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Feature: Beyond borders: employment & immigration

|Written By Jennifer McPhee
Feature: Beyond borders: employment & immigration

In the ever-changing global economy, corporations in the U.S. and Canada are increasingly opening up offices in each other’s countries, which frequently requires transferring workers across the border. What are the speediest ways to secure work permits so employees can cross our so-called friendly borders?

When looking to hire an employee from across the 49th parallel, immigration lawyers recommend first turning to provisions under the North American Free Trade Agreement, because as long as employees qualify, corporations can often hire someone one day and show them to their new desk the next. 


One great option under NAFTA for new temporary workers with prearranged employment, or for existing employees who don’t qualify for a transfer, is the professional category, which covers 66 eligible occupations ranging from accountant to zoologist.


Employees who are citizens can simply show up at the port of entry with their carefully prepared application package and receive a temporary work permit within an hour.


A potential hitch under the professional category is that employees must meet quite specific minimum educational and training requirements described under the listed occupation, explains Jennifer Nees, a lawyer at Bomza Law Group in Toronto.


“There are very specific requirements, and if you don’t meet them, you don’t qualify,” says Nees, who practises both U.S. and Canadian immigration law.


Transferring employees
It’s also possible for U.S. and Canadian companies to transfer certain employees across the border to an existing office in the other country, or to open a new office there. The visa is called an “L-1 visa” in the U.S. and an “intra-company transferee visa” in Canada. Only Canadians can apply for L-1 visas at the U.S. port of entry, and citizens of countries exempt from obtaining a visitor’s visa to enter Canada can apply for intra-company transferee visas directly at a Canadian port of entry.


The documentation produced at the port of entry must show the right qualifying relationship between the businesses — they must be a parent, subsidiary, affiliate, or branch of one another, says Nees.


And when entering under these visas, employees must prove they’re either an executive or senior manager — who manages people or an essential function of the corporation — or that they have specialized knowledge required for a particular reason. The knowledge could be proprietary knowledge of a process or procedure, necessary to train employees, launch a new product, or boost lagging sales targets, explains Nees.


Border officials pay special attention to the specialized worker category because many people claim they are specialized in areas when they are not, says Buffalo-based U.S. immigration attorney Rosanna Berardi. Because of this, she always tries to submit independent proof of specialized training, such as course certificates.


The management consultant category also suffers from abuse because it does not require a bachelor’s degree under NAFTA’s professional category, says Berardi. “You have to apply for that category very carefully and make sure that the person is not doing anything really hands on,” she cautions.


Canadian companies seeking to establish a U.S. presence frequently rely on the L-1 visa “because, no matter what is going on in Canada, most businesses want to have a U.S. office to have a global presence,” she says.
However, keep these rules in mind: the Canadian company must exist for at least one year; the employee must have worked for the company for at least one year; and the Canadian office must continue to operate while the United States office is open.


The new U.S. office must also secure office space in the United States. However, this can be virtual space so companies can save big on overhead costs by simply leasing a corporate address and phone number. “That’s perfectly allowable,” says Berardi. “And it’s a great way for businesses to come into the U.S. easily and cheaply.”
After one year, the company must demonstrate that the U.S. office is still operating before the government will issue the status in three-year increments, she says.

The Labour Market Opinion
Canada’s thriving economy has left many companies screaming for workers, especially in employee-starved British Columbia and Alberta.


The process isn’t as onerous as it once was, but the Canadian government still requires companies to seek a labour market opinion from Service Canada, which essentially determines that hiring a foreign worker won’t poach a job from a Canadian, says James Turner, who practises Canadian immigration law at Velletta & Company in Victoria.


Companies must prove they recruited for the position for several weeks across Canada, that the salary offered was in line with the industry, and demonstrate that hiring the foreign worker will have a neutral or positive impact on the Canadian labour market.


In practical terms, this means showing a positive benefit, so companies should clearly explain the benefit to the company, and the Canadian labour market in general, of hiring the worker, advises Turner.


In Ontario, Service Canada often turns around these applications within 15 business days, says Nees. But in British Columbia and Alberta, processing can take six months, something Turner calls “ridiculous.”


“On a realistic business model, who can possibly expect an employee to wait around with a vacancy unfilled for six months or perhaps more?” he says.


However, Ontario, British Columbia, and Alberta have introduced lists of high-demand occupations.


When hiring workers from these occupations — about 25 in Ontario and 100 in Alberta and British Columbia — companies need only advertise the position for one week on the Human Resources and Social Development Canada job bank, says Turner.


This change saves companies both time and money, but keep in mind that these are minimum requirements, says Turner.


“Generally speaking, you’ve got to remember the mindset, which is that [Service Canada] is the guardian of the labour market,” he says. “They regard the hiring of a foreign worker as a last resort.”


In September, the Canadian government also launched a one-year pilot project in British Columbia and Alberta to fast track the Service Canada process, making it possible for eligible employers hiring in 12 occupations to receive a labour market opinion validation in as little as five days. 


That’s good news for employers hiring in those sectors — including construction and hospitality — but the change will only cause more delay in other areas unless the government beefs up overall resources, says Turner. 


“The result is you end up with expediting processing for certain cases and the processing of all other cases suffers,” he says.


Certain professions are exempt from the LMO process.


Exemptions include the provisions under NAFTA’s professional category, and the intra-company transferee visas already discussed, computer-related jobs covered by a pilot project launched during the IT boom, and other positions listed in an appendix at the back of the foreign worker manual, available on Citizenship and Immigration Canada’s web site, says Turner.


“Generally, they are either jobs that are very short in duration or are occupations that you wouldn’t really appeal to the general employment pool to fill,” says Turner.


People coming to Canada on business, but not actually entering into an employment relationship with a Canadian company, can obtain a business visitors visa allowing them to enter Canada for 90 days or less without getting a labour market opinion, he adds.


The U.S. doesn’t have the same type of labour market opinion process.


However, the government does look at the labour market when considering H-1B visa applications, a category for professionals, says lawyer Evelyn Ackah, who practises U.S. and Canadian immigration law at Gowling Lafleur Henderson LLP in Toronto.


 The U.S. only permits 65,000 people from around the world to enter on this visa each year, and the quota is filled the same day the application window opens in April, says Ackah.


“It’s not really a workable visa anymore,” she says.


The U.S. also has a visa category for investors that contribute a substantial investment to the U.S. economy and promise to create jobs for U.S. workers, called the E visa.


It’s a little known fact that Canadian employees of the investor — either executives or specialized employees — can also enter on this visa, says Glen Wasserstein of the Immigration Law Group, PC, in Washington, D.C.
The O1 visa, for people with extraordinary abilities, has also paved the way for foreign actors, singers, and models — including French Canadian singer Celine Dion — to first enter the United States, says Berardi.


Don’t fudge the facts
Immigration lawyers stress that companies and employees should be prepared and never misrepresent the facts in an application.


Check the principle duties of the occupation defined by the government, clearly state what the employee intends to do, and advance the right evidence documenting the employee’s credentials, advises Turner.


“A lot of people don’t really define what it is they are going to be doing in Canada out of fear they are going to paint themselves into a corner,” he says.


“They are too broad, and unfortunately, that can be fatal and can look suspicious.”


He also cautions companies about the perils of promoting or changing the duties of temporary foreign workers when in Canada.


“Any substantial variation from the main duties is not allowed unless the worker or the company obtains permission from Immigration Canada for a change by filing a request to change conditions,” says Turner.


The Canadian government can revoke an employee’s status (including permanent residency or even citizenship) if he or she misrepresents something, which could be failing to disclose a criminal record or medical condition that could have kept them out of the country, says Turner.


United States border officials also have the power to ban people from the country for five years in an on-the-spot process called expedited removal, if they feel the person has committed fraud. Fraud is vaguely defined in the regulations as a misrepresentation of a fact, says Berardi. “It could be anything,” she says. “It could be a little white lie."


Berardi regularly receives calls from distraught individuals begging for help because they’ve been banned through this process, but there’s absolutely nothing she can do. There’s no appeal or judicial review process, and the banned person can’t enter the country for any reason — not even to shop.


“Fraud sounds serious, and it is, but people twist and turn their stories at the border, and they don’t realize they are committing fraud, she says. “The next thing they know they are banned from the United States for five years.”
Employees should always inform their employer about any criminal record, she says.


Generally, the U.S. will allow people to enter the country who have records for low-level offences, she says, but more serious convictions — drug possession, fraud, assault, for instance — will prohibit entry.


“More importantly, even if you have a Canadian pardon, the United States does not recognize foreign pardons,” she says. “For border crossing purposes that criminal record is alive and well. So it’s really important for applicants to be 100 per cent truthful.”


A person entering Canada is automatically deemed rehabilitated 10 years after the completion date of a sentence imposed for a crime punishable in Canada by a sentence of less than 10 years — unless they’ve been convicted of another offence since, says Turner. But people convicted of such crimes can apply for rehabilitation five years after the completion date of the sentence.


Aside from certain security and terrorism-related crimes, a person convicted of a crime with a maximum penalty of 10 years or more in Canada, can apply for rehabilitation five years after the completion date of the prison term, but is never automatically deemed rehabilitated, he says. 


And a person convicted of a summary offence (it can’t be a hybrid offence) is not barred from Canada unless they commit two summary offences, in which case they can apply for rehabilitation after five years of the sentence completion date or wait until they are automatically deemed rehabilitated.


Certain medical conditions may also render a person inadmissible to Canada, although there are ways to try to get around being inadmissible, which involve humanitarian and compassionate grounds or showing that the benefit of admission outweighs the risk to Canadian society, says Turner.

Treat the application process like a job interview
Governments have incredible powers to keep people out of their countries, so Berardi advises people to treat the application processes at the border like a job interview.


Along with being very familiar with the read application, and making sure they are properly counselled, applicants should be professional, polite, and prepared, she says. Never be aggressive or sarcastic, and don’t joke about terrorism.

Hire an expert
Immigration lawyers admit it sounds self-serving, but say hiring an expert will make these processes run more smoothly. For instance, when an employer can’t find a category under NAFTA’s professional category that fits, immigration lawyers can often help fit an employee into an unconsidered category by drafting the material to draw the right connections while still keeping the application honest. “A lot of it is practice and experience at the port of entries,” says Nees.


The process for transferring existing employees also involves a slew of complicated corporate documentation,

says Berardi. 


If you do a haphazard job on your own and are turned away at the border, it will jeopardize that particular application, and potentially also jeopardize the corporation’s reputation because border officials may start flagging and scrutinizing any future applications.


“Obviously my comments are self-serving but it’s just a good idea to make sure you do it right the first time around,” says Berardi.


Catherine Duff-Caron, vice president and general counsel at Skyservice Business Aviation in Canada, says the company often sends process engineers or pilots to work at summer bases in the U.K. or Ireland and occasionally brings them into Canada.


When the company’s small legal department has enough time, lawyers handle these temporary work permit processes in-house, because the process is fairly straightforward and they’ve done it before.


But if they are pressured for time, encounter problems, or need employees on a more permanent basis, they rely on highly experienced lawyers at a specialized boutique firm who know who to call to speed up the process, she says.


“It’s clearly money well spent to hire someone who knows the business and has been in it for some time because they have a whole stable of contacts,” says Duff-Caron.

Moving to a new country can be traumatic
Keep in mind that moving to a different country can be a traumatic experience, even if they are simply moving across the border, says Evelyn Ackah.


 “No matter how great they are or how experienced, it’s still a very challenging thing,” she says.


It’s a good idea to consider what supports an employee may need, and whether they have a spouse who wants to work, or children who will need to go to school.


“I’ve got a client who brought in a number of people from around the world, and they had a wonderful strategy to support them so they could be connected to a related community when they were here,” she says.


“You have a better chance of keeping your people here if they are happy when they get here.”

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