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39 Offices in 19 Countries
Cross BorderEmployment Issues:Essentials for GlobalCompanies
2
Introduction – Cross Border Issues
• Expanding Operations Globally – Some considerations for whenmoving employees from outside U.S. into U.S. or from U.S. toother Countries
Cultural Issues
Data Protection
Business Visitor Visas
Employment Agreements
U.S. Work Visas
Concluding Employment
David Greg
Millstone Wald
[email protected]+1.216.479.8574
[email protected]+1.415.393.9828 or +1.305.577.7016
3
Cultural Issues
• Country cultural issues
• Local company culture
• Integrating company culture
4
Data Protection and Privacy
• Transfer of Employee Data -EU law requires an “adequate levelof protection”
Join the Safe Harbor Network
– Notice
– Choice
– Onward Transfer
– Security
– Data integrity
– Access
– Enforcement
Establish binding corporate rules
– Requires advance approval
Conclude a model contract between the EU and US entity
5
US Visa Process
• Entering on permanent basis – Immigrant (green card)
OR
• Coming to the U.S. temporarily - Nonimmigrant
Retain residence abroad
Visiting or engaging in work related activities
Presumed to have immigrant intent
– Dual intent - only for H’s and L’s
– E-1/2 - limited extent
• Administering agencies
Department of Homeland Security (DHS)
– Customs and Border Protection (CBP)
– Immigration and Customs Enforcement (ICE)
– Citizenship and Immigration Services (CIS)
Department of State
Department of Labor
6
Entry Procedures
• Approved petition, Notice of Action, I-797
• Visa Application at U.S. Consulate
• Inspection - admission by CBP at U.S. port of entry
• I-94 card - proof of legal status while in U.S.
7
Visitor Visas: Going Global
• Is a visa required?
• Short term vs. long term
• Purpose of stay
Tourism or
Engaging in business related activities
• In country registration
• Work permit may be required
8
Business Visitors - US
• B-1 Visa
Foreign payroll
Activity in U.S. benefits foreign employer
– Business meetings, training, & joint development projects
– Prohibited from engaging in active employment while inUS
– Travel patterns and lengthy (beyond a couple weeks) raisered flags
Visa could be denied or traveler refused entry if improper usesuspected
9
Business Visitors – US cont.
• Visa Waiver Program
38 participating countries
90-day maximum stay
Ineligible for extension or change of status
Must first register online with Electronic System for TravelAuthorization (ESTA)
Must possess e-Passport and machine-readable passport
• Canadians – visa exempt (all visas except for E)
10
UK - Business Visitors
• Non-EEA nationals visiting UK for a short time to do business ontheir own or their employer’s behalf
• Maximum stay in any one visit is 6 months; separate visits mustnot exceed 6 months in any 12 month period (academic visitorscan stay for up to 12 months)
• Work/employment (whether paid or unpaid) is prohibitedregardless of duration of visit; permitted business activitieslimited
• Visitor can be refused entry and receive a re-entry ban ofbetween 1 and 10 years if Immigration Officer believes that thereis an intention to take employment
• UK is NOT part of the Schengen agreement
• US nationals do not require visa stamp
11
Schengen Area
• The Schengen Agreement abolished internal borders, enablingpassport-free movement between 25 European countries.
• The Schengen visa is a visitor visa; purpose of the visit must beleisure, tourism, or business
• The following countries adhere to the Schengen Agreement :
Austria; Belgium; Cyprus; Czech Republic; Denmark; Estonia;
Finland; France; Germany; Greece; Hungary; Iceland (not a
European Union Member State); Italy; Latvia; Liechtenstein
(not a European Union Member State); Lithuania;
Luxembourg; Malta; Netherlands; Norway (not a European
Union Member State); Poland; Portugal; Slovenia; Slovakia;
Spain; Sweden; and Switzerland (not a European Union
Member State)
• US citizens can enter without visa for travel up to 90 days
12
Select Countries
• Canada
Stay for less than six months
Do not plan to enter the Canadian labor market
Main place of business, and source of income and profits, is
outside Canada
Visa exempt: US (including LPRs), UK, Japan
• Mexico
Stay for less than 180 days
Acceptable business activities are broadly construed
May not receive compensation from sources within Mexico
Visa exempt: US, Canada, Japan, UK and Schengen
countries.
13
Select Countries, cont.
• Brazil
Permissible activities include: meetings, conferences, fairs and
seminars; visit potential customers; and carry out market research
Not authorized to work for any Brazilian company, regardless if paid or
not
Up to 90 days; can be extended for another 90 days
Visa exempt: UK, Schengen countries and most South American
Visas required for nationals of US, Canada and Japan
• China (mainland)
M visa for most business/commercial activities:
Conferences, seminars or training sessions
Business, fact-finding” meetings, or conducting negotiations
On behalf of the overseas employer
Up to 90 days cumulatively within a calendar year
Invitation letter required
Citizens of Singapore, Brunei and Japan visa exempt for up to15 days
14
Employment
• Expatriate or Expat
An individual originally hired in one country and later assigned
to work in another country for the same company or affiliate.
• Foreign Hire
A foreign national hired for local domestic position.
• Secondment
Employed in the home-country, but renders services for the
host country entity.
• Expat localization or transfer
Temporarily transferred to host-country entity
• Joint or co-employment
Simultaneously working for both the home country and host
country entity. The home-country relationship may or may not
be subordinated and thus suspended or “hibernating”.
15
Expat Contract Considerations
• At-will versus Fixed Term
• Tax Equalization and Preparation
• Expat Allowance/Cost of Living
• Housing Allowance
• Transportation
To and from Assignment
Local
Home Leave
• Moving and Storage Expenses
• Personal or Emergency Leave
• Language Lessons
• Children’s Education
• Social Security
• Pension
• Reassignment/Repatriation
16
Expat Contract Considerations (continued)
• Health Benefits
• Immigration Issues
• Choice of Law
• Confidentiality and Trade Secrets
• Restrictive Covenants
• Term of Agreement
• Termination Grounds/Notice
• Compensation and Benefit Plans
• Stock and Option Agreements/Plans
17
Business Visas - The Alphabet Soup
Common business categories:
• Business visitors (B-1)
• Intracompany transferees (L-1)
• Treaty Traders and Investors (E-1 & E-2)
• Professionals (H-1B, H-2A/B, TN, O, P)
• Free Trade (H-1B1, Chile and Singapore; E-3, Australia)
• Trainees (J-1 & H-3)
• Students on Practical Training (F-1)
18
L-1 Intracompany Transferees
• Intracompany Relationship:
Parent, subsidiary, affiliate, branch or joint venture
• Prior Employment Abroad:
1 year within 3 years preceding transfer to U.S.
• Qualifying Capacity:
Executive, Managerial (L-1A)
“Specialized” Knowledge (L-1B)
• Duration:
L-1A = 7 years; L-1B = 5 years
• L-2 for dependent family members (spouse/children)
• Spouse eligible for work authorization
• Dual intent
19
H-1B
• For “specialty occupation”
• Minimum job requirements require attainment of at least abachelor’s degree or equivalent in a professional field (suchas engineering, sciences, law, architecture, accounting,business specialties, teaching, etc.); or requires a license
• Up to of six years, in three year increments
Can extend beyond if green card commenced no later thanone year prior to end of 5th year
• Proposed rule issued extending employment authorization tospouses of H-1B workers in green card process
20
Additional H Visa Categories
• H-1B1 – Chilean and Singapore nationals
Specialty occupation (professionals) similar to E-3 & H-1B
Annual quota of 6500
• H-2B – Temporary non-agricultural workers
For seasonal employment, pro athletes (hockey, baseball)
66,000 annual cap
Must test US Labor market
• H-3 – Training visa
For fields including agriculture, commerce, communications,finance, government, the professions, etc.
Maximum period of 24 months
• None provide for spousal work authorization
21
F-1 (Students)
• Educational institution accepts for enrollment & issues I-20
School uses SEVIS systems through DOS
• Students applies for visa at US Consulate
• Curricular Practical Training (CPT)
Approved part-time work during academic year
• Optional Practical Training (OPT)
Post-graduate work authorization to 1 year
If STEM (degree in Science, Technology, Engineering or Mathfield) up to 29 months if work for E-Verify employer
Cap Gap: F-1 status and OPT work authorization extendedthrough H-1B petition validity commencement if change ofstatus filed prior to expiration of OPT
• Dependents – F-2; no work authorization
22
J-1 (Exchange Visitors)
• Participant in educational or cultural program
Students, professors/teachers, scholars
Trainees, specialists, au pairs, physicians
• Program administered through SEVIS (DOS) by:
University, Company, Organization
• Most programs have 18 month max
• Participant might be subject to 2-year home residencyrequirement b/f eligible for H-1B or green card
Possible waiver
• Dependents – J-2; work authorization for spouse
23
TN - NAFTA
• Canadian and Mexican nationals
• Coming to U.S. to work in profession listed on NAFTA schedule(i.e., engineers, accountants, lawyers, med. prof, scientists,teachers)
• Canadians apply at border (non-national dependents mustobtain visa at U.S. Consulate)
• Mexicans apply at Consulate
• Duration: 3 years for Canadians; 1 year for Mexicans
• Dependents – TD; no work authorization
24
O (Extraordinary Ability) andP (Athlete/Entertainer)
• O-1 - Extraordinary Ability in the sciences, arts, education,business, or athletics
O-2 - the artist’s or athlete’s support staff
O-3 - O-1’s spouse and/or children; no work authorization
• P-1 - Internationally recognized athlete or performer
• P-2 - Artist or entertainer of reciprocal exchange program
• P-3 - Artist or entertainer to perform, teach, or coach under aprogram that is culturally unique
• Visas available for accompanying/support personnel anddependents; no work authorization
25
Employment-Based Categories(Immigrant Preference Categories)
EB-1: Priority workers
EB-2: Advance-degree professionals & aliens ofexceptional ability
EB-3: Professional, skilled & unskilled workers
EB-4: Special immigrants
EB-5: Employment creation
26
Permanent Residency Flowchart EB-2/3
27
Employment Verification/Form I-9
• Applicable to all US employers and employees hired after11/6/1986
• Employee completes Section 1 on or before hire
• Employer must verify (inspect/record) documents w/in 3 days ofhire
• May need to reverify work authorization (Section 3)
• Must retain 3 yrs after hire or 1 yr. after termination, whicheverlonger
• E-Verify
Online verification of employment eligibility
Now used by 500,000 + employers
Pilot program with funding through 9/30/2015
Mandatory in some states and for federal contractors
28
DHS Continues Auditing Employers
0
500
1000
1500
2000
2500
3000
3500
FY 09 FY 09 FY 10 FY 2011 FY 2012
I-9 Inspections
29
Concluding Employment
• Termination Considerations
Contractual Obligations
Reinstatement of Suspended or Hibernating Contract
Governing Laws
• Localizing
Employment Issues
Visa Process
30
Worldwide Locations