Editor’s note. Today, we’re featuring a guest post by several colleagues in Mayer Brown’s Global Mobility & Migration practice; Liz and Paul2 are providing timely analysis of the potential impact on Government contractors of an important security agreement the Government recently entered with Afghanistan and that is now in effect.
U.S.-Afghan Bilateral Security Agreement took effect January 1, 2015
The new Security and Defense Cooperation Agreement (commonly referred to as the Bilateral Security Agreement or “BSA”) is now in effect and has significant repercussions for U.S. contractors and their employees. The agreement will permit continued U.S. support of Afghan National Defense and Security Forces (ANDSF).
The new agreement will affect many types of contractors doing work in Afghanistan. U.S. contractors are defined as “persons or legal entities who are supplying goods and services in Afghanistan to or on behalf of United States forces under a contract or subcontract with or in support of the United States forces.” U.S. forces is defined as “the entity comprising the members of the force and of the civilian component, and all property, equipment, and materials of the United States Armed Forces present in the territory of Afghanistan.” ANDSF is defined as “the entity comprising the members of the security forces under the Ministry of Interior and the Ministry of Defense of Afghanistan and, as appropriate, the National Directorate of Security, and other entities as mutually agreed.”
Covered under the agreement are issues such as: the development and sustenance of Afghanistan’s defense and security capabilities; use/ownership of agreed facilities, equipment and materials; movement of vehicles, vessels and aircraft; contracting procedures including business licensure; production of utilities and communication; judiciary procedures and criminal investigation collaboration; bearing of arms and wearing uniforms; visa requirements; import/export; taxation; driving and professional licenses and motor vehicle registration; permissible service support activities; and claims.
New Passport and Visa Requirements for U.S. Contractor Personnel
The BSA requires that U.S. contractors doing business in Afghanistan now must register and obtain a business registration license for a “reasonable” one time service charge made to the Afghan Investment Support Agency. The required licenses will be valid for three years. U.S. contractors and their employees must present a valid passport and visa to enter and exit Afghanistan. Notably, U.S. armed forces remain exempt from the passport and visa controls applicable to U.S. contracting employees and other foreign nationals.
Some U.S. contractor employees will be able to obtain visas on arrival, but only for exceptional situations not defined under the agreement. Contractors and their employees currently in Afghanistan with valid visas can remain after January 1 until their existing visas expire. New work visas will be multi-entry visas valid for a minimum of one year.
Because the agreement has as a primary goal the application of Afghan law to all foreigners, U.S. contractors and their employees may also be required to obtain work permits, even though this is not expressly provided for under the agreement. More will become clear after a Joint U.S.-Afghan Commission created by the agreement is established. The new agreement coincides with major changes in Afghan immigration procedures, not just those that relate to U.S. contractors and their employees.