United States: Innocents Abroad: Business Traveler Troubles

Last Updated: March 16 2016
Article by Kevin R. McNamara

From: Ned Help

To: Carrie Counselor

Subject: Scope of Permitted Activity as a Business Traveler

Carrie:

At 4:50 p.m. today, one of our top software developers, Ben Bedraggled, stumbled into my office.  He dropped his suitcase and computer bag on the floor and slumped into a chair looking like he had been on an airplane for about 24 hours – it turns out this was about right.

Ben had flown to Milan on business to join members of our company's European development team working on a project there.  He's a US citizen, so he planned to enter Italy without a visa as a Business Visitor.  Ben told the Immigration Officer at Milano Malpensa Airport that he was coming for a week to work on a project for a famous auto maker client outside of Milan.  Unimpressed, the Immigration Officer questioned Ben in unsteady English about exactly what kind of work he was doing, at what location, and who was paying for it.  He was then taken over to a Customs Inspector who opened his computer bag, pulled out and examined copies of correspondence from our Italian affiliate and the client, full of technical specifications about the project.  Ben explained that he was only working on the project for one week as a consultant, but the questioning about his role and the project became contentious.  The Immigration Officer called our Italian office and was told that Ben was expected to join the development team to provide his expertise on the project at the client's facility for just one week.  Long story short:  the Immigration Officer told Ben he needed a work visa and ordered him to a detention area, where he was kept overnight, until he was put on the next plane back to New York.

What should we be thinking about going forward?  What are employees allowed to do on business trips?

Ned


From: Carrie Counselor

To: Ned Help

Subject: Scope of Permitted Activity as a Business Traveler

Ned:

Ugh.  I'm sorry to hear of these difficulties.  It seems Ben was denied admission because the authorities considered his proposed activities to be "work" not permitted by a mere Business Visitor.  This is a common scenario faced by business travelers around the globe.  The distinction between those activities permitted a Business Visitor and those activities requiring a work visa is not well-defined in many jurisdictions.  Furthermore, immigration and custom officers are given wide discretion to make this determination and may not be well-trained, may harbor their own prejudices, and may not be fluent in the business traveler's language.  Furthermore, the apparent ease of visiting a country without a visa due to free trade and other agreements can create the false impression that the visitor's admission to the country is guaranteed for any business-related activity.

The activities allowed a Business Visitor vary from country to country, but they generally share some common factors.  These are some questions you might ask of the employee and manager about a proposed business trip before consulting with an attorney knowledgeable about the laws of the country to be visited:

  • will the employee engage in any "productive work" or training while abroad?
  • will the employee provide or sell any goods or services during the trip?
  • with whom and where will the employee engage?
  • who will pay the employee's salary and expenses during the trip?
  • what is the source of any remuneration resulting from the trip, and to whom will it accrue?
  • will there be additional visits in the future?
  • how long is the proposed visit?

Send Ben home and alert your company of the need to let you or your team know of any proposed foreign travel at the earliest possible time so you can gather the details of the scope of activity contemplated and consult with counsel before finalizing any plans.

Best,

Carrie

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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