Client Sites – Immigration Without an Entity
This is the third of a series of six short articles by Sophy King of Peregrine Immigration Management Ltd, covering some of the key areas of basic global immigration management. A basic understanding of how immigration processes work is vital in order to manage international assignments and projects efficiently and effectively. Peregrine Immigration Management Ltd is a young company founded by Sophy King specifically to address this need. Peregrine provides global immigration consultancy, training and knowledge transfer and management services, including via its revolutionary immigration knowledge database, Immiguru.
One of the most common immigration “problems” we are asked about is how to obtain work permission for assignees to work at client sites in a host country. The work permit applicant may be employed by a company in his or her home company which is sending him to work at one of their clients’ sites, or may be a freelance contractor who has been engaged specifically for a project at a client site.
This type of arrangement is often difficult to manage from an immigration point of view, and frequently leads to non-compliance when companies simply cannot work out how best to handle the situation and resort to allowing work to be carried out on business visitor status (see last month’s article on avoiding non-compliance around business trips and short term assignments).
It is, however, possible to manage these types of situation effectively and remain in compliance with immigration regulations.
As always, the actual immigration procedure to be followed will depend a great deal on the immigration regulations in the host country, as well as on the specifics of the assignment itself. Some of the most common scenarios are examined below.
- Specific “service provider” immigration procedures
For example within the EU, if a non-EU employee employed in one EU member state is sent on assignment to another EU member state, then provided conditions are met, it may be possible to waive the work permit application completely, applying instead for what is commonly known as a “Van der Elst” visa and/or residence permit.
“After sales service” routes are also available in several countries. In specific circumstances where an assignee’s activities in the host country are directly related to after-sales service for a client in the host country on behalf of their employer in the home country, for example, installation of machinery, it may be possible to avoid the need for a work permit application.
Some countries also have specific and slightly more flexible routes for short term assignments where no sponsoring company is required, for example, the 120 day work permit in Switzerland, or the 90 day technical Vitem V visa for Brazil.
- Local Entity Acting as Sponsor - Intra Company Transfers
In situations where a work permit is required, and the sending employer has its own entity in the host country, it may be possible to use that entity as the sponsor for the work permit. In many countries, however, it is very important to list any locations where the assignee will be working on the work permit application – i.e. if the assignee will be located at a client site, this must be disclosed and explained in the work permit application. Failure to do this will lead to non-compliance, and if assignees are found to be working at a site different to the one listed in their work permit, penalties will follow.
- No Entity in the Host Country – Contract for Services with a Client or Overseas Sponsorship
If the sending entity does not have a branch office in the destination country, and the assignment triggers the need for a work permit, it may be possible to prove this need by presenting the contract for services between the sending entity and its client in the host country.
In these situations, the client may well need to act as “sponsor” for the application, providing information about their business and structure to the immigration authorities, and taking responsibility for the assignee. Obviously, the client will need to be amenable to this, and it should be discussed with them at an early stage.
In some countries, overseas sponsorship may be an option, whereby the sending entity remains responsible – Australia is an example – but this is rare, and must be checked on a case-by-case basis.
- Establishing a Local Entity
In situations where the assignee is being dispatched to the host country specifically to establish a local entity, or perhaps to look at developing leads and client relationships with a view to establishing a local entity, particular immigration routes are often available. Most countries want to encourage businesses to set up shop in their jurisdiction and many have immigration routes to accommodate this – as ever, the specifics of the situation must be examined to determine if the applicant will qualify or not.
- Local Contract
In some countries, it is only possible to obtain work permission if a local employment contract is in place; i.e. the branch office or even the client need to enter into a local agreement with the assignee. This is the case in many Middle Eastern countries, where local contracts and local payment of salary is often required.
It is common, in these situations, for employers to provide local contracts for the purposes of the work permit application but to consider these internally as “dummy” contracts. However, it is important to note that although this may be a company’s internal policy and practice, it is not necessarily going to be seen that way by local authorities in the destination country. If your company has created local contracts for assignees, those contracts will likely be deemed real and valid in the country where they are held, and may be referred to in any dispute over labour terms. Peregrine advises companies to seek specialist employment advice if any local employment contracts are arranged.
As always, this article is intended to be a short summary of some of the issues facing companies sending assignees to client sites – it is impossible to provide detailed advice, as each situation must be judged on its own merits. Peregrine is offering free 30 minute consultations to Re:Locate readers, so if your company sends assignees to client sites, contact Peregrine and mention “Re:Locate magazine” to discuss your situation.