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Shattering Immigration Myths: Sending Canadian Assignees to the United States

CompassGUIDES - Oct 2005

By Veronica Choy, Lawyer - Alberta and Washington Bars, Miller Thomson LLP

Sending assignees to the United States is becoming increasingly common, yet for assignment managers, the very thought conjures up images of lengthy work visa application battles. Paradoxically, assignees themselves can actually be complacent about entering the United States.

The topic of immigration to the U.S. is riddled with myths, and this in itself can cause problems at the border. The stakes are high. If assignees and Canadian corporations are not fully aware of immigration requirements and protocol, there is potential for lost productivity while assignees sort out immigration issues, and a tarnished corporate reputation which could adversely affect future assignee border crossings.

Myth or Fact #1: “The only way that I can obtain a work visa in the US is if the US employer can prove that there are no other Americans who are as qualified to do the same job.”

Answer: MYTH.

While there are some visas which do require that the U.S. employer complete certain advertising requirements and display an inability to find similarly qualified Americans to fill a particular position, there are many work visas which do not have advertising or recruitment requirements.

In general, most U.S. work visas available to Canadians are based on two criteria:

(1) the type of position that is being offered to the Canadian; and

(2) the Canadian’s qualifications for that job.

U.S. work visas are categorized (eg. L visas, O visas or H visas), and these categories are, in turn, defined by specific position and qualification requirements.

For example, under the North American Free Trade Agreement (NAFTA), there is a section which provides a list of Occupational categories for which Canadians can obtain a “TN” visa to work in the U.S. Most of the occupations are professional in nature, and almost all of the categories require that an individual possess a minimum of a Bachelor’s degree.

There are certain categories which do not require a Bachelor’s degree per se, such as those for Systems Analysts, Management Consultants and Scientific Technicians. However, if a Canadian is offered a position in one of the listed occupations and the Canadian has the requisite qualifications listed for that occupation, then it is likely that the Canadian will qualify for a TN work visa.

Assignment managers in Canadian Corporations should contact an immigration lawyer to determine whether the U.S. positions they are filling with Canadian talent fall under a work visa category which does not include a recruitment requirement (and the application procedures of that specific category) or whether a certain amount of recruitment will be required.

Myth or Fact #2: “To enter the US, the ID I need to bring is a copy of my driver’s license.”

Answer: MYTH.

While many Canadians may have made trips to the U.S. with no identification documents other than a Canadian driver’s license, these types of admission are quickly becoming obsolete—if they have not already. The required type of ID must prove that the traveler is a Canadian citizen.

A driver’s license does not prove citizenship. Rather, it is proof that the owner of the license can drive—and really, it is only proof that at one time, that person was able to demonstrate sufficient driving skills to obtain the license in the first place.

Instead, proof of Canadian citizenship consists of a Canadian passport, Canadian citizenship certificate or a Canadian citizenship card. For Canadians born in Canada, at this time, it is still permissible to use a combination of Canadian birth certificate and picture ID such as a driver’s license.

The U.S. Department of Homeland Security (DHS) has indicated that passports will be required of all Canadians seeking entry to the U.S. as of December 31, 2006. While there has been some lobbying, particularly by the Canadian consulate in the U.S., to reverse this decision, the plan for passport requirements was in place at the time of this publication.

Earlier this year, DHS also announced that as of June 26, 2005, citizens from Visa Waiver Program countries must be in possession of a machine-readable passport to enter the United States. As of October 26, 2005, Visa Waiver travelers will be required to produce passports with digital photographs. Valid passports issued before October 26, 2005, will still be accepted for travel under the auspices of the Visa Waiver Program so long as the passports are machine-readable.

Assignment managers should ensure that Canadian and other non-American assignees to the United States are fully aware of the required documentation for crossing the border. This should be done well in advance of the date of departure so that assignees have ample time to arrange for updated passports if necessary.

Myth or Fact #3: “As a Canadian, I have a right to enter the US for short visits—I only need to apply for a visa to live there.”

Answer: MYTH… and MYTH.

In fact, this statement involves two myths:

  • that a Canadian has the right to enter the U.S.; and
  • that the duration of the visit determines whether an individual is required to apply for a visa.

Canadian citizens not holding any other foreign citizenship only have the right to enter Canada. While Canada and the United States have long shared a somewhat enviably close relationship, mostly due to geography, politics and economics, we certainly have not become so friendly that Canadians can enter the U.S. whenever they please—or vice versa.

However, Canadians possess a privilege granted to no other non-U.S. citizens—the opportunity to remain in the United States as a tourist or business visitor for up to 180 days without a visa. Even citizens of countries designated under the Visa Waiver Program (VWP), such as the UK, Australia, France, Germany and Japan, are required to obtain a visa if they need to remain in the U.S. as visitors for more than 90 days.

This is a privilege that may only be granted at the discretion of the Customs and Border Protection (“CBP”) officer who inspects the Canadian citizen upon his/her seeking entry to the United States as a visitor, and it would only be granted if the officer is, in fact, satisfied that the individual will continue to comply with the requirements of being a temporary visitor.

While the length of a planned stay is taken into account when the CBP officer determines under what status a traveler is permitted to enter the U.S., the purpose of that stay is the most determinative of that decision.

This is especially relevant when a Canadian must enter the U.S. for business or work purposes. It is not the length of stay, the payroll source, nor the question of whether the traveler will be paid which solely determines whether an individual needs to apply for an actual work visa. Rather, it is the type of duties the traveler wishes to perform. If an individual plans to engage in activities which fall under CBP’s definition of “work”, then a work visa will be required—even if the individual will not be staying for more than one day.

Assignment managers planning to send employees to the United States, even for very short periods, should contact an immigration lawyer to determine whether the activities in which the assignee will be participating will be considered “work” and therefore require a work visa.

Myth of Fact #4: “If I have a criminal record, then I will not be permitted to enter the United States.” or “I DID have a criminal record, but can now enter the US as I have now received a pardon for my record.”

Answer: MYTH… sort of. And… MYTH.

While there are certain types of criminal convictions which render an individual inadmissible to the United States, not all convictions necessarily prevent entry. The laws governing the effect of criminality on admission to the US are complex and, at times, somewhat confusing, however few general rules are universally applied.

An individual is inadmissible to the United States if he/she, at any time, “has been convicted of, or … admits having committed, or … admits committing acts which constitute the essential elements of:

(1) a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country related to a controlled substance” (as defined by the U.S. Controlled Substances Act); or

(2) a crime involving moral turpitude (other than a purely political offense) or an attempt or conspiracy to commit such a crime”.

The first rule is fairly simple, and relates to anyone who is convicted of possession and/or trafficking (actual, conspiracy to commit, or attempted) of a narcotic. The second rule, however, is much more difficult to interpret, as case law over the years has essentially shaped what is and is not considered to be a “crime involving moral turpitude” (commonly known in immigration circles as a “CIMT”).

A few guidelines regarding CIMT’s:

(1) CIMT offences generally involve deliberate thought (eg. fraud and/or theft);

(2) Driving While Impaired/Driving Under the Influence types of convictions, generally, do not trigger inadmissibility;

(3) convictions involving simple assault, generally, do not trigger inadmissibility, unless the conviction involves the assault of a spouse or partner;

(4) minor convictions such as public nuisance or failure to appear in court, generally, do not trigger inadmissibility.

It should be noted, however, that criminal convictions are not the same as immigration violations (that is, offences committed at the border). Immigration violations can negatively affect future admissibility, as they reflect on the very issue of whether an individual is deserving of being permitted entry to the U.S.

Anyone traveling to the United States should keep in mind that permission to enter the U.S. is ultimately up to the discretion of the inspection CBP officer. A common question is why an individual, who might have entered the U.S. previously dozens of times despite possessing a criminal record that should cause inadmissibility, might suddenly be prevented from entering on a single occasion—and subsequently told that he/she should not seek to enter the U.S. again without having obtained a “Waiver” of his/her inadmissibility. If the convictions involved do legally render an individual inadmissible, it is possible that previous inspectors either were not aware of the convictions (and never asked) or were aware, but, using their discretion, decided to allow the individual entry anyway. However, the ignorance and/or goodwill of previous inspecting officers cannot be used as an argument in favour of being permitted entry at a later date.

Another popular myth is that a pardon from the Canadian government for a past criminal record effectively “wipes the slate clean” and the individual who may have previously been inadmissible is now (a) admissible and (b) does not have to disclose his/her criminal record anymore. Unfortunately, neither of these assumptions are true.

The US CBP does not recognize pardons of criminal records granted by the Canadian government and still retains the right to refuse entry to individuals who have records which render them inadmissible—even if they have been pardoned. Secondly, upon seeking entry, if an individual is asked whether he/she has ever been convicted of an offense, he/she should disclose all offenses—even if they are old, are minor in nature and/or have been pardoned. (In fact, one of the methods by which officers prevent an individual from avoiding having to state pardoned convictions is that they will initially ask whether he/she has ever been arrested or fingerprinted, rather than whether he/she has been convicted.)

Assignment managers should be aware of any criminal records in their assignees’ history and contact an immigration lawyer to discuss the implications of those criminal records on immigration to the United States. It is advisable to anticipate possible entry difficulties and undertake any necessary steps to ensure that assignees with a criminal record not be held up at the border. Further, all assignees to the United States should be briefed on what to expect and how to conduct themselves at U.S. Immigration in order to avoid incidents which would prevent them from entering the U.S. and tarnish the reputation of the company.

Please note that this article is intended for informational purposes only and is not legal advice and is not provided for the purposes of being relied upon as such. If you have questions or concerns with regard to immigration issues for your assignees, please contact an immigration lawyer to address your specific needs .

© Veronica Choy, September 2005

Veronica Choy is an Associate in Miller Thomson’s solicitor department and acts for a broad range of companies and individuals in regard to all types of immigration matters. Licensed in both Alberta and the state of Washington, Veronica practices primarily in the areas of Canadian and American Immigration, but has assisted clients in obtaining visas for and facilitating entry into countries around the world.

Veronica is an active member of the Canadian Bar Association and the American Immigration Lawyers Association (AILA) and has been invited by numerous universities and business associations to speak on individual and business immigration issues. In particular, she has specialized in aiding Canadian companies expand their business in facilitating the temporary and permanent transfer of their employees to the United States and elsewhere.

Contact Veronica Choy at (403) 298-2430 or vchoy@millerthomson.com.

The editor of CompassPOINTS wishes to thank Veronica for the contribution of this article