Sunday, September 30, 2012

Leaving Kuwait? Know your legal obligations!

I got a question from a reader which was interesting and I thought I should reply to and post on the blog for others’ information. 

Disclaimer:  I am not a lawyer.  I do not pretend to be one.  I am writing from personal knowledge/experience.

Lady’s son was here on a contract with an American company (but that had sponsorship through a Kuwaiti company), left Kuwait because of an emergency, took another job somewhere else, then returned to Kuwait, only to be arrested at the airport for absconding.

As y’alls know, it is a pain in the derrier to get a residency visa (that’s a whole ‘nother post).  Security clearances, fingerprints, medical tests, etc.  So, when it comes to leaving, you can’t just pack and go. There are things that you must do (legally) to “close out.” 

Those cars you see at the airport parking lot with flat tires and covered with dust: probably belonged to people who did not properly close out. 

American companies often do not fully understand what they are getting themselves into when starting operations in Kuwait (see last paragraph/note of this post).  Then, it becomes a Chinese whispering game to explain the rules of the land to their employees.  There is an American Business Council here, but they will most likely only provide  you with the name of a lawyer.  It is also NOT the mission of the US Embassy (here, there, anywhere) to assist Americans:  They are on diplomatic missions in the countries where they are.  Plus, add to the problem that most embassy staff are only here on 2 year rotations and may spend their time with other Americans working at the embassy.  In fairness, 2 years is not sufficient time to learn everything about the country where they are posted.  They also can't help everybody with everything.  Not their yob.

The relationship between the sponsor and the American company: 

Kuwait requires that businesses are owned 51% by Kuwaitis.  So, if Western companies wish to do business in Kuwait, they need to set up a business with a Kuwaiti partner (at 51% - which is why many Western companies choose not to set up operations here) or a joint venture of some kind where a sponsor company will allow (for a fee) the Western employees to work under the sponsor company's business license - which includes visas.  Some companies provide visas for a fee independently of any shared business interests.   In the US, it would be similar to you or I having a company, and sponsoring a foreign worker on an H1 visa.  You, as the sponsor, are responsible for the whereabouts of that worker.  If he "skips" - you have to fill out a whole lot of paperwork and may be responsible for associated fees (legal and otherwise).

What happens when a person leaves Kuwait without properly "signing out" with the sponsor and the Kuwaiti government:

Each company is only allocated X number of visas per year.  The sponsoring company must prove to the government that their workers are being paid and treated fairly.  (For example, if an employee suddenly stopped getting paid, the sponsor company should – in theory – get in trouble as salaries are being direct-deposited.)   If an employee  leaves without handling the proper paperwork, the government fines the company and can either close their file (meaning they can close the company for a period of time) or the government can decide not to extend any additional visas to the company; therefore the company loses money.  It becomes exceptionally more difficult for the company to file paperwork on an employee - like lady's son - who has left the country without handling his paperwork properly.  There are costs incurred and time spent.  They must (legally) register a case with the Kuwaiti court (to prove that they are no longer sponsoring the employee) that the employee has "absconded".  Sometimes, they must even post a public announcement in the newspaper with the employee's photo. This also covers the company in case the employee has committed/will commit a crime (like theft, murder, whatever... or just decide to hang around illegally in the country) in the future. 

Then it becomes a matter for the government to find the person who has skipped and figure out why they are still in the country; basically, the employee has a “warrant” on them at this point.  If they leave Kuwait and return, they can be arrested – just like the States where if you have an open warrant, you will be arrested until you can resolve the matter.  (Like one of my friends who closed his US bank account and forgot a check still out for $9.  He was arrested on a bench warrant at Atlanta airport as soon as he got off the plane. Not fun to spend 2 days of your vacation in jail.)
 (As a commentor wrote today, teachers who "pull a runner" can be blacklisted in the entire GCC.  If you have a REALLY bad experience with your employer, please seek legal assistance from a local lawyer before it comes to that.)

Anyone moving to a foreign country MUST  know the laws of that country.  Don't take the word of me, your company, or anyone else.  Research and educate yourself.

I’m not saying that the lady’s son was to blame.  It may have been that the American company he went to work for did not properly advise him of his obligations, but that would be hard to prove in a US court, lengthy and expensive.

What should her son have done? 
By law, anyone residing and working in Kuwait must provide 3 month’s notification to their employer before ending their employment.  (The company may make the determination to let the employee go prior to the end of the 3 months, but it is to their discretion.)  Then, the company should make arrangements with the Ministry of Social Affairs and Labor to close out the employee’s file.  He/she will be given 30 days to stay in the country before having to leave Kuwait (and accruing daily fines).   Employees can also go to the Ministry of Social Affairs and Labor (MOSAL or “Shaoun”) and cancel their visa, but I believe they require a release letter from their employer.  They may also require a bank clearance.

So, her son should have given his employers’ notice that he had an emergency (in writing).  If he had to leave same-day, he should have returned to Kuwait and cancelled his visa – or – before leaving Kuwait the first time, hired a lawyer and signed a power of attorney to deal with his affairs.

*NOTE:  American companies operating in Kuwait or lawyers requiring assistance in writing “What to Expect” manuals for their employees living working in Kuwait:  Write to me!  My rates are reasonable and I can facilitate/customize your requirements.


Anonymous said...

nuther outstanging DG post
for clarification, after a 90 day notice on the part of an employee, the company MAY immediately start the process of clsoign the visa
likewise, the comapny may give a 90 day notice and start the process of closing the visa (giving the 90 days of pay) if the work is actually finished
i know several of these cases in which the work came to an unexpected halt and notices were given , received, pay given and visa cancelled in a week

teachers frequently 'pull a runner' in sticking with a bad school and leave the country at christmas WITHOUT GIVING NOTICE. They fall to appreciate the brotherhood of the GCC and the power of the Internet meaning the school can get a 'blacklist' (no entry) for anywhere in the GCC....but those 'runners' usually want nothing to do with Arab countries again....

Unknown said...

Hi, this is really great article about Kuwait. I am living in Dubai and my girlfriend is from Kuwait so I want to move Kuwait and work there. I am looking for jobs from CareerJet... They have lots of updated ads. Also do you know any other useful site for that? Thank you...

tracy said...

Hie I was just wondering I have a friend who just left Kuwait without cancelling his sponsorship now he has gotten a job in Dubai and it has only been a month since he left Kuwait will this have any impact on his new found job in Dubai as he is abt to apply for work visa there

alvin said...

Hi, I'm facing an issue, could you please help clarify? I was interviewed by a kuwait based company. But I denied the offer. Later I was interviewed byanother company and I accepted the offer. Now when they tried applying for visa, it got rejected saying another visa is active. On enquiry, I learned that te other company had got my visa processed without my consent. I contacted the company, and they accepted it was due to some miscommunication from the agency side, and agreed to cancel the visa. They sent me a cancelled copy too, and said that it has been cancelled. My current company made a fresh visa application (twice) along with the cancelled copy, and again it got rejected. They cited reason that my name is still reflecting in social affairs. I have no idea what this is all about. All that I have is a cancelled visa copy, which was sent to me via email. Could you please clarify what is wrong? I have contacted the other company again, and they replied saying visa was cancelled long back. But they said they will still check with the ministry again, on sunday. Any suggestion?

alvin said...

Update: I am in India, and never travelled on the said visa.

Owner of a Lonely Heart said...

Hi Alvin. It may take our accepted company mandoop (pro) and the previous company mandoop to work this out. It can be done but will take time and needs vasta ( influence) to clear the issues. Not impossible but needs effort from both sides