Posting USA

If the employee to be posted has not yet been determined, the personnel selection process should begin at least six months before the planned posting abroad.

When employees are to be sent to a U.S. location, it is not only internal company aspects that are decisive. It can be particularly difficult for the responsible HR manager to make a decision during the pre-selection process. The eligibility or suitability for obtaining a work visa does not result solely from the company's needs.

The online magazine "Personnel Today" has a short guide which can support an initial decision. The English acronym "COPE" (roughly: to create, to master) is used here as a guide and stands for the following initial criteria, which are decisive for obtaining a U.S. work visa, among other things. However, not all criteria are to be considered with the same importance, yet they all play a role in obtaining the visa.

1. Criminal and prior immigration history
   A possible criminal history and previous visa rejections can considerably complicate the application process or, in the worst case, lead to a renewed visa rejection. Here, of course, it is always important to consider the individual case, because the type and severity of the offense are assessed differently.
2. Occupation
   This refers to the position held by employees. The higher and more qualified the position, the better the chances. For a E-Visa or L visa the employee must qualify as a manager, specialist or executive, for example.
3. Previous experience
   Previous experience within a company is also primarily aimed at qualification. With a longer company affiliation, it can often be assumed that there is deeper company or special knowledge, which in return is indispensable for some visa categories. In some cases, a certain length of service with the company is required when applying for a visa.
4. Education
   Last but not least, the education or studies are of course important. Depending on the visa category, different criteria come into play. Here, in addition to the type of degree, the respective field of study is also decisive.

In our consultations, we regularly experience that immigration law requirements are often addressed very late or sometimes even too late. As a rule, employees to be posted require a US work visa. In U.S. immigration law, several categories are available here, with very different access requirements and sometimes very demanding and lengthy application processes. At the same time, the multitude of work visa options is no guarantee that all expats will automatically qualify for any category. In this respect, we always recommend to have the visa side in mind already when selecting potential personnel.

Nothing may be more frustrating for HR departments than to see secondment packages that have already been completely wrapped up in terms of employment, tax and social security law fail on the home stretch due to the US visa.

In addition, we recommend paying attention to three other factors that can also influence the success of an employee assignment:

1. Personal suitability
Is the employee independent, flexible and open-minded enough to find his or her way in the new environment?

2. Family situation
Does the employee have any family obligations that might prevent him or her from being sent to the USA? Which family members would move to the USA with him/her? How old are the children?

3. Health situation
Does the employee have any illnesses or health conditions that would be worsened by the assignment or would result in high additional costs?

Under labor law, the following options exist for a posting:

1. In the case of a posting to the USA, the employee is typically posted from the foreign parent company or subsidiary. In this case, the parent company or subsidiary can continue to pay wages and the employment contract remains in place.
2. The other possibility is that the e.g. German contract is suspended or canceled directly with the company in the U.S. concludes an employment contract.

Whatever the company decides, legal and tax aspects must always be taken into account.

Special features for German companies

It should be clarified in advance whether the employee is still liable for tax in Germany. Normally, the tax liability for employees exists not only in the USA, but also in Germany. This is precisely regulated in the double taxation agreement concluded between Germany and the USA.

For most employees, taking up a job in the U.S. brings with it a host of private challenges and questions in advance. The application for the appropriate work visa can usually be handed over to a third party. But if employees want to bring the family with them, a visa application becomes necessary for all family members.

As a general rule, dependents of work visa holders are entitled to receive a so-called derived visa which inmost cases even has the same period of validity. Specifically, this means for spouses of the main applicant and their unmarried children under 21 years of age, that they apply for a visa, which is issued tied to the work visa.

Special case stepchildren

But what is the actual situation with stepchildren? That is, if one spouse has brought a child into the marriage who comes from a previous relationship.

According to the U.S. Immigration and Nationality Act (INA) Art. 101 (b), a stepchild also falls under the status of a child eligible to receive a derivative visa. The prerequisite is that the marriage of the parents was contracted at a time when the stepchild was not yet 18 years old.

Accordingly, a derivative visa can be applied for in the same way for stepchildren, even if the main applicant is not a natural parent.

With pleasure we advise you in choosing the right visa category for employees and accompanying family members.

In order for the temporary assignment of employees to be completed successfully, reintegration in the home country must also be sufficiently prepared. This includes, among other things:

• The proper handover or completion of tasks in the US.
• The organization and, if necessary, assumption of costs of the move.
• A new job in the home company must be found that also fits the new qualifications and experience of the personnel. Agreements, such as salary or vacation days, should also be adjusted.
• Follow-up: Was the predefined goal of the assignment achieved? What positive as well as negative experiences can be taken along for future assignments?