By Kent O'Neil, Global Legal Analyst, Newland Chase
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. In this continuing Global Immigration 101 blog series, we look at different basic but vital aspects of immigration for 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 advice from the “real world” of mobility. (You are welcome.) If you missed our last class session on “Schengen Visas”… you can copy my notes here.
This week – a high-level overview of another of those “bread and butter” aspects of corporate immigration – “intra-company transfer permits” (ICTs in the industry lingo).
What is an ICT Permit?
“ICT” is the common industry abbreviation for “intra-company transfer” or “intra-corporate transfer”. ICT permits, sometimes called ICT visas, are work authorisations for employees of a company in one country to work temporarily at another company location in another country. Permits and visas specifically designated for ICT assignments are a common aspect of many countries’ immigration routes – found in all of the countries of Europe, the United States, Canada, as well as numerous countries of Africa, South America, and the APAC region.
Laws governing ICT permits and visas obviously vary depending on the country. Nevertheless, there are some aspects that are generally common to all. An overview of those common aspects may aide readers in interpreting and understanding the ICT permit rules in the various forms across the world.
As the name suggests, ICT permits are intended for employees transferring within the same business or organization. Therefore, both the company where the employee regularly works and the company where the employee will be working temporarily must be connected. Establishing that there is a qualifying link between the companies or locations is always a key requirement.
The simplest example of a qualifying link is where the same company has operations in two countries and is assigning the employee to work temporarily at the other location. However, the links may become less clear when assignments are between two separate companies that are connected in some fashion.
ICT rules in most countries provide for assignments of employees between companies that are part of the same “corporate group.” Instances where either the sending company or the host company is the parent company of the other are clearly considered the same corporate group. Likewise, where both companies are wholly owned by the same parent company, there is little question that they are part of the same corporate group.
However, where the relationship between the two companies is more nuanced, local laws and immigration authorities may not accept that the companies are part of the same corporate group. One such example is where the sending company is only a minority shareholder of the host company. Oftentimes, ICT permit rules will not consider this an intra-company transfer that qualifies for the permit. Less formal corporate relationships – like the various forms of joint ventures or strategic alliances common in some countries – likewise typically do not qualify under ICT permit rules.
Location of Employment Contract and Payroll
As ICT permits are intended for employees temporarily assigned to work in the host company, rules generally require that the employee remain an employee of the sending company. This necessitates that the employee continue under an employment contract with the foreign entity and continue on its payroll – rather than signing an employment contract with the host company and being transferred to its payroll.
Occupation or Position with Sending Company
ICT permit rules in various countries typically set forth the type of occupation or position in which the employee must be engaged. Generally, positions eligible for ICT permits will be in upper management or high-skills specialist occupations. However, in some countries, there are versions of ICT permits specifically designated for “trainees” which may provide for lower level employees to qualify.
In many cases, there may also be minimum education and/or professional experience requirements to verify that the employee is indeed at the level of a qualifying position.
Length of Employment with Sending Company
A common requirement is that the employee must have been employed by the sending company for a minimum period before the assignment – typically six months to one year, depending on the jurisdiction. However, in the case of ICT permits for trainees, this requirement may be waived or significantly shorter.
Length of Assignment, Temporary Work, and “Cooling Off”
ICT permits are limited in their duration. Depending on the country’s rules, ICT assignments may be limited to as short as two years or as long as five years.
In most countries, holders of ICT permits do not have a pathway to permanent residence (PR) in the country where they are temporarily working and do not accumulate years of residency toward PR or citizenship.
At the end of the ICT assignment, the employee usually must exit the country and apply for a new ICT permit or another visa category if they wish to continue working in the country. However, many countries’ ICT rules require a “cooling off” period before the employee may apply for an additional ICT permit or another visa category. That cooling off period can range anywhere from three months to a year.
ICTs in Europe
Probably the most progressive use of the ICT permit is found in Europe. In 2014, the European Union adopted the Intra-Corporate Transferees Directive (2014/66/EU). The EU ICT Directive is intended to create an EU-wide single set of rules and procedures governing ICT permits. To date, 25 of the EU-27 member states have transposed the provisions of the Directive into their national laws and processes. While there remain minor variations in the specific requirements for ICTs in the various EU member states, the Directive has certainly led to increased uniformity among the rules and processes for ICT assignments throughout Europe.
One particularly innovative aspect of the EU’s more coordinated and uniform ICT scheme is the concept of “intra-EU mobility”. Under this aspect, an ICT permit issued by one EU member state is recognized for short assignments in another EU member state. For companies with multiple locations in Europe, this allows for the transfer of non-EU national employees between the locations without needing to apply for multiple ICT permits.
Until next time…
I hope this overview proves helpful when looking at the specific ICT permit rules and processes found throughout the world – and gives HR and mobility managers a “heads-up” for potential issues when considering assignments between company locations. For more in-depth analysis and guidance on particular ICT assignments, you are invited to reach out to us at firstname.lastname@example.org.
Until next class session, keep reading our alerts and blogs on the Newland Chase website at blog.newlandchase.com to keep on top of all the latest in global immigration news you can use. You can have all our alerts and educational resources conveniently emailed to you once each week by subscribing to our weekly newsletter on our home page here.
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 60 offices in 26 countries.
Kent O’Neil is a Global Legal Analyst and frequent writer and speaker on international business and global corporate mobility for Newland Chase. Kent received his Juris Doctor from Penn State’s Dickinson School of Law and a Bachelors in Economics from Clarion University. Prior to joining Newland Chase, he worked in both private practice and in-house for a multinational corporation operating across North America, Europe, Asia, and the APAC region. Now based in the U.S., Kent has lived and worked as an expat in Pakistan and the Philippines.
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.