Your Questions, Answered.

Transcription

1 Cross- border Business Travel Webinar: Best Practices for Travel between Canada and the U.S. Thank you for attending the Cross- border Business Travel Webinar: Best Practices for Travel between Canada and the U.S., hosted by the Ontario Chamber of Commerce and the Commercial Service section at the U.S. Consulate General in Toronto. We are following up on some of the questions you raised during the session. Please see below for the responses to your inquiries. Your Questions, Answered. After- Sales Warranty Repair Q&A: Question: Can the service company be considered after sales service if listed in the Conditions of Sale as the service provider, but it is a separate entity from the company who sold the equipment? Answer: A third- party service provider is eligible to provide the after- sales- service provided: A. The equipment is sourced from a NAFTA partner (i.e. the U.S., Canada or Mexico); B. The installation, training, maintenance and warranty repair and period are specifically set out in the original sales agreement; C. The third- party provider is specifically referenced by name; and D. The installers, repair and maintenance personnel possess specialized knowledge and skill essential to the vendors' contractual obligations. Question: We often sell machine retrofits that include installation assistance by one of our technical specialists. What is important to make sure we get these technical specialists from the US to Canada? Canada to the U.S.? Answer: A work permit may not be required to perform repairs and to maintain equipment, or to train workers on commercial or industrial equipment sold by a U.S. company to a Canadian customer (or Canadian company to a U.S. customer) pursuant to a written and fully documented original sales agreement or warranty. A work permit may be required if you fall outside of this scenario. Question: If the U.S. company sold a piece of equipment to a Canadian company, and within that PO or sales contract, it specifically lines out after sales warranty service as part of the contract, do US exporters need a work permit? And if it is not in the sales contract or PO, what do they need to do? What if a Canadian company sold a piece of equipment to a U.S. company?

2 Answer: Anyone qualifying for after sales service, including warranty repair, does not need a work permit they are considered a business visitor. However, to be eligible as a business visitor in after sales service, complete details must be contained in the original PO or sales contract. It is often the case that contracts do not have this, so companies try to backdate, recreate history, or make modifications now to achieve the immigration objective. If officers of the Canada Border Services Agency (CBSA) or U.S. Customs and Border Protection suspect this has been done, they will deny business visitor status and may impose sanctions/penalties due to misrepresentation. Question: We are a Canadian manufacturer that sells Hyrdo turbines to the United States. We need to travel to the U.S. for trade shows, witnessing installation of equipment and possible warranty repair evaluation. What should we know about travel for the above and is it possible to do installations of our own equipment? We currently use 3rd party companies, as we are not sure what is involved in getting work visas for our installation team. It hasn't come up yet but what are options if we needed to do warranty repair work in the U.S. and does it vary by State? What if we re a U.S. manufacturer selling to Canada? Answer: The following workers are entitled (pursuant to NAFTA) to enter as business visitors without the need for a work permit: installers; repair and maintenance personnel; and supervisors. Evidence must be produced of the following: A. The original written contract for the sale of the equipment specifically includes the installation, maintenance and warranty of it for a precise (and reasonable) period of time; and B. Such workers must possess specialized knowledge and skill essential to the Canadian (or American) vendor s contractual obligations mentioned above. Training Q&A: Question: Can teaching a private seminar for a Canadian company be considered public speaking? Answer: A commercial speaker is eligible to be granted temporary entry to Canada for the purpose of delivering speeches, talks and papers, and to receive compensation for the same, provided the conference is no longer than 5 days per trip and that the conference is open to the public, even though there may be a ticket and/or entry fee. A private seminar is not public speaking. If a company hires a specialist to deliver a speech or provide training, such a speaker is required to have a work permit. Possible options to the work permit include the Management Consultant professional designation under NAFTA which does not require a Labour Market Opinion (LMO). Best to review the NAFTA chapter 16 appendix 1603.d. There are approximately 63 professional categories listed. Question: Do you need a work permit if you are training a Canadian company on the use of your equipment?

3 Answer: Training is an eligible activity for which a work permit is not required provided: A. The element of training is specifically referred to in the written original sales agreement; B. The training is incidental to the sale of the equipment; and C. The trainers possess specialized knowledge that is essential. Business Development Q&A: Question: Can the Canadian Business visitor to the U.S. bring things like "samples" with them to assist in obtaining potential new clients (i.e. trade show exhibitor)? What about a U.S. visitor bringing samples to Canada? Answer: Marketing, promotion, negotiation, and taking orders are all permissible activities that do not require work permits. Delivering goods or providing services may require work permits, unless they are exempt. You cannot make direct sales to the public. Everyone in the team is considered a business visitor and is exempt under NAFTA. There needs to be documentation detailing what they are doing, and the temporary purpose of their trip: airplane tickets, hotel booking, trade show registration and information, etc. Normally just a letter from the U.S. organization sending the workers to Canada, setting out all the particulars of who the travelers are and what they will be doing at the trade show is enough. The same is also true of Canadian organizations sending workers to the U.S. A work permit is not required. You can market, promote, negotiate, and take orders as a business visitor but you cannot perform services or make direct sales to the public. Question: For trade show giveaways, is there a particular price range on items that need to be declared? In other words, do I need to declare low- value items such as pens or key chains? Answer: All such items must be declared and have duty and tax paid on them regardless of how low their value. For example, a musician giving away posters would have to declare the posters even if giving them away for free. Miscellaneous Q&A: Question: Would a biologist (with a college degree), working for a U.S. company under contract to a Canadian company, to gather biologic data at a project site in Canada, for a period under 1 month, qualify as a business visitor under NAFTA? Answer: Best to review the NAFTA chapter 16 appendix 1603.d. There are approximately 63 professional categories listed within NAFTA, one of which is Biologist. To qualify under these professions, a degree designation in a closely related course of study is required (typically a three or four year degree). Question: For a work permit, do the activities need to be for only one client?

4 Answer: Whatever the duration of a work permit, if required, is needed for each and every client or customer. If there are multiple clients, then ordinarily there needs to be multiple applications and multiple work permits. This is a general rule, as work permits are generally limited to a particular employer, client, engagement, location, role/duties etc. Question: Who initiates the Labour Market Opinion (LMO) process? Answer: A Canadian organization is essential to the employer- employee relationship, and therefore it is the Canadian company (or their attorneys/lawyers acting on their behalf) that files the application. Question: How long does an LMO take and what does it entail? Answer: In order for an application for an LMO to be eligible for processing by Service Canada, the company has to have already taken a number of steps towards an LMO. Such as advertising the job. The application must detail the minimum skills and qualifications for the position and include a minimum salary or salary range. Once these requirements (and others) are met and the application is submitted, the processing time takes approximately days. During this time the job must continue to be made available by public advertising. The purpose of this process is to give Canadian citizens and permanent residents a fair and reasonable opportunity to make an application. The Canadian employer must demonstrate that they have made reasonable recruiting efforts. Question: Are there any costs associated with an LMO? Are there any costs associated with a petition/work permit for engaging in work in the U.S.? Answer: In addition to the time cost and professional fees that specialists may charge, the (non- refundable) Canadian government processing fees are $275 CAD to submit the application. After this step is approved, for all workers who require a permit (LMO or not) it costs $150, paid for at the border or at the Canadian Consulate in the U.S. by the worker seeking entry in Canada. In the U.S., there is a $325 petition filing fee plus $190 Visa processing fee. Question: If a U.S. citizen has a DUI, will they not be admitted into Canada? What do they have to do to be admissible? What about a Canadian citizen traveling to the U.S.? Answer: If a person has a DUI, that person is inadmissible in Canada (note that the reverse is not true, for a person going to the United States). It is always better to answer all questions honestly. Furthermore, Canada can only give a pardon for a Canadian conviction. So an American has to go through an application for criminal rehabilitation. There is a fee, a form and considerable evidence that must be provided. Question: What section of NAFTA is the list of LMO- or Work Permit - exempt professionals under?

5 Answer: This can be found in Chapter 16, appendix 1603.d.1. Every one (except one) of the 63 professionals requires a postsecondary credential. The only professional that does not require a postsecondary credential, is for Management Consultant. This poses a challenge, where a lawyer or company has to prove that the Management Consultant has (instead of a degree) a minimum of 5 years of experience related to the consulting field they are planning on delivering service for. There is a very high level of scrutiny and refusal rate under the Management Consultant category for those applicants who do not have a university degree. Question: If a U.S. corporation has a subsidiary company that is a Canadian company, is it easier for U.S. employees to get across the border to perform work in Canada, and easier for Canadian employees to perform work in the U.S.? Answer: It may be the case that the employee qualifies as an intra- company transferee depending on the nature of the relationship between the subsidiary and parent. Intra- company transferees are a business travel option in both the U.S. and Canada as part of NAFTA: Canada: agreements- accords- commerciaux/agr- acc/nafta- alena/temp05-4.aspx?lang=en U.S.: united- states/temporary- workers/l- 1a- intracompany- transferee- executive- or- manager Disclaimer: We thank you for your participation and interest. We have done our best to respond to the many questions that we received both during and following the webinar. All questions have been welcome and are relevant. In the context of a conference or a webinar, it is often difficult to provide complete answers and to give legal advice. Full answers to questions and scenarios that are at times incomplete in terms of detail have not been possible. Participants and others relying on both the slides and our overviews to questions are cautioned that this should not be considered as legal advice, but instead is meant to provide an overview of the relevant criteria in response to generic inquiries. For customized advice, expert recommendations, and particular solutions please contact us directly.