What can your company expect in terms of your employees’ ability to travel internationally as parts of the world begin to come out of months of lockdown?
And what will the ongoing restrictions and changes in everyday life mean for your company’s ability to transfer or hire new foreign national talent in key areas? Only time will tell exactly what will happen, but we are beginning to see patterns and hints of what is to come.
Some countries that have managed to flatten the curve of COVID-19 infections are gradually easing restrictions on freedom of movement and commerce. This is typically being undertaken cautiously and in a multistep fashion. Other countries have been slower to ease travel restrictions. A broad travel ban remains in place in China, and countries in Latin America continue to extend travel limitations with a wary eye on the outbreak in Brazil.
International travel restrictions on freedom of movement are being eased, albeit more slowly than domestic restrictions. We expect that the easing of international travel restrictions will be incremental in nature as the easing of domestic restrictions has been. We also expect that quarantine requirements for arriving travelers are likely to be put into place in many locations, significantly hampering international business travel.
Arriving travelers are also likely to be questioned more closely than in the past regarding their recent travels, health, reasons for visiting and plans for satisfying quarantine requirements. Although the primary purpose of the vetting may be to limit the spread of COVID-19, an unintended consequence may be that the purpose of the visit and whether the traveler has the correct documentation is scrutinized more closely than in the past. If the traveler is attempting to enter to engage in productive or remunerated work—which often includes consulting, commissioning, installing, troubleshooting and, in some countries, even training or audit activities—without the proper work visa, they are likely to be identified and denied entry.
Governmental migration authorities around the world are beginning to either ramp back up where they were operating at limited capacity or to reopen where they were shut down completely. But although many facilities are ramping up and/or reopening, significant backlogs of applications exist. Many government offices and consulates are encouraging or requiring contactless submissions via post or even e-mail.
The New Normal: A Long-Term Perspective
Looking ahead, it is somewhat challenging to predict what will happen in the global immigration space given that we do not yet know how long the pandemic will drag on. The longer it continues, the more different our new global immigration normal is likely to be. What is already clear is that even if a vaccine or effective remedy for COVID-19 is developed, things are unlikely to go back to “normal” as we knew it before the pandemic. So, what will the new normal look like for your company?
Rise in Remote Work—Decrease in Global Mobility
Many companies have discovered the ability to conduct business remotely, including across borders. What used to require an international business trip (with the corresponding time, costs and visas) now takes place via conference call. Where you used to relocate key staff across borders to facilitate teams working together in person, you likely have now discovered that with everyone working remotely, it may not matter whether your newest team member is physically sitting in Canada, China or France.
New Challenges for Essential Travel
Despite the rise in remote work, technology can’t replace all short- or long-term global movement of employees. Some work—installing or commissioning equipment, quality control on a production line, testing of systems and more—simply cannot be done via conference call. If your company has employees who must travel for business purposes, those employees will likely continue to encounter quarantine requirements until the pandemic has been resolved. This means your employees traveling for work will need to provide evidence that they will quarantine for 14 days following arrival, before attending their meetings and/or work duties.
In the past, citizens of privileged countries, such as the U.S., have often enjoyed a low level of scrutiny at ports of entry and have been able to avoid issues when traveling for work purposes without a visa. In fact, before the pandemic, your company’s employees may have been previously accustomed to traveling to certain countries with just their passport and no visa. Under the new normal, we anticipate that all international travelers will be subjected to increased scrutiny on entry through the destination country’s customs and immigration process. This means your employees are more likely to need to secure a visa in advance of any foreign travel. For this reason, it will be important for you to verify immigration requirements with the most recent information well in advance of your employee’s planned travel date. After all, the last thing you want is for your employee to experience the unpleasant surprise of being denied entry or prevented from boarding a flight.
New Challenges for Long-Term Relocation and Local Hires
While it is true for some industries that it does not matter whether a new hire is sitting in Canada, China or France, for others, it absolutely matters. It is probably impossible for a manager to supervise a manufacturing facility via Zoom. Unfortunately, it is likely that companies seeking to transfer or hire foreign nationals will face increased hurdles, even beyond the immediate travel-related hurdles posed by COVID-19 travel restrictions. As unemployment numbers have soared, we have already seen a significant political backlash against immigrants in the U.S. Even putting aside any politically or economically motivated reduction of work visa numbers, the labor market reality of having millions of citizens out of work will make it extremely difficult to pursue work visas that require labor market testing. This would include Labour Market Impact Assessment work permits in Canada, Tier 2 General work visas in the U.K., and Subclass 482 work visas in Australia, among others.
Mitigating Negative Impacts: Preparation and Strategy
It is hard to imagine how any company, let alone a company with global operations and travel needs, could avoid the negative impact of the pandemic. Here are a few ways your company can mitigate (rather than eliminate) the negative impacts:
- Raise awareness. Your company and your employees are likely to face many obstacles that you are not accustomed to, whether it is a requirement that employees add 14 days to a business trip to accommodate a mandatory quarantine period, the need to obtain visas in advance of travel where they previously could travel without one, or delaying many months before starting a new position while waiting for a work visa approval. It is crucial that all key stakeholders within your company are made aware that immigration is not business as usual. Stakeholders include not only HR and legal personnel but also company managers and recruiters. To the extent that employees can book international travel without managerial approval, it may be prudent to disseminate policies and information to all employees regardless of level. Requirements for travel, transfer and new hires alike must be checked before business commitments and plans are made or contracts with clients are signed. We recommend providing both written and video training to ensure that managers and other employees outside of legal and HR who may not be familiar with immigration concepts have both an opportunity to ask questions and reference materials to refer to in the future.
- Conduct quarterly planning. In countries where international transfers or hiring of foreign nationals is not prevented by political and labor market challenges, it will be important for your company to plan well in advance for any transfer or new hire. It is likely that the process of obtaining the necessary work visa and/or permit will be slower for some time given the COVID-19-related backlogs. Even where the immigration process itself is not slower than usual, it may take significantly more time to procure the corporate and personal documents (such as birth certificates, marriage certificates and university diplomas) that often must be included in visa applications. It is also possible that there will be more requirements that must be satisfied to obtain the visa, such as medical exams and negative COVID-19 tests. Given this, we strongly recommend that your company plan as far in advance as possible. Although it is not always possible to anticipate all business needs, it is a best practice to work to identify upcoming assignments or new hires on a quarterly basis. We have seen that having a policy and schedule in place with the relevant managers and recruiters can go a long way to reducing last-minute immigration surprises. As part of this plan, before committing to a client contract or signing an employment contract, companies should confirm with their immigration counsel or another trusted source that the employee is able to qualify for the necessary visa and the timeline involved.
- Implement a global mobility management system. While we have always recommended that companies with global mobility needs have an organized way to track and manage the global movement of their employees, the pandemic has greatly increased the need for such a system. Many companies were caught off guard by the fast-moving pandemic and did not know where their employees were in the world, when their visas were expiring or how they were going to get them home again. Having a centralized system will certainly not solve all your problems, but it will at least equip your company with the information and tools needed to make informed decisions. A “system” does not necessarily mean the very latest and most expensive software for managing global mobility, but rather, some sort of functional, organized method by which to vet and track travel, international transfers and new foreign national hires, along with a clear company global mobility policy.
Audrey Lustgarten is the founder and principal attorney of Lustgarten Global PLC, a law firm dedicated to representing employers in global immigration matters.