In a global economy, Canadian employers often require their employees to travel to the United States for critical business. However, Canadians engaging in cross-border business travel have to be aware of work status requirements and the difference between business travel and work travel. The following frequently asked questions are aimed at equipping the employer with knowledge and tips that may assist personnel entering the U.S. for business and employment-related travel with relative ease.
Canadian employers and business people navigating the U.S. border for business should take the time to understand what constitutes a legitimate business visitor activity. An individual seeking entry to the U.S. may enter the U.S. as a “B-1” business visitor on behalf of their Canadian business or Canadian employer to attend a business meeting; to negotiate the terms of a contract; to attend a conference or trade show; and in some cases, to provide after-sales service in connection with the sale of a product.
In general, Canadian citizens who perform the above-mentioned business activities are “visa exempt” and do not require a visa to enter the U.S. If a U.S. Customs and Border Protection (“USCBP”) Officer is convinced that the business travel is legitimate and other requirements for admission are satisfied, admission will be granted at the port of entry.
The traveler should be prepared to satisfy the USCBP Officer that they meet the three distinct requirements outlined below at the port of entry. In the event that the employee has had problems crossing the border in the past, ensuring they have adequate supporting documentation prepared in advance to present if needed may be useful.
1. Permanent Residence
An employee should have a home in Canada to return to. Proof of residence may be demonstrated by a title deed or a lease. In some cases, further evidence of a residence to return to may be requested such as utility bills, telephone bills and evidence of assets.
2. Intent to Enter the U.S. for a Temporary Period
The business visitor must be prepared to demonstrate that the intended entry to the U.S. is for a limited period. A detailed itinerary for the business trip, a return trip ticket and evidence of strong business and family ties to Canada would be helpful.
3. Intent to Engage in Permissible Business Activities
The third and often most onerous requirement is that your employee satisfies the USCBP Officer that the business visit will not involve the employee engaging in unauthorized “work” in the United States. The most appropriate evidence to explain the legitimate purpose is in the form of a letter from the Canadian employer identifying the specific business purpose, the employee’s position in Canada, date Canadian employment commenced, annual salary and the date the employee will return to their job in Canada.
It is critical that employers and employees engaging in business travel be aware of the distinction between “business” and “work.” As mentioned above, a business visitor enters the United States on behalf of their Canadian employer or business to engage in activities such as attending a business meeting, to engage in sales on behalf of their Canadian employer or to attend a conference. On the other hand, an individual who enters the United States to provide services to a client or business in the United States is viewed as engaging in work. The test that USCBP often applies is whether or not the U.S. party could hire an individual in the U.S. to perform the service? If so, then it is work. Whether or not the U.S. entity attempted to find a U.S. professional to provide the services is not relevant in this determination.
A common misconception is that employees are permitted to perform services in the U.S. as business visitors as long as they are not getting paid directly from the U.S. source. This is not the case. In general, any service that is provided to a U.S. entity while the Canadian is on U.S. soil is considered an activity outside of B-1 business visitor classification and work authorization is required. A good test: a Canadian company looking to attract a U.S. client may send their employee to the U.S. as part of the marketing effort for a meeting or contract negotiation. Once a contract for services is signed, any subsequent activity would generally be viewed as work and work authorization would be required.
Under the Canada-United States-Mexico Agreement (“CUSMA”), formerly the North American Free Trade Agreement (“NAFTA”), Canadian businesses who have sold a product to an American entity may send personnel to enter the United States to provide “after-sales service” incidental to the sale of the product. After-sales service may include installation, assembly, repair, maintenance, and training. The provision for after-sales service must be specifically provided for in the original sales agreement and the contract must be shown to USCBP Officers at the port of entry. The individual entering to provide the after-sales service must possess specific specialized knowledge and skill pertaining to the services required. It is not necessary that the after-sales service is provided by an employee of the seller but may be a third-party contractor as long as the provision was provided for in the original contract of sale. It is important to note that the product must have been manufactured outside of the United States.
If the activity does not fall within the after-sales service category, work authorization is required. Canadians may benefit from facilitated processing of work authorization at U.S./Canada land border crossings and airports. Canadians qualified in a profession listed in Appendix 2 of CUSMA may seek Treaty National (“TN”) status. TN status is requested on behalf of the Canadian employee by the U.S. client or entity requesting professional services in the form of a letter. The TN letter must contain very specific elements to demonstrate the Canadian employee’s qualification for the status. Additional supporting documents must be shown by the employee. Examples of supporting documentation for TN status includes the employee’s academic credentials such as degree or transcripts, reference letters, resume and Canadian employer support letter.
Work authorization options also exist for qualified intra-company transferee executives, managers and employees with specialized knowledge being transferred to a U.S. parent, affiliate, branch or sister company of a Canadian corporate entity.
For those who do not fit within the above categories, other options may be examined.
USCBP views travel to the United States as a privilege and not a right. Taking the time to prepare and understand the requirements of U.S. laws can prove very beneficial in removing the anxiety which may be associated with business travel. Often activities are not easily identifiable as clearly falling within the definition of business or work. It may be best to consult an expert knowledgeable in immigration laws before sending your employee across the 49th parallel.
The following outlines a short summary of some Do’s And Don’ts of U.S. business travel for human resources professionals:
Take the time to research the proposed business visitor activity. Advance preparation and advice from an expert can go a long way. A denial at the border can have a long-term negative impact not only on your employee’s travel to the U.S. but also your company’s reputation with U.S. immigration.
Educate Your Employee
Ensure your employee understands the purpose of the business visit – while you may have thoroughly prepared all of the required documents with painstaking detail, if your employee cannot explain the purpose of their visit in direct and simple terms, they may face difficulty.
Ensure Your Employee is Honest
The importance of being honest about the proposed business activity is paramount. Sometimes nervous employees inadvertently attempt to come up with answers they think the Officer wants to hear rather than being upfront about the actual visit.
Make Assumptions Based on Prior Experience
Prior frequent travel by your personnel to the U.S. without incident does not mean unlimited future access—each Officer has a varying perspective in determining eligibility.
Have Faith in Unverifiable Internet Sources
Don’t use “template” letters you find on the internet without exercising extreme caution. Unfortunately, the “one-size fits all” adage does not apply to U.S. immigration laws. A very minor error could cause your company major problems.
In the event your employee is turned away at the port, as long as they were up front about the purpose of the visit, in many cases, the problem may be rectified be returning with appropriate documentation.
This is a brief overview of some aspects to keep in mind when considering cross border business travel. For more detailed information, please contact Boughton Law’s Immigration Section.