Virginia, US

International talent swaps are rapidly becoming one of the fastest growing trends in global mobility. The experience of working in a different country, and gaining exposure to another culture, is highly valued by employees, particularly those in the millennial generation. Employers are realising that by allowing employees from different locations to exchange jobs for a short period of time, they can lure top talent to their organisations. Short term secondments are also an excellent way to progress emerging, high potential employees towards the next rung on the leadership ladder by cultivating their global mindset and promoting cross-office collaboration.

There’s no doubt that such talent swaps can be highly beneficial for business, but they can prove challenging from an immigration perspective. As we regularly receive enquiries regarding talent swaps between the US and the UK, we thought it would be useful to provide an overview of the relevant immigration options in both jurisdictions. This blog focuses on the UK requirements, whilst my Partner Lisa Koenig will address the US considerations here.

Unless an individual is an EEA national or holds a UK visa in their own right, perhaps through ancestry or marriage, the main immigration category to investigate will be the Tier 2 Intra Company Transfer (ICT) visa. I’m often asked whether a business visitor visa can be utilised, however, this is not appropriate for anyone undertaking productive work or ‘on the job’ training. On the rare occasions, I receive a late night phone call because someone has been denied entry to the UK and is being held at Heathrow airport, it’s usually because they’ve attempted to enter the country to “provide cover” for a UK employee who is going on holiday or maternity leave. The business visitor visa is suitable for employees attending meetings, conferences, or joining classroom based training.  However, job swap employees will almost always be undertaking productive work, therefore, the correct work authorisation should be sought.

Before looking at the eligibility requirements for the individual, it’s important to note that the employer must first hold a Tier 2 A-Rated Sponsor Licence from the Home Office. This will allow them to issue Certificates of Sponsorship, which form the basis of a Tier 2 visa application. The current overseas employing company must also be registered with the Home Office as a linked entity on the Sponsor Licence.

From an individual perspective, the following points should then be considered:

  • Previous company experience – For most ICT visas, the employee must have been working for the employer overseas for at least 12 months before applying for their UK visa. This requirement will be removed for applicants earning over £73,900 per annum from 6 April 2017.
  • Skill level – The UK role must be deemed to be at or above bachelor’s degree level. This is assessed by mapping the proposed role against the Home Office’s published list of occupation codes. Many job swap employees are young and at a junior stage of their career, so this requirement can cause difficulties depending on the industry sector. By way of example, marketing executives are not deemed suitably skilled until they reach management level, whereas financial analysts and engineers satisfy the skill level requirements fresh out of university.
  • Salary level – From autumn this year, there will be two main ICT sub-categories available for job swaps, Short Term (up to 12 months) and Long Term (normally up to 5 years). The minimum annual salary requirement for the Short Term visa is £24,800, whilst the Long Term visa requires a minimum salary of £41,500. For both categories, the employee must also meet the minimum salary level specified by the Home Office for their particular occupation code, which may be higher. As most job swaps are short term, employers are currently able to utilise the lower salary threshold to send junior employees on assignments. Unfortunately, this practice will come to an end from April 2017, when the Home Office is abolishing the Short Term visa. Going forward, the intention is to restrict the ICT category to senior managers and specialists and so all applicants will need to qualify under a single visa category, with a minimum salary threshold of £41,500. This could significantly reduce the job swap opportunities for junior employees in lower paid industries.
  • Cooling off period - the ‘cooling off’ period prevents employees from applying to come to the UK if they have held a Tier 2 visa at any time during the prior 12 months. Businesses should carefully consider whether a particular employee may be required to undertake a second UK assignment during this timeframe, as the exceptions to this rule are limited and advanced planning is essential.
The talent swap phenomenon shows no sign of abating, and clearly provides significant benefits for both businesses and individual employees. Nevertheless, strategic planning is critical to ensure compliance with the UK immigration rules, and businesses may need to manage the expectations of their junior employees when the forthcoming Tier 2 changes take effect.

Should you have any queries or wish to discuss a potential UK talent swap, please contact our UK office at