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Do work authorization systems meet the needs of nontraditional, or ‘gig,’ workers?

By Sonya B. Cole

hen someone travels abroad and works generations. systems should consider in another country, that person typi- catering to this workforce, as countries facing an cally will need work authorization in increasingly aging population and shrinking labor W the receiving country, with the defining pool need to consider options outside traditional factor being the nature of the activities the person work scenarios. will perform while in the country. But what about In 2019, the fastest-growing gig economies were gig workers, telecommuters, and remote online as follows: workers who are conducting work on an inde- Percent increase (based on revenues Country pendent basis for a company often based outside reported by freelancers, 2018 to 2019) the receiving country? Worldwide immigration schemes in large part are not geared to foreign U.S. 78% workers seeking nontraditional and flexible work U.K. 59% arrangements, since these schemes are based on Brazil 48% a model requiring an employer-employee rela- 47% tionship and/or a contract with a company in the destination country. In these flexible arrangements, Ukraine 36% neither may exist. 35% Today’s growing gig economy requires immigration 29% systems to adapt to meet the needs of foreign workers who want to be able to travel outside their home Source: Payoneer’s The Global Gig-Economy Index: country while they work. This article discusses how Q2 2019 several countries’ immigration systems handle non- traditional workers and highlights countries’ immi- ARE THESE COUNTRIES’ IMMIGRATION SYSTEMS KEEPING gration systems. These offer differing ways to handle UP WITH THIS GROWTH? nontraditional workers, highlighting the disconnect The short answer is no. The summaries below discuss that exists in the immigration policies of countries the available options and applicable restrictions to where the gig economy is growing the fastest. foreign gig workers in several of the fastest-growing gig-economy countries: WHAT IS A GIG? • U.K. There are several potential visa options avail- Although there is not a single definition, a gig is able to gig workers, but none specifically tailored often defined as a temporary work arrangement to gig employment. Also, the majority of these visa that involves a worker taking on a short-term proj- types tie applicants into long-term commitments ect, sometimes through a contract but without ties to the U.K., so they are not a perfect fit for the role to an employer. Regardless of the industry, a digital of a gig worker. Some examples are: the Tier 1 platform facilitates services between these freelanc- Innovator Visa, which requires the foreign national ers and customers. This situation provides flexi- to have a business or business idea that is endorsed bility on both sides of the equation—the employer by an approved government body with at least is often free from having to offer full-time benefits £50,000 in investment funds and which limits the and a salary package to the worker (while also worker to employment by that business; the Tier benefiting from a larger pool of interested candi- 1 Start-Up Visa, which requires endorsement by dates than those interested in full-time work), and an authorized government body and requires the employees are often free to choose their own work worker to be able to show that the business is a location, work hours, and other terms of the project new idea and viable with potential to grow; or or job (while also benefiting from a quick paycheck the Standard Visitor Visa, which limits the foreign and gained work experience). worker to certain outlined permitted work activi- ties and does not allow frequent entries to the U.K. HOW FAST AND WHERE IS THE GIG ECONOMY GROWING? • Brazil. The immigration regulations of Brazil do The gig economy is growing steadily around the not currently contemplate visa options for for- world and is gaining traction with all workforce eign freelance or independent workers seeking

34 Mobility | January 2020 to conduct work activities for a local company in Brazil. The primary work authorization category in Brazil is the Work Contract Visa, used by foreign nationals to work for a Brazilian entity under an employment contract. Under this category, the foreign national is required to be directly employed and paid by the sponsoring entity in Brazil, and a regular employee-employer contract is acceptable as the basis of the visa application. There are also two types of work visas that allow a foreign national to conduct services or work for a Brazilian company without becoming a direct employee of that company. However, some of the main criteria of these visas make it diffi cult for gig workers to fi t into them. For example, the Long- Term Technical Visa is for foreign nationals who visa-exempt nationals, or under the rules of the will provide technical assistance to a Brazilian entity business visa stay period for visa nationals. Such under the terms of a Technical Services Agreement foreign workers are not eligible for a Visa D and between the foreign national’s employer abroad and Temporary Residence Permit in Ukraine. Further, the Brazilian entity; this restricts the freelance worker if the activities of such workers are considered to technical services. The Inter-company Trainee work—i.e., they perform the same functions Visa is reserved for foreign nationals who will be that are performed by regular employees of the transferred temporarily from their home employer employing company—both the company and the to an affi liated company in Brazil to receive training; foreign national may be liable for penalties. freelance workers are not training, so this does not • Philippines. The immigration regulations of the fi t. And the Urgent Short-Term Technical Visa is for Philippines do not provide visa options for for- foreign nationals who perform urgent technical activ- eign freelance or independent workers to conduct ities; however, freelance work is often not considered work activities in the Philippines without a typical technical or urgent. employer- employee relationship, which requires • Pakistan. Self-employment and project-based work an employment, secondment, or assignment require setting up a business through the Securities agreement. All workers, including freelance and and Exchange Commission in Pakistan, after gig workers, must be sponsored by a duly regis- which a work visa from the Ministry of Interior tered local sponsoring entity in the Philippines to is needed—which can take several months to conduct the full range of work in the Philippines process. The alternative is to apply for sponsorship under either a Special Work Permit (for work by a local business, which requires an employer- under six months) or a long-term work visa (the employee relationship and may trigger local type of which depends on the local sponsoring contract and payroll requirements. company’s registration). • Ukraine. Foreign nationals working for a • India. Gig workers must apply for an Employment Ukrainian employer from outside Ukraine must Visa, which requires a contract between the worker obtain a work permit, which necessitates a and the Indian entity. The fee being paid by the Ukrainian employment agreement and a sal- Indian entity for the work being performed must ary payable by a Ukrainian employer. Foreign meet the minimum annual salary threshold (cur- nationals working on freelance, self-employed, rently approximately US$23,000) when prorated. or project-based work in Ukraine for a Ukrainian Since Employment Visas are sponsor-specifi c, employer can work without a work permit if workers cannot undertake projects for multiple they are registered with Ukrainian tax authorities companies while in India. They are required to as private entrepreneurs—though this type of complete work for one entity and obtain a new visa stay is limited to 90 days in a 180-day period for in their country of residence to work for another

worldwideerc.org | Mobility 35 entity. Foreign nationals who own a legally reg- istered company in India and who have obtained an Employment Visa via this entity can work with multiple clients, provided offi cial contracts or agreements are available. CAN FOREIGN GIG WORKERS LIVE AND WORK ABROAD UNDER ANY OTHER ARRANGEMENTS? • Digital nomad visa available only in one coun- try. Other than the above countries, only Estonia has specifi cally addressed gig workers through a “digital nomad” visa that allows work online for an employer outside the host country. This visa was implemented at the end of 2019, and it targets freelancers working mostly online who spend at least half the year traveling. It is available for a duration of up to one year and includes travel rights within the 26 Schengen countries (, CONCLUSION Belgium, the , Denmark, Estonia, Work rights for foreign gig workers are still a gray area Finland, , Germany, Greece, Hungary, in many countries’ immigration laws. But one thing is Iceland, Italy, Latvia, Liechtenstein, Lithuania, clear: The faster the growth of the nontraditional work- Luxembourg, Malta, the Netherlands, Norway, force, the more outdated many immigration schemes Poland, Portugal, Slovakia, Slovenia, Spain, will become—if they remain based on a model of Sweden, and Switzerland). employer-employee relationships and local contracts • Other types of visas that may work. This last with the on-the-ground company. group of countries off ers independent work, entre- To keep up with the projected growth of this preneurship, self-employment, or working holiday sector of the workforce, immigration systems will visas, which could cover fl exible work arrange- need to either create special freelance visas or make ments in certain situations. Countries that off er current work authorization programs more flexible such visas include Germany, Spain, Portugal, and to take advantage of a large pool of available Australia. However, some of these programs have international talent and their inevitable spending in strict visa durations and other factors that may the country in which they reside. Over the next 18 limit the usefulness of this visa for certain fl exible months, we believe countries will develop increas- work arrangements. ingly innovative immigration systems that not only • Working on a tourist visa. When foreign nation- allow them to take advantage of the gig economy, als work under a tourist visa—either because the but also remain globally competitive in attracting immigration system does not provide for a work foreign talent. M authorization that fi ts the workers’ conditions or needs or some other reason—they can face fi nes, Sonya B. Cole is an associate and global writer for imprisonment, deportation, bans from entry, and Fragomen. She can be reached at +1 917 628 0561 or other penalties. Some countries have specifi cally [email protected]. clarifi ed that teleworking and other fl exible work arrangements do in fact require work authoriza- tion. For example, in 2017, Spanish immigration Keep the conversations going on this and authorities clarifi ed that foreign nationals who other topics by participating in our online telework without a work or residence permit in Community. Sign in at worldwideerc.org/ ® Spain and their employers are subject to fi nes rang- community with your Worldwide ERC ing from €501 to €10,000 for the foreign worker and username and password. €10,001 to €100,000 for the employer.

36 Mobility | January 2020