This article provides an overview of various countries' short-term visa options for temporary assignments.
Under Belgian law, there are several work permit exemptions for short-term assignments. One is the Vander Elst exemption: if some conditions are met, no work permit is required for non-EEA (European Economic Area = European Union, Iceland, Liechtenstein, and Norway) workers employed by a company that is established in an EEA Member State and who come to Belgium to provide services.
Training at the Belgian site of a multinational group can also be possible depending on the circumstances (for example, nationality of employee and location of employer) without a work permit for up to three months. On-the-job training is possible on a very limited scale only: the training cannot involve "significant productive interventions" within the company.
Foreign employees who test prototypes of vehicles or other prototypes developed by an accredited research facility do not need a work permit. The exemption is limited to the required testing time, and up to four weeks per calendar year per employee.
Initial product assembly and/or first installation does not require a work permit if it is an essential part of a supply agreement, is necessary for the use of the product, and is provided by qualified and/or specialized employees of the supplier who are posted to Belgium. This exemption is limited to eight days and does not apply to construction workers.
The exemption for urgent maintenance and repair work performed by specialized technical workers on a product supplied by the foreign employer to a Belgian customer is limited to a stay in Belgium of five days per month.
Fast-track work permits are available for specialized technical workers who are posted to Belgium and who come to Belgium to install, start up, or repair products manufactured or supplied by their foreign employer. The work may not take longer than six months.
Training at the Belgian site of a multinational group may be fast-tracked if no work permit exemption can be invoked.
Companies sending their employees to Canada for six months or less may opt for their employees to enter Canada as Business Visitors where their activities will be confined to "business visitor" activities within the meaning of Canada's regulatory framework and the North American Free Trade Agreement (NAFTA) if the employees are citizens of the United States or Mexico. Permissible business visitor activities include attending business meetings, performing after-sales services, scoping and information gathering, giving training at a Canadian affiliate, and performing sales to defined clients. While business visitors cannot perform hands-on work in Canada, their business visitor activities may permit companies to achieve certain short-term objectives in Canada without requiring a work permit. Citizens of countries requiring a temporary resident visa (TRV) to enter Canada must apply for the TRV by demonstrating their required business activities in Canada, whereas foreign nationals who do not require a TRV to enter Canada should travel with a Business Visitor Invitation letter from the Canadian destination company.
In other cases where hands-on work will be performed in Canada during the short-term assignment, the employees will need work permits and, in some instances, Labour Market Impact Assessments (LMIAs) to be granted the work permits. Companies may wish to seek an exemption to the costly and lengthy LMIA process wherever possible via one of the LMIA exemption categories, such as Intra-Company Transferees (C12 or NAFTA T24) or NAFTA Professionals (T23). If proceeding by way of the LMIA, companies should consider whether a variation to the minimum advertising requirements exists for the Canadian position in question, to ease their recruitment and advertising efforts in seeking the LMIA if applicable.
If the Canadian company is a start-up, it may be possible to obtain an initial work permit for up to one year if the company is sufficiently advanced in its operations. Typically, a start-up should have leased premises, particularly in the case of Specialized Knowledge Intra-Company Transferees, and must demonstrate plans to staff the Canadian business and be financially sound enough to pay the employees' salaries.
In very unique circumstances, companies may seek a work permit for an employee pursuant to the C10 Significant Benefits category of the LMIA exemption where the employee's presence in Canada will have a demonstrated significant social, cultural, or economic benefit in Canada.
Business Visitor of Less Than 90 days
Foreign nationals may come to France under a business visitor status if their stay in France is for less than 90 days, and their activity in France is limited to business visitor activity.
A business visitor may attend meetings, prospect for business, and negotiate agreements. This activity may be carried out for his or her own personal account or in the name of his or her foreign employer. However, this activity may not be carried out in the name of a French business or create value for French business.
There are two types of classifications for business visitors:
1. The Schengen visa for short-term business visits; and
2. Visa-free entry for third-country nationals who are exempt from the visa requirement by treaty or bilateral agreement with the third country national's home country (e.g., United States, Canada, Japan, Australia, Mexico). These foreign nationals do not need a visa to enter France as long as their assignment within the Schengen space does not exceed 90 days over any 180-day period and their activity is limited to that of an authorized business visitor. (The Schengen Area consists of 26 countries: Austria, Belgium, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands (Holland), Norway, Poland, Portugal, Slovakia, Slovenia, Spain, Sweden, and Switzerland.)
They should remain on the home country payroll, not be subordinated to the management of the host entity in France, and not carry out any productive work in France. Tasks that clearly fit into allowed business visitor activity include attending meetings, seminars, negotiations, visiting sites, and exploring business opportunities.
If the French consulate considers that the activity in France requires a work permit, it will refuse the business visa application and require the third-country national to apply for a work permit with the labor authorities before visa issuance.
According to a decree of the Ministry of Foreign Affairs of May 11, 2011, a business visitor can come to Italy for a short stay (90 days in a 180-day period) for "travel that has an economic/commercial basis, to make contacts or conduct negotiations, to learn or carry out maintenance and repairs on equipment and machinery purchased or sold pursuant to a commercial contract or joint venture agreement."
It is advisable to have a contract in place between the sending company and the host company that regulates the services the sending company is to provide the host company for hands-on activities other than normal business activities such as attending exhibitions, business meetings, and negotiations with potential customers.
The application of this rule requires review on a case-by-case basis of what the visitor intends to do in Italy. The criteria to be taken into account include:
- There must be a foreign employer who directs the employment;
- Profits must go to the foreign employer;
- Profits must accrue abroad;
- The foreign employer should pay the visitor;
- Services being performed are not ones for which an Italian worker would normally be hired, are not inherently part of the Italian labor market, and are not primarily benefiting the Italian entity as local work; and
- There should an agreement in place between the foreign (sending) company and the Italian (host) company.
Non-visa nationals must have documents (such as invitation letters and assignment letters from their employers) supporting the scope and duration of the visit.
Visa nationals (citizens of countries that do not have a visa waiver program with Italy) must apply for business visas.
The extensive changes in Mexican immigration law as of November 2012 eliminated the more than 30 former immigration statuses and subcategories. Those were replaced by just three statuses: Visitor, Temporary Resident, and Permanent Resident.
Visitor status is appropriate for short-term assignments of up to 180 days. Foreign nationals in this category may engage in most kinds of business and work activities, as long as they are remunerated on foreign payrolls. Mexican law does not distinguish among business activities.
Nationals from several designated countries may freely enter Mexico in business visitor status without having to apply for a visa. Visa-waivered entry is also allowed for "regulated nationalities" under several schemes, such as having a valid U.S. visa of any kind, or permanent residence in the United Kingdom, Japan, United States, Canada, or the Schengen countries.
Visitor status may allow the foreigner to perform job duties, but it entails restrictions on activities such as opening a bank account, signing on behalf of the company, signing a lease contract, and some other issues related to a business visitor's ability to live comfortably in Mexico.
The Peruvian immigration authority (MIGRACIONES) has no specific visa that may be obtained quickly for short-term assignments. When technical workers, for example, are coming to work in Peru, they must obtain work permits, which take approximately 30 to 45 days. The work permit may be either a temporary worker visa (for foreign workers on a local company's payroll) or an appointed worker temporary visa (for workers who are not staff of the local company).
Appointed workers are those who come to Peru with no intention of establishing a residence to carry out labor activities assigned by their foreign employers for limited and defined terms to perform specific tasks or duties, or to perform work that requires professional, commercial, or technical knowledge or any other type of highly specialized knowledge. This category applies to consultants or advisors. Although they are paid by a company abroad, they must pay taxes in Peru.
To obtain this type of visa (Visa Temporal de Trabajador Designado), the following documents must be legalized by a Peruvian consulate abroad or certified by apostille abroad:
- A Service Agreement or Technical Service Agreement (TSA) executed by the foreign entity that will provide the services (Provider) and the local entity receiving the services (Beneficiary Company).
- An appointment letter issued by the Provider appointing the foreign consultant who will come to Peru under the Service Agreement.
- A letter from the Beneficiary Company confirming that it will be the recipient of the services that the foreign consultant will provide.
- A Certificate of Specialization of the foreign consultant issued by the Provider.
- The assignee's original passport in the case of in-country processing before MICRACIONES. If processing before a consul abroad, then a copy of the passport will be duly legalized by the Peruvian consulate abroad or certified by apostille and the consultant will remain abroad for processing.
- Other documentation of the assignee and the local company as required.
Translations of the documents must be made in Peru by an official public translator.
The processing time from the date of filing of the application with all required documents is 30 working days for "Obtaining Visa Proceeding," and 60 working days for in-country processing, according to the rules. At present, however, in-country processing is taking less time.
The holder of this type of visa cannot open a bank account in Peru, obtain a credit card, or obtain a driver's license, because he or she is not considered a resident.
Overview of Short-Term Work Authorizations—Section 11(2) Visas
The South Africa Department of Home Affairs can issue a visitor's visa to authorize a foreign national to do his or her "work" in South Africa for a period of up to three months. This visa cannot be extended.
In the past, short-term employment in South Africa was largely characterized by one of two common scenarios, both involving mainly holders of passports who do not need visas to come to the Republic of South Africa (RSA) for "visits" (e.g., from North America and Europe).
The first scenario arose when such a passport holder would, on arrival, claim that he or she was coming for "business." Such person would then be admitted for a period of up to three months to do "business" even though, taking advantage of definition confusions, these persons were in fact "working."
The second scenario occurred where the passport holder arrived at a port of entry and announced that he or she was coming to "work." If the person had a letter from the host/South African company confirming that the foreign national was coming to "work" at the offices of the South African company, he or she would usually then have a section 11(2) visitor visa endorsed into his or her passport, at the port of entry. This would allow the expat to work at the company for whatever period was required, up to three months.
There was, however, no control over how many times such section 11(2) visas would be issued. There have been cases of people in effect blatantly using the section 11(2) visa to bypass ordinary work visa requirements or processes (and even being advised to do so). Both situations were massively abused. The Department of Home Affairs has been compelled to clamp down and get the short-term work authorizations under control.
To understand current Department policy, it is essential to first appreciate the statutory definition, in the Immigration Act 13 of 2002, of what constitutes "work." The Act provides very simply that "work" is doing anything that is "consistent with being employed" in a particular field or profession (and similarly with self-employment). In other words, if you are employed in the United States as an accountant and you are coming to South Africa as part of your job, that constitutes "work" as it is defined. And if you are coming to "work" for a period of three months or less, you will need to get a section 11(2) visa.
The test is not limited to persons who are employed "in South Africa." The Immigration Act expressly provides that the definition includes persons who are not being paid to do that work: it is irrelevant whether the person is being paid or how he or she is being paid. The test is deliberately wide and allows for few exceptions or gray areas.
Also, for purposes of the definition of "work," it is immaterial how long the person is coming to SA to do work. It can be days, weeks, months, or years.
Obviously, there may be further obscure instances that could challenge the limits of the statutory definition. The best approach to adopt, if you are in doubt, is to get the correct permission to "work." The joy in having bypassed bureaucracy will be seriously short-lived if an evasion comes to light. So, if a person is coming to SA to do "work" for a period of up to three months, he or she needs to get a section 11(2) authorization from Home Affairs.
Rules for Section 11(2) Visa Applications
1. A section 11(2) visa can only be issued—
a. On arrival at a port of entry (if the passport is visa-exempt for "visits"; or
b. At an Embassy or High Commission (if the passport is not visa-exempt for "visits").
The section 11(2) visa cannot be applied for or issued inside South Africa.
2. Where the applicant holds a visa-exempt passport, before he or she leaves for SA, he or she must first have applied in writing for and obtained written permission from the relevant South African embassy to ask for the 11(2) on arrival at the port of entry. Without that prior written permission from the embassy, the port of entry will not issue the section 11(2) visa.
3. The section 11(2) visa is not, under any circumstances, to be applied for as an interim work visa while a person applies for a longer-term work visa.
4. Other than in quite exceptional circumstances, the Department of Home Affairs will not entertain applications to extend a section 11(2) visa.
Requirements for Section 11(2) Applications to the Director General
5. There is no prescribed application form. The request should be included in a letter addressed to the Consular Section at the relevant embassy.
6. The request should come from the South African company (or other such entity or person) who will be hosting the foreign national in South Africa.
7. The request should include the following:
a. The applicant’s full name, and passport nationality and number, along with a copy of the bio page of the passport;
b. The proposed departure flight number(s) and date(s) with the port of entry and estimated date and arrival time in SA;
c. Date of departure from South Africa with corresponding flight details;
d. How long he or she will be coming to actually work for (as opposed to the total length of the visit);
e. Full details of contact persons in SA and in the country of origin along with full details of the host company in SA including details of what it does, where, and (where appropriate) statutory registration details;
f. The applicant's address and contact details both in SA and in the country of employment;
g. The applicant's CV;
h. Full details of why the person needs to come to SA, to do what and where; how SA and South Africans will benefit from the person's activities;
i. A written undertaking by the SA host: (1) assuming full responsibility for all the costs of removing the applicant from SA, should removal become necessary; and (2) assuming responsibility for ensuring that the applicant complies with all the conditions of the visa and the applicable requirements of the Immigration Act; and
j. Confirmation from the SA host that it is fully aware of the Department's rules applicable to section 11(2) visas, as set out above.
8. If the application is approved, the embassy will usually e-mail the written consent back to the applicant, although some embassies ask the applicant to collect the letter.
9. When the foreign national arrives at the port of entry, he or she will then present to the port of entry the following documentation as part of the request for the section 11(2) visa:
a. A copy of the request submitted to the embassy; and
b. The embassy's written approval of the request.
10. The passport will then be stamped recording that permission to work has been granted.
11. Where the applicant is travelling on a non-visa-exempt passport, he or she must apply both for the "consent" and for a visitor visa to the appropriate embassy or High Commission.
12. If the visa is approved by the embassy or High Commission, the visa will set out such other conditions as are to be complied with.
The United Kingdom (UK) offers a number of options for employers seeking to engage migrants on a short-term basis.
While migrants from within the European Economic Area (EEA) and Switzerland are free to enter and work in the UK without prior permission, non-EEA employees must obtain authorization. For short-term work, this typically falls within a sponsored category of the Points-Based System (PBS).
Tier 2 (Intra-Company Transfer—Short-Term Staff)
This route is intended for short-term placement of staff for up to 12 months. Prospective transferees must have been employed by the sponsoring organization for at least 12 months and meet minimum salary and maintenance requirements.
Tier 2 (Intra-Company Transfer—Graduate Trainee)
This subcategory allows recent graduate trainees on paths for managerial or specialist roles to undertake clearly defined training programs at UK-based branches of their employer. Graduate Trainees may enter the UK for up to 12 months. Prospective transferees must have been employed by the sponsoring organization for at least three months and meet minimum salary and maintenance requirements.
Tier 2 (Intra-Company Transfer—Skills Transfer)
Tier 2 (ICT—Skills Transfer) enables employees in graduate occupations to enter the UK for up to six months to learn vital skills for their jobs overseas, or to train their UK colleagues. Although prospective transferees need not have been employed previously by the sponsoring organization, they still must meet specified minimum salary and maintenance requirements.
Tier 5 (Temporary Worker—Government Authorised Exchange)
This route is intended for migrants moving to the UK to participate in pre-approved schemes to share knowledge and experience through work, research, language, or training programs. The primary purpose of this category is to encourage social and cultural learning through life in the UK. Migrants in this category may stay in the UK for up 24 months for research, training, or language programs, or up to 12 months for work schemes. Applicants must meet minimum maintenance requirements.