Keeping the workforce fresh and vibrant will likely remain the greatest challenge for HR professionals for the next ten years anyway.
As technology advances at a frantic pace, development periods grow increasingly shorter, commerce requires solutions at the push of a button and competitiveness for scarce skills is at an all-time high. HR personnel are becoming the managers of many activities, but they will find themselves taxed by the volume of demands and the pace of the movement of employees.
One of the key areas of increasing activity comes from the corporate race to globalize. There was a time when an HR manager viewed a transfer of an employee across province or country with the attendant settlement concerns as a reasonable challenge.
The opening of corporate offices worldwide and the globalization of sales and marketing have created the need to transfer local personnel on a regular basis between home and host countries for short-term and long-term assignments.
As a result of the complexity of changing immigration rules pertaining to the rules for entry, the onus placed on HR representatives to “dot the I’s and cross the T’s” is a heavy a burden to bear.
A project that may be undertaken in more than one country requires that employee expertise be transferred for a limited duration. It is likely that the warning or advance notice is minimal. The employee is awaiting instructions as to the next step.
In addressing a global transfer, HR should address three main issues:
1. Does the employee need a visa or residency permit?
2. Is there an additional requirement for a work permit?
3. Are there threshold issues that may raise a legal impediment to the employee’s entry into the host country?
All countries impose a visa system that is designed to identify specific nationals for visa processing at consulates or embassies in home countries, at ports of entry or through an electronic application process.
There is no general rule regarding which country’s nationals are more likely to need a visa. Visa requirements must be constantly updated to ensure an employee does not commence travel with incorrect entry documents.
In some situations, if the assignment is for a long duration, a residence permit may also be required.
Business vs. employment
One of the most critical determinations that must be made at the outset is whether the employee requires a work permit or employment approval. There has been a tendency to avoid this issue (due to the complexity of laws and regulations of various countries) and simply send the employee as a business visitor.
The risk is considerable: the employee can be denied entry or even imprisoned; the employer may be fined or adversely viewed at the time of subsequent entries by employees.
Lastly, further travel by the particular employee is also made more difficult by a prior refusal of entry.
Each country sets its own criteria for establishing a work permit requirement.
For example, some may simply make this determination based on the source of remuneration of the employee. Other countries may place great emphasis on the length of time of the assignment.
Even more common is a need to determine what the employee will do in the host country. If the assignment involves hands off consultations for a short period of time, a determination may be appropriate in favour of a business visitor. On the other hand, providing programming or technical consulting services may very well cross the boundary of activity permissible by business visitors and require that an approval process be undertaken, generally at the host country’s Ministry of Labour or its equivalent.
Attempting to avoid the often onerous work permit application process can lead to other expensive consequences, often overlooked.
Some countries have regulations in place that limit or prohibit extensions or changes to the applicant employee’s status within a country to avoid abuses of their immigration and labour systems.
The cost to corporations and their clients can be great if a specialist is partially through a project when the visa expires and is barred from further entry to that country for a specific period. Even when the company is able to locate and identify an alternative specialist to complete the job, there are inevitable increases to costs of the project and delays as the new specialist involved becomes fully integrated.
Work permits and accompanying family
The transfer of an employee to a host country payroll tends to trigger a more comprehensive and complicated process. Additional considerations must be addressed, including whether approval must be obtained from a local host government agency prior to the issuance to the employee of a work or residence permit at the consulate or embassy abroad.
This may trigger the involvement of the host country HR representative in signing declarations or statements about the employment, reasons why local hires cannot fill the position and the employment benefits and insurance coverage available to the employee during their transfer.
The process may be more demanding in terms of requirements to be satisfied by the employee. It is not unusual to have to produce notarized evidence of birth and marriage certificates, undergo medical reports and demonstrate financial means prior to approval issuance.
Certain countries require that notarization of documents be done by their embassy or consulate in the jurisdiction where the document was issued — a process which imposes delays upon the application process.
There are similar issues for a spouse who may wish to be employed during the term of the assignment. Some countries permit the employment of a spouse through the issuance of a work permit tied to the employee’s term of employment. Other countries require that the spouse qualify on the merits of his or her own application under their immigration criteria. There are similar considerations with respect to documentation permitting attendance at school by accompanying children.
Admissibility: criminal and medical considerations
Many countries impose restrictions for entry if there are criminal or medical issues. It is essential to determine whether these factors will pose an impediment at the earliest possible time. It may be possible to obtain a “waiver” or approval to overcome the inadmissibility but the application process will certainly be delayed.
While there are no hard and fast rules or processes for handling global assignments, certain HR strategies can reduce delay and promote efficient processing.
•The first is to develop an internal process that permits information about the transfer and the employee to be communicated to a specific HR representative who is co-ordinating the assignment details. The most common reason for delay is the inability to accumulate requisite information from a number of sources in a timely fashion. The information must be reliable and address the entrance criteria of the particular host country. The checklist should therefore be flexible.
•Always update the information on entry requirements for each individual country. The rules are constantly changing and subject to various interpretations. This requires a high degree of vigilance as the chain of accountability for such transfers starts with the HR representative.
•Establish reliable contacts with appropriate expertise (local if necessary) to ensure that the application is correctly filed. In some situations local representatives may assist in expediting a government approval process or simply provide the comfort of advising that the process has been properly undertaken.
•Provide a strong communication link to the employee, home country manager, host country project manager or representative and host country HR. Global transfers are particularly stressful and the employee is greatly dependent on HR to take care of the details. There may be a number of steps involved and the employee should be well aware of the application process and his or her role in providing documentation, attending a personal interview at a consulate or embassy if required and the issues that the host government will wish addressed. The employee must be prepared.
•Implement an efficient and comprehensive, post-departure followup process. This would include the recording of the dates of expiry of visas or permits for the employee and family members and a process for initiating an extension of status if required.
In addition, since tax issues may arise for employees frequently on assignment outside their home country, tracking time spent outside of the country by employees can serve a dual purpose.
Global transfers present particular challenges to HR professionals. The development of processes and procedures that can address a number of host country requirements is a critical first step.
These include an understanding of the basic rules, how to identify or red flag potential problem cases and implementing a support infrastructure that reacts quickly and efficiently, in a co-ordinated effort with the host country HR and officials.
Howard Greenberg is a partner of Greenberg Turner, a human resources law firm based in Toronto. Suzanne de Lint and Yusra Siddiquee are associates at Greenberg Turner. For more information contact (416) 943-0288.