USFOR_A_U.S._EMBASSY_KABUL_BSA_FAQs.pdf

USFOR-A/U.S. Embassy Kabul BSA FAQs:

(Publication Date: March 10, 2015)

General Information:

NOTE: The U.S. – Afghanistan Security and Defense Cooperation Agreement, also known as the Bilateral Security Agreement (BSA) has entered into force as of January 1, 2015. Beginning

January 1 and continuing until June 1, 2015, the Afghan Government, through a Presidential

Decree signed by President Ghani on December 31, 2014 has instituted a transition period allowing for phased application of Afghan law to BSA contractors and contractor employees regarding entry/exit requirements (visas) and contractor charter flights as set forth in this fact sheet. The Presidential Decree also provides relief without time limit in a number of areas such as work permits, business licenses, and weapons permits. The specifics of the arrangement

(agreed to between the United States government and the Afghan government) can be found on the US Embassy’s webpage, http://kabul.usembassy.gov/pol-mil.html.

The Presidential Decree is considered in force and law as of the date of signature and does not need to be published in the official Gazette or approved by Parliament.

Any definitions contained in the BSA apply to the terms used in this fact sheet. This fact sheet only applies to BSA contractors and the non-Afghan employees working under those contracts or subcontracts. For the purposes of this fact sheet “BSA Contractors” or “BSA Contractor

Employees” mean “U.S. Contractor” or “U.S. Contractor Employee” as defined by the BSA. It does not apply to other companies, nor does it apply to non-Afghan employees working under other contracts or subcontracts.

The answers reflect our best, most up-to-date understanding of the facts at the time of publication. Information and answers are subject to change at any time and without notice;

please check back here often.

If you have additional questions, please contact KabulBSAInquiries@state.gov.

***This document is for informational purposes only. Contractors and contractor employees are urged to seek independent advice from appropriate professionals (attorneys, accountants, business experts, etc.) on all subjects relevant to the topics discussed in this document. This document does not constitute legal advice or opinion of any kind. No lawyer-client, advisory, fiduciary or other relationship is created. The

U.S. government will not be liable for any damages, losses or causes of action of any nature arising from any use of this document or of the answers contained herein.***

Frequently Asked Questions:

Entry/Exit & Visas

Taxation

Business & Professional Licensing

Weapons Permits

Importation & Exportation

Jurisdiction

Entry/Exit & Visas (please read all of the FAQs in this section; a lot of new information)

1. Are contractors required to have visas?

Yes. BSA contractor employees are to enter, exit and be present in Afghanistan in conformity with Afghan law. Contractors are strongly encouraged to apply for visas now, especially if currently located outside of Afghanistan. Contractors located outside of Afghanistan are encouraged to apply for visas at their nearest Embassy before arriving in Afghanistan. (See below for application requirements) Though it is not necessary to depart the country, contractors currently present in Afghanistan may leave Afghanistan to apply for a visa at an Embassy abroad or they may stay in country and apply at one of the four Ministry of Interior Passport Offices.

A valid passport is necessary as of January 1, 2015. Per the Presidential Decree, during the transitional period, these contractor employees are able to enter, exit, work and be present in

Afghanistan with (1) a valid passport and (2) a U.S. issued certificate indicating that they are a

U.S. contractor or contractor employee. The certificate can be obtained at the HQ Resolute

Support Legal Advisor office. Contractors and their employees will not be subject to financial penalties or judicial prosecution for lack of a visa from January 1, 2015 until June 1, 2015.

Those with expired visas may have to pay fines, as they have done in the past.

All employees of contractors are strongly recommended to submit their visa applications now if they do not already have valid visas.

Please check this website, http://www.embassyofafghanistan.org, frequently to receive additional information regarding those procedures.

2. Do I need a Work Permit?

No. A work permit is not required for visa issuance. However, the employees’ company is required to have a valid business registration license from the Afghan Investment Support

Agency (AISA); AISA will coordinate with other government ministries and agencies which may also need to approve certain aspects of the operations of that company.

3. What do I need to include in my visa application packet and what information is available regarding Afghan visas?

Under Presidential Decree #38, contractor companies may submit group applications for visas, on behalf of their employees inside of Afghanistan at the Ministry of Interior Passport/Visa

Office in Kabul or one of their regional offices in Kandahar, Herat, or Mazar-e-Sharif.

The following is required by The Ministry of Interior for each individual in order for an application to be considered complete:

A copy of the AISA business license of the contractor

Official letter from a senior representative of the contractor which (1) provides a list of the contractor’s employees who are applying for visas and (2) the name of the representative who will drop off and pick up the passports;

Letter of Authorization (LOA) or similar letter for NATO contractors for each employee

U.S. Contractors: DoD-issued Letter of Authorization (LOA) for each of their employees applying for a visa;

NATO NSPA Contractors: Letter on NSPA letterhead containing a list of their employees applying for a visa;

NATO NCIA Contractors: Letter of Affiliation for each of their employees applying for a visa;

Other U.S./NATO Contractors may submit a contractor certificate for each employee applying for a visa, issued by the Resolute Support Legal Advisor/U.S. Forces –

Afghanistan Staff Judge Advocate office;

Original passport;

Visa application form;

One 4 x 5 photo;

Da Afghanistan Bank Tariff receipt ($360 visa processing fee for a one-year, multiple entry visa and $200 visa fee for first-time visa applicants).

For persons applying for Afghan visas in the United States, the website for the Embassy of

Afghanistan in Washington, D.C. can be located here, http://www.embassyofafghanistan.org.

For persons applying for Afghan visas in third countries, see answer to question 6 below.

General information regarding Afghan visas can be found here, http://www.embassyofafghanistan.org/page/visa.

The English-language Afghan Visa Application Form is available in PDF format here, http://www.embassyofafghanistan.org/sites/default/files/forms/Visa%20Application%20

Form%20(English).pdf.

Below outlines the process:

4. How long are Afghan visas valid?

Afghan visa validity is determined by Afghan law, and subject to the type of visa. However, under BSA, contractor employees are able to obtain one-year, multiple-entry visas without having a work permit, although an additional payment of $200 is required during the visa application process for contractors and their employees who are submitting their visa applications for the first time. (Meaning you have not had a visa before)

5. Can U.S. and NATO contractor employees already in Afghanistan obtain a visa?

Yes. Apply through the Ministry of Interior Passport Office. See below.

a. Do contractor employees already in the country have to leave the country before obtaining a visa or renewing a visa?

No. Contractor employees should apply for a visa, through their employer, at the

Passport/Visa Office of the Ministry of the Interior. There are Visa Offices in Kabul, Kandahar, Herat and Mazar-e-Sharif. Currently, the Kabul office is the only office able to process the applications electronically.

b. Do contractor employees already in the country need to apply for visas individually?

Do they need to apply in person?

No. Consistent with current Afghan government practices, contractors may submit block or group applications on behalf of their employees already in the country, with no personal appearance required.

c. Are contractor employees already in the country required to have work permits prior to obtaining or renewing a visa?

Per Presidential Decree #38, contractors and their employees are not required to obtain work permits in order to perform their duties.

6. Are BSA contractor employees already in the country, subject to any fines or penalties stemming from the lack of, or the expiration of, a visa?

During the transitional period (which ends June 1, 2015), BSA contractors and contractor employees shall not be subject to fines, penalties or punishments based upon the lack of a visa.

Possession of an expired visa will likely continue to be subject to penalties, as it has in the past.

7. Can BSA contractor employees traveling to Afghanistan obtain visas prior to arriving in

Afghanistan?

Yes. It is strongly recommended that persons obtain a visa prior to travel to Afghanistan.

Afghan visas may be obtained at any Afghan Embassy or Consulate worldwide. The

Presidential Directive instructs the Ministry of Foreign Affairs (MFA) to establish procedures to expedite issuing multi-entry one year visas. Although procedures have not yet been finalized by the MFA, we expect that the MFA’s requirements for issuance of a visa outside of Afghanistan will be similar to those of the Ministry of Interior (see answer to Question 3 above).

8. Can BSA contractors submit block or group visa applications and payments on behalf of their employees traveling to Afghanistan?

Yes. No personal appearance is required. Per the Presidential Decree, contractors may submit group applications for visas, on behalf of their employees, along with the visa fee payment, to the relevant offices of the Ministry of Foreign Affairs and Ministry of Interior. We are aware that group payments have been accepted by the Afghan consulates in the United States.

9. What should BSA contractor employees expect at commercial airport terminals upon arrival in Afghanistan?

Contractor employees should be prepared to present their passport, visas, and employment letters if/when asked. Those contractor employees arriving at or departing from an Afghan commercial airport terminal after 1 January without a visa should continue to use visa exemption letters (as they have in the past) until they receive a visa during the transition period. Reports indicate that that some contractor employees have been asked for their work permits at commercial airport terminals, but the Presidential Decree is clear that no work permits are required. Those who become aware of such problems should inform the US Embassy through

KabulBSAInquiries@state.gov

A copy of the Presidential Decree outlining these provisions can be found at the US Embassy

Kabul’s website in both English and Dari.

10. How will passports and visas be checked and/or issued at military air terminals?

Policies and procedures are currently under development. For contractor employee passengers on Mil Air or a contracted airline arriving or departing from a military air terminal in

Afghanistan, we expect no changes from present procedures, until procedures are in place for those employees of BSA contractors to be issued 1-year multiple entry visas. We will update this fact sheet to reflect when such procedures are in place and when changes are expected at military air terminal ports of entry. (Please see question 12 below)

Nonetheless, if contractor employees will be exiting the country from US installations at any time they should obtain and carry a visa or visa exemption letter and have a valid passport.

11. Are BSA contractor employees performing their contractual duties in Afghanistan required to obtain work permits?

No work permits are required.

12. Will there be Afghan government personnel operating at the points of entry/departure to ensure compliance with visa, passports, and work permits?

Consistent with the BSA, the Afghan government may request that its personnel be positioned at military airports to account for entry and exit. But during the transition period while procedures are being developed for employees of contractors to receive visas, we do not anticipate Afghan government personnel positioned in those locations.

Currently, USFOR-A/Resolute Support are working towards establishing entry/exit facilitators on the commercial side of four key airports around Afghanistan – Herat, Mazar, Hamid Karzai

International Airport (HKIA) in Kabul and Kandahar. These facilitators, who are local Afghan national contractors, are knowledgeable on the laws and regulations concerning entry and exit requirements. These facilitators will serve as a go-between, facilitator and liaison between U.S.

and NATO personnel and Government of the Islamic Republic of Afghanistan (GIRoA) officials concerning entry/exit procedures and documents, such as passports and visas.

As of 8 March 2015, the facilitators are in place at HKIA while progress continues in establishing the facilitators in the remaining three airports.

13. How long does the visa and licensing process take?

Timeframes for visa issuance and licensing will vary according to individual circumstances.

Taxation

14. In the case of non-Afghan BSA contractors, should they continue to pay the normal withholding taxes required by Afghan law when making payments to Afghan individuals or

Afghan companies?

Yes. BSA contracting companies are subject to Afghan requirements regarding employer withholding of personal income tax from United States contractor employees who normally reside in Afghanistan and from BSA contractor employees who are Afghan nationals for payment to Afghanistan as required by the laws and regulations of Afghanistan. Please consult with Afghan tax experts.

15. Are the wages of BSA contractor employees subject to Afghan income or similar tax?

Contractor employees who do not normally reside in Afghanistan and who are not Afghan nationals shall not be liable to pay any tax or similar or related charges assessed by the Afghan government within the territory of Afghanistan on their activities and associated income, relating to a contract or sub-contract with or in support of U.S. forces. Their presence in Afghanistan solely for the purpose of performing their contractual duties that fall within the purview of the

BSA does not render them subject to taxation as someone who “normally” resides in

Afghanistan.

Business & Professional Licensing

16. Are contractors required to obtain Afghan business registration licenses?

BSA contractors are subject to registration in Afghanistan, via an expedited process that will include issuance of a business registration license valid for three years and payment of a reasonable, standard, one-time service charge to the Afghanistan Investment Support Agency

(AISA) as required by the laws and regulations of Afghanistan. As of March 1, these procedures are in the process of being finalized. Please refer to the AISA website for additional information on current licensing procedures that will be indicative of the documentation required for first time license applicants: http://www.aisa.org.af/licensing_procedur/AISA-Licensing-Web-

ENG.pdf. AISA will post these procedures as soon as they are finalized, and the Embassy will provide a link to the AISA website. Please check these two sites frequently for additional information.

BSA contractors shall otherwise be exempt from all other Afghan licenses and similar requirements in relation to their entry into, or execution of, contracts and subcontracts with or on behalf of U.S. forces. The Presidential Directive requires that AISA obtain approvals from any other Afghan ministries or agencies that may be required for the company to operate in

Afghanistan.

17. Are professional licenses issued by other countries valid as having a license in Afghanistan?

Afghanistan agrees to accept as valid all professional licenses issued by authorities of the United

States to members of the force or of the civilian component, U.S. contractors or U.S. contractor employees in relation to the provision of services as part of their official or contractual duties.

18. What are the key points of contact for business licensing in Afghanistan?

The Afghan Ministry of Foreign Affairs (MFA): Trade, Transit and Investment Directorate

Website: www.mfa.gov.af

Telephone: +93(0)20-210-0377

Address: Malik Azghar Road, Kabul, Afghanistan

Email: contact@mfa.gov.af

The Afghanistan Investment Support Agency (AISA)

Website: www.aisa.af.org

Telephone: 0093(0) 20-210-3404

Address: Opposite Ministry of Foreign Affairs, Kabul, Afghanistan

Email: invest@aisa.org.af

The Afghan Ministry of Commerce and Industry (MoCI)

Website: www.commerce.gov.af

Telephone: 0093-(0)700-225-718

Address: Darul Aman Road, Karte Se, Kabul, Afghanistan

Weapons Permits

19. Are BSA contractor employees authorized to carry weapons after 1 January 2015?

USCENTCOM/USFOR-A general policy remains that DOD contractors and contractor employees should be unarmed. An arming authorization is an exception to policy. Contractor employees will not be authorized weapons unless required to be armed to perform contracted duties. All DOD contractors and contractor employees are prohibited from possessing weapons in Afghanistan except:

A. DOD contractors and contractor employees providing armed security services inside

NATO/U.S. Agreed Facilities and Areas; and

B. DOD contractors and contractor employees who regularly (i.e., at least weekly) perform their contractual duties outside of Agreed Facilities in support of NATO/U.S.

missions, including the provision of training, advice, and assistance to Afghan National

Security Defense Forces.

Per the BSA effective 1 January 2015, US contractors performing security services in

Afghanistan are subject to all relevant requirements of Afghan laws and regulations. During the transition period, the Ministry of Interior will accept group applications for weapons permits from BSA contractors whose contractor employees carry a weapon for self-protection in order to perform duties outside of Agreed Facilities and Areas in support of U.S.’ missions, including the provision of training, advice and assistance to Afghan National Security and Defense Forces.

As of March 8, the GIRoA weapons permits procedures are in the process of being finalized.

Once procedures are in place and applications are processed, there will be a licensing fee and a licensing card will be issued by the Ministry of Interior.

For further information please contact USFOR-A Armed Contractor Oversight Division at DSN

318-436-7367, or usfora.acod.org@afghan.swa.army.mil.

20. What are GIRoA procedures and application requirements to obtain a Weapons Permit for contractors with an approved USFOR-A Arming Authorization Letter?

GIRoA process for obtaining a weapons permit is depicted in the below slide.

21. If authorized to carry a weapon, what rules apply to contractor employees regarding the use of force?

Afghan law applies. Inside U.S. bases, BSA contractor employees will also receive appropriate guidance regarding the Rules for the Use of Force.

22. Are BSA contractor employees authorized to apply for an Afghan weapons permit if they have been denied authority to carry weapons by USFOR-A or any other element, unit, or organization of the United States Department of Defense?

No.

23. Will BSA contractor employees already in the country be required to disarm? If so, will they all be required to disarm?

If a contractor employee does not fall under one of the two ETP categories identified in question #19, then that employee must be disarmed.

Responsible Officers (ROs) will supervise and coordinate weapons turn in.

24. If required to disarm, where will weapons be stored and how will they be sent back to the home nation of the contractor companies?

Weapons will be stored and transported in accordance with previously-established policy and procedures.

Additional guidance ref arming can be found on the USFOR-Arming Question and Answer sheet located on the Embassy web page: http://kabul.usembassy.gov/pol-mil.html

Importation & Exportation

25. What rules will apply regarding imports and exports?

Contractors may import into, export out of, re-export out of and transport and use in Afghanistan any equipment, supplies, materiel, technology, training, or services. The authorizations in this provision of the BSA do not cover the activities of contractors that are not related to the presence of U.S. forces in Afghanistan. For BSA contractors, identifying documents shall be provided to indicate that such equipment, supplies, materiel, technology, training, or services being imported by contractors are for U.S. forces’ purposes and not for any private commercial purposes.

Contractors, and those contractor employees who are not Afghan nationals, may import into, export out of, re-export out of and transport and use in Afghanistan personal effects. The imported quantities shall be reasonable and proportionate to personal use.

The property referred to in this provision of the BSA may not be sold or otherwise transferred in

Afghanistan to persons who are not entitled to import such items duty free unless such transfer is in accordance with agreed procedures, including on payment of any taxes or fees due as a result of such transaction, established by the Joint Commission.

The importation, exportation, re-exportation, transportation, and use of any articles brought into

Afghanistan pursuant to the above information shall not be subject to restrictions, such as licensing, inspection, or verification, except as provided in the BSA, or taxes and customs duties or other charges assessed by government authorities in Afghanistan within the territory of

Afghanistan. If Afghan authorities suspect the abuse of the privileges granted above to contractors and contractor employees, then relevant Afghan authorities reserve the right of inspection of such personal effects when arriving or departing from civilian airports in

Afghanistan or in personal vehicles at border crossings.

The relevant Afghan authorities reserve the right of verification of any container imported by contractors and contractor employees containing items for U.S. forces’ purposes in Afghanistan or for personal use, as described above. Without causing undue delay, and upon presentation by the relevant Afghan authorities of information to U.S. forces authorities that a contractor is abusing the authority granted above, U.S. authorities shall open and verify suspected shipments or containers intended for import in the presence of the Afghan authorities. Afghan authorities shall consent to the security requirements of U.S. forces and upon request by U.S. forces authorities permit such verifications to take place within agreed facilities and areas or other areas as mutually agreed.

Wearing of Uniforms

26. Are contractors and the contractor employees authorized to wear military uniforms?

The BSA does not allow contractors or contractor employees to wear military uniforms.

Jurisdiction

27. Are contractors and contractor employees subject to Afghan criminal and civil jurisdiction?

Yes, Afghanistan maintains the right to exercise jurisdiction over contractors and contractor employees. But the settlement or adjudication of contract claims shall be carried out in accordance with the terms of the contract.

28. Does Afghan labor law apply to non-Afghan contractor employees hired by non-Afghan contractors?

There is no BSA provision that applies Afghan labor law to the non-Afghan employees of non-

Afghan contractors. The terms of their contracts apply.

29. Is the United States government seeking to obtain the same immunities for contractors that

USG and Coalition personnel process?

There is no intention to seek any deviation from the BSA in this regard.

For additional and/or updated information, visit the Embassy of Afghanistan website at http://www.embassyofafghanistan.org/page/resource-guide