Global Immigration and Mobility Handbook

Our global client care model includes timely alerts on major changes in global mobility, immigration law and practice; a quarterly newsletter outlining global developments; and regular seminars and workshops on a broad range of issues:

• Workplace compliance, including counseling, trainings, audits and litigation defense related to worksite enforcement and related employer initiatives
• Advocacy on legislative reforms and regulatory changes, and agency practices around the world
• Design and implementation of programs to sponsor foreign nationals for temporary and permanent work and residence authorization, accept immigrant investors, and schools and training programs to accept foreign students
• Coordination among members of our global team to obtain visas, residence and work permits from consular offices or to execute transfers to the countries where you do business
• Transfers of staff to existing and new multinational operations, including employees with specialist and technical skills, executives and managers, and new employees hired from overseas
• Large-scale transfers, including managing the immigration consequences of reorganizations, mergers, acquisitions, reductions in force, redundancies and related restructuring
• Transfer-related immigration matters, including permanent residence, citizenship and relocation of spouses and other dependents
• Case management, including maintaining employee records for visa renewals, providing status reports, and planning and coordinating global immigration requirements
• Employment, employee benefits and tax advice in relation to transferring staff, including structuring and auditing the employment relationship to ensure compliance with legal and tax obligations and to avoid obligations to prevent unauthorized employment
• Ancillary transfer issues, working with a range of professionals in relation to shipping personal belongings and customs and excise duties
• Establishment of new business operations abroad, including transferring senior personnel to establish operations, and related corporate and securities and taxation advice

Further information

• Baker McKenzie's Global Immigration & Mobility Practice: Learn more about our market-leading Immigration and Mobility Practice and review the latest resources for global mobility professionals to mobilize talent.
• The Global Employer: Global Immigration and Mobility Quarterly Update is a quarterly publication focused on the latest legal updates affecting global employee mobility.
• The Accidental Expat: The Mobile Modern Workforce offers best practices for managing frequent cross-border travelers in your international organization.
• The Global Employer: Focus on Global Immigration & Mobility provides employment-based immigration requirements for 27 countries.
• The Global Employer: Focus on US Immigration & Mobility is a desk-side guide of employer obligations related to moving foreign nationals under US immigration and employment law.
• Global Mobility Video Series offers easy-to-digest videos discussing key issues relevant to managing a global workforce.
• Your Roadmap to a Flexible Future provides practical legal guidance for driving a hybrid remote workforce. 

The global movement of employees is essential to multinational organizations doing business in or looking to expand operations to different countries. Getting the right people to the right places at the right time with proper support in a lawful manner is critical to the success of global businesses. HR professionals and corporate counsel are confronted with a maze of legal issues that must be considered before moving employees across borders.

When can they go? How long can they stay? What can they do while there? How can they be paid? What happens to their employment benefits during the trip? Who will be the employer while abroad? Which country's laws will apply? What are the tax consequences for the employer and the employee? What are the employer's responsibilities for accompanying family members?

These issues confront employers dealing with both short-term business travelers, as well as employees on long-term assignments. This is a global mobility handbook to help guide you through the process.

About The Global Employer: Focus on Global Immigration and Mobility

The next section of this handbook identifies the key global immigration and mobility issues to consider, regardless of the destination countries involved. These are immigration, employment, compensation and employee benefits; income taxes and social insurance; and global equity compensation. The final section is organized by jurisdiction. For each jurisdiction, this handbook provides an executive summary, identifies key government agencies and explains current trends before going into detail on visas appropriate for short-term business travel, training and employment assignments. Other comments of interest to global HR and legal teams are also provided.

Global labor, employment and employee benefits — how we can help

There is often a gap between business necessity and practical reality when it comes to moving executives and other personnel to new countries. Employers must anticipate and deal effectively with a host of interconnected legal issues and individual concerns.

Baker McKenzie offers comprehensive legal advice related to global immigration — delivered locally around the world. We help employers plan and implement global transfers and provide on-site legal support to companies and employees in most major business communities around the globe.

Our network of global immigration, employment, international executive mobility, global equity services and other lawyers in a variety of additional disciplines (e.g., tax and corporate) can assist you both pre- and post-transfer to ensure the following:

Baker McKenzie has the unique ability to develop and implement comprehensive global immigration strategies and solutions to address the many needs of moving your employees globally.

Our knowledgeable professionals are qualified and experienced in the countries where you do business.

Immigration laws vary from country to country. Although the specific names for visas and the associated requirements differ, there are common patterns and trends — especially for countries balancing the interest of engaging in global commerce against protecting local labor markets and national security.

This chapter identifies the common patterns and trends. More specific country-by-country information can be found in the Jurisdictional Chapters section.

Current trends

It invariably takes longer than expected to secure all the authorizations required before an employee can travel to another jurisdiction to work.

The best-laid plans often go awry. Sometimes short-term business travel is the only way to meet an immediate need. However, the visas that are quickly available for such trips are generally not intended for productive work or long-term assignments.

In the interest of national security, and with concerns of protecting local workers, many countries are more actively enforcing prohibitions against unlawful employment. Penalties against employers are as common as penalties against foreign national employees. These penalties are increasingly including criminal punishments, rather than just civil punishments. Employers should obey both the spirit and letter of the law in this area, as failure to do so may damage an employer's reputation with government agencies, impact the employer's future visa requests and potentially result in reputational damage.

With these points in mind, the employer should plan ahead and not rely on what may have seemed like quick solutions in the past. The use of tourist visas for business travel is not a solution. Problems only increase when family members accompany the employee on a holiday visa and then attempt to enroll children in local schools, or obtain a local driver's license. Shipping household possessions and pets is also ill-advised at this stage. Many countries will ultimately require the foreign national to depart and apply for the proper visa at a consular post outside the country — often in the country where the foreign national last resided or their country of nationality.

Business travel

Visitor visas

Multinational corporations routinely send employees to visit colleagues and customers in different countries. How easily this can be accomplished often depends as much on the passport carried by the employee as the country being visited. The length of the trip and the scope of activities undertaken can be key, with visa solutions for short trips under 90 days generally more readily available.

Travel for tourism and travel for short-term business visits are often authorized by the same visa. Although, it is generally only true when the scope of the intended business activity does not rise to the level of productive employment in the country being visited.

Sourcing compensation locally during the visit is routinely prohibited, but the focus usually extends beyond the duration of the trip or the source of wages. Visiting clients, attending meetings and negotiating contracts are commonly permitted. Providing training and handling installation or post-sales service are commonly prohibited without special permission.

Visa waiver

Many countries have provisions that waive the normal visa requirement for tourists and short-term business visitors. These visa waiver benefits tend to be reciprocal and are limited to citizens of specific countries (i.e., those that extend similar benefits to local citizens). Additional requirements (e.g., departure tickets) are sometimes imposed. Furthermore, the countries that enjoy visa waiver privileges frequently change, making it important to check for updated information with a country's consular post before making travel arrangements.

Training

Employers with experienced staff in one country invariably want to bring newer staff from abroad for training. This is especially true when the R&D work happens in one country, the manufacturing is undertaken in another, post-sales installation and support are handled by regional centers, and the ultimate users are spread around the world.

Many countries offer specific visas designed for training assignments (e.g., Brazil and Japan). Some of these authorize on-the-job training that involves productive work. Others are limited to classroom-type and observation training and limit or prohibit productive work. Visas designed for employment assignments can often be used in training situations, if on-the-job training involving productive work is desired and not otherwise permitted by a pure training visa.

Employment assignments

Visas for employment assignments are invariably authorized. However, the specific requirements vary widely.

Work permits

Most countries are keen to protect their local labor market. A recurring solution is to impose some kind of labor market check or test as a prerequisite to issuing a visa for an employment assignment (e.g., Malaysia). These are often handled by a ministry of labor or equivalent government labor agency that is distinct from the foreign affairs governmental agency that issues visas at consular posts. In many countries, the labor agency's authority is framed in the context of a work permit.

A work permit, or equivalent document, is generally required for employment assignments. However, it is also common for countries to have visas that are exempted from the work permit requirement (e.g., Belgium).

Who is exempted depends on the country. For example, countries may exempt employees that are transferred within multinational companies, business investors and high-level/key employees.

Education, especially higher-level education in sought-after fields, can often be used to qualify for employment assignments. Academic transcripts showing completed studies are frequently required, and letters verifying employment experience can be similarly useful.

Residence permits

Concern over national security is becoming increasingly common. Background clearance checks and the collection of biometric data for identification purposes is common today. A number of countries have already addressed this concern by instituting a reporting and registration requirement. This reporting requirement can be satisfied in the form of a residence permit, usually handled by a ministry of justice, ministry of interior or an equivalent agency. In other cases, or in combination with the requirement above, employees must report to local police authorities upon arrival into the country (e.g., France and Italy). These requirements are equally as important to maintain the status to lawfully live and work abroad as obtaining the proper visa.

Citizenship-based visa options

Treaties and bilateral agreements often give special privileges to citizens from specific countries (e.g., benefits for EU and European Economic Area (EEA) citizens within the EU/EEA region and benefits for citizens of Canada, Mexico and the US under the North American Free Trade Agreement). Be careful not to overlook these sometimes-hidden gems when considering alternative visa strategies.

Other concerns

An increasing number of countries are requiring medical or physical examinations, aimed at limiting the spread of contagious diseases (e.g., Saudi Arabia, China and Russia).

Most countries offer derivative visa benefits to accompanying family members. However, what constitutes a family member varies across jurisdictions. Family members often include spouses and unmarried, minor children. An increasing, but still small, number of countries offer derivative benefits to different-sex life partners, while other countries also extend these benefits to same-sex partners (e.g., Canada and the Netherlands). Some countries consider family members to include more distant relatives (e.g., parents in Colombia) and older offspring, generally if these relatives are dependents of the principal visa applicant's household.

Generally, documents submitted in support of the immigration process need to be translated into the local language. Many countries require that public documents (e.g., articles of incorporation, company registration, birth certificate and marriage certificate) be authenticated by attaching an internationally recognized form of authentication or "apostille" (e.g., Spain).

Further information

See the Jurisdictional Chapters section of this publication for more specific information regarding specific countries' visa requirements. Please contact your Baker McKenzie attorney for specific guidance on current legal requirements and how they apply to your company's needs.

Integral to mobility planning is identifying and establishing the appropriate employment structure for an employee being sent to work in another jurisdiction. For planning purposes, it is important to keep in mind the laws of the jurisdictions involved, the business goals related to the foreign assignment and the individual's situation. The legal risks and opportunities in structuring these relationships differ significantly around the world, and the complexity is further compounded by the intersection with other areas of law, including tax, corporate and immigration. All of these issues must be considered holistically along with the company's business model and objectives.

Employment structures for international transfers

The primary question to ask is, who will be the employer? That is, who will have the right to direct and control the employee's activities while working abroad? In general, multinational companies typically use one of the following employment structures to answer this question:

• Secondment: The employee remains employed by the home country employer and is loaned or seconded to work for an entity in the host country.
• Secondment "plus": This is a hybrid structure combining "secondment" and "dual employment" in which the secondment structure has been chosen and the employee remains employed by the home country employer, but the host country also requires direct employment by a local entity for immigration, tax or employment purposes.
• Transfer of employment: The employee is terminated by the home country employer and is rehired by a new employer in the host country.
• Global employment company: The employee is terminated by the home country employer and transferred to the employment of a global employment company (GEC). In turn, the GEC seconds the employee to work for an entity in a host country.
• Dual employment: The employee simultaneously maintains more than one active employment relationship during the course of the assignment (the employee works for two or more employers).

In addition to these five main structures, multinational companies sometimes use alternative structures. For example, in several European jurisdictions, it is possible to use a "dormant contract" approach whereby the employee's existing employment relationship is suspended for the duration of the foreign assignment, the employee is formally transferred to and becomes an employee of another company for the duration of the assignment, and then the employee's dormant contract is "revived" upon termination of the assignment and the employee's return to the original employer. In some jurisdictions, which impose restrictions on the use of fixed-term employment arrangements, this approach creates a risk of an indefinite-term employment relationship with the new employing company, even though the employment is structured as a fixed-term arrangement for the assignment period. Other possible structures include commuters, extended business travelers, putting the employee on a "leave of absence" for the duration of the assignment or terminating the employee and then rehiring them as an independent contractor.

Further information

Baker McKenzie's Global Employment and Compensation Practice works in coordination with the Global Immigration and Mobility Practice to help structure employment relationships for global mobility assignments that factor in the employment laws of multiple jurisdictions. They also assist multinational companies in developing corporate policies and practices for global mobility assignments, and guide employers on current trends and best practice solutions. They play a key role in pre- and post-acquisition integration on mergers, acquisitions and reorganizations, as well as redundancies and reductions in force.

For more information about engaging workers on the ground, ask about Baker McKenzie's Going Global Field Guide or speak to your local Baker McKenzie attorney.

A major concern for both expatriates and their employers is what compensation and employee benefits will be provided to the expatriate while they are on assignment. While many multinational companies have compensation packages and employee benefit plans that are designed specifically to cover the expatriate population, this is not the case for all companies. Some companies attempt to keep the expatriates on the same benefit plans and insurance policies as their other, stay-at-home employees. In other cases, the employer has to customize compensation and employee benefits for one or several expatriates to fit their particular situation. In short, there is no universal practice among multinational companies.

The factors that will influence the amount, type and design of the expatriate's compensation and employee benefits package include the following:

• The employment structure
• The jurisdictions involved
• The length of the expatriate's assignment
• The types of employee benefit plans currently provided by the employer
• Whether benefits coverage can be easily extended to the expatriate under the terms of the employee benefit plan; whether the expatriate will return home or go out on new assignments

Compensation and payroll

The two primary elements of an expatriate's compensation package are base salary and bonus opportunity. Understandably, there is no single approach or best practice for every case. Each expatriate situation is different, and how much the employer is willing to pay the expatriate in terms of base salary and bonus opportunity will depend largely on the employer's compensation policy, the value of the expatriate to the business, the expatriate's seniority and experience in the field, and other similar factors. Notwithstanding, in most cases, the expatriate's base salary on assignment will be no higher than their current base salary. Even if the assignment is deemed to involve more responsibility, employers are reluctant to increase base salary "just because" of the assignment and instead reflect any additional compensation in the form of bonus or expatriate allowances.

Handling base salary in this manner avoids the problem that may occur when an employer temporarily increases base salary during the assignment, and then wants to reduce the level of base salary at the end of the assignment to the former level. Often, such "up and down" movement is not successful, as the expatriate wants to keep the base salary increase upon their return to the home country and make it permanent.

Once the employer has determined how much base salary and bonus to pay the employee, the next question will be where and how the employee will be paid.

In the case of a secondment, for example, it is common for the employer to provide that the expatriate will remain on their home country employer's payroll, but may also be placed nominally on the host country employer's payroll (a so-called "shadow payroll" or "phantom payroll") so that local income taxes or social taxes can be remitted on behalf of the expatriate to the local tax authority. It is also common to split the pay of the expatriate on secondment, so that a portion of the compensation is paid locally to cover local taxes and expenses, while the bulk of the compensation is paid to the expatriate via direct deposit into their bank account in the home country.

With a few exceptions, there is no legal requirement regarding where the expatriate must be paid (that is, what payroll must cover the expatriate). More often than not, an expatriate can receive compensation in the host country, in the home country (e.g., direct deposit into a home country bank account that can be accessed in the host country) or a combination of the two. In some situations, however, local immigration or employment laws require that an expatriate working in the host country be paid from the local payroll, i.e., they must be paid in the currency of the host country by the host country employer. In other situations, it may be difficult for the expatriate to access any funds paid to them outside of the host country due to currency exchange controls, which makes a local payroll the only practical option.

Payroll by itself typically does not determine the employer-employee relationship. That is, a company does not become the expatriate's "employer" merely because the expatriate is on its payroll. Often, an expatriate sent to a jurisdiction will be put on the local company payroll as an accommodation (for example, to facilitate the payment of local income tax and social insurance taxes). Alternatively, companies are sometimes designated to serve as payroll agents for other companies merely because they have an existing payroll function and personnel who are familiar with the local payroll requirements. For example, the host company might pay compensation to the expatriate as a "payroll agent" on behalf of the expatriate's real employer in the home jurisdiction. Moreover, the home country employer might continue to cover the expatriate in the home country benefit plans, and might even continue to contribute to home country benefit plans on behalf of the expatriate, even though the expatriate is now employed by another company. Thus, the payroll location will not, by itself, determine who the expatriate's employer is.

Having said that, payroll is an important issue in connection with an expatriate assignment, since moving the expatriate to a new payroll must be handled successfully to maintain compliance with applicable reporting and withholding requirements.

Where compensation is delivered to the expatriate in the host jurisdiction, it will be subject to any applicable income tax and social tax withholdings, unless an exemption applies. Understanding local law is therefore critical to ensuring that the expatriate's payroll is structured correctly and is compliant.

Further information

For more information about structuring your expatriate workers' compensation and benefits, speak to your local Baker McKenzie attorney.

An employee who works abroad is always concerned about the possibility of increased income taxation and social taxation resulting from a foreign assignment. For example, will the employee be taxable in both the home country and the host country, resulting in double taxation of the employee's compensation? Whether this increased taxation is likely, and whether it can be avoided, depends on a number of factors, such as the length of time the employee will be working in the foreign jurisdiction, the type of work the employee will do while working abroad, the employee's citizenship, nationality or residency, and other similar factors. This determination will also need to take the following into account:

• The income tax, social insurance and other relevant laws of the home and host jurisdictions
• Special rules, if any, governing the cross-border transfer of employees in the home and host jurisdictions
• The provisions of an income tax treaty, social security totalization agreement or other international agreement between the home and host jurisdictions

The employer will be equally concerned with the issue of increased taxation, since many expatriates are covered by a tax reimbursement policy whereby the employer will be responsible for paying the employee's taxes that are greater than the employee's "home country" tax liability. The employer will also be concerned with avoiding a permanent establishment risk resulting from the activities of the employee working abroad — as the employer would otherwise become taxable in the host jurisdiction for the activities of the employee working there. In addition, the employer will be interested in the availability of a corporate income tax deduction for the employee's compensation and assignment-related costs or cross-charging these costs within the group. Finally, to the extent the employee is taxable in the host jurisdiction, the employer will want to confirm that the applicable withholding and reporting rules are followed, both in the home and host jurisdictions.

It is recommended to consult with international tax counsel to understand the rules for any other jurisdictions. It is also recommended to work closely with tax counsel to understand the potential application of these or similar provisions to the facts of any particular assignment.

Further information

For help with understanding the tax rules that apply to your employee's assignment, speak to your local Baker McKenzie attorney.

Equity compensation awards held by employees present issues when those employees become globally mobile.

As multinational employers increasingly seek to motivate and retain qualified executives and employees by offering equity-based compensation and, at the same time, transfer these individuals across international borders on short- or long-term assignments or for business travel or training, it is important to identify and address the tax, social security and legal impact of these international transfers on equity compensation arrangements.

Historically, while employers and tax authorities have generally had arrangements in place to determine and assess the US and foreign taxes owed on salary paid to internationally mobile employees, the proper taxation of income from equity compensation awards has sometimes been overlooked. Consideration has not always been given to the fact that equity award income has usually been earned over a period of one or more years, during which the equity award holder may have been employed and resided in a number of different countries, each of which may assert taxable jurisdiction over the award.

However, at present, both US and foreign tax authorities are aware of the potential trailing tax liabilities relating to income from equity compensation arrangements, and are increasing their attention on this area. It is, therefore, important for multinational companies that have granted equity compensation awards to globally mobile employees to identify the tax and social security issues affecting the taxability of income from these awards and to develop strategies for dealing with these issues while tracking international tax liabilities up front.

In particular, employers need to collect information and develop systems that will enable them to track and calculate the amount of the equity award income subject to taxation and, potentially, to employer withholding and reporting obligations in each applicable jurisdiction. They will also need to determine the extent to which any income tax or social insurance exemptions from withholding may apply in different employment transfer scenarios prior to sending employees holding equity awards on employment assignments to or from the US.

An essential component of any compliance model is a reliable data collection system to gather and monitor key details that will be useful in determining the US and foreign tax and social security treatment of a given transferee. At a minimum, such details include the following:

• The individual's citizenship
• US or foreign permanent residency status
• US or foreign visa status
• Time spent in each country during the periods over which the individual's equity awards have vested
• Whether the individual's employment transfer is intended to be on a short- or long-term basis (including if it will be for more or less than five years)

Additionally, it is necessary to track whether the entity (or entities) employing the individual outside the US is a US or foreign corporation and, if it is a US corporation, the state of the entity's incorporation for US Federal Insurance Contributions tax and, in some cases, state social tax purposes for US outbound employees.

Where a tax equalization or tax protection policy exists and income from equity awards is covered under the policy (some policies only cover regular wages or other specified items of compensation), it is necessary to be able to separately track the amount of equity award income paid to tax-equalized/tax-protected employees and calculate and pay both the US and foreign taxes actually due based on the individual's residency or citizenship status and the amount of home country taxes that would have been payable had the individual not gone on assignment.

For companies with a large internationally mobile population, it is important to track patterns of international transfer, develop models that will generally apply to common intercompany transfers (e.g., US to UK or India to US), and create assumptions about employment assignments and categories of employees that will facilitate the development of a system that is both compliant and workable.

Compliance with income and social security tax requirements is the key concern when equity award-holder employees transfer to and from the US.

However, regulatory considerations should not be overlooked. To the extent that equity awards are offered to employees while on international assignment within or outside the US, issuers of these awards must ensure that they comply with any securities law prospectus, registration or exemption filings and any applicable foreign exchange control, labor law, data privacy or other filings that may be necessary to offer equity awards under the local law of the country in which the assigned employee is resident. Compliance with the requirements of local tax-qualified regimes may also be desirable.

Furthermore, where employees are transferred to a new country after an equity award grant date, particularly where this transfer is on a long-term basis, it may be necessary or desirable to modify the terms of this award to comply with local law or gain the benefit of a favorable local tax regime. It is important to structure equity award grants to allow for flexibility to address legal issues that may arise should an employee be relocated after the grant date, while bearing in mind accounting issues and plan limitations.

For companies making new grants of equity awards on a global basis, a useful best practice is to adopt a single global form of award agreement that includes a country-specific terms appendix and a relocation provision. Then, if an award-holder goes on an international assignment after the grant date, the agreement's relocation provision gives the issuer authority to apply the terms set forth in the appendix to the agreement for the country of transfer (to the extent necessary to comply with applicable laws or administer the grant).

Further information

The Global Equity Services Practice, supported by colleagues advising on the taxation of expatriate assignments, works in coordination with the Global Immigration and Mobility Practice on global mobility assignments. Global equity services practitioners provide streamlined advice on both the US and non-US tax, social security, and legal aspects of short- and long-term international employment transfers in the equity awards context. They also assist multinational companies in developing an approach to global equity compensation tax liabilities that combines the degree of legal protection and operating flexibility most appropriate to the relevant company's interests.