Going Global: Immigration Options Around the World ⋆ Borene Law Firm, P.A.

GOING GLOBAL: IMMIGRATION OPTIONS AROUND THE WORLD

by Scott M. Borene*

The growing globalization of the world economy and the world’s labor markets are undeniable facts. This is especially true for employers and workers in the most globally competitive, high value-added, high skill and high tech industries. Immigration lawyers play a crucial role facilitating the legal and efficient movement of key global talent across international borders. Considering immigration globally, it is important to remember that the United States is not only a destination country, but also a source country for temporary and immigrant workers.

Just as any experienced U.S. immigration lawyer will advise U.S. employer clients to plan immigration and visa compliance well in advance of any temporary or permanent hiring of a new international worker for a U.S. payroll, likewise, any non-U.S. employer (or foreign branch or subsidiary of a U.S.-based company) is well advised to plan for immigration and work permit compliance in other countries before putting U.S. or third country nationals on a foreign payroll.

Many American immigration lawyers first encounter international immigration issues when business clients call with requests for assistance in getting temporary work permits and visas for U.S. citizen employees being transferred abroad. It will come as no surprise that most of the world’s developed countries have, like the U.S., established bureaucratic systems to control access to their local labor markets. The purpose of this article is to provide some background and a brief practical introduction to immigration options around the world, with particular attention to the temporary work permit and visa issuance process.

Before commencing work in any foreign country, it is essential for both the employer and the prospective expatriate employee to obtain authoritative independent advice from a person with reliable expertise in immigration law compliance in the destination country. In most cases, the best source of such expertise will be a professional immigration lawyer. In many cases, a home country immigration lawyer will involve local immigration law counsel in the destination country to assist with the immigration project as appropriate. In all cases, careful evaluation of the available options and preparation of required documents as far in advance of the international assignment as possible will benefit all parties involved.

Answers to Frequently-Asked Questions about Immigration Around the World

1. How many categories of temporary work permits or temporary work visas for foreign nationals are available?

The number of work authorization options varies greatly from country to country. The range extends from China with only one category to countries with a handful of work categories to other countries with 10 to 20 or more temporary work options (e.g. U.S., UK, Canada, Netherlands, Italy, Japan).

2. What government ministries or agencies are involved in the temporary work permit process?

For most countries at least two or three distinct government agencies are involved. Usually one office is tied to a Labor or Employment Ministry, which oversees local labor market protection regulations, and a second office, (usually a part of a Ministry of Justice, Law Enforcement or Immigration), monitors general immigration policy compliance. Also, for most countries, consular offices are involved in cases requiring visa issuance. Occasionally, other government agencies are involved. For example, in India the country’s central bank, the Reserve Bank of India, plays a critical role in temporary work sponsorship.

3. What are the most frequently used options for international intracompany and affiliate cross-border transfers of key personnel?

Most countries provide specially favored treatment for certain qualified multinational corporate transferees. Factors that often lead to more favorable treatment include: executive or managerial status, a high salary, a high level of education, a well-known multi-million dollar international employer-sponsor, a tie-in with foreign direct investment and job creation or other significant economic benefit to the destination country.

4. What temporary work permit and visa options are most frequently used for newly hired international workers?

Visa options for newly-hired international employees vary greatly from country-to country. In general, high education, high salary and specialized skills facilitate temporary work sponsorship for new hires. Many countries impose local labor market tests as a part of the temporary work sponsorship process. Often, an employer must provide evidence of the unavailability or scarcity of qualified workers in the destination country before being authorized to “import” international talent.

5. What basic procedure is used to obtain a temporary work permit?

This varies greatly from country to country. Some countries have a very elaborate multiple-step procedure (e.g. U.S., U.K.) while others operate more simply with effective decision making vested in case by case discretion in a single office (e.g. Australia, Mexico, Hong Kong).

6. What conditions or restrictions apply to workers on temporary work permits?

In most countries, temporary work permits are limited to specific employers and specific positions and any changes must be authorized by appropriate government authorities before any change in employment occurs. Non-compliance by the worker can result in deportation, fines or even criminal prosecution of the worker.

7. What conditions or restrictions apply to employers sponsoring temporary workers?

In most countries, temporary work permits are limited to specific employers and specific positions and any changes must be authorized by appropriate government authorities before any change in employment occurs. Non-compliance by employers can result in delay or denial of future visa applications, fines and in some cases, even criminal prosecution of employers and their executives and officers.

8. How long is a temporary work permit valid?

Validity periods vary greatly from country to country and category to category. Most allow at least 1 year initial validity with renewals or possible extensions of up to at least 3 or 4 years. Many allow eventual conversion into a permanent or indefinite work authorization category, usually combined with a change to a permanent residence immigration status.

9. Is the temporary work permit procedure a separate process from the temporary work visa procedure?

This varies from country to country, but most countries have either a separate formal Labor Department Approval process or integrated consideration of local labor market protection concerns as a part of the temporary work sponsorship process.

10. How long does it typically take for a temporary work permit or a temporary work visa to be issued?

This varies considerably, but for most countries the most frequently used temporary work permits can be obtained within a range of from 2-3 weeks to 2-3 months. In many countries some type of expedited or emergency processing is available in special cases.

11. What is the degree of difficulty or typical probability of success of well-prepared applications for the temporary work permit and temporary work visa categories most frequently used by employers of foreign nationals?

For most categories in most countries, well-documented, well-qualified cases enjoy good success. Factors improving success prospects include the employer’s positive past “track record” using the system, size of employer (larger is better), salary level (higher is better), managerial, executive or key technical or proprietary skills of the sponsored worker and higher formal education of the sponsored worker (especially Bachelor’s degree or higher). Many countries target certain source countries for stricter or more liberal treatment.

12. What are the leading methods successfully used to obtain the right of permanent residence for international workers?

This varies greatly from country to country. In many countries, such as the UK, Netherlands and Ireland, converting a temporary work sponsorship to permanent residence is relatively easy. After the initial approval in the appropriate temporary work category, it is mostly a matter of accumulating sufficient time of residence in the destination country and most conversions to permanent residence are approved. In other countries, such as the U.S., the process of obtaining permanent residence is entirely separate from temporary sponsorship. Often, in the U.S. obtaining temporary sponsorship is relatively easy and fast, but obtaining permanent residence is slow, uncertain and can be much more costly than temporary sponsorship.

13. Is special consideration for visas or work permits given to persons of certain nationalities?

Most countries profess a general policy of equal treatment to applicants from all source countries. However, many countries officially (and unofficially) do in fact accord different treatment to applicants of certain favored or disfavored nationalities.

14. What tax issues do foreign temporary workers or their employers need to be aware of?

Advance tax planning is strongly advised before any international assignment. Typical tax issues include qualifying periods for tax residence, treatment of foreign source income, consideration of income tax treaties, and Social Security Tax Equalization Treaties (Totalization Agreements).

15. What local employment law issues do temporary workers or their employers need to be aware of?

In most countries, foreign workers receive the same treatment and protections as local employees. Note that many countries in the world do not follow the U.S. model of “employment at will”. Many U.S. employers have been unhappily surprised by the extensive financial compensation or penalties that other countries require for discharged workers.

16. What other potential problems should foreign temporary workers or their employers be especially aware of?

Even the most experienced sailors use the services of a local harbor pilot when entering unfamiliar ports. Immigration lawyers guiding employers or workers into other countries are likewise well-advised to obtain good advice from reliable local sources on other issues related to international employment (e.g. Special Customs Rules (Argentina and Mexico), Special Housing Concerns (Israel), Repatriation Costs (Hong Kong), and strict Anti-Discrimination laws (Australia)).

17. Can immigration lawyers assist with the work permit process?

In all of the countries surveyed, qualified immigration lawyers have a role to play in advising and helping employers to submit approvable cases to the appropriate government authorities. In most cases, the services of qualified destination immigration counsel can be obtained through the employer’s home country immigration lawyer or global immigration counsel on a collaborative co-counsel, referral or special local counsel basis.

18. Do multinational employers typically use immigration lawyers to assist with the work permit process?

For most of the countries surveyed, local immigration lawyers report that multinational employers either routinely use the assistance of local immigration counsel or increasingly are using immigration lawyers to help with the visa/work permit process.

19. May members of a temporary worker’s household be authorized to work? (e.g., spouse, children, parents, personal servants)

This varies greatly from country to country. An increasing number of countries including UK, Canada, Australia and others allow the spouses (and in some cases, also the children) of most authorized temporary workers free and unrestricted access to local employment. Others expressly forbid employment by members of the temporary worker’s family, unless the family member has independently qualified for temporary work sponsorship. Still others, like the U.S. allow the spouses (e.g. L-1, E-1, E-2 and J-2) and children (e.g. J-2) of certain temporary workers to work with minimal restrictions, but forbid other dependents to work unless they independently qualify for temporary work sponsorship in their own right.

20. How can family members of a citizen obtain the right to permanent residence? (e.g., a foreign-born spouse, parent, or child etc.)

Most countries facilitate permanent residence and/or citizenship for a foreign-born spouse or child of a citizen. Some countries have broad definitions of dependents that may include parents, grandparents, siblings, adult children and economically or medically dependent family members.

21. Is it possible for foreign-born persons to acquire full citizenship? (If yes, what is the required procedure?)

This varies from country to country. Most countries have some type of naturalization process whereby a non-citizen can acquire the nationality of the host country.

22. What is the current law and policy regarding dual nationality?

This varies significantly from country to country. Some countries are extremely hostile to the concept of dual nationality and attempt to forbid it. Other countries are very tolerant and fully accept dual or multiple nationality. In recent years, there appears to be a trend toward increasing acceptance of dual nationality. Year by year, additional countries are moving away from absolute hostility to dual nationality to reluctant tolerance or outright acceptance of multiple nationality.

23. What are the current requirements to qualify for asylum or refugee status

Most countries profess to follow international principles (especially the 1951 Geneva Convention) in granting or denying refugee or asylum status. However, the actual fact-based adjudication standards vary greatly from country to country and case to case.

Conclusion

Before crossing any international border, the best practice is to check with expert immigration counsel and government sources as appropriate to obtain the most up-to-date information about current visa and travel documentation rules. Immigration and visa policies and practices are dynamic and sometimes politically volatile. In all cases, careful immigration and visa compliance planning before international travel can help minimize problems and delays.

*Scott M. Borene is the Founder and Managing Attorney of Borene Law Firm, P. A. The immigration lawyers now with Borene Law Firm have more than 70 years of combined professional experience helping clients with U.S. and global visa and immigration projects. Scott Borene was selected by other lawyers as 2018 Lawyer of the Year in Immigration Law as noted by The Best Lawyers in America and Minnesota Monthly magazine. He has been repeatedly recognized as one of the Top 20 Lawyers in the World “most highly regarded by other lawyers” in corporate immigration law. He is listed in the Best Lawyers in America and acknowledged as an Immigration Law Super Lawyer. He is often called upon to act as an “expert’s expert” to advise other experienced immigration lawyers on complex immigration matters. Scott Borene is a past Director and a past Member of the Board of Governors of the American Immigration Lawyers Association (AILA), the world’s largest professional organization of immigration lawyers. In 2002, he was the founder and Conference Chair of AILA’s Global Immigration Summit in New York City, the world’s largest conference of global immigration lawyers. He has written many articles on immigration law and is a frequently invited expert speaker on immigration topics at AILA National Conferences and other major national and international legal conferences. He is the Editor-in-Chief of many leading professional reference books for immigration lawyers including The Global Immigration Guide: A Country-by-Country Survey and The Global Immigration Guide: Crossing Borders for Business, AILA’s most comprehensive books on Global Immigration. He served as Editor-in-Chief of Immigration Options for Academics and Researchers (2005), AILA’s leading Expert Occupational Handbook on immigration issues in higher education. He is the author of Dr. Yes – Some Practical Strategies for the Diagnosis and Treatment of Immigrant Visa Cases of Health Care Professionals. Scott Borene attended Harvard University in Cambridge, Massachusetts as a National Merit Scholar. After graduation from Harvard, he attended William Mitchell Law School in Minnesota. Scott Borene has more than 30 years of experience helping employers obtain work visas for key international talent. Scott Borene can be reached at sborene@borene.com.