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It’s the world’s longest undefended border. The two countries have a free-trade agreement. And you’ve crossed dozens of times before with no problem. But that doesn’t mean you’ll find a welcome mat out the next time you head to the United States to do business.
Passengers at U.S. Customs in Toronto airport
Photo: J.P. Moczulski, The Globe and Mail
“We like to think there’s an open border with the United States, but it’s never been as difficult to cross it for business,” says Janet Bomza, senior partner with Bomza Law Group in Toronto. Business travellers are suddenly being turned away because they don’t have the proper documents or because they are not considered qualified as business visitors, said Bomza, who spoke at a recent Human Resources Professionals Association annual meeting in Toronto.
Those who have crossed as business travellers without incident before have been surprised by the extra scrutiny, Bomza says. “The days are gone when you could show up at the border and say you’re going to a meeting. You’re taking chances if you don’t come properly prepared,” Bomza warns. “Immigration officers at the airports and border crossings see themselves as a front line to protect the American labour market.”
Border officers are also asking more questions about the purpose of a trip, says Mark Dey, a Toronto lawyer specializing in U.S. immigration law. “We’re getting a lot more inquiries recently from companies asking us to prep their people on questions they may be asked, and help them draft letters for employees” stating why they need to go and what kind of activities they will be doing, Dey says.
The crackdown also affects employees going south of the border for a short assignment or a series of meetings. Agents are asking whether the work will be of economic benefit to the U.S. company and whether it could be done by an American citizen instead, Dey says.
For instance, a Canadian human resources employee who was travelling for meetings in which she would interview candidates for an executive position in the company’s U.S. office was recently refused admission at the border, Dey says. “The U.S. officials said the activities went beyond the scope of going to a meeting and required a work visa.”
No recent changes have been made to official policy on business travel or the rules for securing work permits, according to spokespeople for the U.S. State Department and Citizenship and Immigration Canada contacted for this article. Canadian citizens can travel to the United States for a meeting or conference without a visa, says Evan Green, a partner with the immigration law firm Green and Spiegel LLP in Toronto.
In the past, some travellers have skirted the need for a work visa by claiming they are leisure visitors. But these days U.S. immigration officials are conducting spot checks of workplaces, inquiring about the nationalities and credentials of staff. Violators may face financial penalties, and a violation may be noted in the immigration files of both the employee and the company, Dey cautions.
Business travellers who have contacted Green’s office have said that securing work visas has become more time consuming. He is also hearing of more cases of companies who have had employees turned away at the border.
“Things [that businesses] have been doing without question for years are now being questioned. Some agents at the border are interpreting the rules differently. This is creating enormous frustration,” Green says. The list of admissible occupations is confusing, Green says. The North American free-trade agreement allows work-entry decisions affecting Canadian citizens to be made at the U.S. border.
Under NAFTA, lawyers, accountants and management consultants are listed as occupations that can be approved at the border. However, managers in manufacturing, telecommunications and construction aren’t on the list, and workers in those fields are advised to arrange a work visa in advance.
The process for securing a U.S. work visa has also become increasingly bureaucratic and slow, Green has found. Applicants first have to submit an application to one of four regional U.S. service centres to get a letter that says they are eligible to apply for a visa. Then they have to submit their request for the actual visa to a U.S. consulate, Green says.
That visa process can take up to 90 days, which is much longer than it was even a few years ago, Green says. A visa application can be expedited for approval within 15 days, but it comes with a hefty premium: $1,225 compared with $325 for regular processing.
The visa process for Americans entering Canada on business assignments has also slowed dramatically, Green adds.
In a budget-cutting move, Canada closed its biggest visa office in Buffalo last year, and at the end of January closed other visa centres in Detroit and Seattle. From now on, all work visa applications have to be processed through the New York office, which is facing a huge backlog.
Green advises business people to apply for Nexus cards, which prescreen border-crossers for clearance into the United States and their return to Canada. Applicants must submit to a criminal check and will have eyeball scans and fingerprints recorded.
Card holders are considered “trusted travellers,” and using the Nexus pass should speed up the crossing, Green says. “It can be a great tool, because it eliminates uncertainty.”
FREQUENTLY ASKED QUESTIONS AT THE U.S. BORDER
Would someone in a comparable position in the United States normally do the work you will be doing?
Is the work primarily for the benefit of the U.S. employer?
Will your compensation come from the Canadian company or the U.S. company?
What expenses are the U.S. company covering?
Can you show me your itinerary, return ticket and hotel reservations?
How can we be sure you’re planning to return to your home country?
Source: Bomza Law Group