Presented By

The Accidental Expat and Corporate Violation

Justin Parsons, Managing Attorney, Erickson Immigration GroupMatthew J. Kelly Jr., Risk Consultant, AIG

Hiba M. Anver, Senior Attorney, Erickson Immigration Group

Thursday, October 27th, 2016

Today’s Agenda

US Issues and Compliance

➔ How demand for importing talent is outpacing government quotas

➔ Do’s and don'ts of US business travel

➔ Compliance risks to the employee and to the company

EMEA / APAC Issues and Compliance

➔ Business travel do’s and don’ts & compliance

◆ UK

◆ China

◆ Canada

◆ Singapore

◆ Ireland

➔ Minimizing exposure and creating a strong global immigration compliance program

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Demand vs. available visas in the US

➔ Most common work visa in US is the H-1B visa➔ Limited to 85,000 annually➔ FY 2017, approximately 236,000 applications were received➔ 36% of cases filed were accepted into lottery in FY 2017➔ 64% of applicants left to explore other options

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➔ TN visa– Employee must be citizen of Canada or Mexico, and offered role must fall

under NAFTA occupation list

➔ L-1 visa– Employee must have worked abroad for 1 out of last 3 years for foreign

subsidiary or affiliate, as multinational manager or specialized knowledge worker

➔ F-1 visa– OPT can be valid up to 36 months, and keep trying for H-1B visa

➔ O-1 visa– Employee must be extraordinary in his or her field. – Yearly approvals equals or exceeds H-1B cap approvals each year

➔ E-3 visa– Similar to the H-1B visa, but only for citizens of Australia

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Corporate solutions ≠ US visa options

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If no US visa options exist, many companies will consider a temporary assignment abroad, with the aim to have the employee return to the US in 1 year -- if and when they can qualify for an L-1 visa

If no US visa options exist, many companies may choose offshore the employee indefinitely to a country with a more flexible immigration policy

Popular destinations when considering immigration include: Ireland, Singapore, Australia

Workforce options when US work visas are not

available

Staffing

Trends

Lack of US visa options had led to the overuse of B-1 visitor visas and the Visa Waiver Program

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“Do’s and don'ts” of business travel, when no US visa option exists and travel to US is required

• Allowable activities on ESTA (VWP) or the B-1 include the following:– Business meetings or negotiations– Attending conferences or trade shows– Fact finding missions– Knowledge transfer sessions, short term training– Duration: 90 days on ESTA and up to 6 months on B-1 visa (on discretion of CBP)

• What requires a work visa or work permit?– Productive work / gainful employment

• When business travel occurs, make sure of the following:– Traveler remains employed by foreign employer (on payroll)– Traveler’s activities must be controlled by foreign employer– Traveler retains foreign residence with no intent to abandon– Traveler always carries with him / her necessary invite letters or documentation that he /she

will return to country of origin after trip

What are the risks for the individual and company if the business traveler status is abused?

• In 2013, a prominent consulting company agreed to pay a $34 million civil settlement for B-1 abuse (systemic visa fraud)

– The company was issuing B-1 invitation letters to employees, who were visiting the US to engage in productive work for the company

• Visa compliance issues can lead to further government investigations of all visa practices, your company’s green card program, and I-9 compliance.

• Immigration compliance violations can result in:– Civil fines for the company– Criminal penalties for company officials– Visa debarment for the company– Bad press / impact on stock / damage to brand– Can impact employee’s ability to obtain visa or green card in future (in US)

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➔ US business traveler abuse can be caught many ways

– At Foreign US Embassy, noticing high volume of business travelers for a specific company

– Better technology upon inspection by CBP (noticing frequency of trips or long duration of stay -- or even overstays). More robust tracking system and attention on secondary inspection

– Upon inspection -- business traveler’s inability to communicate purpose of trip or details regarding permissible business activities

– Lack of I-9 documentation discovered at ICE audit or details discovered at FDNS site visit for H-1B or L-1 visa holders

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Contracting out your imported talent needs:Dangers of Labor Trafficking

• Common Law, State Law, and Federal Law:• TVPRA (22 U.S.C. §7101):

Trafficking Victims Protection Reauthorization Act

• The TVPRA serves a dual purpose: strengthens criminal laws used against traffickers and increases protections offered to victims

• Liability extends to all those who “financially benefit[] from” human trafficking.

– Part of TVPRA is expansion of available civil suit remedies– Includes everything from child sex trafficking to tampering with immigration documents with

intent to circumvent immigration laws.

Human Trafficking – Labor Trafficking

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2014 Urban Institute/Northeastern University Research Report on Labor Trafficking in the US

We wouldn’t get wrapped up in that… would we?

Exposure extends to companies that utilize contractors and outside firms for their staffing needs

Recent cases:

Teachers

Hotel Housekeeping Staff

Ship Builders and Oil Rig Workers

H-1B and J-1 programs

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United

Kingdom

China

Businesstravelerdestination

United

Kingdom

China

Canada

Singapore

Ireland

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United Kingdom / Business travel

➔ Visa Types

◆ Visa Waiver: for EU, EEA, Swiss, and other visa exempt nationals can stay for up to 6 months

◆ Standard VIsitor’s Visa: obtained through the UK Consulate in applicant’s home country and valid for up to 6 months

➔ Prohibited Activity: paid or unpaid work ( i.e. producing goods or providing service); unauthorized residence through frequent visits.

➔ Permitted Business Activities:

◆ Attend pre-arranged meetings, conferences, and interviews

◆ Attend trade fairs for promotional work only, no direct selling

◆ Arrange deals, negotiate, and sign trade agreements/contracts

◆ Carry out fact-finding missions or conduct site visits

◆ Speak at a conference (may not make a profit for the organizer)

◆ Post-Sales service (please consult with your immigration provider)

◆ Receive corporate training on techniques and work practices used in the UK

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United Kingdom / Consequences for non-compliance

➔ For Employer

◆ Home office can downgrade or REVOKE the Sponsorship License.

◆ BAR on sponsoring new migrant workers for 6 months, and given an action plan to

implement changes.

◆ FINE of 20,000 GBP for each illegal worker identified.

◆ Prosecution for false or improperly obtained documentation.

◆ PR nightmare! The national press quickly hears about non-compliant sponsors.

◆ If license is revoked, all Tier 2 General and ICT sponsored workers will have their visas

shortened and will need to leave the UK or find a new sponsor if appropriate within 60 days.

➔ For Employee

◆ LOSS of visa waiver or visa grant privilege if intent to work discovered on entry.

◆ Possible DETENTION prior to removal.

◆ REMOVAL and future bar on ability to apply for a work visa for up to 10 years.

China / Business Travel

➔ Visa Types

◆ Visa Waiver: for nationals of Singapore, Brunei, Japan, and Bahamas (by reciprocal agreement); and

holders of a valid APEC Business Travel Card.

◆ M Visa: obtained through the Chinese Consulate in applicant’s home country and valid for stays up to 60 days.

➔ Prohibited Activity: working for or receiving compensation from any Chinese entity.

➔ Permitted Business Activities:

◆ Commercial or trade activity such as:

-Negotiating a contract;

-Purchasing equipment; or

-Attending a trade fair, business meetings, or trainings.

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China / Consequences for non-compliance

➔ For Employer

◆ FINES of 10,000 Yuan/each illegally employed foreigner, up to 100,000 Yuan

◆ All illegal earnings confiscated

➔ For Employee

◆ FINES of 5,000 – 20,000 Yuan for illegal employment.

◆ DETENTION possible in serious cases.

◆ REPATRIATION and barred re-entry for up to 5 years.

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Canada / Business travel

➔ Visa Types

◆ Visa Waiver: certain nationals may travel visa free. Stays are authorized for up to 3

months.

-NOTE: certain nationalities may require an Electronic Travel Authorization (eTA) prior to travel.

◆ Visitor's Visa (Business): obtained through online application and submission of applicant’s

passport to the Canadian Consulate in applicant’s home country. Valid for stays of up to 6 months.

➔ Prohibited Activity: paid work

➔ Permitted Business Activities:

◆ Buying Canadian goods or services, or taking orders for goods or services.

◆ Going to meetings, conferences, conventions or trade fairs.

◆ After-sales service (managing, not hands-on work).

◆ Attending or conducting internal training by a Canadian parent company or subsidiary of

home company.

◆ Attending training by a Canadian company equipment or services post-sales.

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Canada / Consequences for non-compliance

➔ For Employer

◆ FINES of up to $100,000 CAD per violation or for company representative

misrepresentations.

◆ SUSPENSION on sponsoring foreign workers for up to 10 years.

◆ IMPRISONMENT of company representatives who misrepresent for up to 5 years.

➔ For Employee

◆ FINES of up to $100,000 CAD for misrepresentation.

◆ BAR on obtaining work authorization for up to 6 months.

◆ IMPRISONMENT for up to 5 years for misrepresentation.

◆ REMOVAL and bar on re-entry for up to 6 months or complete bar on obtaining future work

permits.

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Singapore / Business travel

➔ Visa Types

◆ Visa Exempt: individuals with certain nationalities may travel visa free. Stays are

authorized for up to 90 days.

◆ Entry Visa for Business Visit: obtained through the Singapore Consulate in applicant’s home

country. Length of stay is at the discretion of the adjudicating officer.

➔ Prohibited Activity: paid work.

➔ Permitted Business Activities:

◆ Attend company meetings, corporate retreats or meetings with business partners.

◆ Attend study tours or visits, training courses, workshops, seminars and conferences as a

participant.

◆ Attend exhibitions as a trade visitor.

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Singapore / Consequences for non-compliance

➔ For Employer

◆ FINES of 5,000 – 30,000 SGD for illegally employed foreign workers.

◆ BAR on employing foreign workers in the future.

◆ IMPRISONMENT of company representatives for misrepresentations of up to 2 years for

each offense.

➔ For Employee

◆ REMOVAL from Singapore.

◆ IMPRISONMENT for misrepresentations.

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Ireland / Business travel

➔ Visa Types

◆ Visa Waiver: EEA/EFTA nationals and other specified nationals may travel visa free. Stays

are authorized for up to 90 days.

◆ C Visa: Issued for Business, Conferences/Events, Training, or Transit. Valid for stays up to 90

days at the discretion of the border officer.

-NOTE: Visas are issued according to the purpose of travel and supporting documents vary according

to purpose.

➔ Prohibited Activity: paid or unpaid work.

➔ Permitted Business Activities:

◆ Attend meetings.

◆ Attend trade shows for promotional work.

◆ Arrange deals or negotiate or sign trade agreements or contracts.

◆ Carry out fact finding missions.

◆ Attend a conference relating to the traveler’s work or studies, or for an event.

◆ Training course less than 90 days.

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Ireland / Consequences for non-compliance

➔ For Employer

◆ FINES of up to 50,000 EUR on conviction.

◆ IMPRISONMENT of company representatives for up to 5 years after conviction.

◆ BAR on sponsoring future foreign nationals for employment.

➔ For Employee

◆ FINES of up to 50,000 EUR on conviction.

◆ REMOVAL and bar on obtaining work permits in the future.

◆ IMPRISONMENT of up to 5 years if convicted of serious offence.

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ManagingBusinessTraveler Risks

(US / EMEA / APAC)

➔ Have a company plan / process➔ Educate your employees about the do’s and

don'ts of business travel ➔ As part of process, develop tool or

methodology employees must go through before business travel occurs

– For smaller companies, this may be going through HR / Mobility or immigration provider

– For larger companies, consider a self assessment tool or business traveler technology

– Create database for compliance and tracking

➔ Establish internal audit procedures for the business traveler program

➔Where applicable, loop in tax, relo, to ensure all liability is considered

➔ Finally...observe trends and adjust accordingly (intermittent work visas)

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Target: Know what you don’t know

- As a company, understand the threats where you do business

- Determine contingency plans – shelter in place, extraction options, crisis management firms

- Systems to know location of workers

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Target: Develop a curious and aware workforce

- Provide employees actionable information regarding potential threats of travel destinations

- Develop exit strategies with employees

Target: Help employees share intelligence

- Foster environment where employees share insights on health & safety abroad with management and other employees