Cross-border business

U.S. immigration changes make it tougher for Canadian companies

There is a real concern companies are losing cross-border business because of indiscriminate immigration security screening. Tales abound of security restrictions on foreign visitors that are so broad they make it difficult for foreign companies to do business with the United States.

The post-September 11 security sensitive environment and the 30 Point Border Declaration signed by the U.S. and Canada last December have already led to changes in cross-border inspection procedures at U.S.-Canada airports and borders. Although immigration and customs officials in both countries do plan to co-operate to simplify crossings for pre-approved, low-risk travellers, businesses are still grappling with the effect of dramatically increased security. While the new security measures are not directed at corporate travellers, the reality is that border and pre-flight immigration processing is not what it used to be.

Political shift means legislative change

In the past year and a half, American and Canadian legislators have reacted swiftly to tighten border security. In the United States, The Homeland Security Bill mandates the largest government overhaul in half a century, merging 22 federal agencies into a new Homeland Security department, tasked with preventing terrorist attacks on American soil. In Canada, government has implemented the new Immigration and Refugee Protection Act, with its tightened criminality and security provisions, as well as the introduction of a new Citizenship Bill with a similar emphasis on security and criminality.

Officials in both countries say the goal is to identify travellers who pose no risk, and indicate that everything possible will be done to ensure that these individuals are on their way to business commitments without delay. The reality is, however, that Canadians, Canadian permanent residents and others seeking to travel to the U.S. from Canada already routinely face more rigorous scrutiny when they are interviewed by American officials. The same is true of those travelling from the U.S. to Canada. Business travellers experience increased scrutiny of their documentation and more regular background checks. They can expect longer interviews, tougher questioning and higher refusal rates. While the notion of separating the security threats from the business traveller makes sense, implementation may be another story.

As far as Canadian permanent residents are concerned, the U.S. is going ahead with new visa requirements that will affect the mobility of Canadian immigrants from more than 50 countries who were previously able to cross the border freely as Canadian citizens. (For more on new requirements for Canadian permanent residents visit www.hrreporter.com, select “search” and enter article #2321.)

NEXUS (a single alternative inspection system): An effective HR tool?

Amidst a sea of bad news there is some good news for the business traveller. The NEXUS alternative inspection program may serve HR professionals as a helpful tool. It is designed to allow pre-screened, low-risk travellers to be processed with little or no delay by U.S. and Canadian border officials.

An employee may qualify to participate in the NEXUS program if the person is a citizen or permanent resident of the United States or Canada, or is a non-permanent resident who can demonstrate a need. Applicants must be approved by both the United States and Canada and it goes without saying that they will not qualify if they are inadmissible to either country under current immigration laws. Take note that employees are not likely to qualify if they:

•provide false or incomplete information on their application;

•have been convicted of a criminal offence in any country for which they have not received a pardon; or

•have been found in violation of customs or immigration law.

Those approved receive an identification card that allows them to use fast-tracked NEXUS-dedicated lanes at the border, which will allow them to bypass most routine customs and immigration questioning. The NEXUS identification card is valid for up to five years.

NEXUS is presently functional at a number of border ports of entry. It will be expanded to all other high-volume crossings between the two countries by the end of 2003. Canada and the United States are also working to implement a joint NEXUS-Air program for air travellers. NEXUS-Air will be piloted at Montreal’s Dorval International Airport and the Ottawa International Airport in early 2003, and will include a pilot of its recognition biometric technology.

While its implementation may not be perfect, the NEXUS program is one tool that does allow cross-border business travellers some relief from U.S. and Canadian immigration and customs scrutiny. However, in the present environment of security sensitivity it is extremely important all business travellers and immigration petitions and applications be prepared thoroughly and carefully.

To ensure continued cross-border travel, it is crucial HR professionals are aware of both the changes affecting cross-border travel and the tools, such as the NEXUS program, that can help ensure employees’ successful business travel.

Nan Berezowski is a Canadian lawyer and U.S. Attorney–at Law. She is an executive member of the American Immigration Lawyers Association (Canada Chapter) and co-author of a leading text on citizenship law. She can be reached at (416) 850-5112 or [email protected].

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