Many people in the U.S. take for granted the ability to travel freely to Canada. Those who do are often visitors for a week or less, going up to Montreal for Parisian style site-seeing, traveling to Manitoba to see polar bears in Churchill, or marveling at the beauty of Vancouver’s coast and mountain range. Polar bears aside, the value of tourism to Canada alone pales in comparison to the fact that the U.S. and Canada have the largest bilateral trading relationship in the world. Two-way trade in goods and services exceeded $700 billion in 2012, supporting millions of jobs in both the U.S. and Canada. So what is being done from an immigration perspective to facilitate this bilateral trade in goods and services?

Inflexible Exchange of Human Capital: Visitors from both the U.S. and Canada often wish to travel for business trips to visit client sites, negotiate contracts, or attend conferences. Companies also often wish to exchange workers between the U.S. and Canada, seeking work authorization options on both sides of the border. Companies conducting business in the U.S. and Canada still face challenges in qualifications and timeframes in sending their workforce and their goods back and forth across the border. The U.S. immigration environment with Canada is better and easier than with most countries, but it is far from the ease of exchange of human capital experienced in the European Union (EU) or even the flexibility of the EU Blue Card.

NAFTA Vision: The vision and implementation of the North American Free Trade Agreement (NAFTA) was to expedite or otherwise facilitate legitimate cross-border business travel along the northern border ports of entry. NAFTA authorizes Canadian citizens to enter the U.S. in TN status for employment in certain restricted professional occupations. L-1 visa regulations allow certain Canadian executive, managerial, and specialized knowledge personnel to work in the U.S. Visa free travel for tourism and short, restricted business visits also continues. For all such U.S. entries, Canadian applicants can apply directly to a U.S. immigration inspector at land border or pre-flight inspection at a designated airport in Canada, rather than waiting for an approval from the U.S. Citizenship and Immigration Services (USCIS).

Beyond the Border Action Plan: However, today the U.S.-Canadian border remains an often confusing and restrictive place to conduct business. The immigration and travel systems are disjointed and often cumbersome, deterring business growth with our Canadian neighbors. In furtherance of the goals under NAFTA, President Obama and Canadian Prime Minister Harper released the Beyond the Border Action Plan (BBAP) in December 2011. This plan set forth joint priorities and specific initiatives for achieving this vision. Under BBAP, a specific commitment was made by the U.S. and Canadian governments to explore the feasibility of incorporating a trusted employer concept in the processing of business travelers between Canada and the United States.

U.S. Known Employer Pilot Program: On January 8, 2015, the Department of Homeland Security (DHS) announced that it is considering a “Known Employer” pilot program to streamline the adjudication of certain types of employment-based immigration benefit requests filed by eligible U.S. employers.

The Known Employer pilot, which DHS expects to commence by late 2015, is intended to test a program designed to make adjudications more efficient and less costly, while reducing paperwork and delays for both DHS and U.S. employers who seek to employ foreign workers. A significant goal for the BBAP is to ensure that business travelers benefit from more efficient and predictable border clearance processes. Although specific details are still unknown, we hope this program facilitates the exchange of personnel between low-risk employers on both sides of the border and fills a gap where other immigration options fall short. We look forward to following the progress of the Known Employer pilot program and more permanent solutions facilitating bilateral trade between the U.S. and Canada.

We will continue to monitor cross-border U.S. and Canadian initiatives. If you have a cross-border immigration question, please do not hesitate to contact us!

Posted by: Holly Hatton