Anyone thinking about travelling to the United States for work purposes needs to do “a lot of homework” before crossing the border, one Ottawa immigration lawyer says. Warren Creates, head of the immigration law group at Perley-Robertson, Hill and McDougall LLP, is advising business owners and their employees to brush up on the documentation necessary […]
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Anyone thinking about travelling to the United States for work purposes needs to do “a lot of homework” before crossing the border, one Ottawa immigration lawyer says.
Warren Creates, head of the immigration law group at Perley-Robertson, Hill and McDougall LLP, is advising business owners and their employees to brush up on the documentation necessary and rules for entry into the United States for work-related purposes.
“Some effort has to go in, more so than ever before, into preparing the employer and the employee (to go to the United States),” Creates told OBJ Thursday.
As Statistics Canada data continues to trend downward when it comes to the number of Canadians travelling to and from the U.S. due to rising tensions between the two countries, some businesspeople are rethinking their work-related travel plans.
Creates said the trade tensions may have resulted in more inspections for Canadian travellers at the U.S. border.
“The perception, perhaps based on reality, is that the scrutiny (is higher) at the U.S. border entry points, which means both the land and airport pre-clearance facilities,” he said. “It may also be partly because there are fewer people travelling, which means the borders are less busy and officers have more time than they’ve ever had to scrutinize particular types of travel or people.”
The Children’s Hospital of Eastern Ontario recently issued a memo advising its employees to avoid trips to the U.S. and, if they did go, to leave all work devices at home. Creates said such directives are "symptomatic" of the current situation.
“It’s representative of many other businesses who have made the same decision. They don’t want their staff to be exposed to the anxiety of making such a trip if it can be avoided,” he said.
Canadian Border Services Agency officers and U.S. Customs and Border Protection officers have always had the right to search a traveller’s devices, Creates added, but they may be exercising that right more frequently now.
Creates said employers should speak with their employees about their eligibility to enter the U.S. for work-related travel.
“Have they had a problem at the border before? Do they have a criminal record? What used to be unlawful to ask an employee … if they have a criminal record, it’s now lawful to do so because their trip to the United States is part of their job,” Creates said.
He also said the traveller should have a clear understanding of the purpose of the trip as well as documentation to prove it.
“What people say in their disclosure in answer to questions posed by the U.S. CBP officers … should be verified by third parties,” he advised.
Creates said proof can be a letter from the traveller’s employer stating the employee’s position, duration of employment with the company, their duties and responsibilities, the purpose for the business trip and duration of the trip.
Moreover, Creates said travellers should always be honest with border agents and clearly define the intention of their trip so they can enter the U.S. under the current status.
“In the United States, there are certain duties that business visitors (B-1) are entitled to perform. B-1 purposes include business meetings. Under B-1 entry, you can meet with potential customers, market your products, negotiate sales and attend conventions,” he said.
A person cannot enter the U.S. under business visitor status if they are performing duties that they might receive payment for, he added.
“Let’s say you’re supervising employees of a U.S. subsidiary. That’s not a business visitor. That requires a different status, and you better understand what those statuses are so you have the right documentation to make (the) application for that status,” he said.
While a traveller might be prepared with all the necessary information and documentation, Creates said the decision to allow a visitor to enter the U.S. remains at the discretion of the border officer.
“You can (reduce anxiety) on giving advice to clients how their documents could be better, how they could be more compliant with the rules, regulations and policy and the attitude of border officers. You can do all that planning, but I’ve always said, you still have to be lucky,” he said.
Though Creates said he can’t know for sure when tensions might ease for travellers to the U.S., he said he’s sure Canadians will navigate through the uncertainty.
“In doing this kind of work for 38 years, I’ve seen cycles. I’ve seen peaks and valleys. We’re at a particularly challenging time, but it won’t last forever. People will become accustomed to the new reality. Anxiety will lessen with time and experience,” he said.
Creates said he’s hopeful things will change for the better.
“It means that there’s more demand for our services. It means that there’s more value to add to be helpful. I think the future of trading and business travel between Canada and the United States will return to once again be good, if not also great,” he said.
