International Business Visas: Broad-Brush Similarities, but a Multitude of Differences in the Details

In the grand scheme, most countries have the same basic "broad-brush" approach to employment-based immigration policies. Generally, governments provide simplified visa processing and/or entry for short-term business visits that do not involve active work in the local labor market. This policy encourages international business, which has a positive impact on the economy. On the other hand, international assignments that will result in active work within the local labor market are usually scrutinized more carefully. While governments recognize the need for some uniquely qualified or highly skilled foreign workers to establish, run or work in certain businesses, they are also concerned about protecting local labor markets. How each government chooses to balance these competing interests—intertwined with local and national politics—creates unique visa categories, processes and procedures that change over time.

 

This article provides an introduction to the business visa process for travel to most of the European Union (highlighting Germany), the United Kingdom, India and China. These areas are popular destinations for business travel and provide a good sampling of differences in how employment-based visas are defined and processed.

The European Union

 

Schengen Visas

In addition to establishing a common currency, the European Union created standardized immigration and passport control for most (but not all) of its member countries. Fifteen European countries, including the E.U. countries Austria, Belgium, Denmark, Finland, France, Germany, Greece, Italy, Luxembourg, Netherlands, Portugal, Spain and Sweden, as well as the two non-E.U. countries Iceland and Norway, are part of the "Schengen" visa scheme, which has simplified travel to and between these countries. Nine other European countries (Estonia, Latvia, Lithuania, Malta, Poland, Slovakia, Slovenia, the Czech Republic and Hungary) joined the Schengen visa scheme as of Dec. 21, 2007. The United Kingdom, the Republic of Ireland, Romania, Bulgaria and Cyprus do not take part in the Schengen visa scheme and the standardized border controls.

In general, U.S. citizens are allowed to enter most European countries for a period of up to 90 days without first obtaining a visa, as long as the trip is for valid tourist or business purposes (for example, attending meetings or conferences).

When visas are required, the Schengen scheme allows an individual to apply for one visa for entry to all Schengen countries. There are no longer internal border checks between Schengen countries, and travel between these countries is much like travel between U.S. states.

Work Visas

For visas and work permits that allow a person actually to work in a country, each country has maintained a separate application process. In most countries, the process generally involves the following steps:

First, the employer must obtain work authorization from local authorities (labor office or immigration office). The local employer usually initiates this process, which often requires proof that domestic workers are not qualified for the position.

Second, the U.S. employee applies for an employment visa, typically at a consulate in the United States of the country where the employee will work.

Finally, once the U.S. employee enters the country, he will likely need to obtain a residency permit.

 

This overall process can take several months, and many consulates require a personal appearance at a consular office—so planning ahead is critical.

Blue Card

The E.U. Commission recently proposed facilitating immigration of highly qualified specialists from outside the European Union. To facilitate this change, a new type of work and residency permit, the so-called Blue Card, would be made available more easily to such individuals by member states. The E.U. Commission's plan aims to attract more qualified migrants to fill gaps in E.U. labor markets. However, the plans have come under fire by several member states and are still far from becoming reality.

Germany

 

For short-term visits to engage in "non-work" business activities, U.S. citizens do not need a visa to enter Germany. For longer-term work assignments, Germany offers a broad selection of employment authorization visa categories. Similar to procedures under U.S. immigration law, the process to obtain the appropriate German visa can be quite complicated. In general, the following categories of employment visas are available to foreign employees:

Highly Qualified Specialists. Available to individuals with an annual salary of €86,400 or more and/or persons with extensive accomplishments or specialized skills not found in the general population; valid for an indefinite period of time; no labor market opinion required.

Managing Directors/Senior Executives. Available to board members, managing directors and others who have far-reaching power to act on behalf of a company, such as the president or vice president; valid for up to three years; extensions available; no labor market opinion required.

International Personnel Exchange. Good option for multi-national corporations; allows for transfer of personnel to Germany if it can be shown that the German company has employees working abroad; allows for a "replacement" of these employees, so that if five German employees are working abroad, five employees can be brought into Germany; valid for one year; extensions available for up to three years (four years for U.S. citizens); no labor market opinion required.

Short-term Assignments. Allows persons to enter Germany for up to three months in any 12-month period for specific purposes; a good choice for persons responsible for software installation, machine delivery or equipment repair; no labor market opinion required.

IT Specialists. Must show the employee will be working in the IT field; must show the individual has an appropriate university degree (or equivalent); no labor market opinion required, but employee may be forced to participate in German Social Security System unless exempt by treaty; valid for one year; extensions available.

Skilled Workers. Requires authorization from the local German labor office to verify there are no qualified German workers for the position; valid for one year; extensions available, but labor market test must be done every year (although this requirement can be waived by the local labor office after one year of employment with the same employer, or after three years of employment with different employers).

Special Exemption for U.S. Citizens. U.S. citizens enjoy a privileged status in Germany; in special cases, a work permit may be issued regardless of the requirements above; a labor market opinion is required.

 

Because of the complexities of each category and the importance of providing sufficient supporting evidence, we highly recommend utilizing local German counsel to obtain German work visas. 

The United Kingdom

 

As is the case with Germany, U.S. citizens do not currently need to have a visa to travel to the United Kingdom (U.K.) for short business visits. The individual may remain in the United Kingdom for up to six months. However, the U.K. government recently announced that it is considering the introduction of a new business visa that would reduce permission to remain from six months to three months.

The United Kingdom has a number of specialized programs available for various types of work (e.g., training and work experience, business entrepreneurs, highly skilled migrants); however, the "workhorse" option for most companies sending U.S. citizens to the United Kingdom is the Work Permit Scheme. Under this system, a work permit may be issued for up to five years. Work permits are generally issued only where the job requires relatively advanced skills and/or experience, or where resident labor is unavailable. The Work Permit Scheme is divided into two tiers:

Tier One. Tier One work permit applications are exempt from any requirement to recruit for the position within the European Economic Area (EEA), which consists of the 27 E.U. member states plus Iceland, Liechtenstein and Norway. Applications that fall within Tier One include the following categories:

Intra-Company Transfers (ICTs). The sending company must have a qualifying ownership link with the U.K. employer; the transferee should have at least six months of experience working for the overseas company; and the position must require specific, essential company knowledge and experience that is not available in the resident workforce.

Board Level Posts. The person must have personal, daily input into directing the company at a strategic level.

Inward Investment. For a new posting that is essential to an inward investment project that is bringing jobs and money to the United Kingdom. The investment is to be made by an overseas company or companies, not individuals. The smallest qualifying investment is £250,000.

Shortage Occupation. This category is reserved for occupations that the government acknowledges are lacking sufficient qualified workers within the EEA.

Sponsored Researchers. An individual with an overseas job coming to the United Kingdom to undertake a period of research at a U.K. employer or host organization where the funding for the research remains overseas; or, where the funding is transferred to the employer or host; or, where the funding is arranged and paid by the employer or host. This category also applies to someone on a paid sabbatical coming to undertake research at a U.K. employer or host where funding is arranged by the employer or host; or to someone on an unpaid sabbatical who receives funding from a U.K. employer or host.

 

Tier Two. Work permit applications that do not fall within the various Tier One categories automatically come within Tier Two. For Tier Two workers, the employer must document that it conducted a recruitment search for the position and was unable to find a suitable employee from either the U.K. or EEA labor market.

With both Tier One and Tier Two applications, once the work permit has been issued, in most cases an individual will apply for entry clearance to the United Kingdom at the British Embassy in his home country. The individual may then come to the United Kingdom to take up the contemplated employment.

 

Upcoming Changes in the United Kingdom

During 2008 and 2009, the United Kingdom will overhaul its immigration procedures for people from outside the EEA wishing to enter the United Kingdom to work or study. Starting in March 2008, it will phase in a points-based system that will consolidate some 80 existing immigration routes into five tiers. The highlights of this new system are:

Eligibility will be determined by points awarded to applicants based on pre-determined, publicly accessible criteria measuring education, experience, age and the need in any given sector.

A Tier 2 application will be the new system's counterpart to the current Intra-Company Transfer part of the Work Permit Scheme. This Tier 2 category is expected to be implemented during the third quarter of 2008. The existing Work Permit Scheme will continue to operate as usual until that changeover.

All Tier 2 application decisions will be made at a British consulate in the home country of the applicant. Currently, all Intra-Company Transfer work permit decisions are made by the specialist Home Office department in the United Kingdom.

Employers will have to pre-register as "sponsors" in order for their potential employees to file applications in Tiers 2 to 5. Sponsors will be rated "A" or "B," depending on their U.K. eligibility and immigration track record and policies. This rating is likely to affect the application review process. Further information about sponsorship is expected from the U.K. government during the first quarter of 2008.

 

It will be more important than ever during this transition year to understand which U.K. visa requirements apply for U.S. employers transferring employees to work in the United Kingdom. Our London office has regularly prepared these types of work permit applications for many years.

India

 

Visas are required for U.S. citizens traveling to India. India offers two basic types of visas for international employees—a business visa and an employment visa, both of which may be obtained through the Indian Consulate in the United States.

Business visas are intended for persons who will be attending conferences or seminars, providing or receiving training, participating in business negotiations, or visiting plants or facilities. Productive employment is not permitted with a business visa. Although business visas may be issued so that they remain valid for a year or more and for multiple entries, the maximum stay in India allowed under each entry is 180 days.

Employment visas: U.S. citizens who will enter India to engage in productive employment (i.e., most work-related activities other than those acceptable under a business visa) are required to apply for an employment visa. Unlike some countries that first require a work permit to be issued by a government agency in the host country, Indian Consulates in the United States have the authority to process and approve employment visas without additional Indian government agency involvement. Employment visas are initially issued for a one-year stay, and may be extended in India in one-year increments.

For stays longer than 180 days in India without leaving the country, U.S. citizens will need to register with a local Foreigners Registration Officer (FRO) within 14 days of entering India. FRO offices are located in New Delhi, Mumbai, Chennai, Amritsar and Calcutta. For other locations (including Bangalore), the Superintendents of Police of the Districts serve as registration officers. After successful registration, the FRO will issue a Certificate of Registration to the U.S. citizen, which the individual will need to surrender to an immigration officer upon leaving India.

U.S. citizens are required to register only once within the validity period of their Indian visa, even though they may leave India multiple times during this period. A second registration is required if the U.S. citizen enters India on a new visa (and once again intends to stay longer than 180 days).

 

China

 

U.S. citizens also require a visa to enter China. For business purposes, there are two types of visas: the "F" business visa and the "Z" work visa.

The F visa is intended for persons who will be attending business meetings, participating in scientific or cultural exchanges, attending seminars or visiting facilities. Business visas can be valid for up to one year; however, in some cases the period of stay is limited to 30 days per entry. Applying for the F visa involves two steps:

Request an official letter of invitation from the Chinese government. (A letter of invitation from a Chinese company may be sufficient in some cases.)

Prepare and submit the visa application to the Chinese Embassy or Consulate in the United States.

 

The Z work visa is intended for persons with longer-term assignments and for persons who will be actively employed or working in China. Application procedures for the Z work visa involve several steps:

Request employment approval from the local Chinese labor authority. Application should be made by the Chinese hosting entity.

Obtain a visa notification letter from the Chinese government.

Once the employment approval and visa notification letter have been issued, the employee submits the visa application to the Chinese Consulate in the United States.

After arriving in China, the employee must undergo a physical exam to obtain the necessary Health Certificate.

After the Health Certificate is issued, the employee must apply for an Employment Permit.

Finally, the employee must apply for a Residency Permit.

 

Family members of the employee (i.e., spouse and children) can also get Z visas for entry into China.

Z visas are generally valid for one year and can be renewed if necessary.

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