Petitioning for Work Authorizations on Short Notice

In many industries, situations often arise in which employers or their foreign clients need to assign employees with little notice but are required to comply with the destination’s immigration regulations. These regulations can be unrelenting, as they relate to eligibility for work authorization based on the prospective assignee’s qualifications, document requirements, and the estimated consular processing times. We’ll identify strategies for employers in these precarious situations and the options available to the company or the client. 
Useful immigration strategies for U.S. companies to assign talent globally when needed in a hurry

The best strategies for sending assignees on short notice, in terms of the quickest and least burdensome petitioning processes, are available in India, China, Mexico, South Africa, and Turkey. All five destinations have options that permit an assignee to work on an authorized basis without the employer having to endure the onerous labor market testing process. The longest average processing time in our survey is 10 business days. 

India, China, Mexico, South Africa, and Turkey have options that permit an assignee to work on an authorized basis without the employer having to endure the onerous labor market testing process.

India

India has progressed significantly over the last five years in its immigration policies. Not only have the authorities streamlined the application process (when utilizing the consular processing route for work authorization), but they have also implemented an online electronic business visa that, on its own, permits several activities without an employer having to file a consular petition.

With employment visas, the good news is that, like many other processes described in this article, there is no lengthy in-country petitioning process in order to obtain approval. Further, it should be noted that installation work, maintenance and repairs, and the provision of training to local staff can be conducted on these types of visas without fear of noncompliance. Other activities, including auditing, also require an employment visa. 

China

Employers needing to temporarily assign a foreigner to China to undertake, perhaps, emergency installation or repair work can rest assured the immigration process itself will not thwart the needs of the business. If the activities are expected to be completed within 90 days, the Chinese (M) visa will permit a wide array of activities, including providing guidance, supervision, or inspection for a bid-winning project in China, among many other short-term activities. Notably, the primary document requirements consist of obtaining an invitation letter, a valid passport, and proof of temporary accommodation. 

This is an ideal strategy, due primarily to the fact that the visa is issued in approximately seven business days and there are no limits on the number of these visas an applicant can apply for (granted there is no stay exceeding 90 days associated with each approval). As a result, employers can use this visa as an emergency option on more than one occasion and have the ability to petition for a work permit (longer-term) while the applicant is in-country on the Chinese (M) visa. 

Mexico

Mexico is consistently considered one of the easiest global destinations for U.S. employers needing to assign foreign talent on short notice. For starters, U.S. nationals are not required to obtain pre-departure business or employment visas to undertake a large swath of activities that most other global destinations would consider to be “work” necessitating work authorizations and, often, labor market testing. If a U.S. employer needs to send a U.S. national on a last-minute assignment to Mexico, so long as the temporary business visitor is remunerated only in the U.S. (and not placed on the Mexican payroll), the process for entry can be incredibly straightforward. This process applies, in some instances, to foreigners from outside the U.S. holding U.S. work and residence authorizations such as H-1B or L-1 visas. 

South Africa

Section 11(2) of the South African Immigration Act allows visitors to undertake limited short-term work for up to 90 days, assuming a pre-departure visa is obtained from the consular mission abroad with jurisdiction over the applicant’s place of residence. This visa is not a substitute for a work permit. It is granted in circumstances under which the applicant can prove the activity to be undertaken in South Africa is short-term and not better suited to an application in another category, such as an intracompany transfer or a critical skills work visa. Temporary installation, maintenance, or auditing activities are permitted. Section 11(2) also affords employers the ability to assign temporary workers to South Africa on short notice. This visa is ideal for temporary assignees, as it can be extended or renewed for an additional 90 days (for a total stay of 180 days), so long as the employer can provide reasonable justification as to the ongoing need for the visa holder to remain in South Africa.

Turkey

For employers needing to assign foreign talent to Turkey for up to 90 days in a one-year period, the Assembly, Maintenance, and Service (AMS) visa represents an opportunity to do so without first obtaining an in-country work permit. This is an incredibly useful strategy for employers specifically needing to utilize foreign technical expertise urgently. While work is permitted, the visa is limited to applicants needing to fit, install, maintain, or repair machines, equipment, or computer programs, or to provide services related to other technical systems. The AMS visa is not another category of work permit; it was created to alleviate the processing and evidentiary burden (in addition to labor market testing) associated with the standard work permit process in Turkey. 

Lightening Burdens

When looking to make decisions on what is best for the business and the prospective assignee, many of the above strategies seek to circumvent lengthy in-country work permit petitioning processes, minimize the number of documents (as well as the associated authentication procedures), streamline the consular processing to mere business days, and conclude with the ability to permit activities generally described as “work.”

While it is always advisable to consult an immigration professional when putting a petitioning strategy into place, the identified processes examined here are certain to lighten the initial immigration burdens associated with needing to procure work authorizations on short notice in any event.

Daniel D. Morris is global immigration counsel with Newland Chase. He can be reached at +1 941 932 8598 or daniel.morris@newlandchase.com.

The above information is excerpted from an article that appears in the August 2019 issue of Mobility magazine.

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