BUSINESS VISITOR CURRENT LANDSCAPE
The business visitor visa continues to top the list as one of the trickiest and highest areas of risk in the global mobility world (alongside mergers and acquisitions and contract/project type arrangements from an immigration law perspective) and concerns relating to it continue to grow and cause havoc. Along with the forces of globalisation, the business visitor visa has contributed to the redefinition of global mobility and global workforce management. It has also moved the HR function from an administrative one to a high risk and more strategic function, exposing organisations to compliance issues and employees to potential individual liability. Compliance issues surrounding business travel are likely to continue to escalate as organisations are increasingly focused on the cost and delays associated with traditional international assignments and are turning to more expeditious, cost effective and less bureaucratic forms of mobility and shorter term assignments (for periods of anywhere between less than a month and up to 90 days). This is likely to lead to more organisations sending employees into other countries without proper work visa[ii], exposing organisations and their employees to risk and potential individual and corporate liability. A recently released industry survey has shown that 89% of organisations plan to increase the number of mobile employees in the next two years. The international business travellers group is expected to grow (57%), along with the short-term assignees group (58%). The survey continued to confirm that “While the need for employees to travel internationally from time to time to perform their role is clear, this is the most challenging mobility type to manage.” Further, in 2012 a business traveller survey report confirmed that “More than 200 million people (roughly the entire population of Brazil) are now working outside their home locations. That increase, along with critical talent shortages in specific markets and disciplines, has pushed mobility to the top of many corporate agendas. It has also turned immigration reform into a major political issue …”.
COMPLIANCE AND LAW ENFORCEMENT TRENDS
Governments around the world have major concerns around illegal employment[iii], misuse of visas, and tax abuses and many have responded to these concerns with an increased focus on enforcement. Governments have been aware for years of the use and abuse of business visitor visas. With the current landscape, economic and political climate, and an increased focus for many governments around the world on protecting their borders and local workforce, business travellers have come under the scrutiny of government authorities and can no longer slip under the radar. Immigration and other authorities around the world are increasingly:
- Ramping up monitoring and tracking of travellers and are continuing to crack down on those individuals and organisations misusing the business visitor visa by either working illegally without a visa or in breach of their visa conditions.
- Scrutinising intent and purpose of travel, the nature and extent of proposed activities, the proposed length of stay and physical presence.
- Adopting civil and criminal penalties which apply to employers and labour hire companies or employment agencies which employ, allow or refer for employment foreign citizens or non- citizens who are not allowed to work in the host country. In some countries it is irrelevant whether the employer or the employment agency, or their respective executive officers in positions of influence, are breaching these laws knowingly or accidentally.
- Attributing blame on the employers for their employees’ transgressions and non-compliance irrespective of whether or not the employers are aware of the non-compliance. The pressure is on the employers to maintain their reputation and corporate image and take responsibility for their employees. Whether travelling to another country for business visits or employment, employees must hold the appropriate visa that allows them to undertake the required activities.
- Investing in tracking and monitoring technology enabling them to access data on travellers in real time, particularly those frequent travellers with multiple entries.
- Investing in sharing of information platforms whereby they may exchange information with other local government departments, most commonly between immigration and taxation authorities.
- Reviewing and redefining the permissible activities under the business visitor visa which may force more employers and employees to secure work visas instead of entering on the business visitor visa.
- Showing reluctance to allow change of status from a business visitor visa to a work visa in-country.
- Focusing enforcement efforts and maximising revenue. This is particularly so since the recent multi-million dollar case settled in the US which involved a giant multinational IT outsourcing organisation alleged to have misused the business visitor visa by sending employees to the US for long term projects. This case is a testament to the US government’s commitment to law enforcement, and no doubt other governments will follow the lead.
CURRENT GLOBAL MOBILITY CHALLENGES
IMMIGRATION AND COMPLIANCE
The key challenge for the global mobility world is immigration. The recent Cartus 2014 Global Mobility Policy & Practices Survey Report confirmed that immigration (at 57%) continues to lead the list of organisational challenges along with cost control (at 75%) and overall compliance (at 62%). More particularly, the report states that “In the area of compliance, companies indicate that early involvement of tax and immigration providers (70%), more clearly defined policies and processes (49%), and better tracking of assignees’ days in country (47%) are the three areas in which they are planning increased focus.” Evolving legislation and new practices make immigration compliance an ongoing challenge for all stakeholders. Similarly, multinational organisations and the global mobility industry must comply with an array of intersecting laws, nationally and internationally. However, unlike immigration compliance, the management of these related corporate and industry legal requirements and associated risks is typically well structured with responsibilities in place, internally and externally. “No CEO would have to think twice about who in the organisation takes responsibility for tax related compliance. Unfortunately, this is not always the case with immigration compliance[iv]. “
INHERENT COMPLEXITY OF IMMIGRATION LAWS
The Cartus 2014 Biggest Challenges Survey Executive Summary in the “Hot Topics” section states that “With visa and immigration regulations becoming increasingly complex and companies continuing to send their assignees to an expanding number of locations, an increase in focus in this area is not surprising. In fact, the number one immigration-related area in which companies are seeing an increase is the need for up-front planning due to the length of time it takes to obtain visas (83%). Internal compliance controls (58%) and the need for visa issues to be taken into consideration at the time of candidate assessment (57%) were also frequently noted by respondents.” (emphasis added) In order to remain compliant with local immigration laws, international business travellers should conduct only permitted business activities. Gainful employment, conducting any kind of substantive work that may benefit the host company, whether paid or unpaid, or receiving any payments while in the destination country, is not typically allowed as a business visitor. Working out which activities amount to “business” or “work” is not an easy task. Each country has its own definitions of permissible business activities which are not always reliable or clear. The laws, regulations and practices around business visitors in some countries are fluid and subject to the interpretation and discretion of local authorities which can make it difficult for employers and employees to ascertain the most appropriate visa for which to apply. Although the permissible business activities vary from country to country, they generally include attending meetings, conferences, and training (particularly if it is classroom based and in-house). Generally, a combination of factors, including: the purpose of entry into the host country, length of current and planned visits, intended number of entries, frequency of travel, nature of proposed or undertaken activities and the passport nationality of the traveller determine the nature and extent of exposure to risk and liability both for the employee and the employer. For example, frequent, long visits and/or multiple, almost back-to-back entries of short duration for the same activity may suggest to local immigration authorities that the business traveller is undertaking activities that would actually require a work visa and may trigger an investigation. To illustrate the complexity associated with distinguishing between “business” and “work” activities, below are listed examples of permissible business activities across a number of countries in the APAC region with checkmarks indicating how they interrelate, or don’t. Even the vague and ambiguous nature of the activity descriptions further demonstrates the challenge faced by the organisations and individuals trying to monitor immigration compliance. For most activities, it is very difficult to ascertain the exact meaning and what they actually cover. Take ”training” for example – does “training” involve giving or receiving training, does it involve training of foreign or local employees or clients, is the training in-house, at client sites, in a seminar, is the training classroom based or is there a hands-on element? Due to the consequences of undertaking a “work” activity while on a business visitor visa, if there is any uncertainty about whether or not some activities fall within “permissible activities”, consult with the immigration provider, research the country specific policies (if there are any), or seek clarification from immigration authorities. In addition, as the permissible business activities change from time to time, it is important to consult with the immigration provider.
Notes: *Regardless of the length of the trip in any jurisdiction, if undertaking activities which will generate revenue for the host entity, or if the business visitor is receiving income or compensation or takes direction from the host entity, work visa should be obtained. **While sometimes allowed for short periods of time, certain activities that are considered an extension of professional activities may require work authorisation. An immigration professional should be consulted for a detailed analysis. [i] Ernst and Young Frequent Business Traveller Survey Report 2012 [ii] Ernst and Young Frequent Business Traveller Survey Report 2012 [iii] “Illegal employment” may be defined as work performed by foreign citizens or non-citizens who are working in a host country without a visa or permit or in breach of their visa conditions. [iv] Quote from the Irish Relo article ‘Managing Mobility Risk