they get there?
They do. It’s not a good idea from a legal or a practical standpoint. Legally, most countries have sanctions which can be imposed against companies that violate their immigration laws. These sanctions range from fines to stricter scrutiny by local authorities.
Practically, you could have an expatriate with grandma’s piano in customs for six months and then find out he or she isn’t going to get authorization to work in the country and all the goods have to be shipped back. I suggest people don’t send their personal goods until they know definitely they can join them.
How far in advance of the relocation should HR begin the visa application process?
HR should anticipate that it may take up to three months in some countries to work through the process for obtaining employment authorization. HR should make the visa application one of the very first steps in the process -- rather than finding out a week before the expatriate is supposed to relocate that the visa issue has been forgotten. The company would need to delay the individual’s transfer until the visa comes through. Again, that could take three months.
Do you get frantic calls like this?
All the time.
What is it that makes it hard for companies to plan three months out?
Maybe it’s just a lack of communication. The information relating to an expatriate transfer may not reach the HR person until six or eight weeks into the project. HR may get hit with transfers at the last minute.
Companies usually construct sophisticated agreements with the employee regarding compensation and terms of employment. If the attorney is notified of the transfer as the company commences that process, usually he or she will have enough time to work with an attorney counterpart in the local jurisdiction to get work authorization for the transferee. But more often we are not pulled in until the agreement has been signed, thereby losing six or eight weeks. I suggest to our clients that the immigration process begin when assignment discussions start.
If the immigration paperwork is left until the last minute, often a company ends up with employees living in temporary housing or without their personal items because the goods can’t be released by customs without work authorization.
If a company hasn’t yet chosen between two candidates, would you recommend beginning the process with both of them to get an early start?
Yes. We see that with the more proactive companies.
What does HR need to know up front to evaluate the potential expat?
First, does the company already have an operation in place in the receiving country? Every government we have worked with has wanted to know that a receiving company is sponsoring the individual. Some countries require that the local company have at least a certain number of local employees for every foreign worker. HR needs to make sure the local company is up and running, and generally has local hires.
The information required by the local government about the receiving company may include documentation showing that adequate capital has been placed in the local company, proof that the local company has office space and a list of local employees. It’s like an insurance policy guaranteeing the individual won’t end up on public assistance.
What other information should HR gather in the beginning?
Consider the credentials of the employee being transferred. Countries tend to create laws to protect their work forces. The laws generally require that expatriates have quantifiable knowledge -- usually at least a bachelor’s degree -- or experience not found in the local market. The standard will vary from country to country, but generally countries will not grant work authorization to unskilled workers from another country.
Countries tend to be slightly more lenient in their requirements for people who are moving intra-company -- and stricter with new hires. These are generalizations just to give you an idea of what we commonly see through our experience with Baker & McKenzie’s non-U.S. offices.
So the visa applicant will be required to show proof of his or her college degree?
That is often the case. The types of documents the HR person needs to gather often include: the individual’s post-secondary school diplomas; copies of the passports for all family members; a complete resume; a detailed description of the position the individual will hold in the receiving company; the salary and compensation structure for the individual in the receiving company; and annual reports or financial information about the receiving company.
The receiving company actually requests the visa. Because of that, there also has to be a contact at the receiving company who can sign the documents that will be submitted to the local immigration service.
What else will the immigration service want to know?
Some countries require the employee and all family members undergo medical examination as part of the process. Some countries require the individual and his or her spouse provide a police certificate from the home country showing they don’t have criminal records. Other countries require the individual prove he or she has not filed for bankruptcy in the last 10 years.
What are some of the potential stumbling blocks HR can run into in obtaining visas for the employee’s family members?
It might be worthwhile to define what the “family” is. Most countries define the family unit as 1) the worker, 2) the legally married spouse and 3) children under 21. Most countries do not include common-law spouses, grandparents, nannies and children over 21. In most countries the spouse will not be allowed to work unless he or she separately qualifies for employment authorization and is separately sponsored by a local company.
What can HR do to plan ahead for the immigration process?
We commonly suggest that companies establish an expatriate immigration policy to help manage the expectations of everyone involved. The policy controls some of the stress and can save on legal fees by helping to streamline the process. It should outline who’s responsible for providing specific information and when. It should lay out the responsibilities of the line manager, the expatriate and the HR manager in the immigration process.
What’s the most important thing HR should remember?
Starting early can avoid some of the biggest problems.
Global Workforce, January 1998, Vol. 3, No. 1, pp. 26-28.