Global Visa and International Assignments

William R. Hummel, Esq., Associate Attorney
William.Hummel@garfinkelimmigration.com

When considering international work assignments for employees, whether for a few months or a number of years, numerous issues may arise in the course of the visa procurement and relocation process. Given the length of time it can take to obtain a visa and relocate, companies should be aware of the following common issues:

* Accompanying Family Members

Assignments abroad can mean significant time away from family members who choose not to relocate with the employee. While most countries allow immediate family members such as spouses and minor children to accompany a transferring employee, the rights and privileges afforded to family members in the host country are important factors of which to be conscious. Limits on spousal work authorization and how a spouse and child are defined can raise serious concerns for employees who wish to bring along family members. Laws concerning recognition of same-sex marriages and co-habitating partners vary country-to-country. Countries like Japan, China, India, and Russia limit the definition of spouse to those of the opposite sex who possess a legal marriage document. Furthermore, while some countries are generous with granting spousal and partner work authorization, not all countries grant family members the right to work.

In addition, a host country's definition of the age of majority for children as well as whether step-and adopted children are treated like biological children can create situations where part of a family unit may be unable to relocate. Questions about possible accompanying family members should be part of any initial discussion with an employee considering international relocation to ensure the employee and his or her family are aware of potential issues that may impact family unity.

* Temporary vs. Indefinite Relocation

A discussion about the duration of any global assignment is essential at the beginning stage of visa procurement. For example, in the United Kingdom, certain visa types lead to permanent residence ("settlement"), while others do not. Initial discussion between the company, the employee, and immigration counsel can ensure that proper visa and work permit options are selected to avoid the need to visa process multiple times for more permanent options.

* Home or Host Country Payroll

The decision of whether or not to keep an employee on the home country payroll is a frequent question encountered with global transfers. Remaining on the home country payroll for a global assignment, may require secondment agreements for visa issuance and may limit longer term visa options. In addition, payroll location can have tax and employment benefit implications. Coordination between immigration counsel, tax advisors, and in-house corporate counsel may be necessary to ensure legal requirements in both the home and host countries are met.

* Criminal Background of Employee

Although many employers run background checks on employees, immigration counsel must have a discussion about criminal history with the transferring employee. A criminal history, no matter how minor or long ago may affect the ability of an employee to obtain a visa. Even incidents where a formal conviction was never entered or the incident was expunged should be discussed with immigration counsel. Relatively minor issues that have no immediate bearing on employment eligibility may render visa and work permit acquisition difficult. For example, a conviction of Driving Under the Influence normally makes one inadmissible to Canada. To avoid work permit denials or refusal of admission at a port of entry, a candid discussion between the transferring employee and immigration counsel is necessary.

* Nationality and Former Nationalities of Employee

Immigration counsel should be made aware of an employee's current and any former nationalities. Visa options can vary by nationality and birth place. In addition, such may also affect the procedure consulates must follow for visas or work permits to be issued. Individuals returning to their country of birth may be required to submit evidence that they relinquished their former citizenship. India, for example, requires all individuals who previously held Indian nationality, to submit their Indian passports for renunciation before any subsequent Indian immigration documents can be issued.

In addition, depending on the country of assignment, individuals who hold or held certain nationalities may face increased background and security checks. For example, current or former holders of Taiwanese citizenship will face significant delays in obtaining Chinese visas and residence permits. Similarly, those of Pakistani or Bengali nationality or former nationality, will face increased security checks and visa procedures for India. These security clearances and background checks can take weeks or even months to resolve, and consulates usually cannot expedite them for any reason. Similarly, the current or former nationalities of accompanying family members should be discussed with immigration counsel to ensure visa options are available for all family members.

* Tax Obligations

While our advice is limited to visa matters, any employee relocating to another country should consult with tax professionals in the home and host countries about tax obligations and treaties. Proper global tax advice is vital for any individual considering a global relocation.

As evidenced, numerous issues can arise during the course of the relocation process. Having an initial call with immigration counsel, the host company abroad, the sending company, and the employee in question will start this process with all parties aware of the potential concerns and issues faced from all sides. This initial discussion can ensure all parties have clear expectations about the process and what will be involved from start to finish to minimize frustrations that often arise during the global relocation process.