Global Workforce Mobility: What Employers Need to Know

Transcription

1 Global Workforce Mobility: What Employers Need to Know Thursday, December 6, 2012

2 Presenters Moderator Teri A. Simmons, Partner, Arnall Golden, Gregory, Atlanta, Georgia, USA 2

3 Presenters Speakers BRAZIL: Renato Canizares, Partner, Demarest e Almeida Advogados, San Paulo, Brazil rcanizares@demarest.com.br CANADA: Jeevyn Dhaliwal, Lawyer, Roper Greyell LLP, Vancouver, British Columbia jdhaliwal@ropergreyell.com 3

4 Presenters Speakers QATAR: Emma Higham, Senior Associate, Clyde & Co. LLP, Doha, Qatar UAE: Sara Khoja, Partner, Clyde & Co., Dubai, United Arab Emirates 4

5 Speakers Presenters NETHERLANDS: Sascha C. Kuit, Senior Associate, Boekel de Neree, Amsterdam, Netherlands NIGERIA: Kafayat Jumoke Lambo, Partner, Udo Udoma & Belo-Osagie, Lagos, Nigeria 5

6 Speakers Presenters MEXICO: Alejandro Luna, Partner, Santamarina Y Steta, Mexico City, Mexico aluna@s-s.mx USA: Todd A. Photopulos, Partner, Butler, Snow, O Mara, Stevens & Cannada, Memphis, Tennessee, USA todd.photopulos@butlersnow.com 6

7 Presenters Speakers India: Ajay Raghavan, Partner, Trilegal, Bangalore, India China: Jeffrey Wilson, Counsel, Jun He Law Offices Shanghai, China 7

8 Business Visitor (non-work) Visa Options 8

9 Brazil Business Visas Granted to foreign citizens who will attend seminars, conferences, participate in business meetings, etc. Usually valid for 90 days; can be granted for up to 5 years 9

10 Brazil Business Visas Foreigner can remain in Brazil for up to 90 consecutive days, and can be extended for additional 90 days. Foreigner cannot work in Brazil / for the Brazilian company. Penalties applied to the Brazilian company Foreigner can be deported 10

11 Mexico Business Visas Business visitors, may enter Mexico for up to six months each time. Certain nationalities (e.g., Canadians and Americans) do not require any consular visa to travel to Mexico. They just need to carry their passports and fill out the application form, known as FMM (Multiple Migratory Form), at the time they enter Mexico. 11

12 Mexico Business Visas Nationals of certain countries, including Cuba, China, Saudi Arabia, Lebanon, Afghanistan, and almost all the countries of the former Soviet Union, among others, are required to process and obtain a consular visa before the corresponding Mexican Consulate, before travelling to Mexico. 12

13 USA B-1 Visa Quick, relatively easy to obtain Basic requirements Business purpose for trip Travel plans are specific and limited Funds to cover expenses No pay from U.S. source A reason to return home Less than 1 year 13

14 USA B-1 Visa Examples of permissible activities Engaging in commercial transactions Negotiating contracts Survey potential site for business/lease premises Business meeting Not permitted Work in the U.S. 14

15 USA B-1 Visa Procedure for obtaining Obtain directly from U.S. Consulate Form DS

16 USA B-1 Visa Visa waiver program 37 countries, including Australia Cannot change or extend status Travel limited to 90 days Electronic System for Travel Authorization Minor fee: $14 16

17 Canada Business Visitors Immigration and Refugee Protection Act and Regulations Business Visitors no labour market entry Remuneration, principal place of business, accrual of profits outside Canada 17

18 Canada Business Visitors No hands-on work or management Exploratory visits, setting up business Training activities permitted Sales, after sales service equipment manufactured outside of Canada Best practices: carry pocket letter 18

19 Canada Business Visitors Temporary Resident Visa (TRV) Consular application required Processing time varies: same day to one month + Visa exempt foreign nationals apply for entry at port of entry 19

20 Netherlands Brief Business Visitors A Schengen visa is required for business trips of 3 or fewer months to the Netherlands and other Schengen countries Nationals of several countries (e.g., Australia, US, Canada, Japan and most South American countries) do not need a visa 20

21 Netherlands Brief Business Visitors Granted for max 3 months (single entrance) or multiple entry (combined stays may not be longer than 3 months in a 6-month term) Allows travelling in all Schengen countries 21

22 Netherlands Brief Business Visitors A Schengenvisa alone does not empower an individual to work in the Netherlands. A work permit may be required. A work permit is not required: to attend business meetings and enter into agreements for a max 4 weeks within in a 13-week period for specific temporary work (e.g., implementing software/installing machinery) for a max 12 consecutive weeks within in a 36-week period 22

23 Netherlands Brief Business Visas Process visa Apply to the local Dutch embassy or consulate Supporting documents: passport, invitation from company in Netherlands, evidence of sufficient funds, confirmation of employment in home country, medical insurance, etc.) Processing time is 1 to 3 weeks 23

24 Netherlands Brief Business Visas Work permit: Application made by the employer to Dutch employment authorities (UWV) Processing time is 2 to 5 weeks 24

25 Nigeria Non-Work Visas Types of business-related visas Business visa Tourist visa Business visa is ideal for exploratory and business development visit. Foreigners cannot work or conclude contracts with this visa, but can attend meetings and hold negotiations. 25

26 Nigeria Non-Work Visas Usually valid for 3-12 months. Immigration official at airport stamps passport to reflect the duration for which the expatriate can stay in Nigeria. Duration of stay can be extended for a further period while the foreigner is in Nigeria provided still within the validity period of the visa. 26

27 UAE Business Visas 32 nationalities who may obtain visit visas on arrival; available through national airlines Business visas 6 months multiple entry stays of 14 days at a time Visas to attend conferences Investor visas are available requiring capital investments and the holding of a business license 6 months renewable visas are available for owners of property worth AED 1 million and above 27

28 Qatar Business Visas Permit entry for representation purposes Issued by approved Qatari entities and Qatari embassies Validity varies Exit Permit maybe required 28

29 China Business Visas Generally, all nationalities need business visa ("F" visa) to enter China for business Limited purposes, such as attending meetings Invitation letter issued by company or government agency Issuance in 1-4 days after application 29

30 China Business Visas Multiple entry visa possible Generally valid for 30-day stays; two extensions generally permitted 90-day maximum stay until work authorization required 30

31 Purpose India Business Visa Granted to foreign nationals who want to visit India to establish industrial/business ventures or to explore possibilities of setting up industrial/business ventures in India. Also granted to foreign nationals coming to India to attend business meetings, participate in exhibitions, for recruitment of manpower etc. 31

32 Process India Business Visa Foreigners with a period of residence exceeding 2 years in a certain country may apply to the appropriate Indian consulate in that country. Supporting documents (e.g., valid travel documents, proof of financial standing and expertise in the field, documents pertaining to proposed business activity etc. will have to be submitted. Visas are usually granted within 2-3 weeks, but could be longer. 32

33 Duration India Business Visa Usually granted with multiple entry facility, and may be granted for a period up to five years or a shorter duration. A stay stipulation of a maximum of six continuous months will normally be prescribed. 33

34 Restrictions India Business Visa Foreign nationals not permitted to perform any activity amounting to actual execution of any contract or project. Not possible to convert a business visa into an employment visa while in India. Foreign national must leave the country and re-enter after obtaining a fresh employment visa. 34

35 Work Visa Options 35

36 Brazil Work Visas Permanent Visa (officers, managers and investors); Temporary visa item V (valid for 2 years, renewable for the same period); Technician visa (valid for 90 days, up to 1 year, without employment agreement with the Brazilian Company). 36

37 Mexico Work Visas Temporary Resident authorizes foreigner to stay in the country for a term not to exceed four years. Foreigners may be granted authorization to work in exchange for payment within the country, subject to an employment offer. Foreigners have the right to enter and exit Mexico as many times as desired, with the right to also request the admission of their family members. Mexican entities hiring foreigners must be registered before the National Immigration Institute. 37

38 Mexico Work Visas An application to work temporarily in Mexico must be filed before the National Immigration Institute and accompanied by a letter from a company established in Mexico that requires the services of the foreign applicant, attaching supporting documentation to show: the company is legally incorporated and operating in Mexico the foreign applicant possesses qualifications to hold the position or perform the required work Procedure may take 6 to 8 weeks. 38

39 USA Visa Options L-1 Visa: Intracompany Transfer Visa Requirements Qualifying organizations doing business both in the U.S. and abroad Employee for 1 year abroad during the last 3 years Coming to work in U.S. as Executive, Manager, or position of Specialized Knowledge 39

40 USA Visa Options Benefits 5 to 7 years in U.S. Possibility for blanket L-1 Visas Permanent residency fast track Spouses/children can work No cap 40

41 USA H-1B Visa: Specialty Occupation Requirements Position is a specialty job requires bachelor s level degree Employee has degree or equivalent 6 years total (3-year increments) 41

42 USA H-1B Visa: Specialty Occupation Drawbacks Numerical cap: 65,000/year Spouse/children not eligible to work Employer/job/location-specific Expensive 42

43 USA Timelines for Approval L-1: two to four months Two to three weeks for blanket visa H-1b: three to six months Premium Processing: 15 days 43

44 Canada Processing Options Intra Company Transferees Full time employment outside of Canada for one year within past three Qualifying relationship between transferring and receiving entities Engaged in senior managerial/executive or specialized knowledge capacity Application may be made at port of entry, with pre-opinion, or at Consulate (in order of quickest to longest processing and least to most assured) 44

45 Canada Processing Options Labour market opinion Two step process: Apply to Service Canada for opinion that entry of foreign national will not have a negative effect on labour market With LMO in hand, proceed to Immigration to apply for Work Permit Increased requirements in Quebec 45

46 Netherlands Work Visa Options Hiring EEA nationals No work permit or residence permit required Hiring other foreign nationals Work and/or residence permit required (unless work consists of e.g., implementing software/ installing machinery and can be completed within max 12 weeks) 46

47 Netherlands Work Visa Options Highly skilled migrant residence permit Employer must have an entity present and established in the Netherlands Salary criteria of gross (employees older than 30 years) or 37,575 (younger than 30 years) Staightforward and quick process, takes 2 to 5 weeks in total 47

48 Netherlands Work Visa Options Intra-company transfer work permit Annual worldwide turnover of at least 50 million Salary criteria of gross (employees older than 30 years) or 37,575 (younger than 30) or Market conform salary and university or vacational institute degree (work permit issued for max 1 year) 48

49 Netherlands Work Visa Options Intra-company transfer work permit (con td) Also quick procedure, 3 to 5 weeks for the work permit In addition employee needs residence permit and depending on nationality an entrance visa (MVV) 49

50 Netherlands Work Visa Options Expanding business work permit No turnover criteria Employee must have a key position A comprehensive businessplan must be submitted 50

51 Netherlands Work Visa Options International trade work permit Only if the work is performed in relation with the supply of goods, which were made in the home country Whereas the value of of the labour is less than the value of the supplied goods and The empoyee has been employed for 1 year or more with the supplier 51

52 Nigeria Work Visas Types of work visas Temporary work permit Subject to Regularisation visa 52

53 Nigeria Work Visas Temporary work permit Can work in Nigeria on a temporary basis. Single entry visa valid for a maximum of 3 months. Not renewable, although a person can apply for a TWP several times. Utilized mostly by companies that are yet to obtain expatriate quota approvals or that require the expatriate temporarily. 53

54 Nigeria Visas Subject to regularisation Upon entering Nigeria with this visa, the expatriate is expected to regularize his stay and obtain a residence permit and multiple re-entry visa, which is valid for one year and renewable. Apply for in country of usual residence after company obtains expatriate quota approvals from the Federal Ministry of the Interior. 54

55 Nigeria Relevant Approvals Residence permit (i.e., a CERPAC Combined Expatriate Residence Permit and Aliens Card) entitles an expatriate to live and work in Nigeria for 12 months at a time, but subject to the validity period of the expatriate quota position. 55

56 Nigeria Relevant Approvals Expatriate quota approval Expatriate quota is the authorisation that establishes the maximum number of expatriates that a Nigerian company may employ. Company must apply for the number of expatriate personnel it intends to employ. The Immigration Desk of the FMI has the discretion to determine the number of quota approvals to grant to any applicant irrespective of the authorised share capital of the applicant company. 56

57 Nigeria Relevant Approvals Expatriate quota approval Granted on a temporary basis, usually for a period of two years in the first instance, and may be renewed up to five times or for a period not exceeding 10 years in exceptional circumstances. Renewal of a quota position usually depends on adducing evidence that at least two Nigerian employees have been appointed to understudy the expatriate. Further restrictions on companies in oil and gas sectors. 57

58 Nigeria Relevant Approvals Expatriate quota approval Before a company can apply for expatriate quota, it must have first obtained a Business Permit. Business Permit is the authorisation that enables a company registered in Nigeria with foreign shareholders or participants to do business in Nigeria Approval is issued by the FMI 58

59 UAE Work Visas Mission visas: 3-6 months There are currently no special visas for the temporary employment of non-professional employees 59

60 Qatar Permits Work Permit Residence Permit Exit Permit Family/dual residency 60

61 China Work Visa Options "Work Permit" or "Foreign Expert Permit" Both work authorization and resident permit required before commencing work Authorization is entity and geographic specific Education and work experience requirements 61

62 China Work Visa Options Different rules for residents of Hong Kong, Taiwan, and Macao, and Overseas Chinese Local practices can vary, e.g., local employment contracts may be required Some flexibility for senior managers, "special talent", and employees of regional headquarters 62

63 India Employment Visas Purpose Granted to skilled and qualified professionals or persons engaged or appointed by a company, organization, industry, or undertaking, etc. in India on a contract or employment basis at a senior level, skilled position. Others who enter on an employment visa are foreign engineers/ technicians coming for installation and commissioning of equipment, artists, consultants, chefs etc. 63

64 Process India Employment Visas Foreigners with a period of residence exceeding 2 years in a certain country may apply to the appropriate Indian consulate. Supporting documents (e.g., valid travel documents, proof of educational qualifications and expertise in the field, documents pertaining to proposed employment, tax liability undertaking from the Indian entity etc.) are required. Visas are usually granted within 4-6 weeks. 64

65 Duration India Employment Visas May be granted initially by the Indian Missions abroad for a period up to two years. Extension of the visa can be granted by the concerned State Government/Foreigners Regional Registration Office (FRRO) up to maximum period of five years from the date of issue of the Visa. 65

66 India Employment Visas Restrictions The foreign national must draw a salary in excess of US$ 25,000 per annum (subject to some exceptions created for ethnic cooks, language teachers and embassy staff). 66

67 Consequences for Failing to Follow Immigration Laws 67

68 Brazil Compliance Administrative penalties to the company Refusal to have visas granted to the company's executives Foreigner can be deported. Penalties to the foreigner in irregular situation in Brazil Labor claims filed by irregular services' providers based on the Brazilian law 68

69 Mexico Immigration Compliance For individuals Monetary fines and possible criminal penalties Denial of entry into Mexico For companies Companies can be fined for illegal employing foreigners 69

70 Mexico Immigration Compliance For civil servants (immigration officers) Destitution of employment relationship. Monetary fines and criminal penalties. 70

71 USA Immigration Compliance I-9: check work authorization for every employee Sanctions: monetary fines and possible criminal penalties $275 to $11,000 per unauthorized worker E-Verify State laws 71

72 Canada Compliance Government Entities: Canada Border Services Agency ( CBSA ) Citizenship and Immigration Canada ( CIC ) Human Resources and Skills Development Canada/Service Canada 72

73 Canada Compliance Ensure compliance with terms and conditions of employment originally offered to employee Non-compliance = bar from accessing Temporary Foreign Worker Programs and Disclosure on Website 73

74 Canada Compliance Employer to ensure Foreign National legally entitled to work; must not work without permission Penalties = up to $50,000 fine and/or two years jail Penalties for misrepresentation = $100,000 fine and/or five years jail Removal of Foreign National and up to two years prohibition on future entry 74

75 Netherlands Compliance Companies can be fined up to 8,000 per illegal employed. Increased to 12,000 for a second offence Per 1 January 2013 fine will increase to 12,000 (first offence), 24,000 (second offence) and possibly shut down operations in case a company has been in breach several times Principle of ultimate liability Violation can result in withdrawal of issued work permit /denial of future applications 75

76 Nigeria Compliance No prescribed penalties for breaching the provisions of the immigration act, but there are penalties that apply in practice. 76

77 UAE Compliance Ensuring each individual Holds a valid work authorization and residency permit Holds the appropriate authorization in light of his role and the work being undertaken Is aware of the immigration regulations and the restrictions applicable for the type of authorizations held. 77

78 Qatar A Right to Work? Valid permits Valid activities Common sponsor and employer Penalties 78

79 China Compliance New regulations effective in July 1, 2013 Increases fines for foreign nationals and employers/sponsors Foreign nationals may be subject to detention, deportation, and barred from re-entry 79

80 China Compliance Employers with poor records may be prevented from getting future approvals Tightened enforcement nationwide 80

81 India Compliance If intending to stay in India for longer than 180 days, the individual must get registered with the FRRO within 14 days of arrival In some locations the individual should get his/her addresse(s) verified by the local Police before getting registered with the FRRO 81

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