Managing Outbound Immigration Issues for International Personnel: European Union, India and China

As American companies continue to expand overseas operations to keep pace in the global marketplace, the need for experienced U.S. employees to travel to and work in those countries has significantly increased. Although requirements for visas and work permits vary widely from country to country, it is important in all cases to plan ahead to ensure that the proper authorization can be obtained. This article will provide an introduction to the visa process for entry to the European Union, India and China as well as a checklist of information needed so that we can advise you on international visa issues.

EUROPEAN UNION

Schengen Visas

In addition to establishing a common currency for many European countries, the creation of the European Union standardized immigration and passport control. 15 European countries: Austria, Belgium, Denmark, Finland, France, Germany, Iceland, Italy, Greece, Luxembourg, Netherlands, Norway, Portugal, Spain and Sweden*, are part of the Schengen visa scheme which has simplified entry to and between these countries.

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.

For longer term visas and work permits (generally over 90 days), each country has maintained a separate application process. In general, the process in most countries involves the following steps:

• First, the employer must obtain work authorization from the 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 can generally apply for an employment visa at the consulate in the United States.
• Finally, once the U.S. employee enters the country, he or she will likely need to obtain a residency permit.

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

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 €85,000 or more and/or to persons with extensive accomplishments/specialized skills not found in the general population; just over 600 were issued in the last year; 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/Vice President; the German company must already be established – this visa is not intended for opening a new office; valid for up to 3 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 the German company has employees working abroad; allows for a "replacement" of these employees – so that if 5 German employees are working abroad, 5 employees can be brought into Germany; valid for 1 year; extensions available for up to 3 years (4 years for U.S. citizens); no labor market opinion required
• Short-term Assignments – Allows persons to enter Germany for up to 3 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 1 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 1 year; extensions available, but labor market test must be done every year (although this requirement can be waived by the local labor office after 1 year of employment with the same employer, or after 3 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.

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, training, business negotiations, and plant/facility visits. Productive employment is not permitted under the Business visa. Although Business visas may be issued with a validity of a year or more and for multiple entries, the maximum stay in India allowed under each entry is 180 days.

U.S. citizens who will enter India to engage in productive employment (i.e., most 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 of their Indian visa, even though the they may go out of 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).

Additional information on the process for obtaining Indian visas can be found on the website of the Indian Embassy.

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/cultural exchanges, attending seminars or visiting facilities. Business visas can be valid for up to six months; however, in some cases the period of stay is limited to 30 days per entry. Applying for a "F" visa involves two steps:

• Request official letter of invitation from 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 in China. Application procedures for the "Z" work visa involve several steps:

• Obtain a letter of invitation from the Chinese employer.
• Request employment approval from the local Chinese labor authority. After approval is received, a visa notification letter will be generated.
• Once the employment approval has been issued, the employee can submit 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.

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

Faegre & Benson, with the assistance of colleagues in our Shanghai office (http://www.faegre.com/offices_shanghai.aspx), can handle all steps involved with either the "F" or "Z" visa process.

Checklist

The information listed below will allow us to advise on the proper type of visa and/or work permit and will enable us to begin the process for obtaining the appropriate documents for any international assignment. Consulates and immigration offices often require applications to be submitted a month or even several months before an employee will travel, so it is important to plan ahead. As soon as there is a possibility of an international assignment, the following information should be gathered:

• Full name of employee
• Current address
• Date and place of birth
• Citizenship
• Current job title and duties
• Expected length of trip
• Purpose of trip (e.g., will the employee be attending business meetings or assigned to a foreign subsidiary?)
• Job duties abroad (if the employee will be temporarily assigned abroad, we will need information on the type of job duties)
• Where will the employee be assigned (subsidiary? customer site?)
• Salary and source of salary (will the employee continue to be paid by the U.S. company?)
• Will family members be joining the employee? If so, we will need full names, dates and places of birth

Additional information may be required for us to complete the immigration paperwork, but the above will give us enough to begin the process.

*Norway and Iceland are part of the Schengen visa scheme, but are not part of the European Union.