Intracompany Transferees: How to Move Key Personnel Into and Out of the U.S.
Multinational companies often need to move key personnel from one international ofﬁce to another for short-term assignments. Here, we highlight the immigration issues involved with such global mobility needs
Overheard at an international manufacturing company’s management team meeting: “We’ve decided to expand our presence in the U.S. In addition to the sales function there, we will add a limited manufacturing function to perform ﬁnal assembly of the components that have been manufactured at our parent facility in Germany. We’ll need to send a team from Austria to install the assembly equipment and train the local work force. It would also be a good idea to bring some of the more experienced local hires in the U.S. with supervisory and management potential to Austria for training and indoctrination.”
Companies in the U.S. and around the world traditionally have been able to send their employees abroad fairly easily and without much interaction with foreign immigration and labor departments by utilizing the business visitor processes of a particular country. However, the potential exists for misuse of the business visitor category in terms of how often and for how long the company is sending an employee to a foreign country, and the duties to be performed. Many countries, including the U.S., are more clearly deﬁning permissible business visitor activities of foreign nationals and strictly enforcing them either in the immigration inspection process at the port of entry or through site visits to multinational companies. Where time to be spent in a country is fairly lengthy or where the duties to be performed cross into that of productive work on behalf of an entity in the host country, an employment visa or work permit may be required. The ﬁrst option to consider may be to send the employee as an intracompany transferee.
Worldwide employment/visa options
The following is a summary of visa and work permit options for employees being transferred to the U.S. to work for a U.S. entity that is related to their employer abroad, as well as such options for U.S.-based employees who need to be transferred to a related entity abroad. Like the U.S., many countries throughout the Americas, Europe and Asia offer employment options for intracompany transferees with attractive features that other employment visas in those countries don’t offer.
In the U.S., the L-1 visa classiﬁcation is designed for individuals who have been employed continuously for one year by an entity abroad as an executive, manager or specialized knowledge employee. The individual now seeks to enter the U.S. temporarily to continue to render his services to the same employer in its U.S. branch ofﬁce, or with the U.S. subsidiary or afﬁliate of the foreign entity, also as an executive, manager or specialized knowledge employee. The L-1 petition can initially be approved for a period of three years, unless the U.S. entity is a “new ofﬁce” that has been operating for less than one year, in which case the L-1 will initially be approved for one year. Extensions can be granted in increments of two years. Managers and executives (L-1A) are limited to seven years in the U.S., while specialized knowledge employees (L-1B) are limited to ﬁve years. The U.S. entity may also seek to sponsor L-1 individuals for U.S. permanent residence. For managers and executives, this can be quite a quick process under the ﬁrst-preference immigrant visa category, with no labor certiﬁcation process required. One key advantage of the L-1 category over other work visa categories is that spouses of L-1 principals, who are entitled to L-2 status, are also able to obtain employment authorization in the U.S. Additionally, the L-1 category does not require the employer to show that the wage offered to the beneﬁciary satisﬁes some arbitrary prevailing wage standard.
The United Kingdom offers Tier 2 status for intracompany transferees who have worked for the foreign entity for at least the preceding 12 months and are now coming to work for a related UK entity in a skilled position as long-term staff (up to 60 months), short-term staff (up to 12 months), graduate trainee or to participate in a skills transfer program. The general Tier 2 category for temporary professional and skilled workers includes a cap on admissions, and normally requires a showing that the offered salary meets or exceeds the prevailing wage for the position. Additionally, the employer must normally carry out a labor-market test for the position to determine whether there are any qualiﬁed UK resident workers. This is typically an expensive and time-consuming process. However, Tier 2 intracompany transferees are exempt from both the cap and labor-market testing, although there are some minimum salary requirements.
Like the UK, Germany normally requires labor-market testing for its foreign national temporary work force prior to the issuance of the necessary work and residence permits, but exempts intracompany transferees from this requirement, provided the German entity periodically sends skilled employees to its foreign related entities.
France offers a combined work and residence permit for “workers on assignment” in two scenarios. The ﬁrst is temporary assignees who will be sent to France to work at a branch ofﬁce, or at a French entity that is related to the overseas employer, but continue to be employed by the overseas employer. The second is those temporary assignees who will be transferred from the overseas employer to work directly for the related French entity. In either case, the foreign worker must be paid at least one and a half times the statutory minimum wage.
Canada provides work permits to intracompany transferees coming to work for a related company in Canada if the foreign national has worked for at least one year (within the preceding three years) for the foreign entity in an executive, senior management or specialized knowledge position. The program is similar to the U.S. L-1 visa. The wage offered to the foreign worker must be consistent with his level of expertise, and must meet or exceed the prevailing wage for the occupation. However, intracompany transferees entering Canada pursuant to the North American Free Trade Agreement or some other free trade agreement are not subject to this wage requirement. All intracompany transferees are exempt from the normally required labor-market testing.
Intracompany transferees traveling to Mexico to work for a foreign company’s related entity for 180 days or less do not require work authorization, even if placed on the payroll of the Mexican company. If the transferee will remain on the sending company’s payroll, the employee may enter Mexico as a business visitor. Intracompany transferees staying more than 180 days require both a work permit and residence permit, unless they will remain on the sending company’s payroll, in which case only the residence permit is required.
China has one of the most complex, multi-stage, multi-agency employment authorization processes in the world, involving local labor authorities, trade commissions, health authorities and public security authorities, as well as the Chinese diplomatic post in the foreign national’s home country, to apply for the Z visa. Intracompany transferees go through the same employment authorization and visa processes. Senior executives may enter China on an M business visitor visa or an L tourist visa and convert their visa to an alien employment permit and residence permit after entry.
Japan provides for intracompany transferee “status of residence” for engineers or specialists in humanities or international services who have been working for at least the preceding one year overseas and are now being transferred to a related Japanese entity. The intracompany transferee must be paid a salary that equals or exceeds the prevailing wage for Japanese nationals performing comparable work. There is a separate business manager “status of residence.” Senior and mid-level executives and managers will fall under this category rather than as an intracompany transferee, such that the work and salary requirements do not apply.
South Korea offers an intracompany transferee visa to “indispensable” professional workers who have worked for the company abroad for at least one year and are now sending the employee to a related company that is registered with the Korean government. Indispensable professionals include executives, senior managers and specialists who possess advance level proprietary experience and knowledge essential to the company’s service.
Work permit and visa options differ dramatically from country to country, as do the processing requirements and timelines. It is advisable to contact an immigration professional well in advance of moving personnel internationally. Careful immigration and visa compliance planning can minimize problems and delays.