Is the Immigration World Ready for Remote Work as the New Normal?

As traditional work environments morph into a “work-from-anywhere” environment, governments have implemented concessions to operationalize this new environment. Confusion reigns. This piece discusses how this precarious situation evolved over the last six months and what can be expected in the year ahead.

In likely the quickest digital turnaround in history, starting in March 2020, traditional work environments (and even the then-developing work-from-home phenomenon) shifted sharply into a “work-from-anywhere” environment to prevent the spread of COVID-19.

Whereas at the end of 2019 and beginning of 2020, the away-from-the-office work shift was more concerned with catering to the growing gig economy, this was diverted during the COVID emergency response. There was an urgent need to move foreign national employees to their home country to avoid COVID travel bans on both sides of travel, and to allow them to maintain their work from any country in which they ended up since in many cases, they could not (due to exit or entry bans) or did not want to (due to high COVID-19 rates) return to their home country.

As COVID-19 raged around the world…

During the second quarter of 2020, employers moved almost every conceivable employee for whom it was possible to remote work. According to an OECD report, two out of every five employees were able to work remotely across the 37 OECD countries (Austria, Belgium, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Latvia, Lithuania, Luxembourg, Netherlands, Norway, Poland, Portugal, Slovak Republic, Slovenia, Spain, Sweden, Switzerland, and the United Kingdom) worked remotely in April 2020.

Though the move to remote work created opportunities to save working hours where it may not have been otherwise possible during COVID-19 workplace closures (both mandated and employer-led), the gap between the new culture of work and the existing regulatory framework grew wider.

Mind the regulatory gap

Over the course of the pandemic, in many cases, employees who were moved to remote work situations ended up working out of countries with temporary, COVID-19-based concessions for remote workers that were often hastily-created and ambiguous.

Many times, employees ended up working in a country other than the one where they applied for work rights. And still in other cases, whether an employee could work remotely under their work authorization depended on a number of factors such as the terms of the employment agreement (Austria), the location of work (Canada), or the visa category (United States). These and other scenarios created compliance risks beyond those related to immigration law (e.g., employment law, social security law, tax implications, etc.).

Even more troubling was the situation where:

• The employee worked remotely in a country that did not provide for a remote work COVID-19 concession under the work authorization under which they entered (Ivory Coast, Mauritania, Montenegro, Poland, Sweden); or
• The employee worked remotely where remote work was explicitly not allowed.

What’s next?

Unfortunately, the remote work regulatory gap is widening, as many companies are permanently moving workers to remote work situations in growing numbers. Due to this uncharted legislative and policy territory, as well as hasty decisions made to address immediate needs, a period of chaotic government policy changes is ahead as governments decide whether to move temporary concessions into permanent employment and immigration law. Many countries that acted quickly to implement temporary policies about remote work may weave these regulations into permanent law to regularize what was previously cast aside as a low priority.

In lesser-developed countries, remote work may not be a realistic possibility, as not every worker has a reliable internet connection and/or home computer availability or a sufficiently sized home environment to be able to work. In some cultures, working from home is not socially accepted, though the situation during COVID-19 may begin to change even the most resistant cultures.

Before policies catch up to reality, workers and employers who follow remote work practices may unknowingly put themselves at risk of noncompliance with many aspects of the law, exposing them to possible fines or other penalties, depending on the country. Importantly in the migration context, noncompliance with regulations often results in employers losing their rights to hire foreign labor. As a result, it is more important than ever for employers to have a trusted immigration partner to analyze strategies and assess risks associated with implementing and/or continuing remote work policies.

For up-to-date coverage of the entry bans, quarantines, restrictions, government closures, concessions and other immigration policy changes related to COVID-19, access Fragomen’s dedicated website.

For more information on the digital transformation in immigration processing, see Fragomen’s Worldwide Immigration Trends Report Q2 2020 Supplement, available here.

The Organisation for Economic Co-operation and Development is a forum of countries describing themselves as committed to democracy and the market economy and among other efforts, coordinate domestic and international policies. Generally, these are high-income, developed economies. As of 2017, the OECD member countries collectively comprised 62.2% of global GDP.