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Global Migration Overview
At first glance, moving employees across international borders can seem confusing and complicated. However, if approached properly, it can be done efficiently and relatively quickly. Each country has its own set of migration laws and regulations that address how foreign workers may enter and work in their country. These laws and regulations reflect each country's individual political, socio-economic and cultural needs.
Because terrorists today use many means to take their cause to their enemies, the length of time it takes to obtain travel visas has increased significantly. Consular officers representing any country are less likely to exercise their discretion and approve a travel visa without going through the complete security clearance process. As such, companies and individuals traveling must plan ahead and cannot expect to travel within a matter of days of deciding to obtain a visa. Sufficient time must be allowed to gather the information and documentation required, and to present it to the appropriate foreign embassy or consulate with enough time to permit the embassy or consulate to review the materials and issue the visa. By allowing for sufficient processing time, an traveler is more likely to experience less stress while waiting for their visa and a trouble-free trip.
The key factor in moving employees internationally is to find a law firm that has experience with many countries, knowledge of many foreign embassies and consulates, and contacts in the country into which an employee is being transferred (i.e., the "destination country"). This is because there are many local nuances to global migration. In addition, local counsel must be retained to file most long-term work permit applications. In our opinion, it is important that attorneys be used whenever possible, since this helps ensure that the applicable laws are complied with correctly the first time an application is filed.
Factors Affecting Immigration Laws
There are many political, socio-economic and cultural factors that affect how each country addresses migration issues. For example, countries with weaker economies usually allow business people to enter their country on long-term business visas quickly and with fewer restrictions. These countries have a greater incentive to allow foreign workers to enter because these workers can help develop their economy. Moreover, there is less of a chance that a citizen or permanent resident of such a country will lose the opportunity of being hired in place of the foreign worker. However, some of these countries have decided it is better to experience a shortage of qualified workers while they train their own citizens and permanent residents rather than rely upon foreign workers.
On the other end of the spectrum, countries with strong economies tend to restrict the long-term entry of foreign workers, since foreign workers can displace citizens or permanent residents in the workplace. However, some of these countries recognize that there is a shortage of experienced workers in certain fields, and permit workers in these fields to enter their country on work permits that can be obtained quickly and with fewer restrictions. These countries strive to keep their economies growing by allowing long-term entries into their countries under a work permit system.
Global Migration Process Overview
Most countries have a multi-step migration process:
Finally, while most countries regulate migration on a national level, while others regulate migration (at least work permits) on a local or regional level. Countries that regulate on a local or regional level have more local nuances that complicate filings.
Short-Term Business Visas
If an employee enters a country in order to “conduct business”, a work permit is not required. Rather, only a short-term business visa is required. These can usually be obtained quickly, depending upon the country to which a person is traveling. However, like the United States, most countries are concerned that foreign workers will enter their country and take jobs away from its citizens or permanent residents. Therefore, when a company sends an employee to another country on a business visa, it is very important to demonstrate that the employee will not be “working” in that country but will merely be “conducting business”. If an employee works in another country, then that employee must obtain a work permit, which is usually a very complicated and time-consuming process.
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.
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.
Because of 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.
Long-Term Work Permits
Most countries are concerned that foreign workers may enter their country and take jobs away from its citizens or permanent residents. Therefore, when a company sends an employee to another country, they must demonstrate that the employee will not be taking a job away from a local worker. Many countries do this by requiring an employer to test the local labor market to determine whether there is an actual shortage of qualified workers in the country, before issuing a work permit. This is usually a long and difficult process. There are, however, some alternatives to this approach.
Most countries recognize that intra-company transfers within a multinational corporation will not affect the local labor market. Because of this, local labor market testing is generally not required for intra-company transfers. In addition, many countries recognize that a shortage of experienced professionals in certain fields exists, and they allow such professionals to enter their country on work permits that can be obtained quickly and with fewer restrictions. From a policy standpoint, countries with weaker economies are usually willing to let foreign workers enter their country quickly and with fewer restrictions, as this promotes the countries’ economic growth. Other countries, however, have decided that they are willing to accept short-term labor shortages while they train their own labor force to meet the countries’ future economic needs. These countries make it more difficult for a foreign worker to enter their country.
In many countries, a work permit must be obtained prior to the employee’s transfer to the destination country. However, an employee can oftentimes enter a country on a short-term business visa while the work permit application is pending, so long as the employee does not perform any productive work while awaiting the work permit.
Unlike most immigration attorneys, Mr. Thompson has experience addressing immigration issues to over 30 countries. This section will provide an overview of the issues that affect immigration to other countries.
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