Shaping the Next Normal: Immigration and Compliance Concerns of Remote Work

June 14, 2021

The Covid-19 pandemic shifted the workforce dynamic from the office to the home office with dramatic speed. It also became evident that employees can collaborate effectively over virtual networking. Today’s workforce is more dynamic than ever with collaboration among teams, offices and countries.For more details on immigration compliance and the tax and social security consequences of working remotely, watch our On-Demand Webinar, The Future of Mobility: Attract Global Talent and Achieve Greater Global Success.

As companies carefully navigate potentially returning to the office, they’re tasked with balancing business operations and employee preferences to work remotely. In this article, we explore what employers need to consider to build a resilient virtual workforce and the immigration compliance concerns of remote work.

Immigration and Compliance Concerns of Remote Work

Traditionally, immigration law assumed that foreign nationals would be working at an office location. With the large-scale shift to remote work, new challenges are thrown up. Without day-to-day oversight of the workforce, it can be difficult for employers to accurately track their employees’ whereabouts and ensure compliance. Even if third-country nationals are not working from the office, they need to have the correct authorisation to reside and work in the country. Companies should verify their employees’ location and the validity of their work and residence authorisations.

In many jurisdictions work and residence permits were automatically extended during the pandemic with the closure of many government offices, but such concessions have now for the main part ceased.

Below are some common questions surrounding compliance and remote work:

Does a visitor visa allow for remote work?

This is a contentious area and needs to be checked per jurisdiction. Be wary of allowing employees to travel across borders to work on visitor status. While it may be possible in certain locations, this should always be checked carefully per country prior to travel. In some jurisdictions a full work permit is required even for remote work.

What happens if an employee is stranded in a third country?

With travel/entry bans in place in 2020, there were many cases of employees crossing borders and unable to return home, leaving individuals potentially out of compliance on expiry of their visitor status. Government concessions allowed for extensions of visitor status for 3 or even 6 months. With the easing of the pandemic there are fewer and fewer concessions from governments. Extension of visitor status does not come with an automatic right to work in that location.

There are many ramifications of an employee holding the incorrect status.

If an employee does become stranded in a third country, what are the options to avoid non-compliance? The company should review the employment laws of that location. If there are no viable permit options, the company may need to consider temporarily suspending the employee.

What are the options for an employee who wants to work remotely in a location where they don’t have a work permit?

Some countries are slowly starting to introduce Nomad work permits for up to a year, for individuals to work remotely. The employer does not need to have an entity in the country to do this. However, many immigration policies do not yet address remote work situations.

Can the work authorisation be extended if conditions of employment have changed?

Be aware that notifications to authorities are required for changes in employment conditions. An employee may be working the identical salary and work hours, but have moved to work from home due to the Covid-19 situation. In many jurisdictions a notification to authorities is required to inform them that the employee no longer works at the office location itself.

Can the employee maintain their work authorisation status in a third country while returning to their home country?

Many governments offered temporary concessions for maintaining work authorisation status in a third country due to Covid-19 pandemic, but many of these have since fallen away and it is becoming increasingly difficult to renew expiring permits from outside the host country. Extensions can no longer be planned around the 90-day mark before expiry, but need to be planned as far in advance as for new assignments.

What are the risks of non-compliance?

The repercussions of non-compliance can be far-reaching both for the individual involved and for the employing company. Individuals can face monetary fines, deportment by officials, and be barred from entry to the location either temporarily or indefinitely. There is also the possibility of imprisonment under most immigration laws.

There can be serious repercussions for the employer as well – employers can be held criminally liable for having employees on a non-compliant immigration status and face substantial fines and the possibility of imprisonment if caught. Sponsoring companies can be barred from bringing individuals into the country either temporarily or indefinitely or have their Preferred status as a sponsor cancelled. Once a company has been flagged or blacklisted, it is very difficult to reverse this. Even a single issue of non-compliance can lead to reputational damage.

Remote work without the correct immigration status may also carry risk of tax and social security consequence in the host country.

What are some of the considerations to build a resilient virtual workforce?

The most obvious is an initial assessment of your particular company profile to ascertain whether each employee’s job is suitable for remote work. Once this is assured, there are a number of points that should be addressed:

Review company policies

Company immigration policies previously did not address obligations for working from home or remotely. Company policies should be reviewed to ensure they are complete and compliant with local employment and labour laws in the country where the employee is performing work activities. Employee handbooks should address working from home or remotely. Assignment letters should account for this possibility as well.

Maintain employee engagement

Maintaining employee engagement and recognition is even more important when your workforce is remote. Regular and effective performance reviews will assist in measuring productivity and clear KPIs for wages and working hours should be set.

Ensure data security

With virtual work environments, privacy and data security become even more critical and employees must be trained on connecting to secure networks using VPNs.

For more details on immigration compliance and the tax and social security consequences of working remotely, watch our On-Demand Webinar, The Future of Mobility: Attract Global Talent and Achieve Greater Global Success.

This publication is not intended as a substitute for legal advice. Readers are reminded that immigration laws are subject to change. We are not responsible for any loss arising from reliance on this publication. Please contact Newland Chase should you require any additional clarification or case specific advice.

Newland Chase, a wholly owned subsidiary of CIBT, is the leading global provider of immigration and visa services for corporations and individuals with over 1,700 expert immigration and visa professionals, attorneys and qualified migration consultants located in over 70 offices in 25 countries.

With thirty years of experience, CIBT is the primary service provider to 75% of Fortune 500 companies. CIBT offers a comprehensive suite of services under two primary brands: Newland Chase, focused on global immigration strategy and advisory services for corporations worldwide and CIBTvisas, the market leader for business and other travel visa services for corporate and individual clients.