Insight

Issue Spotting Guide for Assessing Outbound from U.S. Travel Issues

This guide is intended to serve as a resource for management on travel and immigration-related concerns.

Issue Spotting Guide for Assessing Outbound f
Neil S. Dornbaum

Neil S. Dornbaum

March 9, 2018 01:12 PM

This guide is intended to serve as a resource for management and human resources representatives when making decisions and advising employees/management on travel and immigration-related concerns. The rules regarding immigration requirements are very complex and always changing. Therefore, the key to maintaining immigration compliance for a viable workforce is to be proactive in planning and issue spotting when employees are traveling or being evaluated for hire, promotion, or transfer to a different business area or worksite.

Current Trends in International Immigration

Like the U.S., governments all over the world are focusing more resources on immigration enforcement and security screening. Many countries are concerned about the security of their citizens and the protection of local wages and working conditions. Immigration agencies worldwide are instructing their officers to extensively question visitors as to the purpose and duration of their trip and carefully scrutinize whether the proposed activities require a work visa. In cases where officers believe that the traveler could be performing work or providing services that could adversely impact the local labor market, officers have been identifying individuals in the system and often advising them that they will not be able to return without a work visa or denying admission altogether until the traveler returns with a work visa.

Therefore, it is important for employees to seek guidance from human resources representatives and counsel as early as possible if there is the possibility that they may have to travel abroad for business. With advance notice, human resources will be able to engage immigration counsel to determine whether a visa or any other travel document (e.g., a travel letter) is required, advise as to the best way to schedule/structure the trip, assist the employee in securing the necessary clearances, and assure that travel dates accommodate the need to first secure any required immigration compliance documents.

Is a Visa Required? Travel Authorization vs. Work Authorization

As a general rule, it is important to observe the distinctions between travel authorization and work authorization. The fact that an individual may have travel authorization (or a visa waiver) to enter a specific country does not always mean that s/he will also have work authorization after arrival. Therefore, it is not only important to determine the employee’s travel destination, but also their planned activities while in that country.

i. Travel Authorization

Under the immigration laws of most countries, there are classes of individuals who are visa-exempt and others who must present a visa in order to enter a country. This is often determined by country of nationality. For example, U.S. citizens do not generally require a visa in order to visit many EU nations as tourists or business visitors.

Visa-exempt travelers are often limited in terms of the number of days that they can spend in that country and the types of activities that they can perform. For example, while U.S. citizens can visit many EU countries as tourists or business visitors without a visa, they are not permitted to perform work, and their stay is limited to 90 days within a 180-day period. Therefore, it is not only important to determine any employee’s country of nationality and destination, it is important to determine the purpose of the trip, what they plan to do, and how long they plan to stay. In some cases, while the individual is technically visa-exempt, s/he may not be able to perform the activities s/he had intended (without a work permit and/or visa).

ii. Work Authorization

In general, the immigration laws of most countries have different requirements for different categories of travelers, namely tourists/business visitors and individuals whose activities will constitute “work.” The definitions of “business visitor activities” and “work” vary from country to country. While as a general rule business visitors are typically allowed to attend business meetings, consult with colleagues, negotiate contracts, and attend seminars/conferences, any activities that exceed the scope of these activities could be considered “work,” depending on the definition used by the country of destination. It is very important to note that it is the scope and nature of the activities to be performed that is usually the determinative factor (not the duration of stay).

Accordingly, even if an employee is technically “visa-exempt” and may be allowed to enter a country without a visa, s/he may still need work authorization (i.e., a work permit, visa, or both) if s/he enters the country to perform activities that constitute “work” (even if the assignment is very short term). In many countries, work authorization is linked to different visa categories that specify the type of activities that the employee is authorized to perform and where the employee is authorized to perform those activities. In these cases, if the activities require work authorization, that fact would supersede the general rule that a visa is not required, and the visitor would have to first obtain the visa and then enter the country in that visa status before s/he is able to begin to perform the work.

Tips on How to Identify/Address Potential International Business Travel Issues

The type of work permit/visa required, application process, and associated timelines vary based on many factors. For human resources representatives, the most important information to identify is:

  1. Travel dates
  2. Country of destination
  3. Country of nationality
  4. Purpose of travel
  5. Activities to be performed
  6. Source of any remuneration or payment for travel expenses

Then, the next step would be to contact immigration counsel for more specifics.

For human resources representatives, the main concern would be to proactively identify any scenarios where work authorization could be required and/or when an assignment could be delayed because of the need to first obtain a visa and/or work authorization. Then, immigration counsel can advise as to what specific information is required and, after review of this information, advise whether a visa is required, what steps are required to secure the visa, and whether there are any timing concerns (in terms of assuming the assignment) that should be discussed with the employee/management before formalizing the assignment.

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Neil S. Dornbaum is a member of the firm of Dornbaum & Peregoy, LLC, which has offices in Millburn and Newark, New Jersey. His practice is limited to immigration and nationality law, with special emphasis on corporate and employment based immigration matters. He has been chair of the NJ Chapter of the American Immigration Lawyers Association (AILA); chair of the NJ State Bar Association’s immigration nationality and Americanism committee; chair of the American Bar Association’s general practice section’s immigration committee; and served on AILA’s board of governors and as a commissioner and member of advisory committee of the ABA “Commission on Immigration.” He can be reached at Dornbaum@immigrationlawyersnj.com.

Kathleen M. Peregoy is a partner in the firm of Dornbaum & Peregoy, LLC, in Newark, New Jersey. She has been practicing corporate/commercial/transactional law for more than 30 years. She is a past-chair of the NJ State Bar Association’s immigration nationality and Americanism committee; member of the NJ State Bar Association’s pipeline diversity committee; member of the NJ State Bar Foundation’s co-sponsorship oversight committee; and member of the legal studies advisory board at Berkeley College, as well as an adjunct professor of international business law. She can be reached at Peregoy@immigrationlawyersnj.com.

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