Calling all ‘Business Travellers’- Are you compliant with Immigration Laws? - | Hudson McKenzie

Calling all ‘Business Travellers’- Are you compliant with Immigration Laws?

June 28, 2013 | News

It is vital to the global business community that multinational companies are able to send their employees around the world to carry out trade. Sending employees to meet colleagues, clients or suppliers is beneficial, but it is also a headache when deciding which visa is required for each business trip and costly if punished for an incorrect decision. The consequences of an error varies from country to country but it can result in large fines for the company or even imprisonment of the employee, so the decision cannot be taken without deliberation. This article will provide a brief explanation of the visas available and general tips for planning for employee assignments.

Immigration laws differ from country to country. Although the specific names for the visas and the requirements differ, there are many similarities between countries, especially those looking to balance interests of engaging in global trade with protecting local labour markets and national security. The common question that companies face for countries across the world is whether the employee is carrying out activities that require a work permit in the relevant country, or whether they can visit the country on a business visitor visa. The length of the trip and the scope of activities undertaken are key when considering the two options. Each country’s visa rules are somewhat different and can vary from the general rule of thumb, but a brief explanation of both types of visas is provided below.

Business Visitor Visa

Business visitor visas are granted to individuals carrying out permissible business activities for a certain period of time in a specific country. Permissible activities normally include attending conferences, visiting customers, attending meetings, negotiating contracts and other legitimate activities of a commercial or professional nature. When used properly, business visitor visas are a valuable resource for an employer when sending an employee to another country because they are less time consuming and not as document heavy as a work permit application, which effectively bypasses the costs and time typically associated with work permit applications.

Work Permit

If the intention of a business visitor is to undertake activities outside the prescribed permissible activities for a business visitor visa, then it is likely that they will need to obtain a work permit. A work permit gives permission to its holder to undertake work activities in a specific country for a certain duration. Although generally the application process takes longer, a work permit has the benefits of allowing the individual to live and work in the desired country upon arrival and reduces risk of penalty for both the employer and employee.

So how do I decide on a work permit vs. a Business Visa?

The difference between needing a business visitor visa or a work permit for short term assignments has always been a rather grey area. In the modern world, we have the technology that permits us to work wherever we are, provided that we can connect to the internet or we have reception on our mobile phone. This makes distinguishing between carrying out business activities such as attending conferences or meetings and actually working hard to do. Due to the constantly changing work patterns in global commerce, immigration laws will always struggle to keep up and offer complete clarity in legislation.

Given that immigration compliance enforcement worldwide is certainly tending towards making companies and employers rather than individual employees responsible, it is worthwhile for businesses to take a look at their policies in this area. The following list provides tips for planning business trips and short term assignments:

  • Educate employees so that they know what business activities are permissible when travelling and will not breach laws. This is also important so that the employee can be clear with immigration officers at the port of entry on what they have planned in the host country.
  • Different rules apply in different countries, so you should be aware of permissible activities for each country that will be visited. What constitutes as work in one country may not be same in another country.
  • When the immigration authorities consider each case to determine the immigration status of the employee, the most important factor is the actual activities that will be carried out in that country.
  • The country in which the employee receives wages does not determine where they are working. As a rule of thumb, if they are being paid (apart from normal living expenses) for the duration of the trip, it constitutes work.
  • Working outside of the company’s office in a foreign country could mean that the employee is not as likely to get in an audit of a business premises, but it does not mean they are immigration compliant and cannot face penalties.

It is very important to be aware of the limits imposed and factors that are taken into consideration by each country when granting such a visa. Each trip should be viewed on a case-by-case basis because there is a thin line between what could be perceived as work or a business visit, especially because getting it wrong could lead to harsh penalties on both businesses and individuals. If the nature of the assignment is hard to determine, it is possible to assess how assignments can be modified so that the trip really is just a business trip and not a working assignment. Many times, if the working part of the assignment can be carried out by local staff, or remotely from the employee’s home location, the need for a work permit can be avoided, saving the business time and money.

With all of this in mind, business travellers and their employers must be careful before embarking on foreign assignments and can no longer be complacent of their compliance with global immigration laws in an ever changing world of immigration.

For any queries please contact Rahul Batra at rahul.batra@hudsonmckenzie.com or William Ballard at william.ballard@hudsonmckenzie.com.