ARCHIVED – Backgrounder — Stakeholder Consultation on Facilitating the Conduct of Cross-Border Business

Introduction

The Beyond the Border Action Plan provides a practical road map for facilitating legitimate trade and travel across the Canada-U.S. border, while enhancing security.

In a typical year, more than $500 billion worth of two-way trade takes place between Canada and the United States. Canadian exports to the U.S. support one in seven jobs in Canada, and U.S. exports to Canada support some eight million jobs in the United States. Clearly, the economic impact of an efficient Canada-U.S. border is critically important for the continued competitiveness of our export and import industries.

Business travellers sometimes run into difficulty when trying to cross the border due to complicated administrative procedures. Under the Beyond the Border Action Plan, the Canadian and U.S. governments have committed to work together to ensure business travellers benefit from more efficient and predictable border clearance processes.

To this end, the governments are jointly undertaking consultations with stakeholders in both Canada and the United States. The objective of these consultations will be to:

  1. Receive comments from interested stakeholders on the cross-border business facilitation commitments included in the Action Plan;
  2. Identify and assess additional ways to facilitate and improve border admissions processes for business travellers in the near and medium terms and
  3. Identify mechanisms for ongoing consultations.

The purpose of this backgrounder is to support stakeholder participation in the consultations by providing a summary of current policies and procedures facilitating cross-border business, and to solicit input both on the proposed initiatives within the Action Plan as well as on what else can be done by the U.S. and Canadian governments to facilitate the conduct of cross-border business.

A report on the progress on these items and a plan for the implementation of any new initiatives will be completed by December 31, 2012. The report will be distributed to stakeholders and will identify mechanisms for regular stakeholder engagement on issues related to cross-border business.

Current Policies and Procedures Facilitating Cross-Border Business

In order to guide your feedback on the Action Plan initiatives, the following summarizes the relevant policies and procedures currently available in both Canada and the United States for facilitating cross border business.

A. Administrative guidance and training

Canada

Citizenship and Immigration Canada (CIC) currently has a separate detailed appendix on the NAFTA temporary entry provisions in its Temporary Foreign Worker Guidelines Manual (www.cic.gc.ca/english/resources/manuals/fw/index.asp, Appendix G) which is available to immigration officials and border officers as well as the public. CIC has also developed a new on-line training module for NAFTA temporary entry which is available to immigration officials and has been provided to the Canada Border Services Agency (CBSA).

United States

The U.S. Department of Homeland Security has published extensive, detailed regulations regarding the temporary entry of NAFTA business visitors and professional workers. In addition to publication in the Code of Federal Regulations (8 CFR 214.2(b)(4) and 214.6), this information is also available to immigration officials and border officers as well as the public on the CBP website. U.S. Customs and Border Protection (CBP) also maintains extensive field guidance for its officers on business visitor admissions and regularly updates this guidance.

B. Specialized maintenance and repair personnel

Canada

Under current provisions, maintenance and repair foreign workers require a positive labour market opinion (LMO), confirming that there are no Canadians to do the job, to enter Canada, unless the work qualifies as after-sales or after-lease servicing, or emergency repairs.

United States

Under current law, articulated in CBP field guidance, Canadian nationals may be admitted pursuant to NAFTA in a number of categories, including installers, repair and maintenance personnel, or supervisors of such work on commercial or industrial equipment or machinery (including computer software) manufactured and purchased from an enterprise located outside the United States. However, in such cases there must be a contract of sale or warranty for the equipment or machinery that specifically requires the seller to provide such services or training workers to provide such services, and the alien must possess specialized knowledge essential to the seller's contractual obligation to perform the services or training and must receive no remuneration from a U.S. source. Persons seeking admission to the U.S. to perform maintenance and repair work that does not meet these criteria must seek admission in an appropriate category, such as an H-2B temporary worker (a visa classification that requires a temporary labor certification from the U.S. Department of Labor).

C. After-lease servicing

Canada

Under current provisions, Canada authorizes the temporary entry of business visitors providing both after-sales service and after-lease service (see page 27 of the Temporary Foreign Worker Guidelines Manual).

United States

Under current regulations, the U.S. authorizes the temporary entry of business visitors seeking admission pursuant to NAFTA to provide after-sales service. There is currently no regulatory provision authorizing admission to provide after-lease service, either for business visitors seeking admission under NAFTA or under the general business visitor visa category.

D. NEXUS client profile 

Canada

CBSA currently includes the work permit as part of the NEXUS profile. If, at the time of application, a business traveller has an existing work permit, they can provide the permit number and it will be added to their profile. For applicants without their work permit at the time of their NEXUS application, the business traveller’s work permit would be issued upon their first entry and then added to the traveller’s NEXUS profile.

United States

CBP and CBSA already have a mechanism in place to identify different classes of admission in the NEXUS profile (e.g., a TN), and would have that status recorded at enrollment so the CBP officer can select the appropriate class of admission under which the applicant is entering.

E. Advance adjudication processes

Canada

CIC currently provides advance rulings for any work permit application received at a Canadian Embassy or Consulate for NAFTA professionals, intra-company transferees, and traders/investors to find and resolve potential issues before travelling.

United States

The U.S. Department of Homeland Security (DHS) currently does not permit Canadian nationals outside the U.S. seeking admission as “TN” NAFTA professional workers to request advance adjudication of TN eligibility. However, employers may petition USCIS for advance adjudication of eligibility on behalf of prospective L-1 intracompany transferees, including employers that are included on an organization’s approved L-1 blanket petition. Canadian nationals seeking admission as “E-1” Treaty Traders or “E-2” Treaty Investors are required to obtain a visa from a U.S. embassy or consulate.

F. Redress/recourse mechanisms for denied applications

Canada

The current recourse mechanisms include re-application, referral to CIC Case Management Branch, or judicial review.

United States

The Department of Homeland Security’s Traveler Redress Program (DHS TRIP) is the principal redress mechanism for individuals who have been denied or delayed entry into or exit from the U.S. at a port of entry or border crossing or who are experiencing travel screening difficulties. See http://www.dhs.gov/files/programs/gc_1169676919316.shtm.

Action Plan – Business Traveller Initiatives

Under the Action Plan, the following commitments were made to facilitate the conduct of cross border business:

  1. Administrative guidance and training. CBSA and CBP will provide enhanced administrative guidance and training to their officers and enhanced operational manuals to achieve optimal operational consistency at all ports of entry on business traveller issues.
  2. Specialized maintenance and repair personnel. Canada and the U.S. will develop and implement operational and administrative policies and requirements to facilitate the movement of specialized personnel to perform maintenance and repairs of industrial machinery and critical operations systems.
  3. After-lease servicing. Canada and the U.S. will expeditiously pursue changes to existing rules authorizing temporary entry of business visitors who provide after-sale service, so they apply equally to those who provide after-lease service as per designated contractual agreements.
  4. NEXUS client profile. Canada and the U.S. will implement specific approaches to incorporate designating documents onto the NEXUS client profile for predictable expedited clearances.
  5. Advance adjudication processes. Canada and the U.S. will review current administrative processes under which all categories of business travellers may request adjudication of employment and related petitions by the destination country's immigration authorities to identify and resolve potential issues prior to the actual date of travel. Based on this review, and with the objective of increasing the use of the advanced processes, we will improve current processes and, as appropriate, establish new processes.
  6. Redress/recourse mechanisms for denied applications. Canada and the U.S. will review the effectiveness of existing redress and recourse mechanisms for business travellers whose applications are denied, and identify and implement administrative and operational improvements.

Implications for Business

Implementation of the Action Plan outlined above is expected to:

  • provide increased predictability and consistency for business travellers at the border;
  • improve the speed of service to business travellers;
  • improve the movement of key personnel critical to maintaining business continuity; and
  • provide greater opportunity for engagement with government to ensure procedures are meeting the needs of business.

Topics for Discussion and Input

The Canadian and U.S. governments welcome your input on the proposed initiatives in the Action Plan and also wish to know if there are any other suggestions you may have to improve the conduct of cross-border business. Elements to consider include:

  1. Specific issues your business faces in the six areas set out above.
  2. Adjustments that could be made to current government approaches to address these issues.
  3. Elements affecting business travellers not addressed in the Action Plan.
  4. Suggestions on how we can provide you with information in the future and how you would prefer to provide feedback (website, email, roundtable meetings, etc.).

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