Multi-National Companies Doing Business Abroad: Avoiding Common Immigration Business Pitfalls

Transcription

1 Multi-National Companies Doing Business Abroad: Avoiding Common Immigration Business Pitfalls Wednesday, March 30, 2011

2 Introduction 2

3 Presenters Moderator Robert C. Divine, Shareholder, Baker, Donelson, Bearman, Caldwell & Berkowitz, PC, Chattanooga, Tennessee, USA 3

4 Speakers Renato Canizares, Partner, Demarest e Almeida Advogados, San Paulo, Brazil rcanizares@demarest.com.br Ellie Dunne, Solicitor, A&L Goodbody, Dublin, Ireland edunne@algoodbody.com 4

5 Speakers Sarah Harrop, Managing Associate, Addleshaw Goddard LLP, London, England Emma Higham, Senior Associate, Clyde & Co. LLP, Doha, Qatar 5

6 Speakers Sara Khoja, Senior Associate, Clyde & Co. LLP Dubai, United Arab Emirates Vickie Leung, Associate, Deacons, Hong Kong 6

7 Speakers Sasha Štěpánová, Lawyer, Kocián Šolc Balaštík, Prague, Czech Republic Jeffrey Wilson, Counsel, Jun He Law Offices, Shanghai, China 7

8 Business Visits: The Worldwide Conundrum Activities, duration Special exceptions Example of rules: Visa and entry process Visa waiver: countries and conditions Transition to employment status Consequences of non-compliance Company policy considerations 8

9 Employment and Dependent Visas A World Tour 9

10 Ireland Work Assignments EEA nationals - no work permit required Work permits Green card permits Intra-company transfer permits Dependants Right to reside but must obtain work permit independently 10

11 Ireland Recent Immigration Developments Recent European Case Law Zambrano case implications for the rights of parents of EU citizen children Immigration, Residence and Protection Bill 2010 Long term residency for green card permit holders 11

12 United Kingdom A Period of Change in the UK Immigration System The Good Easier for investors to settle in the UK New prospective entrepreneurs visitor category Greater flexibility for entrepreneurs New visa for people with exceptional talent in science or the arts 12

13 United Kingdom A Period of Change in the UK Immigration System The Bad New annual cap on work visas Cap does not apply to: intra company transferees roles with a salary in excess of 150,000 visa extensions applied for in the UK Work visas available only for 'graduate' level roles 13

14 United Kingdom And Finally The Ugly Closure of Tier 1 (General) category for highly skilled migrants BUT Tier 1 (General) visa holders will be able to extend their visas Intra company transferees - maximum stay in the UK of five years 14

15 Czech Republic Business Migration Issues What is the intended role: regional/national business visit or long term stay Company officer or employee differences in documentation Implications of entering the Schengen zone - issues for non EU citizens 15

16 Czech Republic Business Migration Issues Importance of long-term careful planning to meet deadlines One client's frantic story Paying attention to detail, it's essential to supply correct form of documents 16

17 Qatar Different Approaches to Short- and Long-Term International Visits and Work Assignments Same approach irrespective of assignment term International/local secondment/ outsourcing not recognised/permitted Definite/indefinite employment contracts 17

18 Qatar Work Authorization of Dependants Right to reside, but not to work Work permit required to work Exceptions 18

19 Qatar Important Recent Immigration Developments in Some of the World's Most Active Markets Greater immigration flexibility for visiting UAE residents Greater immigration controls on some nationals Legal/regulatory amendments expected for

20 United Arab Emirates Short Term Mission visas Business visas 20

21 United Arab Emirates Work Authorization for Dependents Sponsoring dependants Permits for wives Permits for minors Permits for students 21

22 United Arab Emirates Liberalisation Ability to transfer jobs Part-time working Retirement ages 22

23 Long-Term Visas China Z visa: resident visa / work permit Secondment issues Foreign experts Geographic and entity specific Hong Kong, Macao, and Taiwan resident; Overseas Chinese Dependents 23

24 China Developments Legislation April 2009 Shenzhen regulations April 2010 Amendment to PRC Exit and Entry Regulations for Foreign Nationals Restrictions on representative offices Guangdong Interim Measures on Management Services for Foreign Nationals Exit and Entry Management Law (draft) 24

25 China Developments Trends Tighter enforcement generally Enforcement of educational and work experience qualifications Continuing disparities among local practices Preferences for certain types of employees and companies 25

26 Hong Kong An Employment Visa Application May Be Favourably Considered if: Good education background; normally a first degree in the relevant field; in special circumstances, good technical qualifications, proven professional abilities, and/or relevant experience and achievements supported by documentary evidence 26

27 Hong Kong Genuine job vacancy Confirmed offer of employment in a job relevant to academic qualifications or working experience that cannot readily be taken up by the local work force Remuneration package including income, accommodation, medical, and other fringe benefits, is broadly commensurate with the prevailing market level for professionals in Hong Kong 27

28 Hong Kong To apply for employment visa, must be sponsored by a Hong Kong entity 12 months for first time application, then renewal at pattern Legal spouse and unmarried children under 18 years old can apply as dependants to Hong Kong 28

29 Hong Kong Dependants length of stay will be linked to that of their sponsors (i.e., the one who obtains the employment visa) Dependants are not prohibited from taking up employment in Hong Kong 29

30 Brazil Visas that Allow Foreign Citizens to Work in Brazil Technician visa (most common are valid for 90 days or one year, without employment agreement with a Brazilian Company). Temporary visa item V (valid for two years); Permanent Visa (investors, officers, and Brazilian citizen s husband/wife); 30

31 Brazil Dependents: usually granted with a visa with the same validity as the holder of the main visa (temporary or permanent); Law 7.064/82 applied to employees hired or transferred to work abroad Company must apply the Brazilian labor legislation in what it is more favorable than the local law, as well as other specific provisions related to the work rendered abroad (possibility of early return, vacations in Brazil, etc). Time of work abroad is considered for social security and other effects in Brazil. 31

32 Brazil International Agreements Entered into with Argentina, Paraguay, Uruguay, Chile and Bolivia Citizens of Argentina, Paraguay, Uruguay, Chile, and Bolivia have a specific arrangement for establishing their residence in Brazil, and consequently being allowed to work in Brazil without having to obtain a work visa, subject to the labor rights provided by the Brazilian law 32

33 Work Assignments USA Temporary and permanent classifications: International ownership or transfer Merit (extraordinary, professional, shortage, training) Industry-specific (agriculture, performers, etc.) Dependents Accompany (not parked alone), free school, no work (except transferee spouses) Cohabitating partners visitor visa 33

34 USA Temporary Process Sometimes preliminary petition in USA Visa processing at consulate, with electronic application, biometrics and interview Extensions, change of status, renew visa Permanent process (Labor certification) Petition for eligibility Wait for visa number (0-9 years) Admissibility processing with family 34

35 USA Recent Developments Audits, on-site visits, enforcement Deemed export restrictions Narrowing view on transferees, professionals, labor certifications Possible Future Changes More numbers Legalization, identity-based limits 35

36 Global Immigration Compliance Checklist 1. Build a culture of compliance, including awareness of possible penalties (return, future inadmissibility, criminal). 2. Be willing to advocate positions as long as parties will be honest about facts and intentions. Don t stretch the truth. 3. Refrain from hiring or locating any worker in a country without authorization to work there. 36

37 Global Immigration Compliance Checklist 4. Centralize strategic, compliance, coordination and tracking. 5. Keep records of travel in each country, for tracking and backup. 6. Check on immigration consequences from changes to corporate structure and ownership, job duties, job location. 7. Plan ahead with the end in mind. Visa application arrangements, long-term maximums, limited numbers per year, etc. 37

38 Global Immigration Compliance Checklist 8. Present things the way the agency likes to see them. Use professionals who know the system and the people. 9. Understand the forms, and articulate and document the obvious for agents with little familiarity with your business. Touch each point of eligibility, so it s easy to approve. 10.Address joint representation and conflicts of interest. Decide who pays for what. 38

39 Global Immigration Compliance Checklist 11.Consider the tax and benefits consequences of immigration alternatives. 12.Expect rules to be fuzzy and changing. 13.Be ready for verification by agent s requests, background data mining, and on-site visit. 39

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