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MOVING EMPLOYEES ACROSS INTERNATIONAL BORDERS
from "Business Immigration Quarterly" Spring 2001
P. Robert Thompson, Attorney at Law
In today's global economy, more and more companies are looking outside of
the United States for clients. This approach allows a company to adapt to a
changing market in one country by simply expanding in another market. Once a
company starts moving employees across international borders, however, they
must start addressing immigration issues in those countries. Indeed, many
companies would like to expand globally, but are unwilling to do so because
they are not sure how to move employees across international borders.
Moving employees across international borders can be confusing and
complicated. However, if approached properly, it can be done efficiently and
fairly quickly. However, it must be remembered that there are nuances to
each countries' immigration laws that can impact how quickly a visa
application can be prepared and processed. Sufficient time must be allowed
to gather the information and documentation required and 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. Only in
this way can an employee be assured of a trouble-free trip.
General Criteria For Entering Another Country On A
Business Visa
Each country has its own set of immigration laws and regulations that
address how businesspersons may enter their country. There are also a number
of international treaties and conventions that address the movement of
personnel across international borders. Two of the better-known treaties are
the North American Free Trade Agreement ("NAFTA") and the General Agreement
on Trade in Services ("GATS"). Most U.S. companies are familiar with NAFTA
because of the "Trade NAFTA", or "TN", visas that are available for certain
professionals. NAFTA also addresses short-term business travel by
businesspersons, and applies to U.S., Canadian and Mexican nationals. The
General Agreement on Trade in Services was enacted through the World Trade
Organization, and addresses the movement of personnel for its 120 signatory
countries. There are also regional agreements, such as between the members
of the European Economic Union and the Schengen States of Central Europe.
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,
it is very important to demonstrate that the employee will not be "working"
in that country, but instead will just 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.
Whether an employee is working can sometimes be a tricky question to answer,
especially since each country tends to define the term "work" differently.
In general, work can be defined as any activity in which an employee or
his/her employer earns money or some other form of valuable consideration
for activities conducted in the foreign country. At first glance this would
include any trip, for what business trip will not result in an employee or
his/her employer earning money or some form of valuable consideration?
Fortunately, most countries define certain specific activities as
"conducting business" instead of "work". 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 fairly
quickly, depending upon the country to which the employee is traveling.
Conducting business generally includes such activities as: making sales
calls, developing business contacts, establishing a business strategy or
negotiating an agreement for the sale of goods or services, attending
business meetings, gathering information from a client, installing equipment
or products and training a client on these products pursuant to a sales or
service agreement. Many of these activities are self-explanatory. However, a
few of these activities should be examined more closely since they provide
an effective and legitimate means of moving employees across international
borders having the employee "work" in the foreign country.
An Example
Take, for example, a computer software company that is hired to develop and
install a new software product for a client that is located in another
country pursuant to a sale or service agreement. In most countries, a
software consultant may enter the country to meet with the client; research
the client's needs and examine the client's existing computer system. All of
this information is necessary for the consultant to develop a software
application that will meet the client's needs and fit into its existing
computer system. The consultant must then return to the United States and
actually develop the software application here (or in whichever country the
consultant is based). Of course, the consultant can always return to the
client's site to update the client on the status of the product development
and to gather additional information. The final step in this process, the
installation, configuration and training of the client on this new product,
can also be accomplished under a short-term business visa so long as such
installation and training are contracted for under a sales or service
agreement.
The key to this entire scenario is that the actual development work is
conducted outside of the client's country (i.e., a software consultant
cannot sit down at a client'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 client's site are classified as
"conducting business" pursuant to a sale or service agreement, and the
consultant need not obtain a work permit to accomplish his/her assignment.
The Effect Of Economic Conditions In The Client's
Country
Each country strives to enhance its own economy using whatever means
available. For example, countries with weaker economies are usually more
open to having businesspersons enter their country on short-term business
visas quickly and with few restrictions. This makes sense, since there is
more incentive for such countries to allow foreign professionals to enter
their country and help develop their economy. Moreover, there is less chance
of a citizen or permanent resident of such countries to lose the opportunity
of being hired in place of the foreign professional.
However, many countries with strong economies also recognize that there is a
shortage of experienced professionals in certain fields, and permit such
professionals to enter their country on work permits that can be obtained
quickly and with few restrictions. These countries, such as Canada and the
United Kingdom, strive to keep their economies growing by permitting such
short-term entries into their countries under their work permit system. In
these instances, the employee may actually perform services at a client's
site.
How To Obtain A Short-Term Business Visa
Short-term business visas are generally obtained from an embassy or
consulate before entering another country. Most embassies and consulates do
not accept visa applications every day. Moreover, it can take anywhere from
one day to three weeks to process a visa, depending upon the embassy or
consulate involved and the nationality of the individual applying. It is,
therefore, very important that enough time is made available to prepare and
process a visa before a business trip.
In order to obtain a business visa, most countries require the traveler to
have a valid passport, to complete an application form, and to provide proof
of employment and insurance, a travel itinerary, any contracts associated
with the trip and a letter of support from the traveler's employer. This
support letter is very important. In fact, it is so important that a support
letter should be prepared for all employees crossing international borders
on business, even if they do not require a business visa (for example, U.S.
citizens traveling to Europe). The letter will explain to the immigration
officer at the port of entry the purpose of the trip and how the activities
to be conducted qualify as conducting business. It is important to note that
just because an employee need not obtain a business visa to enter a country,
(s)he still may not work in that country. If an immigration officer at a
port of entry determines that an employee is entering the country to work,
the officer will force the employee to return to his/her place of origin.
Caveat
It must be remembered that each country establishes its own immigration
standards and practices. Therefore, while the information in this article is
generally applicable to most countries, it should not be relied upon in any
particular circumstance. Each country's immigration requirements must be
examined to determine the proper approach to entering that country for
business purposes on a case-by-case basis.
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