Document Sample

                                          by Evelyn L. Ackah, B.A., L.L.B.

Over the past few years, North America has experienced an overall economic decline. Many
multinational corporations and information technology companies have responded to this
economic decline by laying off large numbers of their employees. As a result of this reduction in
highly skilled labour, companies have begun to relocate their employees around the world to
ensure that operational and production standards are met within their organizations. Why is this
significant? Because now, more than ever, companies are leveraging business immigration laws
to relocate their employees internationally in order to redistribute in-house knowledge, skills and
experience where it is most needed, and ultimately, to reduce their bottom line costs.

What is Business Immigration Law?

Business immigration law is a highly specialized subset of immigration law that primarily
focuses on assisting large multinational corporations and organizations to relocate their skilled
employees (and sometimes entire departments). In this context, business immigration lawyers
help move expatriate employees across borders to attend business meetings, to temporarily take
up employment in other countries or to permanently relocate employees to jurisdictions around
the world. Although this article will focus primarily on the practice of business immigration law
between the United States and Canada, please note, that business immigration lawyers often
assist clients to relocate internationally with the support of integrated, global networks and
foreign immigration desks.

What do Business Immigration Lawyers Do?

Business immigration lawyers assist multinational companies, recruit new employees and
consultants and relocate existing skilled workers by providing immigration, citizenship, customs
and cross-border expertise. When a company is moving employees into Canada of the United
States, experienced business immigration lawyers can help by:

         •         assisting human resource managers, recruiters and in-house legal departments
                   with the initial expatriate selection for the proposed transfer;

         •         advising companies about a candidate's likelihood of success in obtaining the
                   necessary documentation in Canada or the United States and the time required to
                   effect such transfer;

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         •         assessing employee assignments and transfers, obtaining the proper immigration
                   forms and working with the company and its employees to build convincing
                   arguments to obtain the necessary immigration approvals;

         •         preparing and submitting applications for Canadian or United States employment
                   authorization, permanent residence, passport and visa matters;

         •         making legal submissions to Canadian and American Embassies, Consulates,
                   High Commissions and Visa Posts worldwide;

         •         advising on the use of international agreements in immigration matters including
                   the North American Free Trade Agreement ("NAFTA") and other agreements
                   such as the General Agreement on Trade in Services ("GATS");

         •         assisting in the movement of employees across borders for business travel;

         •         reducing the time and obstacles involved in obtaining appropriate immigration
                   and status documents for employees; and

         •         advising on other issues related to immigration such as expatriate taxation, social
                   security, health insurance and customs.

Business immigration lawyers assist companies to recruit, temporarily transfer or permanently
relocate employees to foreign markets quickly and with very little stress on the employees, their
families, or the operations of the company. Generally, business immigration lawyers work
closely with a company's legal and human resources departments when assisting in the relocation
of employees.

In addition to the temporary transfer of employees, business immigration lawyers can also assist
to effect the permanent transfer of employees — even up to and including obtaining citizenship
in a new country.

How do business immigration lawyers help companies in relocating their skilled

Business immigration lawyers can assist in the relocation process by employing legal provisions
contained in immigration legislation, treaties and policies in a manner that best supports the
client/company's best interests. The following are a few examples of commonly used business
immigration categories:

NAFTA Business Visitor

This category allows Canadian, American and Mexican employees to visit their NAFTA
counterpart country to "conduct business" in a passive manner, such as to attend meetings,
discuss issues with colleagues, participate in training, and review and develop company strategy.
NAFTA Business Visitors are not permitted to administer active functions or to act/work on

1 First Canadian Place, 100 King Street West Toronto ON Canada M5X 1B2 Telephone (416) 863-4511 Fax (416) 863-4592
                   Montréal Ottawa Toronto Edmonton Calgary Vancouver New York
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behalf of the foreign company. To qualify under this category, the employee must continue to be
in the employ of their home company, receive no salary from the foreign company that they are
visiting and they must be promoting opportunities for the employer while in the foreign country.

NAFTA Professional

The NAFTA Professional category is a commonly used category under NAFTA that allows
employees to enter Canada (or other NAFTA countries) to work in an authorized professional
capacity for the Canadian entity. It is only available to citizens of NAFTA countries. The
employee must possess professional credentials as established in NAFTA and they must be
engaged in that profession while in the NAFTA country. The employee must also satisfy any
licensing requirements for their profession. Some examples of the professional categories listed
in NAFTA are: Accountant, Computer Systems Analyst, Economist, Engineer and Management
Consultant. There are approximately 70 professional categories in this NAFTA category. The
NAFTA Professional work permit is granted for a term of one year at a time, but may be
renewable for up to five years.

NAFTA Intra-Company Transfer

This category allows employers to effect the speedy transfer of qualified employees of the
United States, Canada or Mexico to another NAFTA country to take up senior managerial or
specialized positions within the foreign entity. To qualify, the employer must document the legal
relationship between the current employer and the foreign company that their employee is being
transferred to. Also, the employee must have been employed by the current employer for a total
period of at least one year of the three years immediately prior to seeking the transfer and must
have taken on "managerial responsibilities" or a position utilizing "specialized knowledge." This
type of work permit can be granted for an initial term of up to three years and may be extended
up to a total term of 7 years, depending on the category.

GATS Work Permits

The GATS Intra-company transfer category is very similar to the NAFTA Intra-Company
Transfer category, however, the GATS provisions apply to more than just American, Mexican
and Canadian citizens. GATS signatory nations cover most of Europe, Africa, the Caribbean and
the Middle East. As with the NAFTA Intra-company transfer provisions, GATS also requires
that an employee be employed with the company for a period of at least one year prior to the

Canadian Permanent Residence

An expatriate employee who has been in Canada for a few years may want to become a
permanent resident of Canada for professional and tax reasons. As a skilled worker already in
Canada working for a Canadian operation, these employees have a definite advantage when
applying for a Canadian permanent residence. Canada's permanent residence assessment system
is currently based on a "point system" whereby applicants are awarded points for a number of
factors such as age, education, language ability, occupation and experience. As of June 28, 2002,

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                   Montréal Ottawa Toronto Edmonton Calgary Vancouver New York
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the points required to become a permanent resident of Canada was set at 67. The key factors
considered in a Canadian permanent residence application are educational level, work
experience, arranged Canadian employment and ability to speak English and/or French.

Based on the brief synopsis above, it is clear that there are many different legal strategies that
corporations can utilize (with the skilled help of a knowledgeable immigration lawyer) to
expedite the transfer of skilled workers around the world in order to meet their organizational
and corporate goals. As companies become truly multinational in nature, the need to relocate in-
house expertise in a cost effective and efficient manner becomes paramount. The area of
business immigration law, and more importantly, the lawyers who use immigration laws and
policies strategically, will become even more significant to the multinational companies which
they serve.

Evelyn Ackah is a Business Immigration lawyer with Fraser Milner Casgrain LLP. She obtained
her undergraduate degree in Political Science from Simon Fraser University in 1993 and her
law degree from the University of British Columbia Faculty of Law in 1997. She was admitted to
the Ontario bar in February 1999 and worked as a corporate/commercial lawyer or two years
before starting her practice in Business Immigration Law.

1 First Canadian Place, 100 King Street West Toronto ON Canada M5X 1B2 Telephone (416) 863-4511 Fax (416) 863-4592
                   Montréal Ottawa Toronto Edmonton Calgary Vancouver New York