Navigating Complex Cross Border Labour Requirements

Host: Steve Kelly, Export Development Executive

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With over 100 employees in New Brunswick,

we develop, integrate, and implement healthcare technology

solutions for the interoperable world.

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With offices in the United States and Canada, we are licensed in both

countries. We have extensive experience in helping foreign nationals to

come to the United States to visit, study, work or live permanently, through a

wide range of non-immigrant visas, including H-1Bs for professional workers,

and TNs (NAFTA) for Canadian and Mexican professionals.

We have also helped many people work temporarily in Canada through

NAFTA and other programs, as well as assisted many people to immigrate to

Canada as Federal Skilled Workers.

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Overview

In this session, we will present a high-level overview of employment law basics,

as well as some of the common pitfalls when sending Canadian-based employees

to the United States for work.

• Tales from the front line – Accreon’s experience

• The employment relationship – some do’s and don’ts

• Sending your (Canadian) employees to work in the United States

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The cost of being unprepared

If you send employees to the United States for business purposes, it is

critically important to understand and abide by entry requirements.

The days of crossing the border to do some “shopping” while actually

performing business functions are over (though they were never really

permissible)!

6 Some do’s and don’ts of the

employment relationship

Before exploring the entry requirements and pitfalls of crossing the border for

work, it is worth reviewing some employment law basics:

DO: Hire the “right” people for the job

• It’s ok to be choosy. Take time to decide what skillset and personality your

business requires, and keep them in mind when selecting job candidates.

• Certain grounds are protected under the NB Human Rights Code – you

can’t make hiring or termination decisions on the basis of those grounds.

• A criminal record may bar someone from entering the US. In NB, it is

permissible to ask potential employees for a criminal record check as a

pre-requisite for a job.

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Do’s and Don’ts

DO: Have a written Employment Contract

• The employment relationship is a contract, even if it’s not written down!

• If there is no written contract, or if a written contract is incomplete or

invalid on a particular issue, common law fills in the terms and

conditions of employment – usually in favour of the employee.

• Employment standards legislation establishes minimum entitlements

for employees, some of which cannot be waived, even

by a written contract.

• Written contracts should be signed before the

employee starts work.

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Do’s and Don’ts

• Written employment contracts can’t cover all possible scenarios, but they

should include terms that are important to your business:

Probationary period

Term (if applicable)

Travel requirements

Termination clause

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Do’s and Don’ts

DO: Document Document Document!

• Make expectations clear to employees, and always

let them know if they are not meeting them.

Document actions taken to address deficiencies.

• Terminating an employee for cause (without notice or

pay) due to unsatisfactory performance is difficult,

and almost impossible if not documented.

• Without proper evidence of unsatisfactory performance, terminating an

employee can be costly (this is where a proper termination clause can

help!)

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Do’s and Don’ts

DON’T:

• Assume everything in a written employment contract is valid (unless it

was prepared by your lawyer)

• Rely solely on the Employment Standards Act to guide you –

common law imposes additional requirements.

• Underestimate the cost of terminating an employee (probationary

terms and termination clauses are your friends!)

• Neglect the Human Rights Code.

• Undervalue legal advice – a penny today saves a pound tomorrow!

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Sending employees to US for work

Work or business visitor??

• Work in the US is entering the labor market: providing services

directly in the US for which the person would normally be paid. Some

examples:

Customizing software

Training clients to do things better (management consultants)

Operating equipment at a customer site

• If you are working the US you need a work permit, known in the US

as employment authorization, often erroneously called a "visa."

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Business Visitor

Non-productive work in the US, no work permit required

Some examples:

• Meeting and soliciting customers for a Canadian company

• Attending a trade show for a Canadian company

• Attending a conference

• Attending training sessions

After-Sales service:

If you sell commercial goods, including computer applications, and

installation and service are included in the sales contract, you may

send a worker to the US to install, implement, and service that

product as a business visitor.

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What types of work permits are available?

NAFTA Professionals

Must show pre-arranged engagement at a US business, and qualifying

documents such as degrees, experience.

Available only to citizens of Canada and Mexico (not Canadian

permanent residents)

Called “TN” (meaning “Trade NAFTA”)

Specific list of professions, most frequently:

• Management consultants

• Computer systems analysts

• Various science fields

• Scientific technicians

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What types of work permits are available?

NAFTA Professionals

Management consultants and Scientific Technicians are most frequently

abused categories

Management Consultant involves providing advice to a business'

managers, then moving on – it is not a "regular" position, unless you

have a job offer at a company that provides management consulting

services to US clients

No self-employment: You cannot go to the US and hang a shingle

Each trip as a NAFTA Professional must have a pre-existing agreement

with a US company

You may have more than one TN at a time for different US entities.

Each can be valid for up to three years.

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What types of work permits are available?

Intercompany transferees

Canadian company opens a US branch/office/subsidiary

Can send a senior executive or manager, or a person with specialized

knowledge

Canadian citizen can apply at the border

If you are starting a new business, you can get only one year of

employment authorization

If you travel intermittently to the US, spending less than one-half of your

time, can be extended indefinitely; otherwise limited to seven years for

executive or manager, five years for specialized knowledge

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What types of work permits are available?

H-1B Professionals

Job requires a degree, employee has a degree

Limited number available per year, subject to a lottery, one out of four

applications "wins" the lottery and is adjudicated, the rest are returned

to the employer

Start date for employment: October 1 of each year

Cannot file before April 1 of that year

Need a US employer, must pay a prevailing wage, expensive filing fees

NOTE: THE US DOES NOT RECOGNIZE CANADIAN PARDONS

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Inadmissibility to the US

Criminality: crime involving moral turpitude such as theft, fraud, etc.

(one summary conviction generally OK, more than one or indictable

offense, inadmissible)

Controlled substance: included in criminality: any possession offense

Inadmissibility arises from either a conviction, or a conditional

discharge, or admitting that you possessed the controlled substance

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Misrepresentation

NEVER, under any circumstances, tell an employee to lie about the

purpose of their trip to the US

Misrepresentation results in inadmissibility FOR LIFE

If you tell the employee to lie, then you are responsible for their

inadmissibility and they will not even be able to travel to Disney World!!!

Plus you could be charged with a felony: alien smuggling

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NEXUS, Trusted Traveler

NEXUS card can assist in faster processing through Customs

Do NOT use NEXUS when you are going to work until you have

obtained employment authorization, then change your NEXUS account

to add that form of approval

If you violate any regulation your NEXUS card will be revoked

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Travel Ban to the US

Not applicable to dual citizens of Canada and one of the

countries on the list

BUT US border officials have a lot of discretion....

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