Global Immigration 101: Business Visa or Work Visa?

May 9, 2018

For successful mobility managers, school is always in session. In an industry where the only thing that is constant is everything is always changing… success depends on continually keeping abreast of new immigration rules and processes… and reminding ourselves of the same old basics vital to successful international assignments.

Whether you’re a “PhD” with years of handling your company’s international workforce… or the “new kid in class”, Newland Chase has you covered. Follow our continuing Corporate Immigration 101 blog series as each month we take a look at a different basic but vital aspect of immigration for short-term and long-term international business and work assignments. No tuition bills, student loans, number 2 pencils, term papers, end-of-semester exams, or all-nighters… just practical information and sage advice from the “real world” of mobility. (You’re welcome.)

In this month’s session, we tackle one of the mobility universe’s greatest mysteries… when can I use a business visa and when do I need to get a work visa?

The writer of this blog first encountered this question after the first year working at his former company’s office in Pakistan. Having entered the country with a U.S. passport and a visa-on-arrival and subsequently obtaining his business visa in-country, immigration officials called the company to enquire why he was still there 12 months later and why he hadn’t applied for an employment visa. He innocently and admittedly naively responded, “This is a business, so I have a business visa. I’m actually employed by our U.S. affiliate.” Only later (after my initiation into a career in corporate immigration), would I really comprehend just how inadequate and uninformed my response was. While in common usage we may use the terms business and employment somewhat interchangeably, those terms have very distinct and significant meanings in the world of corporate immigration.

What’s the difference?

Business Visas, as the names suggests, are generally intended for individuals entering a country for the purposes of conducting business with other businesses and individuals located in that country. The visa itself can take a variety of forms: electronic or paper, single-entry or multiple-entry, from shorts stays of a few days to relatively long stays of several months, depending on the destination country. But it is important to bear in mind that in almost no instance is a business visa intended as either a work authorization or a residence authorization. The holder of a business visa is not to engage in regular work and employment or activities establishing a more long-term residence in the country.

Work visas – also known as employment visas – are intended for more long-term work/employment and residence in a country. Work visas also vary in their form from country to country. A work or employment visa in one country may be simply the permission to enter the country for the purposes of work, but require an additional work or employment permit in order to actually work in the country. In another country, a work or employment visa may incorporate entry permission, work authorization, and residence authorization all in one document. In many other countries, there may not be a document titled “work visa” at all, but rather a combination of a work permit, an entry visa, and a residence permit.

Regardless of the nomenclature, in virtually all countries, the work visa/permit process is going to be a more involved, costly, and time consuming procedure than that for a business visa. Therefore, companies understandably prefer to utilize business visas wherever possible. However, beware of the temptation and mistake of attempting to “fit the round peg into the square hole” – using a business visa for what is in reality a work assignment (as this author did in his pre-corporate immigration life). Individuals and companies found to be “working” on a business visa can face stiff penalties in many countries – including fines, debarment from obtaining future visas and permits, and even imprisonment.

Where’s the line?

With immigration systems varying significantly country to country, determining the line between when a work visa is required and when a business visa will suffice can be no easy task. Immigration regulations directly on point can be unclear or many times non-existent. Where a planned activity falls into a potential grey area, it is always good practice to consult with an experienced expert in that country’s immigration system. With that stated… there are, however, some general principles that can be gleaned which give mobility managers guidance in most instances.

Generally, the line between business and work activity is drawn using the concepts of remuneration and operations. Paying close attention to these two factors will usually guide mobility managers to the proper immigration route.

Remuneration, or the compensation, of the visa holder is most often the clearest determinant of which visa applies. In almost all cases (except for reimbursement of limited expenses, such as travel and lodging) – if the individual is being paid for his or her services by an in-country entity, a business visa is inapplicable and a work visa/permit is required. However, even this is not determinative by itself. An individual who is paid solely by an outside employer may still be deemed to be “working” in the country.

That’s where the Operations factor comes in. This one is a little harder to determine; but in most countries, if the individual is actively involved in the ongoing business operations of a company located in the country, he or she will be deemed to be “working”. Therefore, a business visa is inapplicable, and a work visa is required. However, determining when passive activities become “active involvement” in the business operations is certainly more art than science.

In an attempt to give mobility managers a rough guideline to follow, we offer the following list of common activities and the visa under which they are generally permitted. Note that these lists are general observations from experience across multiple countries and are not intended to be all inclusive or reflect the law of any one jurisdiction. (Feel free to add to this list based on your experiences.)

Permitted activities under a business visa generally include:

• Participation in meetings, seminars, conferences, trade shows, and sporting or cultural events – Participation is generally always permissible, but speaking or presenting at a meeting, seminar, or conference may not be permitted if the speaker/presenter is receiving fees for his or her time beyond merely expense reimbursement. Similarly, professional athletes, artists, and performers may not be permitted if receiving salary or other compensation beyond prize money or awards.
• Selling or purchasing goods and services on a limited basis.
• Investing and researching investments.
• Prospecting, exploring, researching, and “fact-finding” business opportunities.
• Internal auditing of company records.
• Contract negotiations and conclusions.
• Expert consultation, supervision, observation, or monitoring of ongoing projects.
• Participation in litigation or arbitration.
• Visits, tours, and inspections of company sites, client sites, branches, and partner companies.

Activities requiring a work visa (or work or employment permit) generally include:

• Traditional employment.
• Self-employment.
• Any “hands-on” participation in business operations. This can be physical participation in operations such as manufacturing or production, but can also include direct management or supervision of employees.
• Everything else… If an activity does not fit clearly into a permissible activity under a business visa, obtain a work visa.

“Grey areas” in which jurisdictions commonly disagree over which visa (work or business) is the proper route generally include the following. In these instances, a fact-specific expert evaluation by your global immigration provider is always recommended:

• Providing Services may be permissible on a business visa when it is in connection with a sale, purchase, supply, installation, or repair of equipment or products where the service is secondary to the equipment or product, i.e. a foreign company sends a technician to install a sophisticated piece of equipment purchased by a local manufacturer. However, in other countries, even this may require a work visa/permit.
• Training of employees, whether the applicant is the receiver or provider of the training, may be permissible on a business visa if the duration is short and the training is more passive in nature, rather than “on-the-job” training. However, the longer the duration and the more “hands-on” the training, the more likely that authorities may require a work visa/permit.

Again, the above is offered as an attempt to present “bright-line guidance” in an area that is mostly grey. There is still no substitute for the case- and country-specific advice of an experienced immigration expert.

Watch for next month’s edition in this continuing blog series on the Newland Chase website at https://blog.newlandchase.com/.  To have alerts on corporate immigration law changes around the world delivered once a week to your inbox, subscribe to our newsletter at the bottom of this page.

This blog was prepared by the Knowledge Management team of Newland Chase. It is informational only and is not intended as a substitute for legal advice based on the specific circumstances of a matter. Readers are reminded that immigration laws are fluid and can change at a moment’s notice without warning or notice. Please reach out to your Newland Chase contact should you require any additional clarification or guidance. Written permission from the copyright owner and any other rights holders must be obtained for any reuse of any content published or provided by Newland Chase that extend beyond fair use or other statutory exemptions. Responsibility for the determination of the copyright status and securing any permissions rests with those persons wishing to reuse this blog or any of its content.