14 February 2018
Canadian firms send employees to the United States every day to work for short periods of time. The experience at US customs is becoming more and more difficult. DESTL spoke with U.S. attorney, Adeline Simenon, on this topic.
A.S. – It is important to be prepared and understand which business activities require a work permit or a visa. Each situation is different and must be evaluated on a case-by-case basis. Generally speaking, a Canadian employee can, under certain conditions, visit the United States to prospect clients, meet clients, attend trade shows or provide after-sales service without a work permit or visa. A large number of Canadian companies send after-sales support technicians to install or repair commercial products that were manufactured outside of the United States. These activities are authorized in the United States under the "B-1" classification for business visitors. Canadians can be admitted by CBP in the "B-1" classification at the time of border crossing. On the other hand, an employee who travels to the U.S. affiliate of a Canadian company to consult with colleagues or to conduct training, will likely be subject to questioning by CBP to determine whether his business activities constitute skilled or unskilled labor, in which case a work permit or visa might be required (TN, L-1 or E Visa, etc.).
A.S. – CBP will determine which business activities constitute skilled or unskilled labor on a case-by-case basis at the time of border crossing. CBP will often ask the following questions to assess whether a business activity is acceptable under the B-1 classification: 1. Where is the employee being paid? In Canada or USA? 2. Can an American worker, or a person authorized to work in the United States, accomplish the same mission and tasks of the employee being sent to the United States? 3. Which company will benefit from the employee's visit? The Canadian company or the United States affiliate? 4. Does the employee travelling to the United States have a supervisory role in relation to the employees they are meeting in the United States? In conclusion, it depends on the type of business activity being conducted in the United States.
A.S. – Yes it does. Canadian employees can present most work permit applications directly at certain ports of entry on the U.S. – Canada land border or at a CBP pre-clearance airports, such as the Pierre-Elliot-Trudeau International Airport of Montréal, without prior filing with Citizenship and Immigration Services (CIS) in the U.S. In most cases, Canadian employees or entrepreneurs will receive work authorization right away, after a brief interview with a CBP Officer. The entire process will take anywhere between 30 minutes to 2 hours or more. In more difficult cases however, the file will be sent to CIS center in the United States where a CIS officer will take weeks, if not months to make a decision on the work permit application. The process is different for Canadian investors (or exporters) whose visa applications must be processed by the American Consulate in Toronto or Vancouver. That being said, the consular officers are very efficient and will typically make a decision on the visa application in 2-3 weeks, which is much faster than other consular posts in the world, including the U.S. Embassy in Paris.
A.S. – If this CEO is going to the United States to evaluate the performance of his American sales people, then he will possibly need a work permit. Most of my clients are Québec-based entrepreneurs or employees who work in the United States a few days or a few weeks every month. U.S. Immigration officials regard them as "intermittent" workers. Regardless of the frequency of business travel, or the fact that the CEO is based in Quebec, it really is the nature of the business activity to be conducted in the United States that will determine if a work permit or visa is necessary.
A.S. – It will depend on the business project in the United States. If a Canadian company has a branch or affiliate in the United States (or is planning on opening a U.S. office), and wants to send managers, executives or key employees to work for the U.S. entity, then a work permit is necessary. If a Canadian IT company wants to send its consultants to service its American clients, then a work permit is also necessary. Several factors such as the employee’s level of education, his/her role with the company and the type, duration of the project will help determine which visa or status is most appropriate. It is critical to determine, ab initio, which status or visa will be the most appropriate in light the U.S. Company’s objectives, staffing and financial projections. Some permits, such as the L-1, allow personnel to enter into the United States to launch a new U.S. office, but the initial L-1 status will only be valid for 1 year. On the other hand, an investor visa (E-2) or export visa (E-1) can be valid for 5 years, which gives more time to develop the commercial activity in the United States and therefore also increases the probability of visa renewal.
A.S. – Many activities are authorized without a work permit or visa (under the B-1 classification). In general, business development, meeting clients or preliminary activities related to an investment in the United States are authorized. On the other hand, once a U.S. company is formed and becomes operational, has employees, sales staff, CBP typically starts asking more questions at the time of border crossing to determine whether a work permit or visa becomes necessary to conduct the business development activities. Regardless of an investment or the existence of a U.S. entity, if CBP determines that the business development activity goes beyond what’s permissible under the B-1 classification, the officer will tell this CEO that he/she needs to apply for a work permit (status) or visa if he/she wishes to continue developing the U.S. market.
A.S. – In order to ensure smooth passage over the border, it is essential to understand what can be done without a visa or work permit during travel to the United States. There are visas and work permits specifically tailored to investors and exporters. It is important to consult with a lawyer admitted to practice in the U.S. and who has significant experience representing Canadian entrepreneurs, exporters and investors doing business in the U.S. Only a lawyer admitted to practice law in the U.S. will be qualified to represent and defend the interest of Canadian entrepreneurs before U.S. Immigration authorities. Under the Trump administration, border crossings have become more and more difficult, and it is essential to understand what type of business activity is authorized.
A.S. – Yes, only certain CBP ports of entry on the U.S.-Canada land border can adjudicate applications for work permits. They are categorized as « Preferred Ports of Entry » on the CBP website and include, for example, CBP Champlain, NY or CBP Highgate Springs, VT. This means that the immigration inspectors at these ports should be trained in U.S. immigration laws and should be familiar with the NAFTA rules. The same applies to certain CBP pre-clearance airports in Canada, such as Pierre-Elliott-Trudeau Airport in Montréal. In conclusion, it is important to be well-prepared for business travels. The last thing that a Canadian company wants is for one of its employees to be held up at the border or be barred from entering the United States.
Adeline Simenon is a French-Swiss-American attorney and director with the law firm Paul Frank + Collins. She is admitted in NY and practices international law and business immigration law throughout the United States. She has represented hundreds of Canadian and European companies doing business in the U.S.
The material contained in this interview does not constitute direct legal advice and is for informational purposes only. The information provided should never replace informed counsel when specific immigration-related guidance is needed.
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