Please have passports – and patience – ready

Greater scrutiny could lead to delays or denied entry for employees crossing borders
By Janet Bomza
|Canadian HR Reporter|Last Updated: 04/08/2013

Your company’s vice-president of sales is scheduled to attend sales meetings in Texas with a client — a trip he has made many times before. However, upon arrival at United States immigration at the airport, a U.S. customs officer subjects him to an hour of questions about his business activities in the U.S., the clients he is to meet and his credentials.

The officer asks him for his work visa and the vice-president shows the contract he has with the U.S. client. However, he is refused entry, fingerprinted and photographed. Flights, hotels and meetings have to be cancelled.

So, what happened?

Business travellers to the U.S. may be granted entry either as “business visitors” or workers with valid work authorizations.

In the current work environment, such travellers are being subjected to a much higher degree of scrutiny and frequently being denied entry because they are unable to establish that they qualify as genuine business visitors or because they have no U.S. work authorization or are not eligible for one.

A “denied entry” record may impact the business traveller’s future cross-border travel, triggering potential liabilities for the employer.

What’s permissible for business visitors?

Many companies assume employees qualify as business visitors to the U.S. if they will be participating in meetings. However, activities that compete directly with those in the labour market or directly benefit a U.S. entity — even though they are performed in the context of a meeting — generally fall outside the classification of permissible business visitor activities.

For example, one Canadian engineer who travelled to the U.S. for meetings — during which she would review drawings and provide feedback on the progress of her U.S. subsidiary’s development project — was recently refused admission at the border. The U.S. officials said her activities went beyond the scope of a business visitor, even though they were taking place in the context of a meeting.

Many companies are confused about who qualifies as a U.S. business visitor and who requires a work authorization. Some companies mistakenly believe that if an employee is in the U.S. for only two days, no work visa is required.

Others believe employees who enter the U.S. only intermittently, or without receiving payment directly from a U.S. company, do not require a work visa.

In fact, what employees will do while in the U.S. and who actually benefits from the activities performed by them while in the U.S. are of far greater significance.

The U.S. Department of State identifies the following as permissible business visitor activities:

• engaging in commercial transactions that do not involve employment in the U.S., such as taking orders for goods made abroad

• negotiating contracts

• meeting with business associates

• litigation

• participating in scientific, educational, professional or business conventions, conferences or seminars

• undertaking independent research.

Business visitor status is only available to non-U.S. nationals who:

• have a residence outside the U.S. that they do not intend to abandon

• have no intention of directly entering the U.S. labour market

• are entering the U.S. for a limited period

• are entering the U.S. for the sole purpose of engaging in legitimate activities relating to international business.

Employees entering the U.S. as business visitors should be briefed on how to respond to extensive questions from immigration officials on the purpose of entry.

They should also be given a business visitor letter that outlines:

• their duration of stay and destination in the U.S.

• their purpose of entry and the scope of activities to be performed while in the U.S.

• their job title in Canada

• details on who is covering trip expenses

• confirmation they will receive no remuneration from a U.S. entity for any activities performed while in the U.S.

Travellers seeking entry to the U.S. to work are also reporting problems securing work authorizations or re-entering the U.S. with previously granted work status classifications that remain valid.

2 common classifications used by Canadian companies

The two most common work status classifications used by Canadian companies sending employees to the U.S. are the Trade NAFTA (North American Free Trade Agreement) or TN status for professionals and intra-company transfer (L-1) status.

Some customs officers are interpreting the requirements for work status eligibility differently than they have in the past, imposing much higher standards, while others are imposing significant restrictions on the issuance of work authorizations.

There have also been reports of officers re-assessing the eligibility of travellers with TN status when re-entering the U.S. with a valid TN authorization, to ensure the person’s work activities continue to be consistent with those described when the TN status was initially granted.

NAFTA lists about 60 professional occupations that qualify for a TN work authorization, such as accountants, computer systems analysts, engineers, graphic designers, scientists, lawyers, management consultants, physicians and teachers.

Each professional category has minimum requirements around issues such as education and experience that applicants must satisfy.

Applications for TN status must be complete when presented at U.S. pre-clearance at Canadian airports or U.S. land border crossings. Applicants who fail to establish that the activities to be performed in the U.S. clearly fall within one of the identified professions, or who neglect to carry their original degrees as evidence of their educational achievements, risk being denied entry to the U.S.

Intra-company transfer (L-1) status is divided into the L-1A status for executives and managers and the L-1B status for specialized knowledge professionals. To qualify for L-1 status, employees of a Canadian entity must be entering the U.S. to provide services as an executive, manager or employee with specialized knowledge to a parent, branch, affiliate, sister or subsidiary of the Canadian business in the U.S.

Applicants must have been employees in Canada in a similar position for at least one continuous year during the three-year period before the transfer. The Canadian and U.S. business entities must both be actively doing business.

Over the past two years, individuals applying for L-1B status have been subjected to more extensive assessments by border officials. It is no longer sufficient to demonstrate proprietary knowledge of the employer’s product or service as grounds for specialized knowledge — customs officers are now taking into consideration the applicant’s importance within the employer or industry, among other factors.

Given this new era of extensive questioning and high level of scrutiny, companies must ensure employees travelling to the U.S. have the appropriate immigration classification and are properly prepared, with the correct documentation and the right answers to immigration officials’ questions.

Janet Bomza is managing partner of immigration law firm Bomza Law Group in Toronto. A certified specialist in citizenship and immigration law, she advises employers on immigration matters such as offers of employment, managing the immigration process, corporate mergers, acquisitions and divestitures. Bomza can be reached at (416) 598-8849 ext. 400 or jbomza@bomzalawgroup.com.

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