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Definition of "Work"
A common definition of “work” is any activity in which an employee or his or her employer “earns money or some other form of valuable consideration” for activities conducted in the foreign country. At first glance, this includes almost every trip since what business trip will not result in an employee or his or her employer earning money or some form of valuable consideration. Fortunately, most countries differentiate between “conducting business” and “work.” Conducting business generally includes the following activities:
With these activities in mind, a good, practical definition of “work” is “engaging in productive work” or “providing services” to a client. Even this definition, however, can cause uncertainties. For example, the last item, traveling to a country to install equipment or products and/or train a customer on that equipment or product can raise concerns with immigration officials. For this reason, each business trip must be examined independently to determine whether an employee may enter another country on a business visa, or whether he or she will require a work permit.
Because of all the nuances associated with business visas, it is very important that a detailed support letter be prepared for every employee traveling across national boundaries on business, even if that employee is not required to have a visa. This letter will explain the basis under which the employee is entering the country and help ensure that no problems arise with regard to their entry. It will also help ensure that the employee understands the limits to his or her activities within that country.
An Example of "Working"
A computer software company is hired to develop and install a new software product for a customer that is located in another country. In most countries, this consultant may enter the country under a business visa to meet with the customer, research the customer's needs, and examine the customer's existing computer system. However, the consultant must return to the United States (or to whichever country the consultant is based) and develop the software application in his or her home country. Developing the software product in the customer’s country constitutes “work”. The difficulty is defining how much "exploring" or "providing options" to a customer while on their site is permitted (i.e., when does typing at a computer transform from "conducting business" to "work"). The final steps of this process, the installation, configuration, and training of the customer on this new product, can also be accomplished under a short-term business visa.
The key to this scenario is that the actual development “work” is conducted outside of the customer’s country (i.e., the software consultant did not sit down at a customer’s site and actually develop the program there). This makes the software product a foreign product that is being bought and installed pursuant to a sales or service agreement. In this instance, all of the consultant’s activities at the customer’s site is classified as “conducting business” pursuant to a sale or service agreement, and the consultant does not need to obtain a work permit to accomplish his or her assignment.
If an employee enters a country in order to “conduct business”, a work permit is not required. Instead, only a short-term business visa is required. The biggest question in this situation is whether a person is traveling to the United States to "conduct business" or to "work". Indeed, many companies try to use the visitor visa program to bring employees into the United States to perform productive work. But many of these have also been caught and have faced significant monetary and other penalties.
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