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Crossing the 49th

Tough employment conditions lead to crackdown on foreign employees
|Written By Daryl-Lynn Carlson
Crossing the 49th

A simple slip of the tongue can be all it takes for business travellers to be refused entry into the United States, sometimes even if the slip comes off someone else’s tongue. 

Take for example a case involving a Canadian employee of Kruger Products Ltd. The employee had entered the U.S. on business and his wife was to meet him there. When she passed through the border station she said her husband was “working” in the U.S. Months later the same employee tried to enter the U.S. on another business trip and was refused entry.

“The impact can be devastating,” says Alex Teijeira, director of human resources and legal counsel for Kruger in Canada. “Can you imagine your value as an employee if you’re not able to do your functions properly and travel freely?”

At first, Teijeira was unaware of the particular employee’s business travels. However, he intervened and was able to clear the way for the employee’s future business trips. Now there is an established dialogue with management and throughout the company to emphasize the need to furnish employees who travel with the proper travel documentation.

“My position and the company’s position is simple. We want to make sure if you’re performing work in the United States or you’re an American working in Canada, we want to make sure you have the proper approvals. It’s a lot of money and it’s a lot of time and an administrative burden, but at least if you’re going across the border to work, you’re not going to jeopardize your future.”

Teijeira arranges applications for an L1A — intra-company transfer visas for the U.S. — for most Kruger employees required to undertake frequent business. This enables them to access the U.S. to conduct work for seven years.

For some professionals with specific expertise, he advises they obtain a TN, non-immigrant professional visa facilitating travel for business under the North American Free Trade Agreement.

A rise in trade and the intercontinental nature of corporate structures under NAFTA is heightening awareness by companies and their counsel to ensure employees have the appropriate documentation well in advance of undertaking any business travel, says Teijeira.

Most large companies like Kruger now have processes in place to ease business travel. However, companies with a growing workforce and those that have recently undergone a management reorganization, might not recognize the status may have changed for their management.

Yusra Siddiquee, a partner specializing in business immigration at Ogilvy Renault LLP, says there may be some people in an organization with a specific expertise, and that expertise is shared on both sides of the border.

“When companies lend personnel across the border to execute a project, they rarely ever change payrolls, but as soon as that foreign company enters Canada to help execute a project, then that employee needs a work permit,” she says. “The frequency of travel is irrelevant. It’s the nature of the function.”

For example, a manager in an engineering or construction company assigned to oversee a bid for a project must obtain a work permit to enter Canada on business. On the other hand, a chief executive officer can usually travel to Canada or reciprocally to the U.S. under the business visitor status. This is because the individual is not providing project-specific expertise that a Canadian citizen, with commensurate qualifications, could fulfil.

At the very least, employees should be furnished with a letter from the company stating job title, role, and purpose for the business-related travel.

For those requiring documentation there are more than 20 categories, each with its own procedure and processing time, ranging from professional designations under NAFTA to those which require a labour market opinion approved by Service Canada to assess whether the skill set of a foreign national can be fulfilled by a Canadian candidate.

Often a company is required to prove it has advertised a position in Canada before dispatching an employee from a U.S. subsidiary to travel to Canada on business.

Siddiquee says identifying the appropriate category can be complex, and often companies learn lessons the hard way. “Unfortunately, the way that most people end up getting informed is by having a bad experience.” Often that is how their lawyers, whether in-house or outside counsel, find out as well, as was the case for Teijeira.

The most significant challenge for corporate counsel is keeping track of employees who travel, Siddiquee says. She recommends companies establish an intranet page employees can reference to determine if their title and skill set requires a work visa for travel, and also to notify employees they need to disclose to customs authorities their birthplace, all passports they carry, and of course, any criminal convictions.

Blair Pritchett, a lawyer at McInnes Cooper’s St. John’s, Nfld. office assists many clients in the energy and mining sectors with immigration requirements. He says since the economy soured, Service Canada seems to have been somewhat more diligent in its enforcement of cross-border travel. Based on experience, he says the department has been particularly rigorous on requiring companies to advertise a position before sending a current employee to Canada on business.

“If a person has obvious unique skill set, such as a nuclear physicist, clearly you’d think you can get away demonstrating that is a unique skill set,” he says. “But increasingly, they want to see there’s been an actual effort to recruit a Canadian and as you get higher in the skill-set ladder, it becomes harder to envision any kind of glut to hire a meaningful Canadian.

“The difficulty from a business standpoint is that sometimes it doesn’t make sense to advertise.”

He says while he expects the stricter interpretation will be relaxed once the economy stabilizes, blatant violators could be subject to harsher penalties. “There are some new regulations being discussed which may bring about some penalties for employers that don’t comply,” he says adding officials are considering a two-year suspension on travel for an employee whose position wasn’t advertised to find a comparable replacement in the Canadian market. That could prove to be problematic based on trends evidently emerging in the frequency that North American-based companies are doing cross-border business.

“I’m finding more companies are reorganizing to provide executives and managers with more North American responsibilities,” says Shanon Grauer, a partner in the business law group at McCarthy Tétrault LLP. “And with that, part of their job mandate is to come to Canada to conduct business.”

It is mandatory for companies to advertise positions for management personnel whose visas have come up for renewal, as of spring 2009. Recent amendments to the Investment Canada Act and the Competition Act have had an impact on cross-border business although “the repercussions are still being digested” by lawyers who work in the field, Grauer says.

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