International Business Travel: Practical TipsInternational Human Resource Conference

April 2016

Establishing a Global Mobility Function

• Change in business needs

- Multinational companies are organized more along business lines than geographic lines

• Result = Decrease in long-term, high-cost traditional expatriate assignment

- Shift towards more flexible, cost-efficient forms of expat assignments

- Increase in short-term cross-border travel

• Rotation of business travelers, multiple travels to the host destination by business traveler

- Increased movement of employees from developed countries/major markets to emerging markets, requiring movement of management structure

• More employers focusing on worldwide immigration compliance programs

• Given increased globalization, many governments and tax authorities are modifying compliance rules pertaining to frequent business travelers to protect local labor market and economy

- Increased threat of legal penalties

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Large Country Variations

• Across countries, there are extremely differing rules and restrictions on the entry of persons for purposes of business or employment.

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International Business Travelers: Compliance Strategies• Create corporate policies for frequent business travelers

- Most current policies do not capture frequent business travelers, instead capturing traditional relocation assignments

- Track nature of traveler’s activities, time spent in each country, sources and internal chargebacks of salary and expense payments

• Collaborate among immigration, HR, legal, corporate travel desk, and other departments: Global Mobility

• Use a comprehensive immigration management system

- System for tracking initiation, approval, and expiration of visas and work/residence permits

• Include travel assessment and requirement tools on your intranet

- Integrate travel booking process with procedure to review management reports and establish a threshold to assess compliance risks

• Enroll in trusted traveler and other consular reference programs

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Temporary Business Travel in the U.S.

B-1 Visa, Visa Waiver Program and Electronic System for Travel

Authorization (ESTA), and Global Entry Program

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“Business Travel” vs. “Work”

• “Business Travel” includes:

- Activities that are incidental to work, which will be principally performed outside of the U.S.

- Engaging in commercial transactions (e.g., merchant who takes orders for goods manufactured abroad);

- Negotiating contracts;

- Consulting with business associates;

- Litigating;

- Participating in scientific, educational, professional, or business conventions, conferences, or seminars; or

- Undertaking independent research.

• “Work” includes:

- Billable events;

- Full-time management of a U.S. enterprise; or

- Day-to-day activities performed by traveler in home country.

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Consequences of Abusing Business Travel Program Requirements

•Civil and Criminal Penalties

- Civil fines up to $1,000/each individual unlawfully employed for unlawful employment of aliens and up to $2,000/each document subject of a violation of document fraud

- Criminal fines for pattern and practice of unlawful employment of aliens and for fraud and misuse of visas, as well as possible imprisonment

•Immigration Consequences

- Finding of fraud, potentially barring readmission

- Additional auditing of Forms I-9

- Additional reporting requirements for the company

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Abuse of Business Traveler Program Requirements: Infosys Corporation

• In 2013, Infosys Corporation agreed to civil settlement with Department of Justice of allegations of systemic visa fraud and abuse of immigration processes

- Paid $34 million, the largest payment ever levied in an immigration case

• Specific allegations included:

- Used B-1 visa holders to perform skilled labor positions

- Submitted invitation letters to U.S. Consulates containing false information regarding the true purpose of the B-1 visa holder’s travel

- Directed B-1 visa holders to avoid certain language in consular interviews

- Revised contracts with end clients to conceal fact that employees were B-1 visa holders

- Failed to maintain I-9 records

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B-1 Visa General Requirements

• Not meant to be “a catch-all classification available to all who wish to come to the United States temporarily for whatever purpose” Matter of Healy and Goodchild, 17 I&N Dec. 22 (BIA 1979)

• B-1 status cannot be used to create permanent residency by leaving and returning every six (6) months

- B-1 status was violated because FN “set no definite goals and made no plans to accomplish these goals.” Mwongera v. INS

• Initial period of stay generally up to six (6) months

• Generally may be admitted for maximum period of one (1) year

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B-1 Visa Requirements

•Traveler must have residence in foreign country that is “actual dwelling place in fact,” INA § 101(a)(33)

- Traveler need not have own home, but must show employment, family, social ties to residence abroad. 9 FAM 41.31 N.3.4

•Traveler must have no intention of abandoning foreign residence

•Traveler must be visiting the U.S. temporarily for business

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B-1 Visa Requirements

• Traveler must not be engaged in “work”

• Traveler must remain employed by their foreign employer, if applicable

• Traveler’s activities in U.S. must primarily benefit the foreign employer, if applicable- Profits must accrue abroad

- Services in the U.S. must be incidental to international trade and commerce, e.g., exchange of merchandise

• Traveler’s activities must be controlled by the foreign employer, if applicable

• Traveler must remain on foreign payroll, if applicable

- Cannot receive compensation from a U.S. source EXCEPT for incidental travel costs, such as arrangements regarding per diem or reasonable expenses, e.g., travel, meals, lodging, and similar expenditures

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Visa Waiver Program (VWP) Requirements

•Travelers from select participating countries can travel to the U.S. for business for stays of 90 days or less without first obtaining a visa:

• Andorra, Australia, Austria, Belgium, Brunei, Chile, the Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Japan, Liechtenstein, Latvia, Lithuania, Luxembourg, Malta, Monaco, Netherlands, New Zealand, Norway, Portugal, San Marino, Singapore, Slovakia, Slovenia, South Korea, Spain, Sweden, Switzerland, Taiwan and the UK

•VWP travelers are required to have a valid authorization through the Electronic System for Travel Authorization (ESTA) at least 72 hours priorto travel

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VWP Requirements

•Travelers are screened at the port of entry to the U.S. and are enrolled in the Department of Homeland Security’s US-VISIT program

•VWP travelers are ineligible for change or extension of status

•Traveler must have a machine-readable passport and, starting on April 1, an e-Passport, or electronic chip in passport

•Traveler must not be engaged in “work”

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ESTA Overview and Requirements

• ESTA is an automated system that assists in determining eligibility to travel and whether such travel poses any law enforcement or security risk

• An approved ESTA is not a visa

• To apply, must be:

- Citizen or eligible national of a VWP country

- Not in possession of a visitor’s visa

- Traveling for 90 days or less for business or pleasure

• ESTA application questions include:

- Contact information, most recent employment information, etc.

- All biographical information on Form I-94W

• Valid for multiple period of two (2) years or until traveler’s passport expires, whichever comes first

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VWP Travel Restrictions

•Generally, nationals of VWP countries who have been present in Iraq, Syria, or other “countries of concern” included in designated Department of State lists at any time on or after March 1, 2011 OR are nationals of VWP countries and nationals of Iraq, Syria, Iran or Sudan are no longer eligible to travel or be admitted to the U.S. under the VWP

- Designated countries currently also include Iran, Sudan, Libya, Somalia and Yemen

- Limited government and military exceptions

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Global Entry Program Overview

•Voluntary trusted traveler program that allows expedited clearance for preapproved, prescreened low-risk travelers upon arrival in the U.S.

•Members enter the U.S. through automatic kiosks at select airports

- No processing line, no paperwork, expedited entry

•Currently only available to U.S. citizens, U.S. nationals, Lawful Permanent Residents, and persons from countries that have reciprocal programs (such as, the Netherlands, Panama, Mexico, South Korea, Germany, and the United Kingdom)

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Global Entry Program Requirements

•To apply, must submit electronic application to Global On-Line Enrollment System (GOES), pay nonrefundable fee, and interview with CBP

•Acceptance to the program is for five (5) years, but may be suspended or terminated

•Disqualifying factors, include:

- Providing false or incomplete information; being found inadmissible to the U.S. under immigration regulations; being the subject of an investigation in any country; having been found in violation of customs/immigration regulations in any country

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Nonimmigrants vs. Immigrants

•Foreign nationals coming to the U.S. temporarily

•Some are permitted to have “dual intent”

- May enter as a non-immigrant and pursue permanent residence

- Available to E, H, L, O and P visa categories

•“Alphabet Soup” of nonimmigrant classifications, from A to V

•Immigrants are those who wish to permanently reside in the U.S. Must obtain an Immigrant Visa, commonly known as “Green Card”

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The Nonimmigrant Process

• Employer files petition for nonimmigrant classification with USCIS

- Most employment-based nonimmigrant classifications require nonimmigrant worker petition

- Some categories don’t require USCIS petition; FN applies directly at consulate or, if Canadian, at U.S. port of entry.

- If required for specific NIV classification, employer may also need certified labor condition application from Department of Labor.

• If USCIS is unsatisfied with the evidence submitted, a request for additional evidence (RFE) will be issued. In most cases, employers have 90 days to respond to the government’s request.

- A majority of RFEs request additional documentation to demonstrate that a valid employer-employee relationship exists while an employee is working at a third-party client site.

• If the petition is approved, USCIS issues Form I-797, Notice of Action.

• Foreign national then submits a visa application to a U.S. Consulate.

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Employment Authorized Visa Categories:

H-1B and L-1 General Overview

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H-1B: Specialty Professionals• H-1B category is open to professionals working in a “specialty occupation”

- Minimum entry-level requirement for job is bachelor’s degree or equivalent

- “3 to 1 Rule”: Three (3) years work experience = One (1) year college

• Employer must get Labor Condition Application (LCA) certified by Department of Labor prior to filing petition

• Six (6) year maximum stay

- Can extend beyond six (6) years under certain circumstances if pursuing permanent residence

• Dependent spouses generally do not have work authorization

• Employer is obliged to offer reasonable costs of return transportation for dismissed employee

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L-1 Intracompany Transferees

• L-1 category allows sponsor to transfer employees from overseas to related company in the U.S.

• Types of L-1s:

• L-1A: Executives and Managers

• L-1B: Specialized Knowledge Workers

• There must be a qualifying relationship between the U.S. sponsor and overseas company:

• Parent, subsidiary, affiliate, branch or joint venture

• FN must have prior employment abroad:

• One (1) year of overseas employment with qualifying company within three (3) years preceding transfer to U.S.

• Duration of stay:

• L-1A = 7 years maximum, L-1B = 5 years maximum

• Spouses can apply for work authorization once they arrive

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THANK YOU!

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