Canadian HR Reporter

CANADIAN HR REPORTER September 21, 2015 FEATURES 33 • Mission critical roles reflect the capabilities, skills and com- petencies required to perform work that an organization con- siders critical to achieving its business objectives. ese roles handle projects, processes and technologies that would signifi - cantly hamper an organization's ability to conduct business if they were lacking. A mission critical role may or may not be a hot skill role or one that is hard to recruit. Roles in this category do not shift frequently without a major change in business direction. • Hard-to-recruit roles are those with capabilities, skills and com- petencies an organization has a challenge in sourcing and hiring. is could be due to a role being a hot skill role or due to other fac- tors such as company reputation, industry segment, geographic location, local or regional supply and demand issues that diff er from the national market, and unique labour market infl uenc- es. Roles in this category change over time. • Hot skill roles are those in high demand and short supply relative to demand in the external labour market. ese roles will change based on external market condi- tions rather than factors within the organization's control. Not all roles are of equal value to an organization and not all in- dividuals performing those jobs bring the same degree of value either. Sound economics require there to be an equilibrium be- tween the contributions of jobs and individuals and the monetary value they are assigned. Doing so in a disciplined and consistent way will satisfy em- ployees' needs for equity and create the appropriate level of motivation. e focus should be on how to accomplish this rather than whether it is the correct course of action to take. Ken Abosch is a partner and broad- based compensation leader at Aon Hewitt in Chicago. Satisfy employee need for equity COMPENSATION < pg. 31 RELOCATION Preparing for cross-border business travel By Saba Naqvi C anadian employers often need employees to travel to the United States for business. However, Canadians have to be aware of work status requirements and the diff erence between business travel and work travel. e following frequently asked questions will equip employers with knowledge and tips that may assist personnel entering the U.S.: Who is a U.S. business visitor? Canadian employers and business people should take the time to un- derstand what constitutes a legiti- mate business visitor activity. An individual going to the U.S. may enter as a "B-1" business visitor on behalf of his Canadian business or Canadian employer to: •attend a business meeting •negotiate the terms of a contract •attend a conference or trade show •provide after-sales service in connection with the sale of a product (in some cases). In general, Canadian citizens who perform these business activ- ities are "visa exempt" and do not require a visa to enter the U.S. If a U.S. customs and border protec- tion (USCBP) offi cer is convinced the business travel is legitimate and other requirements for ad- mission are satisfi ed, admission will be granted at the port of entry. What are the U.S. immigration requirements for business visitors? e traveller should be prepared to satisfy the USCBP offi cer at the port of entry that she meets the three distinct requirements out- lined below. In the event the em- ployee has had problems crossing the border in the past, it might be useful to ensure she has adequate supporting documentation pre- pared in advance. • Permanent residence: An em- ployee should have a home in Canada to return to. Proof of residence may be demonstrated by a title deed or a lease. In some cases, further evidence may be requested, such as utility or phone bills or evidence of assets. •Intent to enter the U.S. for a temporary period: The busi- ness visitor must be prepared to demonstrate the intended entry to the U.S. is for a limited pe- riod. A detailed itinerary for the business trip, a return trip ticket and evidence of strong business and family ties to Canada would help. •Intent to engage in permissible business activities: e third and often most onerous require- ment is that the employee satis- fi es the USCBP offi cer the visit will not involve him engaging in unauthorized "work" in the Unit- ed States. e most appropriate evidence is in the form of a let- ter from the Canadian employer identifying the specifi c business purpose, the employee's posi- tion in Canada, the date Cana- dian employment commenced, annual salary and the date the employee will return to his job in Canada. What is the diff erence between business and work? As mentioned above, a business visitor enters the United States on behalf of her Canadian employer or business to engage in activities such as attending a business meet- ing, engaging in sales on behalf of her Canadian employer or attend- ing a conference. On the other hand, an individ- ual who enters the U.S. to provide services to a client or business in the U.S. is viewed as engaging in work. e test USCBP often ap- plies is whether or not the U.S. party could hire an individual in the U.S. to perform the service. If so, then it is work. Whether or not the U.S. entity attempted to fi nd a U.S. professional to provide the services is not relevant in this determination. A common misconception is that employees are permitted to perform services in the U.S. as business visitors as long as they are not getting paid directly from the U.S. source. is is not the case. In general, any service that is provided to a U.S. entity while the Canadian is on U.S. soil is con- sidered an activity outside of B-1 business visitor classifi cation and work authorization is required. Here's a good test: A Canadian company looking to attract a U.S. client may send the employee to the U.S. as part of the marketing eff ort for a meeting or contract negotiation. Once a contract for services is signed, any subsequent activity would generally be viewed as work and work authorization would be required. May a Canadian provide any services to a U.S. entity as a business visitor? Under the North American Free Trade Agreement (NAFTA), Ca- nadian businesses that have sold a product to an American entity may send personnel to enter the U.S. to provide "after-sales ser- vice" incidental to the sale of the product. After-sales service may include installation, assembly, repair, maintenance and training. The provision for after-sales service must be specifi cally pro- vided for in the original sales agreement and the contract must be shown to USCBP offi cers at the port of entry. e individual entering to provide the after-sales service must possess specifi c spe- cialized knowledge and skill per- taining to the services required. e after-sales service can be a third-party contractor, as long as the provision was provided for in the original contract of sale. It is important to note the product must have been manufactured outside of the United States. If the activity falls within the defi nition of work, what options are available? If the activity does not fall within the after-sales service category, work authorization is required. Canadians may benefi t from fa- cilitated processing of work au- thorization at U.S./Canada land border crossings and airports. Ca- nadians qualifi ed in a profession listed in Appendix 1603.D.1 of NAFTA may seek treaty national (TN) status. TN status is requested on be- half of the Canadian employee by the U.S. client or entity requesting professional services in the form of a letter. e TN letter must con- tain very specifi c elements to dem- onstrate the Canadian employee's qualifi cation for the status. Ad- ditional supporting documents must be shown by the employee. Examples of supporting docu- mentation for TN status include academic credentials, reference letters, a resumé and a Canadian employer support letter. Work authorization options also exist for qualifi ed intra-com- pany transferee executives, man- agers and employees with special- ized knowledge being transferred to a U.S. parent, affi liate, branch or sister company of a Canadian corporate entity. For those who do not fi t within the above categories, other op- tions may be examined. Taking the time to prepare and understand the requirements of U.S. laws can prove benefi cial in removing the anxiety that can be associated with business travel. Often, activities are not eas- ily identifi able as clearly falling within the defi nition of business or work. It may be best to con- sult an expert knowledgeable in immigration laws before send- ing employees across the 49th parallel. Saba Z. Naqvi is an immigration law- yer at Boughton Law in Vancouver. She can be reached at (604) 647-4139 or snaqvi@boughtonlaw.com. Please note the above article is for informa- tional purposes only and does not con- stitute legal advice. HR do's and don'ts Do's Do educate yourself: Take the time to research the proposed business visitor activity. Advance preparation and advice from an expert can go a long way. A denial at the border can have a long-term, negative impact not only on employees' travel, but also on your company's reputation with U.S. immigration. Do educate the employee: Ensure the employee understands the purpose of the business visit — while you may have thoroughly prepared all of the required documents with painstaking detail, if the employee cannot explain the purpose of his visit in direct and simple terms, he may face diffi culty. Do ensure the employee is honest: The importance of being honest about the proposed business activity is paramount. Sometimes nervous employees inadvertently attempt to come up with answers they think the offi cer wants to hear, rather than being upfront about the actual visit. Don'ts Don't make assumptions based on prior experience: Prior frequent travel by employees to the U.S. without incident does not mean unlimited future access — each offi cer has a varying perspective in determining eligibility. Don't have faith in unverifi able Internet sources: Don't use "template" letters found on the Internet without exercising extreme caution. Unfortunately, the one-size-fi ts-all adage does not apply to U.S. immigration laws. A very minor error could cause your company major problems. Don't panic: In the event an employee is turned away at the port, as long as she was upfront about the purpose of the visit, in many cases, the problem may be rectifi ed by returning with appropriate documentation.

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