The Plight of the Trailing Spouse

Andrea Elliott
Senior Foreign Attorney, Global Visa Solutions
Newport Beach, California, USA
aelliott@globalvisasolutions.com

If the title sounds like a line out of a Shakespearean drama, then the colorful scenes that can unfold, will confirm to the human resources manager that the ‘plight of the trailing spouse’ can be a tragedy for the assignment eclipsing Macbeth in its dire consequences.

What is a ‘trailing spouse’? As a noun, it is used to describe the partner (mainly women) in a dual-career relationship who gives up their job to follow (trail) their spouses overseas on foreign assignment. Whilst trailing spouses may hope to continue their careers upon arrival, most learn to their dismay that there are major difficulties in working legally in the new foreign country.
There is a common misconception that because one spouse is authorised to work in the foreign country, the trailing spouse is also authorised to work. If the principal spouse is assigned to a country, like the Netherlands for example, that does not permit the trailing spouse to derive work authorisation from the principal, and the trailing spouse wants to work, he or she will face the same challenges as the expatriate, but without the institutional support. The spouse will need to prove that he or she has some skill that is not available locally. Some employers hire the spouse of the assignee as a way of easing the adjustment for the family. In most cases, however, spouses are unable to pursue paid employment

Many foreign governments are anxious to protect the jobs of its own working population and therefore minimize their expatriate positions for executives or highly skilled individuals with a unique skill set in their field. Additionally the impact of high unemployment rates, increasing illegal immigration and restrictive policies add to the foreign governments’ reluctance to offer a greater number of work permits for trailing spouses.

The majority of today’s families comprise two working partners, both wanting to pursue a long-term career. It is commonly understood that the number one reason for foreign assignment failure remains spousal and familial discontent. Isolation and feelings of professional loss are problems that quickly arise if the trailing spouse has given up a fulfilling career to accompany the assignee abroad.

Despite an increasingly global society the problem of the career of the expatriate spouse still exists, and continues to frustrate international human resource departments. Increasingly companies are recognizing the need to address the problem in pre- assignment strategy planning and now devote a fair budget towards the provision of solutions.

Selecting the right employee is only one part of building the foundation for a successful overseas assignment. Pre-departure preparation is crucial, and it consists of more than just calling the movers and a travel agent.

The solution lies in pre-assignment planning, spouse and candidate/country suitability selection.

As a first step, identify the international locations that your corporation has a presence in.

Then, review the candidate selection by establishing the gender of the principal expatriate. Singapore, for example, does not recognize the possibility that a man could be the trailing spouse of a female expatriate, and so will not grant a residence permit to the male.

Establish whether the couple is married or in a de facto relationship; Muslim countries only permit accompaniment by married spouses and do not recognize de facto relationships.

Identify assignees in a same sex relationship. Here, knowing that the U.K, South Africa, Australia and The Netherlands recognize the validity of same sex relationships for work permit purposes can prevent any potentially incorrect country assignments.

For certain Southwestern Asian countries (formerly Middle East) you will have to review the religious affiliation of the expatriate spouse as discrimination is documented against non-Muslim females.

Ensure that this information is given to your immigration provider, or if the function is performed in-house, review the country immigration regulations on dependant’s right to employment.

Identify which countries view the trailing spouse as a dependant without a right to work and which countries will permit work authorisation for the spouse without him or her having to apply independently and face the same administrative challenges as the principal expatriate.

Develop a policy to ensure that the organisation is complying with immigration law; HR should strongly consider the development of a policy outlining how the work permit and visa application process is to be handled. Reminders about the policy and how to use it can be distributed through corporate intranets, e-mail blasts to managers, leaflets and other media.
If, for example, your organisation has locations in Australia and a Standard Business Sponsorship in place, you will be able to advise the business unit managers, that Australia is an excellent location to send dual-career couples. Australia offers working privileges to both the principal assignee and the spouse under, for example, the subclass 457 visa. This means that the trailing spouse does not have to apply separately for a work permit: they are authorised to work by virtue of the assignee’s approval.

The same benefit is afforded the spouse of a work permit holder for the United Kingdom, provided their passports have not been endorsed that they may not work.

On the other hand in the USA, there are only three categories of non-immigrant visas, ‘E’, ‘L’ and ‘J’ visa that offer the trailing spouse employment authorisation without a separate filing of work permit. Thus when a business need emerges that needs a foreign national to come to the USA, the first consideration should be strategizing with the provider to review the above steps and ensuring that if there is a need for the trailing spouse to work, that the correct work authorisation to facilitate both spouses is applied for before their arrival in the USA.

If the international human resources professional is faced with the situation that the couple is going to a country where only the assignee will be able to work, there are alternate solutions that are available to the spouse. While not perfect solutions, they do permit the spouse to overcome the isolation of not working at all.

In Belgium, for example, an alternate route that many trailing spouses take to overcome the work permit problem is to practice a trade or occupation as an ‘independent’. Independent, self-employed workers must have a Belgian professional card, which is the equivalent of a work permit for self-employed persons. Professional assistance should always be sought in the planning stages of the visa strategy as an incorrect initial approach to the authorities or an incorrectly completed application form may not be salvageable after the fact.

Another solution would be to find the trailing spouse a position with another company in the foreign country - this may force the couples to move abroad at a different time as the process of obtaining the trailing spouse authorisation would need to be completed prior to entry.

While it is not considered employment, finding a volunteer organisation where the trailing spouse can feel part of an entity, is a possibility.

There are the ‘student’ visa options, where the trailing spouse comes into the foreign country and enrolls for language skills training at a local college.
In the final analysis, pro-active rather than responsive corporate human resources policy on the plight of the trailing spouse simply makes good, bottom-line sense.

© Andrea Elliott B.A., LLB