Cross-border travel is often not given much thought. You pack your luggage and head to the airport, often more concerned with the customs line than any potential legal issues. Canadian companies routinely send employees to the United States for business trips, often unaware of the legal issues confronting such a traveller. Let’s take a look at what the customs officer may be thinking about.

Business vs. Work

There is a subtle and important difference between “business” and “work” travel. Depending on the reason for the trip, a person may either enter the U.S. as a “Business Visitor” or alternatively may need to apply for work authorization.

Business Visitor

The definition of the term is set out below. Should the traveller meet this test, then there is no need to apply for other permissions. If the business purpose is not within this definition, then the alternative process must be followed.

Here is the list of the trips allowed as a “Business Visitor”:

1. To attend a business meeting;
2. To negotiate a contract;
3. To attend a business conference or a trade show;
4. To allow for short-term training; or
5. To provide post-sales services related to the sale of a product.

To travel for any other purpose will require work authorization to enter the U.S.

Persons wishing to enter as a business visitor must also be able to demonstrate:

1. The specific purpose of the trip and also that it is limited in time.
2. That they maintain a permanent residence outside the U.S.;
3. That they will indeed fulfill the business purpose as intended; and
4. They have sufficient funds to pay for the trip and related expenses.

Alternative Options

Should the business purpose not meet this test of “Business Visitor”, there are other options to consider.

The employee may apply for a TN Status to work in the U.S. Under NAFTA. There is a catalogue of 60 professional occupations allowed to work in the U.S.

A second option is to apply for an intra-company transfer visa known as an L-1. This is used for a Canadian employee who is being assigned on a full-time or part-time basis to a related company in America. In this context, the employee must be an executive or manager or have specialized knowledge.

There are other unusual options for those who do not qualify for the above alternatives. These include a Treaty Trader, a Treaty Investor, a Specialty Worker and a Person with Extraordinary Ability.

Take Away for All

These descriptions are offered for general knowledge only. The prime issue to be concerned with is the routine “business” trip to the U.S. This basic knowledge is very useful to understand what you may need when you approach the customs desk at the airport. This applies to both knowing the purpose of the trip and the documentation which you may be asked to provide.

Get Advice Before You Act

If you have questions about this issue or any employment issue, contact the offices of Toronto employment lawyers Grosman Gale Fletcher Hopkins LLP. We regularly advise employees and employers on issues in the workplace. Contact us online or by phone at 416-364-9599 to schedule a consultation.