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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....