From: Ned Help
To: Carrie Counselor
June 29, 2016
I appreciate the guidance you have provided regarding the documents the company needs to have in place when sending an employee on an assignment abroad.
Now I have a related question about immigration risks and responsibilities: where do we draw the line between the company’s obligations and assumption of risks in these scenarios and the employees’ obligations and assumptions of risks with respect to securing and maintaining visas and work permit approvals for our employees?
Thanks for helping me think through this thorny issue.
From: Carrie Counselor
To: Ned Help
June 29, 2016
Ned, you always ask great questions. Yet again you have identified an important issue because both the company and the employee bear certain responsibilities and risks in these scenarios. It is critical to articulate to your employee population who is responsible for what, before the employee embarks on the assignment or even embarks on a business trip abroad.
Employee Responsibility and Risk Regarding Visa and Related Documents:
While the company typically will retain counsel to secure necessary visa and work permit approvals, the employee must familiarize himself with the content and representations made to government authorities and must be able to articulate the purpose of the assignment or business trip consistently with the information contained in the documents.
It is the employee’s responsibility to ensure that his and all his family members’ passports are valid and remain valid for the duration of the assignment, and beyond. The employee must focus on the validity period of any visa or work authorization document and calendar the expiration date to ensure neither he nor any family members overstay the authorized period, which can have serious consequences for the employee, the family members, and the company.
The employee also must safeguard his and his family members’ immigration documents and promptly report the loss or theft of them both to the company and the local authorities.
The employee must focus on what the visa or work permit allows him and his family members to do, and must ensure that they all comply with the terms of the visa documents.
Employer Responsibility and Risk Regarding Visa and Related Documents:
Many companies have a global mobility policy or a comprehensive, stand-alone immigration policy which covers an array of issues relating to immigration and visas, including what types of visas or work permits the company will sponsor and pay for. Such a policy details the legal fees and costs for which the company is responsible, and what fees and costs the employee is expected to cover. For example, many companies require the employee to be responsible for the costs of passport photos, required medical examinations, passport renewals, etc.
It is common to couple a Repayment Agreement with an immigration policy. A company incurs significant costs particularly when sponsoring employees for long-term immigration benefits such as a permanent or residency status. Many companies have their employees sign a Repayment Agreement before commencing the permanent sponsorship process, which details the terms upon which the employee will be expected to repay certain fees and costs, should the employee depart the company within a set period of time following sponsorship, or receipt of the permanent immigration benefit.
Even if a company does not have a global mobility policy or an immigration policy, it is important to have a document that is signed by both the employer and the employee, outlining the foreign assignment and detailing who is responsible for what. This information should also be consistent with the details outlined in the offer/assignment letter that we discussed several weeks ago It can be a simple and straightforward document, but if the terms, responsibilities, and risks are outlined clearly, it will be worth its weight in gold.
Ned, let me know what the company is currently doing to manage the risks and responsibilities described above. I’m also happy to review any policies you may have with regard to the immigration functions, or we can help you draft a customized policy to meet your needs internally.