Anything to declare?

As the U.S. tightens up immigration policies with a new mandate for the INS, Canadian companies with employees heading south for business should consider implementing a corporate immigration policy

The post-Sept. 11 approach at the United States border means everyone — including business travelers — will face increasing scrutiny when heading stateside. The U.S. Immigration and Naturalization Service’s new mandate is broader and more serious than a mere change in rules. It is a transformation in attitude resulting in a much harsher enforcement mentality at airports and borders. The change has resulted in increased scrutiny in all matters, not merely those issues involving national security.

As a result virtually all travelers to the U.S. — including those entering for business or work — can expect longer interviews and tougher questioning by the INS, including increased scrutiny of their documentation and regular background checks.

Because of this, it is important for companies to consider implementing a corporate travel policy to facilitate employees’ cross-border travel. This will avoid the situation where a company official advises or encourages an employee to tell inspecting INS officers at the border or airport that he is — nudge, nudge — traveling to the U.S. for “meetings” when in fact this is not the truth. Compliance with U.S. immigration laws will not only protect employees’ interests, but it can also protect the goodwill of the company and avoid potential liability.

WHAT’S NEW IN U.S. IMMIGRATION LAW — HOW DOES IT AFFECT BUSINESS?

Employees traveling to the U.S. for business or work should expect a better-resourced and more thorough review of documentation by the INS. For example:

•The Enhanced Border Security and Visa Entry Reform Act tightens visa screening, border and airport inspections and the tracking of foreigners within the U.S. The legislation provides consulates, borders and airports with more resources in terms of training, staff, equipment and funding.

•The INS’ zero tolerance policy requires all INS inspectors to ensure immigration law is followed precisely. This increases vigilance reduces airport and border officials’ discretion.

Visas for Certain Canadian Permanent Residents from Commonwealth Countries

The U.S. Department of State is considering enacting legislation requiring permanent Canadian residents who are Commonwealth citizens to obtain visas. This would require Canadian-based citizens of India, Pakistan, South Africa as well as some Asian, Caribbean and African countries to obtain visas for all U.S. travel. This rule, however, would not affect Canadian residents from the U.K., Australia or New Zealand. But the impact and inconvenience this proposed change could have on the ability of employees to travel to the U.S. on short notice should not be understated. Consider the following scenario.

Joe Patel, an Indian national and Canadian Permanent Resident, is a senior manager at your company where he has worked for 10 years. His work requires him to travel to the U.S. frequently to meet clients, suppliers and prospective customers. A supplier (or client) in Texas has requested an urgent meeting with him in two days time regarding the re-negotiation of an existing contract with certain senior level executives.

Under existing U.S. law Patel would need only to obtain an airline ticket and proceed to the airport, where he would be questioned by U.S. immigration authorities. Under the proposed legislation, however, if Patel lived in the Vancouver, Montreal, Toronto or Ottawa consular districts he would be required to:

•Make an appointment at a U.S. Consulate in one of these cities. Consular appointments currently take anywhere from a week to 10 days to obtain.

•Obtain the appropriate visa application fee of US$100, complete two forms and obtain photographs and a letter from your company stating the purpose and duration of his business trip.

•Attend an interview at a U.S. consulate with all required documentation and fees. Issuing a visa typically takes 24 hours.

•Upon visa issuance, go to the airport where he will be interviewed again by the INS.

This lengthy process restricts the ability of an organization to get key personnel into the U.S. in a timely and predictable fashion. In the meantime, your U.S.-based client or supplier could not meet with Patel as requested and, despite the best efforts to engage them in a teleconference, they have decided to cancel the contract and deal with a competitor.

Special Registration

Equally troubling is a recent piece of U.S. legislation affecting certain Canadians and Canadian residents known as “special registration”. It requires persons from a list of selected countries to be specially interviewed, fingerprinted and photographed at borders and our airports. Special registration procedures trap not only Canadian residents who are citizens of Iran, Iraq, Libya, Sudan and Syria but also naturalized Canadian citizens born in these countries. Travelers, including Canadian citizens, could also be targeted if they are nationals of or were born in certain other predominantly Muslim countries, such as Yemen, Pakistan, Afganistan, Malaysia and Indonesia. By early November the U.S. indicated it had carried out more than 14,000 special registrations.

In such situations, employees meeting the criteria above should be advised to get to the airport early and be ready for the possibility of being specially registered. Affected employees should make sure they carry all necessary documentation showing the nature and duration of their U.S. travel.

Questions of employees’ prior criminal records

The Canadian government, intelligence and law enforcement agencies at all levels have indicated a willingness to share more information with U.S. authorities. This means the INS will have access to travelers’ criminal records, with the likely effect of rendering more people inadmissible to the U.S. Consider the following scenario:

Lisa Smith is a Canadian employed as an account manager in Calgary. She is traveling to Los Angeles for a business meeting via Calgary’s airport. Smith was convicted in 1975 for simple possession of marijuana while a student at university (receiving a $50 fine). She has traveled to the U.S. frequently, never having been asked any questions relating to her conviction.

With greater sharing of information between the respective law enforcement agencies such as the RCMP and FBI there is an increased possibility such convictions and histories may be available to U.S. immigration authorities. In the above scenario, a record of Smith’s conviction could be viewed by the INS at Calgary’s airport and she might be denied entry. If denied, she would be advised to apply for a waiver of inadmissibility, which typically takes months to obtain.

ESTABLISHING A CORPORATE IMMIGRATION POLICY

Corporations and employees that have not fully considered immigration requirements will experience problems and delay entering the U.S. Since Sept. 11, many companies have already adopted comprehensive policies for cross-border travel. Proper risk management requires all cross-border travel be fully documented and in compliance with appropriate regulations. Now more than ever it is unwise to allow employees to travel to the U.S. to carry out business or work functions without the appropriate documentation and immigration authorization.

Why develop a corporate immigration policy?

A corporate immigration policy serves many purposes including, most importantly, ensuring compliance with U.S. immigration law. Other benefits include:

Protecting the corporation against liability from a disgruntled employee who has been placed in the position or asked to misrepresent the purpose of his visit to the U.S. (“My manager told me just to tell U.S. immigration that I was going to a meeting.”). Making misrepresentations can result in anything from employee being “red-flagged” for subsequent U.S. travel to outright exclusion from the U.S. if the misrepresentation is material;

Protecting corporate image and goodwill with U.S. immigration authorities. A few travelers from a company can ruin it for others from the same organization if they misrepresent the purpose of their travel to the United States; and

Facilitate trouble-free employee U.S. travel by ensuring proper documentation and, if necessary, authorization is provided to each employee.

Implementing a corporate policy

While it is relatively simple to establish a corporate policy outlining the requirements of adherence to other countries’ immigration regulations, ensuring employees and managers adhere to such a policy is a entirely different matter. For such a policy to succeed, managers and officers of the company must be advised of the serious consequences of non-compliance with U.S. immigration requirements. If employees travel routinely, consider providing comprehensive training in the form of written material and seminars. This guidance is invaluable in helping managers and other company officials to understand they can meet the company’s business objectives while at the same time ensuring full immigration compliance.

Ensuring corporate immigration compliance – Some simple steps

Corporate counsel, Human Resource personnel or a corporate mobility group within an organization may consider the following steps to ensure the company does not run afoul of U.S. immigration laws:

Create a clear and concise corporate policy for business and work travel insisting on compliance with all immigration requirements. This will protect an organization from being accused (whether by an employee, manager or the INS itself) of facilitating or encouraging misrepresentation to border officials.

Identify employees who travel or expect to travel to the U.S. Advise them there are new rules, regulations and policies in place and tell them to always comply with the organization’s travel policy for their protection.

Determine the purpose of the employees’ travel to the U.S. as far in advance as possible. Determining the purpose of the employee’s travel will help a company assess the documentation the employee should take with them and any visa they may require.

Determine the type of documentation or visa (such as working, business or consular) – if any - required for U.S. travel. For those truly traveling for business (not to work), some employees feel more confident if they are provided with a brief letter they can show if requested or if difficulties develop at the airport or border. Basic information on U.S. visa and immigration requirements can be found on-line at: http://www.usconsulatetoronto.ca/content/content.asp?section=visas&document=who and at http://www.ins.gov.

Consider engaging outside immigration counsel. The immigration process for business or work travel to the U.S. can be confusing. An opinion from legal counsel may be helpful to determine the category of entry, to assist in preparing the necessary paperwork and to resolve any red-flags that are highlighted from the information provided by the employee.

Make sure employees always present valid documents. Gone are the days of traveling with a drivers license and nothing more. Appropriate documents include original passports, birth certificates, and, if necessary, proof of status in Canada such as a resident’s Maple Leaf card or a temporary resident’s work permit. Employees who do not have a valid passport should be encouraged to get one as U.S. immigration officials are now favoring these machine readable documents over other proof of citizenship such as birth certificates.

Prepare and review the employee’s application or travel documents. It is important both the company representative and the employee carefully review all documentation (such as a letter for consular or immigration officials) for accuracy.

Prepare the employee for his interview with U.S. immigration or consular officials. This step helps the employee anticipate the questions that may be asked of him and how to respond (for example, truthfully and only when asked to respond). It can also serve as an overview of the application or interview process itself. Preparing the employee often reduces any anxiety on his part and assists in the success of the employee’s meeting with INS or consular officers

Follow up with the employee after his return. Doing this helps a company gauge trends and anticipate problems in the application process. It also allows the company to collect and retain copies of important documentation such as visa stamps and “I-94” cards issued to the employee. Visas issued by a consulate or I-94 cards provided to employees by the INS grant employees the right to enter the U.S. and document the validity periods of their lawful U.S. status.

Some more practical advice – Do’s and don’ts

To ensure that employees’ U.S. travel is as trouble-free as possible, always ask staff to check with designated people such as HR or company mobility representatives well in advance of their travel to ensure there is sufficient time to determine exactly what documentation is needed.

Organizations should always caution employees against:

•Misrepresenting themselves or any aspect of their circumstances to U.S. immigration authorities (employees should always be reminded of the importance of accurately explaining the purpose for their travel as it could affect their ability to enter the United States in the future, even for tourism purposes.)

•Arriving at the airport or border at the last minute given longer lines, more detailed background checks and possibility of lengthy interrogation. It is irrelevant to the INS if an employee misses his flight.

•Assuming the requirements applicable to a friend or colleague will also apply in their situation.

•Arguing with U.S. immigration officials. More than ever, this is counterproductive.

The proximity of Canada to the U.S. and the frequency of travel to that country puts Canadians in regular contact with immigration authorities at airports and borders.

Because the U.S. has created new rules, implemented a “zero tolerance” policy and is enforcing regulations more strictly, it is more important than ever to review employees’ travel patterns and ensure compliance with U.S. immigration law by creating a comprehensive corporate travel policy.

Doing so will assist the company not only in facilitating predictable travel for employees, but if considered carefully, will help ensure the company meets its business objectives with U.S.-based clients, suppliers or partners without subjecting itself to liability or tarnishing its reputation.

Alex Israel is a lawyer with Toronto-based Aylesworth Thompson Phelan O'Brien LLP. He advises corporate and individual clients with respect to U.S. and Canadian immigration and citizenship matters. He can be reached at (416) 777-0101 or [email protected].

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