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Crossing The Us Border For Business

Many Canadians cross the US border everyday to conduct business in the US. They attend conferences and meetings, they set up new businesses and negotiate business deals. Not all border crossings are the same and not all of them qualify as visitors. When the intention is not clear or there are doubts as to whether the applicant qualifies under a given category, they are sent to secondary inspection for further questioning. This can be an unpleasant experience and a source of anxiety.

It is therefore important to be aware of various business related categories under which a business person can be admitted to the USA.

Canadians are visa exempt and as such can present themselves at the US border for admission holding just a valid Canadian passport. They don’t require to present a visa save for very limited circumstances.

That being said, every person who presents at the border is subject to admissibility requirements and will be admitted under a defined category depending on the intention they express at the time of entry. Also it is against the law for an “alien” that is a non US citizen or permanent resident to work in the USA without the proper permit and authorization.

One of the very commonly used categories is that of a business visitor. Business visitors (B1 visitors) must commonly present a valid Canadian passport, an un-relinquished residence in Canada and proof of return. It is perfectly acceptable for a business visitor to attend meetings and conferences, negotiate deals, litigate and even engage in commercial transactions…. so long as the source of remuneration is not a US source and they are not involved in gainful employment in the US. This seemingly straightforward category can easily become a source of problems as soon as a US entity linked to the applicant is involved. For example Canadian companies with affiliates or subsidiaries in the US must be extremely cautious when sending managers and executives to the US for business purposes. As well, Canadians planning on starting a business project in the US must be cautious not to start drawing any type of remuneration prior to obtaining the requisite visa or permit.

Another very useful category is created by the NAFTA treaty. A number of professionals, including engineers, lawyers, technical writers, management consultants etc….may use this category to take on employment in the USA. The clear advantage of this category is that the process can be done relatively quickly at the border by presenting the requisite documents such as academic credentials, proof of employment etc….the status can be renewed in the US or by presenting at the border. The obvious limitation is that only a handful of jobs as listed in appendix D qualify under this category.

The intra-company transferee or the L category allows managers, executives and people with specialized knowledge who worked for at least one year for the foreign subsidiary to be transferred to the US branch to work in the same capacity. They are also allowed to come in to open a new office or new branch. Clearly there must be a US entity, either existing or coming to life and a Canadian branch. Interestingly enough the source of remuneration is irrelevant but there must be an element of control exercised by the US entity over the transferred beneficiary for the beneficiary to qualify as L1.

It may be a safe practice for companies with branches in the two countries to submit an L petition on behalf of their managers and executives if the US entity is the controlling one and the activity involves matters other than internal ones.

In light of the potential complications associated with the admission of business visitors and the complexities of immigration law, it is important for companies and their employees to be aware of these distinctions, to plan ahead and to prepare accordingly. Taking the necessary steps ahead of time, by discussing potential issues with an immigration lawyer licensed to practice in the US and reviewing some of these requirements online will help with an easier transfer of Canadian work force across the border.

November 2016

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