In my last column, I looked at the problem of being stopped at the U.S. border, and what you should and should not do if you’re barred entry for a minor criminal event from your wayward youth.
This time I’ll examine the issue of business travel to the United States and work authorizations under NAFTA.
Business Visitor Status
If you’re a Canadian who wants to enter the United States for business, it’s essential to know the “permissible business activities” that will normally allow you to sail through.
If you’re entering the country on behalf of your Canadian business or Canadian employer for the following reasons, you will normally qualify as a “business visitor” and gain access with relative ease:
1. To engage in a business meeting.
2. To attend a conference.
3. To negotiate a contract.
4. To take orders for goods manufactured abroad on behalf of a Canadian (or foreign company).
There are a few additional scenarios that make Canadians eligible for business visitor status, but the ones above are the most common.
Problems occur when people say they’re going to the United States for “tourism” when it’s clear they’re not, or when they’re going down for actual “paid work” without being formally permitted to work there.
Saba Naqvi is a Vancouver immigration lawyer licensed to practice in both British Columbia and California. She regularly assists corporations and individuals with Canada-U.S. immigration matters. I spoke to her at length about business travel south of the border.
She says some Canadians believe that by virtue of the existence of NAFTA, or by simply being a Canadian citizen, they have a “right” to enter the United States without being scrutinized. That’s not true. So if you’re trying to enter the United States for business, it’s not a good idea to tell the U.S. Customs and Border Protection officer you’re going for pleasure.
Misrepresentations have serious legal consequences. You might not get to return to the United States.
Besides, the officer can look through your briefcase, your luggage and your laptop, and that large stack of business cards or marketing brochures in your suitcase underneath that nice Zegna business suit might not be consistent with telling the officer you’re going on a beach holiday.
If you’re denied entry, don’t try again at a different border crossing on the same day thinking you have a fresh chance with a new officer. Denied admissions are updated in a centralized U.S. database and they are accessible immediately at every U.S. port of entry.
So trying to scoot through at a different border crossing in your aloha shirt claiming you’re going on a holiday on the same day you were refused enter in your business suit because you looked like you were going to engage in work is a strategy that could jeopardize your ability to enter the United States for the rest of your life.
Ms. Naqvi says if it’s clear you’re travelling to the United States on a quick business trip to attend a meeting, a conference, or to negotiate a contract on behalf of a Canadian company or employer, there shouldn’t be a problem at the border. All things being equal, Canadian business visitors will qualify for admission. But if the trip is expected to be longer, or you are doing more than negotiating a contract, you might need to produce additional information to the officer substantiating your business purpose for travel.
It can be helpful to have a recent letter from your employer concisely outlining the purpose of your business visit, the limited duration of your stay, confirmation of your Canadian employment, confirmation that you are being paid by your Canadian employer, and confirmation of your Canadian residence.
A business meeting that is anticipated to last more than a week should be fully explained by disclosing a schedule of meetings. If it’s your intent to enter the United States for a meeting that will span several weeks or months, chances are you may be improperly classifying your proposed activities as “business visitor” and you may be offside of U.S. immigration laws, which is not something you want to be, given it may jeopardize your chances of returning to the U.S., even for a holiday.
Clearly, you aren’t permitted to enter the country to provide services to a U.S. business or client or to engage in work for a U.S. company while getting paid from a U.S. source, without obtaining valid work authorization. This includes independent contractors providing services to U.S. clients while in the United States where the contractor gets paid by having funds wired to his or her Canadian bank account.
So what do you do for a longer term stays in the United States, where you actually need to live and be paid there?
Treaty National (TN) Status for Professionals
For stays in the United States that could be characterized as “employment,” Ms. Naqvi explains that if you’re a Canadian citizen, it may be possible for you to obtain authorization to work in the United States as a NAFTA professional.
NAFTA outlines a series of more than 60 “professional occupations” that qualify for a work authorization known as treaty national or TN status. If you fall into this category, and other admissibility criteria are satisfied, applicants with the proper documentation will normally be permitted entry at U.S. preclearance at Canadian airports or at U.S. land border crossings.
Accountants, architects, computer systems analysts, engineers, graphic designers, scientists, lawyers, management consultants and physicians are a few examples of the applicable professions covered by TN status. Each professional category has its own minimum educational requirements and/or experience requirements that applicants must satisfy. If they don’t, they will not be as approved for TN status.
To qualify for a TN NAFTA work authorization, you must have a clear and comprehensive letter from your proposed employer or client in the United States that includes proof of the temporary position in the United States (referred to as a “supernumerary” position), the professional job description, the temporary nature of the work in the United States (a maximum of three years may be permitted at a time), the amount of remuneration you will receive, evidence that you meet the professional qualifications pursuant to NAFTA, as well as the U.S. company’s requirements for the position.
You must also have proof of your academic qualifications, prior professional experience if applicable, and proof of your Canadian citizenship. Intent to maintain your permanent residence in Canada throughout your TN status is also required. For that reason, it is a good idea to have documentary evidence of a Canadian residence. Many Canadians who obtain TN status permanently live and reside in Canada while travelling to the U.S. intermittently to engage in professional duties.
TN applications can be put together by the applicant, but often the applicant or his or her employer will have a lawyer do it for them, and shepherd the documentation through the system.
Ms. Naqvi states that common reasons for refusal of TN status under NAFTA are the production of vague employment letters, a failure of the applicant to demonstrate his or her professional requirements, a job description for a position in the U.S. that doesn’t match the profession (for example, a computer programmer applying for the position of computer systems analyst), or submitting an application in advance at the U.S. border while not being on the way to commence work in the U.S. that day, which is a requirement that surprises most people.
Intra-company Transfer (L-1 Status)
Here’s another way of working in the United States under NAFTA: An employee of a Canadian business entering the United States 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 United States may qualify as an individual for work authorization as an intra-company transferee, which is called “L-1” status.
“L-1A” status is for executives and managers and “L-1B” status is for specialized knowledge professionals.
The requirement for this classification is that the individual seeking L-1 status must have been an employee in Canada for a minimum of one continuous year for the previous three years in a similar position prior to the transfer. Both the Canadian and U.S. business entities must actively be doing business. More extensive provisions apply for individuals seeking admission on behalf of their employer to enter the United States to open a new office there.
If approved, L-1A status may be issued for up to three years initially, up to a maximum of seven years. L-1B status may be issued for up to three years as well, up to a maximum of five years. L-1 status for new office scenarios will only be issued initially for a maximum of one year.
Exceptions to the maximum stay provisions apply to Canadians who enter the United States intermittently and who do not spend more than six months in a year in the United States in L-1 status. Common reasons for refusals of L-1 status are: failure to adequately demonstrate that both entities are actively involved in business, failure to demonstrate a managerial or specialized knowledge function of the employee, or attempting to submit documents for adjudication when an individual does not plan to start work on the date the application is submitted at the port of entry.
Although L-1 status is available to all foreign nationals, Canadian citizens are permitted to submit L-1 petitions at certain border crossings or at U.S. preclearance at Canadian airports. Submitting through the service centre in the United States is also an option.
While it may seem like an overwhelming task to assess and apply for valid work authorization to the United States, it will be worth the steps and costs involved in the long run to ensure you do not violate immigration laws by illegally working south of the border. Being found to have worked in the United States unlawfully can result in inadmissibility to enter for years to come and possibly forever.
But remember, the above discussion provides general information and it is not intended to be a complete overview of the applicable U.S. immigration laws, and often you’ll need to consult with a lawyer experienced in U.S./Canada immigration matters.
Special to The Globe and Mail