When does your Canadian employee need a U.S. work permit?

August 31, 2010 Henry J. Chang, Dentons LLP Corporate Immigration, Human Resources, Recruiting and Hiring

canadian-american-flags On occasion, Canadian HR professionals will be asked if one of their employees requires a work permit to enter the United States. The answer to this question depends on whether the proposed activity falls within the scope of the B-1 business visitor category. The problem lies in the lack of clear guidelines for B-1 business visitors and the considerable amount of discretion given to United States Customs Border Protection (“USCBP”) officers, who inspect foreign travelers seeking admission to the United States.

The Immigration and Nationality Act (“INA”) itself provides very little insight into who is a business visitor and who is not. According to INA 101(a)(15)(B), a business visitor includes “an alien … having a residence in a foreign country which he has no intention of abandoning and who is visiting the United States temporarily for business…”.

The term “business” itself is not defined in the INA or in the regulations of the Department of Homeland Security (“DHS”), which apply to both United States Citizenship and Immigration Services (“USCIS”) in the United States and USCBP at the ports of entry. However, a non-exhaustive definition does appear in the regulations of the U.S. Department of State (“DOS”), which apply to United States Consulates. Although the DOS regulations are not binding on USCBP, they are considered somewhat persuasive at the ports of entry.

According to the DOS regulations [22 CFR 41.31(b)(1)], the term “business” refers to conventions, conferences, consultations and other legitimate activities of a commercial or professional nature; it does not include local employment or labor for hire. The DOS regulations also state that building or construction work, whether on-site or in plant, is also specifically deemed to fall outside the B-1 business visitor category. However, the supervision or training of others engaged in building or construction work (but not the actual performance of any such building or construction work) may qualify if the alien otherwise meets the requirements of a B-1 business visitor.

The Foreign Affairs Manual (“FAM”), the guide published by DOS for use by United States consulates, provides additional guidance regarding who qualifies as a B-1 business visitor. According to 9 FAM 41.31 N8, aliens may be classified B-1 business visitors if they are traveling to the United States to:

Engage in commercial transactions, which do not involve gainful employment in the United States (such as a merchant who takes orders for goods manufactured abroad);
Negotiate contracts;
Consult with business associates;
Litigate;
Participate in scientific, educational, professional, or business
conventions, conferences, or seminars; or
Undertake independent research.

Although the additional guidance contained in the FAM can be helpful (even at the port of entry), it is also not intended to be an exhaustive definition of the B-1 business visitor category.

The Board of Immigration Appeals (“BIA”), in its review of B-1 business visitor cases, also attempted to establish guidelines regarding when someone would be considered a B-1 business visitor. In Matter of G-P-, 4 I. & N. Dec. 217, 221–22 (C.O. 1950), the BIA was asked to consider whether a citizen of Mexico who:

Crossed the border almost daily to purchase scrap paper in the United States; and
Returned to Mexico the same day where he sold the scrap paper to earn his living;

was a B-1 business visitor. In its review of past cases, the BIA observed that the following elements were present in those cases where the proposed activity was found to fall within the B-1 category:

There was a clear intent on the part of the alien to continue his or her foreign residence and not abandon the existing domicile;
The principal place of business, and the actual place of eventual accrual of profits, at least predominantly, remained in the foreign country; and
Each individual entry was for a temporary purpose, even though the business activity itself was not necessarily temporary.

Applying the above test, the BIA found that the Mexican national was a legitimate B-1 business visitor.

To add to the complexity of this issue, both USCBP and DOS have each created lists of specifically permitted activities, which are deemed to fall within the B-1 business visitor category; the USCBP list appears here and the DOS list appears here. In addition, a third list of specifically permitted activities (applicable only to Canadian and Mexican citizens) exists as a result of the North American Free Trade Agreement (“NAFTA”); the NAFTA list appears here.

Many of these specifically permitted activities are clearly consistent with the general guidelines described above. However, some of these activities would also likely fall outside the scope of the B-1 category if they were not specifically referred to in these lists. Regardless, if the proposed activity is specifically mentioned, it is likely that USCBP will admit the alien as a B-1 business visitor.

HR professionals who wish to determine whether their employee will be considered a B-1 business visitor should first review the above lists of specifically permitted activities to see if any apply to the proposed entry. If not, the HR professional should consider whether an argument could be made using the general guidelines described above. Of course, due to the discretionary nature of B-1 visitor entries, a formal opinion from a qualified U.S.-licensed immigration lawyer is always recommended.

Henry J. Chang
Blaney McMurtry LLP

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Henry J. Chang, Dentons LLP

Corporate immigration lawyer at Dentons LLP

Henry J. Chang is a partner in the firm’s Employment and Labor Group. He currently practices in the areas of Canadian and United States business immigration law, international business law, and cannabis law. Read more